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EXHIBIT 10.26
OFFICE LEASE
between
Xxxxxx Xxxx Xxxxxx Corporation
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Tenant
and
MBL Life Assurance Corporation, Landlord
Date: September 29, 1995
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TABLE OF CONTENTS
Article 1 Basic Lease Information Article 20 Entry by Landlord
1.1 Basic Lease Information Article 21 Identification, Waiver, and Release
1.2 Definitions 21.1 Indemnification
1.3 Exhibits 21.2 Waiver and Release
Article 2 Agreement Article 22 Security Deposit
Article 3 Term, Delivery, and Acceptance of Premises Article 23 Quiet Enjoyment
3.1 Delivery of Possession Article 24 Effect of Sale
3.2 Early Entry Article 25 Default
Article 4 Monthly Rent 25.1 Events of Default
Article 5 Operating Expenses 25.2 Landlord's Remedies
5.1 General 25.3 Certain Damages
5.2 Estimated Payments 25.4 Continue Liability After Termination
5.3 Annual Settlement 25.5 Cumulative Remedies
5.4 Final Proration 25.6 Waiver of Redemption
5.5 Other Taxes Article 26 Parking
5.6 Additional Rent Article 27 Miscellaneous
Article 6 Insurance 27.1 No Offer
6.1 Landlord's Insurance 27.2 Joint and Several Liability
6.2 Tenant's Insurance 27.3 No Construction Against Drafting Party
6.3 Forms of Policies 27.4 Time of the Essence
6.4 Waiver of Subrogation 27.5 No Recordation
6.5 Adequacy of Coverage 27.6 No Waiver
Article 7 Use 27.7 Limitation on Recourse
Article 8 Requirements of Law; Fire Insurance 27.8 Estoppel Certificates
8.1 General 27.9 Attorneys' Fees
8.2 Hazardous Materials 27.10 No Merger
8.3 Certain Insurance Risks 27.11 Holding Over
Article 9 Assignment and Subletting 27.12 Notice
9.1 General 27.13 Severability
9.2 Submission of Information 27.14 Written Amendment Required
9.3 Payments to Landlord 27.15 Entire Agreement
9.4 Prohibited Transfers 27.16 Captions
9.5 Landlord's Options 27.17 Notice of Landlord's Default
9.6 Permitted Transfer 27.18 Authority
Article 10 Rules and Regulations 27.19 Brokers
Article 11 Common Areas 27.20 Governing Law
Article 12 Landlord's Services 27.21 Late Payments
12.1 Landlord's Repair and Maintenance 27.22 No Easements for Air or Light
12.2 Landlord's Other Services 27.23 Tax Credits
12.3 Tenant's Costs 27.24 Relocation of the Premises
12.4 Limitation on Liability 27.25 Financial Reports
Article 13 Tenant's Care of the Premises 27.26 Landlord's Fees
Article 14 Alterations 27.27 Binding Effect
14.1 General 27.28 Terms
14.2 Free-Standing Partitions 27.29 Definition of Landlord
14.3 Removal 27.30 Rights Cumulative
Article 15 Mechanics' Liens 27.31 Change of Building Name
Article 16 End of Term 27.32 Force Majeure
Article 17 Eminent Domain 27.33 Third Party Beneficiary
Article 18 Damage and Destruction 27.34 No Joint Venture
Article 19 Subordination 27.35 Remedies
19.1 General 27.36 WAIVER OF JURY TRIAL
19.2 Attornment Addenda and Exhibits
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OFFICE LEASE
THIS OFFICE LEASE ("Lease") is entered into by Landlord and Tenant as described
in the following basic lease information on the date that is set forth for
reference only in the following basic lease information. Landlord and Tenant
agree:
ARTICLE 1 BASIC LEASE INFORMATION
1.1 BASIC LEASE INFORMATION. In addition to the terms that are defined
elsewhere in this Lease, these terms are used in this Lease:
(a) LEASE DATE: September
(b) LANDLORD: MBL Life Assurance Corporation
(c) LANDLORD'S ADDRESS:
c/o Income Property Services
000 Xxxxxxxx, XX
Xxxxx #000
Xxxxxxxxxxx, XX 00000
with a copy at the same time to: MBL Life Assurance Corporation, Real
Estate Investment Division, 000 Xxxxx Xxxxxx, Xxxxxx, XX 00000-0000
(d) TENANT: Xxxxxx Xxxx Xxxxxx Corporation
(e) TENANT'S ADDRESS: The Premises as defined in this Lease with a copy at the
same time to:
0000 Xxxxxx Xxxxx, XX
c/o Xxxx Xxxxxxx, VP-Finance
Xxxxxxxxxxx, XX 00000
(f) BUILDING ADDRESS: 0000 Xxxxxx Xxxxx, XX
Xxxxxxxxxxx, XX 00000
(g) PREMISES: The premises shown on Exhibit A to this Lease, known as the
entire Building
(h) RENTABLE AREA OF THE PREMISES: Approx. 25,050 square feet.
(i) RENTABLE AREA OF THE BUILDING: Approx. 25,050 square feet.
(j) TERM: forty-eight (48) months, beginning on the Commencement Date and
expiring on the Expiration Date.
(k) COMMENCEMENT DATE: November 15, 1995, or as extended pursuant to the
Workletter.
(l) EXPIRATION DATE: November 15, 1999, or as extended pursuant to the
Workletter.
(m) SECURITY DEPOSIT: $ -0-
(n) MONTHLY RENT:
Amount Per Month: Commencement On: Ending On:
----------------- ---------------- ----------
$25,050.00 November 15, 1995 November 14, 1998
$25,571.88 November 15, 1998 November 14, 1999
(o) OPERATING EXPENSE BASE: $_______ per square foot of Rentable Area of the
Building per annum.
(p) TENANT'S SHARE: 100% percent (determined by dividing the Rentable Area of
the Premises by the Rentable Area of the Building, multiplying the
resulting quotient by 100, and rounding the 3rd to equal calendar year
1996 actual expenditures. Landlord will limit escalation of controllable
operating costs to 5% per year. Non-controllable operating costs are
insurance, taxes & utility costs.
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decimal place).
(q)
(r) PARKING CHARGE: $ -0- per parking space per month, subject to adjustments
specified in Article 26.
(s) BROKER: Xxx Xxxxxx
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Xxxxxx-Xxxxxx, Inc. - for Tenant
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Income Property Services - for Landlord
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(t) Tenant shall use its best efforts to control utility expenses.
1.2 DEFINITIONS.
(a) ADDITIONAL RENT: Any amounts that this Lease requires Tenant to pay in
addition to Monthly Rent.
(b) BUILDING: The building located on the Land and of which the Premises are a
part.
(c) LAND: The land on which the Project is located and which is described on
Exhibit B.
(d) PRIME RATE: The rate of interest from time to time announced by The Wall
Street Journal as the "prime rate." If the Wall Street Journal or any
reasonable successor to it ceases to announce the prime rate, the Prime
Rate will be a comparable interest rate designated by Landlord to replace
the Prime Rate.
(e) PROJECT: The development consisting of the Land and all improvements built
on the Land, including without limitation the Building, parking lot,
parking structure, if any, walkways, driveways, fences, and landscaping.
(f) RENT: The Monthly Rent and Additional Rent.
(g) WORKLETTER: The workletter attached to this Lease as Exhibit C (if any).
If any other provision of this Lease contradicts any definition of this Article
1, the other provision will prevail.
1.3 EXHIBITS. The following exhibits and addenda are attached to this Lease
and are made part of this Lease:
EXHIBIT A -- The Premises
EXHIBIT B -- Legal Description of the Land
EXHIBIT C -- Workletter
EXHIBIT D -- Rules and Regulations
EXHIBIT E -- Commencement Date and Estoppel Certificate
EXHIBIT H -- Option to Extend
EXHIBIT J -- Satellite Dish
ADDENDUM:
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In consideration for the Rent and other covenants and agreements made by
Tenant, Landlord leases the Premises to Tenant, and Tenant leases the Premises
from Landlord, according to this Lease. The duration of this Lease will be the
Term. The Term will commence on the Commencement Date and will expire on the
Expiration Date unless terminated earlier pursuant to the terms of this Lease.
ARTICLE 3 TERM, DELIVERY, AND ACCEPTANCE OF PREMISES
3.1 DELIVERY OF POSSESSION. Landlord will be deemed to have delivered
possession of the Premises to Tenant on the Commencement Date, as it may be
adjusted pursuant to the Workletter. Landlord will construct or install in
the Premises the Improvements as defined in the Workletter to be
constructed or installed by Landlord according to the Workletter. If no
Workletter is attached to this Lease, it will be deemed that Landlord
delivered to Tenant possession of the Premises AS IS in its present
condition on the Commencement Date. Tenant acknowledges that neither
Landlord nor its agents or employees have made any representations or
warranties as to the suitability or fitness of the Premises for the conduct
of Tenant's business or for any other purpose, nor has Landlord or its
agents or employees agreed to undertake any alterations or construct any
Tenant Improvements to the Premises except as expressly provided in this
Lease and the Workletter.* Tenant will execute and deliver to Landlord the
Commencement Date and Estoppel Certificate attached to this Lease as
Exhibit E within 3 days of Landlord's request.
3.2 EARLY ENTRY. Tenant shall be permitted entry to the Premises prior to the
Commencement Date for the purpose of installing fixtures or any other
purpose permitted by Landlord. The early entry will be at Tenant's sole
risk and subject to all the terms and provisions of this Lease as though
the Commencement Date had occurred, except for the payment of Rent, which
will commence on the Commencement Date. Tenant, its agents, or employees
will not interfere with or delay Landlord's completion of construction of
the improvements. Tenant hereby agrees to indemnify Landlord against any
injury, and loss or damage which may occur to any person or to any of the
Tenant's work or installations made in such Premises, Building or Project,
or to any personal property placed therein, the same being at Tenant's sole
risk, and, prior to any early entry by Tenant, provide Landlord with proof
of insurance coverages described in this Lease. Landlord has the right to
impose additional conditions on Tenant's early entry that Landlord, in its
reasonable discretion, deems appropriate and Landlord will further have the
right to require that Tenant execute an early entry agreement containing
those conditions prior to Tenant's early entry.
