Exhibit 10.11
CITYPLEX TOWERS LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made and entered into on this the
4th day of January, 2000 between Oral Xxxxxxx University, an Oklahoma
Corporation ("Landlord") and Digimarc Corporation ("Tenant").
W I T N E S S E T H:
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1. Definitions.
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(a) "Project" shall mean the real property described in Exhibit "A"
attached hereto and made a part hereof and the improvements constructed thereon.
(b) "Building" shall mean the CityPlex Towers Building, located on
the real property described in Exhibit "A" attached hereto and made a part
hereof which has a street address of 0000 X. 00xx Xxxxxx, Xxxxx 0000, Xxxxx,
Xxxxxxxx 00000.
(c) "Premises" shall mean the suite of offices outlined on the floor
plan attached to this Lease as Exhibit "B" attached hereto and made a part
hereof. Landlord warrants that the Premises contain 11,750 square feet of "Net
Rentable Area" (as hereafter defined). The Premises are located in the Building.
(d) "Base Rental" shall mean the sum of $(See Addendum) per annum as
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adjusted under Paragraph 29 hereof. The Base Rental due for the first month of
the Lease Term (as hereafter defined) has been deposited with Landlord by Tenant
contemporaneously with the execution hereof.
(e) "Commencement Date" shall mean January 15, 2000, except as such
date may be delayed pursuant to the provisions of Paragraph 3(c) hereof.
(f) "Lease Term" shall mean the term commencing on the Commencement
Date and continuing until forty-eight (48) months after the first day of the
first full month following the Commencement Date.
(g) "Security Deposit" shall mean the sum of $11,260.42.
(h) "Building Common Areas" shall mean those areas devoted to lobbies
and entryways.
(i) "Common Areas" shall mean the Building Common Areas and
corridors, elevator foyers, restrooms, mechanical rooms, janitorial closets,
electrical and telephone closets, vending areas and other similar facilities
provided for the common use or benefit of tenants generally and/or the public.
(j) "Single Floor Common Areas" shall mean that part of the Common
Areas located on a designated floor.
(k) "Service Areas" shall mean those areas within the outside walls
of the Building used for elevator mechanical rooms, building stairs, fire
towers, elevator shafts, flues, vents, stacks, pipe shafts and vertical ducts
(but shall not include any such areas for the exclusive use of a particular
Tenant).
(l) "Net Rentable Area" of one floor of the Building shall mean the
gross area within the inside surface of the outer glass or other material
comprising the exterior walls of the Building excluding the Common Areas and
Service Areas.
(m) "Net Rentable Area of the Building" shall mean the total of the
Net Rentable Area of all floors of the Building.
(n) "Net Rentable Area of the Premises" shall mean the gross area
within the inside surface of the outer glass or other material comprising the
exterior walls of the Premises to the mid-point of any walls separating portions
of the Premises from those of adjacent tenants and to the Common Areas or
Service Areas side of walls separating the Premises from Common Areas and
Service Areas, subject to the following:
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(1) Net Rentable Area of the Premises shall not include any
Service Areas and shall not include Exterior Common Areas.
(2) Net Rentable Area of the Premises shall include a pro rata
part of the Building Common Areas plus a pro rata part of the Single Floor
Common Areas on the floor on which the Premises are located, such
prorations based upon an allocation to each floor of the Building of
Building Common Areas (based upon the Net Rentable Area of each floor and
the Net Rentable Area of the Building, exclusive of Building Common Areas)
and upon the ratio of the Net Rentable Area of the Premises to the total
Net Rentable Area of such floor.
(3) Net Rentable Area of the Premises shall include any columns
and/or projection(s), which protrude into the Premises and/or the Common
Areas.
(o) "Basic Costs" intentionally omitted.
(p) "Exterior Common Areas" shall mean those areas of the Project
which are not located within the Building and which are provided and maintained
for the common use and benefit of Landlord and Tenants of the Building generally
and the employees, invitees and licensees of Landlord and such Tenants;
including without limitation all parking areas, enclosed or otherwise, all
streets, sidewalks and landscaped areas located within the Project.
(q) "Tenant Improvements", when used herein, shall mean those
improvements to the Premises which Landlord has agreed to provide pursuant to
the plans and specifications ("Plans") attached (or to be attached) hereto as
Exhibit "C" and made a part hereof. In the event the Plans are not attached to
this Lease as of the date of execution hereof, this Lease shall terminate, at
Landlord's option, on the day next following the 14th day from the date hereof
unless Landlord and Tenant initial and attach the Plans to this Lease on or
before such date. Landlord's approval of and initialing of any plans and
specifications shall be at Landlord's sole discretion. All Tenant Improvements
shall be made and constructed only by Landlord using Landlord's regular
contractors or Landlord's designee. Except to the extent otherwise agreed (and
described on an addendum to the Plans), the making and constructing of the
Tenant Improvements shall be at Tenant's expense. "Building Standard" shall mean
the type, brand and/or quality of materials Landlord designates from time to
time to be the minimum quality to be used in the Building or the exclusive type,
grade or quality of material to be used in the Building.
2. Lease Grant. Subject to and upon the terms herein set forth, Landlord
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leases to Tenant and Tenant leases from Landlord the Premises.
3. Lease Term.
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(a) This Lease shall continue in force during a period beginning on
the Commencement Date and continuing until the expiration of the Lease Term,
unless this Lease is sooner terminated or extended to a later day under any
other term or provision hereof.
(b) If by the date specified in Paragraph l(e) the Tenant
Improvements have not been substantially completed pursuant to the Plans due to
omission, delay or default by Tenant or anyone acting under or for Tenant,
Landlord shall have no liability as a result of such noncompletion and the
obligations of this Lease (including without limitation, the obligation to pay
rent) shall nonetheless commence as of the Commencement Date.
(c) If, however, the Tenant Improvements are not substantially
completed as of the Commencement date, but not more than fifteen (15) days after
the Commencement Date due to any reason other than an omission, delay or default
by Tenant or someone acting under or for Tenant, then, as Tenant's sole remedy
for the delay in Tenant's occupancy of the Premises, the Commencement Date shall
be delayed and the rent herein provided shall not commence until the earlier to
occur of actual occupancy by Tenant or completion of the Tenant Improvements.
