Exhibit 10.5
SUBLEASE
AGREEMENT
This Sublease Agreement ("Sublease"), made and entered into this 1st day
of May 2004, by and between Dimensions Financial Consultants ("Sub landlord"),
and Dimensions REIT I, Inc. ("Tenant").
WITNESSETH:
WHEREAS, Sublandlord entered into that certain Lease dated January 31, 2003
(the "Prime Lease"), by and between (Vantage Point Properties, Inc.), as
landlord, and Sublandlord, as tenant, for certain premises ("Premises") in the
building located at 0000 X. 00xx Xxxxxx Xxxxx, Xxxxxx Xxxxxxx Office Park,
Wichita, Kansas ("Building"), a copy of which is attached hereto as EXHIBIT "A";
WHEREAS, Sublandlord desires to sublease a portion of the Premises
("Subleased Premises") to Tenant, and Tenant desires to sublease the same from
Sublandlord, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, In consideration of the Subleased Premises, the mutual
covenants and agreements herein contained, and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, it
is hereby agreed by and between the parties hereto as follows:
1. SUBLEASED PREMISES. Sublandlord hereby leases unto Tenant, and Tenant
hereby takes from Sublandlord, in its as-is condition, the Subleased Premises,
which consists of approximately 560 rentable square feet and 75 square feet of
pro-rata common area, a diagram of the floor plan of which is attached hereto as
EXHIBIT "B". In addition to the Subleased Premises as set forth in this Sublease
Agreement; the following equipment and services shall be provided as listed on
the attached EXHIBIT "C".
2. TERM. The term of this Sublease shall commence on May 1, 2004
("Commencement Date"), and shall terminate on January 31, 2006, unless sooner
terminated as provided in this Sublease.
3. RENT. Tenant agrees to pay to Sublandlord Base Rent in accordance with
the following schedule. Base Rent shall be paid monthly in advance on or before
the first day of each month commencing May 1, 2004, and shall include payment
for taxes, utilities and common area maintenance (i.e. Tenant shall not be
required to pay "Additional Rent" as that term is defined in the Prime Lease.
DATES MONTHLY BASE RENT PAYMENT *MAY 1, 2004
TO JANUARY 31, 2006 --------------------------------------
$1,600 PER MONTH
4. ASSUMPTION OF OBLIGATIONS. Tenant agrees to assume and perform,
according to the terms of the Prime Lease, all of the duties, covenants,
agreements, obligations and limitations of Sublandlord under the Prime Lease
with respect to the Subleased Premises as if Tenant were the tenant under the
Prime Lease, excepting the duty to make payments to Landlord of rental and other
charges. Tenant agrees that it will take good care of the Subleased Premises,
and will commit no waste, and will not do, suffer, or permit to be done any
injury to the same. It is hereby understood and agreed that Tenant's rights to
use, possess and enjoy the Subleased Premises are subject to the terms and
conditions of the Prime Lease and the rights and remedies of Landlord and
Sublandlord thereunder. Tenant agrees to indemnify Sublandlord against, and to
hold Sublandlord harmless from, any liability, damages, costs or expenses of any
kind or nature, including court costs and reasonable attorneys' fees, resulting
from any failure by Tenant to perform, keep and obey the same.
5. TITLE AND POSSESSION. Subject to receipt of the attached Landlord's
Consent to Sublease, Sublandlord covenants and agrees that it has full right and
authority to enter into this Sublease for the full term hereof, and that Tenant,
upon paying the rents and other sums provided herein, and upon performing the
duties, covenants, agreements and obligations hereof, and upon keeping and
obeying all of the restrictions, conditions and provisions hereof, will have,
hold and enjoy quiet possession of the Subleased Premises for the term herein
granted and with all of the rights and privileges of Sublandlord under the Lease
with respect to the Subleased Premises except as herein expressly excluded or
modified and subject to all of said duties, covenants, agreements, obligations,
restrictions, conditions and provisions.
6. SUBLEASE AND ASSIGNMENT. Tenant may not assign this Sublease or
further sublease any portion of the Subleased Premises without the prior written
consent of Sublandlord and Landlord, which consent Sublandlord shall not
unreasonably withhold or delay if Landlord has consented. Tenant shall not
pledge, its interest hereunder, or allow liens to be placed on such interest, or
suffer this Sublease or any portion thereof to be attached or taken upon
execution. No assignment or further subleasing, even with the consent of
Sublandlord and Landlord, shall relieve Tenant from liability for payment of the
rent herein provided for or from the obligation to keep and be bound by all of
the terms, conditions and covenants of this Sublease.
7. DAMAGE, DESTRUCTION OR CONDEMNATION. In the event of damage or
destruction of the Subleased Premises or the taking of all or any part thereof
under the power of eminent domain, this Sublease shall terminate if the Prime
Lease is terminated as a result thereof, and rent payable hereunder shall xxxxx
for as long as and in the same proportion as the rent due from Sublandlord to
Landlord under the Prime Lease abates as a result thereof.
8. MUTUAL RELEASE AND WAIVER OF SUBROGATION. Notwithstanding any
provision of this Sublease to the contrary, Sublandlord and Tenant each hereby
waives any and all rights of recovery, claim, action or cause of action, against
the other and against Landlord, their agents (including partners, both general
and limited), officers, directors, shareholders or employees, for any loss or
damage that may occur to the Subleased Premises, or any improvements thereto, or
the Building of which the Subleased Premises are a part, or any improvements
thereto, or any property of such party therein, by reason of fire, the elements,
or any other cause which could be insured against under the terms of standard
fire and extended coverage insurance policies, regardless of cause or origin,
including negligence of the other party hereto, its agents, officers or
employees, provided that Tenant shall not be released to the extent that
Sublandlord is not released from liability under the Prime Lease, and each
covenants that its insurers shall hold no right of subrogation against such
other party.
9. ALTERATIONS. The parties agree that Tenant shall have the right to
make at its expense alterations to the Subleased Premises, subject to Landlord's
right under the Prime Lease to consent to alterations to the Subleased Premises.
Upon the termination of the term hereof, all such alterations, additions and
improvements (except personal property, business and trade fixtures, machinery
and equipment, furniture and movable partitions owned by Tenant) shall be and
remain Part of the Subleased Premises and shall not be removed by Tenant unless
such removal is required by Landlord or Sublandlord, in which case Tenant shall
remove the same and restore the Subleased Premises to the same condition in
which they were on the date hereof, reasonable and ordinary wear and tear
excepted. Personal property, business and trade fixtures, machinery= and
equipment, furniture and movable partitions owned by Tenant shall be and remain
the property of Tenant and may be removed by Tenant at any time during the term
hereof when Tenant is not in default hereunder. Tenant covenants and agrees to
indemnify Sublandlord and Landlord against, and hold Sublandlord and Landlord
harmless from, all liens, whether for labor or materials arising as the result
of alterations, additions, repairs, or improvements to the Subleased Premises
made by Tenant during the term of this sublease.
10. DEFAULT. If the Rent above referred to, or any part thereof whether
the same be demanded or not, shall remain unpaid for a period of ten (10) days
from the date when due hereunder, or if any other term, condition or covenant of
this Sublease, express or implied on the part of the Tenant to be kept or
performed shall be violated or neglected, and if Tenant shall fail to cure the
same within thirty (30) days from the date of written notice from Sublandlord to
Tenant specifying the Violations (unless such default cannot reasonably be cured
within 30 days and Tenant begins such cure within thirty (30) days and proceeds
with diligence to complete the cure), or if the Subleased Premises or Tenant's
interest therein shall be taken on execution or other process of law, or if
Tenant shall petition to be or shall be declared bankrupt or insolvent according
to law or shall enter an assignment for the benefit of creditors, or if any
default under the Prime Lease shall occur with respect to Tenant or the
performance by Tenant of any of its covenants and
obligations under this Sublease (and the same is not cured within five days
prior to the last date for cure under the Prime Lease), then and in any of said
cases, Tenant shall be deemed in default, and Sublandlord shall have all of the
rights and remedies against Tenant which would be available to Landlord against
Sublandlord in the event of a default by Sublandlord under the Prime Lease.
11. NOTICES. Any notice or communication required or permitted to be given
or served by either party hereto upon the other shall be deemed given or served
in accordance with the provisions of this Sublease when mailed in a sealed
wrapper by United States registered or certified mail, return receipt requested,
postage prepaid, properly addressed as follows:
If to Sublandlord:
Xxxxx X. Xxxxxxx
Dimensions Financial Consultants, Inc.
0000 X. 00 X'
Xxxxxxx, XX 00000
If to Tenant:
Xxxxx X. Xxxxxxxxxxx, CPA
Dimensions REIT I, Inc.
0000 X. 00 X'
Xxxxxxx, XX 00000
Each such mailed notice or communication shall be deemed to have been given to,
or served upon, the party to which addressed on the date the same is deposited
in the United States registered or certified mail, postage prepaid, properly
addressed in the manner above provided. Any party hereto may change its address
for the service of notice hereunder by serving written notice hereunder upon the
other party hereto, in the manner specified above, at least ten (10) days prior
to the effective date of such change. All notices required to be given to
Landlord by Sublandlord under the Prime Lease shall be given by Tenant to
Landlord and Sublandlord.
12. SURRENDER OF SUBLEASED PREMISES. Upon the expiration of the term of
this Sublease, or upon any earlier termination of this Sublease Tenant shall
quit and surrender possession of the Subleased Premises to Sublandlord in as
good order and condition as the same are now or hereafter may be improved by
Landlord, Sublandlord or Tenant, reasonable wear and tear excepted, and shall,
without expense to Sublandlord, remove or cause to be removed from the Subleased
Premises all debris and rubbish, all furniture, equipment, business and trade
fixtures, movable partitioning and other articles of personal property owned by
Tenant or installed or placed by Tenant at its expense in the Subleased
Premises, and all similar
articles of any other persons claiming under Tenant, and Tenant shall repair all
damage to the Subleased Premises resulting from such removal.