ARTICLE 4 MONTHLY RENT
Throughout the Term of this Lease, Tenant will pay Monthly Rent to Landlord as
rent for the Premises. Monthly Rent will be paid in advance on or before the
first day of each calendar month of the Term. If the Term commences on a day
other than the first day of a calendar month or ends on a day other than the
last day of a calendar month, then Monthly Rent will be appropriately prorated
by Landlord based on the actual number of calendar days in such month. If the
Term commences on a day other than the first day of a calendar month, then the
prorated Monthly Rent for such month will be paid on or before the first day of
the Term. Monthly Rent will be paid to Landlord, without written notice or
demand, and without deduction or offset, in lawful money of the United States
of America at Landlord's address, or to such other address as Landlord may from
time to time designate in writing.
ARTICLE 5 OPERATING EXPENSES
5.1 GENERAL.
(a) In addition to Monthly Rent, beginning on the Commencement Date Tenant will
pay Tenant's Share of the amount by which the operating expenses paid,
payable, or incurred by Landlord in each calendar year or partial calendar
year during the Term exceeds the product of the Operating Expense Base
times the Rentable Area of the Building. If operating expenses are
calculated for a partial calendar year, the Operating Expense Base will be
appropriately prorated.
(b) As used in this Lease, the term "operating expenses" means:
(1) All costs of ownership, management, operation, repair and maintenance
of the Project, including without limitation real and personal
property taxes and assessments (and any tax levied in whole or in part
in lieu of or in addition to real property taxes); wages, salaries,
compensation and benefits of employees; consulting, accounting, legal,
tax appeal, engineering and other professional fees and expenses;
janitorial, maintenance, guard, and other services; management fees
and costs (charged by Landlord, any affiliate of Landlord, or any
other entity managing the Project and determined at a rate consistent
with prevailing market rates for comparable services and projects);
reasonable reserves for operating expenses; that part of office rent
or rental value of space in the Project used or furnished by Landlord
to enhance, manage,
* If for any reason except for Force Majeure as provided in Section 27.32 or
Tenant's actions or inactions, Landlord cannot deliver possession of the
Premises to Tenant within 60 days after November 15, 1995, Tenant may cancel
this Lease and Landlord will not be liable to Tenant for any resultant loss or
damage.
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operate, and maintain the Project; power, water, waste disposal, and
other utilities; snow, ice, and debris removal; electrical costs;
materials and supplies; maintenance and repairs including elevator
maintenance and repairs; service and maintenance contracts; insurance
obtained with respect to the Project; depreciation on personal
property and equipment, except as set forth in (c) below or which is
or should be capitalized on the books of Landlord; and any other
costs, charges, and expenses that under generally accepted accounting
principles would be regarded as management, maintenance, and operating
expenses; and
(2) The cost (amortized over such period as Landlord will reasonably
determine) together with interest at the greater of the Prime Rate
prevailing plus 2% or Landlord's borrowing rate for such capital
improvements plus 2% on the unamortized balance of the cost of any
capital improvements and the installation thereof that are made to the
Project by Landlord (i) for the purpose of safety, saving energy or
reducing operating expenses, or (ii) by requirement of any
governmental law or regulation that was not applicable to the Project
at the time it was constructed and not as a result of special
requirements for any tenant's use of the Building.
(c) The operating expenses will not include:
(1) depreciation on the Project (other than depreciation on personal
property, equipment, window coverings on exterior windows provided by
Landlord and carpeting in public corridors and common areas);
(2) costs of alterations of space or other improvements made for tenants
of the Project;
(3) finders' fees and real estate brokers' commissions;
(4) mortgage principal, or interest;
(5) capital items other than those referred to in clause (b)(2) above;
(6) costs of replacements to personal property and equipment for which
depreciation costs are included as an operating expense;
(7) costs of excess or additional services provided to any tenant in the
Building that are directly billed to such tenants;
(8) the cost of repairs due to casualty or condemnation that are
reimbursed by third parties;
(9) any cost due to Landlord's breach of this Lease;
(10) any income, estate, inheritance, or other transfer tax and any excess
profit, franchise, or similar taxes on Landlord's business;
(11) all costs, including legal fees, relating to activities for the
solicitation and execution of leases of space in the Building; and
(12) any legal fees incurred by Landlord in enforcing its rights under
other leases for premises in the Building.
(d) The operating expenses that vary with occupancy and that are
attributable to any part of the Term in which less than 95% of the
Rentable Area of the Building is occupied by tenants will be adjusted by
Landlord to the amount that Landlord reasonably believes they would have
been if 95% of the Rentable Area of the Building had been so occupied.
5.2 ESTIMATED PAYMENTS. At Landlord's request, during each calendar year or
partial calendar year in the Term, in addition to Monthly Rent, Tenant
will pay to Landlord on the first day of each month an amount equal to
1/12 of the product of Tenant's Share multiplied by the "estimated
operating expenses" (defined below) for such calendar year. "Estimated
operating expenses" for any calendar year means Landlord's reasonable
estimate of operating expenses for such calendar year, less the product
of the Operating Expense Base, multiplied by the Rentable Area of the
Building and will be subject to revision according to the further
provisions of this Section 5.2 and Section 5.3. During any partial
calendar year during the Term, estimated operating expenses will be
estimated on a full-year basis. During each December during the Term, or
as soon after each December as practicable, Landlord will give Tenant
written notice of estimated operating expenses for the ensuing calendar
year. On or before the first day of each month during the ensuing
calendar year (or each month of the Term, if a partial calendar year),
Tenant will pay to Landlord 1/12 of the product of Tenant's Share
multiplied by the estimated operating expenses for such calendar year;
however, if such
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written notice is not given in December, Tenant will continue to make
monthly payments on the basis of the prior year's estimated operating
expenses until the month after such written notice is given, at which time
Tenant will commence making monthly payments based upon the revised
estimated operating expenses. In the month Tenant first makes a payment
based upon the revised estimated operating expenses, Tenant will pay to
Landlord for each month which has elapsed since December the difference
between the amount payable based upon the revised estimated operating
expenses and the amount payable based upon the prior year's estimated
operating expenses. If at any time or times it reasonably appears to
Landlord that the actual operating expenses for any calendar year will vary
from the estimated operating expenses for such calendar year, Landlord may,
by written notice to Tenant, revise the estimated operating expenses for
such calendar year, and subsequent payments by Tenant in such calendar year
will be based upon such revised estimated operating expenses.
5.3 ANNUAL SETTLEMENT. Within 120 days after the end of each calendar year or
as soon after such 120-day period as practicable, Landlord will deliver to
Tenant a statement of amounts payable under Section 5.1 for such calendar
year prepared and certified by Landlord. Such certified statement will be
final and binding upon Landlord and Tenant unless Tenant objects to it in
writing to Landlord within 30 days after it is given to Tenant. If such
statement shows an amount owing by Tenant that is less than the estimated
payments, if any, previously made by Tenant for such calendar year, the
excess will be held by Landlord and credited against the next payment of
Rent; however, if the Term has ended and Tenant was not in default at its
end, Landlord will refund the excess to Tenant. If such statement shows an
amount owing by Tenant that is more than the estimated payments, if any,
previously made by Tenant for such calendar year, Tenant will pay the
deficiency without deduction or setoff to Landlord within 30 days after
the delivery of such statement.
Tenant shall have the right at its own expense and at a reasonable time
(after written notice to Landlord) within 30 days after receipt of the
statement to review Landlord's record of operating expenses relevant to
this Article. In the event Tenant does not review Landlord's records and
deliver the results thereof to Landlord within said 30 day period, the
terms and amounts set forth in the statement shall be deemed conclusive
and final and Tenant shall have no further right to adjustment. In the
event Tenant's examination reveals an error has been made, and Landlord
disagrees with the results thereof, Landlord shall have 30 days to obtain
an audit from an accountant of its choice. In the event Landlord's
accountant and Tenant's accountant are unable to reconcile their results,
both accountants shall mutually agree on a third accountant, whose
determination shall be conclusive.
5.4 FINAL PRORATION. If this Lease ends on a day other than the last day of a
calendar year, the amount of increase (if any) in the operating expenses
payable by Tenant applicable to the calendar year in which this Lease ends
will be calculated on the basis of the number of days of the Term falling
within such calendar year, and Tenant's obligation to pay any increase or
Landlord's obligation to refund any overage will survive the expiration or
other termination of this Lease.
5.5 OTHER TAXES.
(a) Tenant will reimburse Landlord upon demand for any and all taxes payable
by Landlord (other than as set forth in sub-paragraph (b) below), whether
or not now customary or within the contemplation of Landlord and Tenant:
(1) upon or measured by rent, including without limitation, any gross
revenue tax, sales tax, use tax, excise tax, or value added tax levied
by the federal government or any other governmental body with respect
to the receipt of rent; and
(2) upon this transaction or any document to which Tenant is a party
creating or transferring an interest or an estate in the Premises.
(b) Tenant will not be obligated to pay any inheritance tax, gift tax,
transfer tax, franchise tax, income tax (based on net income), profit tax,
or capital levy imposed upon Landlord.
(c) Tenant will pay promptly when due all personal property taxes on Tenant's
personal property in the Premises and any other taxes payable by Tenant
that if not paid might give rise to a lien on the Premises or Tenant's
interest in the Premises.
5.6 ADDITIONAL RENT. Amounts payable by Tenant according to this Article 5
will be payable as Rent, without deduction or offset. If Tenant fails to
pay any amounts due according to this Article 5, Landlord will have all
the rights and remedies available to it on account of Tenant's failure to
pay Rent.
ARTICLE 6 INSURANCE
6.1 LANDLORD'S INSURANCE. At all times during the Term, Landlord will carry and
maintain:
(a) Fire and extended coverage insurance covering the Project, its equipment,
common area furnishings, and
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leasehold improvements in the Premises to the extent of the Tenant Finish
Allowance (as that term is defined in the Workletter);
(b) Bodily injury and property damage liability insurance; and
(c) Such other insurance as Landlord reasonably determines from time to time.