If, however, the Tenant Improvements are not substantially completed within
fifteen (15) days after the Commencement Date due to any reason other than an
omission, delay or default by tenant or someone acting under or for Tenant,
then, as Tenant's sole remedy for the delay in Tenant's occupancy of the
Premises, the commencement Date shall be delayed and the rent herein provided
shall not commence until after Tenant has occupied the Premises for a number of
days equal to the Delay Period. The "Delay Period" means the number of days
from and
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including the Commencement Date to the earlier of the date the Tenant occupies
the Premises or the day after the Tenant Improvements are complete. The Tenant
Improvements will not be considered to be complete until the later of the date
the Tenant Improvements are actually completed or ten (10) business days after a
ten (10) day written notice is given to Tenant by Landlord of the date on which
the Tenant Improvements will be completed. If Tenant is given such ten (10) day
notice and the Tenant Improvements are not completed on or before the date
provided in the notice, then an additional ten (10) days shall be added to the
Delay Period after it is calculated as otherwise set forth in this paragraph.
4. Use. The Premises shall be used for office purposes and for no other
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purpose. Tenant agrees not to use or permit the use of the Premises for any
purpose which is illegal including the sale, directly or indirectly, of
pornographic material, or the sale of any other product or service which, in
Landlord's judgement, creates a nuisance or which would increase the cost of
insurance coverage with respect to the Project or the Building.
5. Base Rental.
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(a) Tenant agrees to pay to Landlord during the Lease Term, without
any setoff or deduction whatsoever, the Base Rental and all such other sums of
money as shall become due hereunder as additional rent, all of which are
sometimes herein collectively called "rent", for the nonpayment of which
Landlord shall be entitled to exercise all such rights and remedies as are
herein provided in the case of the nonpayment of Base Rental. The annual Base
Rental for each calendar year or portion thereof during the Lease Term, together
with any estimated adjustments thereto pursuant to Paragraphs 20, 21, and 29
hereof, shall be due and payable in advance in equal monthly installments on the
first day of each calendar month during the Lease Term and any extensions or
renewals thereof, and Tenant hereby agrees to pay such Base Rental and any
adjustments thereto to Landlord at Landlord's address provided herein (or such
other address in Tulsa County as may be designated by Landlord in writing from
time to time) monthly, in advance, and without demand. If the Lease Term
commences on a day other than the first day of a calendar month or terminates on
a day other than the last day of a calendar month, then the installments of Base
Rental and any adjustments thereto for such month or months shall be prorated,
based on the number of days in such month.
(b) In the event any installment of rent is not paid within five (5) days
of receipt of written notice, Tenant shall pay a late charge of $25.00 per day
for each day of delinquency.
6. Basic Cost Increase Adjustment. Intentionally omitted.
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7. Services to be Furnished by Landlord. Landlord agrees to furnish
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Tenant the following services:
(a) Hot and cold water at those points of supply provided for general
use of tenants in the Building on the floor(s) on which the Premises are located
and central heat and air conditioning in the Premises in season, at such
temperatures and in such amounts as are reasonably considered by Landlord to be
standard or as required by governmental authority. Landlord shall provide
heating, air-conditioning and electricity twenty-four (24) hours per day, seven
(7) days per week.
(b) Routine maintenance and electric lighting service for all
Exterior Common Areas, Building Common Areas, Single Floor Common Areas on the
floor on which the Premises are located, and Service Areas in the manner and to
the extent reasonably deemed by Landlord to be standard for comparable office
buildings in the Tulsa, Oklahoma area.
(c) Janitor service in the Premises, Monday through Friday, excluding
New Year's Day, Memorial Day, Independence Day, Thanksgiving, and Christmas;
provided, however, if Tenant's floor covering or other improvements require
special treatment, Tenant shall pay the additional cleaning cost attributable
thereto as additional rent upon presentation of a statement therefore by
Landlord. Tenant shall cooperate with Landlord's employees in the furnishing by
Landlord of janitorial services. Janitorial services performed by Landlord shall
be performed in such a manner as to not interfere unreasonably with Tenant's use
of the Premises. Such janitorial service shall be performed at time other than
during Normal Business Hours, as that term is defined in Paragraph 7(a).
(d) Subject to the provisions of Paragraph 13, facilities to provide
all electrical current required by Tenant in its use and occupancy of the
Premises.
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(e) All Building Standard fluorescent bulb replacement in the
Premises and fluorescent and incandescent bulb replacement in the Building
Common Areas, Single Floor Common Areas on the floor on which the Premises are
located, and Service Areas.
(f) Landlord shall provide security in the form of limited access to
the Building during other than Normal Business Hours. Such security shall
include the provision to Tenant of individual elevator access codes for access
to the Premises at times other than Normal Business Hours. Tenant shall provide
Landlord with a list of persons who have been given such access codes
periodically. Landlord, however, shall have no liability to Tenant, its
employees, agents, invitees or licensees for losses due to theft or burglary, or
for damages done by unauthorized persons on the Premises and Landlord shall not
be required to insure against any such losses. Tenant shall cooperate fully in
Landlord's efforts to maintain security in the Building and shall follow all
reasonable regulations promulgated by Landlord with respect thereto.
The failure by Landlord to any extent to furnish these services or the
interruption or termination of these defined services in whole or in part,
resulting from causes beyond the reasonable control of Landlord shall neither
render Landlord liable in any respect nor be construed as an eviction of Tenant,
nor work an abatement of rent, nor relieve Tenant from the obligation to fulfill
any covenant or agreement hereof so long as Landlord takes reasonable steps to
return such machinery or equipment to full working order. Should any of the
equipment or machinery used in the provision of such services for any cause
cease to function properly, Tenant shall have no claim for offset or abatement
of rent or damages on account of an interruption in service occasioned thereby
or resulting therefrom. However, to the extent Tenant is unable to use the
Premises as contemplated herein as a result of such failure, rent shall be
abated during the period of such inability.