13. TERMINATION OF PRIME LEASE. It is understood and agreed by and between
the parties hereto that the existence of this Sublease is dependent and
conditioned upon the continued existence of the Prime Lease, and in the event of
the cancellation or termination of the Prime Lease, this Sublease automatically
shall be terminated; provided, however, that this provision shall not be deemed
to release Sublandlord from liability if the Prime Lease is canceled or
terminated by reason of a default by Sublandlord as tenant under the Prime
Lease, which default did not result, in whole or in part, from a default by
Tenant hereunder. Tenant shall have no recourse against Sublandlord if the Prime
Lease is canceled or terminated by reason of a default by Tenant hereunder, or
by any reason other than a default by Sublandlord under the Prime Lease.
14. WAIVER. A waiver by Sublandlord of any default, breach or failure of
Tenant under this Sublease shall not be construed as a waiver of any subsequent
or different default, breach or failure.
15. INSPECTION. Sublandlord reserves the right at all reasonable times
during the term of this Sublease, following one (1) day's prior written notice
thereof to Tenant, for Sublandlord or Sublandlord's agents to enter the
Subleased Premises for the purpose of inspecting and examining the same, and for
all other reasonable purposes.
16. HOLDING OVER. If Tenant holds over after the expiration or earlier
termination of the term hereof without the express written consent of
Sublandlord, Tenant shall become a tenant at sufferance only, at a rental rate
equal to 150% of the rental rate in effect upon the date of such expiration for
the entire premises leased by Sublandlord under the Prime Lease, and otherwise
upon the terms, covenants and conditions herein specified, so far as applicable.
Tenant shall also indemnify Sublandlord for any costs incurred by Sublandlord as
a result of its failure to deliver the Premises to Landlord upon the expiration
of the term of the Prime Lease. Acceptance by Sublandlord of rent after such
expiration or earlier termination shall not constitute a consent to a holdover
hereunder or result in a renewal. The foregoing provisions of this paragraph are
in addition to, and shall not limit, Sublandlord's right of reentry or any other
rights of Sublandlord hereunder or as otherwise provided by law.
17. SUCCESSORS AND ASSIGNS. All of the terms, covenants, provisions and
conditions of this Sublease shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
18. CAPTIONS. The captions used on the paragraphs of this Sublease are for
convenience only, are not a part of this Sublease, and are not to be considered
in the interpretation hereof.
19. CONSENT OF LANDLORD. This Sublease is contingent upon approval by
Landlord manifested by Landlord's execution of the Consent to Sublease appearing
below. Unless and until Landlord executes the Consent to Sublease below, this
Sublease shall be of no force or effect, and the parties hereto shall have no
liability or obligation to each other.
20. RELATIONSHIP OF PARTIES. This Sublease does not and shall not create
the relationship of principal and agent, or of partnership, or of joint venture,
or of any other association between Sublandlord and Tenant, the sole
relationship between the parties hereto being strictly that of landlord and
tenant.
21. CLARIFICATIONS TO PRIME LEASE. Notwithstanding anything apparently to
the contrary herein contained: (a) Tenant shall have no right to renew this
Sublease; (b) Tenant shall have no rights to signage other than as approved by
Landlord with respect to the Subleased Premises; (c) Tenant shall have no rights
to construct or use Sublandlord's Satellite Terminal. Tenant shall comply with
all rules and regulations imposed by Landlord. Tenant shall be entitled to the
same services as Sublandlord is entitled to from Landlord but Sublandlord does
not guaranty the delivery of those services by Landlord.
IN WITNESS WHEREOF, the parties hereto have caused this Sublease Agreement
to be executed as of the day and year first above written.
Sublandlord: Tenant:
Xxxxx X. Xxxxxxx: /s/ Xxxxx X. Xxxxxxxxxxx /s/
--------------------- ------------------------
Xxxxx X. Xxxxxxx Xxxxx X. Xxxxxxxxxxx, CPA
Dimensions Financial Consultants, Inc. Dimensions REIT I, Inc.
EXHIBITS
Exhibit A Prime Lease
Exhibit B. Diagram of Leased Premises E
Exhibit C Equipment and Services to be Provided
CONSENT TO
SUBLEASE
The undersigned ("Landlord") does hereby consent to the foregoing Sublease,
provided that such consent shall not release or discharge Sublandlord from any
of its obligations to be performed under the Prime Lease, and further provided
that such consent is limited to the foregoing Sublease only, and any further
assignment, sublease, amendment or modification of this Sublease or the Prime
Lease shall require the prior written consent of the undersigned pursuant to the
Prime Lease.
Vantage Point Properties, Inc.
Xxxx X. Xxxxxxx /s/
-------------------
Xxxx X. Xxxxxxx, President
EXHIBIT A
LEASE AGREEMENT
BY AND BETWEEN
VANTAGE POINT PROPERTIES, INC.
AS LANDLORD
AND
DIMENSIONS FINANCIAL CONSULTANTS, INC.
AND
DIMENSIONS INVESTMENT MANAGEMENT, INC.
COLLECTIVELY
AS TENANT
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SUMMARY SHEET
THIS AGREEMENT made and entered into on this 31st day of January, 2003, in
Wichita, Kansas,
BY AND BETWEEN VANTAGE POINT PROPERTIES, INC.,
a Kansas corporation, whose address is
0000 X. 00xx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxx 00000 hereinafter referred to as
"LANDLORD"
AND DIMENSIONS FINANCIAL CONSULTANTS,
INC., a Kansas corporation, whose
address is 0000 X. 00xx Xxxxxx, Xxxxx
000, Xxxxxxx, XX 00000
AND DIMENSIONS INVESTMENT MANAGEMENT,
INC., a Kansas corporation whose address
is 0000 X. 00xx Xxxxxx, Xxxxx 000,
Xxxxxxx, XX 00000 hereinafter
collectively referred to as
"TENANT"
SUMMARY OF GENERAL BASIC PROVISIONS
A. Leased Premises: Approximately 4,068 square feet of usable floor
space on the second floor plus 529 square feet of common area for a
total rentable area equal to 4,597 square feet in the Capitol Federal
Building in Xxxxxx Estates Office Park, Wichita, Kansas.
B. Term: Three (3) years
C. Monthly Base
Building Rent: LEASE YEAR 1:
Feb. 15, 2003 - Apr 30, 2003: Free
May, 2003: $ 2,741.94
2
Jun 1, 2003 - Dec. 31,2003: $ 5,000.00
Jan 1, 2004 - Feb 29, 2004: $ 7,078.00
LEASE YEARS 2-EXPIRATION: $ 7,078.00
As used herein, the term "Lease Year" shall mean each consecutive 12
month period, commencing on the Commencement Date.
D. Additional Rent: See Section 3.2 hereof
E. Security Deposit: $5,000.00
[ This Space Intentionally Left Blank ]
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W I T N E S S E T H:
For and in consideration of the mutual covenants and agreements contained
herein, the parties hereto for themselves, their respective successors and
assigns, agree as follows:
1. LEASED PREMISES:
1.1 BUILDING CONSTRUCTION: (a) It is understood by the parties that
the LANDLORD has constructed and owns an office building known as the Capitol
Federal Building (herein the "BUILDING"). The address of the Building is 0000 X.
00xx Xxxxxx, Xxxxxxx, Xxxxxx 00000. The Building is located in Xxxxxx Estates
Office Park (herein the "OFFICE PARK"). A copy of the site plan depicting the
planned Office Park is attached hereto as Exhibit 'A' and made a part hereof by
this reference. The Building is located on the land (herein the "LAND")
described in Exhibit B, which is also attached hereto and made a part hereof by
this reference. The Building and the Land shall be referred to collectively
herein as the "TOTAL BUILDING FACILITIES."
(b) TENANT and TENANT's employees, agents, officers, contractors,
and invitees shall have the right to use, in common with other tenants of the
Office Park the "OFFICE PARK COMMON AREAS" (hereinafter defined). The term
"Office Park Common Areas" shall be deemed to mean such areas, improvements,
space, equipment and special services in or at the Office Park reasonably
designated by the LANDLORD, from time to time, to the general usage of all
tenants of the Office Park and their employees, customers and invitees,
including without limitation, all designated access roads, driveways, entrances
and exits, retaining walls, landscaped areas, roads and pathways, accommodation
areas such as sidewalks, grass plots, ornamental planting, entry monuments and
signs, directional signals and the like.
1.2 DESCRIPTION OF LEASED PREMISES: (a) LANDLORD does hereby lease
to TENANT and TENANT does hereby hire from LANDLORD office space, hereinafter
called the "LEASED PREMISES" located in the Building. The location of the Leased
Premises is shown and outlined on the floor plan attached hereto as Exhibit C
and made a part hereof by reference, which Exhibit is initialed by the parties
hereto. It is agreed that the Leased Premises contains approximately Four
Thousand Sixty-eight (4,068) square feet of usable floor area on the second
floor of the Building plus Five Hundred Twenty-nine (529) square feet of common
area for a total rentable area equal to Four Thousand Five Hundred Ninety-seven
(4,597) square feet and that the Building contains approximately 63,000 square
feet of total rentable space.
(b) Exhibits A, B and C are provided for informational purposes
only and shall not be deemed to be a warranty, representation or agreement by
LANDLORD that the Office Park, Land, Building or Leased Premises, or any other
information contained thereon will be exactly as indicated on such Exhibits.
Notwithstanding Exhibits A, B and C, or any other provision of this Lease to the
contrary, LANDLORD reserves the right to change, modify, add to or subtract from
the size and dimensions of the Office Park, Land or the Building, or parts
thereof, including, but not limited to, the number, location and dimensions of
tenant spaces, the
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size and configuration of parking areas, entrances, exits, corridors, signage,
number of tenant spaces, identity of tenants and the size, shape and arrangement
of common areas provided that any such changes shall not (i) obstruct access to
the Leased Premises or (ii) materially reduce the amount of parking spaces
available for TENANT's use.
1.3 DATE OF OCCUPANCY: (a) It is understood by the parties that the
LANDLORD owns the Building and the Leased Premises are a part of and located
within said Building. Subject to the provisions of Section 23 hereof, LANDLORD
hereby agrees to deliver occupancy of the Leased Premises on or before February
15, 2003.
