Exhibit 10.12
OFFICE BUILDING LEASE
THIS LEASE, dated November 25, 1987, is made by and between the Aetna
Life Insurance Company ("Landlord") and American Teleconferencing Services LTD.
("Tenant").
WITNESSETH:
Landlord, in consideration of the rent to be paid and the covenants and
agreements to be performed by Tenant, as hereinafter set forth, does hereby
lease to Tenant and Tenant hereby leases from Landlord that certain office space
(the "Premises") indicated on Exhibit "A" attached hereto and made a part hereof
which contains 5,126 square feet of space, together with the pro rata share of
common floor area allowable thereto, 0 sq. Ft., for a total of 5,126 net
rentable sq. Ft. of space. Said space shall be designated Suite 600 on the
6/th/ floor of that certain Building known as Building #20 located at 00000
Xxxxxx Xxxxxxxx Xxxx, Xxxxxx 00000 (the "Building").
TO HAVE AND TO HOLD unto Leasee for a term of 6 years, commencing on the
15/th/ day of December, 1987 and ending at midnight on the 14/th/ day of
December, 1993.
In consideration of the Premises and the mutual terms, covenants and
conditions herein contained, the parties further agree as follows:
1. POSSESSION. If the Landlord, for any reason whatsoever, cannot deliver
possession of the Premises to the Tenant at the commencement of the term hereof,
this Lease shall not be void or voidable, nor shall Landlord be liable to Tenant
for any loss or damage resulting therefrom, nor, at the option of the Landlord,
shall the expiration date of the term be in any way extended, but in that event,
all rent shall be abated during the period between the commencement of said term
and the time when Landlord delivers possession.
In the event that Landlord shall permit Tenant to occupy the Premises
prior to the commencement date of the term, such occupancy shall be at the base
rental rate hereinafter provided, and such occupancy shall be subject to all
other terms and provisions of this Lease. Said early possession shall not
advance the termination date hereinabove provided. See Paragraph 37.
2. BASE RENT. Tenant shall pay to Landlord as base rent for the Premises the
sum of Four Hundred Forty Five Thousand One Hundred Seven and 93/100
($445,107.93) Dollars, which shall be payable in monthly installments of see
paragraph 28 each in advance on the first day of each calendar month during the
term hereof, provided, however, that See Paragraph 28 shall be due and payable
on the execution of this Lease for the first calendar month or part thereof and
See Paragraph 28 shall be due and payable on the first day of the last full or
partial calendar month during the term of this Lease for said last calendar
month or part thereof. Said base rent and all other sums (whether designated
additional rent or otherwise) shall be paid to Landlord at 0000 Xxxx Xxxxxx,
Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx 00000 or to such other person or at such other
place as Landlord may from time to time designate in writing. All rent payable
under this
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Lease shall be paid by Tenant without setoff for any cause whatsoever except for
such abatement as is hereinafter expressly provided for and without notice or
demand, both of which are expressly waived by Tenant. Rent and other monies due
Landlord under this Lease not paid when due shall bear interest at the rate of
prime plus one (1) percent per annum from the date the same is due until paid.
The parties agree that such late charges represent a fair and reasonable
estimate of the cost that Landlord will incur by reason of Tenant's late payment
and constitute the only damages to which Landlord is entitled for the period of
such nonpayment for Tenant's delay in making payments required (illegible)
Lease. (Base Rental Figure is subject to change based upon final approved
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plans and specifications.)
3. ADDITIONAL RENT.*
(a) Tenant shall pay to Landlord, at the times hereinafter set
forth, as additional rent an amount equal to the Tenant's percentage of any
increase in direct Expenses above the Base Direct Expenses. On or after January
1 of each calendar year subsequent to the calendar year in which this Lease
commences, Landlord will notify Tenant of (i) Landlord's estimate of the
increase, if any, in Direct Expenses over Base Direct Expenses payable by Tenant
for the current calendar year and (ii) the amount of any additional rent due
from Tenant, on account of the difference between the additional rent paid by
Tenant for the preceding calendar year and the actual additional rent for the
preceding calendar year. Tenant shall, upon receipt of such notice, pay to
Landlord with thirty (30) days of receipt of such notice, (i) a sum equal to
one-twelfth (1/12) of the amount of such estimate of the increase in Direct
Expenses for such current calendar year for each full or partial month elapsed
from January 1 of said current calendar year to the date of receipt by Tenant of
such notice and (ii) the balance of the additional rent due from Tenant for the
preceding calendar year. Following receipt of such notice Tenant shall pay to
Landlord, on the first day of each succeeding calendar month during said
calendar year, one-twelfth (1/12) of the amount of such estimate of the increase
in Direct Expenses for said calendar year. If Landlord's estimate of additional
rent is more than the actual additional rent for any calendar year the amount of
such excess paid by Tenant shall be credited against the next installments of
additional and base rent as they become due but not credit shall be due for any
decrease in Direct Expenses below the Base Direct Expenses. In the event the
term of this Lease or any extension or renewal hereof ends on a day other than
the last day of a month, the amount of additional rent payable by Tenant for
such partial month shall be prorated on the basis of a thirty-day month.
Notwithstanding that the Lease has terminated, the amount of any additional rent
due hereunder shall be payable promptly upon receipt of a statement from
Landlord, and conversely any credit due Tenant for any excess of said additional
rent shall be promptly refunded after Landlord's calculation thereof.
"Base Direct Expenses" are $4.50 per usable square feet of Building
(b) "Direct Expenses" shall be defined as the sum of any and all
costs, expenses, and disbursements of every kind and character which Landlord
shall incur, pay, or become obligated to pay in any calendar year in connection
with the ownership, operation,
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* The provisions set forth in this paragraph shall not take effect until
January 1, 1989 and any additional rent due above building "Base Direct
Expenses", shall not reflect any increases prior to January 1, 1989.
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maintenance, repair, and security of, the Building and land upon which the
Building is located and all related improvements and appurtenances thereto,
which shall include but not be limited to the following: real estate taxes and
assessments; rent taxes; gross receipts taxes; water and sewer charges;
insurance premiums; license, permit and inspection charges; utilities; service
contracts; labor; management of the Building; air conditioning and heating;
elevator maintenance; supplies; materials; equipment; tools; security; garbage
service; maintenance and upkeep costs of all parking areas, drives, lawns,
trees, shrubbery and common proceedings increases in real estate taxes and
assessments and the applicability to, or the validity of, any statute,
ordinance, rule or regulation affecting the Building or land which might
increase direct expenses.
"Direct Expenses" shall not include: the cost of capital improvements or
replacements; expenses for repairs, replacements, and general maintenance paid
by proceeds from insurance or by Tenant or other third parties; alterations
attributable solely to Tenants of the building other than Tenant; principal and
interest payments made by Landlord on mortgages on the Building; depreciation;
leasing commissions, and any state of federal income franchise, estate or
inheritance taxes.
(c) "Tenant's Percentage" shall be 4.91%.
4. SECURITY DEPOSIT. See Paragraph 36.
5. USE. Tenant shall use the Premises for general office purposes and
conducting its telecommunication business and shall not use or permit the
Premises to be used for any other purpose without the prior written consent of
Landlord.
Tenant shall not do or permit anything to be done in or about the Premises
nor bring or keep anything therein which will in any way increase the existing
premium for or affect or cause cancellation of any fire or other insurance
policy upon the Building or any part thereof or any of its contents. Tenant
shall not do or permit anything to be done in or about the Premises which will
in any way obstruct or interfere with the rights of other Tenants or occupants
of the Building or injure or annoy them or use or allow the Premises to be used
for any improper, immoral, unlawful or objectionable purpose, nor shall Tenant
cause, maintain or permit any nuisance in, on or about the Premises. Tenant
shall not commit or suffer to be committed any waste in or upon the Premises.
6. COMPLIANCE WITH LAW. Tenant shall not use or permit anything to be done in
or about the Premises which will in any way conflict with any law, statute,
ordinance or governmental rule, regulation or requirement now in force or which
may hereafter be enacted or promulgated. Tenant shall, at its sole cost and
expense, promptly comply with all laws, statutes, ordinances and governmental
rules, regulations or requirements of any board of fire insurance underwriters
or other similar bodies now or hereafter constituted relating to, or affecting
the condition, use or occupancy of the Premises, excluding structural changes
not related to or affected by Tenant's improvements or acts. The judgment of any
court of competent jurisdiction or the admission of Tenant in any action against
Tenant, whether Landlord be a party thereto or not, that Tenant has violated any
law, statute, ordinance or governmental rule, regulation or requirement, shall
be conclusive of that fact between the Landlord and Tenant.
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7. ALTERATIONS AND ADDITIONS. Tenant shall not make or suffer to be made any
alterations, additions or improvements to or of the Premises or any part thereof
without the written consent of the Landlord. Any alterations, additions or
improvements to or of the Premises, including, but not limited to, wallcovering,
paneling and built-in cabinet work, shall become a part of the realty and belong
to the Landlord upon their installation and shall be surrendered with the
Premises. Any moveable furniture and trade fixtures shall remain the property of
Tenant. Any alterations, additions or improvements shall be made by Tenant, at
Tenant's sole cost and expense, and Landlord shall have no liability therefor.
