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EXHIBIT 10(iv)
SHORT TERM LEASE AGREEMENT
This SHORT TERM LEASE AGREEMENT ("Agreement") is made and entered into
this 1st day of August, 2000, by and between TRANSWESTERN EAST BY SOUTHEAST,
L.L.C., A DELAWARE LIMITED LIABILITY COMPANY, AS ("LANDLORD") AND INTELLIREADY,
INC., A COLORADO CORPORATION, AS ("TENANT").
WITNESSETH
WHEREAS, Landlord and Tenant are parties to that certain Lease
Agreement dated August 1, 2000 with respect to the certain Premises known as
Suite 136 (the "Lease") and located at EAST BY SOUTHEAST, 0000 XXXXX XXXXXXX
XXXXXX, XXXXX 000, XXXXXX, XXXXXXXX ("PREMISES"); and
WHEREAS, Tenant desires to lease additional space in East by Southeast,
more particularly described as 0000 Xxxxx Xxxxxxx, Xxxxx 000, ("Building");
NOW THEREFORE, in consideration of the mutual covenants and conditions
herein and for such other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
1. SHORT TERM PREMISES. Landlord hereby grants to Tenant the use of
certain additional space ("Short Term Premises") in the Building,
commonly known as East by Southeast, 0000 Xxxxx Xxxxxxx, Xxxxx 000, as
designated and described on Exhibit "A" attached hereto and
incorporated herein by this reference, subject to and in consideration
of the payment of rent and the terms and conditions contained herein.
2. TERM. The term hereof shall begin on August 4, 2000, and shall
continue on a month-to-month basis thereafter. This Agreement, for the
Short Term Premises, may be terminated by Landlord upon no less than
thirty (30) days prior written notice to Tenant or by Tenant upon no
less than thirty (30) days prior written notice to Landlord. In the
event Tenant receives written notice from Landlord to terminate this
agreement, Tenant agrees to vacate the space within thirty (30) days
of notice and shall remove any and all items belonging to the Tenant
and shall leave the space in a broom clean condition.
3. BASE RENT. Tenant shall pay to Landlord a Base Rent for the use of the
Short Term Premises the sum of Zero and 00/100 Dollars ($0.00) per
month, in advance, on or before the first (1st) day of each calendar
month during the term hereof, without demand, deduction or offset, in
the same manner, at the same place and at the same time as set forth in
the Lease for payment of rent.
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4. HOLDING OVER. In the event Tenant remains in possession of the Short
Term Premises or any part thereof after the termination notice period
has expired, the Base Rent fee as described in Paragraph 3, shall be
charged at the rate of Seven Thousand Five Hundred Fifty and 00/100
($7,550.00) per month.
5. USE. The Short Term Premises shall be used solely by Tenant for the
purpose of a general office/warehouse and for no other use without the
prior written consent of Landlord. Tenant shall not store any
dangerous, offensive or hazardous materials on property, nor any
perishable goods in the Short Term Premises. Tenant shall not permit
the Short Term Premises to be used by any other person or for any
commercial or income generating purposes. Tenant shall not permit, keep
or store any property in the Short Term Premises nor allow the Premises
to be used or occupied in any fashion which would result in
cancellation of any insurance policy on the building, increase any risk
of statute, ordinance, protective covenant, rule or regulation
affecting the Building.
6. COMPLETION OF SHORT TERM PREMISES. Tenant hereby accepts the Premises,
in its present "as-is" condition, and Landlord shall have no liability
or obligation for any improvements hereto or completion thereof.
7. TENANT OBLIGATIONS. Landlord shall provide the Short Term Premises with
water and refuse removal. All other expenses relating to the Short Term
Premises, including, but limited to electrical and janitorial service,
shall be at Tenant's sole expense.
8. INSURANCE. The insurance provision of the Lease shall also apply to the
Short Term Premises and the insurance coverage's obtained by Tenant
with respect to the lease shall also apply to the Short Term Premises.
Landlord shall not be liable to Tenant for any damage, loss or risk to
any persons or any property of Tenant within the Short Term Premises,
nor from any injury or damage resulting from fire, explosion, falling
plaster, steam, gas, electricity, water or rain, sprinkler systems,
vandalism, criminal activity of third persons, or otherwise and Tenant
hereby waives, releases and expense associated therewith; it being
understood and agreed that Tenant expressly, assumes the risk of
damages or loss to persons and property placed in Short Term Premises.
9. ACCESS, DELIVERY, RULES AND REGULATIONS. Tenant shall be responsible
for keeping the access doors to the Short Term Premises locked and
secured at all times, except when immediately in use. Tenant shall
comply with all rules and regulations which Landlord may, from time to
time, adopt with respect to the Short Term Premises and access and
deliveries thereto.
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10. CONFLICT, INCORPORATION OF LEASE. In the event of any conflict or
express inconsistency between the terms of this Short Term Lease
Agreement and the terms of the Lease, the terms of this Short Term
Lease Agreement shall control and govern with respect to the Short Term
Premises only. In all other respects, the terms and conditions of the
Lease not expressly inconsistent or in conflict with the terms of this
Short Term Lease Agreement are hereby incorporated into and shall
apply, in all respects to the Short Term Premises.
11. CONTINGENCY. This Short Term Lease Agreement is strictly contingent
upon Landlord entering into a lease agreement with IntelliReady, Inc.,
a Colorado corporation, to lease Suite 136 at East by Southeast, 0000
Xxxxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first set forth above.
LANDLORD:
TRANSWESTERN EAST BY SOUTHEAST, L.L.C.,
a Delaware limited liability company
Transwestern Investment Company, L.L.C. as Agent
By: /s/ XXXXX X. XXXXX
-----------------------------------------------
Name: XXXXX X. XXXXX
---------------------------------------------
Title: SENIOR VICE PRESIDENT
--------------------------------------------
TENANT:
INTELLIREADY, INC.,
a Colorado corporation
By: /s/ XXXXXX X. XXXXX
-----------------------------------------------
Name: XXXXXX X. XXXXX
---------------------------------------------
Title: CHAIRMAN
--------------------------------------------
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EXHIBIT A
OUTLINE AND LOCATION OF SHORT TERM PREMISES
SUITE 126
[FLOOR PLAN]
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INDUSTRIAL BUILDING LEASE
BETWEEN
TRANSWESTERN EAST BY SOUTHEAST, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
("LANDLORD")
AND
INTELLIREADY, INC.,
A COLORADO CORPORATION
("TENANT")
DATE OF LEASE 8/1/00
-----------
BUILDING - EAST BY SOUTHEAST, BUILDING 1390
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TABLE OF CONTENTS
1. DEFINITIONS ........................................ 1
2. LEASE GRANT ........................................ 4
3. ADJUSTMENT OF COMMENCEMENT DATE/POSSESSION ......... 4
4. USE ................................................ 5
5. BASE RENTAL ........................................ 6
6. SECURITY DEPOSIT ................................... 6
7. SERVICES TO BE FURNISHED BY LANDLORD ............... 7
8. LEASEHOLD IMPROVEMENTS/TENANT'S PROPERTY ........... 7
9. SIGNAGE ............................................ 8
10. REPAIRS AND ALTERATIONS BY TENANT .................. 8
11. USE OF ELECTRICAL SERVICES BY TENANT ............... 9
12. ENTRY BY LANDLORD .................................. 10
13. ASSIGNMENT AND SUBLETTING .......................... 10
14. MECHANIC'S LIENS ................................... 11
15. INSURANCE .......................................... 12
16. INDEMNITY .......................................... 13
17. DAMAGES FROM CERTAIN CAUSES ........................ 13
18. CASUALTY DAMAGE .................................... 14
19. CONDEMNATION ....................................... 14
20. HAZARDOUS SUBSTANCES ............................... 15
21. AMERICANS WITH DISABILITIES ACT .................... 16
22. EVENTS OF DEFAULT .................................. 16
23. REMEDIES ........................................... 17
24. NO WAIVER .......................................... 20
25. PEACEFUL ENJOYMENT ................................. 20
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26. SUBSTITUTION ....................................... 21
27. HOLDING OVER ....................................... 21
28. SUBORDINATION TO MORTGAGE/ESTOPPEL CERTIFICATE ..... 21
29. NOTICE ............................................. 22
30. LANDLORD'S LIEN .................................... 22
31. SURRENDER OF PREMISES .............................. 22
32. RIGHTS RESERVED TO LANDLORD ........................ 23
33. MISCELLANEOUS ...................................... 23
34. ENTIRE AGREEMENT ................................... 25
35. LIMITATION OF LIABILITY ............................ 25
36. PARKING ............................................ 26
EXHIBIT A-LEGAL DESCRIPTION
EXHIBIT B-OUTLINE AND LOCATION OF PREMISES
EXHIBIT C-RULES AND REGULATIONS
EXHIBIT D-PAYMENT OF BASIC COSTS
EXHIBIT E-WORK LETTER
EXHIBIT F-TENANT'S EXPANSION OPTION/RIGHT OF FIRST OFFER
EXHIBIT G-RENEWAL OPTION
EXHIBIT H-ROOFTOP COMMUNICATIONS
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INDUSTRIAL BUILDING LEASE AGREEMENT
This Industrial Building Lease Agreement (the "LEASE"), made and entered into on
this the 1st day of August, 2000, between Transwestern East by Southeast,
L.L.C., a(n) Delaware limited liability company ("LANDLORD") and IntelliReady,
Inc., a(n) Colorado corporation ("TENANT").
WITNESSETH:
1. DEFINITIONS. The following are definitions of some of the defined terms
used in this Lease. The definition of other defined terms are found throughout
this Lease.
A. "BUILDING" shall mean the industrial building at 0000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxx of Colorado, currently known as East by Southeast.
B. "BASE RENT": Base Rent will be paid according to the following schedule,
subject to the provisions of Section 5. hereof. For the purposes of this
Section 1.B., "LEASE YEAR" shall mean the twelve (12) month period
commencing on the Commencement Date, and on each anniversary of the
Commencement Date.
MONTHLY INSTALLMENTS
PERIOD ANNUAL BASE RENT OF BASE RENT
------------ ----------------- --------------------
MONTHS 01-12 $ 93,470.04 $7,789.17
MONTHS 13-30 $100,480.20 $8,373.35
MONTHS 31-48 $109,827.24 $9,152.27
The Base Rent due for the first month during the Lease Term (hereinafter
defined) shall be paid by Tenant to Landlord contemporaneously with
Tenant's execution hereof.
C. "ADDITIONAL RENT": shall mean Tenant's Pro Rata Share of Basic Costs
(hereinafter defined) and any other sums (exclusive of Base Rent) that are
required to be paid to Landlord by Tenant hereunder, which sums are deemed
to be Additional Rent under this Lease. Additional Rent and Base Rent are
sometimes collectively referred to herein as "Rent."
D. "BASIC COSTS" shall mean all direct and indirect costs and expenses
incurred in connection with the Building as more fully defined in EXHIBIT D
attached hereto.
E. "SECURITY DEPOSIT" shall mean the sum of Thirty Seven Thousand Five
Hundred and 00/100 Dollars ($37,500.00). The Security Deposit shall be paid
by Tenant to Landlord contemporaneously with Tenant's execution hereof.
F. "COMMENCEMENT DATE", "LEASE TERM" and "TERMINATION DATE" shall have the
meanings set forth in subsection I.F.(l) below:
(1) The "LEASE TERM" shall mean a period of forty-eight (48) months
commencing on the later to occur of (a) October 1, 2000 (the
"TARGET COMMENCEMENT DATE") and (b) the date upon which Landlord's
Work in the Premises has been substantially completed as such date
is determined pursuant to Section 3.A. hereof (the later to occur
of such dates being defined as the "COMMENCEMENT DATE"). The
"TERMINATION DATE" shall, unless sooner terminated as provided
herein, mean the last day of the Lease Term. Notwithstanding the
foregoing, if the Termination Date, as determined herein, does not
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occur on the last day of a calendar month, the Lease Term
shall be extended by the number of days necessary to cause the
Termination Date to occur on the last day of the last calendar
month of the Lease Term. Tenant shall pay Base Rent and
Additional Rent for such additional days at the same rate
payable for the portion of the last calendar month immediately
preceding such extension. The Commencement Date, Lease Term
(including any extension by Landlord pursuant to this
subsection l.F.(2) and Termination Date shall be set forth in
a Commencement Letter prepared by Landlord and executed by
Tenant in accordance with the provisions of Section 3.A.
hereof.
G. "PREMISES" shall mean the space located within the Building and
commonly known as Suite 136 and outlined on EXHIBIT B to this Lease.
H. "APPROXIMATE RENTABLE AREA IN THE PREMISES" shall mean the area
contained within the demising walls of the Premises and any other area
designated for the exclusive use of Tenant plus an allocation of the
Tenant's pro rata share of the square footage of the "Common Areas" and
the "Service Areas" (as defined below). For purposes of the Lease it is
agreed and stipulated by both Landlord and Tenant that the Approximate
Rentable Area in the Premises is 9,347 square feet.
I. The "APPROXIMATE RENTABLE AREA IN THE BUILDING" is 144,330 square
feet. The Approximate Rentable Area in the Premises and the Approximate
Rentable Area in the Building as set forth herein may be revised at
Landlord's election if Landlord's architect determines such estimate to
be inaccurate in any material degree after examination of the final
drawings of the Premises and the Building.
J. "TENANT'S PRO RATA SHARE" shall mean Six Point Four Seven Six One
percent (6.4761%) which is the quotient (expressed as a percentage),
derived by dividing the Approximate Rentable Area in the Premises by
the Approximate Rentable Area in the Building.
K. "PERMITTED USE" shall mean general office/warehouse and no other use
or purpose.
L. "BASE YEAR" shall mean 2000.
M. "GUARANTOR(S)" shall mean N/A.
N. "BROKER" shall mean Transwestern Commercial Services.
O. "BUILDING MANAGER" shall mean Transwestern Commercial Services or
such other company as Landlord shall designate from time to time.
P. "BUILDING STANDARD", shall mean the type, brand, quality and/or
quantity of materials Landlord designates from time-to-time to be the
minimum quality and/or quantity to be used in the Building or the
exclusive type, grade, quality and/or quantity of material to be used
in the Building.
Q. "BUSINESS DAY(S)" shall mean Mondays through Fridays exclusive of
the normal business holidays of New Year's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day
("HOLIDAYS"). Landlord, from time to time during the Lease Term, shall
have the right to designate additional Holidays, provided such
additional Holidays are commonly recognized by other industrial
buildings in the area where the Building is located.
R. "COMMON AREAS" shall mean those areas located within the Building or
on the Property used for corridors, elevator foyers, mail rooms,
restrooms, mechanical rooms, elevator mechanical rooms, property
management office, janitorial closets, electrical and telephone
closets, vending areas, and lobby areas (whether at ground level or
otherwise), entrances, exits, sidewalks, skywalks, tunnels, driveways,
parking areas and parking garages and landscaped areas and other
similar facilities provided for the common use or benefit of tenants
generally and/or the public.
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S. "DEFAULT RATE" shall mean the lower of (i) the Prime Rate plus six percent
(6%) or (ii) the Maximum Rate.
T. "MAXIMUM RATE" shall mean the highest rate of interest from time-to-time
permitted under applicable federal and state law.
U. "NORMAL BUSINESS HOURS" for the Building shall mean 8:00 a.m. to 6:00 p.m.
Mondays through Fridays, and 8:00 a.m. to 1:00 p.m. on Saturdays, exclusive of
Holidays.
V. "PRIME RATE" shall mean the per annum interest rate announced by and quoted
in the Wall Street Journal from time-to-time as the prime or base rate.
W. "PROPERTY" shall mean the Building and the parcel(s) of land on which it is
located, other improvements located on such land, adjacent parcels of land that
Landlord operates jointly with the Building, and other buildings and
improvements located on such adjacent parcels of land.
X. "SERVICE AREAS" shall mean those areas within the Building used for stairs,
elevator shafts, flues, vents, stacks, pipe shafts and other vertical
penetrations (but shall not include any such areas for the exclusive use of a
particular tenant).
Y. "NOTICE ADDRESSES" shall mean the following addresses for Tenant and
Landlord, respectively:
Tenant:
IntelliReady. Inc.
----------------------------------------------------
1390 South Potomac
----------------------------------------------------
Suite 136
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Xxxxxx, Xxxxxxxx 00000
----------------------------------------------------
with a copy to:
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
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Landlord:
Transwestern Commercial Services
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0000 Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxxx
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Xxxxxxxxx, Xxxxxxxx 00000
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Attn: Property Manager
Payments of Rent only shall be made payable to the order of:
Transwestern Commercial Services
at the following address:
Transwestern Commercial Services
----------------------------------------------------
Attn: Property Manager - East by Southeast
----------------------------------------------------
0000 Xxxxxxxxx Xxxxx Xxxxxxxxx. Xxxxx 000
----------------------------------------------------
Xxxxxxxxx Xxxxxxx. Xxxxxxxx 00000
----------------------------------------------------
or such other name and address as Landlord shall, from time to time, designate.
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2. LEASE GRANT. Subject to and upon the terms herein set forth, Landlord leases
to Tenant and Tenant leases from Landlord the Premises together with the right,
in common with others, to use the Common Areas.