(b) If Landlord fails, is delayed, or for any reason is unable to
deliver the Leased Premises to the TENANT, Ready for Occupancy, under the terms
set out in paragraph 1.3(a) hereof, then TENANT shall take possession of the
Leased Premises on the date LANDLORD delivers possession of the Leased Premises
to TENANT "Ready for Occupancy". Except as is otherwise herein expressly
provided to the contrary, this Lease shall not be voidable by TENANT, nor shall
LANDLORD be liable to TENANT for any loss or damage resulting from delay or
failure in the delivery of the Leased Premises to TENANT.
(c) The phrase "READY FOR OCCUPANCY" shall mean that Leasehold
Improvements have been substantially completed in accordance with the attached
Exhibit D, that vacant possession of the Leased Premises, in broom clean
condition, is available to be delivered to TENANT, and that TENANT, on
application and payment therefor, would have the right to obtain a certificate
of occupancy for the Leased Premises (or conditional certificate of occupancy as
the case may be) from governmental authorities having jurisdiction over the
issuance of such certificate.
2. TERM OF LEASE:
2.1 ORIGINAL TERM: This Lease shall be for a period of Three (3)
years plus however many days are necessary such that the Lease expires on the
last day of the month. Subject to the terms of Section 1.3(b) hereof, the term
of this Lease shall commence on February 15, 2003, (herein the "COMMENCEMENT
DATE") and shall expire at midnight, February 28, 2006.
2.2 ACCEPTANCE OF LEASED PREMISES: By occupying the Leased
Premises, TENANT shall be deemed to have accepted the same as being in good and
sanitary order, condition and repair and to have acknowledged that the same
comply fully with LANDLORD's covenants and obligations hereunder.
2.3 EARLY OCCUPANCY: In the event that LANDLORD shall permit TENANT
to occupy the Leased Premises prior to the Commencement Date of the term, such
occupancy shall be at the Base Building Rental rate hereinafter provided and
such occupancy shall be subject to all other terms and provisions of this Lease.
Said early possession shall not advance the termination date hereinbelow
provided. If TENANT'S occupancy commences other than the first of the month,
TENANT shall occupy the Leased Premises under the terms and provisions of this
Lease and rent for the pro rata portion of said month shall be paid.
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2.4 CERTIFICATE OF POSSESSION: The parties agree to execute a
certificate evidencing the date that TENANT first took possession of the Leased
Premises.
2.5 [Intentionally Deleted ]
3. RENTAL:
BASE BUILDING RENT: Commencing on the Commencement Date, TENANT promises and
agrees to pay LANDLORD Base Building Rent for the Leased Premises, in advance,
without demand, on the first day of each and every month of the term hereof, the
following amounts:
LEASE YEAR 1:
Feb. 15, 2003 - Apr 30, 2003: Free
May, 2003: $ 2,741.94
Jun 1, 2003 - Dec. 31,2003: $ 5,000.00
Jan 1, 2004 - Feb 29, 2004: $ 7,078.00
LEASE YEARS 2-EXPIRATION: $ 7,078.00
3.2 ADDITIONAL RENT: From and after the Commencement Date, TENANT
agrees to pay as additional rent (herein "ADDITIONAL RENT"), at times and in the
manner hereinafter provided, its pro rata share of the "Operating Expenses" (as
hereinafter defined) paid or incurred by LANDLORD or its designated agent in
connection with the Total Building Facilities and Office Park Common Areas, in
excess of Base Year Operating Expenses (hereinafter defined) without deduction,
counter-claim, set-off or abatement of any kind, except if provided otherwise in
this Lease. TENANT's pro-rata share of rentable area in the Building is 7.3%.
3.3 DEFINITION OF OPERATING EXPENSES: The term "OPERATING EXPENSES"
includes all expenses incurred by LANDLORD with respect to the Total Building
Facilities and the Office Park Common Areas, including but not limited to, the
following: snow removal, gardening, landscaping, planting, replanting, and
replacing flowers and shrubbery; cleaning, striping and minor repair of parking
areas, public liability insurance; repairs and maintenance; electricity, water,
gas and sewer costs; maintenance and replacement of fixtures and bulbs;
maintenance of elevators and service contracts thereon; extermination, and sump
maintenance; removal of rubbish, garbage and other refuse; security; repair and
maintenance of walkways; heating, ventilating and air conditioning the Building;
cleaning and janitorial services; maintenance of lavatories; maintenance and
repair of the Building roof, exterior walls and glass; reasonable hourly costs
of personnel directly involved in implementing all of the aforementioned
(including fringe benefits and workmen's compensation insurance covering
personnel); property management fees equal to five percent (5%) of gross
receivables of the Total Building Facilities; all costs incurred by LANDLORD in
keeping the Total Building Facilities and Office Park Common Areas in compliance
with all present and future laws and ordinances; the cost of maintaining, during
the term of this Lease, all insurance with respect to the Total Building
Facilities and Office Park Common Areas, without limitation, all-risks property
and casualty insurance and business interruption insurance; all real estate
taxes, ad valorem taxes and
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assessments, general and special assessments, any other tax imposed upon or
levied against real estate, payable with respect to or allocable to the Total
Building Facilities or Office Park Common Areas and other improvements situated
on the Land; the cost, including interest, amortized over its useful life, of
any capital improvement made to the Building by LANDLORD after the date of this
Lease which is required under any governmental law or regulation that was not
applicable to the Building at the time it was constructed; the cost including
interest, amortized over its useful life, of installation of any device or other
equipment which improves the operating efficiency of any system within the
Building and which is designed to reduce Operating Expenses, but only to the
extent that Operating Expenses are actually reduced. "BASE YEAR OPERATING
EXPENSES" shall be defined as Operating Expenses for the calendar year 2003.
3.4 EXCLUSIONS FROM OPERATING EXPENSES: Nothing herein contained
shall be construed to include as taxes any inheritance, estate, intangible,
stock, succession, transfer, gift, franchise, corporation, income or profit tax
or capital levy that is or may be imposed upon the LANDLORD, including taxes
based upon the receipt of rental income. Operating Expenses shall not include
any mortgage indebtedness, depreciation of the Building, capital expenditures
(other than those specifically listed in 3.3 hereof) or items under warranty to
the extent of said warranty; expenses for tenant improvement work or allowances,
inducements, and other concessions for any tenant; interest, amortization, or
other payments on loans to LANDLORD; ground rent; brokerage or leasing
commissions; compensation paid to officers or executives of LANDLORD;
professional fees incurred in connection with preparing or enforcing any lease
(including TENANT'S lease); losses, repairs, replacements, or improvements which
were paid for directly by TENANT or any third party; and advertising and
promotional expenses for the purpose of marketing space in the Building.
3.5 ESTIMATES OF OPERATING EXPENSES: LANDLORD shall furnish to
TENANT, prior to the commencement of the first full calendar year during the
term of this Lease, LANDLORD'S written estimate of Additional Rent for the
upcoming year. At the end of each calendar year throughout the term of this
Lease LANDLORD shall furnish TENANT LANDLORD'S written reasonable estimate of
Additional Rent for the following calendar year and TENANT shall pay to LANDLORD
on the first day of each month of the term hereof, as Additional Rent, 1/12 of
said amount.
3.6 RECONCILIATIONS: LANDLORD shall also furnish TENANT within
ninety (90) days after the end of each calendar year throughout the term of this
Lease a written summary of the amounts actually expended by LANDLORD for
Operating Expenses during such calendar year. In the event TENANT has overpaid
TENANT'S proportionate share of Operating Expenses, LANDLORD shall credit such
overpayment against future Base Building Rent required to be paid by TENANT,
except that during the last year of the term, such overpayment shall be promptly
refunded to TENANT. In the event TENANT has underpaid TENANT'S proportionate
share of Operating Expenses, TENANT shall pay LANDLORD such underpaid amount
within thirty (30) days following receipt by TENANT of a written notice of the
amount of such underpayment. TENANT or their authorized representative, at
TENANT's sole cost, shall have the right, during normal business hours and upon
reasonable advance notice to LANDLORD, to review or audit LANDLORD's books and
records pertaining to Operating
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Expenses for the immediately preceding calendar year. In the event that TENANT's
review or audit discloses that LANDLORD has overcharged TENANT by more than five
percent (5%), LANDLORD shall reimburse TENANT for the excess amounts paid by
TENANT, and LANDLORD shall reimburse TENANT for the cost of its audit.
3.7 ADJUSTMENTS FOR PARTIAL YEARS: During the last calendar year of
the term of this Lease, TENANT shall be obligated to pay a pro rata portion of
the Operating Expenses due and payable for such calendar year based upon the
part of such year during which this Lease is in effect.
3.8 SURVIVAL OF OBLIGATION: TENANT's obligation to pay the
Additional Rent as provided herein shall survive the termination of this Lease.
3.9 PAYMENT ADDRESS: All payments for Base Building Rent and all
other sums (whether designated additional rent or otherwise) shall be paid to
LANDLORD at 0000 X. 00xx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxx 00000, or to
such other person or at such other place as LANDLORD may from time to time
designate in writing.
3.10 INTEREST CHARGES: TENANT does hereby covenant and agree
promptly to pay the Base Building Rent, Additional Rent and other adjustments
and charges herein reserved as and when the same shall become due and payable,
without demand therefore, and without any set-off or deduction whatsoever, and
to keep and perform, and to permit no violation of, each and every one of the
covenants, agreements, terms, provisions and conditions herein contained on the
part and behalf of the TENANT to be kept and performed. Rental and other monies
due LANDLORD under this Lease not paid within ten (10) days after its due date
shall bear interest from the date due at the highest rate allowed by law but not
to exceed one and one-half (1 1/2) percent per month.