8. Tenant Improvements. Except for those of the Tenant Improvements to
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be at Landlord's cost, all installations of fixtures or similar improvements now
or hereafter placed on the Premises shall be for Tenant's account and at
Tenant's cost (and Tenant shall pay any applicable ad valorem taxes and/or any
increased insurance thereon or attributable thereto). All such installations and
improvements must be approved in writing by Landlord in advance of installation
or construction.
9. Maintenance and Repair by Landlord. Except for repairs or
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replacements which Tenant is expressly required to make under this Lease,
Landlord shall pay for and make all other repairs and replacements to the
Premises, the Building, and the Project, including, without limitation, all
Exterior Common Areas, building Common Areas, Single Floor Common Areas, and
Service Areas. Landlord shall make the repairs and replacements to maintain the
building in a condition comparable to other comparable office buildings in the
Tulsa, Oklahoma area. This maintenance shall include the roof, foundation,
exterior walls, interior structural walls, all structural components, and all
systems such as mechanical, electrical, HVAC, and plumbing.
10. Graphics. Tenant shall not erect or install any sign or other type
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display whatsoever, either upon the exterior of the Building, upon or in any
window, or in any lobby, without the prior express written consent of Landlord.
The color and fabric of the lining of all drapes or, if unlined, the draperies
themselves which Tenant desires to place on exterior windows or openings of the
Building must be approved by Landlord prior to their installation so that a
uniform color appearance may be preserved from the exterior of the Building.
Landlord agrees to furnish a directory of the names and locations of its tenants
and to install and maintain the same at a convenient location in the lobby of
the Building. The initial listing of the name and room number of the Tenant
shall be furnished without charge. The listings of additional names or room
numbers and changes or revisions of listings shall be made by Landlord at the
cost of Tenant.
11. Care of the Premises by Tenant. Tenant agrees not to commit or allow
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any waste to be committed on any portion of the Premises, and at the termination
of this Lease to deliver up the Premises to Landlord in as good condition as at
the date of the commencement of the term of this Lease, excepting ordinary wear
and tear; installations, alterations, and improvements as permitted by this
Lease unless consent was reasonably and expressly conditioned upon their
removal; and damage arising from any cause not required to be repaired or
replaced by Tenant.
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12. Repairs and Alterations by Tenant. Tenant covenants and agrees with
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Landlord that all repairs and replacements to the Building or Project occasioned
by damage done to the Building or Project or any part thereof caused by Tenant
or Tenant's agents, employees, invitees, or visitors shall be made by Landlord
or Landlord's designee at the Tenant's sole cost and expense. Such repairs shall
restore the Building or Project to as good a condition as it was in prior to
such damage and shall be effected in compliance with all applicable laws. Tenant
shall pay the Landlord's cost of such repairs and alterations to the Landlord in
advance as additional rent. Tenant agrees with Landlord not to make or allow to
be made any alterations to the Premises, install any vending machines on the
Premises, or place signs on the Premises which are visible from outside the
Premises, without first obtaining the prior written consent of Landlord in each
such instance, which consent shall not be unreasonably withheld, conditioned or
delayed. Any and all alterations to the Premises shall be made by Landlord or
Landlord's designee and shall become the property of Landlord upon termination
of this Lease (except for movable equipment or furniture owned by Tenant).
Subject to paragraph 11, Landlord may, nonetheless, require Tenant to remove any
and all fixtures, equipment and other improvements installed by Tenant on the
Premises which removal, if required, shall be performed by Landlord or
Landlord's designee and, in such event Tenant shall pay to Landlord on demand
Landlord's cost of restoring the Premises to Building Standard.
13. Use of Electrical Services by Tenant. Tenant's use of electrical
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services furnished by Landlord shall be subject to the following:
(a) Tenant's electrical equipment shall be restricted to that
equipment which individually does not have a rated capacity greater than .5
kilowatts per hour and/or require voltage other than 120/208 volts, single
phase, except for the computer equipment provided for in Tenant's designated
computer room(s) and lab in the Premises. Collectively, Tenant's equipment shall
not have an electrical design load greater than an average of 2 xxxxx per square
foot of Net Rentable Area of the Premises.
(b) Tenant's lighting shall not have a design load greater than an
average of 2 xxxxx per square foot of Net Rentable Area of the Premises.
(c) If Tenant's consumption of electrical services exceeds either the
rated capacities and/or design loads as per Paragraphs 13(a) and 13(b), or
generates heat in excess of that Landlord's air conditioning system is designed
to handle, then Tenant shall remove such equipment and/or lighting to achieve
compliance within ten (10) days after receiving notice from landlord or, upon
receiving Landlord's prior written approval, such equipment and/or lighting may
remain in the Premises, subject to the following:
(i) Tenant shall pay for all costs of installation and
maintenance of submeters, wiring, additional air conditioning systems and
other items required by Landlord, in Landlord's reasonable discretion, to
accommodate Tenant's excess design loads and capacities or heat generation.
(ii) Tenant shall reimburse to Landlord, upon demand, the cost
of the excess demand and consumption of electrical service at rates charged
to Landlord (which rates shall be in accordance with any applicable laws)
as well as all costs of operating additional air conditioning systems
reasonably deemed necessary by Landlord on account of Tenant's excess
consumption and/or heat generation.
(iii) Tenant shall have the right, upon giving thirty (30)
days' prior written notice to Landlord, to contract directly with public
utility companies at Tenant's cost for the supplying of such extraordinary
utility service and/or air conditioning service to the Premises. Landlord
shall reasonably cooperate with Tenant in permitting such direct
acquisition and provision of service.
14. Parking. During the term of this Lease, Tenant shall have the non-
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exclusive use in common with Landlord, other tenants of the Building, their
guests and invitees, of the nonreserved common automobile parking areas,
driveways, and footways, subject to rules and regulations for the use thereof as
prescribed from time to time by Landlord; provided, Landlord represents that
such areas shall provide not less than 45 parking spaces for the use, of Tenant.