Any contractor or person selected by Tenant to make the same must first be
approved in writing by the Landlord. Upon the written demand by Landlord, given
at least thirty (30) days prior to the expiration of the term hereof or any
renewal or extension thereof, Tenant shall, at Tenant's sole cost and expense,
forthwith and with all due diligence (i) remove any alterations, additions, or
improvements made by Tenant, designated by Landlord to be removed, and (ii)
repair any damage to the Premises caused by such removal. Tenant shall have the
right to remove, upon lease termination, any additional air conditioning units
which it may have had installed per Section 14. Landlord shall not unreasonably
demand Tenant to remove said equipment.
8. REPAIRS.
(a) By taking possession of the Premises, Tenant shall be deemed to
have accepted the Premises as being in good, sanitary order, condition and
repair.* Tenant shall, at Tenant's sole cost and expense, keep the Premises
and every part thereof in good condition and repair, damage thereto from causes
beyond the reasonable control of Tenant and ordinary war and tear excepted.
Tenant shall, upon the expiration of earlier termination of the term hereof or
any renewal or extension thereof, surrender the Premises to the Landlord in good
condition, ordinary wear and tear and damage from causes beyond the reasonable
control of Tenant excepted. Except as may be specifically provided in an
addendum hereto, Landlord shall have no obligation whatsoever to alter, remodel,
improve, repair, decorate or paint the Premises or any part thereof and the
parties hereto affirm that Landlord has made no representations to Tenant
respecting the condition of the Premises or the Building except as specifically
set forth herein or in any addendum hereto.
(b) Notwithstanding the provisions of Article 8(a) Landlord shall
repair and maintain the structural portion of the Building, including the basic
plumbing, air conditioning, heating, and electrical systems, installed or
furnished by Landlord, unless such maintenance and repairs are caused in part or
in whole by the act, neglect, fault or omission of the Tenant, its agents,
servants, employees or invitees, in which case Tenant shall pay to Landlord the
reasonable cost of such maintenance and repairs. Except as provided in Article
19 hereof, there shall be no abatement of rent and no liability of Landlord (i)
for any failure to make any repairs or to perform any maintenance unless such
failure shall persist for an unreasonable time after written notice of the need
of such repairs or maintenance is given to Landlord by Tenant, or (ii) by reason
or any injury to or interference with Tenant's business arising from the making
of any
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* Upon occupancy, Tenant and Building Manager shall inspect the Premises to
determine if the tenant finish is substantially complete per the attached
floor plan and establish a list of items, if any, remaining to be finished.
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repairs, alterations or improvements in or to any portion of the Building or the
Premises or in or to fixtures, appurtenances and equipment therein. Tenant
waives the right, under any law, statue, or ordinance now or hereafter in
effect, to make repairs at Landlord's expense.
9. LIENS. Tenant shall keep the Premises and the property in which the
Premises are situated free from any lien arising out of any work performed,
materials furnished or obligations incurred by Tenant. Landlord may require, at
landlord's sole option, that Tenant provide Landlord, at Tenant's sole cost and
expense, a payment and performance bond in the amount equal to one and one-half
(1-1/2) times the estimated cost of any improvements, additions, or alterations
to be made by Tenant with respect to the Premises, to insure Landlord against
any liability for mechanics' and materialmen's liens and to insure completion of
the work.
10. ASSIGNMENT AND SUBLETTING. Tenant shall not assign, transfer, mortgage,
pledge, hypothecate or encumber this Lease or any interest herein and shall not
permit or suffer the same to occur by reason of the operation of law, and shall
not sublet the Premises or any part thereof, or any right or privilege
appurtenant thereto, or permit or suffer any other person (the employees,
agents, servants and invitees of Tenant excepted) to occupy or use the Premises,
or any portion thereof, without the prior written consent of Landlord, which
consent shall not be unreasonably withheld. A consent to any such assignment,
subletting, occupation or use by any other person shall not be deemed to be a
consent to any subsequent assignment, subletting, occupation or use by another
person. Any such assignment or subletting without such consent shall be void,
and shall, at the option of the Landlord, constitute a default under the Lease.
11. HOLD HARMLESS. Tenant shall indemnify and hold harmless Landlord against
and from (i) any and all claims arising from Tenant's use of the Premises for
the conduct of its business or from any activity, work or other things done
permitted or suffered by the Tenant in or about the Premises, the Building and
the property upon which the Building is located, (ii) any and all claims arising
from any breach of default in the performance of any obligation on Tenant's part
to be performed under the terms of this Lease, or arising from any act or
negligence of the Tenant, and (iii) all cost, attorney's fees, expenses and
liabilities incurred in connection with any such claim or any action or
proceeding brought thereon. In the event any case, action or proceeding be
brought against Landlord by reason of any such claim, Tenant shall, upon written
notice from Landlord, defend the same, at Tenant's sole cost and expense, by
counsel reasonably satisfactory to Landlord. Tenant as a material part of the
consideration to Landlord hereby assumes all risk of damage to property or
injury to persons, in, upon or about the Premises, the Building and the property
upon which the Building is located from any cause occasioned by Tenant or any
officer, agent, employee, licensee or invitee of Tenant other than Landlord's
negligence, and Tenant hereby waives all claims in respect thereof against
Landlord.
Landlord or its agents shall not be liable to Tenant or to Tenant's
officers, employees, agents, licensees, or invitees, or to any other person
whomsoever, for any damage to property entrusted to employees of the Building,
nor for any loss or damage to any property or any injury to or damage to persons
resulting from any part of the Building or the land upon which the Building is
located or related improvements or appurtenances thereto becoming out of repair,
any defect in or failure of pipes or wiring, the backing up of any drains or the
bursting or leaking of
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any pipes, faucets and plumbing fixtures, any gas, water, steam, electricity,
oil or rain leaking, escaping or flowing into the Premises from any part of the
Building, or from the pipes, appliances, or plumbing works therein or from the
roof, street, or subsurface or from any other place resulting from dampness or
any other cause whatsoever, theft, fire, explosion, act of God, riot, war,
insurrection, court order or order of governmental authority or any other matter
beyond the control of the Landlord, unless caused by or due to the negligence of
Landlord, its agents, servants or employees. Landlord or its agents shall not be
liable for interference with the light or other incorporeal hereditaments, loss
of business by Tenant, nor shall Landlord be liable for any latent defect in the
Premises or in the Building. Tenant shall give prompt written notice to Landlord
in case of fire or accidents in the Premises or in the Building or of defects
therein or in the fixtures or equipment located therein.
12. SUBROGATION. Each party hereby waives its respective right of recovery
against the other for any loss or damage covered by fire, extended coverage and
other property insurance policies to the extent that such party's loss or damage
is covered under its insurance policies. Each party shall immediately give
notice to its insurance carriers and obtain any endorsements required to give
effect to the foregoing waiver.
13. INSURANCE. With respect to the Premises, Tenant shall, at Tenant's sole
cost and expense, obtain and keep in force at all times during the term of this
Lease, comprehensive general liability insurance, including property damage, in
the amount of at least One Million Dollars ($1,000,000) combined single limit,
insuring Landlord and Tenant against any liability arising out of the ownership,
use occupancy or maintenance of the Premises and all areas appurtenant thereto.
The limit of said insurance by Tenant shall have a Landlord's protective
liability endorsement attached thereto. Insurance required hereunder shall be in
companies licensed in the state in which the Premises are located and shall have
a rating of A or better in "Best's Insurance Guide" and a financial rating of
Class XII or better.
Mutual insurance companies may be used only if they are non-assessable.
No Policy shall be cancelable or subject to reduction of coverage except after
thirty (30) days written notice to the Landlord. Landlord shall receive
evidence of insurance upon request.
14. SERVICES AND UTILITIES. Provided that Tenant is not in default hereunder,
Landlord agrees to furnish to the Premises during reasonable hours of generally
recognized business days, to be determined by Landlord at its sole discretion,
and subject to the rules and regulations of the Building, electricity for normal
lighting and fractional horsepower office machines, heat and air conditioning
required in the Landlord's judgment for the comfortable use and occupation of
the Premises, and janitorial service.* Landlord shall also maintain and keep
lighted the common stairs, common entries and toilet rooms in the Building.
Landlord shall not be liable for, and Tenant shall not be entitled to, any
reduction in the rent due hereunder by reason of Landlord's failure to furnish
any of the foregoing when such failure is caused by
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* Building operating hours are 7:00 a.m. to 6:00 p.m., Monday through Friday,
and 8:00 a.m. to 12:00 p.m. on Saturday. Operating services provided to
Tenant after building operating hours are subject to Landlord's rights to
charge Tenant for additional operating services contained in this Paragraph.