4. ORDINANCES AND REGULATIONS:
4.1 LEASED PREMISES: TENANT will maintain the Leased Premises in a
clean and healthful condition. TENANT hereby agrees to comply with all laws,
ordinances, orders, rules, and regulations (state, federal, municipal and other
agencies or bodies having any jurisdiction thereof) with reference to use,
condition or occupancy of the Leased Premises provided that TENANT shall not be
required to make any alterations or improvements to the Leased Premises in
conjunction therewith. TENANT further agrees to comply with all rules and
regulations which may be hereafter established from time to time by LANDLORD,
initially, those set forth on Exhibit 'D' hereto and made a part hereof by this
reference. LANDLORD reserves the right from time to time to make additional
modifications to said rules and regulations which shall be binding upon TENANT
upon delivery of a copy thereof to TENANT. LANDLORD shall not be responsible to
TENANT for the nonperformance by any other tenants or occupants of any of said
rules and regulations. TENANT will not violate or permit the violation of any
condition imposed by the standard fire insurance policy issued for office
buildings in the Wichita,
Kansas area, and not do anything or keep anything in
the Leased Premises which would increase the fire or other casualty insurance
rate on the Building or the
8
property therein, or which would result in insurance companies of good standing
refusing to insure the Building or any such property in amounts and against
risks reasonably determined by LANDLORD.
4.2 OFFICE PARK COMMON AREAS AND TOTAL BUILDING FACILITIES:
LANDLORD will maintain the Office Park Common Areas and Total Building
Facilities in a clean and healthful condition. LANDLORD hereby agrees to comply
with all laws, ordinances, orders, rules and regulations (state, federal,
municipal and other agencies or bodies having jurisdiction thereof) with
reference to use, condition or occupancy of the Office Park Common Areas and
Total Building Facilities.
5. INSPECTION:
5.1 RIGHT TO INSPECT, REPAIR, ALTER AND ADD: TENANT will permit
LANDLORD and its officers, agents and representatives to enter into and upon any
and all parts of the Leased Premises at all reasonable hours to inspect the
same, clean or make repairs or alterations or additions as LANDLORD may deem
necessary, and TENANT shall not be entitled to any abatement or reduction of
rent by reason thereof.
5.2 RIGHT TO SHOW: TENANT will permit LANDLORD, at reasonable
times, to show the Leased Premises to any owner, or mortgagee or any prospective
purchaser, or any holder of any ownership or security interest in the Building
or of the land on which it is situated, or of LANDLORD'S interest therein (and
to their respective representatives) and similarly to show the Leased Premises
to any person contemplating the leasing of all or a portion of the same.
6. ASSIGNMENT AND SUBLEASE:
6.1 NO ASSIGNMENT, SUBLEASE OR ENCUMBRANCE: TENANT will not assign,
mortgage, pledge or encumber this Lease, or any part thereof, directly or
indirectly, or allow the same to be assigned by operation of law or otherwise or
sublet the Leased Premises or any part thereof, or use or permit the same to be
used for any other purpose than stated in paragraph 10 hereinafter, without the
prior, written consent of LANDLORD in each instance, which consent shall not be
unreasonably withheld, conditioned or delayed. Such permitted assignment or
sublease shall not relieve the TENANT from its obligations hereunder for the
payment of rents or the performance of conditions, covenants and provisions of
this Lease.
6.2 LANDLORD'S TRANSFER: LANDLORD shall have the right to transfer
and assign, in whole or in part, any of its rights under this Lease and in the
Building and property referred to herein and, to the extent that such assignee
assumes LANDLORD'S obligations hereunder, LANDLORD shall by virtue of such
assignment be released from such obligations.
6.3 RIGHT TO COLLECT FROM ASSIGNEE: If the Leased Premises are
sublet or occupied by anybody other than TENANT and TENANT is in default
hereunder or if this Lease is assigned by TENANT then LANDLORD may collect rent
from the assignee under TENANT
9
or occupant and apply the net amount collected to the rent herein reserved; but
no such collection shall be deemed a waiver of the covenant herein against
assignment or subletting or the acceptance of such assignee under TENANT or
occupant as "TENANT", or a release of TENANT from further performance of the
covenants herein contained.
7. DESTRUCTION OF PREMISES:
7.1 TOTAL DESTRUCTION: In the event that the Building should be
totally destroyed by fire, tornado or other casualty, or if the Building should
be so damaged that rebuilding or repairs cannot be completed within one hundred
eighty (180) days after the date of such damage, either LANDLORD or TENANT shall
have the option of terminating this Lease by giving written notice to the other
at any time prior to the forty-fifth (45th) day after the date of such damage.
7.2 PARTIAL DESTRUCTION: If the Leased Premises are partially
damaged by fire, tornado, or other casualties, or totally destroyed thereby and
neither party elects to terminate this Lease within the provisions of paragraph
7.1 above, then the LANDLORD agrees to restore the Leased Premises to a kind and
quality substantially similar to that immediately prior to such destruction or
damage. Said restoration shall be commenced within forty-five (45) days after
the date of such damage and diligently prosecuted to completion by and all rent
accruing after the date of such damage shall be equitably and proportionately
suspended and adjusted according to the nature and extent of the destruction or
damage, pending completion of rebuilding, restoration or repair, except that in
the event the destruction or damage is so extensive as to make it infeasible for
the TENANT to conduct its business on the Leased Premises, the rent shall be
completely abated until the premises are restored by the LANDLORD or until the
TENANT resumes the conduct of his business on the Leased Premises, whichever
shall first occur. The LANDLORD shall not be liable for any inconvenience or
interruption of business of the TENANT occasioned by fire, tornado or other
casualty. Notwithstanding the foregoing to the contrary, LANDLORD shall not be
obligated to make any repairs which cost in excess of the amount of insurance
proceeds received by LANDLORD in connection with such damage, provided, if such
repairs are not sufficient to restore the Leased Premises to a kind or quality
substantially similar to that immediately prior to said destruction or damage,
TENANT's obligations hereunder shall be terminated as of the date of such damage
or destruction.
8. CONDEMNATION:
8.1 TOTAL TAKING: If during the term of this lease, or any renewal
thereof, the whole of the Leased Premises, or such portion thereof as will make
the Leased Premises unusable for the purpose leased, be condemned by public
authority for public use, then, in either event, the term hereby granted shall
cease and come to an end as of the date of the vesting of title in such public
authority, or when possession is given to such public authority, whichever event
last occurs. Upon such occurrence, the rent shall be apportioned as of such date
and any prepaid rent shall be returned to the TENANT. TENANT shall not be
entitled to any part of the award or
10
any payment in lieu thereof, nor shall TENANT be entitled to any award for the
loss of its leasehold estate. The entire award for the taking of the Leased
Premises, the Building and the land upon which it is located shall belong solely
and exclusively to LANDLORD. TENANT may file a claim for loss of TENANT's trade
fixtures and for TENANT's moving expenses.
8.2 PARTIAL TAKING: If a portion of the Leased Premises or Building
is taken or condemned by public authority for public use so as not to make the
remaining portion of the Leased Premises unusable for the purposes leased, this
Lease shall continue in full force and effect unless LANDLORD determines that
the continued operation of the Building, after such taking, is not practical, in
which event LANDLORD may terminate this Lease by giving TENANT written notice of
termination to be effective upon the day the condemning authority takes
possession of the condemned portion. In the event of such a termination, all
rent and other charges shall be adjusted, prorated and paid to the date of
termination. In the event of such a partial taking and this Lease is not
terminated in accordance with the foregoing, then the rent shall be equitably
and fairly reduced and abated for the remainder of the term in proportion to the
amount of the Leased Premises taken and the LANDLORD shall be entitled to the
entire award for such partial taking. If the part of the Building so taken or
condemned contains more than twenty-five percent (25%) of the total area of the
Leased Premises immediately prior to such taking or condemnation, or if, by
reason of such taking or condemnation, TENANT no longer has reasonable means of
access to the Leased Premises or if TENANT is deprived of reasonably sufficient
parking, TENANT may terminate this Lease by notice to LANDLORD given within
thirty (30) days following the date upon which TENANT received notice of such
taking or condemnation. If TENANT so notifies LANDLORD, this Lease shall end and
expire upon the thirtieth (30th) day following the giving of such notice. If a
part of the Leased Premises shall be so taken or condemned and this Lease and
the Term shall not be terminated in accordance with this Section 8.2, LANDLORD,
at LANDLORD's expense, but without requiring LANDLORD to spend more than it
collects as an award, shall restore that part of the Leased Premises not so
taken or condemned to a self-contained rental unit substantially equivalent
(with respect to character, quality, appearance and services) to that which
existed immediately prior to such taking or condemnation.
9. INDEMNIFICATION:
9.1 INDEMNIFICATION OF LANDLORD: TENANT will defend, by counsel
reasonably acceptable to LANDLORD, indemnify and save harmless LANDLORD of and
from any and all fines, suits, claims, demands, expenses, costs and actions of
any kind arising out of TENANT'S or TENANT's agents, employees, contractors,
guests or business invitees use, occupancy, or control of the Leased Premises or
common areas, or any breach, violation or non-performance of any covenant hereof
on the part of TENANT; and except for LANDLORD'S own negligence, LANDLORD shall
not be liable to TENANT or TENANT'S agents, employees, guests or invitees for
any damage to persons or property due to condition, design or defect in or on
the Leased Premises, Total Building Facilities (including mechanical systems),
or Office Park Common Areas which may exist or occur.
11
9.2 LANDLORD'S LIABILITY: LANDLORD and its agents shall not be
liable to TENANT or to TENANT'S officers, employees, agents, licensees or
invitees for any loss or damage to any part of the Building or the land upon
which the Building is located or related improvements or appurtenances thereto
becoming out of repair, any defect in or failure of pipes or wiring, the backing
up of any drains or the bursting or leaking of any pipes, faucets and plumbing
fixtures, any gas, water, steam, electricity, oil or rain leaking, escaping or
flowing into the Leased Premises from any part of the Building, or from the
pipes, appliances or plumbing works therein or from the roof, street or
subsurface or from any other place resulting from dampness or any other cause
whatsoever, theft, fire, explosion, Act of God, riot, war, insurrection, court
order or order of governmental authority or any other matter beyond the control
of the LANDLORD, unless caused by or due to the negligence of LANDLORD, its
agents, servants or employees. LANDLORD or its agents shall not be liable for
interference with the light or other incorporeal hereditaments, loss of business
by TENANT nor shall LANDLORD be liable for any latent defect in the Leased
Premises or in the Building. TENANT shall give prompt written notice to LANDLORD
in case of fire or accidents in the Leased Premises or in the Building or of
defects therein or in the fixtures or equipment located therein.