3. ADJUSTMENT OF COMMENCEMENT DATE/POSSESSION.
A. If the Lease Term, Commencement Date and Termination Date are to be
determined in accordance with Section I.F.2. above, the Lease Term
shall not commence until the later to occur of the Target Commencement
Date and the date that Landlord has substantially completed the work to
be performed by Landlord as set forth in the Work Letter Agreement
attached hereto as EXHIBIT E ("LANDLORD'S WORK"); provided, however,
that if Landlord shall be delayed in substantially completing the
Landlord Work as a result of the occurrence of any of the following (a
"DELAY"):
(1) Tenant's failure to furnish information in accordance
with the Work Letter Agreement or to respond to any
request by Landlord for any approval of information
within any time period prescribed, or if no time
period is prescribed, then within two (2) Business
Days of such request; or
(2) Tenant's insistence on materials, finishes or
installations that have long lead times after having
first been informed by Landlord that such materials,
finishes or installations will cause a Delay; or
(3) Changes in any plans and specifications requested by
Tenant; or
(4) The performance or nonperformance by a person or
entity employed by on or behalf of Tenant in the
completion of any work in the Premises (all such work
and such persons or entities being subject to prior
approval of Landlord); or
(5) Any request by Tenant that Landlord delay the
completion of any of the Landlord's Work; or
(6) Any breach or default by Tenant in the performance of
Tenant's obligations under this Lease; or
(7) Any delay resulting from Tenant's having taken
possession of the Premises for any reason prior to
substantial completion of the Landlord's Work; or
(8) Any other delay chargeable to Tenant, its agents,
employees or independent contractors;
then, for purposes of determining the Commencement Date, the date of
substantial completion shall be deemed to be the day that said
Landlord's Work would have been substantially completed absent any such
Delay(s). The Landlord's Work shall be deemed to be substantially
completed on the date that Landlord's Work has been performed (or would
have been performed absent any Delay(s), other than any details of
construction, mechanical adjustment or any other matter, the
noncompletion of which does not materially interfere with Tenant's use
of the Premises. The adjustment of the Commencement Date and,
accordingly, the postponement of Tenant's obligation to pay Base Rent
and other sums due hereunder shall be Tenant's sole remedy and shall
constitute full settlement of all claims that Tenant might otherwise
have against Landlord by reason of the Premises not being ready for
occupancy by Tenant on the Target Commencement Date. Promptly after the
determination of the Commencement Date, Landlord and Tenant shall enter
into a letter agreement (the "COMMENCEMENT LETTER") on the form
attached hereto as EXHIBIT G setting forth the Commencement Date, the
Termination Date and any other dates that are affected by the
adjustment of the Commencement Date. If this Lease requires Landlord to
perform Landlord's Work in the Premises, the Commencement Letter shall
identity any minor incomplete items of the Landlord's Work as
reasonably determined by Landlord's architect (the "PUNCHLIST ITEMS"),
which Punchlist Items Landlord shall promptly remedy. Tenant, within
five (5) days after receipt thereof from Landlord, shall execute the
Commencement
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Letter and return the same to Landlord. Notwithstanding anything herein
to the contrary, Landlord may elect, by written notice to Tenant, not
to adjust the Commencement Date as provided above if such adjustment
would cause Landlord to be in violation of the existing rights granted
to any other tenant of the Building. If Landlord elects not to adjust
the Commencement Date, the Commencement Date shall be the Target
Commencement Date, provided that Base Rent and Additional Rent shall
not commence until the date that Landlord's Work has been substantially
completed (or would have been substantially completed absent any
Delays).
B. By taking possession of the Premises, Tenant is deemed to have
accepted the Premises and agreed that the Premises is in good order and
satisfactory condition, with no representation or warranty by Landlord
as to the condition of the Premises or the Building or suitability
thereof for Tenant's use.
C. Notwithstanding anything to the contrary contained in this Lease,
Landlord shall not be obligated to tender possession of any portion of
the Premises or other space leased by Tenant from time to time
hereunder that, on the date possession is to be delivered, is occupied
by a tenant or other occupant or that is subject to the rights of any
other tenant or occupant, nor shall Landlord have any other obligations
to Tenant under this Lease with respect to such space until the date
Landlord: (1) recaptures such space from such existing tenant or
occupant; and (2) regains the legal right to possession thereof. This
Lease shall not be affected by any such failure to deliver possession
and Tenant shall have no claim for damages against Landlord as a result
thereof, all of which are hereby waived and released by Tenant. If
Landlord is prevented from delivering possession of the Premises to
Tenant due to the holding over in possession of the Premises by a
tenant or other occupant thereof, Landlord shall use reasonable efforts
to regain possession of the Premises in order to deliver the same to
Tenant. If the Lease Term is to be determined pursuant to Section
1.F.(l) hereof, the Commencement Date shall be postponed until the date
Landlord delivers possession of the Premises to Tenant, in which event
the Termination Date shall, at the option of Landlord, correspondingly
be postponed on a per diem basis. If the Lease Term is to be determined
pursuant to Section 1.F.(2), the Commencement Date and Termination
Date shall be determined as provided in Section 3.A. above.
D. If Tenant takes possession of the Premises prior to the Commencement
Date, such possession shall be subject to all the terms and conditions
of the Lease and Tenant shall pay Base Rent and Additional Rent to
Landlord for each day of occupancy prior to the Commencement Date.
Notwithstanding the foregoing, if Tenant, with Landlord's prior
approval, takes possession of the Premises prior to the Commencement
Date for the sole purpose of performing any Landlord-approved
improvements therein or installing furniture, equipment or other
personal property of Tenant, such possession shall be subject to all of
the terms and conditions of the Lease, except that Tenant shall not be
required to pay Rent with respect to the period of time prior to the
Commencement Date during which Tenant performs such work. Tenant shall,
however, be liable for the cost of any services (e.g. electricity,
HVAC, freight elevators) that are provided to Tenant or the Premises
during the period of Tenant's possession prior to the Commencement
Date. Nothing herein shall be construed as granting Tenant the right to
take possession of the Premises prior to the Commencement Date, whether
for construction, fixturing or any other purpose, without the prior
consent of Landlord.
4. USE. The Premises shall be used for the Permitted Use and for no other
purpose. Tenant agrees not to use or permit the use of the Premises for any
purpose which is illegal, dangerous to life, limb or property or which, in
Landlord's sole judgement, creates a nuisance or which would increase the cost
of insurance coverage with respect to the Building. Tenant will conduct its
business and control its agents, servants, employees, customers, licensees, and
invitees in such a manner as not to interfere with, annoy or disturb other
tenants or Landlord in the management of the Building and the Property. Tenant
will maintain the Premises in a clean and healthful condition, and comply with
all laws, ordinances, orders, rules and regulations of any governmental entity
with reference to the use, condition, configuration or occupancy of the
Premises. Tenant, within ten (10) days after the receipt thereof, shall provide
Landlord with copies of any notices it receives with respect to a violation or
alleged violation of any such laws, ordinances, orders, rules and regulations.
Tenant, at its expense, will comply with the rules and regulations of the
Building attached hereto as EXHIBIT C and such other rules and regulations
adopted and altered by Landlord from
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time-to-time and will cause all of its agents, employees, invitees and visitors
to do so. All such changes to rules and regulations will be reasonable and shall
be sent by Landlord to Tenant in writing.
5. BASE RENT.
A. Tenant covenants and agrees to pay to Landlord during the Lease
Term, without any setoff or deduction except as otherwise expressly
provided herein, the full amount of all Base Rent and Additional Rent
due hereunder and the full amount of all such other sums of money as
shall become due under this Lease (including, without limitation, any
charges for replacement of electric lamps and ballasts and any other
services, goods or materials furnished by Landlord at Tenant's
request), all of which hereinafter may be collectively called "RENT."
In addition Tenant shall pay and be liable for, as Additional Rent, all
rent, sales and use taxes or other similar taxes, if any, levied or
imposed by any city, state, county or other governmental body having
authority, such payments to be in addition to all other payments
required to be paid to Landlord by Tenant under the terms and
conditions of this Lease. Any such payments shall be paid concurrently
with the payments of the Rent on which the tax is based. The Base Rent
and Additional Rent for each calendar year or portion thereof during
the Lease Term, shall be due and payable in advance in monthly
installments of the first day of each calendar month during the Lease
Term and any extensions or renewals hereof, and Tenant hereby agrees to
pay such Base Rent and Additional Rent to Landlord without demand. If
the Lease Term commences on a day other than the first day of a month
or terminates on a day other than the last day of a month, then the
installments of Base Rent and Additional Rent for such month or months
shall be prorated, based on the number of days in such month. No
payment by Tenant or receipt or acceptance by Landlord of a lesser
amount than the correct installment of Rent due under this Lease shall
be deemed to be other than a payment on account of the earliest Rent
due hereunder, nor shall any endorsement or statement on any check or
any letter accompanying any check or payment be deemed an accord and
satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance or pursue any
other available remedy. The acceptance by Landlord of an installment of
Rent on a date after the due date of such payment shall not be
construed to be a waiver of Landlord's right to declare a default for
any other late payment. All amounts received by Landlord from Tenant
hereunder shall be applied first to the earliest accrued and unpaid
Rent then outstanding. Tenant's covenant to pay Rent shall be
independent of every other covenant set forth in this Lease.
B. To the extent allowed by law, all installments of Rent not paid when
due shall bear interest at the Default Rate from the date due until
paid. In addition, if Tenant fails to pay any installment of Base Rent
and Additional Rent or any other item of Rent when due and payable
hereunder, a "LATE CHARGE" equal to five percent (5%) of such unpaid
amount will be due and payable immediately by Tenant to Landlord.
C. The Additional Rent payable hereunder shall be adjusted from
time-to-time in accordance with the provisions of EXHIBIT D attached
hereto and incorporated herein for all purposes.
6. SECURITY DEPOSIT. The Security Deposit shall be held by Landlord without
liability for interest and as security for the performance by Tenant of Tenant's
covenants and obligations under this Lease including but not limited to those
set forth in Section 10 hereof, it being expressly understood that the Security
Deposit shall not be considered an advance payment of Rent or a measure of
Tenant's liability for damages in case of default by Tenant. Landlord shall have
no fiduciary responsibilities or trust obligations whatsoever with regard to the
Security Deposit and shall not assume the duties of a trustee for the Security
Deposit. Landlord may, from time-to-time, without prejudice to any other remedy
and without waiving such default, use the Security Deposit to the extent
necessary to cure or attempt to cure, in whole or in part, any default of Tenant
hereunder. Following any such application of the Security Deposit, Tenant shall
pay to Landlord on demand the amount so applied in order to restore the Security
Deposit to its original amount. If Tenant is not in default at the termination
of this Lease, the balance of the Security Deposit remaining after any such
application shall be returned by Landlord to Tenant within sixty (60) days
thereafter. If Landlord transfers its interest in the Premises during the term
of this Lease, Landlord may assign the Security Deposit to the transferee and
thereafter shall have no further liability for the return of
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such Security Deposit. Tenant agrees to look solely to such transferee or
assignee or successor thereof for the return of the Security Deposit. Landlord
and its successors and assigns shall not be bound by any actual or attempted
assignment or encumbrance of the Security Deposit by Tenant. Landlord shall not
be required to keep the Security Deposit separate from its other accounts.
7. SERVICES TO BE FURNISHED BY LANDLORD.
A. Landlord agrees to furnish Tenant the following services:
(1) Water for use in the lavatories on the floor(s) on
which the Premises is located. If Tenant desires
water in the Premises for any approved reason,
including a private lavatory or kitchen, cold water
shall be supplied, at Tenant's sole cost and expense,
from the Building water main through a line and
fixtures installed at Tenant's sole cost and expense
with the prior reasonable consent of Landlord. If
Tenant desires hot water in the Premises, Tenant, at
its sole cost and expense and subject to the prior
reasonable consent of Landlord, may install a hot
water heater in the Premises. Tenant shall be solely
responsible for the maintenance and repair of any
such water heater.
(2) Maintenance and repair of all Common Areas in the
manner and to the extent reasonably deemed by
Landlord to be standard for buildings of similar
class, age and location.
(3) Electricity to the Premises in accordance with and
subject to the terms and conditions of Section 11. of
this Lease.
B. If Tenant requests any other utilities or building services in
addition to those identified above, or any of the above utilities or
building services in frequency, scope, quality or quantities
substantially greater than the standards set by Landlord for the
Building, then Landlord shall use reasonable efforts to attempt to
furnish Tenant with such additional utilities or building services.
Landlord may impose a reasonable charge for such additional utilities
or building services, which shall be paid monthly by Tenant as
Additional Rent on the same day that the monthly installment of Base
Rent is due.
C. Except as otherwise expressly provided herein, the failure by
Landlord to any extent to furnish, or the interruption or termination
of these defined services in whole or in part, resulting from adherence
to laws, regulations and administrative orders, wear, use, repairs,
improvements alterations or any causes beyond the reasonable control of
Landlord shall not render Landlord liable in any respect nor be
construed as a constructive eviction of Tenant, nor give rise to an
abatement of Rent, nor relieve Tenant from the obligation to fulfill
any covenant or agreement hereof. Should any of the equipment or
machinery used in the provision of such services for any cause cease to
function properly, Landlord shall use reasonable diligence to repair
such equipment or machinery.
D. The Landlord shall have the roof of the Premises repaired and
resealed, where necessary, in a good and workmanlike manner before
November 1, 2000. In addition, the Landlord shall be responsible for
all repairs for the roof not caused by Tenant throughout the term of
the Lease.
E. The Landlord shall warrant that all of the roof top HVAC units for
the Premises shall be operational and in good working order prior to
Tenant's occupancy of the Premises. However, Tenant shall maintain the
HVAC units as required per this Lease.
8. LEASEHOLD IMPROVEMENTS/TENANT'S PROPERTY. All fixtures, equipment,
improvements and appurtenances attached to, or built into, the Premises at the
commencement of or during the Lease Term, whether or not by, or at the expense
of, Tenant ("LEASEHOLD IMPROVEMENTS"), shall be and remain a part of the
Premises; shall be the property of Landlord; and shall not be removed by Tenant
except as expressly provided herein. All unattached and moveable partitions,
trade fixtures, moveable equipment or furniture located in the Premises and
acquired by or for the account of Tenant, without expense to Landlord, which can
be removed without structural damage to the Building or Premises, and all
personalty brought into the Premises by Tenant ("TENANT'S PROPERTY") shall be
owned and insured by Tenant. Landlord may,
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nonetheless, at any time prior to, or within one (1) month after, the expiration
or earlier termination of this Lease or Tenant's right to possession, require
Tenant to remove any Leasehold Improvements performed by or for the benefit of
Tenant and all electronic, phone and data cabling as are designated by Landlord
(the "REQUIRED REMOVABLES") at Tenant's sole cost. In the event that Landlord so
elects, Tenant shall remove such Required Removables within ten (10) days after
notice from Landlord, provided that in no event shall Tenant be required to
remove such Required Removables prior to the expiration or earlier termination
of this Lease or Tenant's right to possession. In addition to Tenant's
obligation to remove the Required Removables, Tenant shall repair any damage
caused by such removal and perform such other work as is reasonably necessary to
restore the Premises to a "move in" condition. If Tenant fails to remove any
specified Required Removables or to perform any required repairs and restoration
within the time period specified above, Landlord, at Tenant's sole cost and
expense, may remove the Required Removables (and repair any damage occasioned
thereby) and dispose thereof or deliver the Required Removables to any other
place of business of Tenant, or warehouse the same, and Tenant shall pay the
cost of such removal, repair, delivery, or warehousing of the Required
Removables within five (5) days after demand from Landlord.
9. SIGNAGE. Landlord shall provide and install through Landlord's approved
signage vendor, at Tenant's cost, all letters or numerals on the exterior of the
Premises; all such letters and numerals shall be in the standard graphics for
the Building and no others shall be used or permitted on the Premises without
Landlord's prior written consent. Tenant will be permitted up to two (2) panels
(such panels shall not be adjacent) for Building standard signage. Building
standard signage shall conform with the dimensions of other tenant's signage at
the property and the size and design of such signage shall be subject to
Landlord's approval. Tenant shall also be permitted to place one (1) company
logo on the main entry into the Premises. The logo shall be at Tenant's sole
cost and expense and Tenant shall utilize Landlord's approved signage vendor.
The size and design of the logo shall be subject to Landlord's approval. In
addition, Landlord will list Tenant's name in the Building's directory, if any.
