LEASE AGREEMENT
LANDLORD: UNIVERSITY RESEARCH PARK FACILITIES CORP.
TENANT: RCG/HAGLER, BAILLY, INC.
PROPERTY: 000 Xxxxxxx Xxxxx, Xxxxxx 000 & 000
Xxxxxxx, Xxxxxxxxx
DATE: MARCH 30, 1995
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LEASE AGREEMENT
TABLE OF CONTENTS
ARTICLE I
PREMISES AND TERM
Section 1.1. Leased Premises...........................................1
Section 1.2. Term of Lease.............................................2
Section 1.3. Right of First Refusal....................................2
ARTICLE 2
RENT
Section 2.1. Base Rent.................................................3
Section 2.2. Additional Rent and Payments..............................4
Section 2.3. Past Due Rent.............................................4
Section 2.4. Real Estate Taxes, Escrow ................................4
ARTICLE 3
INSTALLATIONS, REPAIRS AND MAINTENANCE OF LEASED PREMISES
Section 3.1. Maintenance by Tenant.....................................6
Section 3.2. Maintenance by Landlord...................................7
Section 3.3. Exterior Signs............................................7
Section 3.4. Alterations, Changes and Installations by
Tentant.................................................8
Section 3.5. Fixtures and Equipment....................................8
Section 3.6. Liens and Obligations.....................................9
ARTICLE 4
CONDUCT OF BUSINESS
Section 4.1. Business Use.............................................10
Section 4.2. Utility Charges..........................................10
Section 4.3. Taxes on Leasehold.......................................11
Section 4.4. Assignment or Subletting.................................11
Section 4.5. Rules and Regulations...................................13
Section 4.6. Surrender...............................................14
Section 4.7. Corporate Ownership.....................................16
ARTICLE 5
COMMON USE AREAS AND FACILITIES
Section 5.1. Common Area.............................................18
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Section 5.2. Use of Common Area......................................19
Section 5.3. Operation and Maintenance...............................19
Section 5.4. Preventing Public Rights................................19
Section 5.5. Charge for Common Area and Facilities...................19
Section 5.6. Formula For Pro Rata Share..............................20
Section 5.7. Basis For Changes.......................................21
ARTICLE 6
INSURANCE
Section 6.1. Casualty Insurance......................................21
Section 6.2. Public Liability Insurance..............................22
Section 6.3. Tenant's Contents.......................................23
Section 6.4. Increase in Fire Insurance..............................23
Section 6.5. Hold Harmless...........................................24
Section 6.6. Waiver of Subrogation...................................25
ARTICLE 7
DESTRUCTION OF LEASED PREMISES
Section 7.1. Destruction of Leased Premises..........................26
Section 7.2. Rebuilding by Landlord..................................26
Section 7.3. Abatement of Rent Upon Destruction of Premises..........26
ARTICLE 8
EFFECT OF CONDEMNATION
Section 8.l. Total Condemnation......................................27
Section 8.2. Partial Condemnation....................................27
Section 8.3. Landlord's Damages......................................27
Section 8.4. Tenant's Damages........................................28
ARTICLE 9
REMEDIES
Section 9.1. Events of Default by Tenant.............................28
Section 9.2. Re-Entry by Landlord....................................29
Section 9.3. Right to Relet..........................................29
Section 9.4. Parties May Remedy Defaults.............................30
Section 9.5. Landlord's Remedies; Liquidated Damages.................31
Section 9.6. Expenses of Landlord....................................33
Section 9.7. Waiver of Redemption....................................33
Section 9.8. Defaults of Landlord....................................34
Section 9.9. Rights Cumulative.......................................34
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ARTICLE 10
MISCELLANEOUS
Section 10.1. Subordination..........................................34
Section 10.2. Sale of Property.......................................35
Section 10.3. Offset Statement.......................................35
Section 10.4. Attornment.............................................36
Section 10.5. Recording..............................................36
Section 10.6. Excavations............................................36
Section 10.7. Access to Premises.....................................37
Section 10.8. Quiet Enjoyment........................................37
Section 10.9. Notices................................................37
Section 10.10. Holding Over...........................................38
Section 10.11. Consents by Landlord...................................38
Section 10.12. Successors and Assigns.................................38
Section 10.13. Governmental Regulations...............................38
Section 10.14. Certain Expenses of Landlord...........................39
Section 10.15. Force Majeure..........................................39
Section 10.16. General................................................40
Section 10.17. Effect of Ground Lease.................................41
ARTICLE 11
ATTACHMENTS
Section 11.1. Attachments............................................42
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000 XXXXXXX XXXXX
LEASE AGREEMENT
This Lease is made as of this 1st day of April, 1995, by and between
University Research Park Facilities Corp., a Wisconsin corporation (hereinafter
referred to as "Landlord") and RCG/Hagler, Bailly, Inc., a District of Columbia
corporation (hereinafter referred to as "Tenant").
WITNESSETH:
IT IS HEREBY AGREED, by and between the parties hereto, in consideration of
the covenants and agreements set forth in thisLease, as follows:
ARTICLE I
PREMISES AND TERM
Section 1.1. Leased Premises. Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord on the terms and provisions and subject to the
conditions hereinafter set forth in this Lease, the following described
premises:
000 Xxxxxxx Xxxxx, Xxxxxx 000 and 300, Madison, Dane County, Wisconsin,
(herein referred to as the "Leased Premises") consisting of approximately
12,726 square feet of space and all necessary common areas located in that
certain building (the "Building") situated upon the property described in
Exhibit A attached hereto. (The Property and associated parking and common
areas described in Exhibit A are referred to herein as the "Landlord's
Property"). The location of the Building and the associated parking and
common areas on the Landlord's Property are as shown on the attached
Exhibit B-1. The location of the Leased Premises in the Building is
indicated on the floor plan attached hereto as Exhibit B-2.
It is understood and acknowledged by both parties that Landlord, at the
time of execution of this Lease, holds all or a
portion of the Leased Premises as a tenant under a ground lease described in
Section 10.17.
Section 1.2. Term of Lease. The term of this Lease ("the term") shall
begin on April 1, 1995 ("the commencement date"). The term shall end at midnight
on March 31, 2002.
Section 1.3. Right of First Refusal. If, during the term of this Lease,
all or any part of the 8224 square feet of space in the Building known as Suite
200 becomes available for rental, Tenant, provided it is not in default with
respect to the performance of any of its obligations under the terms and
provisions of this Lease, shall have a right of first refusal for the leasing of
such space. This right of first refusal shall be exercised as follows:
Landlord, upon determining that any such space has or will become
available for rental during the term of this Lease, shall provide to
Tenant written notice specifying the date on which such space will be
available, the number of square feet of floor space comprising such space,
and Landlord's rental rate therefore. Tenant may elect to rent such space
by written notice delivered to Landlord within fourteen (14) days
following the date of Landlord's notice. Tenant's written notice shall
obligate Tenant to lease such space on the terms proposed in Landlord's
notice and all other terms of such lease shall be identical to those then
in effect under this Lease. If Landlord has not received Tenant's notice
within such fourteen (14) day period, Tenant's right to lease additional
space under this Lease shall end provided Landlord actually
leases such space within 90 days thereafter and further provided that
Tenant shall have a right of first refusal to lease such space upon the
expiration of the term of the lease for such space.