10. USE OF PREMISES:
TENANT shall use and occupy the Leased Premises and the Building as
and for the following purpose: General office use and for no other purpose.
11. IMPROVEMENTS, REPAIRS, ALTERATIONS AND TAXES:
11.1 PROHIBITIONS: TENANT shall not, without LANDLORD'S prior
written consent, in LANDLORD's sole discretion:
a. make any alterations, additions or improvements in the Leased
Premises or the Building;
b. do or suffer anything to be done on the Leased Premises or
the Building which will render LANDLORD'S insurance void or
the insurance risk more hazardous;
c. permit the accumulation of waste or refuse matter;
d. Abandon the Leased Premises
11.2 TENANT'S MAINTENANCE OBLIGATIONS: TENANT shall take good care
of the Leased Premises and the fixtures and appurtenances therein. TENANT shall
maintain the Leased Premises, at all times during the term of this Lease, in
good condition and repair, ordinary wear and tear excepted. All damage or injury
to the Leased Premises and to its fixtures, appurtenances and equipment or to
the Building of which the same form a part or to its fixtures, appurtenances and
equipment caused by TENANT moving property in or out of the Building or by
installation or renewal of furniture, fixtures or other property or resulting
from any cause of
12
any kind or nature whatsoever due to carelessness, omission, neglect, improper
conduct or other cause of TENANT, its servants, employees, agents, visitors, or
licensees shall be repaired, restored or replaced promptly by TENANT at its sole
cost and expense to the reasonable satisfaction of LANDLORD, ordinary wear and
tear excepted. All the aforesaid repairs, restorations or replacements shall be
in quality and class equal to the original work or installations. If TENANT
fails to commence such repairs, restorations or replacements within fifteen (15)
days after receipt of written notice from LANDLORD, the same may be made by
LANDLORD and TENANT shall pay all reasonable costs actually incurred by LANDLORD
in connection therewith within fifteen (15) days after receipt of a reasonably
detailed invoice therefor. Alterations, additions, improvements and immovable
fixtures shall become the property of LANDLORD upon installation and shall not
be removed without LANDLORD'S prior written consent.
11.3 MECHANIC LIENS: TENANT shall not have the power or right to
create in any way liens for labor or material which would be a lien upon any
interest of LANDLORD or in and to the Leased Premises and shall protect
LANDLORD'S interest against any liens or claims for improvements made by TENANT.
In the event any such liens are filed, TENANT agrees, at its expense, to cause
the same to be released or bonded over within fifteen (15) days after the same
are filed.
11.4 BONDING AGAINST LIENS: LANDLORD may require, at LANDLORD'S
reasonable discretion, that TENANT provide LANDLORD, at TENANT'S sole cost and
expense, a payment and performance bond in an amount equal to one and one-half
(1 1/2) times the estimated cost of any improvements, additions or alterations
to be made by TENANT with respect to the Leased Premises, to insure LANDLORD
against any liability for mechanics' and materialmen's liens and to insure
completion of the work.
11.5 TAXES ON TENANT'S PROPERTY AND IMPROVEMENTS: TENANT shall pay
or cause to be paid, before delinquent, any and all taxes levied or assessed
during the term hereof or any extension or renewal thereof, upon an and all of
TENANT's leasehold improvements, equipment, furniture, fixtures, and personal
property located in the Leased Premises. If the same shall be assessed and taxed
with the Building, TENANT shall pay to LANDLORD its share of such taxes, to the
extent the same are in excess of other leasehold improvements in the Building,
within thirty (30) days after delivery to TENANT of a written statement by
LANDLORD setting forth the amount of such taxes applicable to TENANT's property
together with such reasonable supporting documentation as TENANT may request.
12. INSURANCE:
12.1 LIABILITY INSURANCE: With respect to the Leased Premises and
common areas, TENANT shall, at TENANT'S sole cost and expense, obtain and keep
in force at all times during the term of this Lease, commercial general
liability insurance, including property damage, in the amount of at least One
Million Dollars ($1,000,000.00) combined single limit, insuring LANDLORD and
TENANT against any liability arising out of the ownership, use, occupancy or
maintenance of the Leased Premises and all areas appurtenant thereto. The limit
of said
13
insurance shall not, however, limit the liability of the TENANT hereunder.
TENANT may carry said insurance under a blanket policy providing, however, said
insurance by TENANT shall have a LANDLORD'S protective liability endorsement
attached thereto. Insurance required hereunder shall be in companies licensed in
the State of
Kansas and shall have a rating of A or better in "Best's Insurance
Guide" and a financial rating of Class XII or better. Mutual insurance companies
may be used only if they are nonassessable. To the extent of the negligent acts
or omissions of the Tenant, such policy shall name LANDLORD as an additional
insured and shall be primary and noncontributing with any insurance carried by
LANDLORD. No policy shall be cancelable or subject to reduction of coverage
except after thirty (30) days written notice to LANDLORD. LANDLORD shall receive
evidence of insurance upon request.
12.2 WAIVER OF SUBROGATION: LANDLORD and TENANT each hereby waive
all claims against the other for any loss of or damage to any of its property if
such property is insured against such loss or damage under any valid and
collectible insurance policy or policies, but only to the extent of any recovery
collected by it under such insurance, subject however, to the limitation that
this waiver shall apply only when permitted by the applicable policy or policies
of insurance. LANDLORD and TENANT each hereby further agree to cause any and all
policies containing extended coverage and/or material damage insurance now or
hereafter carried by it to be endorsed with a subrogation clause providing in
substance that the insurer has waived any or all rights of recovery against the
other party hereto for loss of or damage to the insured property first occurring
after the date of such waiver; provided, however, if there is a charge or extra
premium for such an endorsement, the party obligated to obtain the same shall be
excused therefrom unless the other party pays such charge or extra premium.
12.3 LANDLORD INSURANCE: With respect to the Building and Common
Areas, LANDLORD shall, at LANDLORD's sole cost and expense, obtain and keep in
force at all times during the term of this Lease, commercial general liability
insurance in the amount of at least One Million Dollars ($1,000,000.00) combined
single limit, insuring LANDLORD and TENANT against any liability arising out of
the ownership, use, occupancy or maintenance of the Total Building Facilities
and Office Park Common Areas and all areas appurtenant thereto. In addition,
LANDLORD shall keep in force at all times during the term hereof property
insurance insuring the full replacement value of the Building.
13. DEFAULT:
13.1 DEFAULT - CURE PERIOD: If (i) TENANT defaults in payment of
Base Building Rent or Additional Rent or (ii) defaults in the performance of any
of the covenants or conditions hereof, LANDLORD, in such event(s), may give to
TENANT written notice of such default and if TENANT fails to cure any Base
Building Rent and Additional Rent default within fifteen (15) days after the
giving of such notice or fails to cure any other default within thirty (30) days
after the giving of such notice, LANDLORD may, at its election, terminate this
Lease with TENANT, and on the date specified in said notice the term of this
Lease shall terminate and TENANT shall then quit and surrender the Leased
Premises to LANDLORD, but TENANT shall remain liable as hereinafter provided. In
the event of a default which is not cured in the applicable cure period,
LANDLORD may, with or without terminating this Lease, at any time
14
thereafter resume possession of the Building by any lawful means and remove
TENANT or other occupants and their effects.
13.2 RELETTING: In any case where LANDLORD has recovered possession
of the Leased Premises by reason of TENANT'S default, LANDLORD may, at
LANDLORD'S option, occupy the Leased Premises or cause the Leased Premises to be
reasonably redecorated, altered, divided, consolidated with other adjoining
premises, or otherwise changed or prepared for reletting, and may relet the
Leased Premises or any part thereof as agent of TENANT or otherwise for a term
or terms to expire prior to, at the same time as, or subsequent to the original
expiration date of this Lease, at LANDLORD'S option, and receive the rent
therefor, applying the same first to the payment of such expenses as LANDLORD
may have incurred in connection with the recovery of possession, redecoration,
altering, dividing, consolidating with other adjoining premises, or otherwise
changing or preparing for reletting, and the reletting, including reasonable
brokerage fees and attorneys' fees (to the extent allowed by law) and then to
the payment of damages in amounts equal to the rent hereunder and to the cost
and expense of performance of the other covenants of TENANT as herein provided;
and TENANT agrees, whether or not LANDLORD has relet, to pay to LANDLORD damages
equal to the rent and other sums herein agreed to be paid by TENANT during the
remainder of the original term of this Lease, less the net proceeds of the
reletting, if any, as ascertained from time to time and the same shall be
payable by TENANT on the several rent days above specified. LANDLORD shall have
the right, in reletting the Leased Premises, to grant reasonable rent
concessions and TENANT shall not be entitled to any credit by reason thereof. No
such reletting shall constitute a surrender and acceptance or be deemed evidence
thereof or in any way relieve TENANT of its obligations under this Lease except
to the extent of the net proceeds received from such reletting.
13.3 LANDLORD OCCUPANCY: If LANDLORD elects to occupy and use the
Leased Premises or any part thereof during any part of the balance of the term
as originally fixed or since extended, there shall be allowed against TENANT'S
obligations for rent and other damages as herein defined, during the period of
LANDLORD'S occupancy, the reasonable value of such occupancy, not to exceed in
any event the rent herein reserved and such occupancy shall not be construed as
a release of TENANT'S liability hereunder.
13.4 CONSTRUCTIVE EVICTION: TENANT shall not be entitled to claim a
constructive eviction from the Leased Premises unless TENANT shall have first
notified LANDLORD in writing of the condition or conditions giving rise thereto
and unless LANDLORD shall have failed within a reasonable time after receipt of
said notice to remedy such conditions. Notwithstanding the foregoing to the
contrary, in the event the conditions relied on by TENANT do not constitute a
constructive eviction, then no such eviction shall be deemed to have occurred
regardless of the fact that LANDLORD may not have remedy TENANT's complaints.