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accident, breakage, repairs, strikes, lockouts or other labor disturbances or
disputes of any character, or by any other cause, similar or dissimilar, beyond
the reasonable control of Landlord. Landlord shall not be liable under any
circumstances for any loss of or injury to property, however occurring, through
or in connection with or incidental to failure to furnish any of the foregoing.
Wherever machines or equipment are used in the Premises which affect the
temperature otherwise maintained by the air conditioning system, or if it is
desired by Tenant to have additional air conditioning installed, Landlord
reserves the right to install supplementary air conditioning units in the
Premises and the cost thereof, including the cost of installation,* and the
cost of operation and maintenance thereof, shall be paid by Tenant and Landlord
upon demand by Landlord.
Tenant shall not, without the prior written consent by Landlord, use any
apparatus or device in the Premises, including by way of illustration and not
limitation, electronic data processing machines, punch card machines, and
machines using in excess of 120 volts, which will in any way increase the amount
of electricity used above that usually furnished or supplied for the use of the
Premises as general office space; nor connect any apparatus or device with
electric current lines except through existing electrical outlets in the
Premises. If Tenant desires to use water or electric current in excess of that
usually furnished or supplied for the use of the Premises as general office
space, Tenant shall request the same from landlord in writing. Landlord may
refuse such request, but such refusal shall not be unreasonable. If such
request is granted, Landlord shall cause a water meter or electrical current
meter to be installed in the Premises to measure the amount of water or electric
current consumed. The Tenant agrees to pay promptly upon demand therefor from
Landlord, the cost of any such meters and of the installation, maintenance and
repair thereof, and the charges of all water and electric current consumed as
shown by said meters in excess of the amount consumed in connection with the use
of the Premises as general office space, at the rates charged for such services
by the utility furnishing the same, plus any additional expenses incurred in
keeping account of the water and electric current so consumed. If a separate
meter is not installed, the Tenant agrees to pay the cost for such excess water
and electric current as established by an estimate of the amount of such excess
use made by a utility company or electrical engineer.
15. PROPERTY TAXES. Tenant shall pay or cause to be paid, before delinquency,
any and all taxes levied or assessed during the term hereof or any extension or
renewal thereof, upon any or all Tenant's leasehold improvements, equipment,
furniture, fixtures and personal property located in the Premises. In the event
any or all of Tenant's leasehold improvements, equipment, furniture, fixtures
and personal property located in the Premises, shall be assessed and taxed with
the Building, Tenant shall pay to Landlord its share of such taxes within ten
(10) days after delivery to Tenant of a written statement by Landlord setting
forth the amount of such taxes applicable to Tenant's property.
16. RULES AND REGULATIONS. Tenant shall faithfully comply with the rules and
regulations attached to and made part of this Office Building Lease. Landlord
reserves the right
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* Which Landlord agrees to amortize over the then remaining lease term at 1%
over the then current prime interest rate established by Boatmen's First
National Bank of Kansas City.
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from time to time to make all reasonable modifications to said rules. The
addition to and modification of those rules shall be binding upon Tenant upon
delivery of a copy of them to Tenant. Landlord shall not be responsible to
Tenant for the nonperformance of any of said rules by any other Tenants or
occupants.
17. HOLDING OVER. If Tenant remains in possession of the Premises or any part
thereof after the expiration of the term hereof or any extension or renewal
thereof, with the express written consent of Landlord, such occupancy shall be a
tenancy from month to month at a rental rate to be determined by Landlord
subject to increase and decrease in the additional rent as provided in Article 3
hereof, plus all other charges payable hereunder, and upon all the terms and
conditions hereof applicable to a month to month tenancy.
18. ENTRY BY LANDLORD. Landlord reserves and shall have the right to enter the
Premises at any and all times, to inspect the same, to supply any service to be
provided by Landlord to Tenant hereunder, including janitorial service, to show
the Premises to prospective purchasers or tenants, to post notices of
nonresponsibility, and to alter, improve or repair the Premises and any portion
of the Building that Landlord may deem necessary or desirable, all without
reduction of rent. For the purpose of alterations, improvements or repairs,
Landlord may erect scaffolding and other necessary structures where reasonably
required by the character of the work to be performed, always providing that the
entrance to the Premises hall not be blocked thereby and further providing that
the business of the Tenant shall not be interfered with unreasonably. Tenant
hereby waives any claim for damages or for any injury or inconvenience to or
interference with Tenant's business, any loss of occupancy or quiet enjoyment of
the Premises, and any other loss occasioned thereby. For each of the aforesaid
purposes, Landlord shall at all times have and retain a key with which to unlock
all of the doors in, upon and about the Premises, including Tenant's vaults,
safes and files, and Landlord shall have the right to use any and all means
which Landlord may deem proper to open said doors in an emergency in order to
obtain entry to the Premises without liability to Tenant except for any failure
to exercise due care for Tenant's property. Any entry to the Premises obtained
by landlord by any of said means, or otherwise, shall not under any
circumstances be construed or deemed to be a forceable or unlawful entry into,
or a detainer of the Premises, or an eviction of Tenant from the Premises or any
portion thereof.
19. RECONSTRUCTION. In the event the Building is damaged by Fire or other
perils covered by extended coverage insurance, Landlord agrees to make the
repairs forthwith and this Lease shall remain in full force and effect, except
that Tenant shall be entitled to a proportionate reduction in the rent based on
the extent to which the damages and the repair work shall materially interfere
with the business carried on by the Tenant in the Premises. If the damage is due
to the fault or neglect of Tenant or its employees, there shall be no reduction
in rent.
In the event the Building is damaged as a result of any cause other than
the perils covered by fire and extended coverage insurance, then Landlord shall
make the repairs forthwith, provided the extent of the damage is less than ten
percent (10%) of the then full replacement cost of the Building. In the event
the damage is greater than ten percent (10%) of the full replacement cost of the
Building, Landlord shall have the option to repair such damage or terminate this
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Lease. Written notice of such election shall be given to Tenant within Sixty
(60) days of the date of the damage. If the damage is to be repaired, Landlord
agrees to make the repairs forthwith and this lease shall continue in full force
and effect but the rent shall be proportionately reduced as provided above in
this Article. If this Lease is to be terminated, the termination date shall be
stated in said notice which shall be no less than thirty (30) days and no more
than sixty (60) days following the date of such notice. This Lease shall expire
and all interest of the Tenant in the Premises shall terminate on the date
stated in such notice and the rent shall be proportionately reduced as provided
above in this Article up to date of such termination.
Notwithstanding anything to the contrary contained in this Article,
Landlord shall have no obligation to repair, reconstruct or restore the Building
when the damage resulting from any casualty occurs during the last twelve (12)
months of the term hereof or any extension or renewal thereof.
Landlord shall have no obligation to repair any damage to, or to make
any repairs or replacements of, any panels, decorations, office fixtures,
railings, floor coverings, partitions, or any other property installed in the
Premises by Tenant.
The Tenant shall not be entitled to any compensation or damages from
Landlord for loss of the use of the whole or any part of the Premises or
Tenant's personal property or any inconvenience or annoyance occasioned by such
damage, repair, reconstruction or restoration.
20. DEFAULT. The occurrence of any one or more of the following events shall
constitute a default and breach of this Lease by Tenant.
(a) The vacating or abandonment of the Premises by Tenant.
(b) The failure by Tenant to make any payment of rent or any other
payment required to be made by Tenant hereunder, as and when due, where such
failure shall continue for a period of three (3) days after written notice
thereof by Landlord to Tenant.
(c) The failure by Tenant to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by the
Tenant, other than described in Article 20(b) above, where such failure shall
continue for a period of sixty (60) days after written notice thereof by
Landlord to Tenant; provided, however, that if the nature of Tenant's default is
such that more than sixty (60) days are reasonably required for its cure, then
Tenant shall not be deemed to be in default if Tenant commences such cure within
said sixty (60) day period and thereafter diligently prosecutes such cure to
completion.
(d) The making by Tenant of any general assignment or general
arrangement for the benefit of creditors; or the filing by or against Tenant of
a petition to have Tenant adjudged a bankrupt or a petition for reorganization
or arrangement under any law relating to bankruptcy unless, in the case of a
petition filed against Tenant, the same is dismissed within sixty (60) days; or
the appointment of a trustee or a receiver to take possession of substantially
all of Tenant's assets located at the Premises or of Tenant's interest in this
Lease, where
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possession is not restored to Tenant within thirty (30) days; or the attachment,
execution or other judicial seizure of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where such
seizure is not discharged in thirty (30) days.
20.A. A Landlord shall in no event be charged with default in the performance of
any of its obligations hereunder unless and until Landlord has failed to perform
such obligations within 60 days (or such additional time as is reasonably
required to correct any such default) after notice to Landlord by Tenant
properly specifying wherein Landlord has failed to perform any such obligations.
If the holder of record of any mortgage covering the Premises has given
prior written notice to Tenant that it is the holder of a mortgage and that such
notice includes the address at which notices to such holder are to be sent, then
Tenant agrees to give the holder of record of such mortgage notice
simultaneously with any notice given under this paragraph 20(a) to Landlord to
correct any default of Landlord and agrees that the holder of record of such
mortgage shall have the right, with 60 days (or such additional time as is
reasonably required to correct any default) after receipt of said notice, to
correct or remedy such default before Tenant may take any action under this
Lease by reason of such default. Any notice of default given Lessor shall be
null and void unless simultaneous notice has been given to said mortgagee.