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ARTICLE 2
RENT
Section 2.1. Base Rent. Tenant shall pay to Landlord at its office in
Madison, Wisconsin, or such other place as Landlord may designate in writing,
and without any deduction or offset whatsoever as base rent the following
amounts on or before the first day of each calendar month:
(a) The sum of Fourteen Dollars per square foot per year (i.e. the sum
of One Hundred Seventy-eight Thousand One Hundred Sixty- four
Dollars($178,164.00) in 12 equal monthly installments of Fourteen
Thousand Eight Hundred Forty-seven Dollars ($14,847.00) in advance
on or before the first day of each calendar month during the first
year of this Lease.
(b) The base rent for each subsequent lease year shall be the base rent
for the prior lease year increased or decreased by a percentage
equal to the "Consumer Price Index Increase or Decrease" as defined
below.
The term "Consumer Price Index Increase or Decrease" shall be the
percentage increase or decrease in the Cost of Living Index (defined
below) between the Cost of Living Index for the month of March
preceding the just completed lease year and the Cost of Living Index
for the month of March immediately preceding the lease year for
which the computation is being made. The term "Cost of Living Index"
as used herein shall be the index number in the above-stated month
in the column of "All Items" in the table entitled "Consumer Price
Index All Urban Consumers - U.S. City Average 1967 = 100" as
published in the Monthly Labor Review by the Bureau of Labor
Statistics of the U.S. Department of Labor. In the event that the
Bureau of Labor Statistics ceases to publish
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the Cost of Living Index or materially changes the method of its
computations, Landlord and Tenant shall accept comparable statistics
relative to the purchasing power of the dollar as published at the
time of such discontinuation or change by a responsible financial
periodical or recognized authority to be then chosen by Landlord.
The foregoing notwithstanding the increase in base rent for any
lease year shall not exceed 4%.
If the term of this Lease does not commence on the first day of a calendar
month, the base rent for such fractional month shall be computed pro rata on the
basis of thirty (30) days per month and paid to Landlord on the first day of the
next succeeding calendar month along with the rent for such succeeding month.
Section 2.2. Additional Rent and Payments. In addition to base rent,
Tenant shall pay as part of the consideration for this Lease and as additional
rent, hereinafter designated "additional rent," all additional amounts
hereinafter provided for and the same shall be payable upon Landlord's demand
except as otherwise expressly provided.
Section 2.3. Past Due Rent. If Tenant shall fail to pay when due any base
rent or additional rent, such unpaid amounts shall bear interest from the due
date thereof to the date of payment at the rate of ten (10%) percent per annum
or the prime interest rate then charged by the Firstar Bank Madison, N.A. or its
successors or assigns, whichever is greater.
Section 2.4. Real Estate Taxes, Escrow. Landlord shall pay all real estate
taxes on Landlord's Property, including all
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general real estate taxes, personal property taxes on Landlord's property and
installments for special assessments arising during the term of the Lease.
Tenant agrees to reimburse Landlord for Tenant's pro rata share of such taxes.
Tenant's pro rata share of such taxes shall be a fraction, the numerator of
which is the area of the Leased Premises and the denominator of which is the
leasable area of the Building. Tenant's pro rata share of taxes shall be
adjusted from time to time as Tenant leases more or less space in the Building.
Tenant's obligation for each tax described in this section shall be further
prorated for the first year of this Lease between Landlord and Tenant as of the
commencement date of this Lease. Tenant shall have no obligation for taxes for
any years prior to the commencement date and Landlord represents that Landlord
has no knowledge of any current special assessments against Landlord's Property.
Tenant shall pay to Landlord, along with Tenant's monthly rent, an amount
equal to one-twelfth (1/12) of its pro rata share of the estimated annual real
estate taxes, personal property taxes and installments for special assessments
for Landlord's Property. Such payment shall be applied by Landlord to the
payment of Tenant's pro rata share of such taxes on the Landlord's Property.
Landlord and Tenant shall make any necessary adjustment to such estimated
payment based on the actual taxes when such taxes are known.
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ARTICLE 3
INSTALLATIONS, REPAIRS AND MAINTENANCE OF LEASED PREMISES
Section 3.1. Maintenance by Tenant. Tenant shall at all times keep the
Leased Premises and all partitions, doors, fixtures, electrical and lighting
fixtures, equipment and appurtenances thereof (including but not limited to
lighting and plumbing equipment, fixtures and electrical and plumbing lines
located within the Leased Premises but excluding such lines to the extent they
are electrical or plumbing distribution lines serving the entire Lease Premises
or areas in addition to the Leased Premises) in good order, condition and
repair, including periodic painting as determined by Landlord, reasonable wear
and tear excepted. If Tenant refuses or neglects to repair property as required
hereunder and to the reasonable satisfaction of Landlord as soon as reasonably
possible after written demand, Landlord may make such repairs without liability
to Tenant for any loss or damage that may accrue to Tenant's property or to
Tenant's business by reason thereof, and upon completion thereof, Tenant shall
pay Landlord's costs for making such repairs plus twenty (20%) percent for
overhead, upon presentation of xxxx therefor, as additional rent. When used in
this paragraph, the term "repairs" shall include replacements and renewals when
necessary and all such repairs shall be equal in quality and class of original
work.
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Section 3.2. Maintenance by Landlord. Landlord shall keep foundations,
exterior walls, roof and all other structural members, both interior and
exterior and all common areas, of the Leased Premises in good repair and shall
have access to the Leased Premises for such purpose, but Landlord shall not be
required to make any such repairs which become necessary or desirable by reason
of the negligence of Tenant, its agents, servants, employee, or customers.
Landlord shall also keep and maintain heating, ventilating and air conditioning
lines and equipment. Tenant shall pay for a pro rata portion as a common area
maintenance charge (described in Section 5.5) of the cost of the replacement of
heating and air conditioning equipment. The total charge for replacement before
proration, shall be limited to a fraction of the replacement cost thereof, the
numerator of which shall be the number of years which have expired since the
commencement date of this Lease (including any partial year), and the
denominator of which shall be twenty (20). The balance of such cost shall be
paid by Landlord. Landlord shall enter into service contracts on all heating,
ventilating and air conditioning units, including but not limited to changing
filters, checking belts and oiling of units. Tenant shall pay its pro rata share
of the cost of such contracts as a common area charge.
Section 3.3. Exterior Signs. All signs to be installed by Tenant shall be
approved in advance in writing by the Design
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Review Board appointed by the Board of Regents of the University of Wisconsin
System. All signs to be installed by Landlord shall be approved in advance in
writing by the Design Review Board. Tenant shall remove all signs installed by
Tenant at the termination of this Lease. Such installations and removals shall
be made in such a manner as to avoid injury, defacement or any other damages to
the buildings and improvements. The cost of repairing any damage to the building
caused by the installation, removal, or maintenance of the sign shall be borne
by the Tenant. The cost of all signs, other than those furnished by Landlord,
including the installation, maintenance, and removal thereof, shall be the
responsibility of the Tenant.