13.5 NO WAIVER OF ACCORD AND SATISFACTION: No payment by the TENANT
or receipt by the LANDLORD of a lesser amount than the rent stipulated in this
Lease shall be deemed other than a payment on account of the earliest rent due,
nor shall any endorsement or statement on any check or on any letter
accompanying any check or payment as rent be deemed
15
an accord and satisfaction, and the LANDLORD may accept such check or payment
without prejudice to its right to recover the balance of the rent or to pursue
any other remedy provided for in this Lease.
13.6 GRANT OF LIEN: TENANT hereby grants to LANDLORD a lien upon all
the equipment and personal property heretofore or hereafter installed or used by
TENANT in or about the leased premises as and for security for the payment of
any and all rent herein reserved and for the performance of all of the covenants
herein required to be performed by TENANT; it being specifically understood and
agreed that such lien shall arise at the inception of the initial day of the
term of this Lease, together with any renewals, extensions or holding over
hereunder; provided, however, the said lien shall not preclude the TENANT from
removing such items as may become worn or obsolete or of no further value or
utility in the operation of TENANT's business upon the condition that TENANT
replace the same with other property of similar character and that such
replacement have at least equivalent value to the property so removed and the
lien hereby granted shall attach to any such replacements. Upon the failure of
TENANT to pay any rent hereunder, or to make any other payment or to satisfy any
other liability as and when due hereunder, LANDLORD, without notice or demand,
may take possession of and sell such property without legal process of any kind,
at either public or private sale, after one publication of a notice thereof in
some daily newspaper published in the county in which the leased premises are
located not less than ten (10) days before such sale, and may apply the proceeds
of such sale to the payment of expenses thereof and to the discharge of the rent
or other liability unpaid, and hold the balance of such proceeds, if any, for
the account of the TENANT.
14. LEASE AND MORTGAGES:
14.1 SUBORDINATION: This Lease shall be and is subject and
subordinate to all underlying restrictions, declarations, leases and mortgages
which may now or hereafter affect the real property of which the Building forms
a part, and also to all renewals, modifications, consolidations and replacements
of said underlying restrictions, declarations, leases and said mortgages.
Although no instrument or act on the part of TENANT will be necessary to effect
such subordination, TENANT will, nevertheless, execute and deliver such further
instruments confirming such subordination of this Lease as may be reasonably
requested by the holders of said mortgages or by any of the lessors under such
underlying leases within fifteen (15) days after receipt thereof. If any
underlying lease to which this Lease is subject terminates, TENANT shall, on
timely request, attorn to the owner of the reversion. In the event TENANT fails
or refuses to deliver any instrument confirming such subordination, within
fifteen (15) days after receipt of LANDLORD's written request therefor, such
failure or refusal shall constitute a default under this lease, for which there
shall be no cure period, entitling LANDLORD to enforce all of its rights and
remedies set forth herein or provided by law.
14.2 ATTORNMENT: Without limitation of any of the provisions of this
Lease, in the event that, by reason of any default on the part of LANDLORD, any
mortgagee or lessor or their respective assigns shall succeed to the interest of
LANDLORD hereunder or of any successor-LANDLORD, then, at the option of such
mortgagee or lessor, this Lease shall nevertheless continue in full force and
effect and TENANT shall and does hereby agree to attorn
16
to such mortgagee or its assigns and to recognize such mortgagee or lessor or
its assigns as its LANDLORD. TENANT shall execute and deliver, within fifteen
(15) days after receipt thereof, any instrument that such mortgagee or lessor
may reasonably request to evidence such attornment.
14.3 NON-DISTURBANCE: If the Leased Premises or any portion thereof
is subject to a mortgage at the time this Lease commences or at any time during
the term of this Lease or any extension hereof, LANDLORD agrees to obtain from
the holder of the mortgage an agreement, in recordable form, evidencing the
mortgagee's recognition of this Lease. Said document will include the
mortgagee's agreement not to disturb TENANT during the term of this Lease or any
extension thereof so long as TENANT is not in default hereunder. The term
"mortgage" as used herein means any mortgage, assignment, deed of trust, or
other transfer of the Leased Premises in whole or in part made as security for
any indebtedness of LANDLORD; and the term "mortgagee" as used herein means any
person to whom or for whose benefit any such mortgage of the Leased Premises has
been made.
15. SECURITY DEPOSIT:
15.1 DEPOSIT: The TENANT, concurrently with the execution of this
Lease, has deposited with the LANDLORD the sum of Five Thousand and 00/100
Dollars ($5,000.00), the receipt whereof is hereby acknowledged, which sum shall
be retained by the LANDLORD. The deposit shall be held by LANDLORD as security
for the performance by TENANT of TENANT'S covenants and obligations under this
Lease. It being expressly understood that such deposit shall not be considered
an advance payment of rental or measure of LANDLORD'S damages in case of default
by TENANT. LANDLORD shall be under no obligation to pay or account to TENANT for
any interest on earnings accruing to LANDLORD from the use of any such security
deposit.
15.2 APPLICATION OF DEPOSIT: Upon the occurrence of any event of
default by TENANT, LANDLORD may, from time to time, without prejudice to any
other remedy, use such deposit to the extent necessary to make good any
arrearages of rent and any other damage, injury, expense or liability caused to
LANDLORD by such event of default. Following any such application of the
security deposit, TENANT shall pay to LANDLORD on demand the amount so applied
in order to restore the security deposit to its original amount. TENANT'S
failure to do so shall be a material breach of this Lease. If TENANT shall fully
and faithfully perform every provision of this Lease, the security deposit or
any balance thereof shall be returned to TENANT (or, at LANDLORD'S option, to
the last assignee of TENANT'S interest hereunder) at the termination of this
Lease term.
16. SERVICES AND UTILITIES:
16.1 FAILURE OF SERVICES: The failure to any extent to furnish or
any stoppage of the water service or any other services to be furnished by
LANDLORD, resulting from causes beyond the control of LANDLORD, shall not render
LANDLORD liable in any respect for damages to either person or property, nor be
construed as an eviction of TENANT or work an
17
abatement of rent, nor relieve TENANT from fulfillment of any covenant or
agreement hereof. Should any equipment or machinery break down, or for any cause
cease to function properly, LANDLORD shall use reasonable diligence to repair
same promptly, but TENANT shall have no claim for rebate of rent or damages on
account of any interruptions in service, beyond the control of LANDLORD
occasioned thereby or resulting therefrom.
16.2 BUILDING HOURS: LANDLORD shall, at its own cost and expense,
furnish the following services and utilities for normal office use to TENANT
throughout the term of this Lease during the normal business hours of 7:00 a.m.
to 6:00 p.m. Monday through Friday, and 8:00 a.m. to noon Saturdays. Such
services exclude holidays designated as New Year's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving and Christmas Day:
1. Heating and air conditioning
2. Electricity for lighting and ordinary business purposes
3. Hot and cold running water
4. Janitor services (five days per week)
5. Snow and rubbish removal
6. Pest control
LANDLORD shall have the right to collect, at reasonable intervals, reimbursement
from TENANT for any operation of TENANT reasonably determined to cause excessive
operating expenses compared to average office tenants in Wichita, including but
not limited to, special heating and air conditioning equipment for the Leased
Premises, longer than single shift work hours, etc. Upon reasonable notice to
LANDLORD, overtime HVAC shall be available and the actual cost incurred by
LANDLORD shall be billed to TENANT, payable within thirty (30) days.
17. PARKING:
TENANT shall have the right to use in common with LANDLORD, other
tenants or occupants of the Building and their employees, agents, and business
invitees the parking facilities of the Building, if any, subject to the rules
and regulations, and any other charges of LANDLORD for such parking facilities
which may be established or altered by LANDLORD at any time or from time to time
during the term hereof. LANDLORD shall provide a minimum of four (4) parking
spaces per one thousand (1,000) rentable square feet in the Leased Premises.
18. END OF TERM:
18.1 CONDITION OF SURRENDERED PREMISES: TENANT will, at the end of
the term of this Lease, quit and surrender to LANDLORD the Leased Premises broom
clean and in good
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order and condition except for ordinary wear and tear. Any personal property
which shall remain in the Leased Premises after the expiration or termination of
this Lease may be disposed of in such manner as LANDLORD may see fit, any
reasonable removal expense to be paid by the TENANT. If the last day of the term
of this Lease falls on a Sunday or a legal holiday, this Lease shall expire on
the business day immediately preceding.
18.2 [Intentionally Deleted]
18.3 HOLDOVER: In the event of a holdover by TENANT without
LANDLORD'S permission, TENANT shall be liable to LANDLORD for rent during the
unauthorized holdover period (determined on a daily basis) in an amount equal to
twice the Base Building Rent and Additional Rent in effect at the termination of
the Lease. Such unauthorized holdover shall not be construed to create any
periodic tenancy rights in favor of TENANT.
19. GENERAL:
19.1 GENDER: Words of any gender used in this Lease shall be held
and construed to include any other gender, and words in singular number shall be
held to include the plural, unless the context otherwise requires.
19.2 BINDING EFFECT: The terms, provisions, covenants and conditions
contained in this Lease shall apply to, inure to the benefit of, and be binding
upon the parties hereto and their respective permitted assigns, successors in
interest, heirs and legal representatives except as otherwise herein expressly
provided.
19.3 MODIFICATIONS: Any modifications of this Lease, or any
collateral agreement with respect to the relationship between the LANDLORD and
TENANT shall not be binding upon the either party unless the same be made in
writing and signed by an authorized representative of each of the parties. In
the event that the Lease herein or any of its provisions or covenants shall be
modified or stricken out, or new covenants added thereto, said changes shall not
be considered a termination of this instrument and the same shall continue in
full force and effect as so changed.