21. REMEDIES IN DEFAULT. No such default or breach shall relieve Tenant or
Tenant's liabilities and obligations under this Lease whether or not the
Premises shall be relet. In any such event Tenant shall pay Landlord the base
and additional rent and all of other sums required to be paid by Tenant up to
the time of such event. In the event of any default or breach by Tenant,
Landlord may at any time thereafter, with or without notice or demand and
without limiting Landlord in the exercise of any other right or remedy which
Landlord may have by reason of such default or breach:
(a) Terminate Tenant's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Premises to Landlord. In such event
Landlord shall be entitled to recover from Tenant all damages it may incur by
reason of Tenant's default including, but not limited to, the cost of recovering
possession of the Premises, expenses of reletting, including necessary
renovation and alteration of the Premises, reasonable attorneys' fees, any real
estate commission actually paid, the difference between the base rent and
additional rent reserved in this Lease from the date of such default or breach
to the date of the expiration of the term hereof as renewed and extended and the
then fair and reasonable rental value of the Premises for the same period, and
that portion of the leasing commission paid by Landlord and applicable to the
unexpired term of this Lease, all of which amount shall be immediately due and
payable from Tenant to Landlord. Unpaid installments of rent or other sums shall
bear interest from the date due at the rate of twelve percent (12%) per annum.
(b) Landlord, as agent for Tenant, may immediately re-enter the
Premises and take possession thereof and all permanent improvements thereon and
remove or put out Tenant or any other persons who may be thereon by force,
summary action or otherwise together with all
10
personal property found therein and such property may be stored in a public
warehouse or elsewhere at the cost of and for the account of Tenant, all without
service or notice and make such alterations and repairs as may be necessary in
order to relet the Premises, and relet the Premises or any part thereof, or said
Premises with additional Premises, for such term or terms (which may be greater
or less than the period which would otherwise have constituted the balance of
the term of this Lease) and at such rental or rentals and upon such other terms
and conditions as Landlord in its sole discretion may deem advisable; upon each
such reletting all rentals received by Landlord from such reletting shall be
applied, first to the payment of any indebtedness other than rent due hereunder
from Tenant to Landlord, second, to the payment of any costs and expenses of
such reletting, including brokerage fees and attorneys' fees and of costs of
such alterations and repairs, third, to the payment of rent due and unpaid
hereunder, and the residue, if any, shall be held by Landlord and applied in
payment of future rent or damage as the same may become due and payable
hereunder. If such rentals received from such reletting during any month be less
than that to be paid during that month by Tenant hereunder, Tenant shall pay any
such deficiency to landlord, the same to be calculated and paid monthly. No such
re-entry or taking possession of the Premises by Landlord shall be construed as
an election of its part to terminate this Lease unless a written notice of such
intention be given to Tenant or unless the termination thereof be decreed by a
court of competent jurisdiction. If Tenant shall after default voluntarily give
up possession to Landlord, deliver to Landlord the keys to the Premises, or
both, such actions shall be deemed to be in compliance with Landlord's rights
and the acceptance thereof by Landlord shall not be deemed to constitute a
surrender of the leased Premises. Notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect to terminate this Lease
for such previous breach. Should Landlord at any time terminate this Lease for
any breach, in addition to any other remedies it may have, it may recover from
Tenant all damages it may incur by reason of Tenant's default, as provided in
subparagraph (a) hereof.
In case suit shall be brought for recovery of possession of the Premises,
for the recovery of rent, damages or other amount due under the provisions of
this Lease, or because of the breach of any other covenant herein contained on
the part of Tenant to be kept or performed, and a breach shall be established,
Tenant shall pay to Landlord all expenses incurred therefor, including
reasonable attorneys' fees. Landlord shall not be obligated to notify Tenant of
the due date of rent nor demand payment thereof on its due date, the same being
expressly waived by Tenant. The acceptance of any sums of money from Tenant
after the expiration of any three (3) day or thirty (30) day notice as above
provided shall be taken to be a payment on account by Tenant and shall not
constitute a waiver by Landlord or any rights, nor shall it reinstate the Lease
or cure a default on the part of Tenant.
22. EMINENT DOMAIN. If all or any part of the Premises or the Building of which
it is a part is taken or condemned (both and either of which terms includes
within their meaning a conveyance in lieu of condemnation upon the threat
thereof by competent authority for any public use of purpose, then Landlord
shall have the option for thirty (30) days following such taking to terminate
this Lease if Landlord, in its sole discretion, deems repair or restoration
commercially unfeasible or not in its best interest. If a part of the Premises
is taken or condemned and the remaining portions of the Premises are unsuitable
for the purposes of
11
Tenant's original occupancy, then Tenant shall have the option for
thirty (30) days following such taking to terminate this Lease. Any such
termination is to be effective as of the date of the taking. In the event this
Lease is not so terminated, then this Lease shall remain in full force and
effect but Landlord shall promptly restore the Premises to a condition
comparable to its condition immediately prior to such taking (less the portion
lost in the taking). Rents payable hereunder shall be reduced during the period
of restoration and after such taking in proportion to the reduction in the
number of square feet of net rentable floor area of the Premises occasioned by
such restoration and taking. Except as herein otherwise specifically provided,
Landlord shall be entitled to all awards and process payable by reason of such
taking, whether whole or partial, as damages or otherwise. Tenant hereby
expressly waives any right or claim to any part thereof and assigned to Landlord
its interest therein, provided, however, that where such taking results in a
termination of this Lease pursuant to this paragraph, then Tenant shall be
entitled to that portion, if any, of an award made to or for the benefit of
Tenant specifically for the loss of Tenant's business, or depreciation to and
cost of removal of trade fixtures, exclusive of leasehold improvements, owned by
Tenant which Tenant is entitled to remove. Tenant shall have no claim against
Landlord condemning authority or award for the value of the unexpired term of
this Lease.
23. OFFSET STATEMENT. Tenant shall at any time and from time to time upon not
less than ten (10) days' prior written notice from Landlord execute, acknowledge
and deliver to Landlord a statement in writing, (a) certifying that this Lease
is unmodified and in full force and effect (or, if modified, stating the nature
of such modification and certifying that this Lease as so modified, is in full
force and effect), and the date to which the rental and other charges are paid
in advance, if any, and (b) acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on the part of the Landlord hereunder, or
specifying such defaults if any are claimed. Any such statement may be relied
upon by any prospective purchaser or encumbrancer of all or any portion of the
real property of which the Premises are a part.
24. PARKING. Tenant shall have the right to use in common with other tenants
or occupants of the Building free of charge the parking facilities of the
Building, if any, subject to rules and regulations, and any other charges of
Landlord for such parking facilities which may be established or altered by
Landlord at any time or from time to time during the term hereof. Landlord shall
provide 5 covered parking spaces free of charge during the term of this Lease.
25. RIGHT TO RELOCATE. Notwithstanding anything herein to the contrary,
Landlord shall in all cases retain the right and power to relocate Tenant with
within the Building in space which is comparable in size and location and suited
to Tenant's use, such right and power to be exercised reasonably and such
relocation to be made at Landlord's sole cost and expense. Landlord shall not be
liable or responsible for any claims, damages or liabilities in connection with
or occasioned by such relocation. Landlord's reasonable exercise of such right
and power shall include, but shall in no way be limited to, a relocation to
consolidate the rentable area occupied in order to provide Landlord services
more efficiently, or a relocation to provide contiguous vacant space for a
prospective Tenant.
12
26. AUTHORITY FOR EXECUTION.
(a) Corporate Authority. If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation, in accordance with a duly adopted resolution of the board of
directors of said corporation or in accordance with the by-laws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms.
(b) Partnership Authority. If Tenant is a general or limited
partnership, each individual executing this Lease on behalf of said partnership
represents and warrants that he is a general partner of said partnership and
that he has authority to execute and deliver this Lease on behalf of said
partnership in accordance with the Partnership Agreement, and that this Lease is
binding upon said partnership in accordance with its terms and enforceable
against the assets of the partnership and the general partners, individually.
27. GENERAL PROVISIONS.
(a) Plats and Riders. Clauses, plats and riders, if any, signed by
the Landlord and the Tenant and endorsed on or affixed to this Lease are a part
hereof.
(b) Waiver. The waiver by Landlord of any term, covenant or
condition herein contained shall not be deemed to be a waiver of such term,
covenant or condition on any subsequent breach of the same or any other term,
covenant or condition herein contained. The subsequent acceptance of rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any term, covenant or condition of this Lease.