Section 3.4. Alterations, Changes and Installations by Tenant. Landlord
shall deliver and Tenant shall accept the Leased Premises in "as is" condition.
Tenant shall not make or cause to be made any alterations, additions or
improvements to the Leased Premises, or cause to be installed any fixtures,
interior or exterior lighting, plumbing equipment or mechanical equipment,
without the prior written consent of Landlord.
Section 3.5. Fixtures and Equipment. Subject to Section 3.4, Tenant may,
at its own expense, furnish and install such business and trade fixtures in and
on the Premises as may be necessary or desirable for Tenant's business. Any such
fixtures shall immediately become and remain the personal property of Landlord
except that Tenant may remove such fixtures installed
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and paid for by Tenant during or at the expiration of the term of this Lease and
Tenant shall repair damage caused by such removal and restore the Leased
Premises to the condition existing prior to installation of such fixtures,
reasonable wear and tear expected. The foregoing notwithstanding, Tenant
acknowledges that all voice and data cabling servicing the Leased Premises shall
be and shall remain the property of the Landlord and shall not be removed by
Tenant at any time during or at the expiration of the term of this Lease without
Landlord's written consent.
Section 3.6. Liens and Obligations. Tenant agrees not to create or to
permit others to create any lien or obligations against Landlord or the Leased
Premises in making alterations, repairs or in installing materials, fixtures or
equipment, agrees to cause any claim for such lien to be released, and further
agrees to hold Landlord harmless from all claims and demands by any third party
in any manner connected with such alterations, repairs or installations or with
Tenant's occupancy for such purpose. Tenant shall comply with all laws and all
directions, rules and regulations of all governmental regulatory bodies or
officials having jurisdiction over such alterations, repairs or installations,
except that Tenant shall not be required to comply with any laws, regulations or
orders by governmental authority necessitating structural alterations, changes,
repairs or additions, unless made necessary by the act or work performed by
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Tenant, in which case Tenant shall so comply, at its own expense, after first
procuring the written consent of Landlord.
ARTICLE 4
CONDUCT OF BUSINESS
Section 4.1. Business Use. It is understood and agreed that the Leased
Premises shall be used and occupied by Tenant as a general office. Tenant shall
not use the Leased Premises for any use not identified as a permitted use by any
zoning ordinance or other governmental regulation relating to the Leased
Premises or approved as a conditional use by the governmental bodies having
zoning authority. No use shall be permitted, or acts done, which will cause a
cancellation of any insurance policy covering the Leased Premises. Tenant shall
not sell, permit to be kept, used or sold in or about the Leased Premises any
article which may be prohibited by the standard form of fire insurance policy.
In the event Tenant's use of the Leased Premises results in an increase in the
cost of any insurance relating to the Landlord's Property, Tenant shall pay such
additional cost to Landlord upon demand. Tenant shall comply with all applicable
laws, ordinances, regulations and/or deed and plat restrictions affecting the
use and occupancy of the Leased Premises. Tenant shall not commit, or permit to
be committed, any waste or nuisance on the Leased Premises.
Section 4.2. Utility Charges. Tenant shall be responsible for its pro rata
share of all charges for heat, water, gas,
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sewer, electricity or any other utility used or consumed in the Leased Premises
including supplemental heating and charges for operation of heating, ventilating
and air conditioning equipment. In no event shall Landlord be liable for an
interruption or failure in the supply of any such utilities to the Leased
Premises. Tenant shall promptly pay for upon request of Landlord its pro rata
portion of such utility charges. Tenant's portion of such charges shall be based
on Tenant's portion of the net leasable area in the Building with appropriate
adjustments for use by Tenant more than normal business hours (initially 7 a.m.
to 7 p.m., Monday through Friday and 8:00 a.m. to 12:00 noon on Saturday) as
reasonably determined by Landlord. Landlord reserves the right to modify the
normal business hours schedule as warranted. The initial charge for one
additional hour of utility usage from November through April shall be $20.00 and
from May to October, $20.00. Landlord reserves the right to alter the per hour
charge as warranted.
Section 4.3. Taxes on Leasehold. Tenant shall be responsible for and shall
pay before delinquency all municipal, county, state, or other taxes assessed
during the term of this Lease against any leasehold interest or personal
property of any kind, owned by or placed in, upon or about Leased Premises by
Tenant.
Section 4.4. Assignment or Subletting. Tenant agrees not to sell, assign,
mortgage, pledge or in any manner transfer this
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Lease or any estate or interest thereunder and not to sublet the Leased Premises
or any part or parts thereof without the prior written consent of Landlord in
each instance which consent shall not be unreasonably withheld. Consent by
Landlord to one assignment of this Lease or to one licensing or subletting of
the Leased Premises shall not be a waiver of Landlord's rights hereunder as to
subsequent assignment or subletting. Landlord's rights to assign this Lease are
and shall remain unqualified. The foregoing notwithstanding, commencing as of
April 1, 2000, Tenant shall have the right to assign this Lease in its entirety,
or sublet all or any portion or portions of the Leased Premises, without the
necessity of obtaining the consent of Landlord provided that Persoft, Inc.
(provided it then currently leases space from Landlord in the Building and is
not then in default under the terms of its lease with Landlord) shall have a
first right of refusal to lease any block of space exceeding 2,000 square feet
which Tenant makes available for sublease or assignment to unrelated and
unaffiliated parties. This right of first refusal shall be exercised as follows:
Tenant, upon determining that such space has or will become available for
rental during the term of this Lease, shall provide to Persoft, Inc.
written notice addressed to 000 Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxx,
specifying the date on which such space will be available, the number of
square feet of floor space
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comprising such space, and the rental rate therefor. Persoft, Inc. may
elect to rent such space by written notice delivered to Tenant within
fourteen (14) days following the date of Tenant's notice. Persoft Inc.'s
written notice shall obligate it to lease such space on the terms proposed
in Tenant's notice. If Tenant has not received Persoft, Inc.'s notice
within such fourteen (14) day period, Persoft, Inc.'s right to lease such
space shall end provided Tenant actually leases such space within 90 days
thereafter and further provided that Persoft, Inc. shall have a right of
first refusal to lease such space, if such space again becomes available
for rental during the term of this Lease.
No such assignment or sublet shall relieve Tenant of any of its obligations
hereunder unless Landlord expressly agrees otherwise.
Section 4.5. Rules and Regulations. The rules and regulations appended to
this Lease as Exhibit C are hereby made a part of this Lease, and Tenant agrees
to comply with and observe the same. Tenant's failure to keep and observe said
rules and regulations shall constitute a breach of the terms of this Lease in
the manner as if the same were contained herein as covenants. Landlord reserves
the right from time to time to amend or supplement said rules and regulations
and to adopt and promulgate additional rules and regulations applicable to
Leased Premises.