10. REPAIRS AND ALTERATIONS BY TENANT.
A. Except to the extent such obligations are imposed upon Landlord
hereunder, Tenant shall, at its sole cost and expense, maintain the
Premises in good order, condition and repair throughout the entire
Lease Term, ordinary wear and tear excepted. Tenant agrees to keep the
areas visible from outside the Premises in a neat, clean and attractive
condition at all times. Tenant shall be responsible for all repairs
replacements and alterations in and to the Premises, Building and
Property and the facilities and systems thereof, the need for which
arises out of (1) Tenant's use or occupancy of the Premises, (2) the
installation, removal, use or operation of Tenant's Property (as
defined in Section 8. above), (3) the moving of Tenant's Property into
or out of the Building, or (4) the act, omission, misuse or negligence
of Tenant, its agents, contractors, employees or invitees. Tenant shall
be responsible for repair, maintenance and replacement, if necessary,
of the HVAC system and equipment serving the Premises. All such
repairs, replacements or alterations shall be performed in accordance
with Section 10.B. below and the rules, policies and procedures
reasonably enacted by Landlord from time to time for the performance of
work in the Building. If Tenant fails to maintain the Premises in good
order, condition and repair, Landlord shall give Tenant notice to
perform such acts as are reasonably required to so maintain the
Premises. If Tenant fails to promptly commence such work and diligently
pursue it to its completion, then Landlord may, at is option, make such
repairs, and Tenant shall pay the cost thereof to Landlord on demand as
Additional Rent, together with an administration charge in an amount
equal to ten percent (10%) of the cost of such repairs. Landlord shall,
at its expense (except as included in Basic Costs) keep and maintain in
good repair and working order and make all repairs to and perform
necessary maintenance upon: (a) all structural elements of the
Building; and (b) all mechanical, electrical and plumbing systems that
serve the Building in general; and (c) the Building facilities common
to all tenants including but not limited to, the ceilings, walls and
floors in the Common Areas.
B. Tenant shall not make or allow to be made any alterations, additions
or improvements to the Premises, without first obtaining the written
consent of Landlord in each such instance, which consent may be refused
or given on such conditions as Landlord may elect. Prior to commencing
any such
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work and as a condition to obtaining Landlord's consent, Tenant must
furnish Landlord with plans and specifications acceptable to Landlord;
names and addresses of contractors reasonably acceptable to Landlord;
copies of contracts; necessary permits and approvals; evidence of
contractor's and subcontractor's insurance in accordance with Section
15. hereof; and a payment bond or other security, all in form and
amount satisfactory to Landlord. Tenant shall be responsible for
insuring that all such persons procure and maintain insurance coverage
against such risks, in such amounts and with such companies as Landlord
may require, including, but not limited to, Builder's Risk and Worker's
Compensation insurance. All such improvements, alterations or additions
shall be constructed in a good and workmanlike manner using Building
Standard materials or other new materials of equal or greater quantity.
Landlord, to the extent reasonably necessary to avoid any disruption to
the tenants and occupants of the Building, shall have the right to
designate the time when any such alterations, additions and
improvements may be performed and to otherwise designate reasonable
rules, regulations and procedures for the performance of work in the
Building. Upon completion, Tenant shall furnish "as-built" plans,
contractor's affidavits and full and final waivers of lien and
receipted bills covering all labor and materials. All improvements,
alterations and additions shall comply with the insurance requirements,
codes, ordinances, laws and regulations, including without limitation,
the Americans with Disabilities Act. Tenant shall reimburse Landlord
upon demand for all sums, if any, expended by Landlord for third party
examination of the architectural, mechanical, electrical and plumbing
plans for any alterations, additions or improvements. In addition, if
Landlord so requests, Landlord shall be entitled to oversee the
construction of any alterations, additions or improvements that may
affect the structure of the Building or any of the mechanical,
electrical, plumbing or life safety systems of the Building. In the
event Landlord elects to oversee such work, Landlord shall be entitled
to receive a fee for such oversight in an amount equal to ten percent
(10%) of the cost of such alterations, additions or improvements.
Landlord's approval of Tenant's plans and specifications for any work
performed for or on behalf of Tenant shall not be deemed to be
representation by Landlord that such plans and specifications comply
with applicable insurance requirements, building codes, ordinances,
laws or regulations or that the alterations, additions and improvements
constructed in accordance with such plans and specifications will be
adequate for Tenant's use.
11. USE OF ELECTRICAL SERVICES BY TENANT.
A. All electricity used by Tenant in the Premises shall, at Landlord's
option, be paid for by Tenant either: (1) through inclusion in Base
Rent and Basic Costs (except as provided in Section 11.B. below with
respect to excess usage); or (2) by a separate charge billed directly
to Tenant by Landlord and payable by Tenant as Additional Rent within
ten (10) days after billing; or (3) by a separate charge or charges
billed by the utility company(ies) providing electrical service and
payable by Tenant directly to such utilities company(ies). Landlord
shall have the right at any time and from time-to-time during the Lease
Term to contract for electricity service from such providers of such
services as Landlord shall elect (each being an "ELECTRIC SERVICE
PROVIDER"). Tenant shall cooperate with Landlord, and the applicable
Electric Service Provider, at all times and, as reasonably necessary,
shall allow Landlord and such Electric Service Provider reasonable
access to the Building's electric lines, feeders, risers, wiring, and
any other machinery within the Premises. Landlord shall in no way be
liable or responsible for any loss, damage, or expense that Tenant may
sustain or incur by reason of any change, failure, interference,
disruption, or defect in the supply or character of the electric energy
furnished to the Premises, or if the quantity or character of the
electric energy supplied by the Electric Service Provider is no longer
available or suitable for Tenant's requirements, and no such change,
failure, defect, unavailability, or unsuitability shall constitute an
actual or constructive eviction, in whole or in part, or entitle Tenant
to any abatement or diminution of rent, or relieve Tenant from any of
its obligations under the Lease.
B. Tenant's use of electrical services furnished by Landlord shall not
exceed in voltage, rated capacity, or overall load that which is
standard for the Building. In the event Tenant shall request that it be
allowed to consume electrical services in excess of Building Standard,
Landlord may refuse to consent to such usage or may consent upon such
conditions as Landlord reasonably elects (including the installation of
utility service upgrades, submeters, air handlers or cooling units),
and all such
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additional useage (to the extent permitted by law), installation and
maintenance thereof shall be paid for by Tenant as Additional Rent.
Landlord, at any time during the Lease Term, shall have the right to
separately meter electrical useage for the Premises or to measure
electrical useage by survey or any other method that Landlord, in its
reasonable judgment, deems appropriate.
12. ENTRY BY LANDLORD. Tenant shall permit Landlord or its agents or
representatives to enter into and upon any part of the Premises to inspect the
same, or to show the Premises to prospective purchasers, mortgagees, tenants
(during the last (12) twelve months of the Lease Term or earlier in connection
with a potential relocation) or insurers, or to clean or make repairs,
alterations, or additions thereto, including any work that Landlord deems
necessary for the safety, protection or preservation of the Building or any
occupants thereof, or to facilitate repairs, alterations or additions to the
Building or any other tenant's premises. Except for any entry by Landlord in an
emergency situation or to provide normal cleaning and janitorial service,
Landlord shall provide Tenant with reasonable prior notice of any entry into the
Premises, which notice may be given verbally. Landlord shall have the right to
temporarily close the Premises or the Building to perform repairs, alterations
or additions in the Premises or the Building, provided that Landlord shall use
reasonable efforts to perform all such work on weekends and after Normal
Business Hours. Entry by Landlord hereunder shall not constitute a constructive
eviction or entitle Tenant to any abatement or reduction of Rent by reason
thereof.
13. ASSIGNMENT AND SUBLETTING
A. Except in connection with a Permitted Transfer (defined in Section
13.E. below), Tenant shall not assign, sublease, transfer or encumber
any interest in this Lease or allow any third party to use any portion
of the Premises (collectively or individually, a "TRANSFER") without
the prior written consent of Landlord, which consent shall not be
unreasonably withheld. Without limitation, it is agreed that Landlord's
consent shall not be considered unreasonably withheld if: (1) the
proposed transferee's financial condition does not meet the criteria
Landlord uses to select Building tenants having similar leasehold
obligations; (2) the proposed transferee's business is not suitable for
the Building considering the business of the other tenants and the
Building's prestige, or would result in a violation of another tenant's
rights; (3) the proposed transferee is a governmental agency or
occupant of the Building; (4) Tenant is in default beyond any
applicable notice and cure period; or (5) any portion of the Building
or the Premises would likely become subject to additional or different
laws as a consequence of the proposed Transfer. Any attempted Transfer
in violation of this Section 13, shall, exercisable in Landlord's sole
and absolute discretion, be voidable. Consent by Landlord to one or
more Transfer(s) shall not operate as a waiver of Landlord's rights to
approve any subsequent Transfer(s). IN NO EVENT SHALL ANY TRANSFER OR
PERMITTED TRANSFER RELEASE OR RELIEVE TENANT FROM ANY OBLIGATION UNDER
THIS LEASE OR ANY LIABILITY HEREUNDER.
B. If Tenant requests Landlord's consent to a Transfer, Tenant shall
submit to Landlord financial statements for the proposed transferee, a
complete copy of the proposed assignment, sublease and other
information as Landlord may reasonably request. Landlord shall within
thirty (30) days after Landlord's receipt of the required information
and documentation either: (1) consent or reasonably refuse consent to
the Transfer in writing; (2) in the event of a proposed assignment of
this Lease or a proposed sublease of the entire Premises for the entire
remaining term of this Lease, terminate this Lease effective the first
to occur of ninety (90) days following written notice of such
termination or the date that the proposed Transfer would have come into
effect. If Landlord shall fail to notify Tenant in writing of its
decision within such thirty (30) days period after the later of the
date Landlord is notified in writing of the proposed Transfer or the
date Landlord has received all required information concerning the
proposed transferee and the proposed Transfer, Landlord shall be deemed
to have refused to consent to such Transfer, and to have elected to
keep this Lease in full force and effect. Tenant shall pay Landlord a
review fee of $1,000.00 for Landlord's review of any Permitted Transfer
or requested Transfer. In addition, Tenant shall reimburse Landlord for
its actual reasonable costs and expenses (including without limitation
reasonable attorney's fees) incurred by Landlord in connection with
Landlord's review of such requested Transfer or Permitted Transfer.
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C. Tenant shall pay to Landlord fifty percent (50%) of all cash and
other consideration which Tenant receives as a result of a Transfer
that is in excess of the rent payable to Landlord hereunder for the
portion of the Premises and Term covered by the Transfer within ten
(10) days following receipt thereof by Tenant. If Tenant is in Monetary
Default (defined in Section 22. below), Landlord may require that all
sublease payments be made directly to Landlord, in which case Tenant
shall receive a credit against rent in the amount of any payments
received (less Landlord's share of any excess).
D. Except as provided below with respect to a Permitted Transfer, if
Tenant is a corporation, limited liability company, partnership or
similar entity, and the entity which owns or controls a majority of the
voting shares/rights at the time changes for any reason (including but
not limited to a merger, consolidation or reorganization), such change
of ownership or control shall constitute a Transfer. The foregoing
shall not apply so long as Tenant is an entity whose outstanding stock
is listed on a nationally recognized security exchange, or if at least
eighty percent (80%) of its voting stock is owned by another entity,
the voting stock of which is so listed.
E. Tenant may assign its entire interest under this Lease or sublet the
Premises to any entity controlling or controlled by or under common
control with Tenant or to any successor to Tenant by purchase, merger,
consolidation or reorganization (hereinafter, collectively, referred to
as "PERMITTED TRANSFER") without the consent of Landlord, provided: (1)
Tenant is not in default under this Lease; (2) if such proposed
transferee is a successor to Tenant by purchase, said proposed
transferee shall acquire all or substantially all of the stock or
assets of Tenant's business or, if such proposed transferee shall
acquire all or substantially all of the stock or assets of Tenant's
business or, if such proposed transferee is a successor to Tenant by
merger, consolidation or reorganization, the continuing or surviving
corporation shall own all or substantially all of the assets of Tenant;
(3) such proposed transferee shall have a net worth which is at least
equal to the greater of Tenant's net worth at the date of this Lease or
Tenant's net worth as of the day prior to the proposed purchase,
merger, consolidation or reorganization as evidenced to Landlord's
reasonable satisfaction; (4) such proposed transferee operates the
business in the Premises for the Permitted Use and no other purpose;
and (5) Tenant shall give Landlord written notice at least thirty (30)
days prior to the effective date of the proposed purchase, merger,
consolidation or reorganization.
F. Tenant agrees that in the event Landlord withholds its consent to
any Transfer contrary to the provisions of this Section 13, Tenant's
sole remedy shall be to seek an injunction in equity or compel
performance by Landlord to give its consent and Tenant expressly waives
any right to damages in the event of such withholding by Landlord of
its consent.
14. MECHANIC'S LIENS. Tenant will not permit any mechanic's liens or other liens
to be placed upon the Premises, the Building, or the Property and nothing in
this Lease shall be deemed or construed in any way as constituting the consent
or request of Landlord, express or implied, by inference or otherwise, to any
person for the performance of any labor or the furnishing of any materials to
the Premises, the Building, or the Property or any part thereof, nor as giving
Tenant any right, power, or authority to contract for or permit the rendering of
any services or the furnishing of any materials that would give rise to any
mechanic's or other liens against the Premises, the Building, or the Property.
In the event any such lien is attached to the Premises, the Building, or the
Property, then, in addition to any other right or remedy of Landlord, Landlord
may, but shall not be obligated to, discharge the same. Any amount paid by
Landlord for any of the aforesaid purposes including, but not limited to,
reasonable attorneys' fees, shall be paid by Tenant to Landlord promptly on
demand as Additional Rent. Tenant shall within ten (10) days of receiving such
notice of lien or claim (a) have such lien or claim released or (b) deliver to
Landlord a bond in form, content, amount and issued by surety, satisfactory to
Landlord, indemnifying, protecting, defending and holding harmless the
Indemnities against all costs and liabilities resulting from such lien or claim
and the foreclosure or attempted foreclosure thereof. Tenant's failure to comply
with the provisions of the foregoing sentence shall be deemed an Event of
Default under Section 22. hereof entitling Landlord to exercise all of its
remedies therefor without the requirement of any additional notice or cure
period.
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15. INSURANCE.
A. Landlord shall maintain such insurance on the Building and the Premises
(other than on Tenant's Property or on any additional improvements constructed
in the Premises by Tenant), and such liability insurance in such amounts as
Landlord elects. The cost of such insurance shall be included as a part of the
Basic Costs, and payments for losses thereunder shall be made solely to Landlord
or the mortgagees of Landlord as their interests shall appear.
B. Tenant shall maintain at its expense, (1) in an amount equal to full
replacement cost, special form (formerly known as all risk) property insurance
on all of its personal property, including removable trade fixtures and
leasehold and tenant improvements, and Tenant's Property located in the Premises
and in such additional amounts as are required to meet Tenant's obligations
pursuant to Section 18 hereof and with deductibles in an amount reasonably
satisfactory to Landlord, and (ii) a policy or policies of commercial general
liability insurance (including endorsement or separate policy for owned or
non-owned automobile liability) with respect to its activities in the Building
and on the Property, with the premiums thereon fully paid on or before the due
date, in an amount of not less than $2,000,000 per occurrence per person
coverage for bodily injury, property damage, personal injury or combination
thereof (the term "personal injury" as used herein means, without limitation,
false arrest, detention or imprisonment, malicious prosecution, wrongful entry,
liable and slander), provided that if only single limit coverage is available it
shall be for at least $1,000,000.00 per occurrence with an umbrella policy of at
least $2,000,000.00 combined single limit per occurrence. Tenant's insurance
policies shall name Landlord and Building Manager as additional insureds and
shall include coverage for the contractual liability of Tenant to indemnify
Landlord and Building Manager pursuant to Section 16 of this Lease and shall
have deductibles in an amount reasonably satisfactory to Landlord. Prior to
Tenant's taking possession of the Premises, Tenant shall furnish evidence
satisfactory to Landlord of the maintenance and timely renewal of such
insurance, and Tenant shall obtain and deliver to Landlord a written obligation
on the part of each insurer to notify Landlord at least thirty (30) days prior
to the modification, cancellation or expiration of such insurance policies. In
the event Tenant shall not have delivered to Landlord a policy or certificate
evidencing such insurance at least thirty (30) days prior to the expiration date
of each expiring policy, Landlord may obtain such insurance as Landlord may
reasonably require to protect Landlord's interest (which obtaining of insurance
shall not be deemed to be a waiver of Tenant's default hereunder). The cost to
Landlord of obtaining such policies, plus an administrative fee in the amount of
fifteen percent (15%) of the cost of such policies shall be paid by Tenant to
Landlord as Additional Rent upon demand.
C. The insurance requirements set forth in this Section 15 are independent of
the waiver, indemnification, and other obligations under this Lease and will not
be construed or interpreted in any way to restrict, limit or modify the waiver,
indemnification and other obligations or to in any way limit any party's
liability under this Lease. In addition to the requirements set forth in
Sections 15 and 16, the insurance required of Tenant under this Lease must be
issued by an insurance company with a rating of no less than A-VIII in the
current Best's Insurance Guide, or A- in the current Standard & Poor Insurance
Solvency Review, or in that is otherwise acceptable to Landlord, and admitted
to engage in the business of insurance in the state in which the Building is
located; be primary insurance for all claims under it and provide that any
insurance carried by Landlord and Landlord's lenders is strictly excess,
secondary and noncontributing with any insurance carried by Tenant; and provide
that insurance may not be cancelled, nonrenewed or the subject of material
change in coverage of available limits of coverage, except upon thirty (30) days
prior written notice to Landlord and Landlord's lenders. Tenant will deliver
either a duplicate original or a legally enforceable certificate of insurance on
all policies procured by Tenant in compliance with Tenant's obligations under
this Lease, together with evidence satisfactory to Landlord of the payment of
the premiums therefor, to Landlord on or before the date Tenant first occupies
any portion of the Premises, at least thirty (30) days before the expiration
date of any policy and upon the renewal of any policy. Landlord must give its
prior written approval to all deductibles and self-insured retentions under
Tenant's policies. Tenant may comply with its insurance coverage requirements
through a blanket policy, provided Tenant, at Tenant's sole expense, procures a
"per location" endorsement, or equivalent reasonably acceptable to Landlord, so
that the general aggregate and other limits apply separately and specifically to
the Premises.