Landlord reserves the right to designate parking areas within the Project or in
reasonable proximity thereto, for Tenant and Tenant's agents and employees.
Tenant shall provide Landlord with a list of all license numbers for the cars
owned by Tenant, its agents and employees which will be regularly parked in the
Building's parking areas. In the event that Tenant, its agents and
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employees, park on portions of the Common Area other than those assigned to
Tenant, Landlord reserves the right to charge Tenant as additional rental
hereunder Twenty-five Dollars ($25.00) for each such occurrence.
15. Laws and Regulations. Tenant agrees to comply with all applicable
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laws, ordinances, rules and regulations of any governmental entity or agency
having jurisdiction of the Premises.
16. Building Rules. Tenant will comply with the rules of the Building
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and the Project adopted and altered by Landlord from time to time and will cause
all of its agents, employees, invitees and visitors to do so; all changes to
such rules will be sent by Landlord to Tenant in writing. The initial rules for
the Project are attached hereto as Exhibit "D" and made a part hereof.
17. Entry by Landlord. Tenant agrees to permit Landlord or its agents or
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representatives to enter into and upon all or any part of the Premises or to the
Building at all reasonable hours on 24-hours notice (and in emergencies at all
times) to inspect the same, to show the Premises to prospective purchasers,
mortgagees, tenants or insurers, or to clean or make repairs, alterations or
additions thereto, and Tenant shall not be entitled to any abatement or
reduction of rent by reason thereof; provided however Landlord shall not
interfere with or hinder the normal prosecution of Tenant's business during any
such entry.
18. Assignment and Subletting.
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(a) Tenant shall not assign, sublease, transfer, sell or encumber
this Lease or any interest therein without Landlords prior written consent which
shall not be unreasonably withheld, conditioned or delayed. Any attempted
assignment, sublease, transfer, sale or encumbrance by Tenant in violation of
the term and covenants of this paragraph shall be void. However, Tenant shall
have the right to assign this Lease, without any requirement of consent by
Landlord, to any entity into which Tenant is merged or any entity that is a
parent or subsidiary of Tenant, whether such status is presently existing or
results from a merger or otherwise. Tenant shall also have the right to assign
this Lease, upon obtaining Landlord's consent (which consent shall not be
unreasonably withheld, conditioned or delayed) and in addition the consent of
Landlord's mortgagee, to any entity which is the same or similar line of
business as that of Tenant so long as such assignee is in a similar or better
financial condition to the condition of Tenant on the Commencement Date,
provided, that no assignment, approved or otherwise, shall relieve Tenant from
liability hereunder.
(b) All cash or other proceeds of any assignment, sublease, transfer,
or sale of Tenant's interest in this Lease, whether consented to by Landlord or
not, shall be paid to Landlord. However, the amount in the foregoing sentence
shall not exceed the amount which is directly attributable to the assignment,
sublease, transfer, or sale of such interest and is expressly provided as being
so attributable in such assignment, sublease, transfer, or sale. Landlord may
agree to waive the foregoing in writing. Tenant hereby assigns to Landlord all
rights it might have or ever acquire in any such proceeds. This convenant and
assignment shall run with the land and shall bind Tenant and Tenant's heirs,
executors, administrators, personal representatives, successors and assigns. Any
assignee, sublessee, transferee, or purchaser of Tenant's interest in this Lease
(all such assignees, sublessees, transferees, and purchasers being hereinafter
referred to as "Successors"), by assuming Tenant's obligations hereunder, shall
assume liability to Landlord for all amounts paid to persons other than Landlord
by such Successor.
19. Mechanic's Liens. Tenant will not permit any mechanic's or
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materialman's lien or liens to be placed upon the Premises, the Building, or the
Project and nothing in this Lease shall be deemed or construed in anyway as
constituting the consent or request of Landlord, express or implied, by
inference or otherwise, to any person for the performance of any labor or the
furnishing of any materials to the Premises, the Building, or the Project, or
any part thereof, nor as giving Tenant any right, power, or authority to
contract for or permit the rendering of any services or the furnishing of any
materials that would give rise to any mechanic's, materialman's, or other liens
against the Premises. In the event any such lien is attached to the Premises,
then, in addition to any other right or remedy of Landlord, Landlord may, but
shall not be obligated to, discharge the same. Any amount paid by Landlord for
any of the aforesaid purposes shall be paid by Tenant to Landlord on demand as
additional rent.
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20. Insurance.
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(a) Landlord shall maintain fire and extended coverage insurance on
the Building and the Premises in such amounts, as the Building's mortgagees
shall require payable solely to Landlord or the mortgagees of the Building, as
their interests shall appear. Landlord shall, at Tenant's request from time to
time, provide Tenant with current certificates of insurance evidencing
Landlord's compliance with this Paragraph 20(a) and Paragraph 20(b). Tenant
shall maintain at its expense, in an amount equal to full replacement cost, fire
and extended coverage insurance on all of its personal property, including
removable trade fixtures, located in the Premises and in such additional amounts
as are required to meet Tenant's obligations pursuant to Paragraph 24 hereof.
Tenants insurance pursuant to the provisions of Paragraphs 20(a) and 20(b)
hereof shall provide that such insurance may not be cancelled or expire without
at least thirty (30) days' prior written notice to Landlord from the insurer.
Tenant shall, at Landlord's request from time to time, provide Landlord with
current certificates of insurance evidencing Tenant's compliance with this
Paragraph 20(a) and Paragraph 20(b).
(b) Tenant and Landlord shall, each at its own expense, maintain a
policy or policies of comprehensive general liability insurance with respect to
the respective activities of each in the Building with the premiums thereon
fully paid on or before due date, issued by and binding upon an insurance
company reasonably approved by Landlord, such insurance to afford minimum
protection of not less than $1,000,000 combined single limit coverage of bodily
injury, property damage or combination thereof and shall name Landord and Tower
Realty Group, Inc. as additional insureds. Landlord shall not be required to
maintain insurance against thefts within the Premises, the Building or the
Project generally.