19.4 NOTICES: All notices, demands, consents and requests which may
or are required to be given by either party to the other hereunder shall be in
writing and shall be either: (i) personally delivered; (ii) sent by certified
mail, return receipt requested, postage prepaid, addressed as set forth in this
section or to such other place as either party may from time to time designate
in a written notice to the other party; or (iii) sent by facsimile transmitting
machine (herein "FAX"). Notices, demands, consents and requests which shall be
served upon either party in the foregoing manner shall be deemed served or given
for all purposes hereunder at the time such notice, demand, consent or request
shall be personally delivered or delivery shall be refused by the recipient or,
if sent by FAX, the day the facsimile copy is received on the receiving party's
FAX machine; or, if mailed, the day such notice, demand, consent or request was
mailed in accordance with this section. The notice addresses and FAX numbers of
the parties are as follows:
19
As to Landlord: VANTAGE POINT PROPERTIES, INC.
0000 X. 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
FAX: (000) 000-0000
As to Tenant: DIMENSIONS FINANCIAL CONSULTANTS, INC.
0000 X. 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
FAX: (000) 000-0000
With a Copy To: DIMENSIONS INVESTMENT MANAGEMENT, INC.
0000 X. 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxxx
FAX: (000) 000-0000
19.5 CUMULATIVE REMEDIES: It is agreed that each and every one of
the rights, remedies and benefits provided by this Lease shall be cumulative,
and shall not be exclusive of any other said rights, remedies and benefits, or
of any other rights, remedies and benefits allowed by law.
19.6 SAVING CLAUSE: Invalidation of any of the provisions herein
contained by law, judgment or court order shall in nowise affect any of the
other provisions which shall remain in full force and effect.
19.7 WAIVERS: One or more waivers of any covenant, condition, rule
or regulation by the LANDLORD shall not be construed as a waiver of a further
breach of the same.
19.8 CAPTIONS: The captions are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope
of this Lease nor the intent of any provision thereof.
19.9 CHOICE OF LAW: This Lease shall be governed exclusively by the
terms hereof, and by the laws of the State of
Kansas.
19.10 ESTOPPEL CERTIFICATE: Upon not less than fifteen (15) days
prior notice by LANDLORD, TENANT will promptly execute and deliver to LANDLORD a
statement in writing certifying that this Lease is in full force and effect, the
dates to which any rent has been paid in advance, if any, and whether or not to
the best knowledge of signer, LANDLORD is in default and, if so, specifying each
default, and contain such other information or statements as
20
LANDLORD may require. The failure to timely deliver any such estoppel
certificate shall constitute a default hereunder.
19.11 RIGHT TO CURE: LANDLORD shall have the right, but not the
obligation, at any time, without notice, to cure any default by TENANT under
this Lease and LANDLORD so elects, all costs and expenses incurred by LANDLORD
in curing such default, together with interest on the amount of costs and
expenses so incurred at the highest lawful rate, not to exceed one and one-half
percent (1 1/2%) per month shall be paid by TENANT to LANDLORD on demand.
19.12 USE OF BUILDING NAME: TENANT shall not use the name of the
Building or of the development in which this Building is situated for any
purpose other than as an address of the business to be conducted by the TENANT
in the Leased Premises without the prior written permission of the LANDLORD.
19.13 COUNTER PARTS: This Lease may be executed in one or more
counterparts each of which shall constitute one Lease binding on all the parties
hereto.
19.14 TIME OF THE ESSENCE: With respect to the Lease, time is of the
essence.
19.15 BROKERS: With respect to this Lease transaction, LANDLORD
agrees to pay a real estate commission to Xxxx X. Xxxxxx Associates (herein
"Broker") in accordance with a separately executed agreement. Each party
represents that it has not had any dealings with any real estate broker, or any
other person who may claim a commission or finder's fee with respect to this
Lease in any manner other than Broker. Each party shall hold harmless the other
party for any damages resulting from any claims that may be asserted against the
indemnified party by any broker, finder or other person with whom the
indemnifying party has or purportedly has dealt other than Broker.
19.16 ENTIRE AGREEMENT: This Lease and the exhibits hereto constitute
the entire understanding between LANDLORD and TENANT, and there are no
agreements, understandings, warranties or representations between LANDLORD and
TENANT except at set forth herein. This Lease cannot be amended except in
writing executed by LANDLORD and TENANT.
20. AUTHORITY FOR EXECUTION:
20.1 CORPORATE AUTHORITY: If TENANT is a corporation, each
individual executing this Lease on behalf of said corporation or association
represents and warrants that he is duly authorized to execute and deliver this
Lease on behalf of said entity, in accordance with a duly adopted resolution of
the board of directors of said entity or in accordance with the by-laws of said
entity, and that this Lease is binding upon said entity in accordance with its
terms.
20.2 PARTNERSHIP AUTHORITY: If TENANT is a general or limited
partnership, each individual executing this Lease on behalf of said partnership
represents and warrants that he
21
is a general partner of said partnership and that he has authority to execute
and deliver this Lease on behalf of said partnership in accordance with the
Partnership Agreement, and that this Lease is binding upon said partnership in
accordance with its terms and enforceable against the assets of the partnership
and the general partners, individually.
21. QUIET ENJOYMENT:
LANDLORD covenants that if, and so long as, TENANT keeps and performs
each and every covenant, agreement, term, provision and condition herein
contained on the part and on behalf of TENANT to be kept and performed TENANT
shall quietly enjoy the Leased Premises without hindrance or molestation by
LANDLORD or by any person lawfully claiming through or under LANDLORD, subject
to the covenants, agreements, terms, provisions and conditions of this Lease and
to the leases or mortgages to which this Lease may be subject and subordinate,
as herein set forth.
22. COMPLIANCE WITH DECLARATIONS:
22
TENANT hereby acknowledges that the Building and Land are subject to
the terms and provisions of the Declaration of Covenants, Conditions and
Restrictions of Xxxxxx Estates dated June 5, 1996, as amended, recorded in the
Office of the Register of Deeds of Sedgwick County,
Kansas, in Film 1614, Page
1383 (herein the "DECLARATIONS"). TENANT hereby agrees that: (i) it is leasing
the Leased Premises subject to the Declarations; and (ii) it will observe and
comply with the terms and provisions of the Declarations in so far as they
relate to the Leased Premises and/or TENANT's use of the Leased Premises or any
other facilities in the Building or on the Land made available to TENANT by
LANDLORD. LANDLORD represents and warrants that the Declarations permit the use
of the Leased Premises for general office purposes.
23. CONDITION OF THE LEASED PREMISES:
TENANT hereby accepts the Leased Premises in its condition immediately
preceding the date of execution of this Lease, "AS IS, WITH ALL FAULTS," and
further agrees to occupy the Leased Premises, without modification of any kind,
in its "as is" condition. TENANT hereby acknowledges that it has visited the
site and is fully informed as to all conditions and limitations of the Leased
Premises in its "as is" condition, subject to the representations and covenants
set forth herein.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the day and year first above written.
"TENANT"
DIMENSIONS FINANCIAL
CONSULTANTS, INC.
By: Xxxxx X. Xxxxxxx /s/
--------------------
Xxxxx X. Xxxxxxx
Title President
---------
"TENANT"
23
DIMENSIONS INVESTMENT
MANAGEMENT, INC.
By: Xxxxxx X. Xxxxxxxxxx /s/
--------------------------
Xxxxxx X. Xxxxxxxxxx
Title Vice President
--------------
"LANDLORD"
VANTAGE POINT PROPERTIES,
INC.
By: Xxxx X. Xxxxxxx /s/
-------------------
Xxxx X. Xxxxxxx
Title: President
---------
24
PERSONAL GUARANTY
The undersigned (herein "Guarantors") hereby personally, unconditionally
and irrevocably guarantee to LANDLORD, its successors and assigns, the full and
complete performance of all of the terms and provisions of the foregoing Lease
to be performed by TENANT including, without limitation, the payment of all rent
and other charges becoming due under the Lease. Guarantors hereby waive
acceptance of this guaranty by LANDLORD, notice of default, and any and all
defenses which would be available to guarantors. Guarantors agree that their
liability hereunder is primary and not secondary, and that LANDLORD may proceed
directly against Guarantors without first proceeding against TENANT or any
collateral which may be given as security for the performance of TENANT's
obligations under the Lease. LANDLORD may, without in any way affecting the
liability of Guarantors hereunder, release any collateral granted as security
for the performance of TENANT's obligations under the Lease, release any party
liable for the performance of TENANT's obligations under the Lease, take
additional collateral or additional guaranties, or amend or modify the terms or
provisions of the Lease. In the event LANDLORD sells, mortgages or otherwise
transfers the property which is subject to the Lease, or assigns LANDLORD's
interest in the Lease to a third party, such grantee, mortgagee or assignee may
enforce the LANDLORD's rights under this guaranty, the same as though such party
had been the original beneficiary hereof. If there is more than one Guarantor
hereto, such Guarantors' liability shall be joint and several.
IN WITNESS WHEREOF, Guarantors have hereunder set their hands hereto on
this 31st day of January, 2003.
"GUARANTORS"
XXxxx X. Xxxxxxx /s/
-------------------
Xxxxx X. Xxxxxxx
Xxxxx Xxxxxxxxx /s/
------------------
Xxxxx Xxxxxxxxx
25
Xxxxxx X. Xxxxxxxxxx /s/
-----------------------
Xxxxxx X. Xxxxxxxxxx
Xxxx Xxxxx /s/
-------------
Xxxx Xxxxx
26
EXHIBIT 'A'
OFFICE PARK SITE PLAN
27
EXHIBIT 'B'
LEGAL DESCRIPTION OF THE LAND
A tract of land in the NW 1/4 of Section 8, Township 27 South, Range 2 East of
the 6th P.M., Sedgwick County, Kansas, described as follows:
Commencing at the NW corner of said NW 1/4; thence along the North line of said
Section 8 bearing N 89 degrees 06'32"E a distance of 878.27 feet; thence bearing
S 0 degrees 53'28"E a distance of 60.00 feet to the POINT OF BEGINNING; thence
bearing N 89 degrees 06'32"E parallel to and 60.00 feet South of the North line
of said Section 8 a distance of 450.00 feet; thence bearing S 0 degrees 53'28"E
a distance of 260.00 feet; thence bearing N 89 degrees 06'32"E a distance of
210.00 feet; thence bearing N 0 degrees 53'28"W a distance of 260.00 feet;
thence bearing N 89 degrees 06'32"E a distance of 752.07 feet; thence bearing S
27 degrees 03'35"W a distance of 554.71 feet; thence bearing S 0 degrees 53'28"
E a distance of 132.66 feet; thence bearing S 26 degrees 12'00"W a distance of
401.38 feet; thence bearing S 89 degrees 06'32"W a distance of 619.38 feet to a
point on a curve to the left having a radius of 395.00 feet and a chord of
346.02 feet bearing N 11 degrees 54'52"W; thence along said curve through a
central angle of 51 degrees 53'28"W a distance of 337.62 feet to the P.C. of a
curve to the right having a radius of 400.00 feet; thence along said curve
through a central angle of 37 degrees 00'00" an arc distance of 258.31 feet;
thence bearing N 0 degrees 53'28"W a distance of 130.00 feet to the point of
beginning.