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Notice of such additional rules and regulations, and amendments and supplements,
if any, shall be given to Tenant, and Tenant agrees thereupon to comply with and
observe all such rules and regulations and amendments thereto and supplements
thereof.
Section 4.6. Surrender. On the last day of the term of this Lease,
including any option term, or upon the sooner termination thereof, Tenant shall
peaceably and quietly surrender the Leased Premises and all improvements thereon
in the same condition as at the commencement of this Lease, in good order,
condition and repair, fire and other unavoidable casualty, and reasonable wear
and tear excepted. All alterations, additions, improvements and fixtures which
may be made or installed by either Landlord or Tenant upon the Leased Premises
shall remain the property of Landlord and shall remain upon and be surrendered
with the Leased Premises as a part thereof, without disturbance, molestation or
injury at the termination of the term of this Lease, whether by the elapse of
time or otherwise, all without compensation or credit to Tenant. At any time
prior to surrender of the Leased Premises the Tenant may, if not then in
default, remove all personal property (not including trade fixtures) not
attached to the Leased Premises, and signs installed at Tenant's expense. Any
property not so removed shall be deemed abandoned and shall become the property
of Landlord; provided, that the Landlord shall have the option to effect removal
of such personal property and Tenant shall pay Landlord, on demand, the cost
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thereof, with interest at the rate of ten (10%) percent per annum from the date
of such removal by Landlord, or the prime interest rate established by the
Firstar Bank Madison, N.A. or its successors or assigns, whichever is higher.
If, prior to surrender of the Leased Premises or within twenty (20) days
thereafter, Landlord so directs by written notice to Tenant, Tenant shall repair
any damage occasioned by such removals and Tenant will pay to Landlord, on
demand, the cost thereof with interest from the date of completion of such
repairs by Landlord, a the rate specified in the immediately preceding paragraph
of this Lease.
The delivery to Landlord at the place then fixed for the payment of rent
of the keys to the Leased Premises shall constitute surrender of the premises by
Tenant and acceptance of the keys by Landlord shall constitute acceptance by
Landlord of such surrender. Such acceptance by Landlord shall not constitute a
waiver of any rights to recover damages under terms of this Lease. This method
of surrender shall not be exclusive and shall be in addition to all other
methods of surrender.
Anything in this section to the contrary notwithstanding, at any
termination of this Lease, Landlord shall have a lien upon all of the property
of Tenant then located in or upon the Leased Premises to secure the payment of
any amounts due from Tenant to Landlord by reason of this Lease or to secure the
payment of damages, and Landlord may retain possession of such property until
payment in full of said amounts. Said lien shall not be defeated by placing such
property in storage. If Tenant has not redeemed said property within ninety (90)
days after the termination of said Lease, Landlord may sell such property
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at public or private sale without further notice to Tenant, and shall apply in a
reasonable manner determined by Landlord the proceeds of sale to reduce the
amounts then owed from Tenant to Landlord. The foregoing notwithstanding, Tenant
shall be entitled to remove property from the Leased Premises subsequent to such
termination, after written request therefor has been provided to Landlord
specifying the items to be removed. Landlord shall allow such removal to the
extent the value of property remaining subject to Landlord's lien reasonably
secures all amounts due Landlord. The rights of holders of liens superior to the
lien provided for herein shall be recognized by Landlord consistent with
applicable laws and statutes.
Section 4.7. Corporate Ownership. If the Tenant is a corporation and if at
any time during the term of this Lease any part or all of the corporate shares
of said corporation shall be transferred by sale, assignment, operation or law
or other disposition (except transfers by gift, bequest or inheritance) so that
the result of such transfer would be the loss of voting control of said
corporation by the person or persons owning a majority of said corporate shares
at the date of this Lease, the Tenant shall notify the Landlord in writing of
such changes in
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voting control and Landlord may terminate this Lease by giving Tenant written
notice of such termination within ninety (90) days after receipt of Tenant's
notice. The foregoing notwithstanding, this section shall not apply to any
changes, assignments or transfers resulting from the following:
(a) a transfer of or change in the ownership interest of
Tenant as long as the new ownership interest continues
to operate the business of the Tenant in the same manner
and has a financing net worth equal to or greater than
the transferring owner;
(b) a transfer of stock pursuant to a public offering of the
capital stock of Tenant;
(c) the merger, consolidation or amalgamation of Tenant with
a third party for the sale of all, or substantially all,
of the stock or assets of Tenant as long as the
surviving entity continues to operate the business of
the Tenant in the same manner and either (i) has a net
worth equal to or greater than the Tenant or (ii) can
reasonably demonstrate that it has the financial
capacity to perform the Tenant's obligations under this
Lease; or
(d) a transfer to (i) Tenant's management group in
accordance with or similar to the
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proposals described in memorandum the "Memorandum')
dated November 1, 1994 prepared by Resource Capital
Associates, Inc. with X.X. Xxxxxx & Associates, (ii) a
parent, (iii) subsidiary or (iv) affiliate (as
hereinafter defined) of Tenant.
For purposes of this Section, an "affiliate of Tenant" shall mean any
trust, corporation, limited liability company or partnership; (i) which owns or
"controls" the majority of the ownership interest of Tenant, either directly or
indirectly through other entities, (ii) a majority of whose ownership interest
is owned or controlled by Tenant, (iii) the majority of whose ownership interest
is owned or controlled by an entity described in clause (i) above, or (iv) which
owns or controls a majority of the ownership interest of Tenant. As used in this
section, the phrase "ownership interest" shall mean a general partnership
interest if Tenant is a partnership, membership interest if Tenant is a limited
liability company and capital stock if Tenant is a corporation, and the word
"control" shall mean the right or power to direct or cause the direction of the
management policies of the entity in questions.
ARTICLE 5
COMMON USE AREAS AND FACILITIES
Section 5.1. Common Area. As used herein, "common area" shall include all
of that portion of the Building which are
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designed for common use and benefit, exclusive of space designed for rental to
Tenants for commercial purposes as the same may exist from time to time.
Section 5.2. Use of Common Area. Landlord hereby grants to Tenant, its
employees, agents, customers and invitees, the nonexclusive right during the
term of this Lease to use the common areas from time to time constituted, such
use to be in common with landlord and all tenants of Landlord from time to time,
its and their employees, agents, customers and invitees, except when the same
are being repaired.
Section 5.3. Operation and Maintenance. The common area shall at all times
be subject to the exclusive control and management of Landlord and Landlord
shall manage, operate, repair and maintain the common area and its facilities in
a clean and sightly condition. The manner in which such area and facilities
shall be maintained and the expenditures therefor shall be at the Landlord's
sole discretion.
Section 5.4. Preventing Public Rights. If Landlord deems it necessary in
order to prevent the acquisition of special rights, Landlord may from time to
time close all or any portion of the common area or take such action as shall be
reasonably appropriate for that purpose.