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D. If Tenant's business operations, conduct or use of the Premises or
any other part of the Property causes an increase in the premium for
any insurance policy carried by Landlord, Tenant will, within ten (10)
days after receipt of notice from Landlord, reimburse Landlord for the
entire increase.
E. Neither Landlord nor Tenant shall be liable (by way of subrogation
or otherwise) to the other party (or to any insurance company insuring
the other party) for any personal injury or loss or damage to any of
the property of Landlord or Tenant, as the case may be, with respect to
their respective property, the Building, the Property or the Premises
or any addition or improvements thereto, or any contents therein, to
the extent covered by insurance carried or required to be carried by a
party hereto even though such loss might have been occasioned by the
negligence or willful acts or omissions of the Landlord or Tenant or
their respective employees, agents, contractors or invitees. Since this
mutual waiver will preclude the assignment of any such claim by
subrogation (or otherwise) to an insurance company (or any other
person), Landlord and Tenant each agree to give each insurance company
which has issued, or on the future may issue, policies of insurance,
with respect to the items covered by this waiver, written notice of the
terms of this mutual waiver, and to have such insurance policies
properly endorsed, if necessary, to prevent the invalidation of any of
the coverage provided by such insurance policies by reason of such
mutual waiver. For the purpose of the foregoing waiver, the amount of
any deductible applicable to any loss or damage shall be deemed covered
by, and recoverable by the insured under the insurance policy to which
such deductible relates. In the event that Tenant is permitted to and
self-insures any risk for which insurance is required to be carried
under this Lease, or if Tenant fails to carry any insurance required to
be carried by Tenant pursuant to this Lease, then all loss or damage to
Tenant, its leasehold interest, its business, its property, the
Premises or any additions or improvements thereto or contents thereof
shall be deemed covered by and recoverable by Tenant under valid and
collectible policies of insurance. Notwithstanding anything to the
contrary herein, Landlord shall not be liable to the Tenant or any
insurance company (by way of subrogation or otherwise) insuring the
Tenant for any loss or damage to any property, or bodily injury or
personal injury or any resulting loss of income or losses from worker's
compensation laws and benefits, even though such loss or damage might
have been occasioned by the negligence of Landlord, its agents or
employees, or Building Manager, if any such loss or damage was required
to be covered by insurance pursuant to this Lease.
16. INDEMNITY. To the extent not expressly prohibited by law, neither Landlord
nor Building Manager nor any of their respective officers, directors, employees,
members, managers, or agents shall be liable to Tenant, or to Tenant's agents,
servants, employees, customers, licensees, or invitees for any injury to person
or damage to property caused by any act, omission, or neglect of Tenant, its
agents, servants, employees, customers, invitees, licensees or by any other
person entering the Building or upon the Property under the invitation of Tenant
or arising out of the use of the Property, Building or Premises by Tenant and
the conduct of its business or out of a default by Tenant in the performance of
its obligations hereunder. Tenant hereby indemnifies and holds Landlord and
Building Manager and their respective officers, directors, employees, members,
managers and agents ("INDEMNITEES"), harmless from all liability and claims for
any property damage, or bodily injury or death of, or personal injury to, a
person in or on the Premises, or at any other place, including the Property or
the Building and this indemnity shall be enforceable to the full extent whether
or not such liability and claims are the result of the sole, joint or concurrent
acts, negligent or intentional, or otherwise, of Tenant, or its employees,
agents, servants, customers, invitees or licensees. Such indemnity for the
benefit of indemnitees shall be enforceable even if Indemnitees, or any one or
more of them have or has caused or participated in causing such liability and
claims by their joint or concurrent acts, negligent or intentional, or
otherwise. Notwithstanding the terms of this Lease to the contrary, the terms of
this Section shall survive the expiration or earlier termination of this Lease.
17. DAMAGES FROM CERTAIN CAUSES. To the extent not expressly prohibited by law,
Landlord shall not be liable to Tenant or Tenant's employees, contractors,
agents, invitees or customers, for any injury to person or damage to property
sustained by Tenant or any such party or any other person claiming through
Tenant resulting from any accident or occurrence in the Premises or any other
portion of the Building caused by the Premises or any other portion of the
Building becoming out of repair or by defect in or failure of
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equipment, pipes, or wiring, or by broken glass, or by the backing up of drains,
or by gas, water, steam, electricity, or oil leaking, escaping or flowing into
the Premises (except where due to Landlord's willful failure to make repairs
required to be made pursuant to other provisions of this Lease, after the
expiration of a reasonable time after written notice to Landlord of the need for
such repairs), nor shall Landlord be liable to Tenant for any loss or damage
that may be occasioned by or through the acts or omissions of other tenants of
the Building or of any other persons whomsoever, including, but not limited to
riot, strike, insurrection, war, court order, requisition, order of any
governmental body or authority, acts of God, fire or theft.
18. CASUALTY DAMAGE. If the Premises or any part thereof shall be damaged by
fire or other casualty, Tenant shall give prompt written notice thereof to
Landlord. In case the Building shall be so damaged that substantial alteration
or reconstruction of the Building shall, in Landlord's sole opinion, be required
(whether or not the Premises shall have been damaged by such casualty) or in the
event there is less than two (2) years of the Lease Term remaining or in the
event Landlord's mortgagee should require that the insurance proceeds payable as
a result of a casualty be applied to the payment of the mortgage debt or in the
event of any material uninsured loss to the Building, Landlord may, at its
option, terminate this Lease by notifying Tenant in writing of such termination
within ninety (90) days after the date of such casualty. If Landlord does not
thus elect to terminate this Lease, Landlord shall commence and proceed with
reasonable diligence to restore the Building, and the improvements located
within the Premises, if any, for which Landlord had financial responsibility
pursuant to the Work Letter Agreement attached hereto as EXHIBIT E (except that
Landlord shall not be responsible for delays not within the control of Landlord)
to substantially the same condition in which it was immediately prior to the
happening of the casualty. Notwithstanding the foregoing, Landlord's obligation
to restore the Building, and the improvements located within the Premises, if
any, for which Landlord had financial responsibility pursuant to the Work Letter
Agreement, shall not require Landlord to expend for such repair and restoration
work more than the insurance proceeds actually received by the Landlord as a
result of the casualty and Landlord's obligation to restore shall be further
limited so that Landlord shall not be required to expend for the repair and
restoration of the improvements located within the Premises, if any, for which
Landlord had financial responsibility pursuant to the Work Letter Agreement,
more than the dollar amount of the Allowance, if any, described in the Work
Letter Agreement. When the repairs described in the preceding two sentences have
been completed by Landlord, Tenant shall complete the restoration of all
improvements, including furniture, fixtures and equipment, which are necessary
to permit Tenant's reoccupancy of the Premises. Except as set forth above, all
cost and expense of reconstructing the Premises shall be borne by Tenant, and
Tenant shall present Landlord with evidence satisfactory to Landlord of Tenant's
ability to pay such costs prior to Landlord's commencement of repair and
restoration of the Premises. Landlord shall not be liable for any inconvenience
or annoyance to Tenant or injury to the business of Tenant resulting in any way
from such damage or the repair thereof, except that, subject to the provisions
of the next sentence, Landlord shall allow Tenant a fair diminution of Rent
during the time and to the extent the Premises are unfit for occupancy. If the
Premises or any other portion of the Property is damaged by fire or other
casualty resulting from the fault or negligence of Tenant or any of Tenant's
agents, employees, or invitees, the rent hereunder shall not be diminished
during the repair of such damage and Tenant shall be liable to Landlord for the
cost of the repair and restoration of the Property caused thereby to the extent
such cost and expense is not covered by insurance proceeds.
19. CONDEMNATION. If the whole or any substantial part of the Premises or if the
Building or any portion thereof which would leave the remainder of the Building
unsuitable for use as an industrial building comparable to its use on the
Commencement Date, or if the land on which the Building is located or any
material portion thereof, shall be taken or condemned for any public or
quasi-public use under governmental law, ordinance or regulation, or by right of
eminent domain, or by private purchase in lieu thereof, then Landlord may, at
its option, terminate this Lease and the rent shall be abated during the
unexpired portion of this Lease, effective when the physical taking of said
Premises or said portion of the Building or land shall occur. In the event this
Lease is not terminated, the rent for any portion of the Premises so taken or
condemned shall be abated during the unexpired term of this Lease effective when
the physical taking of said portion of the Premises shall occur. All
compensation awarded for any such taking or condemnation, or sale proceeds in
lieu thereof, shall be the property of Landlord, and Tenant shall have no claim
thereto, the same being hereby expressly waived by Tenant, except for any
portions of such award
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or proceeds which are specifically allocated by the condemning or purchasing
party for the taking of or damage to trade fixtures of Tenant, which Tenant
specifically reserves to itself.
20. HAZARDOUS SUBSTANCES.
A. Tenant hereby represents and covenants to Landlord the following: No
toxic or hazardous substances or wastes, pollutants or contaminants
(including, without limitation, asbestos, urea formaldehyde, the group
of organic compounds known as polychlorinated biphenyls, petroleum
products including gasoline, fuel oil, crude oil and various
constituents of such products, radon, and any hazardous substance as
defined in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. 9601-9657, as amended ("CERCLA")
(collectively, "ENVIRONMENTAL POLLUTANTS") other than customary office
supplies and cleaning supplies stored and handled within the Premises
in accordance with all applicable laws, will be generated, treated,
stored, released or disposed of, or otherwise placed, deposited in or
located on the Property, and no activity shall be taken on the
Property, by Tenant, its agents, employees, invitees or contractors,
that would cause or contribute to (i) the Property or any part thereof
to become a generation, treatment, storage or disposal facility within
the meaning of or otherwise bring the Property within the ambit of the
Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. 5901
et. seq., or any similar state law or local ordinance, (ii) a release
or threatened release of toxic or hazardous wastes or substances,
pollutants or contaminants, from the Property or any part thereof
within the meaning of, or otherwise result in liability in connection
with the Property within the ambit of CERCLA, or any similar state law
or local ordinance, or (iii) the discharge of pollutants or effluents
into any water source or system, the dredging or filling of any waters,
or the discharge into the air of any emissions, that would require a
permit under the Federal Water Pollution Control Act, 33 U.S.C. 1251
ct. seq., or the Clean Air Act, 42 U.S.C. 7401 et. seq., or any similar
state law or local ordinance.
B. Tenant expressly waives, to the extent allowed by law, any claims
under federal, state or other law that Tenant might otherwise have
against Landlord relating to the condition of such Property or the
Premises or the Leasehold Improvements or personal property located
thereon or the presence in or contamination of the Property or the
Premises by hazardous materials. Tenant agrees to indemnify and hold
Indemnitees (as defined in Section 16) harmless from and against and to
reimburse Indemnitees with respect to, any and all claims, demands,
causes of action, loss, damage, liabilities, costs and expenses
(including attorneys' fees and court costs) of any and every kind or
character, known or unknown, fixed or contingent, asserted against or
incurred by Landlord at any time and from time-to-time by reason of or
arising out of the breach of any representation or covenant contained
in Section 20.A above.
C. Tenant shall immediately notify Landlord in writing of any release
or threatened release of toxic or hazardous wastes or substances,
pollutants or contaminants of which Tenant has knowledge whether or not
the release is in quantities that would require under law the reporting
of such release to a governmental or regulatory agency.
D. Tenant shall also immediately notify Landlord in writing of, and
shall contemporaneously provide Landlord with a copy of:
(1) Any written notice of release of hazardous wastes or
substances, pollutants or contaminants on the
Property that is provided by Tenant or any subtenant
or other occupant if the Premises to a governmental
or regulatory agency;
(2) Any notice of a violation, or a potential or alleged
violation, of any Environmental Law (hereinafter
defined) that is received by Tenant or any subtenant
or other occupant of the Premises from any
governmental or regulatory agency;
(3) Any inquiry, investigation, enforcement, cleanup,
removal, or other action that is instituted or
threatened by a governmental or regulatory agency
against Tenant or any
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subtenant or other occupant of the Premises and that
relates to the release or discharge of hazardous
wastes or substances, pollutants or contaminants on
or from the Property;
(4) Any claim that is instituted or threatened by any
third-party against Tenant or any subtenant or other
occupant of the Premises and that relates to any
release or discharge of hazardous wastes or
substances, pollutants or contaminants on or from the
Property; and
(5) Any notice of the loss of any environmental operating
permit by Tenant or any subtenant or other occupant
of the Premises.
E. As used herein "Environmental Laws" mean all present and future
federal, state and municipal laws, ordinances, rules and regulations
applicable to environmental and ecological conditions, and the rules
and regulations of the U.S. Environmental Protection Agency, and any
other federal, state or municipal agency, or governmental board or
entity relating to environmental matters.
21. AMERICANS WITH DISABILITIES ACT. Tenant agrees to comply with all
requirements of the Americans with Disabilities Act (Public Law (July 26, 1990)
("ADA") applicable to the Premises and such other current acts or other
subsequent acts, (whether federal or state) addressing like issues as are
enacted or amended. Landlord shall be responsible for the costs of compliance
with ADA in the Common Areas; provided however, Tenant shall be responsible for
compliance with ADA in the applicable Common Areas in the event (i) the conduct
of Tenant's business is unique to that of other tenants in the Building and
necessitates special requirements as to the Common Areas; or (ii) Tenant's use
of and/or improvements in the Premises thereby necessitate compliance with ADA
in the Common Areas. Tenant agrees to indemnify and hold Landlord harmless from
any and all expenses, liabilities, costs or damages suffered by Landlord as a
result of additional obligations which may be imposed on the Building or the
Property under of such acts by virtue of Tenant's operations and/or occupancy,
including the alleged negligence of the Landlord.
22. EVENTS OF DEFAULT
A. The following events shall be deemed to be "EVENTS OF DEFAULT" under
this Lease:
(1) Tenant shall fail to pay when due any Base Rent,
Additional Rent or other amount payable by Tenant to
Landlord under this Lease (hereinafter sometimes
referred to as a "MONETARY DEFAULT").
(2) Any failure by Tenant (other than a Monetary Default)
to comply with any term, provision or covenant of
this Lease, which failure is not cured within thirty
(30) days after delivery to Tenant of notice of the
occurrence of such failure provided, however, that if
the term, condition, covenant or obligation to be
performed by Tenant is of such nature that the same
cannot reasonably be performed within such thirty-day
period, such default shall be deemed to have been
cured if Tenant commences such performance within
said thirty-day period and thereafter diligently
undertakes to complete the same, and in fact,
completes same within sixty (60) days after notice.
(3) Any failure by Tenant to observe or perform any of
the covenants with respect to (a) assignment and
subletting set forth in Section 13, (b) mechanic's
liens set forth in Section 14, or (c) insurance set
forth in Section 15.
(4) Tenant or any Guarantor shall (a) become insolvent,
(b) make a transfer in fraud of creditors (c) make an
assignment for the benefit of creditors, (d) admit in
writing its inability to pay its debts as they become
due, (e) file a petition under any section or chapter
of the United States Bankruptcy Code, as amended,
pertaining to bankruptcy, or under any similar law or
statute of the United States or any State thereof, or
Tenant or any Guarantor shall be adjudged bankrupt or
insolvent in proceedings filed against Tenant or any
Guarantor thereunder; or a petition or answer
proposing the adjudication of Tenant or any Xxxxxxxxx
00
00
as a bankrupt or its reorganization under any present
or future federal or state bankruptcy or similar law
shall be filed in any court and such petition or
answer shall not be discharged or denied within sixty
(60) days after the filing thereof.
(5) A receiver or trustee shall be appointed for all or
substantially all of the assets of Tenant or any
Guarantor or of the Premises or of any of Tenant's
property located thereon in any proceeding brought by
Tenant or any Guarantor, or any such receiver or
trustee shall be appointed in any proceeding brought
against Tenant or any Guarantor and shall not be
discharged within sixty (60) days after such
appointment or Tenant or such Guarantor shall consent
to or acquiesce in such appointment.
(6) The leasehold estate hereunder shall be taken on
execution or other process of law in any action
against Tenant.
(7) Tenant shall abandon or vacate any substantial
portion of the Premises.
(8) Tenant shall fail to take possession of and occupy
the Premises within thirty (30) days following the
Commencement Date and thereafter continuously conduct
its operations in the Premises for the Permitted Use
as set forth in Section 4 hereof.