The insurance coverages and amounts in this Section 6.1 will be reasonably
determined by Landlord.
6.2 TENANT'S INSURANCE. At all times during the Term, Tenant will carry and
maintain, at Tenant's expense, the following insurance, in the amounts
specified below or such other amounts as Landlord may from time to time
reasonably request, with insurance companies and on forms satisfactory to
Landlord;
(a) Bodily injury and property damage liability insurance, with a combined
single occurrence limit of not less than $3,000,000 per occurrence. All
such insurance will be equivalent to coverage offered by a commercial
comprehensive general liability form, including without limitation
personal injury, products and completed operations, broad form property
damage, and contractual liability coverage for the performance by Tenant of
the indemnity agreements set forth in Article 21 of this Lease;
(b) Insurance covering all of Tenant's furniture and fixtures, machinery,
equipment, stock, and any other personal property owned and used in
Tenant's business and found in, on, or about the Project, and any
leasehold improvements to the Premises in excess of the Tenant Finish
Allowance, if any, provided pursuant to the Workletter in an amount not
less than the full replacement cost. Property forms will provide coverage
on a broad form basis insuring against "all risks of direct physical
loss." All policy proceeds will be used for the repair or replacement of
the property damaged or destroyed; however, if this Lease ceases under the
provisions of Article 18, Tenant will be entitled to any proceeds
resulting from damage to Tenant's furniture and fixtures, machinery,
equipment, stock, and any other personal property;
(c) Worker's compensation insurance insuring against and satisfying Tenant's
obligations and liabilities under the worker's compensation laws of the
state in which the Premises are located, including employer's liability
insurance in the limits required by the laws of the state in which the
Project is located; and
(d) Owned, hired, or nonowned comprehensive automobile liability at a limit of
liability not less than $3,000,000 combined bodily injury and property
damage per occurrence.
If Tenant fails to obtain or maintain any insurance required hereunder,
Landlord shall have the option, without assuming any obligation in connection
therewith, to effect such insurance at the sole cost of the Tenant and all
outlays by Landlord shall be reimbursed by Tenant to landlord as Additional
Rent.
6.3 FORMS OF POLICIES. Certificates of insurance, together with copies of the
endorsements, when applicable, naming Landlord and any others specified by
Landlord as additional insureds, will be delivered to Landlord prior to
Tenant's occupancy of the Premises and from time to time at least 10 days
prior to the expiration of the term of each such policy. All commercial
general liability or comparable policies maintained by Tenant will name
Landlord and such other persons or firms as Landlord specifies from time
to time as additional insureds, entitling them to recover under such
policies for any loss sustained by them, their agents, and employees,
including those losses sustained as a result of the negligent acts or
omissions of Tenant. All such policies maintained by Tenant will provide
that they may not be terminated nor may coverage be reduced except after
30 days' prior written notice to Landlord. All commercial general
liability, automobile, and property policies maintained by Tenant will be
written as primary policies, not contributing with and not supplemental to
the coverage that Landlord may carry.
6.4 WAIVER OF SUBROGATION. Landlord and Tenant each waive any and all rights
to recover against the other or against any other Tenant or occupant of
the Project, or against the officers, directors, shareholders, partners,
joint venturers, employees, agents, customers, invitees, or business
visitors of such other party or of such other Tenant or occupant of the
Project, for any loss or damage to such waiving party arising from any
cause covered by any property insurance required to be carried by such
party pursuant to this Article 6 or any other property insurance actually
carried by such party to the extent of the limits of such policy. Landlord
and Tenant from time to time will cause their respective insurers to
issue appropriate waiver of subrogation rights endorsements to all
property insurance policies carried in connection with the Project or the
Premises or the contents of the Project or the Premises. Tenant agrees to
cause all other occupants of the Premises claiming by, under, or through
Tenant to execute and deliver to Landlord such a waiver of claims and to
obtain such waiver of subrogation rights endorsements.
6.5 ADEQUACY OF COVERAGE. Landlord, its agents and employees make no
representation that the limits of liability specified to be carried by
Tenant pursuant to this Article 6 are adequate to protect Tenant. If
Tenant believes that any of such insurance coverage is inadequate, Tenant
shall obtain such additional insurance coverage as Tenant deems adequate,
at Tenant's sole expense.
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Tenant covenants that the Premises will be used only for general business office
purposes and purposes incidental to that use, and for no other purpose. Tenant
will use the Premises in a careful, safe, and proper manner. Tenant will not use
or permit the Premises to be used or occupied for any purpose or in any manner
prohibited by any applicable laws. Tenant will not commit waste or suffer or
permit waste to be committed in, on, or about the Premises. Tenant will conduct
its business and control its employees, agents, and invitees in such a manner as
not to create any nuisance or interfere with, annoy, or disturb any other Tenant
or occupant of the Project or Landlord in its operation of the Project. Tenant
agrees to take possession of and occupy the entire Premises no later than 60
days after the Commencement Date, and Tenant further agrees to continue to
occupy the Premises throughout the remainder of the Term of this Lease until 90
days prior to the Expiration Date.
ARTICLE 8 REQUIREMENTS OF LAW; FIRE INSURANCE
8.1 GENERAL. At its sole cost and expense, Tenant will promptly comply with all
laws, statutes, ordinances, codes, and governmental rules, regulations, or
requirements of federal, state, county, and local governmental authorities
now in force or in force at any given time after the Lease Date, with the
requirements of any board of fire underwriters or other similar body
constituted now or after the Lease Date, with any direction or occupancy
certificate issued pursuant to any law by any public officer or officers,
as well as with the provisions of all recorded documents affecting the
Premises, insofar as they relate to the use or occupancy of the Premises,
excluding requirements of structural changes to the Building, unless
required by the unique nature of Tenant's use or occupancy of the Premises.
8.2 HAZARDOUS MATERIALS.
(a) For purposes of this Lease, "hazardous materials" means any explosives,
radioactive materials, hazardous wastes, or hazardous substances, including
without limitation asbestos containing materials, PCB's, CFC's, or
substances defined as "hazardous substances" in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended,
42 U.S.C. Sections 9601-9657; the Hazardous Materials Transportation Act of
1975, 49 U.S.C. Sections 1801-1812; the Resource Conservation and Recovery
Act of 1976, 42 U.S.C. Sections 6901-6987; or any other federal, state, or
local statute, law, ordinance, code, rule, regulation, order, or decree
regulating, relating to, or imposing liability or standards of conduct
concerning hazardous materials, waste, or substances now or at any time
hereafter in effect (collectively, "hazardous materials laws").
(b) Tenant will not cause or permit the storage, use, generation, release, or
disposition of any hazardous materials in, on, or about the Premises or the
Project by Tenant, its agents, employees, or contractors. Tenant will not
permit the Premises to be used or operated in a manner that may cause the
Premises or the Project to be contaminated by any hazardous materials in
violation of any hazardous materials laws. Tenant will immediately advise
Landlord in writing of (1) any and all enforcement, cleanup, remedial,
removal, or other governmental or regulatory actions instituted, completed,
or threatened pursuant to any hazardous materials laws relating to any
hazardous materials affecting the Premises; and (2) all claims made or
threatened by any third party against Tenant, Landlord, the Premises or the
Project relating to damage, contribution, cost recovery, compensation,
loss, or injury resulting from any hazardous materials on or about the
Premises. Without Landlord's prior written consent, Tenant will not take
any remedial action or enter into any agreements or settlements in response
to the presence of any hazardous materials in, on, or about the Premises.
(c) Tenant will be solely responsible for and will defend, indemnify and hold
Landlord, its agents, and employees harmless from and against all claims,
costs, expenses, damages, and liabilities, including attorneys' fees and
costs, arising out of or in connection with Tenant's breach of its
obligations in this Article 8. Tenant will be solely responsible for and
will defend, indemnify, and hold Landlord, its agents, and employees
harmless from and against any and all claims, costs, and liabilities,
including attorneys' fees and costs, arising out of or in connection with
the removal, cleanup, and restoration work and materials necessary to
return the Premises and any other property of whatever nature located on
the Project to their condition existing prior to the appearance of Tenant's
hazardous materials on the Premises. Tenant's obligations under this
Article 8 will survive the expiration or other termination of this Lease.
(d) Landlord will not cause the unlawful storage, use, generation, release or
disposition of any hazardous materials in, on, or about the Project by
Landlord, its agents, employees or contractors. Landlord will be solely
responsible for and will defend, indemnify and hold Tenant, its agents, and
employees from and against all claims, costs, expenses, damages, and
liabilities, including attorneys' fees and costs, arising out of or in
connection with Landlord's breach of its obligations in this Section
8.2(d). Landlord's obligations under this Page 7 Article 8 will survive the
expiration or other termination of this Lease.
8.3 CERTAIN INSURANCE RISKS. Tenant will not do or permit to be done any act or
thing upon the Premises or the Project which would (a) jeopardize or be in
conflict with fire insurance policies covering the Project and fixtures and
property in the Project; (b) increase the rate of fire insurance applicable
to the Project to an amount higher than it otherwise would be for general
office use of the Project; or (c) subject Landlord to any liability or
responsibility for injury to any person or persons or to property by reason
of any business or operation being carried on upon the Premises. If the
conduct of the Tenant, or any acts or omissions of the Tenant shall cause
or result in any increase in premiums for insurance carried by the
Landlord, whether or not Landlord allows such act or omission to continue,
Tenant shall pay any increase in premium as Additional Rent.