Section 5.5. Charge for Common Area and Facilities. During the term of
this Lease Tenant shall pay to Landlord an annual charge which shall be Tenant's
pro rata share of the Landlord's
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actual cost of operating, repairing, and maintaining the common area and other
facilities which shall include, but is not limited to driveways, parking areas,
landscaped and vacant areas, areaways, walks, curbs, corridors, stairwells,
gardens, sanitary and storm sewers, signs, public facilities such as washrooms,
drinking fountains, toilets, the cost of operating and repairing, lighting,
heating, ventilating and air conditioning systems, cleaning, painting, removing
of snow, ice and debris, policing and inspecting, insurance for hazards and
other risks, maintenance including but not limited to such repair of paving,
curbs, walkways, driveways, landscaping and drainage and lighting facilities as
may be necessary from time to time to keep the same in good condition and
repair, a reasonable allowance for the depreciation of maintenance equipment, a
reasonable allowance for Landlord's overhead costs in conjunction with the
foregoing, and all costs and expenses other than those of a capital nature, but
excluding legal fees recovered by Tenant from Landlord in any litigation
relating to this Lease. Landlord shall provide Tenant with an itemized statement
of such costs upon request.
Section 5.6. Formula For Pro Rata Share. The annual charge for common area
maintenance and facilities shall be computed on the basis of twelve (12)
consecutive calendar months commencing and ending on dates designated by the
Landlord and shall be paid in advance in monthly installments on the first day
of each calendar month in an amount estimated by Landlord. Within sixty
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(60) days after the end of each such twelve (12) month period, Landlord shall
determine and furnish to Tenant a computation of the actual amount charged for
such period; and the amounts so estimated and paid during such period shall be
adjusted promptly (including adjustments on a pro rata basis for any partial
such period at either end of the Lease term) by one party's paying to the other
whatever amount is necessary to effectuate such adjustment.
The Tenant's pro rata share of the Landlord's actual costs defined in this
Article shall be that portion which the area in the Leased Premises bears to the
total leasable area in the Building.
Section 5.7. Basis For Changes. Changes in any particular floor area
occurring during any calendar month shall be effective on the first day of the
next succeeding calendar month and the amounts of any floor area in effect for
the whole of any year shall be the average of the total amounts in effect on the
first day of each calendar month in such year.
ARTICLE 6
INSURANCE
Section 6.1. Casualty Insurance. Landlord shall at all times during the
term of this Lease keep all improvements which are now or hereafter located on
the Landlord's Property insured against loss or damage by fire and the extended
coverage hazards at full insurance value with loss payable to Landlord,
Landlord's
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mortgagee and such other parties as Landlord may designate, as their interests
may appear.
Tenant agrees to reimburse Landlord for its pro rata share of the cost of
such insurance. Tenant's pro rata share shall be equal to its pro rata share for
purposes of allocating common area maintenance charges under Section 5.6 of this
Lease. Each month Tenant shall pay to Landlord an amount equal to one-twelfth
(1/12) of its pro rata share of the estimated annual casualty insurance premium.
Upon Landlord's receipt of any premium notice, Tenant shall upon demand make up
any deficiency to the extent of its pro rata share.
Section 6.2. Public Liability Insurance. Landlord shall at all times
during the term of this Lease keep in full force and effect a policy of public
liability and property damage insurance with respect to the Landlord's Property
and all business operated thereon, with limits of public liability not less than
One Million and No/100 ($1,000,000.00) Dollars for injury or death in any one
occurrence, and property damage liability insurance in the amount of One Hundred
Thousand and No/100 ($100,000.00) Dollars. The policies shall name Landlord,
Tenant and Landlord's mortgagees and the lessor on the underlying ground lease
as coinsureds as their interests may appear. Upon written request by Tenant,
Landlord shall provide the Tenant with evidence of such insurance, including
identification of the Tenant as a coinsurer. Landlord may from time to time
during the term of this
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Lease reasonably increase the above stated coverage in its discretion. Tenant
shall reimburse Landlord for its pro rata share of the cost of such insurance in
the same manner as provided in Section 6.1 regarding casualty insurance.
Section 6.3. Tenant's Contents. Tenant shall be responsible for obtaining
such insurance as it may deem advisable for all property located in the Leased
Premises. It is understood that the insurance carried by Landlord does not cover
the risk of loss or damage to Tenant's property. Tenant waives any claim against
Landlord and shall save Landlord harmless from any claim for loss or damage to
contents, merchandise, fixtures, equipment or work done by Tenant regardless of
the cause of any such damage or loss.
Section 6.4. Increase in Fire Insurance. Tenant agrees that it will not
keep or use, in or upon the Leased Premises any article which may be prohibited
by the standard form fire insurance policy. If Tenant's use or occupancy causes
any increase in premiums for fire or casualty insurance on the Landlord's
Property, or the Leased Premises, or any part thereof, above the rate of the
least hazardous type of occupancy legally permitted in the Leased Premises,
Tenant shall pay the additional premium on such insurance. No part of such
additional premium resulting from the use or occupancy of another tenant shall
be charged to Tenant under Sections 6.1 and/or 6.2 of this Lease. The Tenant
shall also pay in such event any additional premium on
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any rent insurance policy that may be carried by the Landlord for its protection
against rent loss through fire or other casualty. Bills for such additional
premiums shall be rendered by Landlord to Tenant at such times as Landlord may
elect, and shall be due and payable by Tenant when rendered, and the amount
thereof shall be deemed to be, and be paid as, additional rent.
Section 6.5. Hold Harmless. Landlord shall not be liable for any loss,
injury, death, or damage to persons or property which at any time may be
suffered or sustained by Tenant or by any person whosoever may at an time be
using or occupying or visiting the Landlord's Property or be in, on, or about
the same, whether such loss, injury, death, or damage shall be caused by or in
any way result from or arise out of any act, omission, or negligence of Tenant
or of any occupant, subtenant, visitor, or user of any portion of the Landlord's
Property, or shall result from or be caused by any other matter or thing whether
of the same kind as or of a different kind than the matters or things above set
forth, and Tenant shall indemnify Landlord against all claims, liability, loss
or damage whatsoever on account of any such loss, injury, death or damage.
Tenant hereby waives all claims against Landlord for damages to the building and
improvements that are now on or hereafter placed or built on the Landlord's
Property and to the property of Tenant in, on, or about the Landlord's Property,
and for injuries to persons or property in or about the Landlord's Property,
from any cause
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arising at any time. The two preceding sentences shall not apply to loss,
injury, death, or damage arising by reason of the negligence or misconduct of
Landlord, its agents, or employees.
Section 6.6. Waiver of Subrogation. Landlord and Tenant hereby release
each other from any and all liability or responsibility to the other (or to
anyone claiming through or under them by way of subrogation or otherwise) for
any loss or damage to property caused by fire or any of the extended coverage or
supplementary insurance contract casualties, even if such fire or other casualty
shall have been caused by the fault or negligence of the party or anyone for
whom such party may be responsible, provided, however, that this release shall
be applicable and in force and effect only in respect to loss or damage
occurring during such time as the releaser's policies shall contain a clause or
endorsement to the effect that any such release shall not adversely effect or
impair or prejudice the right of the releaser to recover thereunder. Landlord
and Tenant each agree that their policies will include such a clause or
endorsement so long as the same is obtainable and if not obtainable, shall so
advise the other in writing and such notice shall release both parties from the
obligation to obtain such a clause or endorsement.