21. Property Taxes. Landlord agrees (subject to the provisions of
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Paragraph 6 hereof) to pay all ad valorem taxes levied against the Project, but
Tenant shall be liable for all taxes levied against personal property and trade
fixtures placed by Tenant in the Premises. If any taxes for which Tenant is
liable under this Paragraph are levied against Landlord or Landlord's property
and if Landlord elects to pay the same or if the assessed value of Landlord's
property is increased by inclusion of personal property and trade fixtures
placed by Tenant in the Premises and Landlord elects to pay the taxes based on
such increase, Tenant shall pay to Landlord upon demand that part of such taxes
for which Tenant is liable hereunder.
22. Indemnity. Landlord and its officers, agents, managers, and employees
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shall not be liable to Tenant, or to Tenant's agents, servants, employees,
customers, or invitees for any injury to person or damage to property caused by
any act, omission, or neglect of Tenant, its agents, servants, or employees,
invitees, licensees or any other person entering the Project under the
invitation of Tenant or arising out of the use of the Premises by Tenant and the
conduct of its business or out of a default by Tenant in the performance of its
obligations hereunder. Tenant hereby indemnifies and holds Landlord and its
officers, agents, managers, and employees harmless from all liability and claims
for any such damage or injury.
23. Waiver of Subrogation Rights. Anything in this Lease to the contrary
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notwithstanding, Landlord and Tenant each hereby waives, and shall cause their
respective insurance carriers to waive, any and all rights of recovery, claim,
action, or cause of action, against the other, its agents, officers, managers,
or employees, for any loss or damage that may occur to the Premises, or any
improvements thereto, or the Building or the Project, or any improvements
thereto, or any personal property of such party therein, by reason of fire, the
elements, or any other cause(s) which are required to be insured against under
the terms of the insurance policies referred to in Paragraph 20 hereof or which
are actually insured against under valid insurance policies otherwise carried by
the parties, regardless of cause or origin, including negligence of the other
party hereto, its agents, officers, managers, or employees.
24. Casualty Damage. If the Premises or any part thereof shall be damaged
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by fire or other casualty, Tenant shall give prompt written notice thereof to
Landlord. In case the Building shall be so damaged to the extent of forty
percent (40%) or more (whether or not the Premises shall have been damaged by
such casualty) or in the event any mortgagee of the Building should require that
the insurance proceeds payable as a result of a casualty be applied to the
payment of the mortgage debt or in the event of any material uninsured loss to
the Building (provided Landlord maintains insurance as required by Xxxxxxxxx
00), Xxxxxxxx may, at its option, terminate this Lease by notifying Tenant in
writing of such termination within ninety (90) days after the date of such
damage. Such notice must specify the termination date, which shall
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be at lease thirty (30) days but not more than sixty (60) days after the date
such notice is given, in case the building shall be so damaged to the extent of
forty percent (40%) or more (whether or not the Premises shall have been damaged
by such casualty), Tenant may, at its option, terminate this Lease by notifying
Landlord in writing of such termination within thirty (30) days after the date
of such damage. Such notice must specify the termination date, which shall be at
lease thirty (30) days but not more than sixty (60) days after the date such
notice is given. If Landlord and Tenant do not thus elect to terminate this
Lease, Landlord shall commence and proceed promptly and diligently to restore
the Building to substantially the same condition in which it was immediately
prior to the happening of the casualty, except that Landlord's obligation to
restore shall not exceed the scope of the work required to be done by Landlord
at Landlord's expense in originally constructing the Building and installing the
Tenant Improvements, nor shall Landlord be required to spend for such work an
amount in excess of the insurance proceeds actually received by Landlord as a
result of the casualty. When the portions of the Premises originally furnished
at Landlord's expense have been restored by Landlord, Tenant may, at Tenant's
expense, complete the restoration of the Premises, including the reconstruction
of all improvements in excess of those Tenant Improvements originally installed
at Landlord's expense, and the restoration of Tenant's furniture and equipment.
Landlord shall not be liable for any inconvenience or annoyance to Tenant or
injury to the business of Tenant resulting in any way from such damage or the
repair thereof, except that, subject to the provisions of the next sentence,
Landlord shall allow Tenant a fair diminution of rent during the time and to the
extent the Premises are unfit for occupancy. If the Premises or any other
portion of the Building or the Project be damaged by fire or other casualty
resulting from the fault or negligence of Tenant or any of Tenant's agents,
employees, or invitees, the rent hereunder shall not be diminished during the
repair of such damage and Tenant shall be liable to Landlord for the cost of the
repair and restoration of the Building or the Project caused thereby to the
extent such cost and expense is not covered by insurance proceeds.
If the Premises, any part of the building providing essential services to
the Premise, and/or access to the Premises (the "Relevant space") are damaged in
part or whole by fire or other casualty and this Lease is not terminated by
Landlord or Tenant as permitted herein and such damage can be substantially
repaired and restored within one hundred eighty (180) days from the date of such
casualty, Landlord shall, at its expense, proceed promptly and diligently to
repair and restore the Premises as provided for above in this Paragraph 24. This
repair and restoration shall be made within such one hundred and eighty (180)
day period unless delay is due to causes beyond Landlord's control. If the
Relevant Space cannot be substantially repaired and restored within such one
hundred eighty (180) day period, Landlord or tenant may, prior to commencement
of such repair and restoration but within ten (10) days after reasonably
determining that the repairs and restoration cannot be made within such one
hundred eighty (180) day time period, terminate this Lease by giving written
notice to the other. Nevertheless, if the Relevant space is not repaired and
restored within such one hundred eighty (180) day time period, tenant may (i)
terminate this Lease at any time after the one hundred Eightieth (180) day and
before the two hundred tenth (210/th/) day following the date of casualty, or
(ii) exercise any and all rights necessary to cause Landlord to complete such
repair and restoration, including, without limitation, collection of damages.