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ARTICLE 9 ASSIGNMENT AND SUBLETTING
9.1 GENERAL. Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors, and assigns, covenants
and agrees that it will not assign, mortgage, or encumber this Lease, or
sublease, nor or otherwise permit the Premises or any part of the Premises
to be used or occupied by others, without the prior written consent of
Landlord in each instance, which consent will not be unreasonably
withheld. Landlord may condition its consent upon execution by the
subtenant or assignee, as the case may be, of an instrument confirming
the restrictions on further subleasing or assignment contained herein and
joining in the waivers and indemnities made by Tenant hereunder. Any
assignment or sublease in violation of this Article 9 will be void. If
this Lease is assigned, or if the Premises or any part of the Premises are
subleased or occupied by anyone other than Tenant, Landlord may, after any
default by Tenant, collect rent from the assignee, subtenant, or occupant,
and apply the net amount collected to Rent. No assignment, sublease,
occupancy, or collection will be deemed (a) a waiver of the provisions of
this Section 9.1; (b) the acceptance of the assignee, subtenant, or
occupant as Tenant; or (c) a release of Tenant from the further
performance by Tenant of covenants on the part of Tenant contained in this
Lease. The consent by Landlord to an assignment or sublease will not be
construed to relieve Tenant from obtaining Landlord's prior written
consent in writing to any further assignment or sublease. No permitted
subtenant may assign or encumber its sublease or further sublease all or
any portion of its subleased space, or otherwise permit the subleased
space or any part of its subleased space to be used or occupied by others,
without Landlord's prior written consent in each instance. Any assignee
approved by Landlord must assume all of the obligations and duties of
Tenant under this Lease pursuant to an assumption agreement satisfactory
to Landlord of which Landlord is the beneficiary.
9.2 SUBMISSION OF INFORMATION. If Tenant requests Landlord's consent to a
specific assignment or subletting, Tenant will submit in writing to
Landlord (a) the name and address of the proposed assignee or subtenant;
(b) the business terms of the proposed assignment or sublease; (c)
reasonably satisfactory information as to the nature and character of the
business of the proposed assignee or subtenant, and as to the nature of
its proposed use of the space; (d) banking, financial, or other credit
information reasonably sufficient to enable Landlord to determine the
financial responsibility and character of the proposed assignee or
subtenant; (e) the proposed form of assignment (including lease assumption
provisions) or sublease for Landlord's reasonable approval; and (f) any
other information reasonably required by Landlord.
9.3 PAYMENTS TO LANDLORD. If Landlord consents to a proposed assignment or
sublease, then Landlord will have the right to require Tenant to pay to
Landlord a sum equal to (a) any rent or other consideration paid to Tenant
by any proposed transferee that (after deducting the costs of Tenant, if
any, in effecting the assignment or sublease, including reasonable
alterations costs, commissions and legal fees) is in excess of the Rent
allocable to the transferred space then being paid by Tenant to Landlord
pursuant to this Lease; and (b) any other profit or gain (after deducting
any necessary expenses incurred) realized by Tenant from any such sublease
or assignment. All such sums owed to Landlord under 9.3(c), above will be
payable to Landlord at the time the next payment of Monthly Rent is due.
9.4 PROHIBITED TRANSFERS. The transfer of a majority of the issued and
outstanding capital stock of any corporate Tenant or subtenant of this
Lease, or a majority of the total interest in any partnership Tenant or
subtenant, however accomplished, and whether in a single transaction or in
a series of related or unrelated transactions, will be deemed an
assignment of this lease or of such sublease requiring Landlord's consent
in each instance. For purposes of this Article 9, the transfer of
outstanding capital stock of any corporate Tenant will not include any
sale of such stock by persons other than those deemed "insiders" within
the meaning of the Securities Exchange Act of 1934, as amended, effected
through the "over-the-counter market" or through any recognized stock
exchange.
9.5 LANDLORD'S OPTIONS. In the event of a transfer of this Lease or of all or
any part of the Premises by Tenant, Landlord in addition to any rights
contained herein, shall have the following options at its discretion:
(a) to give Tenant written notice of Landlord's intention to terminate
this Lease as to all or any portion of the Premises subject to such
transfer on the date such notice is given or on any later date
specified therein, whereupon, on the date specified in such notice and
all obligations of Tenant hereunder, Tenant's right to possession of
the Premises or such portion of the Premises shall cease and this
Lease shall thereupon be terminated as they relate to all of any
portion of the Premises, except as to any incompleted obligations to
date of tenant; or
(b) to re-enter and take possession of the Premises or the part thereof
subject to such transfer, and to enforce all rights of Tenant, in
accordance with such sublet or assignment of the Premises, or any part
thereof, as if Landlord was the sublessor or assignor, and to do
whatever Tenant is permitted to do pursuant to the terms of such
sublease or assignment. In such event Tenant's obligations hereunder
shall terminate regarding all or such part of the Premises.
9.6 PERMITTED TRANSFER. Landlord consents to an assignment of this Lease or
sublease of all or part of the Premises to a wholly-owned subsidiary of
Tenant or the parent of Tenant or to any corporation into or with which
Tenant may be merged or consolidated; provided that (a) Tenant promptly
provides Landlord with a fully executed copy of such assignment or
sublease; (b) Tenant is not released from liability under this Lease
* Lessor's consent to subsequent subletting & assignments of a sublease or
any amendments or modifications thereto without Tenant's consent, which
shall not be unreasonably withheld, shall relieve Tenant from this lease
or such sublease.
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and (c) the assignee assumes in writing all of the obligations of Tenant under
this Lease.
ARTICLE 10 RULES AND REGULATIONS
Tenant and its employees, agents, licensees, and visitors will at all times
observe faithfully, and comply strictly with, the rules and regulations set
forth in Exhibit D. Landlord may from time to time reasonably amend, delete, or
modify existing rules and regulations, or adopt reasonable new rules and
regulations for the use, safety, cleanliness, and care of the Premises, the
Building, and the Project, and the comfort, quiet, and convenience of occupants
of the Project. Modifications or additions to the rules and regulations will be
effective upon 30 days' prior written notice to Tenant from Landlord. In
the event of any breach of any rules or regulations or any amendments or
additions to such rules and regulations, Landlord will have all remedies that
this Lease provides for default by Tenant, and will in addition have any
remedies available at law or in equity, including the right to enjoin any
breach of such rules and regulations. Landlord will not be liable to Tenant for
violation of such rules and regulations by any other tenant, its employees,
agents, visitors, or licensees or any other person. In the event of any conflict
between the provisions of this Lease and the rules and regulations, the
provisions of this Lease will govern.
ARTICLE 11 COMMON AREAS
As used in this Lease, the term "common areas" means, without limitation, the
entryways, stairs, driveways, roadways, parking areas, walkways, terraces,
docks, loading areas, restrooms, trash facilities, and all other areas and
facilities in the Project that are provided and designated from time to time by
Landlord for the general nonexclusive use and convenience of Tenant with
Landlord and other tenants of the Project and their respective employees,
invitees, licensees, or other visitors. Landlord grants Tenant, its employees,
invitees, licensees, and other visitors a nonexclusive license for the Term to
use the common areas in common with others entitled to use the common areas,
subject to the terms and conditions of this Lease. Without advance written
notice to Tenant, except with respect to matters covered by subsection (a)
below, and without any liability to Tenant in any respect, Landlord will have
the right to:
(a) Close off any of the common areas to whatever extent required in the
opinion of Landlord and its counsel to prevent a dedication of any of the
common areas or the accrual of any rights by any person or the public to
the common areas:
(b) Temporarily close any of the common areas for maintenance, alteration, or
improvement purposes; and
(c) Change the size, use, shape, or nature of any such common areas, including
erecting additional buildings on the common areas, expanding the existing
Building or other buildings to cover a portion of the common areas,
converting common areas to a portion of the Building (excluding the
Premises) or other buildings to common areas. Upon erection of any
additional buildings or change in common areas, the portion of the Project
upon which buildings or other structures have been erected will no longer
be deemed to be a part of the common areas. In the event of any such
changes in the size or use of the Building or common areas of the Building
or Project, Landlord will make an appropriate adjustment in the Rentable
Area of the Building or the Building's pro rata share of exterior common
areas of the Project, as appropriate, and a corresponding adjustment to
Tenant's Share of the operating expenses payable pursuant to Article 5 of
this Lease.
ARTICLE 12 LANDLORD'S SERVICES
12.1 Landlord's Repair and Maintenance. Subject to the condemnation and
casualty provisions contained in this Lease and except as otherwise
expressly provided herein, Landlord will maintain and repair the Premises
and common areas of the Project, including but not limited to lobbies,
stairs, corridors, and restrooms, the windows in the Building, the
mechanical, plumbing and electrical equipment serving the Building, and
the structure of the Building in reasonably good order and condition.
12.2 Landlord's Other Services
(a) Landlord will use a professional property manager, as selected by
Landlord, to manage the Premises and will furnish the Premises with
services, including without limitation (1) electricity for lighting and
the operation of low-wattage office machines (such as desktop
micro-computers, desktop calculators, and typewriters) during Business
Hours, although Landlord will not be obligated to furnish more power to
the Premises than is proportionally allocated to the Premises under the
Building design; (2) heat and air conditioning reasonably required for the
comfortable occupation of the Premises during Business Hours; (3) access
and elevator service; (4) lighting replacement during Business Hours (for
standard lights, but not for any special Tenant lights, which will be
replaced at Tenant's sole cost and expense); (5) restroom supplies; (6)
window washing with reasonable frequency, as determined by Landlord; and
(7) daily cleaning service on weekdays. Landlord will provide any such
services (except items 4-7) on holidays and weekends.
12
(b) Tenant will have the right to purchase for use during Business Hours and
non-Business Hours the service described in clauses (a)(1)and (2) in
excess of the amounts Landlord has agreed to furnish so long as Tenant
gives Landlord reasonable prior written notice of its desire to do so;
(2) the excess services are reasonably available to Landlord and to the
Premises; and (3) Tenant pays as Additional Rent (at the time the next
payment of Monthly Rent is due) the cost of such excess service from
time to time charged by Landlord; subject to the procedures established
by Landlord from time to time for providing such additional or excess
services.