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ARTICLE 7
DESTRUCTION OF LEASED PREMISES
Section 7.1. Destruction of Leased Premises. If the building which
includes the Leased Premises is damaged or partially destroyed by fire or other
casualty to the extent of less than one-quarter (1/4) of the then cost of
replacement thereof above foundation, the same shall be repaired as quickly as
is practicable, by Landlord, except that the obligation of Landlord to rebuild
shall be limited to repairing or rebuilding of Landlord's improvements. If the
building which includes the Leased Premises is so destroyed or damaged to the
extent of one-quarter (1/4) or more of the then replacement cost thereof, then
Landlord or Tenant may elect to terminate this Lease by giving notice in writing
to the other party, in which event this Lease shall be terminated as of the date
of such notice.
Section 7.2. Rebuilding by Landlord. If Landlord shall undertake to
restore or repair the building which includes the Leased Premises, it shall
initiate and pursue the necessary work with all reasonable dispatch, in a manner
consistent with sound construction methods.
Section 7.3. Abatement of Rent Upon Destruction of Premises. If such
damage or partial destruction renders the Leased Premises wholly untenantable,
the base rent shall xxxxx until the Leased Premises have been restored and
rendered tenantable. If such damage or partial destruction renders the
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premises untenantable only in part, the base rent shall xxxxx proportionately as
to the portion of the Leased Premises rendered untenantable. Rent shall not
xxxxx under this section if the damage or destruction is caused by the
negligence or misconduct of Tenant, its agents, employees, customers or
invitees.
ARTICLE 8
EFFECT OF CONDEMNATION
Section 8.l. Total Condemnation. In the event that the Leased Premises or
such part of the Leased Premises as will render the remainder untenantable,
shall be appropriated or taken under the power of eminent domain by any public
or quasi-public authority, this Lease shall terminate and expire as of the date
of taking.
Section 8.2. Partial Condemnation. In the event of partial condemnation,
not rendering the remainder of the Leased Premises untenantable, this Lease
shall remain in full force and effect, with the exception that the base rent
shall be reduced in proportion to the area of the Leased Premises lost by
condemnation.
Section 8.3. Landlord's Damages. In the event of any condemnation or
taking, whether whole or partial, the Tenant shall not be entitled to any part
of the award paid for such condemnation and Landlord is to receive the full
amount of such award, the Tenant hereby expressly waiving any rights or claim to
any part thereof.
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Section 8.4. Tenant's Damages. Although all damages in the event of any
condemnation are to belong to the Landlord whether such damages are awarded as
compensation for diminution in value of the leasehold or to the fee of the
Leased Premises, Tenant shall have the right to claim and recover from the
condemning authority, but not from Landlord, such compensation as may be
separately awarded or recoverable by Tenant in Tenant's own right on account of
any and all damage to Tenant's business by reason of the condemnation, and for
or on account of any cost or loss to which Tenant might be put in removing
Tenant's property.
ARTICLE 9
REMEDIES
Section 9.1. Events of Default by Tenant. Upon the failure by Tenant to
pay rent when due, Landlord may terminate this Lease or Tenant's right to use
and occupy the Leased Premises by ten (10) days' written notice to Tenant unless
Tenant within such ten (10) days pays all rent due. Upon the happening of any
one or more of the following events: (a) the levying of a writ of execution or
attachment on or against the property of Tenant; (b) the taking of any action
for the voluntary dissolution of Tenant; (c) the commencement of a mechanic's
lien foreclosure action against Tenant as a result of a mechanic's lien or claim
therefor against the land or Building of which the Leased Premises are a part;
and (d) the failure of Tenant to perform any other of the terms, provisions, and
covenants of this Lease, Landlord may
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terminate this Lease or Tenant's right to use and occupy the Leased Premises by
thirty (30) days' written notice to Tenant unless Tenant, within such thirty
(30) day period, cures the specified default or, if the default is of a
character which cannot be cured within thirty (30) days, the Tenant commences
and diligently pursues the cure of such default within thirty (30) days.
Section 9.2. Re-Entry by Landlord. Upon such termination of the Lease or
termination of Tenant's right to use and occupy the Leased Premises as
aforesaid, or if Tenant at any time during the term of this Lease vacates the
premises or ceases operating said business in the entire or any appreciable part
of the Leased Premises, except for causes beyond its control, Landlord may
reenter the Leased Premises. For purposes of this Lease "appreciable part" shall
mean 40% or more of the Leased Premises.
Section 9.3. Right to Relet. Should Landlord elect to reenter, as herein
provided, or should it take possession pursuant to legal proceedings or pursuant
to any notice provided for by law, it may either terminate this Lease or it may
from time to time without terminating this Lease, make such alterations and
repairs as may be necessary in order to relet the Leased Premises, and relet the
Leased Premises or any part thereof for such term or terms (which may be for a
term extending beyond the term of this Lease) and at such rental or rentals upon
such other terms and conditions as Landlord in its sole
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discretion may deem advisable upon each such reletting. All rentals received by
the 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 of such alterations and repairs; third, to the payment
of rent due and unpaid future rent as the same may become due and payable
hereunder. If such rentals received from such reletting during the month be less
than that to be paid during that month by Tenant hereunder, Tenant shall pay any
such deficiency to Landlord. Such deficiency shall be calculated and paid
monthly. No such re-entry or taking possession of said premises by Landlord
shall be construed as an election in 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. 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
reenter or 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 such breach, including the cost of recovering the Leased Premises and
reasonable attorney's fees, all of which amounts shall be immediately due and
payable from Tenant to Landlord.
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Section 9.4. Parties May Remedy Defaults. In the event of any breach
hereunder by either party, and in lieu of Landlord's terminating this Lease as
herein provided, Landlord or Tenant respectively may immediately or at any time
thereafter, after having given the other party the requisite notice to correct
the same and that time for such correction having elapsed, cure such breach for
the account and at the expense of the other party. If Landlord or Tenant at any
time, by reason of such breach, is compelled to pay, or elects to pay, any sum
of money or do any act which will require the payment of any sum of money, or
incurs any expense, including reasonable attorney's fees, in instituting or
prosecuting any action or proceeding to enforce such party's rights hereunder,
the sum or sums so paid or incurred by such party, if paid or incurred by
Landlord, shall be deemed to be additional rent hereunder and shall be due from
Tenant to Landlord on the first day of the month following the payment of such
respective sums, and if paid or incurred by Tenant, shall be due and payable by
Landlord on demand without interest. This option given to the parties is
intended for their protection and its existence shall not release the parties
from the obligation to perform the terms and covenants herein provided to be
performed by the respective parties or deprive Landlord of any legal rights
which it may have by reason of any default of Tenant.