25. Condemnation. If the whole or substantially the whole of the Building
------------
or the Premises should be taken for any public or quasi-public use, by right of
eminent domain or otherwise, or should be sold in lieu of condemnation, then
this Lease shall terminate as of the date when physical possession of the
Building or the Premises is taken by the condemning authority. If less than the
whole or substantially the whole of the Building is thus taken or sold, Landlord
(whether or not the Premises are affected thereby) may terminate this Lease by
giving written notice thereof to Tenant; if such taking would leave the
remainder of the Building unsuitable for use as an office building in a manner
comparable to the Building's use prior to such taking; in which event, this
Lease shall terminate as of the date when physical possession of such portion of
the Building or Premises is taken by the condemning authority. If less than the
whole or substantially the whole of the Premises is thus taken or sold, Landlord
or Tenant may terminate this Lease by giving written notice thereof to the
other; in which event this Lease shall terminate as of the date when physical
possession of such portion of the Premises is taken by the condemning authority.
If this Lease is not so terminated as provided above upon any such taking or
sale, the Base Rental payable hereunder shall be diminished in proportion to the
amount of the Premises taken, and Landlord shall, to the extent Landlord deems
feasible, restore the Building and the Premises to substantially their former
condition, but such work shall not exceed the scope of the work done by Landlord
in originally construction the Building and the Tenant Improvements, nor shall
Landlord in any event be required to spend for such work an amount in excess of
the amount received by Landlord as compensation for such taking. All amounts
8
awarded upon a taking of any part or all of the Building or the Premises shall
belong to Landlord, and Tenant shall not be entitled to, and expressly waives
all claims to, any such compensation.
26. Damages From Certain Causes. Landlord shall not be liable to Tenant
---------------------------
for any loss or damage to any property or person occasioned by theft, fire, act
of God, public enemy, injunction, riot, strike, insurrection, war, court order,
requisition, or order of governmental body or authority or by any other cause
beyond the control of Landlord. Nor shall Landlord be liable for any damage or
inconvenience, which may arise through repair or alteration of any part of the
Building, the Project, or the Premises.
27. Events of Default/Remedies.
--------------------------
(a) The following events shall be deemed to be events of default by
Tenant under this Lease: (i) Tenant shall fail to pay rental installments when
due or within five (5) days after receipt of notice. (ii) Tenant shall fail to
comply with any other provision of this Lease after a period of thirty (30)
business days or the additional time, if any, that is reasonably necessary to
promptly and diligently cure the failure, after it receives notice from Landlord
setting forth in reasonable detail the nature and extent of the failure and
identifying the applicable Lease provision(s); (iii) the leasehold hereunder
demised shall be taken on execution or other process of law in any action
against Tenant; (iv) Tenant shall fail to move into and take possession of the
Premises within ninety (90) days after the Premises are ready for occupancy or
shall cease to do business in or abandon any substantial portion of the
Premises; (v) Tenant shall be adjudicated insolvent or bankrupt and Tenant fails
to vacate or stay such adjudication within one hundred twenty (120) days after
such adjudication occurs; (vi) Tenant files a petition under any section or
chapter of the United States Bankruptcy code, as amended, or under any similar
law or statute of the United States or any State thereof; or a petition shall be
filed against Tenant under any such statute, and Tenant fails to vacate or stay
such action or petition within ninety (90) days after the date of the filing of
such petition; or (vii) a receiver or trustee shall be appointed for tenant's
leasehold interest in the Premises or for all or a substantial part of the
assets of Tenant and Tenant fails to vacate or stay such appointment within
ninety (90) days after the date of such appointment.
(b) Upon the occurrence of any event or events of default by Tenant,
Landlord shall have the option to pursue any one or more of the following
remedies after five (5) days from the date of notice: (i) terminate this Lease
by written notice to Tenant, in which event Tenant shall immediately surrender
the Premises to Landlord; (ii) terminate Tenant's right to occupy the Premises
and re-enter and take possession of the Premises (without terminating this
Lease); (iii) enter upon the Premises and do whatever Tenant is obligated to do
under the terms of this Lease; and Tenant further agrees that Landlord shall not
be liable for any damages resulting to the Tenant from such action; and (iv)
exercise all other remedies available to Landlord at law or in equity,
including, without limitation, injunctive relief of all varieties.
Subject to the foregoing, in the event Landlord elects to re-enter or
take possession of the Premises after Tenant's default, Tenant hereby waives
notice of such re-entry or repossession and of Landlord's intent to re-enter or
take possession. Landlord may, without prejudice to any other remedy which he
may have for possession or arrearages in rent, expel or remove Tenant any other
persons who may be occupying said Premises or any part thereof. In addition, the
provisions of Paragraph 30 hereof shall apply with respect to the period from
and after the giving of notice of such election to Tenant. All Landlords'
remedies shall be cumulative and not exclusive. Forbearance by Landlord to
enforce one or more of the remedies herein provided upon an event of default
shall not be deemed or construed to constitute a waiver of such default.
(c) Landlord shall mitigate its damage by making reasonable efforts
to relet the Premises on reasonable terms. If Landlord relets for a period of
time longer than the current Lease Term, then any special concessions given to
the new tenant shall be allocated throughout the entire term of such reletting
so as to not unduly reduce the amount of consideration received by Landlord
during the remaining period of Tenant's Lease Term.
(d) This Paragraph 27 shall be enforceable to the maximum extent not
prohibited by applicable law, and the unenforceability of any portion thereof
shall not thereby render unenforceable any other portion. To the extent any
provision of applicable law requires some action by Landlord to evidence or
effect the termination of this Lease or to evidence the termination of Tenant's
right of occupancy, Tenant and Landlord hereby agree that notice shall
9
comply with such law and, in addition, shall be in writing and shall be
delivered to Tenant via Certified United States Mail.
(e) Landlord shall be in default hereunder in the event Landlord has
not begun and pursued with reasonable diligence the cure of any failure of
Landlord to meet its obligations hereunder within thirty (30) days of the
receipt by Landlord of written notice from Tenant of the alleged failure to
perform. In the event of such a default, Tenant shall have the right, in
addition to any other remedies at law or equity, to terminate or rescind this
Lease. In addition, Tenant hereby covenants that, prior to the exercise of any
such remedies, it will give the mortgagees holding mortgages on the Building
notice and a reasonable time to cure any default by Landlord.