(9) The liquidation, termination, dissolution, forfeiture
of right to do business or death of Tenant or any
Guarantor.
23. REMEDIES.
A. Upon the occurrence of any Event of Default, Landlord shall have the
following rights and remedies, in addition to those allowed by law or
equity, any one or more of which may be exercised without further
notice to or demand upon Tenant and which may be pursued successively
or cumulatively as Landlord may elect:
(1) Landlord may re-enter the Premises and cure any
default of Tenant, in which event Tenant shall, upon
demand, reimburse Landlord as Additional Rent for any
cost and expenses which Landlord may incur to cure
such default; and Landlord shall not be liable to
Tenant for any loss or damage which Tenant may
sustain by reason of Landlord's action, regardless of
whether caused by Landlord's negligence or otherwise.
(2) Landlord may terminate this Lease by giving to Tenant
notice of Landlord's election to do so, in which
event the Term shall end, and all right, title and
interest of Tenant hereunder shall expire, on the
date stated in such notice;
(3) Landlord may terminate the right of Tenant to
possession of the Premises without terminating this
Lease by giving notice to Tenant that Tenant's right
to possession shall end on the date stated in such
notice, whereupon the right of Tenant to possession
of the Premises or any part thereof shall cease on
the date stated in such notice; and
(4) Landlord may enforce the provisions of this Lease and
may enforce and protect the rights of Landlord
hereunder by a suit or suits in equity or at law for
the specific performance of any covenant or agreement
contained herein, or for the enforcement of any other
appropriate legal or equitable remedy, including
recovery of all moneys due or to become due from
Tenant under any of the provisions of this Lease.
Landlord shall not be required to serve Tenant with any notices or
demands as a prerequisite to its exercise of any of its rights or
remedies under this Lease, other than those notices and demands
specifically required under this Lease. TENANT EXPRESSLY WAIVES THE
SERVICE OF ANY STATUTORY DEMAND OR NOTICE WHICH IS A PREREQUISITE TO
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LANDLORD'S COMMENCEMENT OF EVICTION PROCEEDINGS AGAINST TENANT,
INCLUDING THE DEMANDS AND NOTICES SPECIFIED IN 735 ILCS SECTIONS
5/9-209 AND 5/9-210). TENANT WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY
LAWSUIT BROUGHT BY LANDLORD TO RECOVER POSSESSION OF THE PREMISES
FOLLOWING LANDLORD'S TERMINATION OF THIS LEASE PURSUANT TO SECTION
23A(2) OR THE RIGHT OF TENANT TO POSSESSION OF THE PREMISES PURSUANT TO
SECTION 23A(3) AND ON ANY CLAIM FOR DELINQUENT RENT WHICH LANDLORD MAY
JOIN IN ITS LAWSUIT TO RECOVER POSSESSION.
B. If Landlord exercises either of the remedies provided in Sections
23.A.(2) or 23.A.(3), Tenant shall surrender possession and vacate the
Premises and immediately deliver possession thereof to Landlord, and
Landlord may re-enter and take complete and peaceful possession of the
Premises, with process of law, full and complete license to do so being
hereby granted to Landlord, and Landlord may remove all occupants and
property therefrom, using such force as may be necessary to the extent
allowed by law, without being deemed guilty in any manner of trespass,
eviction or forcible entry and detainer and without relinquishing
Landlord's right to Rent or any other right given to Landlord hereunder
or by operation of law.
C. If Landlord terminates the right of Tenant to possession of the
Premises without terminating this Lease, Landlord shall have the right
to immediate recovery of all amounts then due hereunder. Such
termination of possession shall not release Tenant, in whole or in
part, from Tenant's obligation to pay Rent hereunder for the full Term,
and Landlord shall have the right, from time to time, to recover from
Tenant, and Tenant shall remain liable for, all Base Rent, Additional
Rent and any other sums accruing as they become due under this Lease
during the period from the date of such notice of termination of
possession to the stated end of the Term. In any such case, Landlord
may relet the Premises or any part thereof for the account of Tenant
for such rent, for such time (which may be for a term extending beyond
the Term) and upon such terms as Landlord shall determine and may
collect the rents from such reletting. Landlord shall not be required
to accept any tenant offered by Tenant or to observe any instructions
given by Tenant relative to such reletting. Also, in any such case,
Landlord may make repairs, alterations and additions in or to the
Premises and redecorate the same to the extent deemed by Landlord
necessary or desirable and in connection therewith change the locks to
the Premises, and Tenant upon demand shall pay the cost of all of the
foregoing together with Landlord's expenses of reletting. The rents
from any such reletting shall be applied first to the payment of the
expenses of reentry, redecoration, repair and alterations and the
expenses of reletting and second to the payment of Rent herein provided
to be paid by Tenant. Any excess or residue shall operate only as an
offsetting credit against the amount of Rent due and owing as the same
thereafter becomes due and payable hereunder, and the use of such
offsetting credit to reduce the amount of Rent due Landlord, if any,
shall not be deemed to give Tenant any right, title or interest in or
to such excess or residue and any such excess or residue shall belong
to Landlord solely, and in no event shall Tenant be entitled to a
credit on its indebtedness to Landlord in excess of the aggregate sum
(including Base Rent and Additional Rent) which would have been paid by
Tenant for the period for which the credit to Tenant is being
determined, had no Event of Default occurred. No such reentry or
repossession, repairs, alterations and additions, or reletting shall be
construed as an eviction or ouster of Tenant or as an election on
Landlord's part to terminate this Lease, unless a written notice of
such intention is given to Tenant, or shall operate to release Tenant
in whole or in part from any of Tenant's obligations hereunder, and
Landlord, at any time and from time to time, may xxx and recover
judgment for any deficiencies remaining after the application of the
proceeds of any such reletting.
D. If this Lease is terminated by Landlord pursuant to Section
23.A.(2), Landlord shall be entitled to recover from Tenant all Rent
accrued and unpaid for the period up to and including such termination
date, as well as all other additional sums payable by Tenant, or for
which Tenant is liable or for which Tenant has agreed to indemnify
Landlord under any of the provisions of this Lease, which may be then
owing and. unpaid, and all costs and expenses, including without
limitation court costs and attorneys' fees incurred by Landlord in the
enforcement of its rights and remedies hereunder, and, in addition,
Landlord shall be entitled to recover as damages for loss of the
bargain and not as a penalty (i) the unamortized portion of any
concessions offered by Landlord to Tenant in connection with this
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Lease, including without limitation Landlord's contribution to the cost
of tenant improvements and alterations, if any, installed by either
Landlord or Tenant pursuant to this Lease or any work letter in
connection with this Lease, (ii) the aggregate sum which at the time of
such termination represents the excess, if any, of the present value of
the aggregate rents which would have been payable after the termination
date had this Lease not been terminated, including, without limitation,
Base Rent at the annual rate or respective annual rates for the
remainder of the Term provided for in this Lease and the amount
projected by Landlord to represent Additional Rent for the remainder of
the Term over the then present value of the then aggregate fair rent
value of the Premises for the balance of the Term, such present worth
to be computed in each case on the basis of a ten percent (10%) per
annum discount from the respective dates upon which such Rents would
have been payable hereunder had this Lease not been terminated, and
(iii) any damages in addition thereto, including without limitation
reasonable attorneys' fees and court costs, which Landlord sustains as
a result of the breach of any of the covenants of this Lease other than
for the payment of Rent.
E. Landlord shall use commercially reasonable efforts to mitigate any
damages resulting from an Event of Default by Tenant under this Lease.
Landlord's obligation to mitigate damages after an Event of Default by
Tenant under this Lease shall be satisfied in full if Landlord
undertakes to lease the Premises to another tenant (a "SUBSTITUTE
TENANT") in accordance with the following criteria:
(1) Landlord shall have no obligations to solicit or
entertain negotiations with any other prospective
tenants for the Premises until Landlord obtains full
and complete possession of the Premises including,
without limitation, the final and unappealable legal
right to relet the Premises free of any claim of
Tenant;
(2) Landlord shall not be obligated to lease or show the
Premises, on a priority basis, offer the Premises to
a prospective tenant when other premises in the
Building suitable for that prospective tenant's use
are (or soon will be) available;
(3) Landlord shall not be obligated to lease the Premises
to a Substitute Tenant for a Rent less than the
current fair market Rent then prevailing for similar
uses in comparable buildings in the same market area
as the Building, nor shall Landlord be obligated to
enter into a new lease under other terms and
conditions that are unacceptable to Landlord under
Landlord's then current leasing policies for
comparable space in the Building;
(4) Landlord shall not be obligated to enter into a lease
with a Substitute Tenant whose use would:
(i) violate any restriction, covenant, or
requirement contained in the lease of
another tenant of the Building;
(ii) adversely affect the reputation of the
Building; or
(iii) be incompatible with the operation of the
Building as an industrial building;
(5) Landlord shall not be obligated to enter into a lease
with any proposed Substitute Tenant which does not
have, in Landlord's reasonable opinion, sufficient
financial resources to operate the Premises in a
first class manner; and
(6) Landlord shall not be required to expend any amount
of money to alter, remodel, or otherwise make the
Premises suitable for use by a proposed Substitute
Tenant unless:
(i) Tenant pays any such sum to Landlord in
advance of Landlord's execution of a lease
with such tenant (which payment shall not be
in lieu of any damages or other sums to
which Landlord may be entitled as a result
of Tenant's default under this Lease); or
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(ii) Landlord, in Landlord's reasonable
discretion, determines that any such
expenditure is financially justified in
connection with entering into any such
substitute lease.
F. All property of Tenant removed from the Premises by Landlord
pursuant to any provision of this Lease or applicable law may be
handled, removed or stored by Landlord at the cost and expense of
Tenant, and Landlord shall not be responsible in any event for the
value, preservation or safekeeping thereof. Tenant shall pay Landlord
for all expenses incurred by Landlord with respect to such removal and
storage so long as the same is in Landlord's possession or under
Landlord's control. All such property not removed from the Premises or
retaken from storage by Tenant within thirty (30) days after the end of
the Term or the termination of Tenant's right to possession of the
Premises, however terminated, at Landlord's option, shall be
conclusively deemed to have been conveyed by Tenant to Landlord as by
xxxx of sale without further payment or credit by Landlord to Tenant.
G. Tenant hereby grants to Landlord a first lien upon the interest of
Tenant under this Lease to secure the payment of moneys due under this
Lease, which lien may be enforced in equity, and Landlord shall be
entitled as a matter of right to have a receiver appointed to take
possession of the Premises and relet the same under order of court.
H. If Tenant is adjudged bankrupt, or a trustee in bankruptcy is
appointed for Tenant, Landlord and Tenant, to the extent permitted by
law, agree to request that the trustee in bankruptcy determine within
sixty (60) days thereafter whether to assume or to reject this Lease.
I. The receipt by Landlord of less than the full rent due shall not be
construed to be other than a payment on account of rent then due, nor
shall any statement on Tenant's check or any letter accompanying
Tenant's check be deemed an accord and satisfaction, and Landlord may
accept such payment without prejudice to Landlord's right to recover
the balance of the rent due or to pursue any other remedies provided in
this lease. The acceptance by Landlord of rent hereunder shall not be
construed to be a waiver of any breach by Tenant of any term, covenant
or condition of this Lease. No act or omission by Landlord or its
employees or agents during the term of this Lease shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept
such a surrender shall be valid unless in writing and signed by
Landlord.
3. In the event of any litigation between Tenant and Landlord to
enforce any provision of this Lease or any right of either party
hereto, the unsuccessful party to such litigation shall pay to the
successful party all costs and expenses, including reasonable
attorney's fees, incurred therein. Furthermore, if Landlord, without
fault, is made a party to any litigation instituted by or against
Tenant, Tenant shall indemnify Landlord against, and protect, defend,
and save it harmless from, all costs and expenses, including reasonable
attorney's fees, incurred by it in connection therewith. If Tenant,
without fault, is made party to any litigation instituted by or against
Landlord, Landlord shall indemnify Tenant against, and protect, defend,
and save it harmless from, all costs and expenses, including reasonable
attorney's fees, incurred by it in connection therewith.
24. NO WAIVER. Failure of Landlord to declare any default immediately upon its
occurrence, or delay in taking any action in connection with an event of
default, shall not constitute a waiver of such default, nor shall it constitute
an estoppel against Landlord, but Landlord shall have the right to declare the
default at any time and take such action as is lawful or authorized under this
Lease. Failure by Landlord to enforce its rights with respect to any one default
shall not constitute a waiver of its rights with respect to any subsequent
default.
25. PEACEFUL ENJOYMENT. Tenant shall, and may peacefully have, hold, and enjoy
the Premises, subject to the other terms hereof, provided that Tenant pays the
Rent and other sums herein recited to be paid by Tenant and timely performs all
of Tenant's covenants and agreements herein contained. This covenant and any and
all other covenants of Landlord shall be binding upon Landlord and its
successors only with respect to breaches occurring during its or their
respective periods of ownership of the Landlord's interest hereunder.
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26. SUBSTITUTION. Landlord at its sole discretion shall be entitled to cause
Tenant to relocate from the Premises to a comparably-sized space, of comparable
design and tenant improvements (the "Relocation Space") within the Building or
adjacent buildings within the same Property at any time upon sixty (60) days'
prior written notice to Tenant. The reasonable costs actually incurred in
connection with the physical relocation of the Tenant to the Relocation Space
shall be at the expense of Landlord and all other costs, if any, involved with
such relocation shall be borne by Tenant. Such a relocation shall not terminate
or otherwise affect or modify this Lease except that from and after the date of
such relocation, "Premises" shall refer to the Relocation Space into which
Tenant has been moved, rather than the original Premises as herein defined and
the Base Rent shall be adjusted so that immediately following such relocation
the Base Rent for the Relocation Space on a per square foot of Rentable Area
basis shall be the same as the Base Rent immediately prior to such relocation
for the original Premises on a per square foot of Rentable Area basis. Tenant's
Pro Rata Share also be adjusted in accordance with the formula set forth in the
Lease.
27. HOLDING OVER. In the event of holding over by Tenant after expiration or
other termination of this Lease or in the event Tenant continues to occupy the
Premises after the termination of Tenant's right of possession pursuant to
Section 23.A(3) hereof, occupancy of the Premises subsequent to such termination
or expiration shall be that of a tenancy at sufferance and in no event for
month-to-month or year-to-year. Tenant shall, throughout the entire holdover
period, be subject to all the terms and provisions of this Lease and shall pay
for its use and occupancy an amount (on a per month basis without reduction for
any partial months during any such holdover) equal to 150% of the Base Rent and
Additional Rent which would have been applicable had the Lease Term continued
through the period of such holding over by Tenant. No holding over by Tenant or
payments of money by Tenant to Landlord after the expiration of the Lease Term
shall be construed to extend the Lease Term or prevent Landlord from recovery of
immediate possession of the Premises by summary proceedings or otherwise unless
Landlord has sent written notice to Tenant that Landlord has elected to extend
the Lease Term. In addition to the obligation to pay the amounts set forth above
during any such holdover period, Tenant shall also be liable to Landlord for all
damages, including, without limitation, any consequential damages, which
Landlord may suffer by reason of any holding over by Tenant and Tenant shall
also indemnify Landlord against any and all claims made by any other tenant or
prospective tenant against Landlord for delay by Landlord in delivering
possession of the Premises to such other tenant or prospective tenant.
28. SUBORDINATION TO MORTGAGE/ESTOPPEL CERTIFICATE. Tenant accepts this Lease
subject and subordinate to any mortgage, deed of trust or other lien presently
existing or hereafter arising upon the Premises, or upon the Building and/or the
Property and to any renewals, modifications, refinancings and extensions
thereof, but Tenant agrees that any such mortgagee shall have the right at any
time to subordinate such mortgage, deed of trust or other lien to this Lease on
such terms and subject to such conditions as such mortgagee may deem appropriate
in its discretion. The provisions of the foregoing sentence shall be
self-operative and no further instrument of subordination shall be required.