(c) Notices. All notices and demands which may or are to be required
or permitted to be given by either party to the other hereunder shall be in
writing. All notices and demands by the Landlord to the Tenant shall be sent by
United States mail, postage prepaid, addressed to the Tenant at the Premises, or
to such other place as Tenant may from time to time designate in a notice to
Landlord. All notices and demands by the Tenant to the Landlord shall be sent by
United States Mail, postage prepaid, addressed to Landlord at the place where
rent is payable, or to such other person or place as the Landlord may from time
to time designate in a notice to the Tenant.
(d) Joint Obligation. If there be more than one Tenant, the
obligations hereunder imposed upon Tenants shall be joint and several.
(e) Marginal Headings. The marginal headings and Article titles to
the Articles of this Lease are not a part of this Lease and shall have no effect
upon the construction or interpretation of any part hereof.
(f) Time. Time is of the essence of this Lease and each and all of
its provisions in which performance is a factor.
13
(g) Recordation. Neither Landlord nor Tenant shall record this Lease
or a short form memorandum hereof without the prior written consent of the other
party.
(h) Quiet Possession. Upon Tenant paying the rent reserved hereunder
and observing and performing all of the covenants, conditions and provisions on
Tenant's part to be observed and performed hereunder. Tenant shall have quiet
possession of the Premises for the entire term hereof, subject to all provisions
of this Lease.
(i) Prior Agreements. This Lease contains all of the agreements of
the parties hereto with respect to any matter in connection with the Lease of
the Premises and Tenant's use of the Premises, the Building and the property
upon which the building is located and no prior agreements or understandings
pertaining to any such matters shall be effective for any purpose. No provision
of this Lease may be amended or added to except by an agreement in writing
signed by the parties hereto or their respective successors in interest. This
Lease shall not be effective or binding on any party until fully executed by
both parties hereto.
(j) Inability to Perform. This Lease and the obligations of the
Tenant hereunder shall not be affected or impaired because the Landlord is
unable to fulfill any of its obligations hereunder or is delayed in doing so, if
such inability or delay is caused by reason or strike, labor troubles, acts of
God, or any other cause beyond the reasonable control of the Landlord.
(k) Attorneys' Fees. In the event of any action or proceeding brought
by either party against the other under this Lease the prevailing party shall be
entitled to recover all costs and expenses including the fees of its attorneys
in such action or proceeding in such amount as the court may adjudge reasonable.
(l) Vesting of Landlord's Title to Another. In the event title to the
Building and the property upon which the Building is located becomes vested in a
party other than Landlord, whether by sale, exchange or otherwise, Landlord's
duties, obligations and liabilities to Tenant under this Lease shall terminate
as of the date title vested in such other party.
(m) Subordination and Attornment. Tenant hereby subordinates all of
Tenant's rights, title and interest under this Lease to the lien of any existing
and all future mortgages and deeds of trust on the Building and the property
upon which it is located. Tenant agrees to execute and deliver promptly such
agreements and other documents as Landlord may request from time to time to
confirm and acknowledge the foregoing subordination agreement. /*/ Tenant
hereby appoints Landlord as Tenant's agent to execute and deliver all such
agreements and other documents for and in behalf of Tenant. In the event the
lien of any such mortgage or deed of trust is foreclosed or title to said
property is conveyed in lieu of foreclosure, Tenant hereby agrees to attorn to
the purchaser of the property at any foreclosure sale and the grantee of any
such deed and to confirm this Lease and recognize such purchaser or grantee as
the Landlord hereunder. The provisions of this Article to the contrary
notwithstanding, and so long as Tenant is not in default hereunder, this Lease
shall remain in full force and effect for the full term hereof.
-----------------------
* If Tenant has failed to do so within five days of such written request by
Landlord, then
14
(n) Name. Tenant shall not use the name of the Building or of the
development in which the Building is situated for any purpose other than as an
address of the business to be conducted by the Tenant in the Premises.
(o) Severability. Any provision of this Lease which shall prove to be
invalid, void or illegal shall in no way affect, impair or invalidate any other
provision hereof and such other provision shall remain in full force and effect.
(p) Cumulative Remedies. No remedy or election hereunder shall be
deemed exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
(q) Choice of Law. This Lease shall be governed by the laws of the
state in which the Premises are located.
(r) Signs and Auctions. Tenant shall not place any sign upon the
Premises or Building or conduct any auction thereon without Landlord's prior
written consent.
28. [illegible]
29. TENANT FINISH. Landlord agrees to build out the Premises in accordance
with attached Exhibit "A" at Landlord's expense. Landlord has a firm contract to
build out the premises in accordance with Exhibit "A" at a cost of $49,000.00.
This includes all work and materials. Any increase in Tenant Finish costs over
$49,000.00 due to changes made to Exhibit "A" by Tenant shall be paid by Tenant.
30. MOVING ALLOWANCE. Landlord shall provide Tenant with a moving allowance of
$21,000.00 which shall be due upon occupancy and payable upon Tenant submitting
an invoice to Landlord's managing agent.
31. OPTION TO RENEW. Provided Tenant is in compliance with all terms and
conditions of this Lease, Landlord grants Tenant two (2) five (5) year options
to renew this Lease at a rate comparable to those lease rates on leases made in
the building over the then previous 6 months for space on floors 2-8. If Tenant
exercises the first 5 year renewal option, the first $10,252 of rent due for the
renewal period shall be fully abated and forgiven by Landlord.
32. EXPANSION. Landlord agrees to make his best efforts to accommodate
Tenant's expansion needs provided Tenant communicates his expansion needs to
Landlord in a timely fashion. Landlord agrees to grant Tenant an option on space
on the fifth, sixth and seventh floors of the Building, subject to existing
lease commitments, when leases on those floors come due. Tenant shall have five
(5) days in which to respond in writing to landlord's written notification to
Tenant. Absent a written response from Tenant, Landlord may then lease and
space(s) to another party. The terms and conditions on any additional space
leased by Tenant shall be the same as this Lease, except that the Base Rental
rate shall be a rate comparable to those lease rates on leases made in the
building over the then previous 6 months for space of floors 2-8. This option
shall run through the initial term of this Lease.
33. ACCESS. Landlord agrees that Tenant, its employees, designees, agents,
licensees or invitees shall have 24 hour per day, 7 day per week access to
Tenant's suite.
15
34. SATELLITE DISH AND BACK UP GENERATOR. Understanding the nature of Tenant's
business, Landlord grants Tenant the right to install, at Tenant's expense, one
(1) satellite dish (not to exceed 10 feet in diameter) on the roof of the
Building provided the dish is attached to the penthouse on the roof itself. In
addition, Landlord grants Tenant the right to install, at Tenant's expense, one
(1) back up generator not to exceed 20 kilowatts in the Building's penthouse.
Installation of said dish and generator are subject to local governmental
codes and subject to Landlord's final approval/*/, should Tenant install either
or both , Tenant agrees that he is responsible for maintaining said equipment be
damaged or cause damage to the Building, and removing said equipment if Tenant
moves out of the Building.
35. ADDITIONAL PHONE LINE. Due to the nature of Tenant's business, Landlord
understands that Tenant will use more cable-pair of phone lines than an average
tenant. Landlord agrees to allow Tenant the use of phone lines currently
available in the Building with the understanding that Southwestern Xxxx will, on
Tenant's behalf and at Southwestern Xxxx'x expense, be adding additional phone
line capacity to the Building within the next 90-120 days. Upon completion of
the installation of additional phone lines by Southwestern Xxxx, Tenant will
have adequate capacity and the Building shall have adequate capacity for
additional Tenant's use.
36. SECURITY DEPOSIT. In lieu of a security deposit, Tenant is prepaying the
rental for months 8 and 9 of this lease in the amount of $6,834.66 and has
deposited herewith a check for said amount.
37. Landlord agrees to have the Premises substantially complete for Tenant's
occupancy thirty (30) days after the execution of this Lease. In the event
Tenant is unable to occupy the Premises at that time, Landlord agrees to pay
Tenant $250.00 for each and every day thereafter until Tenant is able to occupy
substantially completed Premises. Both Landlord and Tenant acknowledge Tenant
cannot occupy the Premises until the Bridge Room shown on the attached floor
plan is fully complete.
IN WITNESS WHEREOF the parties hereto have executed this Lease as of the
date first appearing above.
-----------------------
/*/ which may not be unreasonably withheld.
16
LANDLORD: TENANT:
By: /s/ By: /s/
-------------------------- --------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxx Xxxxx
Title: Assistant Vice President Title: President
[Jurat appears here]
17
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the outside or
inside of the Building without the written consent of Landlord first had and
obtained and Landlord shall have the right to remove any such sign, placard,
picture, advertisement, name or notice without notice to and at the expense of
Tenant.
All approved signs or lettering on doors shall be printed, painted,
affixed or inscribed at the expense of Tenant by a person approved by Landlord.
Tenant shall not place anything or allow anything to be placed near the
glass of any window, door, partition, or wall which may appear unsightly from
outside the Premises, provided, however, that Landlord may furnish and install a
Building standard window covering at all exterior windows. Tenant shall not
without prior written consent of Landlord cause or otherwise sunscreen any
window.