28. Peaceful Enjoyment. Tenant shall, and may peacefully have, hold, and
------------------
enjoy the Premises, subject to other terms hereof, provided that Tenant pays the
rent and other sums herein recited to be paid by Tenant and performs all of
Tenant's covenants and agreements herein contained. This covenant and any and
all other covenants of Landlord shall be binding upon each of Landlord and its
successors only with respect to breaches occurring during the respective periods
of ownership of each of the Landlord's interest hereunder.
29. Consumer Price Index Adjustment. Effective the first day following
-------------------------------
each one-year period of the Lease Term beginning February 1, 2001, the Base
Rental hereunder shall be increased over the Base Rental payable hereunder
during the preceding year by an amount which equals the lesser of three percent
(3%) or the percentage increase in the CPI (hereafter defined) between the most
recent CPI publication prior to the commencement of the preceding one-year
period and the most recent CPI publication as of the date thirty (30) days prior
to such annual adjustment in Base Rental. CPI shall mean the Consumer Price
index for All Urban consumers (CPI-U) for all items (Xxxxxx/Xxxx Xxxxx, Xxxxx
xxxx) published by the Bureau of Labor Statistics, U.S., U.S. Department of
Labor (1967 equals 100). If the bureau of Labor Statistic shall ever cease to
compile or publish the CPI-U, then CPI shall thereafter mean such other index of
prices published by the U.S. Government as most nearly approximates the CPI-U
now published. All calculations made hereunder shall, if necessary, be adjusted
to reflect any change in the base year used in calculating the CPI.
30. Holding Over. In the event of holding over by Tenant after expiration
------------
or other termination of this Lease, or in the event Tenant continues to occupy
the Premises after the termination of Tenant's right of possession pursuant to
Paragraph 27 (c)(ii) hereof, Tenant shall, throughout the entire holdover
period, pay rent equal on a per diem basis, to one and one-half (1 1/2) times
the Base Rental, as adjusted, applicable at the time of such expiration or
termination. No holding over by Tenant after the expiration of the Lease Term
shall be construed to extend the term of the Lease. The provision of this
paragraph shall not be in place of or in lieu of, but shall be in addition to,
the provisions of Paragraph 27(b).
31. Subordination to Mortgage. Tenant accepts this Lease subject and
-------------------------
subordinate to any mortgage, deed of trust or other lien presently existing or
hereafter arising upon the Premises, upon the Building or upon the Project as a
whole, and to any renewals, refinancing and extensions thereof, but Tenant
agrees that any such mortgagee shall have the right at any time to subordinate
such mortgage, deed of trust or other lien to this Lease on such terms and
subject to such conditions as such mortgagee may reasonably deem appropriate.
Tenant agrees to execute such further instruments subordinating this Lease or
attorning to the holder of any such liens as Landlord may reasonably request.
The terms of this Lease are subject to approval by the Building's permanent
lender(s), and such approval is a condition precedent to Landlord's obligations
hereunder. Notwithstanding Tenant's obligation to subordinate and attorn under
this paragraph, upon any default by Landlord under any interest, right, or
encumbrance superior to this Lease, this Lease shall continue in conformance
with its terms and Tenant's quiet possession of the Premises shall not be
disturbed provided Tenant is not in default under Paragraph 27(a) of this Lease.
Tenant agrees that it will from time to time upon request by Landlord execute
and deliver to such persons as Landlord shall request a statement in recordable
form certifying that this Lease is unmodified and in full force and effect (or
if there have been modifications, that the same is in full force and effect as
so modified), stating the dates to which rent and other charges payable under
this lease have been paid, stating that, to Tenant's knowledge, Landlord is not
in default hereunder (or if Tenant alleges a default stating the nature of such
alleged default) and further stating such other matters as Landlord shall
reasonably require.
10
32. Attorney's Fees. In the event either party defaults in the
---------------
performance of any of the terms of this Lease and the other party employs an
attorney in connection therewith, the defaulting party agrees to pay the other
party's reasonable attorney's fees.
33. No Implied Waiver. The failure of Landlord or Tenant to insist at any
-----------------
time upon the strict performance of any covenant or agreement of this Lease or
to exercise any option, right, power or remedy contained in this Lease shall not
be construed as a waiver or a relinquishment thereof for the future. No payment
by Tenant or receipt by Landlord of a lesser amount than the monthly installment
of rent due under this Lease shall be deemed to be other than on account of the
earliest rent due hereunder, nor shall any endorsement or statement on any check
or any letter accompanying any check or payment of rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such rent or pursue any other remedy
in this Lease provided.
34. Personal Liability. The liability of Landlord to Tenant for any
------------------
default by Landlord under the terms of this Lease shall be limited to the
interest of Landlord in the Project, including rental income and proceeds from
sale, and Tenant agrees to look solely to such interest in the Project for the
recovery of any judgment from the Landlord, it being intended that Landlord
shall not be personally liable for any judgment or deficiency.
35. Security Deposit. The Security Deposit shall be held by Landlord
----------------
without liability for interest and as security for the performance by Tenant of
Tenant's covenants and obligations under this Lease, it being expressly
understood that the Security Deposit shall not be considered an advance payment
or rental or a measure of Tenant's damages in case of default by Tenant. Unless
otherwise provided by mandatory non-waivable law or regulation, Landlord may
commingle the Security Deposit with Landlord's other funds. Landlord may, from
time to time, without prejudice to any other remedy, use the Security Deposit to
the extent necessary to make good any arrearages of rent or to satisfy any other
covenant or obligation of Tenant hereunder. Following any such application of
all or any part of the Security Deposit, Tenant shall pay to Landlord on demand
the amount so applied in order to restore the Security Deposit to its original
amount. If Tenant is not in default at the termination of this Lease, the
balance of the Security Deposit remaining after any such application shall be
returned by Landlord to Tenant within ten (10) business days. If Landlord
transfers its interest in the Premises during the term of the Lease, Landlord
may assign the Security Deposit to the transferee and thereafter shall have no
further liability for the return of such Security Deposit.