However, Landlord is hereby irrevocably vested with full power and authority to
subordinate this Lease to any mortgage, deed of trust or other lien now existing
or hereafter placed upon the Premises, or the Building and/or the Property and
Tenant agrees within ten (10) days after demand to execute such further
instruments subordinating this Lease or attorning to the holder of any such
liens as Landlord may request. The terms of this Lease are subject to approval
by the Landlord's existing lender(s) and any lender(s) who, at the time of the
execution of this Lease, have committed or are considering committing to
Landlord to make a loan secured by all or any portion of the Property, and such
approval is a condition precedent to Landlord's obligations hereunder. In the
event that Tenant should fail to execute any subordination or other agreement
required by this Section promptly as requested, Tenant hereby irrevocably
constitutes Landlord as its attorney-in-fact to execute such instrument in
Tenant's name, place and stead, it being agreed that such power is one coupled
with an interest in Landlord and is accordingly irrevocable. Tenant agrees that
it will from time-to-time upon request by Landlord execute and deliver to such
persons as Landlord shall request a statement in recordable form certifying that
this Lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as so modified),
stating the dates to which rent and other charges payable under this Lease have
been paid, stating that Landlord is not in default hereunder (or if Tenant
alleges a default stating the nature of such alleged default) and further
stating such other matters as Landlord shall reasonably require. Tenant agrees
periodically to furnish within
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ten (10) days after so requested by Landlord, ground lessor or the holder of any
deed of trust, mortgage or security agreement covering the Building, the
Property, or any interest of Landlord therein, a certificate signed by Tenant
certifying (a) that this Lease is in full force and effect and unmodified (or if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications), (b) as to the Commencement Date and the
date through which Base Rent and Tenant's Additional Rent have been paid, (c)
that Tenant has accepted possession of the Premises and that any improvements
required by the terms of this Lease to be made by Landlord have been completed
to the satisfaction of Tenant, (d) that except as stated in the certificate no
rent has been paid more than thirty (30) days in advance of its due date, (e)
that the address for notices to be sent to Tenant is as set forth in this Lease
(or has been changed by notice duly given and is as set forth in the
certificate), (f) that except as stated in the certificate, Tenant, as of the
date of such certificate, has no charge, lien, or claim of offset against rent
due or to become due, (g) that except as stated in the certificate, Landlord is
not then in default under this Lease, (h) as to the amount of the Approximate
Rentable Area of the Premises then occupied by Tenant, (i) that there are no
renewal or extension options, purchase options, rights of first refusal or the
like in favor of Tenant except as set forth in this Lease, (j) the amount and
nature of accounts payable to Landlord under terms of this Lease, and (k) as to
such other matters as may be requested by Landlord or ground lessor or the
holder of any such deed of trust, mortgage or security agreement. Any such
certificate may be relied upon by any ground lessor, prospective purchaser,
secured party, mortgagee or any beneficiary under any mortgage, deed of trust on
the Building or the Property or any part thereof or interest of Landlord
therein.
29. NOTICE. Any notice required or permitted to be given under this Lease or by
law shall be deemed to have been given if it is written and delivered in person
or mailed by Registered or Certified mail, postage prepaid, or sent by a
nationally recognized overnight delivery service to the party who is to receive
such notice at the address specified in Section 1.Y. of this Lease. When so
mailed, the notice shall be deemed to have been given two (2) business days
after the date it was mailed. When sent by overnight delivery service, the
notice shall be deemed to have been given on the next business day after deposit
with such overnight delivery service. The address specified in Section 1.Y. of
this Lease may be changed from time to time by giving written notice thereof to
the other party.
30. LANDLORD'S LIEN. In addition to any statutory lien for rent in Landlord's
favor, Landlord (the secured party for purposes hereof) shall have and Tenant
(the debtor for purposes hereof) hereby grants to Landlord, a continuing
security interest for all Base Rent, Additional Rent and other sums of money
becoming due hereunder from Tenant, upon all goods, wares, equipment, fixtures,
furniture, inventory, accounts, contract rights, chattel paper and other
personal property of Tenant situated on the Premises subject to this Lease and
such property shall not be removed therefrom without the consent of Landlord
until all arrearages in Rent as well as any and all sums of money then due to
Landlord hereunder shall first have been paid and discharged. In the event of a
default under this Lease, landlord shall have, in addition to any other remedies
provided herein or by law, all rights and remedies under the Uniform Commercial
Code, including without limitation the right to sell the property described in
this Section at public or private sale upon ten (10) days notice to Tenant which
notice Tenant hereby agrees is adequate and reasonable. Tenant hereby agrees to
execute such other instruments necessary or desirable in Landlord's discretion
to perfect the security interest hereby created. Any statutory lien for Rent is
not hereby waived, the express contractual lien herein being granted in addition
and supplementary thereto. Tenant warrants and represents that the collateral
subject to the security interest granted herein is not purchased or used by
Tenant for personal, family or household purposes. Tenant further warrants and
represents that the lien granted herein constitutes a first and superior lien
and the Tenant will not allow the placing of any other lien upon the property
described in this Section without the prior written consent of Landlord.
31. SURRENDER OF PREMISES. Upon the termination, whether by lapse of time or
otherwise, or upon any termination of Tenant's right to possession without
termination of the Lease, Tenant will at once surrender possession and vacate
the Premises, together with all Leasehold Improvements (except those Leasehold
Improvements Tenant is required to remove pursuant to Section 8 hereof), to
Landlord in good condition and repair, ordinary wear and tear excepted;
conditions existing because of Tenant's failure to perform maintenance, repairs
or replacements as required of Tenant under this Lease shall not be deemed
"reasonable wear and tear." Tenant shall surrender to Landlord all keys to the
Premises and make known to Landlord the explanation of all combination locks
which Tenant is permitted to leave on the Premises.
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Subject to the Landlord's rights under Section 23 hereof, if Tenant fails to
remove any of Tenant's Property within one (1) day after the termination of this
Lease, or Tenant's right to possession hereunder, Landlord, at Tenant's sole
cost and expenses, shall be entitled to remove and/or store such Tenant's
Property and Landlord shall be in no event be responsible for the value,
preservation or safekeeping thereof. Tenant shall pay Landlord, upon demand, any
and all reasonable expenses caused by such removal and all storage charges
against such property so long as the same shall be in possession of Landlord or
under the control of Landlord. In addition, if Tenant fails to remove any
Tenant's Property from the Premises or storage, as the case may be, within ten
(10) days after written notice from Landlord, Landlord, at its option, may deem
all or any part of such Tenant's Property to have been abandoned by Tenant and
title thereof shall immediately pass to Landlord under this Lease as by a xxxx
of sale.
32. RIGHTS RESERVED TO LANDLORD. Landlord reserves the following rights,
exercisable without notice, except as provided herein, and without liability to
Tenant for damage or injury to property, person or business and without
affecting an eviction or disturbance of Tenant's use or possession or giving
rise to any claim for setoff or abatement of rent or affecting any of Tenant's
obligations under this Lease: (1) upon thirty (30) days prior notice to change
the name or street address of the Building; (2) to install and maintain signs on
the exterior and interior of the Building; (3) to designate and approve window
coverings to present a uniform exterior appearance; (4) to make any decorations,
alterations, additions, improvements to the Building or Property, or any part
thereof (including, with prior notice, the Premises) which Landlord shall
desire, or deem necessary for the safety, protection, preservation or
improvement of the Building or Property, or as Landlord may be required to do by
law; (5) to have access to the Premises at reasonable hours to perform its
duties and obligations and to exercise its rights under this Lease; (6) to
retain at all times and to use in appropriate instances, pass keys to all locks
within and to the Premises; (7) to approve the weight, size, or location of
heavy equipment, or articles within the Premises; (8) to close or restrict
access to the Building at all times other than Normal Business Hours subject to
Tenant's right to admittance at all times under such regulations as Landlord may
prescribe from time to time, or to close (temporarily or permanently) any of the
entrances to the Building; provided Landlord shall have the right to restrict
or prohibit access to the Building or the Premises at any time Landlord
determines it is necessary to do so to minimize the risk of injuries or death to
persons or damage to property; (9) to change the arrangement and/or location of
entrances of passageways, doors and doorways, corridors, elevators, stairs,
toilets and public parts of the Building or Property; (10) to regulate access to
telephone, electrical and other utility closets in the Building and to require
use of designated contractors for any work involving access to the same; (11) if
Tenant has vacated the Premises during the last six (6) months of the Lease
Term, to perform additions, alterations and improvements to the Premises in
connection with a reletting or anticipated reletting thereof without being
responsible or liable for the value or preservation of any then existing
improvements to the Premises; and (12) to grant to anyone the exclusive right to
conduct any business or undertaking in the Building provided Landlord's exercise
of its rights under this clause 12, shall not be deemed to prohibit Tenant from
the operation of its business in the Premises and shall not constitute a
constructive eviction.
33. MISCELLANEOUS.
A. If any term or provision of this Lease, or the application thereof
to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such
term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and
enforced to the fullest extent permitted by law.
B. Tenant agrees not to record this Lease or any short form or
memorandum hereof.
C. This Lease and the rights and obligations of the parties hereto
shall be interpreted, construed, and enforced in accordance with the
laws of the state in which the Building is located.
D. Events of "FORCE MAJEURE" shall include strikes, riots, acts of God,
shortages of labor or materials, war, governmental laws, regulations or
restrictions, or any other cause whatsoever beyond the control of
Landlord or Tenant, as the case may be. Whenever a period of time is
herein prescribed for the taking of
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any action by Landlord or Tenant (other than the payment of Rent and
all other such sums of money as shall become due hereunder), such party
shall not be liable or responsible for, there shall be excluded from
the computation of such period of time, any delays due to events of
Force Majeure.
E. Except as expressly otherwise herein provided, with respect to all
required acts of Tenant, time is of the essence of this Lease.
F. Landlord shall have the right to transfer and assign, in whole or in
part, all of its rights and obligations hereunder and in the Building
and Property referred to herein, and in such event and upon such
transfer Landlord shall be released from any further obligations
hereunder, and Tenant agrees to look solely to such successor in
interest of Landlord for the performance of such obligations.
G. Tenant hereby represents to Landlord that it has dealt directly with
and only with the Broker as a broker in connection with this Lease.
Landlord and Tenant hereby indemnify and hold each other harmless
against any loss, claim, expense or liability with respect to any
commissions or brokerage fees claimed on account of the execution
and/or renewal of this Lease due to any action of the indemnifying
party.
H. If there is more than one Tenant, or if the Tenant as such is
comprised of more than one person or entity, the obligations hereunder
imposed upon Tenant shall be joint and several obligations of all such
parties. All notices, payments, and agreements given or made by, with
or to any one of such persons or entities shall be deemed to have been
given or made by, with or to all of them.
I. The individual signing this Lease on behalf of Tenant represents (1)
that such individual is duly authorized to execute or attest and
deliver this Lease on behalf of Tenant in accordance with the
organizational documents of Tenant; (2) that this Lease is binding upon
Tenant; (3) that Tenant is duly organized and legally existing in the
state of its organization, and is qualified to do business in the state
in which the Premises is located.
J. Tenant acknowledges that the financial capability of Tenant to
perform its obligations hereunder is material to Landlord and that
Landlord would not enter into this Lease but for its belief, based on
its review of Tenant's financial statements, that Tenant is capable of
performing such financial obligations. Tenant hereby represents,
warrants and certifies to Landlord that its financial statements
previously furnished to Landlord were at the time given true and
correct in all material respects and that there have been no material
subsequent changes thereto as of the date of this Lease.
K. Notwithstanding anything to the contrary contained in this Lease,
the expiration of the Lease Term, whether by lapse of time or
otherwise, shall not relieve Tenant from Tenant's obligations accruing
prior to the expiration of the Lease Term, and such obligations shall
survive any such expiration or other termination of the Lease Term.
L. Landlord has delivered a copy of this Lease to Tenant for Tenant's
review only, and the delivery hereof does not constitute an offer to
Tenant or an option. This Lease shall not be effective until an
original of this Lease executed by both Landlord and Tenant and an
original Guaranty, if applicable, executed by each Guarantor is
delivered to and accepted by Landlord, and this Lease has been approved
by Landlord's mortgagee, if required.
M. Landlord and Tenant understand, agree and acknowledge that (i) this
Lease has been freely negotiated by both parties; and (ii) in any
controversy, dispute or contest over the meaning, interpretation,
validity, or enforceability of this Lease or any of its terms or
conditions, there shall be not inference, presumption, or conclusion
drawn whatsoever against either party by virtue of that party having
drafted this Lease or any portion thereof
N. The headings and titles to the paragraphs of this Lease are for
convenience only and shall have no affect upon the construction or
interpretation of any part hereof.
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O. Receipt by Landlord of Tenant's keys to the Premises shall not
constitute an acceptance of surrender of the Premises.
34. ENTIRE AGREEMENT. This Lease, including the following Exhibits:
Exhibit A - Legal Description
Exhibit B - Outline and Location of Premises
Exhibit C - Rules and Regulations
Exhibit D - Payment of Basic Costs
Exhibit E - Work Letter
Exhibit F - Tenant's Expansion Option/Right of First Offer
Exhibit G - Renewal Option
Exhibit H - Rooftop Communications
Exhibit I - Commencement Letter
constitutes the entire agreement between the parties hereto with respect to the
subject matter of this Lease and supersedes all prior agreements and
understandings between the parties related to the Premises, including all lease
proposals, letters of intent and similar documents. Tenant expressly
acknowledges and agrees that Landlord has not made and is not making, and
Tenant, in executing and delivering this Lease, is not relying upon, any
warranties, representations, promises or statements, except to the extent that
the same are expressly set forth in this Lease. All understandings and
agreements heretofore had between the parties are merged in this Lease which
alone fully and completely expresses the agreement of the parties, neither party
relying upon any statement or representation not embodied in this Lease. This
Lease may be modified only be a written agreement signed by Landlord and Tenant.
Landlord and Tenant expressly agree that there are and shall be no implied
warranties of merchantibility, habitability, suitability, fitness for a
particular purpose or of any other kind arising out of this Lease, all of which
are hereby waived by Tenant, and that there are no warranties which extend
beyond those expressly set forth in this Lease.
35. LIMITATION OF LIABILITY EXCEPT TO THE EXTENT SPECIFICALLY ADDRESSED HEREIN,
TENANT SHALL NOT HAVE THE RIGHT TO AN ABATEMENT OF RENT OR TO TERMINATE THIS
LEASE AS A RESULT OF LANDLORD'S DEFAULT AS TO ANY COVENANT OR AGREEMENT
CONTAINED IN THIS LEASE OR AS A RESULT OF THE BREACH OF ANY PROMISE OR
INDUCEMENT IN CONNECTION HEREWITH, WHETHER IN THIS LEASE OR ELSEWHERE AND TENANT
HEREBY WAIVES SUCH REMEDIES OF ABATEMENT OF RENT AND TERMINATION. TENANT HEREBY
AGREES THAT TENANT'S REMEDIES FOR DEFAULT HEREUNDER OR IN ANY WAY ARISING IN
CONNECTION WITH THIS LEASE INCLUDING ANY BREACH OF ANY PROMISE OR INDUCEMENT OR
WARRANTY, EXPRESSED OR IMPLIED, SHALL BE LIMITED TO SUIT FOR DIRECT AND
PROXIMATE DAMAGES PROVIDED THAT TENANT HAS GIVEN THE NOTICES AS HEREINAFTER
REQUIRED. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE
LIABILITY OF LANDLORD TO TENANT FOR ANY DEFAULT BY LANDLORD UNDER THIS LEASE
SHALL BE LIMITED TO THE INTEREST OF LANDLORD IN THE BUILDING AND THE PROPERTY
AND TENANT AGREES TO LOOK SOLELY TO LANDLORD'S INTEREST IN THE BUILDING AND THE
PROPERTY FOR THE RECOVERY OF ANY JUDGMENT AGAINST THE LANDLORD, IT BEING
INTENDED THAT LANDLORD SHALL NOT BE PERSONALLY LIABLE FOR ANY JUDGMENT OR
DEFICIENCY. TENANT HEREBY COVENANTS THAT, PRIOR TO THE FILING OF ANY SUIT FOR
DIRECT AND PROXIMATE DAMAGES, IT SHALL GIVE LANDLORD AND ALL MORTGAGEES WHOM
TENANT HAS BEEN NOTIFIED HOLD MORTGAGES OR DEED OF TRUST LIENS ON THE PROPERTY,
BUILDING OR PREMISES ("LANDLORD MORTGAGEES") NOTICE AND REASONABLE TIME TO CURE
ANY ALLEGED DEFAULT BY LANDLORD.
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36. PARKING. Landlord shall provide Tenant with Tenant's pro-rata share of
non-exclusive, surface parking spaces (inclusive of handicapped and visitor
parking) at no cost to Tenant. Per Tenant's pro-rata share, Tenant is entitled
to up to twenty-two (22) non-exclusive, surface parking spaces. Tenant agrees to
comply and cause its employees and invitees to comply with rules and regulations
governing parking as promulgated by Landlord from time to time.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease in multiple
original counterparts as of the day and year first above written.
WITNESS/ATTEST LANDLORD:
TRANSWESTERN EAST BY
SOUTHEAST, L.L.C.
a Delaware limited liability company
Transwestern Investment Company, L.L.C.
as Agent
By: /s/ XXXXXX X. XXXXXXXX By: /s/ XXXXX X. XXXXX
---------------------------- ----------------------------
Name: XXXXXX X. XXXXXXXX Name: XXXXX X. XXXXX
------------------------- -------------------------
Title: MANAGING DIRECTOR Title: SENIOR VICE PRESIDENT
------------------------- -------------------------
WITNESS/ATTEST TENANT:
INTELLIREADY, INC.,
a Colorado Corporation
By: /s/ XXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
---------------------------- ----------------------------
Name: XXXXX X. XXXXX Name: XXXXXX X. XXXXX
------------------------- -------------------------
Title: ASSISTANT SECRETARY Title: CHAIRMAN
------------------------- -------------------------
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EXHIBIT A
LEGAL DESCRIPTION
Xxxx 0 xxx 0, Xxxxx 0, Xxxx by Southeast Subdivision Filing No. 2, recorded June
2, 1980 in Map Book 45 at Page 00, Xxxxxx xx Xxxxxxxx, Xxxxx of Colorado.