2. The sidewalks, halls, passages, exits, entrances, elevators and stairways
shall not be obstructed by any of the Tenants or used by them for any purpose
other than for ingress and egress from their respective Premises.
3. Tenant shall not alter any lock or install any new or additional locks or
any bolts on any doors or windows of the Premises.
4. The toilet rooms, urinals, wash bowls and other apparatus shall not be
used for any purpose other than that for which they were constructed and no
foreign substance of any kind whatsoever shall be thrown therein and the expense
of any breakage, stoppage or damage resulting from the violation of this rule
shall be borne by the Tenant who, or whose employees or invitees shall have
caused such breakage, stoppage or damage.
5. Tenant shall not overload the floor of the Premises or in any way deface
the Premises or any part thereof.
6. No furniture, freight or equipment of any kind shall be brought into the
Building without the prior notice to Landlord and all moving of the same into or
out of the Building shall be done at such time and in such manner as Landlord
shall designate. Landlord shall have the right to prescribe the weight, size
and position of all safes and other heavy equipment brought into the Building
and also the times and manner of moving the same in and out of the Building.
Safes or other heavy objects shall, if considered necessary by Landlord, stand
on supports of such thickness as is necessary to properly distribute the weight.
Landlord will not be responsible for loss or damage to any such safe or property
from any cause and all damage done to the Building by moving or maintaining any
such safe or other property shall be repaired at the expense of Tenant.
18
7. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit or suffer the Premises to be
occupied or used in a manner offensive or objectionable to the Landlord or other
occupants of the Building by reason of noise, odors and/or vibrations, or
interfere in any way with other tenants or those having business therein; nor
shall any animals or birds be brought in or kept in or about the Premises of the
Building.
8. No cooking/*/ shall be done or permitted by any Tenant on the Premises,
nor shall the Premises be used for the storage of merchandise, for washing
clothes, for lodging, or for any improper, objectionable or immoral purposes.
Tenant shall be allowed to use a microwave oven in the Premises.
9. Tenant shall not use or keep in the Premises or the Building any
kerosene, gasoline or inflammable or combustible fluid or material, or use any
method of heating or air conditioning other than that supplied by the Landlord.
10. Landlord will direct electricians as to where and how telephone and
telegraph wires are to be introduced. No boring or cutting for wires will be
allowed without the consent of the Landlord. The location of telephones, call
boxes and other office equipment affixed to the Premises shall be subject to the
approval of Landlord.
11. On Saturdays, Sundays and legal holidays, and on other days between the
hours of 6:00 p.m. and 8:00 a.m., the following day, access to the Building, or
to the halls, corridors, elevators or stairways in the Building or to the
Premises may be refused unless the person seeking access is known to the person
or employee of the Building in charge and has a pass or is properly identified.
The Landlord shall in no case be liable for damages for any error with regard to
the admission to or exclusion from the Building of any person. In case of
invasion, mob, riot, public excitement, or other commotion, the Landlord
reserves the right to prevent access to the Building during the continuance of
the same by closing of the doors or otherwise, for the safety of the tenants and
protection of property in the Building and the Building.
12. Landlord reserves the right to exclude or expel from the Building any
person who, in the judgment of Landlord, is intoxicated or under the influence
of liquor or drugs, or who shall in any manner do any act in violation of any of
the rules and regulations of the Building.
13. No vending machine or machines of any description shall be installed,
maintained operated upon the Premises without the written consent of the
Landlord.
14. Landlord shall have the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the Building of
which the premises use a port and shall cooperate to prevent same.
15. Tenant shall not disturb, solicit, or canvass any occupant of the
Building and shall cooperate to prevent same.
-------------------------
/*/ Tenant shall be allowed to use a microwave oven in the Premises.
19
16. Without the written consent of Landlord, Tenant shall not use the name of
the Building in connection with or in promoting or advertising the business of
Tenant except as Tenant's address.
17. Landlord shall have the right to control and operate the public portion
of the Building, and the public facilities, and heating and air conditioning ,
as well as facilities furnished for the common use of the tenants, in such
manner as it deems best for the benefit of the tenants generally.
18. All entrance doors in the Premises shall be left locked when the Premises
are not in use, and all doors opening to public corridors shall be kept closed
except for normal ingress and egress from the Premises.
20
AMENDMENT TO OFFICE BUILDING LEASE
----------------------------------
THAT CERTAIN LEASE AGREEMENT dated November 25, 1987, by and between
Aetna Life Insurance Company, "Landlord", and American Teleconferencing
Services, Ltd., "Tenant", is hereby amended and modified as follows:
1. This Amendment increases the square footage area of the Premises from
5,126 square feet to 11,305 square feet or 6,179 additional square feet.
2. This increase will be added at an additional monthly amount based on
Tenant's base rent payment schedule per Paragraph 28 of the Lease. Paragraph 28
of the Lease shall be amended as follows:
Through October 31, 1990 $7,112.33/month
November 1, 1990 - November 30, 1992 $15,685.69/month
December 15, 1992 - December 31, 1992 $7,960.60
January 1, 1993 - November 30, 1993 $15,921.21/month 16.90/sq.ft.
December 1, 1993 - December 14, 1993 $7,960.60
3. Tenant's percentage of the building shall be increased from 4.91% to
11.0%.
4. In accordance with the attached Exhibit "2-A", Landlord shall build-out
the space as shown on said exhibit at Landlord's expense. Any design changes to
Exhibit "2-A" made by Tenant which increase the cost of the build-out, said
increase shall be paid by Tenant to Landlord on occupancy of the space.
5. The terms of this Amendment shall go into effect June 1, 1990. This
Amendment shall coterminate with the expiration date of the Lease which is
December 14, 1993.
6. Tenant has the right to an additional six (6) covered parking spaces to
be provided to Tenant at no charge through the term of the Lease. Tenant shall
inform Landlord's agent if it wishes to take any or all of the additional six
covered parking spaces.
7. Pursuant to paragraph 14 of the Lease, Tenant agrees to pay for the
installation of equipment to monitor the consumption of electricity during
non-standard building operating hours (6:01 p.m. to 6:55 a.m.). Said equipment
will record the kilowatt hours used on Tenant's floor (on which Tenant is the
only occupant) during non-standard building operating hours. Tenant shall pay to
Landlord on a monthly basis as reimbursement for such excessive electricity
usage the product of the kilowatt hours recorded x (times) the rate per kilowatt
hour billed by Kansas City Power and Light for the most recent monthly
statement. The kilowatt hour rate will be determined by dividing the amount due
on the most recent monthly statement by the kilowatt hours used.
21
In addition, heating and air-conditioning during non-standard business
hours shall be made available to Tenant via override switches located at
Tenant's suite. When Tenant chooses to override the temperature setback system
during non-standard business hours, a record of the hours will be made by the
Building energy management system. Tenant shall then reimburse Landlord on a
monthly basis at the rate of $.71 per hour for air conditioning only. Said rate
shall be adjusted each January 1 by the same percentage change of cost per
kilowatt hour from the prior January rate.
8. All other terms and conditions of the Lease shall remain in full force and
effect through the period December 14, 1993.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
this 4/th/ day of May, 1990.
LANDLORD: AETNA LIFE TENANT: AMERICAN
INSURANCE COMPANY TELECONFERENCING
SERVICES, LTD.
By: /s/ By: /s/
----------------------------- ------------------------------
Its: Assistant-Vice President Its:_____________________________
------------------------
22
SECOND AMENDMENT TO LEASE
THIS AMENDMENT, by and between Aetna Life Insurance Company, (hereinafter
referred to as "Landlord") and American Teleconferencing Services, Ltd.
(hereinafter referred to as "Tenant");
WITNESSETH:
WHEREAS, Landlord and Tenant entered into a certain Office Building Lease
dated November 25, 1987, whereby Tenant agreed to lease Suite 600 consisting of
5,126 usable square feet (the "Premises") of Building 20, (the "Building"),
located at 00000 Xxxxxx, Xxxxxxxx Xxxx, Xxxxxx, 00000, for the period December
15, 1987 through December 14, 1993; and,
WHEREAS, Tenant amended this Office Lease on the 4/th/ day of May, 1990
to expand the ("Premises") to 11,305 usable square feet and;
WHEREAS, Tenant desires to lease from Landlord and Landlord desires to
lease to Tenant Suite 600 for an additional five (5) year period in accordance
with paragraph 31 of the original Office Building Lease; and,
WHEREAS, Landlord and Tenant desire to memorialize their understanding
and modify the lease consistent therewith;
NOW, THEREFORE, in consideration of the mutual covenants and other good
and valuable consideration set forth herein, the receipt and sufficiency of
which is hereby acknowledged, parties herein agree as follows:
1. a.) Effective December 15, 1993, Tenant does hereby lease Suite 600,
consisting of 11,305 usable square feet, and 12,350 rentable square feet located
on the sixth floor, as noted on Exhibit 1-A attached hereto and incorporated
herewith by this reference. Landlord hereby leases the Premises to Tenant for an
Additional Term of sixty-two months.
b.) The Premises square footage is 12,350 rentable square feet.