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Section 9.5. Landlord's Remedies; Liquidated Damages. In the event that at
any time, whether before or after the commencement of the term hereof, a
bankruptcy petition shall be filed by Tenant or against Tenant and Tenant shall
thereafter be adjudicated a bankrupt, or such petition shall be approved by the
court, in any court or pursuant to any statute either of the United States or of
any State, whether in bankruptcy, insolvency, for reorganization under Chapter
XI or XIII of the Bankruptcy Act or under any other provisions of the Bankruptcy
Act, or under the provisions of any law of like impact, for the appointment of a
receiver or trustee of Tenant or for the property of Tenant, or if Tenant shall
make an assignment of Tenant's property for the benefit of its creditors, or if
proceedings are instituted in a court of competent jurisdiction for the
reorganization, liquidation or involuntary dissolution of Tenant and said
involuntary petition or dissolution is not remedied within sixty (60) days, then
immediately upon the happening of any such event, and without any entry or other
act by Landlord, this Lease and the term and estate hereby granted (whether or
not the term shall therefore have commenced) shall expire, terminate and come to
an end in the same manner and with the same force and effect as if the date of
such occurrence were the date hereinbefore fixed for the expiration of the term
hereof. In the event of the termination of the term hereof by the happening of
any such event, Landlord shall forthwith upon such termination, and any
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other provisions of this Lease to the contrary notwithstanding, become entitled
to recover as and for liquidated damages caused by such breach of the provisions
of this Lease an amount equal to the difference between the net present value of
the then cash value of the rent reserved hereunder for the unexpired portion of
the demised term and the then cash rental value of the Leased Premises for such
unexpired portion of the term hereby demised unless the statute which governs or
shall govern the proceeding in which such damages are to be provided limits or
shall be entitled to prove as and for liquidated damages an amount equal to that
allowed by or under such statute. The provision of this paragraph shall be
without prejudice to Landlord's right to prove in full damages for rent accrued
prior to the termination of this Lease but not paid. This provision of this
Lease shall be without prejudice of any rights given Landlord by any pertinent
statute to prove any amounts allowed thereby. In making such computation, the
then cash rental value of the Leased Premises shall be deemed prima facie to be
the rent realized upon any reletting, if such reletting can be accomplished by
Landlord within a reasonable time after such a termination of this Lease.
Section 9.6. Expenses of Landlord. Upon the occurrence of an event of
default, notwithstanding anything herein to the contrary and whether or not
Landlord terminates this Lease, Tenant shall promptly, upon request, reimburse
Landlord for all
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costs and expenses reasonably incurred in enforcing this Lease, including
reasonable attorneys' fees.
Section 9.7. Waiver of Redemption. Tenant hereby expressly waives any and
all rights of redemption granted by or under any present or future laws in the
event of Tenant's being evicted or dispossessed for any cause, or in the event
of Landlord's obtaining possession of the Leased Premises, by reason for the
violation by Tenant of any of the covenants or conditions of this Lease, or
otherwise.
Section 9.8. Defaults of Landlord. Should Landlord be in default under the
terms of this Lease, Landlord shall cure such default within thirty (30) days
after written notice of such default from Tenant, or in the event such default
is of such a character as to require more than thirty (30) days to cure,
Landlord shall use due diligence to cure such default.
Section 9.9. Rights Cumulative. All rights and remedies of Landlord and
Tenant herein enumerated shall be cumulative and none shall exclude any other
right or remedy allowed by Law, and said rights and remedies may be exercised
and enforced concurrently and whenever and as often as occasion therefor arises.
ARTICLE 10
MISCELLANEOUS
Section 10.1. Subordination. At Landlord's option, this Lease shall be
subordinated to any existing mortgages covering
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the Leased Premises, any extension or renewal thereof, or to any new mortgages
which may be placed thereon from time to time, provided, however, anything to
the contrary contained herein notwithstanding, every such mortgage shall contain
a provision that the mortgagee shall recognize the validity of this Lease in the
event of foreclosure of the Landlord's interest so long as Tenant shall not be
in default under the terms of this Lease. Tenant shall execute whatever
instruments may be required to effect such subordination.
Section 10.2. Sale of Property. Landlord shall have the right at any time
to sell, transfer or convey its interest in all or any portion(s) of Landlord's
Property, improvements and buildings of which the Leased Premises are a part to
any person, firm or corporation whatsoever, and upon any such sale, transfer or
conveyances, Landlord shall cease to be liable under any covenant, condition or
obligation imposed upon it by this Lease, or any of the terms and provisions
thereof; provided, however, that any such sale, transfer or conveyance shall be
subject to this Lease and that all of the Landlord's covenants and obligations
contained herein shall be binding upon the subsequent owner or owners thereof;
and provided further that such transferee from Landlord shall in writing assume
the obligations of Landlord hereunder.
Section 10.3. Offset Statement. Within ten (10) days after request
therefor by Landlord, or in the event that upon any sale,
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assignment or hypothecation of the Leased Premises and/or all or any portion(s)
of the Landlord's Property by Landlord an offset statement shall be required by
Tenant; Tenant agrees to deliver in recordable form a certificate to any
proposed mortgagee or purchaser, or to Landlord, certifying (if such be the
case) that this Lease is in full force and effect and that there are no defenses
or offsets thereto, or stating those claimed by Tenant.
Section 10.4. Attornment. Tenant shall, in the event any proceedings are
brought for the foreclosure of, or in the event of exercise of the power or sale
under any mortgage made by the Landlord covering the Leased Premises, attorn to
the purchaser upon any such foreclosure or sale and recognize such purchaser as
the Landlord under this Lease.
Section 10.5. Recording. Tenant shall not record this Lease without the
written consent of Landlord; however, upon the request of either party hereto
the other party shall join in the execution of memorandum or so called "short
form" of this Lease for the purpose of recordation. Said memorandum or short
form of this Lease shall describe the parties, the Leased Premises and the term
of this Lease and shall incorporate this Lease by reference.
Section 10.6. Excavations. In case any excavation shall be made for
buildings or improvements or for any other purpose upon the land adjacent to or
near the Leased Premises, Tenant will afford to Landlord, or the person or
persons, firms or
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corporations causing or making such excavation, license to enter upon the Leased
Premises for the purpose of doing such work as Landlord or such person or
persons, firms or corporations shall deem to be necessary to preserve the walls
or structures of the building from injury, and to protect the building by proper
securing of foundations. Insofar as Landlord may have control over the same, all
such work shall be done in a manner as will not materially interfere with the
operation of Tenant's business in the Leased Premises.
Section 10.7. Access to Premises. Landlord reserves for itself and the
landlord under the underlying ground lease, the right to enter upon the Leased
Premises at all reasonable hours, upon reasonable advance notice, for the
purpose of inspecting the same, or of making repairs, additions or alterations
to the building in which the Leased Premises are located, to exhibit the Leased
Premises to prospective tenants, purchasers or others, to display during the
last ninety (90) days of the term, without hindrance or molestation by Tenant,
"For Rent" or similar signs on the exterior of the Leased Premises. The exercise
by Landlord of any of its rights under this provision shall not be deemed an
eviction or disturbance of Tenant's use and possession of the Leased Premises.