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EXHIBIT B
OUTLINE AND LOCATION OF PREMISES
This Exhibit is attached to and made a part of the Lease dated August 1, 2000 by
and between Transwestern East by Southeast, L.L.C., a Colorado limited liability
company ("LANDLORD") and IntelliReady, Inc., a Colorado corporation ("TENANT")
for space in the Building located at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxx.
[FLOORPLAN]
B-1
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EXHIBIT C
RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to the
Premises, the Building, the parking garage associated therewith (if any), the
Property and the appurtenances thereto:
1. Sidewalks, entrances, passageways, courts, corridors, vestibules,
halls, elevators and stairways in and about the Building shall not be
obstructed nor shall objects be placed against glass partitions, doors
or windows which would be unsightly from the Building's corridors from
the exterior of the Building.
2. Plumbing, fixtures and appliances shall be used for only the purpose
for which they were designed and no foreign substance of any kind
whatsoever shall be thrown or placed therein. Damage resulting to any
such fixtures or appliances from misuse by Tenant or its agents,
employees or invitees, shall be paid for by Tenant and Landlord shall
not in any case be responsible therefor.
3. Any sign, lettering, picture, notice, advertisement installed within
the Premises which is visible from the public corridors within the
Building shall be installed in such manner, and be of such character
and style, as Landlord shall approve, in writing in its reasonable
discretion. No sign, lettering, picture, notice or advertisement shall
be placed on any outside window or door or in a position to be visible
from outside the Building without prior approval of Landlord which
shall not be unreasonably withheld. No nails, hooks or screws (except
for customary artwork or wall hangings) shall be driven or inserted
into any part of the Premises or Building except by Building
maintenance personnel, nor shall any part of the Building be defaced or
damaged by Tenant.
4. Tenant shall not place any additional lock or locks on any door in the
Premises or Building without Landlord's prior written consent. A
reasonable number of keys to the locks on the doors in the Premises
shall be furnished by Landlord to Tenant at the cost of Tenant, and
Tenant shall not have any duplicate keys made. All keys and passes
shall be returned to Landlord at the expiration or earlier termination
of this Lease.
5. Tenant shall refer all contractors, contractors representatives and
installation technicians for Landlord for Landlord's supervision,
approval and control before the performance of any contractural
services. This provision shall apply to all work performed in the
Building including, but not limited to installation of telephones,
telegraph equipment, electrical devices and attachments, doors,
entranceways, and any and all installations of every nature affecting
floors, walls, woodwork, window trim, ceilings, equipment and any other
physical portion of the Building. Tenant shall not waste electricity,
water or air conditioning. All controls shall be adjusted only by
Building personnel.
6. All corridor doors, when not in use, shall remain closed. Tenant shall
cause all doors to the Premises to be closed and securely locked before
leaving the Building at the end of the day.
7. Tenant shall keep all electrical and mechanical apparatus owned by
Tenant free of vibration, noise and airwaves which may be transmitted
beyond the Premises.
8. Canvassing, soliciting and peddling in or about the Building or
Property is prohibited. Tenant shall cooperate and use its best efforts
to prevent the same.
9. Tenant shall not use the Premises in any manner which would overload
the standard heating, ventilating or air conditioning systems of the
Building.
10. Tenant shall not utilize any equipment or apparatus in such manner as
to create any magnetic fields or waves which adversely affect or
interfere with the operation of any systems or equipment in the
Building or Property.
C-1
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11. Bicycles and other vehicles are not permitted inside or on the walkways
outside the Building, except in those areas specifically designated by
Landlord for such purposes.
12. Tenant shall not operate or permit to be operated on the Premises any
coin or token operated vending machine or similar device (including,
without limitation, telephones, lockers, toilets, scales, amusements
devices and machines for sale of beverages, foods, candy, cigarettes or
other goods), except for those vending machines or similar devices
which are for the sole and exclusive use of Tenant's employees, and
then only if such operation does not violate the lease of any other
tenant in the Building.
13. Tenant shall utilize the termite and pest extermination service
designated by Landlord to control termites and pests in the Premises.
Except as included in Basic Costs, Tenant shall bear the cost and
expense of such extermination services.
14. To the extent permitted by law, Tenant shall not permit picketing or
other union activity involving its employees or agents in the Building
or on the Property, except in those locations and subject to time and
other constraints as to which Landlord may give its prior written
consent, which consent may be withheld in Landlord' sole discretion.
15. Tenant shall comply with all applicable laws, ordinances, governmental
orders or regulations and applicable orders or directions from any
public office or body having jurisdiction, with respect to the
Premises, the Building, the Property and their respective use or
occupancy thereof. Tenant shall not make or permit any use of the
Premises, the Building or the Property, respectively, which is directly
or indirectly forbidden by law, ordinance, governmental regulation or
order, or direction of applicable public authority, or which may be
dangerous to person or property.
16. Tenant shall not use or occupy the Premises in any manner or for any
purpose which would injure the reputation or impair the present or
future value of the Premises, the Building or the Property; without
limiting the foregoing, Tenant shall not use or permit the Premises or
any portion thereof to be used for lodging, sleeping or for any illegal
purpose.
17. Tenant shall carry out Tenant's permitted repair, maintenance,
alterations, and improvements in the Premises only during times agreed
to in advance by Landlord and in a manner which will not interfere with
the rights of other tenants in the Building.
18. Landlord may from time to time adopt appropriate systems and procedures
for the security or safety of the Building, its occupants, entry and
use, or its contents. Tenant, Tenant's agents, employees, contractors,
guests and invitees shall comply with Landlord's reasonable
requirements thereto.
19. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's opinion
may tend to impair the reputation of the Building or its desirability
for Landlord or its other tenants. Upon written notice from Landlord,
Tenant will refrain from and/or discontinue such publicity immediately.
20. Neither Tenant nor any of its employees, agents, contractors, invitees
or customers shall smoke in any area designated by Landlord (whether
through the posting of a "no smoking" sign or otherwise) as a "no
smoking" area. In no event shall Tenant or any of its employees,
agents, contractors, invitees or customers smoke in the hallways or
bathrooms of the Building. Landlord reserves the right to designate,
from time to time, additional areas of the Building and the Property as
"no smoking" areas and to designate the entire Building and the
Property as a "no smoking" area. Landlord shall work with Tenant to
specify an area on the Property where Tenants' employees shall be
permitted to smoke.
C-2
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EXHIBIT D
PAYMENT OF BASIC COSTS
This Exhibit is attached to and made a part of the Lease dated Aug 1, 2000 by
and between Transwestern East by Southeast, L.L.C., a Colorado limited liability
company ("LANDLORD") AND IntelliReady, Inc., a Colorado corporation ("TENANT")
for space in the Building located at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxx.
A. During each calendar year, or portion thereof, falling within the Lease Term,
Tenant shall pay to Landlord as Additional Rent hereunder Tenant's Pro Rata
Share of Basic Costs (as defined below) for the applicable calendar year. Prior
to January 1 of each calendar year during the Lease Term, or as soon thereafter
as practical, Landlord shall make a good faith estimate of Basic Costs for the
applicable full or partial calendar year and Tenant's Pro Rata Share thereof. On
or before the first day of each month during such calendar year, Tenant shall
pay Landlord, as Additional Rent, a monthly installment equal to one-twelfth of
Tenant's Pro Rata Share of Landlord's estimate of Basic Costs. Landlord shall
have the right from time to time during any such calendar year to revise the
estimate of Basic Costs for such year and provide Tenant with a revised
statement therefor (provided, however, Landlord agrees that Landlord shall not
issue a revised statement more than twice in any calendar year), and thereafter
the amount Tenant shall pay each month shall be based upon such revised
estimate. If Landlord does not provide Tenant with an estimate of the Basic
Costs by January 1 of any calendar year, Tenant shall continue to pay a monthly
installment based on the previous year's estimate until such time as Landlord
provides Tenant with an estimate of Basic Costs for the current year. Upon
receipt of such current year's estimate, an adjustment shall be made for any
month during the current year with respect to which Tenant paid monthly
installments of Additional Base Rent based on the previous years estimate.
Tenant shall pay Landlord for any underpayment upon demand. Any overpayment in
excess of the equivalent of one (1) month's Base Rent shall, at Landlord's
option, be refunded to Tenant or credited against the installment(s) of
Additional Rent next coming due under the Lease. Any overpayment in an amount
equal to or less than the equivalent of one (I) month's Base Rent shall, at
Landlord's option, be refunded to Tenant or credited against the installment of
Additional Rent due for the month immediately following the furnishing of such
estimate. Any amount paid by Tenant based on any estimate shall be subject to
adjustment pursuant to Paragraph A below, when actual Basic Costs are determined
for such calendar year.
B. As soon as is practical following the end calendar year during the Lease
Term, Landlord shall furnish to Tenant a statement of Landlord's actual Basic
Costs for the previous calendar year. If for any calendar year the Additional
Rent collected for the prior year, as a result of Landlord's estimate of Basic
Costs, is in excess of Tenant's actual Pro Rata Share of Basic Costs for such
prior year, then Landlord shall refund to Tenant any overpayment (or at
Landlord's option apply such amount against Additional Base Rent due or to
become due hereunder). Likewise, Tenant shall pay to Landlord, on demand, any
underpayment with respect to the prior year whether or not the Lease has
terminated prior to receipt by Tenant of a statement for such underpayment, it
being understood that this clause shall survive the expiration of the Lease.
C. Basic Costs shall mean all direct and indirect costs, expenses paid and
disbursements of every kind (subject to the limitations set forth below) which
Landlord incurs, pays or becomes obligated to pay in each calendar year in
connection with operating, maintaining, repairing, owning and managing the
Building and the Project including but not limited to, the following:
(1) All labor costs for all persons performing services required or
utilized in connection with the operation, repair, replacement and
maintenance of and control of access to the Building and the Project,
including but not limited to amounts incurred for wages, salaries and
other compensation for services, professional training, payroll, social
security, unemployment and other similar taxes, workers' compensation
insurance, uniforms, training, disability benefits, pensions,
hospitalization, retirement plans, group insurance or any other similar
or like expenses or benefits.
D-l
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(2) All management fees, the cost of equipping and maintaining a management
office at the Building, accounting services, legal fees not
attributable to leasing and collection activity, and all other
administrative costs relating to the Building and the Property.
(3) All Rent and/or purchase costs of materials, supplies, tools and
equipment used in the operation, repair, replacement and maintenance
and the control of access to the Building and the Property.
(4) All amounts charged to Landlord by contractors and/or suppliers for
services, replacement parts, components, materials, equipment and
supplies furnished in connection with the operation, repair,
maintenance, replacement and control of access to any part of the
Building, or the Property generally, including the heating, air
conditioning, ventilating, plumbing, electrical, elevator and other
systems and equipment of the Building and the garage. At Landlord's
option, major repair items may be amortized over a period of up to five
(5) years or largest period permitted.
(5) All premiums and deductibles paid by Landlord for fire, flood and
extended insurance coverage, earthquake and extended coverage
insurance, liability and extended coverage insurance, Rent loss
insurance, elevator insurance, boiler insurance and other insurance
customarily carried from time to time by landlords of comparable
industrial buildings or required to be carried by Landlord's mortgagee.
(6) Charges for all utilities, including but not limited to water,
electricity, gas and sewer, but excluding those electrical charges for
which tenants are individually responsible.
(7) "TAXES", which for purposes hereof, shall mean (a) all real estate
taxes and assessments on the Property, the Building or the Premises,
and taxes and assessments levied in substitution or supplementation in
whole or in part of such taxes, (b) all personal property taxes for the
Building's personal property, including license expenses, (c) all taxes
imposed on services of Landlord's agents and employees, (d) all sales,
use or other tax, excluding state and/or federal income tax now or
hereafter imposed by any governmental authority upon Rent received by
Landlord, (e) all other taxes, fees or assessments now or hereafter
levied by any governmental authority on the Property, the Building or
its contents or on the operation and use thereof (except as relate to
specific tenants), and (f) all costs and fees incurred in connection
with seeking reductions in or refunds in Taxes including, without
limitation, any costs incurred by Landlord to challenge the tax
valuation of the Building or Property, but excluding income taxes.
Estimates of real estate taxes and assessments for any calendar year
during the Lease Term shall be determined based on Landlord's good
faith estimate of the real estate taxes and assessments. Taxes and
assessments hereunder are those accrued with respect to such calendar
year, as opposed to the real estate taxes and assessments paid or
payable for such calendar year.
(8) All landscape expenses and costs of repairing, resurfacing and striping
of the parking areas and garages of the Property, if any.
(9) Cost of all maintenance service agreements, including those for
equipment, alarm service, window cleaning, drapery or mini-blind
cleaning, janitorial services, metal refinishing, pest control, uniform
supply, landscaping and any parking equipment.
(10) Cost of all other repairs, replacements and general maintenance of the
Property and Building neither specified above nor directly billed to
tenants, including the cost of maintaining all interior Common Areas
including lobbies, multi-tenant hallways, restrooms and service areas.
(11) The amortized cost of capital improvements made to the Building or the
Property which are (a) primarily for the purpose of reducing operating
expense costs or otherwise improving the operating efficiency of the
Property or Building; or (b) required to comply with any laws, rules or
regulations of any governmental authority or a requirement of
Landlord's insurance carrier. The cost of such capital improvements
shall be amortized over a period of five (5) years, or longer (at
Landlord's option), and shall, at Landlord's option, include interest
at a rate that is reasonably equivalent to the interest rate
D-2
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that Landlord would be required to pay to finance the cost of the
capital improvement in question as of the date such capital improvement
is performed, provided if the payback period for any capital
improvement is less than five (5) years, Landlord may amortize the cost
of such capital improvement over the payback period.
(12) Any other charge or expense of any nature whatsoever which, in
accordance with general industry practice with respect to the operation
of a first class industrial building, would be construed as an
operating expense.
D. Basic Costs shall not include repairs and general maintenance paid from
proceeds of insurance or by a tenant or other third parties, and alterations
attributable solely to individual tenants of the Property. Further, Basic Costs
shall not include the cost of capital improvements (except as above set forth),
depreciation, interest (except as provided above with respect to the
amortization of capital improvements), lease commissions, and principal payments
on mortgage and other non-operating debts of Landlord. Capital improvements are
more specifically defined as:
(1) Costs incurred in connection with the original construction of the
Property or with any major changes to same, including but no limited
to, additions or deletions of corridor extensions, renovations and
improvements of the Common Areas beyond the costs caused by normal wear
and tear, and upgrades or replacement of major Property systems; and
(2) Costs of correcting defects (including latent defects), including any
allowances for same, in the construction of the Property or its related
facilities; and
(3) Costs incurred in renovating or otherwise improving, designing,
redesigning, decorating or redecorating space for tenants or other
occupants of the Property or other space leased or held for lease in
the Property.
E. If the Building and the other buildings Landlord operates in conjunction
therewith are not at least one hundred percent (100%) occupied, in the
aggregate, during any calendar of the Lease term or if Landlord is not
supplying services to at least one hundred percent (100%) of the Approximate
Rentable Area of the Building and such other buildings at any time during any
calendar year of the Lease Term, actual Basic Costs for purposes hereof shall,
at Landlord's option, be determined as if the Building and such other buildings
had been one hundred percent (100%) occupied and Landlord had been supplying
reasonable services to one hundred percent (100%) of the Approximate Rentable
Area of the Building and such other buildings during such year. If Tenant pays
for its Pro Rata Share of Basic Costs based on increases over a "Base Year" and
Basic Costs for any calendar year during the Lease Term are determined as
provided in the foregoing sentence, Basic Costs for such Base Year shall also
be determined as if the Building and such other buildings had been one hundred
percent (100%) occupied and Landlord had been supplying services to one hundred
percent (100%) of the Approximate Rentable Area of the Building and such other
buildings. Any necessary extrapolation of Basic Costs that are affected by
changes in the occupancy of the Building (including, at Landlord's option,
Taxes) to the cost that would have been incurred if the Building had been one
hundred percent (100%) occupied and Landlord had been supplying services to one
hundred percent (100%) of the Approximate Rentable Area of the Building. In
addition, if Tenant's Pro Rata Share of Basic Costs is determined based upon
increase over of Base Year and Basic Costs for the Base Year.
D-3
42
EXHIBIT E
WORK LETTER
This Exhibit is attached to and made a part of the Lease dated Aug 1, 2000 by
and between Transwestern East by Southeast, L.L.C., a Delaware limited liability
company ("LANDLORD") and IntelliReady, Inc., a Colorado corporation ("TENANT")
for space in the Building located at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxx.
This Work Letter shall set forth the obligations of Landlord and Tenant with
respect to the preparation of the Premises for Tenant's occupancy. All
improvements described in this Work Letter to be constructed in and upon the
Premises by Landlord are hereinafter referred to as the "LANDLORD'S WORK."