2. a.) The base rental schedule for the Additional Term shall be as follows:
Period $/SF $/MO
------ ------ -------
Months 1-2: $ 0.00 $ 0.00
Months 3-14: $14.00 $ 14,408.33
Months 15-26: $15.00 $ 15,437.50
Months 27-38: $15.50 $ 15,952.08
Months 39-50: $16.00 $ 16,466.67
Months 51-62 $16.50 $ 16,981.25
b.) The total base rent for the Premises for the Additional Term shall
be as follows:
23
Period Base Rent Amount
------ ----------------
12/15/93-02/14/99 $951,381.96
3. Tenant Finish: The Landlord shall provide the updating of the electrical
-------------
service per the preliminary plan design by American Teleconferencing to be
attached herewith as Exhibit "2-A", at a cost not to exceed $5,000.00. In
addition, Landlord will clean all carpet within Suite 600, paint walls indicated
and replace the carpet in common areas of the sixth floor.
4. Additional Rent: For purposes of paragraph 3 of the Lease, Tenant's
---------------
proportionate share of the building shall be 11.2%. Base Direct Expenses shall
be changed to equal the 1993 calendar year Operating Expenses and Real Estate
Taxes. Tenant will not have an "additional expense" until the actual expenses
of 1994 are calculated to compare 1993. The first additional expense charge
will not be until early 1995. Thereafter, Landlord reserves the right to charge
additional expense on a charged monthly basis.
5. Renewal Option: The Landlord hereby grants Tenant the option to renew this
--------------
Lease for two (2) additional five (5) year terms under the same terms and
conditions provided herein except the annual base rental rate shall be at the
prevailing market rate and except the Base Direct Expenses will change to equal
the actual Base Direct Expenses for the calendar year immediately preceding the
renewal period. Tenant shall give Landlord written notice of its intent to
renew this Lease not less than nine (9) months prior to the expiration of the
original term. In the event that the Tenant is in default of any of the
provision of this Lease (beyond any applicable cure period) at the expiration of
the original term hereof, then Tenant's right to extend this Lease shall be null
and void.
The "prevailing market rate" shall be determined as follows. At such
time as tenant exercises it option, tenant shall notify Landlord of Tenant's
determination of the market rate. Within ten (10) days thereafter, Landlord
shall notify Tenant whether Landlord accepts or rejects Tenant's definition of
market rates, and if Landlord rejects, landlord shall notify Tenant of
Landlord's determination of market rate. If the rates differ by ten percent
(10%) or less, the two rates shall be averaged, and such averages shall
constitute the base rate for the renewal term. If the rate differ by more than
ten percent (10%), Landlord and Tenant shall select a mutually acceptable
arbitrator, the cost of which shall evenly be shared by Landlord and Tenant.
This arbitrator shall have the option of choosing either the rate requested by
Landlord, or the rate requested by Tenant and such rate shall constitute the
base rate for the renewal term.
In the event landlord and Tenant cannot agree upon an arbitrator, Tenant
and Landlord shall each select an independent third party, who will select a
third party arbitrator to make the final decision.
24
Notwithstanding anything contained in this paragraph, the determination
of an independent arbitrator anything else contained in this Lease to the
contrary, in no event will the net rental rate (which is the base rental rate
minus the per square foot amount of Base Direct Expenses) to Landlord for the
renewal period be less than the net rental rate Landlord is receiving under the
Lease during the initial term.
6. Compliance With Disability Discrimination Acts. Landlord believes, but does
----------------------------------------------
not warrant, that access to the Building, Leased Premises and the common areas
complies with the requirements of any federal and local disability
discrimination laws and regulations. Landlord agrees that if access to the
Building, the Leased Premises, or the common areas does not comply with the
requirements of such laws, Landlord will, after receiving written notice, take
the necessary action to rectify such noncompliance at its sole expense. However,
such expenses are considered normal operating costs of the building. Tenant
shall be responsible for any changes required to the interior of the Leased
Premises necessary to comply with such laws and regulations, and any
requirements which may impose any duty upon Landlord or Tenant applicable to the
Tenant's use or occupancy of the Leased Premises. Except for Landlord's gross
negligence or willful misconduct, (which liability shall be limited pursuant to
Article 11), Landlord shall not be liable or indemnify Tenant for any ports,
monetary damages incurred by Tenant as a result of any third party actions
against Tenant by reason of Landlord's failure to comply with the requirements
of applicable disability discrimination laws.
7. Covered Parking: The Landlord will grant the Tenant 12 reserved covered
---------------
parking spaces in the building's covered parking garage. This will be at no
additional cost to the Tenants during the additional term.
8. Disclosure. Pursuant to K.S.A. 1989 Supp. 58-3062(15) (Senate Xxxx 45),
----------
Xxxxx-Xxxxx Real Estate Services Inc. is the agent of the Landlord with duty to
represent Landlord's interest and will not be the subagent of the Tenant or
Tenant's agent. Information given to Xxxxx-Xxxxx Real Estate Services Inc. will
be disclosed to the Landlord.
9. Validity of Leases. The parties acknowledge that the lease is a valid and
------------------
enforceable agreement and that the Tenant holds no claims against Landlord or
its agents which might serve as the basis of any setoff against accruing rent
and other charges or any other remedy in law or in equity. Except as modified
and amended hereby, the Lease shall remain in full force and effect, it being
understood and agreed that this Addendum, upon execution, constitutes a part of
the total Lease.
25
IN WITNESS WHEREOF, this Amendment to Lease has been duly executed by the
parties hereto as of the day and year first above written.
LANDLORD: TENANT:
AETNA LIFE INSURANCE COMPANY AMERICAN TELECONFERENCING
SERVICES, LTD.
By: /s/ By: /s/
-------------------------- ----------------------------
Its: AVP Its: President
Date: 12/13/93 Time: 3:45 p.m Date: 12/7/93 Time: 10:15 a.m
26
THIRD AMENDMENT TO LEASE
THIS AMENDMENT, by and between Aetna Life Insurance Company, (hereinafter
referred to as "Landlord") and American Teleconferencing Services, Ltd.
(hereinafter referred to as "Tenant");
WITNESSETH:
WHEREAS, Landlord and Tenant entered into a certain Office Building Lease
dated November 25, 1987, whereby Tenant agreed to lease Suite 600 consisting of
5,126 usable square feet (the "Premises") of Building 20, (the "Building"),
located at 00000 Xxxxxx, Xxxxxxxx Xxxx, Xxxxxx, 00000, for the period December
15, 1987 through December 14, 1993; and,
WHEREAS, Landlord and Tenant amended this Lease by way of a second
amendment to lease on the 13/th/ day of December, 1993;
WHEREAS, Landlord and Tenant desire to amended this lease by a Third
Amendment to Lease to be memorialized with the understanding and modify this
lease consistent therewith;
NOW, THEREFORE, in consideration of the mutual covenants and other good
and valuable consideration set forth herein, the receipt and sufficiency of
which is hereby acknowledged, parties hereto agree as follows:
1. a.) Effective September 1, 1995, Tenant does hereby lease Suite 1020,
consisting of 1,223 unusable square feet, and 1,353 rentable square feet located
on the tenth floor, as noted on Exhibit 1-A attached hereto and incorporated
herewith by this reference. Landlord hereby leases the Premises to Tenant for
an Additional Term of sixty-two months.
b.) The Premises for Suite 1020 is 1,353 rentable square feet.
2. a.) The base rental schedule for Suite 1020 shall be as follows:
Period $/SF $/MO
------ ------- ------
Months 1-2: $ 0.00 $ 0.00
Months 3-62; $17.25 $ 1,944.94
b.) The total base rent for the Premises for the Additional Suite shall
be as follows:
Period Base Rent Amount
------ ----------------
9/1/95 - 10/31/2000 $116,696.25
3. Tenant Finish: The Landlord shall provide the space per the attached
-------------
floorplan utilizing building standard materials on a turn-key basis, all cost
shall be paid for by Landlord. Any
27
changes to the floorplan that increase said costs shall be paid for by Tenant
upon substantial completion of the premises.
4. Additional Rent: For purposes of paragraph 3 of the Lease for specifically
---------------
Suite 1020, Tenant's proportionate share of the building shall be 1.0%. Base
Direct Expenses shall be changed specifically Suite 1020 to equal the 1995
calendar year Operating Expenses and Real Estate Taxes. (1,353 sf divided by
109,883 sf)
5. Covered Parking: The Landlord will grant the Tenant 1 additional reserved
---------------
covered parking space in the building's covered parking garage. This will be at
no additional cost to the Tenants during the additional term.
6. Disclosure. Pursuant to K.S.A. 1989 Supp. 58-3062(15) (Senate Xxxx 45),
----------
Xxxxx-Xxxxx Real Estate Services Inc. is the agent of the Landlord with duty to
represent Landlord's interest and will not be the subagent of the Tenant or
Tenant's agent. Information given to Xxxxx-Xxxxx Real Estate Services Inc. will
be disclosed to the Landlord.