12.3 TENANT'S COSTS. Whenever equipment or lighting (other than building
standard lights) is used in the Premises by Tenant and such equipment or
lighting affects the temperature otherwise normally maintained by the
design of the Building's air conditioning system. Landlord will have the
right, after prior written notice to Tenant, to install supplementary air
conditioning facilities in the Premises or otherwise modify the
ventilating and air conditioning system serving the Premises; and the
cost of such facilities, modifications, and additional service will be
paid by Tenant as Additional Rent. If Landlord reasonably believes that
Tenant is using more power than Landlord furnishes pursuant to Section
12.2, Landlord may install separate meters of Tenant's power usage, and
Tenant will pay for the cost of excess power as Additional Rent, together
with the cost of installing any risers, meters, or other facilities that
may be necessary to furnish or measure such excess power to the Premises.
Tenant's computer space will be submetered for electrical consumption.
Submetering installation costs will be debited against Tenant's
allowance. Tenant shall pay for excess power in this area as additional
rent.
12.4 LIMITATION ON LIABILITY. Landlord will not be in default under this Lease
or be liable to Tenant or any other person for direct or consequential
damage, or otherwise, for any failure to supply any heat, air
conditioning, elevator, cleaning, lighting, or security; for surges or
interruptions of electricity; or for interruptions to other services
Landlord has agreed to supply. Landlord will use reasonable efforts to
diligently remedy any interruption in the furnishing of such services.
Landlord reserves the right temporarily to discontinue such services at
such times as may be necessary by reason of accident; repairs,
alterations or improvements; strikes; lockouts; riots; acts of God;
governmental preemption in connection with a national or local emergency;
any rule, order, or regulation of any governmental agency; conditions of
supply and demand that make any product unavailable; Landlord's
compliance with any mandatory governmental energy conservation or
environmental protection program, or any voluntary energy conservation
program at the request of or with consent or acquiescence of Tenant; or
any other happening beyond the control of Landlord. Landlord will not be
liable to Tenant or any other person or entity for direct or
consequential damages resulting from the admission to or exclusion from
the Building or Project of any person. In the event of invasion, mob,
riot, public excitement, strikes, lockouts, or other circumstances
rendering such action advisable in Landlord's sole opinion, Landlord will
have the right to prevent access to the Building or Project during the
continuance of the same by such means as Landlord, in its sole
discretion, may deem appropriate, including without limitation locking
doors and closing parking areas and other common areas. Landlord will not
be liable for damages to person or property or for injury to, or
interruption of, business for any discontinuance permitted under this
Article 12, nor will such discontinuance in any way be construed as an
eviction of Tenant or cause an abatement of Rent or operate to release
Tenant from any of Tenant's obligations under this Lease.
ARTICLE 13 TENANT'S CARE OF THE PREMISES
Tenant will not act or fail to act in a manner causing damage to the Premises
(including Tenant's equipment, personal property, and trade fixtures located in
the Premises) in their condition at the time they were delivered to Tenant,
reasonable wear and tear excluded. Tenant will immediately advise Landlord of
any damage to the Premises or the Project. All damage or injury to the Premises,
the Project, or the fixtures and appurtenances and equipment in the Premises or
the Project that is caused by Tenant, its agents, employees, or invitees and not
covered by insurance may be repaired, restored, or replaced by Landlord at the
expense of Tenant. Such expense (plus 5% of such expense for Landlord's
overhead) will be collectible as Additional Rent and will be paid by Tenant
within 10 days after delivery of a statement for such expense.
ARTICLE 14 ALTERATIONS
14.1 GENERAL.
(a) Tenant will not make or allow to be made any alterations,
additions, or improvements to or of the Premises or any part of
the Premises, or attach any fixtures or equipment to the
Premises, without first obtaining Landlord's written consent. In
no event shall the work of Tenant affect or impair the structure,
the elevators, or utility systems of the Building. Landlord's
approval of the plans, specifications, and working drawings for
Tenant's alterations shall create no responsibility or liability
on the part of the Landlord for their completeness, design
sufficiency, or compliance with all laws, ordinances, rules,
requirements, and regulations of governmental agencies or
authorities, or the use and occupancy permit for the Building. All
such alterations, additions, and improvements consented to by
Landlord, and capital improvements that are required to be made to
the Project as a result of the nature of Tenant's use of the
Premises:
(1) Will be performed by contractors approved by Landlord and subject
to conditions specified by Landlord (which may include requiring
the posting of performance and payment bonds);
(2) At Landlord's option, will be made by Landlord for Tenant's
account, and Tenant will reimburse
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Landlord for their costs (including 5% for Landlord's overhead) within
10 days after receipt of statement of such cost;
(3) Will be done in good and workmanlike manner and shall be completed
promptly.
(4) Shall not cause a loss or diminution of electric power or other
utilities or services to other tenants of Building;
(5) Will be performed according to plans, specifications, and working
drawings approved by Landlord.
(6) Will be in accordance with all applicable federal, state, county and
local laws, rules, regulations, ordinances and codes.
At all times between the start and completion of the work, in addition to
the other policies of insurance required by this Lease, Tenant shall
maintain a policy of "All Risk" Builder's Risk Insurance covering the
replacement value of all work done and fixtures and equipment installed or
to be installed at the Premises pursuant to this Article 14. Tenant
herewith agrees to be responsible for all damages to persons or property
including loss of life, as a result of occurrences connected with
activities undertaken by Tenant, its agents, contractors, and employees
pursuant hereto, and hereby indemnifies Landlord and shall defend and hold
Landlord harmless from and against any and all loss, cost or expense in
connection with its responsibilities hereunder.
(b) Subject to Tenant's rights in Article 16, all alterations, additions,
fixtures and improvements, whether temporary or permanent in
character, made in or upon the Premises either by Tenant or Landlord,
will immediately become Landlord's property and at the end of the Term
will remain on the Premises without compensation to Tenant, unless
Landlord at the time of approval of same advises Tenant in writing
that such alterations, additions, fixtures, or improvements must be
removed at the expiration or other termination of this Lease.
14.2 FREE STANDING PARTITIONS. Tenant will have the right to install
free-standing work station partitions, without Landlord's prior written
consent, so long as no building or other governmental permit is required
for the installation or relocation; however, if a permit is required,
Landlord will not unreasonably withhold its consent to such relocation or
installation. The free-standing work station partitions for which Tenant
pays will be part of Tenant's trade fixtures for all purposes under this
Lease. All other partitions installed in the Premises are and will be
Landlord's property for all purposes under this Lease.
14.3 REMOVAL. If Landlord has required Tenant to remove any or all alterations,
additions, fixtures, and improvements that are made in or upon the Premises
pursuant to this Article 14 prior to the Expiration Date, Tenant will
remove such alterations, additions, fixtures, and improvements at Tenant's
sole cost and will restore the Premises to the condition in which they were
before such alterations, additions, fixtures, improvements, and additions
were made.
ARTICLE 15 MECHANICS' LIENS
Tenant will pay or cause to be paid all costs and charges for work (a) done by
Tenant or caused to be done by Tenant, in or to the Premises, and (b) for all
materials furnished for or in connection with such work. Tenant will indemnify
Landlord against and defend and hold Landlord, the Premises and the Project
free, clear, and harmless of and from all mechanics' liens and claims of liens,
and all other liabilities, liens, claims and demands on account of such work by
or on behalf of Tenant, other than work performed by Landlord pursuant to the
Workletter. If any such lien, at any time, is filed against the Premises or any
part of the Project, Tenant will cause such lien to be discharged of record
within 10 days after the filing of such lien, except that if Tenant desires to
contest such lien, it will furnish Landlord, within such 10-day period, security
reasonably satisfactory to Landlord of at least 150% of the amount of the claim,
plus estimated costs and interest, or comply with such statutory procedures as
may be available to release the lien. If a final judgment establishing the
validity or existence of a lien for any amount is entered, Tenant will pay and
satisfy the same at once. If Tenant fails to pay any charge for which a
mechanics' lien has been filed, and has not given Landlord security as described
above, or has not complied with such statutory procedures as may be available to
release the lien, Landlord may, at its option, pay such charge and related costs
and interest, and the amount so paid, together with reasonable attorneys' fees
incurred in connection with such lien, will be immediately due from Tenant to
Landlord as Additional Rent. Nothing contained in this Lease will be deemed the
consent or agreement of Landlord to subject Landlord's interest in the Project
to liability under any mechanics' or other lien law. If Tenant receives written
notice that a lien has been or is about to be filed against the Premises or the
Project, or that any action affecting title to the Project has been commenced on
account of work done by or for or materials furnished to or for Tenant, it will
immediately give Landlord written notice of such notice. At least 15 days prior
to the commencement of any work (including but not limited to any maintenance,
repairs, alterations, additions, improvements, or installations) in or to the
Premises, by or for Tenant, Tenant will give Landlord written notice of the
proposed work and the names and addresses of the persons supplying labor and
materials for the proposed work. Landlord will have the right to post notices of
nonresponsibility or similar written notices on the Premises in order to protect
the Premises against any such liens.
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ARTICLE 16 END OF TERM
At the end of this Lease, Tenant will promptly quit and surrender the Premises
broom-clean, in good order and repair, ordinary wear and tear excepted and
deliver all keys to the Premises and the Building to Landlord. Tenant is not
then in default, Tenant may remove from the Premises any trade fixtures,
equipment, and movable furniture placed in the Premises by Tenant, whether or
not such trade fixtures or equipment are fastened to the Building; Tenant will
not remove any trade fixtures or equipment without Landlord's prior written
consent if such fixtures or equipment are used in the operation of the
Building, or if the removal of such fixtures or equipment will result in
impairing the structural strength of the Building. Whether or not Tenant is in
default, Tenant will remove such alterations, additions, improvements, trade
fixtures, equipment, and furniture as Landlord has requested in accordance with
Article 14. Tenant will fully repair any damage occasioned by the removal of
any trade fixtures, equipment, furniture, alterations, additions, and
improvements. All trade fixtures, equipment, furniture, inventory, effects,
alterations, additions, and improvements on the Premises after the end of the
Term will be deemed conclusively to have been abandoned and may be
appropriated, sold, stored, destroyed, or otherwise disposed of by Landlord
without notice to Tenant or any other person and without obligation to account
for them. Tenant will pay Landlord for all expenses incurred in connection with
the removal of such property including but not limited to the cost of storage,
and the cost of repairing any damage to the Building or Premises caused by the
removal of such property. Tenant's obligation to observe and perform this
covenant will survive the expiration or other termination of this Lease.