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EXHIBIT 'C'
LOCATION OF THE LEASED PREMISES IN THE BUILDING
29
EXHIBIT 'D'
RULES AND REGULATIONS
1. Tenant shall maintain all portions of the leased premises and immediately
adjoining areas in a good, clean, orderly, and safe condition. The sidewalks,
driveways, entrances, passages, courts, lobby esplanade areas, plazas,
elevators, vestibules, stairways, corridors or halls shall not be obstructed or
encumbered by any tenant or used for any purpose other than ingress and egress
to and from the demised premises and Tenant shall not permit any of its
employees, agents, or invitees to congregate in any of said areas nor go upon
the roof of the Building. No door mat of any kind whatsoever shall be placed or
left in any public hall or outside any entry door of the demised premises.
2. No awnings or other projections shall be attached to the outside walls of the
Building. No curtains, blinds, shades or screens shall be attached to or hung
in, or used in connection with, any window or door of the demised premises,
without the prior written consent of Landlord. Such curtains, blinds, shades or
screens must be of a quality, type, design, and color, and attached in the
manner, approved by Landlord, and if same are provided by Landlord, shall not be
removed.
3. No sign, insignia, advertisement, object, notice or other lettering shall be
exhibited, inscribed, painted, or affixed by any tenant on any part of the
outside or inside of the demised premises or the Building without prior written
consent of Landlord. In the event of the violation of the foregoing by any
tenant, Landlord, upon twenty-four (24) hours written notice, may remove the
same without any liability, and may charge the expense incurred in such removal
to the tenant or tenants violating this rule. Interior signs and lettering on
doors and directory tablet shall, if and when approved by Landlord, be
inscribed, painted or affixed for each tenant by Landlord at the expense of such
Tenant, (unless furnished by Landlord) and shall be of a size, color and style
acceptable to Landlord.
4. The sashes, sash doors skylights, windows and doors that reflect or admit
light and air into the halls, passageways, or other public places in the
Building shall not be covered or obstructed by any tenant, nor shall any
bottles, parcels, or other articles be placed on the window xxxxx or on the
peripheral air conditioning enclosures.
5. No showcases or other articles shall be put in front of or affixed to any
part of the exterior of the Building, nor placed in the halls, corridors, or
vestibules.
30
6. The water and wash closets and other plumbing fixtures shall not be used for
any purpose other than those for which they were designed or constructed, and no
sweeping, rubbish, rags, acids or other substances shall be thrown or deposited
therein. All damages resulting from any misuse of the fixtures shall be borne by
the Tenant who, or whose servants, employees, agents, visitors or licensees
shall have caused the same. Any cuspidors or containers or receptacles used as
such in the demised premises, or for garbage or similar refuse, shall be
emptied, cared for and cleaned by and at the expense of Tenant.
7. No tenant shall xxxx, paint, drill into, or in any way deface any part of the
demised premises or the Building. No nailing, screwing, boring, cutting or
stringing of wires shall be permitted, except with prior written consent of
Landlord, and as Landlord may direct.
8. No bicycles, vehicles, animals, fish or birds of any kind shall be brought
into or kept in or about the demised premises or the Building.
9. No noise, including, but not limited to, music or the playing of musical
instruments, recordings, radio or television, which in the judgment of Landlord
might disturb other tenants in the Building shall be made or permitted by any
tenant. Nothing shall be done or permitted in the demised premises which would
impair or interfere with the use or enjoyment by any other tenant of any other
space in the Building.
10. No tenant, nor any of tenant's servants, employees, agents, visitors or
licensees, shall at any time bring to keep upon the premises any inflammable,
combustible, or explosive fluid, chemical or substance.
11. Additional locks or bolts of any kind which shall not be approved by
Landlord and operable by the Grand Master Key for the Building shall not be
placed upon any of the doors or windows by any tenant, nor shall any changes be
made in locks or the mechanism thereof which shall make such locks inoperable by
said Grand Master Key. Landlord will furnish two keys for each lock in the
demised premises. Additional keys will be ordered through Landlord and paid for
by Tenant. Tenant shall not permit additional keys to be made. Each tenant
shall, upon the termination of its tenancy, turn over to Landlord all lock
combinations and keys of stores, offices, toilet rooms, left safes and vaults,
either furnished to, or otherwise procured by such tenant, and in the
31
event of the loss of any keys furnished by Landlord, such tenant shall pay to
Landlord the cost thereof.
12. All removals, or the carrying in or out of any safes, freight, furniture,
packages, boxes, crates or any other object or matter of any description must
take place during such hours and in elevators as Landlord or its Agent may
determine from time to time. Safes and other heavy articles shall be placed by
the Tenant in such places only as may be first specified in writing by the
Landlord, and any damage done to the Building by taking a safe, furniture, boxes
or other bulky articles in or out, from overloading the floor or elevators, or
in any other manner, shall be paid for by the Tenant causing it. Landlord
reserves the right to inspect all objects and matter to be brought into the
Building and to exclude from the Building all objects and matter which violate
any of these Rules and Regulations or the Lease of which they form a part.
Landlord may require any person leaving the Building with any package or other
object or matter to submit a pass, listing such package or object or matter,
from the tenant from whose premises the package or object or matter is being
removed, but the establishment and enforcement of such requirement shall not
impose any responsibility on Landlord for the protection of any tenant against
the removal of property from the premises of such tenant. Landlord shall in no
way be liable to any tenant for damages or loss arising from the admission,
exclusion or ejection of any person to or from the premises or the building
under the provisions of this Rule 12 or of Rule 16 hereof.
13. Tenant shall not occupy or permit any portion of the demised premises to be
occupied as an office for a public stenographer or public typist, or for the
possession, storage, manufacture, or sale of liquor, narcotics, dope, tobacco in
any form, or as a xxxxxx, beauty or manicure shop, or as an employment bureau.
Tenant shall not engage or pay any employee on the demised premises, except
those actually working for Tenant on the demised premises or any part thereof,
or permit the demised premises or any part thereof to be used for manufacturing
or for the sale at auction of merchandise, goods or property of any kind.
14. No tenant shall obtain, purchase, or accept for use in the demised premises
ice, drinking water, food, coffee cart, beverage, towel, barbering, boot
blacking, janitorial, cleaning, floor polishing or other similar services from
any persons not authorized by Landlord in writing to furnish such services. Such
services shall be furnished only at such hours, in such places within the
demised premises, and under such regulation as may be fixed by Landlord.
32
15. Landlord shall have the right to prohibit any advertising or identifying
sign by any tenant which, in Landlord's judgment, tends to impair the reputation
of the Building or its desirability as a building for offices, and upon written
notice from Landlord, such tenant shall refrain from or discontinue such
advertising or identifying sign.
16. Landlord reserves the right to exclude from the Building during hours other
than Business Hours (as defined in the foregoing Lease) all persons connected
with or calling upon Tenant who do not present a pass to the Building signed by
Tenant. Tenant shall furnish Landlord with a facsimile of such pass. All persons
entering and/or leaving the Building during hours other than Business Hours may
be required to sign a register. Tenant shall be responsible for all persons for
whom it issues any such pass and shall be liable to Landlord for all acts or
omissions of such persons. Upon the request of the Landlord, the Tenant shall
promptly furnish the Landlord certain information requested to provide a
building security system. This information will include, but not be limited to,
the name and telephone number of an individual designated by Tenant who should
be contacted in the case of an emergency, the name of all individuals to whom
Tenant has given or authorized the holding of Building entrance keys, and the
names of all individuals authorized by Tenant to enter the demised premises at
other than normal working hours.
17. Tenant, before closing and leaving the demised premises at any time, shall
see that all operable windows are closed and all lights turned out. All entrance
doors in the demised premises shall be left locked by Tenant when the demised
premises are not in use. Entrance doors shall not be left open at any time.
18. If the Tenant desires telegraphic or telephonic connections, the Landlord
will direct the electricians as to where and how the wires are to be introduced,
and without such written directions no boring or cutting for wires will be
permitted.
19. The demised premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose.
20. The requirements of tenants will be attended to only upon application at the
office of the Building. Employees of Landlord shall not perform any work or do
anything outside of their regular duties, unless under special instructions from
Landlord.
21. Canvassing, soliciting, and peddling in the Building are prohibited and each
tenant shall cooperate to prevent the same.
33
22. There shall not be used in any space, or in the public halls of the
Building, either by any tenant or by any others, in the moving or delivery or
receipt of safes, freight, furniture, packages, boxes, crates, paper, office
material, or any other matter or thing, or any hand trucks except those equipped
with rubber tires, side guards and such other safeguards as Landlord shall
require.
23. Tenant shall not cause or permit any odors of cooking or other processes or
any unusual or objectionable odors to emanate from the demised premises which
would annoy other tenants or create a public or private nuisance. No cooking
shall be done in the demised premises except as is expressly permitted in the
foregoing Lease.
24. Landlord reserves the right to rescind, alter or waive any rule or
regulation at any time prescribed for the Building when, in its judgment, it
deems it necessary or desirable for the reputation, safety, care or appearance
of the Building, or the preservation of good order therein, or the operation or
maintenance of the Building, or the equipment thereof, or the comfort of tenants
or others in the Building. No rescission, alteration or waiver of any rule or
regulation in favor of one tenant shall operate as a rescission, alteration or
waiver in favor of any other tenant.
34