7. Validity of Leases. The parties acknowledge that the lease is a valid and
------------------
enforceable agreement and that the Tenant holds no claims against Landlord or
its agents which might serve as the basis of any setoff against accruing rent
and other charges or any other remedy in law or in equity. Except as modified
and amended hereby, the Lease shall remain in full force and effect, it being
understood and agreed that this Addendum, upon execution, constitutes a part of
the total Lease.
8. Confidentiality. This lease addendum and the terms herein provided will
---------------
remain confidential between American Teleconferencing Services Limited and Aetna
Life Insurance Company.
IN WITNESS WHEREOF, this Amendment to Lease has been duly executed by the
parties hereto as of the day and year first above written.
LANDLORD: TENANT:
AETNA LIFE INSURANCE COMPANY AMERICAN TELECONFERENCING
SERVICES, LTD.
By: /s/ By: /s/
------------------------- ---------------------------
Its: Director Its: President
Date: 3/13/95 Time: ____ Date: 3/10/95 Time: 10:00 a.m
28
FOURTH AMENDMENT TO LEASE
THIS AMENDMENT, by and between Aetna Life Insurance Company, (hereinafter
referred to as "Landlord") and American Teleconferencing Services, Ltd.
(hereinafter referred to as "Tenant");
WITNESSETH:
WHEREAS, Landlord and Tenant entered into a certain Office Building Lease
dated November 25, 1987, whereby Tenant agreed to lease Suite 600 consisting of
5,126 usable square feet (the "Premises") of Building 20, (the "Building"),
located at 00000 Xxxxxx, Xxxxxxxx Xxxx, Xxxxxx, 00000, for the period December
15, 1987 through December 14, 1993; and,
WHEREAS, Landlord and Tenant amended this Lease by way of a second
amendment to lease on the 13/th/ day of December, 1993;
WHEREAS, Landlord and Tenant again amended this lease by way of a Third
Amendment to Lease on the 13/th/ day of March, 1995;
WHEREAS, Landlord and Tenant desire to amend this lease by a Fourth
Amendment to Lease to be memorialized with the understanding and modify this
Lease consistent therewith;
NOW, THEREFORE, in consideration of the mutual covenants and other good
and valuable consideration set forth herein, the receipt and sufficiency of
which is hereby acknowledged, parties hereto agree as follows:
1. Effective November 15, 1995, Tenant does hereby lease Suite 425,
consisting of 1,527 rentable square feet (including a 10.6% rentable factor), as
noted on Exhibit 1-A attached hereto and incorporated herewith by this
reference. Landlord hereby leases the Premises to Tenant up until February 14,
1999.
2. The base rental schedule for the Suite 425 shall be as follows:
Period $/Mo
------ ------
Months 1 - 39 $2,099.63
The total base rent for the Suite 425 shall be as follows:
Period Base Rent Amount
------ ----------------
11/15/95 to 2/14/99 $81,885.57
3. Tenant Finish: The Landlord shall provide the space in "as is" condition.
-------------
29
4. Additional Rent: For purposes of paragraph 3 of the Lease for specifically
---------------
Suite 425, the Tenant's proportionate share of the building shall be 1.4%. Base
Direct Expenses shall be equal to the actual Operating Expenses and Real Estate
Taxes for the 1993 calendar year.
5. Disclosure. Pursuant to K.S.A. 1989 Supp. 58-3062 (15) (Senate Xxxx 45),
----------
Xxxxx-Xxxxx Real Estate Services Inc. is the agent of the Landlord with duty to
represent Landlord's interest and will not be the subagent of the Tenant or
Tenant's agent. Information given to Xxxxx-Xxxxx Real Estate Services Inc. will
be disclosed to the Landlord.
6. Validity of Lease. The parties acknowledge that the lease is a valid and
-----------------
enforceable agreement and that the Tenant holds no claims against Landlord or
its agents which might serve as the basis of any setoff against accruing rent
and other charges or any other remedy in law or in equity. Except as modified
and amended hereby, the Lease shall remain in full force and effect, it being
understood and agreed that this Addendum, upon execution, constitutes a part of
the total Lease.
8. Confidentiality. This lease addendum and the terms herein provided will
---------------
remain confidential between American Teleconferencing Services Limited and Aetna
Life Insurance Company.
IN WITNESS WHEREOF, this Amendment to Lease has been duly executed by the
parties hereto as of the day and year first above written.
LANDLORD: TENANT:
AETNA LIFE INSURANCE COMPANY AMERICAN TELECONFERENCING
SERVICES, LTD.
By: AETNA REALTY INVESTORS, INC. By: /s/
----------------------------
By: /s/ Its: President
---------------------------- ---------------------------
Director
Date: 11/27/95 Time: Date: 11/14/95 Time: 1:45 p.m.
-------- -------- -------- ----------
[diagram appears here]
30
FIFTH AMENDMENT TO LEASE
THIS AMENDMENT, dated 19th day of April, 1996 by and between Aetna Life
Insurance Company, (hereinafter referred to as "Landlord") and American
Teleconferencing Services, Ltd. (hereinafter referred to as "Tenant");
WITNESSETH:
WHEREAS, Landlord and Tenant entered into a certain Office Building Lease
dated November 25, 1987, whereby Tenant agreed to lease Suite 600 consisting of
5,126 usable square feet (the "Premises") of Building 20, (the "Building"),
located at 00000 Xxxxxx, Xxxxxxxx Xxxx, Xxxxxx, 00000, for the period December
15, 1987 through December 14, 1993; and,
WHEREAS, Landlord and Tenant amended this Lease by way of a second
amendment to lease on the 13/th/ day of December, 1993;
WHEREAS, Landlord and Tenant again amended this lease by way of a Third
Amendment to Lease on the 13/th/ day of March, 1995;
WHEREAS, Landlord and Tenant amended this lease by a Fourth Amendment to
Lease on the 27/th/ day of November, 1995;
WHEREAS, Landlord and Tenant desire to amend this lease by a Fifth
Amendment to Lease to be memorialized and modified consistent therewith as set
forth below;
NOW, THEREFORE, in consideration of the mutual covenants and other good and
valuable consideration set forth herein, the receipt and sufficiency of which is
hereby acknowledged, parties hereto agree as follows:
1. Effective June 1, 1996, This Amendment to Lease will expire February 14,
2000. The Premises will be a total of 21,658 rentable square feet. The
Premises are consisting of the following Suites;
Suite 600 Exhibit "A" 12,350 rentable square feet
Xxxxx 000 Xxxxxxx "X" 6,428 rentable square feet
Suite 425 Exhibit "C" 1,527 rentable square feet
Suite 1020 Exhibit "D" 1,353 rentable square feet
-----
Total 21,658 rentable square feet
2. Base Rental Schedule
Suites Period $/Mo
600, 510, 425 6/1/96 to 2/28/97 $26,227.30
3/1/97 to 2/28/98 $27,073.34
31
3/1/98 to 2/28/2000 $27,919.38
1020 6/1/96 to 10/31/2000 $ 1,944.94
(Same as Third Amendment
to Lease)
3. Tenant Finish: The Landlord will provide $40,630.00 in tenant improvement
-------------
allowance.
4. Additional Rent: Tenant will have 18.44% of the building. The base direct
---------------
expenses are equal to 1993 actual operating expenses. Suite 1020 is calculated
using a 1995 base year and consists of 1% of the Building.
5. The Third Amendment to Lease by and between Landlord and Tenant will remain
in full force and effect and not change as a part of this Fifth Amendment to
Lease.
6. Disclosure. Pursuant to K.S.A. 1989 Supp. 58-3062 (15) (Senate Xxxx 45),
----------
Xxxxx-Xxxxx Real Estate Services Inc. is the agent of the Landlord with duty to
represent Landlord's interest and will not be the subagent of the Tenant or
Tenant's agent. Information given to Xxxxx-Xxxxx Real Estate Services Inc. will
be disclosed to the Landlord.
6. Validity of Lease. The parties acknowledge that the lease is a valid and
-----------------
enforceable agreement and that the Tenant holds no claims against Landlord or
its agents which might serve as the basis of any setoff against accruing rent
and other charges or any other remedy in law or in equity. Except as modified
and amended hereby, the Lease shall remain in full force and effect, it being
understood and agreed that this Addendum, upon execution, constitutes a part of
the total Lease.
8. Confidentiality. This lease addendum and the terms herein provided will
---------------
remain confidential between American Teleconferencing Services Limited and Aetna
Life Insurance Company.
IN WITNESS WHEREOF, this Amendment to Lease has been duly executed by the
parties hereto as of the day and year first above written.
LANDLORD: TENANT:
AETNA LIFE INSURANCE COMPANY AMERICAN TELECONFERENCING
SERVICES, LTD.
By: AETNA REALTY INVESTORS, INC. By: /s/
-------------------------
By: /s/ Its: CEO
------------------------- ------------------------
Director
Exhibit "A"
[diagram]
Exhibit "B"
[diagram]
Exhibit "C"
[diagram]
Exhibit "D"
[diagram]
32