ARTICLE 17 EMINENT DOMAIN
If all of the Premises are taken by exercise of the power of eminent domain (or
conveyed by Landlord in lieu of such exercise) this Lease will terminate on a
date (the "termination date") which is the earlier of the date upon which the
condemning authority takes possession of the Premises or the date on which
title to the Premises is vested in the condemning authority. If more than 25%
of the Rentable Area of the Premises is so taken, Tenant will have the right to
cancel this Lease by written notice to Landlord given within 20 days after the
termination date. If less than 25% of the Rentable Area of the Premises is so
taken, or if the Tenant does not cancel this Lease according to the preceding
sentence, the Monthly Rent will be abated in the proportion of the Rentable
Area of the Premises so taken to the Rentable Area of the Premises immediately
before such taking, and Tenant's Share will be appropriately recalculated. If
25% or more of the Building or the Project is so taken, Landlord may cancel
this Lease by written notice to Tenant given within 30 days after the
termination date. In the event of any such taking, the entire award will be
paid to Landlord, and Tenant will have no right or claim to any part of such
award; however, Tenant will have the right to assert a claim against the
condemning authority in a such or separate action, so long as Landlord's award
is not reduced as a consequence of such claim, for Tenant's costs including but
not limited to relocating expenses and trade fixtures owned by Tenant.
ARTICLE 18 DAMAGE AND DESTRUCTION
(a) If the Premises or the Building is damaged by fire or other insured
casualty, Landlord will give Tenant written notice of the time which will
be needed to repair such damage, as determined by Landlord in its
reasonable discretion, and the election (if any) which Landlord has made
according to this Article 18. Such notice will be given before the 30th day
(the "notice date") after the fire or other insured casualty.
(b) If the Premises or the Building is damaged by fire or other insured
casualty to an extent which may be repaired within 180 days after the
notice date, as reasonably determined by Landlord, Landlord will promptly
begin to repair the damage after the notice date and will diligently pursue
the completion of such repair. In that event this Lease will continue in
full force and effect except that Monthly Rent will be abated on a pro rata
basis from the date of the damage until the date of the completion of such
repairs (the "repair period") based on the proportion of the Rentable Area
of the Premises Tenant is unable to use during the repair period.
(c) If the Premises or the Building is damaged by fire or other insured
casualty to an extent that may not be repaired within 180 days after the
notice date, as reasonably determined by Landlord, then (1) Landlord may
cancel this Lease as of the date of such damage by written notice given to
Tenant on or before the notice date or (2) Tenant may cancel this Lease as
of the date of such damage by written notice given to Landlord within 10
days after Landlord's delivery of a written notice that the repairs cannot
be made within such 180 day period. If neither Landlord nor Tenant so
elects to cancel this Lease, Landlord will diligently proceed to repair the
Building and Premises and Monthly Rent will be abated on a pro rata basis
during the repair period based on the proportion of the Rentable Area of
the Premises Tenant is unable to use during the repair period.
(d) Notwithstanding the provisions of subparagraphs (a), (b), and (c) above, if
the Premises or the Building or the Project are damaged by uninsured
casualty, or if the proceeds of insurance are insufficient to pay for the
repair of any damage to the Premises or the Building or the Project,
Landlord will have the option to repair such damage or cancel this Lease as
of the date of such casualty by written notice to Tenant on or before the
notice date.
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(e) If any such damage by fire or other casualty is the result of the
willful conduct or negligence or failure or act of Tenant, its agents,
contractors, employees, or invitees, there will be no abatement of
Monthly Rent as otherwise provided for in this Article 18. Tenant will
have no rights to terminate this Lease on account of any damage to the
Premises, the Building, or the Project, except as set forth in this
Lease.
(f) For purposes of this Article 18 and subject to subsections (a) thru
(e) hereof, Landlord shall repair or restore any portion of the
alterations, additions or improvements in the Premises or the
decorations thereto to the extent that such alterations, additions,
improvements and decorations were provided by Landlord at the
beginning of the Term. Landlord shall have no further obligations
pursuant to this Lease to repair or restore any alterations, additions
or improvements in the Premises or the decorations thereto. If Tenant
desires any other or additional repairs or restoration and if Landlord
consents thereto, the same shall be done at Tenant's sole cost and
expense. Tenant acknowledges that Landlord shall be entitled to the
full proceeds of any insurance coverage, whether carried by Landlord
or Tenant, to the extent of damage to alterations, additions,
improvements or decorations.
ARTICLE 19 SUBORDINATION
19.1 GENERAL. This Lease and Tenant's rights under this Lease are subject and
subordinate to any ground or underlying lease, mortgage, indenture, deed of
trust, or other lien encumbrance (each a "superior lien"), together with
any renewals, extensions, modifications, consolidations, and replacements
of such superior lien, now or in the future affecting or placed, charged,
or enforced against the Land, the Building, or all or any portion of the
Project or any interest of Landlord in them or Landlord's interest in this
Lease and the leasehold estate created by this Lease (except to the
extent any such instrument expressly provides that this Lease is superior
to such instrument). Notwithstanding the foregoing, Tenant will execute,
acknowledge, and deliver to Landlord, within 20 days after written demand
by Landlord, such documents as may be reasonably requested by Landlord or
the holder of any superior lien to confirm or effect any such subordination
or superiority, as applicable.*
19.2 ATTORNMENT. Tenant agrees that in the event that any holder of a superior
lien succeeds to Landlord's interest in the Premises, Tenant will pay to
such holder all Rent subsequently payable under this Lease. Further, Tenant
agrees that in the event of the enforcement by the holder of a superior
lien of the remedies provided for by law or by such superior lien, Tenant
will, upon request of any person or party succeeding to the interest of
Landlord as a result of such enforcement, automatically become the Tenant
of and attorn to such successor in interest without change in the terms or
provisions of this Lease. Such successor in interest will not be bound by;
(a) Any payment of Rent for more than one month in advance, except prepayments
in the nature of security for the performance by Tenant of its obligations
under this Lease that are actually received by such successor in interest;
(b) Any amendment or modification of this Lease made without the written
consent of such successor in interest (if such consent was required under
the terms of such superior lien);
(c) Any claim against Landlord arising prior to the date on which such
successor in interest succeeded to Landlord's interest; or
(d) Any claim or offset of Rent against the Landlord.
Upon request by such successor in interest, Tenant will, within 20 days
after written demand, execute, acknowledge, and deliver an instrument or
instruments confirming the attornment.
ARTICLE 20 ENTRY BY LANDLORD
Landlord, its agents, employees, and contractors may enter the Premises at any
time in response to an emergency and at any other reasonable time to:
(a) Inspect the Premises;
(b) Exhibit the Premises to prospective purchasers, lenders, or tenants;
(c) Determine whether Tenant is complying with all its obligations in this
Lease;
* So long as the Owner & holder of such superior lien agrees not
to disturb Tenant's right to possession, so long as Tenant is not in
default, after applicable notice and period for cure.
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(d) Supply cleaning service and any other service to be provided by
Landlord to Tenant according to the Lease;
(e) Post written notices of nonresponsibility or similar notices; or
(f) Make repairs required of Landlord under the terms of this Lease or
make repairs to any adjoining space or utility services or make
repairs, alterations, or improvements to any other portion of the
Building.
Tenant, by this Article 20, waives any claim against Landlord, its agents,
employees, or contractors for damage for any injury or inconvenience to or
interference with Tenant's business, any loss of occupancy or quiet enjoyment
of the Premises, or any other loss occasioned by any entry in accordance with
this Article 20. Landlord will at all times have and retain a key with which to
unlock all of the doors in, on, or about the Premises (excluding Tenant's
vaults, safes, and similar areas designated in writing by Tenant in advance).
Landlord will have the right to use any and all means Landlord may deem proper
to open doors in and to the Premises in an emergency in order to obtain entry
to the Premises, provided that Landlord will promptly repair any damages caused
by any forced entry. Any entry to the Premises by Landlord in accordance with
this Article 20 will not be construed or deemed to be a forcible or unlawful
entry into or a detainer of the Premises or an eviction, actual or
constructive, of Tenant from the Premises or any portion of the Premises, nor
will any such entry entitle Tenant to damages or an abatement of Monthly Rent,
Additional Rent, or other charges that this Lease requires Tenant to pay.
ARTICLE 21 INDEMNIFICATION, WAIVER, AND RELEASE
21.1 INDEMNIFICATION. To the extent not prohibited by law, Landlord, its
employees and agents shall not be liable for damage to person, property or
business or resulting from the loss of use thereof sustained by Tenant or
other persons due to the Building or any part thereof becoming out of
repair or due to an accident or due to any act or neglect of any tenant,
occupant or other person.* Tenant further agrees that all personal property
upon the Premises, loading dock, holding areas, and freight elevators shall
be at the sole risk of Tenant. Tenant will neither hold nor attempt to hold
Landlord, its employees, or agents liable for, and Tenant will indemnify
and defend and hold harmless Landlord, its employees, and agents from and
against, any and all demands, claims, causes of action, fines, penalties,
damages (including consequential damages), liabilities, judgments, and
expenses (including without limitation reasonable attorneys' fees) incurred
in connection with or arising from:* unless as a result of Landlord's
intentional act or omissions.
(a) the use or occupancy or manner of use or occupancy of the Premises or
any common areas by Tenant or any person claiming under Tenant;
(b) any activity, work, or thing done or permitted by Tenant in or about
the Premises, the Building, or the Project;
(c) any breach by Tenant or its employees, agents, contractors, or
invitees of this Lease; and
(d) any injury or damage to the person, property, or business of Tenant,
its employees, agents, contractors, or invitees entering upon the
Premises under the express or implied invitation of Tenant.