Landlord and Tenant acknowledge that Plans (hereinafter defined) for the
Landlord's Work have not yet been prepared and, therefore, it is impossible to
determine the exact cost of the Landlord's Work at this time. Accordingly,
Landlord and Tenant agree that Landlord's obligation to pay for the cost of
Landlord's Work shall be limited to $93,470.00 (the "MAXIMUM AMOUNT") and that
Tenant shall be responsible for the cost of Landlord Work to the extent that it
exceeds the Maximum Amount. In addition, Tenant will put forth a minimum
of $12,500.00 to be applied toward improvements actually completed within the
Premises by the Landlord's approved contractor or subcontractor. The $12,500.00
shall be due within thirty (30) days of Tenant's occupancy of the Premises.
Tenant shall be provided documentation of all costs per improvements within the
Premises. Landlord shall enter into a direct contract for the Landlord Work with
a general contractor selected by Landlord. In addition, Landlord shall have the
right to select and/or approve of any subcontractors used in connection with the
Landlord's Work.
Space planning, architectural and engineering (mechanical, electrical and
plumbing) drawings for the Landlord's Work shall be prepared at Landlord's sole
cost and expense, provided that such costs shall be included in the cost of
Landlord Work for purposes of determining if the Maximum Amount is exceeded. The
space planning, architectural and mechanical drawings are collectively referred
to herein as the "PLANS".
Tenant shall furnish any requested information and approve or disapprove any
preliminary or final layout, drawings, or plans within two (2) Business Days
after written request. Any disapproval shall be in writing and shall
specifically set forth the reasons for such disapproval. Tenant and Landlord's
Architect shall devote such time in consultation with Landlord and Landlord's
engineer as may be required to provide all information Landlord deems necessary
in order to enable Landlord's Architect and engineer to complete, and obtain
Tenant's written approval of the Plans for the Landlord Work by not later than
August 4, 2000 (the "PLANS DUE DATE"). In the event that Tenant fails to approve
the Plans by the Plans Due Date, Tenant shall be responsible for one (1) day of
Delay (as defined in the Lease) for each day during the period beginning on the
day following the Plans Due Date and ending on the date Tenant approves the
Plans.
Prior to commencing any construction of Landlord Work, Landlord shall submit to
Tenant a written estimate setting forth the anticipated cost of the Landlord
Work, including but not limited to labor and materials, contractor's fees and
permit fees. Within three (3) Business Days thereafter, Tenant shall either
notify Landlord in writing of its approval of the cost estimate, or specify its
objections thereto and any desired changes to the proposed Landlord Work. In the
event Tenant notifies Landlord of such objections and desired changes, Tenant
shall work with Landlord to reach a mutually acceptable alternative cost
estimate.
In the event Landlord's estimate and/or the actual cost of construction shall
exceed the Maximum Amount (such amounts exceeding the Maximum Amount being
herein referred to as the "EXCESS COSTS"), Tenant shall pay to Landlord such
Excess Costs upon demand. The statements of costs submitted to Landlord by
Landlord's contractors shall be conclusive for purposes of determining the
actual cost of the items described therein. The amounts payable hereunder
constitute Rent payable pursuant to the Lease, and the failure to timely pay
same constitutes an event of default under the Lease.
E-l
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If Tenant shall request any change, addition or alteration in any of the Plans
after approval by Landlord, Landlord shall have such revisions to the drawings
prepared, and Tenant shall reimburse Landlord for the cost thereof upon demand
to the extent that the cost of performing such revision cause the cost of
Landlord Work to exceed the Maximum Amount. Promptly upon completion of the
revisions, Landlord shall notify Tenant in writing of the increased cost, if
any, which will be chargeable to Tenant by reason of such change, addition or
deletion. Tenant shall, within one (1) Business Day, notify Landlord in writing
whether it desires to proceed with such change, addition or deletion. In the
absence of such written authorization, Landlord shall have the option to
continue work on the Premises disregarding the requested change, addition or
alteration, or Landlord may elect to discontinue work on the Premises until it
receives notice of Tenant's decision, in which event Tenant shall be responsible
for any Delay in completion of the Premises resulting therefrom. In the event
such revisions result in a higher estimate of the cost of construction and/or
higher actual construction costs which exceed the Maximum Amount, such increased
estimate or costs shall be deemed Excess Costs pursuant to Paragraph 5 hereof
and Tenant shall pay such Excess Costs upon demand.
Following approval of the Plans and the payment by Tenant of the required
portion of the Excess Costs, if any, Landlord shall cause the Landlord Work to
be constructed substantially in accordance with the approved Plans. Landlord
shall notify Tenant of substantial completion of the Landlord Work.
This EXHIBIT E shall not be deemed applicable to any additional space added to
the original Premises at any time or from time to time, whether by any options
under the Lease or otherwise, or to any portion of the original Premises or any
additions to the Premises in the event of a renewal or extension of the original
Term of this Lease, whether by any options under the Lease or otherwise, unless
expressly so provided in the Lease or any amendment or supplement to the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have entered into this EXHIBIT E as of
the day and year first above written.
WITNESS/ATTEST LANDLORD:
TRANSWESTERN EAST BY
SOUTHEAST, L.L.C.
a Delaware limited liability company
TRANSWESTERN INVESTMENT COMPANY, L.L.C.
as Agent
By: /s/ XXXXXX X. XXXXXXXX By: /s/ XXXXX X. XXXXX
---------------------------- ----------------------------
Name: XXXXXX X. XXXXXXXX Name: XXXXX X. XXXXX
------------------------- -------------------------
Title: MANAGING DIRECTOR Title: SENIOR VICE PRESIDENT
------------------------- -------------------------
WITNESS/ATTEST TENANT:
INTELLIREADY, INC.,
a Colorado Corporation
By: /s/ XXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
---------------------------- ----------------------------
Name: XXXXX X. XXXXX Name: XXXXXX X. XXXXX
------------------------- -------------------------
Title: ASSISTANT SECRETARY Title: CHAIRMAN
------------------------- -------------------------
X-0
00
XXXXXXX X
TENANT'S EXPANSION OPTION/RIGHT OF FIRST OFFER
This exhibit is attached to and made a part of the Lease dated Aug 1, 2000 by
and between Transwestern East by Southeast, L.L.C., a Colorado limited liability
company ("LANDLORD") and IntelliReady, Inc., a Colorado corporation ("TENANT")
for space in the Building located at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxx.
TENANT'S EXPANSION OPTION/RIGHT OF FIRST OFFER:
Upon Landlord's completion of Landlord's Work or Tenant's occupancy of Suite
136, whichever is earlier, Tenant shall have three (3) months to elect to occupy
all of Suite 126 ("Expansion Option"), comprised of approximately 9,496 square
feet ("Expansion/Right of First Offer Space") as outlined on the attached.
During said three (3) month period, Tenant shall have the option to lease all of
Suite 126 at the same terms and conditions as the Lease for Suite 136, including
an additional Thirty Seven Thousand Five Hundred and 00/100 Dollars ($37,500.00)
Letter of Credit or cash deposit. In addition, the Lease Term for Suite 126
shall be coterminous with Tenant's existing Lease and the Lease shall be amended
to reflect the terms and conditions of the Expansion Option. Said Expansion
Option shall be contingent on: (i) Tenant not being in monetary default under
the Lease at any time during said three (3) month period, and (ii) Tenant
agreeing to occupy all of Suite 126, comprised of approximately 9,496 square
feet. Upon expiration of Tenant's Expansion Option, Tenant shall have an
additional three (3) month Right of First Offer period for Suite 126 per the
following:
RIGHT OF FIRST OFFER:
Landlord hereby grants to Tenant a Right of First Offer (the "Right of First
Offer") to lease approximately 9,496 square feet of space known as Suite 126 of
the Building (the "Right of First Offer Space") on the following basis:
a. Tenant shall have five (5) Business Days after being notified by
Landlord, in writing, of Landlord's desire to lease the Right of First Offer
Space (which notice is hereinafter referred to as "Landlord's Notice") within
which to notify Landlord, in writing, if Tenant desires to exercise its Right of
First Offer as to such space. Tenant's Right of First Offer hereunder shall be
subject and subordinate to all rights of extension, expansion, of first offer or
refusal as to the Right of First Offer Space in favor of other tenants in
Building in existence as of the date of this Lease. Landlord shall have the
right to determine the exact square footage of the Right of First Offer Space at
the time such space or any portion thereof is offered to Tenant pursuant to the
provisions of this Paragraph.
b. Such space shall be offered to Tenant upon the terms and conditions
and at the rental rate Landlord would quote to third parties for the Right of
First Offer Space, if it were to become available for leasing for a lease term
scheduled to commence at the time of the addition of the Right of First Offer
Space, but in no event shall the rental rate be less than the rent which Tenant
is then paying. Such terms and conditions may include, among other things,
escalations and pass-throughs.
c. If Tenant does not notify Landlord within such five (5) day period,
it shall be conclusively presumed that Tenant does not desire to exercise its
Right of First Offer, Landlord shall be free to lease such space to anyone whom
it desires, and Tenant shall have no further rights with respect to such space.
d. If Tenant elects to add the Right to First Offer Space to the Lease,
Tenant will accept such space in its "as is" condition without any remodeling
work or tenant improvement work being performed by Landlord, except as may be
provided in Landlord's Notice. All costs in connection with preparing the Right
of First Offer Space for occupancy by Tenant, including but not limited to costs
of compliance with all applicable laws, codes, or ordinances, shall be borne by
Tenant.
F-1
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e. If Landlord has entered into lease negotiations with a third party
for space which is greater than but includes the Right of First Offer Space,
then, in order to exercise the Right of First Offer granted herein, Tenant shall
(i) be obligated to take all the space the third party would lease under said
negotiations, and (ii) be obligated to extend the Lease Term for a period of
time from the date of exercise of the Right of First Offer comparable to the
length of time that the third party was willing to lease said space.
Notwithstanding the foregoing, Tenant must take all of the Right of First Offer
Space offered by Landlord to Tenant at any particular time and may not elect to
lease a portion thereof.
f. All notifications contemplated by this Paragraph, whether from
Tenant to Landlord, or from Landlord to Tenant, shall be in writing and shall be
given in the manner provided in the Lease.
g. Tenant's right to exercise the Right of First Offer shall be
conditioned on: (i) Tenant not being in default beyond any applicable cure
period) under the Lease at the time of the exercise of the Right of First Offer
or as of the date on which Tenant's occupancy of the Right of First Offer Space
is scheduled to commence; (ii) Tenant not having subleased any portion of the
Premises or having vacated any portion of the Premises as of the date on which
Tenant's occupancy of the Right of First Offer Space is scheduled to commence.
h. In no event shall Tenant's Right of First Offer extend beyond March
1, 2001. Said Right of First Offer is exclusive to Tenant.
F-2
46
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day
and year first written above.
WITNESS/ATTEST LANDLORD:
TRANSWESTERN EAST BY
SOUTHEAST, L.L.C.
a Delaware limited liability company
TRANSWESTERN INVESTMENT COMPANY, L.L.C.
as Agent
By: /s/ XXXXXX X. XXXXXXXX By: /s/ XXXXX X. XXXXX
---------------------------- ----------------------------
Name: XXXXXX X. XXXXXXXX Name: XXXXX X. XXXXX
------------------------- -------------------------
Title: MANAGING DIRECTOR Title: SENIOR VICE PRESIDENT
------------------------- -------------------------
WITNESS/ATTEST TENANT:
INTELLIREADY, INC.,
a Colorado Corporation
By: /s/ XXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
---------------------------- ----------------------------
Name: XXXXX X. XXXXX Name: XXXXXX X. XXXXX
------------------------- -------------------------
Title: ASSISTANT SECRETARY Title: CHAIRMAN
------------------------- -------------------------
F-3
47
EXPANSION/RIGHT OF FIRST OFFER SPACE
[FLOORPLAN]
F-4
48
EXHIBIT G
RENEWAL OPTION
This exhibit is attached to and made a part of the Lease dated Aug 1, 2000 by
and between Transwestern East by Southeast, L.L.C., a Delaware limited liability
company ("LANDLORD") IntelliReady, Inc., a Colorado corporation ("TENANT") for
space in the Building located at 0000 Xxxxx Xxxxxxx, Xxxxxx, Xxxxxxxx.
RENEWAL OPTION:
Provided that no event of default or sublease has ever occurred under any term
or provision contained in this Lease and no condition exists which with the
passage of time or the giving of notice or both would constitute an event of
default pursuant to this Lease and provided that Tenant has continuously
occupied the Premises for the Permitted Use during the Lease Term, Tenant (but
not any assignee or sublessee) shall have the right and option (the "Renewal
Option") to renew this Lease, by written notice delivered to Landlord no later
than nine (9) months prior to the expiration of the initial Lease Term for an
additional term (the "Renewal Term") of sixty (60) months per term under the
same terms, conditions and covenants contained in the Lease, except that (a) no
abatements or other concessions, if any, applicable to the initial Lease Term
shall apply to the Renewal Term; (b) the Base Rental shall be equal to the
market rate for comparable office space located in the Building as of the end of
the initial Lease Term as determined by Landlord, (c) Tenant shall have no
option to renew this Lease beyond the expiration of the Renewal Term; (d) all
leasehold improvements within the Premises shall be provided in their then
existing condition (on an "As Is" basis) at the time the Renewal Term commences;
and (e) the parking charge, if applicable, shall be at the then current market
rate as determined by Landlord.
Failure by Tenant to notify Landlord in writing of Tenant's election to
exercise the Renewal Option herein granted within the time limits set forth for
such exercise shall constitute a waiver of such Renewal Option. In the event
Tenant elects to exercise the Renewal Option as set forth above, Landlord shall,
within thirty (30) days thereafter, notify Tenant in writing of the proposed
rental for the Renewal Term (the "Proposed Renewal Rental"). Tenant shall within
thirty (30) days following delivery of the Proposed Renewal Rental by Landlord
notify Landlord in writing of the acceptance or rejection of the Proposed
Renewal Rental. If Tenant accepts Landlord's proposal, then the Proposed Renewal
Rental shall be the rental rate in effect during the Renewal Term.
Failure of Tenant to respond in writing during the aforementioned
thirty (30) day period shall be deemed an acceptance by Tenant of the Proposed
Renewal Rental. Should Tenant reject Landlord's Proposed Renewal Rental during
such thirty (30) day period, then Landlord and Tenant shall negotiate during the
thirty (30) day period commencing upon Tenant's rejection of Landlord's Proposed
Renewal Rental to determine the rental for the Renewal Term. In the event
Landlord and Tenant are unable to agree to a rental for the Renewal Term during
said thirty (30) day period, then the Renewal Option shall terminate and be null
and void and the Lease shall, pursuant to its terms and provisions, terminate at
the end of the original Lease Term.
Upon exercise of the Renewal Option by Tenant and subject to the
conditions set forth hereinabove, the Lease shall be extended for the period of
such Renewal Term without the necessity of the execution of any further
instrument or document, although if requested by either party, Landlord and
Tenant shall enter into a written agreement modifying and supplementing the
Lease in accordance with the provisions hereof. Any termination of the Lease
during the initial Lease Term shall terminate all renewal rights hereunder. The
renewal rights of Tenant hereunder shall not be severable from the Lease, nor
may such rights be assigned or otherwise conveyed in connection with any
permitted assignment. Landlord's consent to any assignment of the Lease shall
not be construed as allowing an assignment of such rights to any assignee.
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EXHIBIT H
ROOFTOP COMMUNICATIONS
This exhibit is attached to and made a part of the Lease dated Aug 1, 2000 by
and between Transwestern East by Southeast, L.L.C., a Delaware limited liability
company ("LANDLORD") IntelliReady, Inc., a Colorado corporation ("TENANT") for
space in the Building located at 0000 Xxxxx Xxxxxxx, Xxxxxx, Xxxxxxxx.
The Landlord hereby grants to the Tenant a license, exercisable at any time
during the term of the Lease, to install a microwave antenna, satellite or other
antenna communications system on the roof of the Building for use in connection
with the conduct of the Tenant's business in the Premises, together with the
right to have access thereto for service and repair upon reasonable notice to
Landlord, and a license to install communications cabling between such
communications system and the Premises. The monthly fee for this license shall
be $10.00. The foregoing license is subject to the pre-existing rights of others
with respect to the roof of the Building, and, in any event, prior to installing
any such microwave antenna, satellite or other antenna communications system on
the roof of the Building, Tenant shall deliver to Landlord, for Landlord's
approval which shall not be unreasonably withheld, copies of the plans and
specifications therefore together with the name and address of the contractor
Tenant proposes to have perform such installation as well as the proposed
installation schedule. The Landlord shall have the right to approve of the
contractor and may require that Landlord's contractor perform all work on the
roof at Tenant's cost. Landlord shall have the right to designate the location
of any such antenna and shall have the right to require the antenna be relocated
from time to time. Tenant shall remove said antenna and repair any damage or
penetrations to the roof at the expiration or early termination of the Lease.
Tenant covenants and agrees to comply with all federal, state or local laws,
codes or regulations and/or private covenants and controls and shall obtain all
necessary permits and approvals with respect to the installation, use and
operation of such communications system. The Tenant shall defend, indemnify and
hold harmless the Landlord against and from any liability, claim of liability or
expense arising out of the installation, use and operation of any such
communication system or the breach by Tenant of any of its obligations under
this paragraph.
H-I