36. Notice. Any notice in the Lease provided for must, unless otherwise
------
expressly provided herein, be in writing, and must, unless otherwise in this
Lease expressly provided, be given or be served by depositing the same in the
United State's mail, postpaid and certified and addressed to the party to be
notified, with return receipt requested. Notice deposited in the mail in the
manner hereinabove described shall be effective from and after the expiration of
three (3) days after it is so deposited. Notices mailed shall be addressed to
the parties at the following addresses:
If to Landlord: If to Tenant:
Oral Xxxxxxx University Digimarc Corporation
c/o Tower Realty Group, Inc. 0000 Xxxx 00xx Xxxxxx, Xxxxx 0000
0000 X. 00xx Xx., Xxxxx 000 Xxxxx, XX 00000
Xxxxx, XX 00000
or in each case to such other address as either party may from time to
time designate in writing.
37. Severability. If any term or provision of this Lease, or the
------------
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and enforced to the fullest
extent permitted by law.
38. Recordation. Tenant agrees not to record this Lease.
-----------
39. Governing Law. This Lease and the rights and obligations of the
-------------
parties hereto shall be interpreted, construed, and enforced in accordance with
the laws of the State of Oklahoma.
11
40. Force Majeure. Whenever a period of time is herein prescribed for the
-------------
taking of any action by Landlord, Landlord shall not be liable or responsible
for, and there shall be excluded from the computation of such period of time,
any delays due to strikes, riots, acts of God, shortages of labor or materials,
war, governmental laws, regulations or restrictions, or any other cause
whatsoever beyond the control of Landlord.
41. Time of Performance. Except as expressly otherwise herein provided,
-------------------
with respect to all required acts of Landlord and Tenant time is of the essence
of this Lease.
42. Transfers by Landlord. Landlord shall have the right to transfer and
---------------------
assign, in whole or in part, all its rights and obligations hereunder and in the
Premises, the Building, the Project, and property referred to herein. In such
event and upon such transfer other than transfers for security purposes only,
Landlord shall be released from any further obligations hereunder accruing after
such transfer and Tenant agrees to look solely to Landlord's successor in
interest then occupying Landlord's position hereunder for the performance of
such obligations.
43. Commissions. Landlord and Tenant hereby indemnify and hold each
-----------
other harmless against any loss, claim, expense, or liability with respect to
any commissions or brokerage fees claimed on account of the execution and/or
renewal of this Lease and due to any action of the indemnifying party.
44. Effect of Delivery of This Lease. This Lease shall not be effective
--------------------------------
until a copy or an original has been executed by both Landlord and Tenant.
45. Relocation. In the event the Premises contain 5,000 square feet or
----------
of Net Rentable Area of the Premises, Landlord shall be entitled to cause
Tenant to relocate from the Premises to a comparable space ("Relocation Space")
within the Building at any time after reasonable written notice not in excess of
ninety (90) days is given to Tenant of Landlord's election. Any such relocations
shall be entirely at the expense of Landlord or the third party tenant replacing
Tenant in the Premises. Such a relocation shall not terminate or otherwise
affect or modify this Lease except that from and after the date of such
relocation, "Premises" shall refer to the Relocation Space into which Tenant has
been moved, rather than the original Premises as herein defined.
46. Building Name. Landlord reserves the right at any time and from time
-------------
to time to change the name by which the Building is designated.
47. Corporate Authority. If Tenant is a corporation, Tenant warrants
-------------------
that it has legal authority to operate and is authorized to do business in the
state of Oklahoma. Tenant and the person executing this Lease on behalf of
Tenant warrant that the person or persons executing this Lease on behalf of
Tenant has authority to do so and to fully obligate Tenant to all terms and
provisions of this Lease. Tenant shall, upon request from Landlord, furnish
Landlord with a certified copy of resolutions of Tenant's Board of Directors
authorizing this Lease and granting authority to execute it to the person or
persons who have executed it on Tenant's behalf.
48. Exhibits. Exhibits "A", "B", "C", "D", and "Addendum" are attached
--------
hereto and incorporated herein and made a part of this Lease for all purposes:
49. Tenant acknowledges that prior to its entering into of this Lease the
Landlord and Tower Realty Group, Inc. have disclosed to Tenant that:
(a) Tower Realty Group, Inc. is a licensed real estate broker in
Oklahoma, and,
(b) with regard to the Building, Tower Realty Group, Inc. is the
Landlord's leasing agent and property manager.
50. Broker. The parties hereto agree that the sole broker who negotiated
------
and brought about this transaction was Xxxxxx Xxxx of Tower Realty Group, Inc.
and Landlord agrees to pay a commission therefor as per separate agreement.
Tenant represents it neither consulted nor negotiated with any broker other
that Xxxxxx Xxxx of Tower Realty Group, Inc. and with regard to the Leased
Premises. Tenant agrees to indemnify, defend and save Landlord harmless from
and against and claims for fees or commissions from anyone other than Xxxxxx
Xxxx of Tower Realty Group, Inc., and with whom
12
Tenant has dealt in connection with the Leased Premises or this Lease. Tenant is
not obligated to pay commission to Tower Realty Group, Inc.
The representations and indemnities contained in this Section 50 shall
survive the expiration or earlier termination of this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease in
multiple counterparts as of the day and year first above written.
LANDLORD
--------
Oral Xxxxxx University,
WITNESS: an Oklahoma corporation
/s/ [ILLEGIBLE] By /s/ [ILLEGIBLE]
--------------------- ----------------------------
Name Title Vice President
-------------------------
TENANT
------
Digimarc Corporation
/s/ XXXXXXXXX XXXX
-------------------------------
WITNESS: By XXXXXXXXX XXXX
----------------------------
/s/ [ILLEGIBLE] Title VP/GM, Paper as Portal
--------------------- --------------------------
Name
13