If any action or proceeding is brought against Landlord, its employees, or
agents by reason of any such claim for which Tenant has indemnified
Landlord, Tenant, upon written notice from Landlord, will defend the same
at Tenant's expense, with counsel reasonably satisfactory to Landlord.
21.2 WAIVER AND RELEASE. Tenant, as a material part of the consideration to
Landlord for this Lease, by this Section 21.2 waives and releases all
claims against Landlord, its employees, and agents with respect to all
matters for which Landlord has disclaimed liability pursuant to the
provisions of this Lease.
ARTICLE 22 SECURITY DEPOSIT There will be no security deposit
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ARTICLE 23 QUIET ENJOYMENT
Landlord covenants and agrees with Tenant (that so long as Tenant pays the Rent
and observes and performs all the terms, covenants and conditions of this Lease
on Tenant's part to be observed and performed, Tenant may peaceably and quietly
enjoy the Premises subject, nevertheless, to the terms and conditions of this
Lease, and Tenant's possession will not be disturbed by anyone claiming by,
through, or under Landlord.
ARTICLE 24 EFFECT OF SALE
A sale, conveyance, or assignment of the Building or the Project will operate to
release Landlord from liability from and after the effective date of such sale,
conveyance, or assignment upon all of the covenants, terms, and conditions of
this Lease, express or implied, except those liabilities that arose prior to
such effective date, and after the effective date of such sale, conveyance, or
assignment. Tenant will look solely to Landlord's successor in interest in and
to this Lease. This Lease will not be affected by any such sale, conveyance or
assignment and Tenant will attorn to Landlord's successor in interest to this
Lease from and after such effective date.
ARTICLE 25 DEFAULT
25.1 EVENTS OF DEFAULT. The following events are referred to, collectively, as
"events of default" or, individually as an "event of default":
(a) Tenant fails to pay any Rent or other monetary obligation when due,
and such failure continues for 5 days after written notice from
Landlord; however, Tenant will not be entitled to more than 1 written
notice for monetary defaults during any 12-month period, and if after
such written notice any Rent is not paid when due, an event of
default will be considered to have occurred without further notice;
(b) Tenant vacates or abandons the Premises;
(c) This Lease or the Premises or any part of the Premises is taken upon
execution or by other process of law directed against Tenant, or is
taken upon or subject to any attachment by any creditor of Tenant or
claimant against Tenant and said attachment is not discharged or
disposed of within 15 days after its levy;
(d) Tenant or any guarantor of Tenant's obligations under this Lease
("Guarantor") files a petition in bankruptcy or insolvency or for
reorganization or arrangement under the bankruptcy laws of the United
States or under any insolvency act of any state, or admits the
material allegations of any such petition by answer or otherwise, or
admits in writing its inability to meet its debts as they mature, or
is dissolved or makes an assignment for the benefit of creditors;
(e) Involuntary proceedings under any such bankruptcy law or insolvency
act or for the dissolution of Tenant or any Guarantor are instituted
against Tenant or Guarantor, or a receiver or trustee is appointed
for all or substantially all of the property of Tenant or any
Guarantor, and such proceeding is not dismissed or such receivership
or trusteeship vacated within 60 days after such institution or
appointment;
(f) Tenant fails to take possession of the Premises on the Commencement
Date of the Term;
(g) Tenant violates the terms of Article 9 "Assignment and Subletting";
(h) Tenant breaches any of the agreements, terms, covenants, or
conditions of this Lease and such breach involves a hazardous
condition and is not cured immediately upon written notice to Tenant;
(i) Tenant breaches any of the other agreements, terms, covenants, or
conditions that this Lease requires Tenant to perform, and such
breach continues for a period of 30 days after written notice from
Landlord to Tenant or, if such breach cannot be cured reasonably
within such 30-day period, if Tenant fails to diligently commence to
cure such breach within 30 days after written notice from Landlord
and to complete such cure within a reasonable time thereafter; or
25.2 LANDLORD REMEDIES. If any one or more events of default set forth in
Section 25.1 occurs then Landlord has the right, at its election:
(a) To give Tenant written notice of Landlord's intention to terminate
this Lease on the earliest date permitted by law or on any later date
specified in such notice, in which case Tenant's right to possession
of the Premises will cease and this Lease will be terminated, except
as to Tenant's liability, as if the expiration
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of the term fixed in such notice were the end of the Term;
(b) Without further demand or notice, and without terminating this
Lease, to reenter and take possession of the Premises or any part of
the Premises, repossess the same, expel Tenant and those claiming
through under Tenant, and remove the effects of both or either,
using such force for such purposes as may be necessary, without
being liable for prosecution, without being deemed guilty of any
manner of trespass and without prejudice to any remedies for arrears
of Monthly Rent or other amounts payable under the Lease or as a
result of any preceding breach of covenants or conditions; or
(c) Without further demand or notice to cure any event of default and to
charge Tenant for the cost of effecting such cure, including without
limitation reasonable attorneys' fees and interest on the amount so
advanced at the rate set forth in Section 27.21, provided that
Landlord will have no obligation to cure any such event of default
of Tenant.
Should Landlord elect to reenter as provided in subsection (b), or should
Landlord take possession pursuant to legal proceedings or pursuant to any
notice provided by law, Landlord may, from time to time, without
terminating this Lease, relet the Premises or any part of the Premises in
Landlord's or Tenant's name, but for the account of Tenant, for such
term or terms (which may be greater or less than the period which would
otherwise have constituted the balance of the Term) and on such
conditions and upon such other terms (which may include concessions of
free rent and alteration and repair of the Premises) as Landlord, in its
reasonable discretion, may determine, and Landlord may collect and
receive the rents from such reletting. Landlord will in no way be
responsible or liable for any failure to relet the Premises, or any part
of the Premises, or for any failure to collect any rent due upon such
reletting. No such reentry or taking possession of the Premises by
Landlord will be construed as an election on Landlord's part to terminate
this Lease unless a written notice of such intention is given to Tenant.
No written notice from Landlord under this Section or under a forcible or
unlawful entry and detainer statute or similar law will constitute an
election by Landlord to terminate this Lease unless such notice
specifically so states. Landlord reserves the right following any such
reentry or reletting to exercise its right to terminate this Lease by
giving Tenant such written notice, in which event this Lease will
terminate as specified in such notice.
25.3 CERTAIN DAMAGES. In the event that Landlord does not elect to terminate
this Lease as permitted in Section 25.2(a), but on the contrary elects to
take possession as provided in Section 25.2(b), Tenant will pay to
Landlord Monthly Rent and other sums as provided in this Lease that would
be payable under this Lease if such repossession had not occurred, less
the net proceeds, if any, of any reletting of the Premises after
deducting all of Landlord's reasonable expenses in connection with such
reletting, including without limitation all repossession costs, brokerage
commissions, attorneys' fees, expenses of employees, alteration and
repair costs, and expenses of preparation for such reletting. Tenant will
pay such Rent and other sums to Landlord monthly on the day on which the
Monthly Rent would have been payable under this Lease if possession had
not been retaken, and Landlord will be entitled to receive such Rent and
other sums from Tenant on each such day.
25.4 CONTINUING LIABILITY AFTER TERMINATION. If this Lease is terminated on
account of the occurrence of an event of default, Tenant will remain
liable to Landlord for damages in an amount equal to the Rent and other
amounts that would have been owing by Tenant for the balance of the Term,
had this Lease not been terminated, less the net proceeds, if any, of any
reletting of the Premises by Landlord subsequent to such termination,
after deducting all of Landlord's expenses in connection with such
reletting, including without limitation the expenses enumerated in
Section 25.3. Landlord will be entitled to collect such damages from
Tenant monthly on the day on which Monthly Rent and other amounts would
have been payable under this Lease if this Lease had not been terminated,
and Landlord will be entitled to receive such Monthly Rent and other
amounts from Tenant on each such day. Alternatively, at the option of
Landlord, in the event this Lease is so terminated, Landlord will be
entitled to recover against Tenant as damages for loss of the bargain and
not as a penalty:
(a) The worth at the time of award of the unpaid Rent that had been
earned at the time of termination;
(b) The worth at the time of award of the amount by which the unpaid
Rent that would have been earned after termination until the time
of award exceeds the amount of such rental loss that Tenant proves
could have been reasonably avoided;
(c) The worth at the time of award of the amount by which the unpaid
Rent for the balance of the Term of this Lease (had the same not
been so terminated by Landlord) after the time of award exceeds the
amount of such rental loss that Tenant proves could be reasonably
avoided;
(d) Any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its
obligation under this Lease or which in the ordinary course of
things would be likely to result therefrom.
The "worth at the time of award" of the amounts referred to in clauses
(a) and (b) above is computed by
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adding interest at the per annum interest rate described in Section 27.21
on the date on which this Lease terminated from the date of termination
until the time of the award. The "worth at the time of award" of the amount
referred to in clause (c) above is computed by discounting such amount at
the discount rate of the Federal Reserve Bank of New York, New York, at the
time of award plus 1%.
25.5 CUMULATIVE REMEDIES. Any suit or suits for the recovery of the amounts and
damages set forth in Sections 25.3 and 25.4 may be brought by Landlord,
from time to time, at Landlord's election, and nothing in the Lease will
be deemed to require Landlord to await the date upon which this Lease or
the Term would have expired had there occurred no event of default. Each
right and remedy provided for in this Lease is cumulative and is in
addition to every other right or remedy provided for in this Lease or now
or after the Lease Date existing at law or in equity or by statute or
otherwise, and the exercise or beginning of the exercise by Landlord of any
one or more of the rights or remedies provided for in this Lease or now or
after the Lease Date existing at law or in equity or by statute or
otherwise will not preclude the simultaneous or later exercise by Landlord
of any or all other rights or remedies provided for in this Lease or now or
after the Lease Date existing at law or in equity or by statute or
otherwise. All costs incurred by Landlord in collecting any amounts and
damages owing by Tenant pursuant to the provisions of this Lease or to
enforce any provisions of this Lease, including reasonable attorneys' fees
from the date any such matter is turned over to any attorney, whether or
not one or more actions are commenced by Landlord, will also be recoverable
by Landlord from Tenant. Notwithstanding the foregoing, Landlord waives any
right, whether statutory or otherwise, to a lien against Tenant's personal
property.