Section 10.8. Quiet Enjoyment. If and so long as Tenant pays the rent
reserved by this Lease and performs and observes all of the covenants and
provisions hereof, Tenant shall quietly
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enjoy the Leased Premises, subject, however, to the terms of this Lease.
Section 10.9. Notices. Any notice required or permitted under this Lease
shall be deemed sufficiently given or served if sent by certified mail to Tenant
at the address of the Leased Premises, and to Landlord at its office or such
other place as it may designate in writing, and either party may by like written
notice at any time and from time to time designate a different address to which
notices shall subsequently be sent. Notices given in accordance with these
provisions shall be deemed received when mailed.
Section 10.10. Holding Over. In the event Tenant remains in possession of
the Leased Premises after the expiration of this Lease and without the execution
of a new Lease, it shall be deemed to be occupying said premises as a Tenant
from month-to-month, subject to all conditions, provisions and obligations of
this Lease insofar as the same are applicable to a month-to-month tenancy.
Nothing in this section shall operate to preclude Landlord from removing Tenant
from the Leased Premises upon the expiration of this Lease.
Section 10.11. Consents by Landlord. Whenever under this Lease provision
is made for Tenant securing the written consent or approval of Landlord, such
consent or approval will not be unreasonably withheld.
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Section 10.12. Successors and Assigns. The terms, covenants and conditions
hereof shall be binding upon and inure to the successors in interest and assigns
of the parties hereto.
Section 10.13. Governmental Regulations. Tenant shall, at Tenant's sole
cost and expense, comply with all of the requirements of all city, county,
municipal, state, federal and other applicable governmental authorities, now in
force, or which may hereafter be in force, pertaining to signs, installations,
repairs and business operations in the Leased Premises and shall faithfully
observe all statutes now in force or which may hereafter be in force.
Section 10.14. Certain Expenses of Landlord. Any out-of-pocket expenses
reasonably incurred by Landlord for purposes of considering or acting upon any
request for consent or waiver under, or modification of, any of the provisions
of this Lease, including reasonable attorney's fees, shall be promptly
reimbursed by Tenant upon Landlord's request.
Section 10.15. Force Majeure. In the event that either Landlord or Tenant
shall be delayed or hindered in or prevented from the performance of any act
required hereunder by reason of strikes, lock outs, labor disputes, inability to
procure materials, failure of power, restrictive governmental laws or
regulations, riots, insurrection, war or other reason of a like nature not
attributable to the negligence or fault of the party delayed in performing work
or doing acts required under the terms
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of this Lease, then performance of such act shall be excused for the period of
the unavoidable delay and the period for the performance of any such act shall
be extended for an equivalent period. Provided, however, that this provision
shall not operate to excuse Tenant or Landlord from the timely payment of rent
and other payments required by the terms of this Lease.
Section 10.16. General. Nothing contained in this Lease shall be deemed or
construed by the parties hereto or by any third party to create the relationship
of principal and agent or of partnership or of joint venture or of any
association between Landlord and Tenant, it being expressly understood and
agreed that neither the method of computation of rent nor any other provisions
contained in this Lease nor any acts of the parties hereto shall be deemed to
create any relationship between Landlord and Tenant other than the relationship
of landlord and tenant. No waiver of any default of Tenant or Landlord hereunder
shall be implied from any omission by Landlord or Tenant any action on account
of such default if such default persists or is repeated, and no express waiver
shall affect any default other than the default specified in the express waiver
and that only for the time and to the extent therein stated. One or more waivers
of any covenant, term or condition of this Lease by Landlord or Tenant shall not
be construed as a waiver of a subsequent breach of the same covenant, term or
conditions. The consent or approval by Landlord to or of any act by Tenant
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requiring the Landlord's consent or approval shall not be deemed to waive or
render unnecessary Landlord's consent or approval to or of any subsequent
similar act by Tenant. The invalidity or unenforceability of any provision
hereof shall not affect or impair any provision. The plural sense where there is
more than one tenant and to either corporations, associations, partnership or
individuals, male or females, shall in all instances be assumed as though in
each case fully expressed. The laws of the State of Wisconsin shall govern the
validity, performance and enforcement of this Lease. The submission of this
Lease for examination does not constitute a reservation of or option for the
Leased Premises and this Lease becomes effective as a Lease only upon execution
and delivery thereof by Landlord and by Tenant. The headings contained herein
are for convenience only and do not define, limit or construe the contents of
the provisions hereof. All negotiations, representations and understandings
between the parties are incorporated herein and may be modified or altered only
by agreement in writing between the parties.
Section 10.17. Effect of Ground Lease. Tenant acknowledges that Landlord
is presently leasing Landlord's Property under a ground lease having a term
equal to or greater than the term of this Lease. Tenant further acknowledges
that all of its rights under this Lease are specifically subordinate to the
rights of
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the landlord named in said ground lease and its successors and assigns.
ARTICLE 11
ATTACHMENTS
Section 11.1. Attachments. The following are attached hereto and made a
part hereof with the same force and effect as if set forth in full herein:
Exhibit A: Legal Description of Landlord's Property.
Exhibit B-1: Location of Building on Landlord's Property.
Exhibit B-2: Location of Leased Premises in Building.
Exhibit C: Rules and Regulations.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease and
affixed their respective seals as of the day, month and year first above
written.
LANDLORD: TENANT:
UNIVERSITY RESEARCH PARK RCG/HAGLER, BAILLY, INC.
FACILITIES CORP.
BY: /S/ Xxxxx X. XxXxxx BY: /S/ Xxxxxxx Xxxxxx
----------------------------- ----------------------------
Xxxxx X. XxXxxx, Assistant Xxxxxxx Xxxxxx
Secretary/Treasurer Title: President
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EXHIBIT A
LEGAL DESCRIPTION OF LANDLORD'S PROPERTY
Lot 4 of University Research Park, University of Wisconsin Madison in the City
of Madison, Dane County, Wisconsin.
[XXXXX Note: Please see Appendix for description of omitted graphics]
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B-1
[XXXXX Note: Please see Appendix for description of omitted graphics]
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EXHIBIT B-2
[XXXXX NOTE: Please see Appendix for description of omitted graphics]
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EXHIBIT C
RULES AND REGULATIONS
The Building shall be a smoke-free environment. No Smoking shall be
permitted anywhere in the Building or in or around the Main entrance (fronting
on Science Drive) to the Building.
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Page 46: Written and pictoral legal description of Lot 4 of University Research
Park, University of Wisconsin - Madison in the City of Madison,
Dane County, Wisconsin.
Page 47: Pictoral depiction of Site Plan
Page 48: Floorplan for 000 Xxxxxxx Xxxxx indicating leased premises and common
areas
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