25.6 WAIVER OF REDEMPTION. Tenant waives any right of redemption arising as a
result of Landlord's exercise of its remedies under this Article 25.
ARTICLE 26 PARKING
Tenant will be entitled to use the parking spaces at the Premises and at 0000
Xxxxxx Xxxxx, XX and The Hampton Inn site during the Term subject to the rules
and regulations set forth in Exhibit D, and any amendments or additions to
them.
Neither Landlord nor any operator of the parking areas within the Project, as
the same are designated and modified by Landlord, in its sole discretion, from
time to time (the "parking areas") will be liable for loss of or damage to any
vehicle or any contents of such vehicle or accessories to any such vehicle, or
any property left in any of the parking areas, resulting from fire, theft,
vandalism, accident, conduct or other users of the parking areas and other
persons, or any other casualty or cause. Further, Tenant understands and agrees
that: (a) Landlord will not be obligated to provide any traffic control,
security protection or operator for the parking areas; (b) Tenant uses the
parking areas at its own risk; and (c) Landlord will not be liable for personal
injury or death, or theft, loss of, or damage to property. Tenant waives and
releases Landlord from any and all liability arising out of the use of the
parking areas by Tenant, its employees, agents, invitees, and visitors, whether
brought by any of such persons or any other person.
Tenant's right to use the parking areas will be in common with other tenants of
the Project and 2309 Renard, The Hampton Inn with other parties permitted by
Landlord to use the parking areas. Landlord has granted Xxxxx & Root the right
to park up to 12 vehicles at the far East section of the parking lot. Landlord
will designate five (5) visitors spaces directly in front of the building entry
at 0000 Xxxxxx Xxxxx, XX. Landlord will not be liable to Tenant for any
unavailability of Tenant's designated spaces, if any, nor will any
unavailability entitle Tenant to any refund, deduction, or allowance. Tenant
will not park in any numbered space or any space designated as: HANDICAPPED,
VISITORS ONLY, LIMITED TIME PARKING (or similar designation). If the parking
areas are damaged or destroyed, or if the use of the parking areas is limited or
prohibited by any governmental authority, or the use or operation of the parking
areas is limited or prevented by strikes or other labor difficulties or other
causes beyond Landlord's control, Tenant's inability to use the parking spaces
will not subject Landlord or any operator of the parking areas to any liability
to Tenant and will not relieve Tenant of any of its obligations under the Lease
and the Lease will remain in full force and effect.
Tenant has no right to assign or sublicense any of its rights in the parking
spaces, except at part of a permitted assignment or sublease of the Lease.
ARTICLE 27 MISCELLANEOUS
27.1 NO OFFER. Submission of the Lease to Tenant is for examination and shall
not bind Landlord in any manner. No lease or obligations of Landlord shall
arise until this instrument is signed by both Landlord and Tenant and
delivery is made to each; provided, however, the execution and delivery by
Tenant of this Lease to Landlord or Landlord's agent shall constitute an
irrevocable offer by Tenant to lease the Premises on the terms and
conditions herein contained, which offer may not be withdrawn or revoked
for 15 days after such execution and delivery.
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27.2 JOINT AND SEVERAL LIABILITY. If Tenant is composed of more than one
signatory in this Lease, each signatory will be jointly and severally
liable with each other signatory for payment and performance according to
this Lease. The act of, written notice to, written notice from, refund to,
or signature of a signatory to this Lease (including without limitation
modifications of this Lease made by fewer than all such signatories) will
bind every other signatory as though every other signatory had so acted,
or received or given the written notice or refund, or signed.
27.3 NO CONSTRUCTION AGAINST DRAFTING PARTY. Landlord and Tenant acknowledge
that each of them and the counsel have had an opportunity to review this
Lease and that this Lease will not be construed against Landlord merely
because Landlord has prepared it.
27.4 TIME OF THE ESSENCE. Time is of the essence of each and every provision of
this Lease.
27.5 NO RECORDATION. Tenant's recordation of this Lease or any memorandum or
short form of it will be void and an event of default under this Lease.
Tenant shall, at the request of Landlord, execute a short-form lease and
have it properly acknowledged for the purpose of recording. The cost of
recording such short form lease shall be borne by Landlord.
27.6 NO WAIVER. No waiver by Landlord of any agreement, condition or provision
contained in this Lease will be valid or binding unless expressed in
writing and signed by Landlord. The waiver by Landlord of any agreement,
condition, or provision contained in this Lease will not be deemed to be a
waiver of any subsequent breach of the same or any other agreement,
condition, or provision contained in this Lease, nor will any custom or
practice that may grow up between the parties in the administration of the
terms of this Lease be construed to waive or to lessen the right of
Landlord to insist upon the performance by Tenant in strict accordance
with the terms of this Lease. The subsequent acceptance of Rent by
Landlord will not be deemed to be a waiver of any preceding breach by
Tenant of any agreement, condition, or provision of this Lease, other than
the failure of Tenant to pay the particular Rent so accepted, regardless
of Landlord's knowledge of such preceding breach at the time of acceptance
of such Rent.
27.7 LIMITATION ON RECOURSE. Tenant specifically agrees to look solely to
Landlord's interest in the Project for the recovery of any judgments from
Landlord. It is agreed that Landlord (and its agents, shareholders,
venturers, and partners, and their shareholders, venturers, and partners
and all of their officers, directors, and employees) will not be
personally liable for any such judgments.
27.8 ESTOPPEL CERTIFICATES. At any time and from time to time but within 15
days after prior written request by Landlord, Tenant will execute,
acknowledge, and deliver to Landlord or such other person as Landlord
shall direct, promptly upon request, a certificate in a form
substantially similar to a form provided by Landlord certifying (a) that
this Lease is unmodified and in full force and effect or, if there have
been modifications, that this Lease is in full force and effect, as
modified, and stating the date and nature of each modification; (b) the
date, if any, to which Rent and other sums payable under this Lease have
been paid; (c) that no written notice of any default has been delivered to
Landlord which default has not been cured, except as to defaults specified
in said certificate; (d) that the Tenant has no knowledge of and that
there is no event of default under this Lease or any event which, with
notice or the passage of time, or both, would result in an event of
default under this Lease, except for defaults specified in said
certificate; and (e) such other matters as may be reasonably requested by
Landlord. Any such certificate may be relied upon by any prospective
purchaser or existing or prospective mortgagee or beneficiary under any
deed of trust of the Building or any part of the project. Tenant's failure
to deliver such a certificate within such time will be conclusive
evidence of the matters set forth in it, and such failure shall be an
event of default.
27.9 ATTORNEYS' FEES. If Landlord and Tenant litigate any provision of this
Lease or the subject matter of this Lease, the unsuccessful litigant will
pay to the successful litigant all costs and expenses, including
reasonable attorneys' fees and court costs, incurred by the successful
litigant at trial and on any appeal. If, without fault, either Landlord or
Tenant is made a party to any litigation instituted by or against the
other, the other will indemnify the faultless one against all loss,
liability, and expense, including reasonable attorneys' fees and court
costs, incurred in connection with such litigation.
27.10 NO MERGER. The voluntary or other surrender of this Lease by Tenant or
the cancellation of this Lease by mutual agreement of Tenant and Landlord
or the termination of this Lease on account of Tenant's default will not
work a merger, and will, at Landlord's option, (a) terminate all or any
sublease and subtenancies or (b) operate as an assignment to Landlord of
all or any subleases or subtenancies. Landlord's option under this Section
27.10 will be exercised by written notice to Tenant and all known
sublessees or subtenants in the Premises or any part of the Premises.
27.11 HOLDING OVER. Tenant will have no right to remain in possession of all or
any part of the Premises after the expiration of the Terms and the Renewal
Term, if Tenant renews the Lease as provided herein and Landlord may, at
its option, re-enter and take possession of the Premises, reserving its
rights to collect damages sustained by reason of Tenant's unlawful
retention of possession of the Premises or any part thereof. If Tenant
remains in possession of all or any part of the Premises after the
expiration of the Term, with the express written consent of Landlord: (a)
such tenancy will be deemed
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to be a periodic tenancy from month-to-month only; (b) such tenancy
will not constitute a renewal extension of this Lease for any further
term; and (c) such tenancy may be terminated by Landlord upon the
earlier of 30 days' prior written notice or the earliest date
permitted by law. In such event, Monthly Rent will be increased to an
amount equal to 140% of the Monthly Rent payable during the last month
of the Term, and any other sums due under this Lease will be payable
in the amount and at the time specified in this Lease. During such
month-to-month tenancy, Tenant will observe every other term,
condition, and covenant contained in this Lease.
27.12 NOTICES. Any notice, request, demand, consent, approval, or other
communication required or permitted under this Lease must be in
writing and will be deemed to have been given when personally
delivered, sent by facsimile with delivery acknowledged by the sending
machine, deposited with any nationally recognized overnight carrier
that routinely issues receipts, or deposited in any depository
regularly maintained by the United States Postal Service, postage
prepaid, certified mail, return receipt requested, addressed to the
party for whom it is intended at its address(es) set forth in Section
1.1. Either Landlord or Tenant may add additional addresses or change
its address for purposes of receipt of any such communication by
giving [illegible] days' prior written notice of such change to the
other party in the manner prescribed in this Section 27.12.
27.13 SEVERABILITY. If any provision of this Lease proves to be illegal,
invalid, or unenforceable, the remainder of this Lease will not be
affected by such finding, and in lieu of each provision of this Lease
that is illegal, invalid, or unenforceable a provision shall be deemed
added as a part of this Lease as similar in terms to such
illegal, invalid, or unenforceable provision as may be possible and be
legal, valid, and enforceable.
27.14 WRITTEN AMENDMENT REQUIRED. No amendment, alteration, modification of,
or addition to the Lease will be valid or binding unless expressed in
writing and signed by Landlord and Tenant. Tenant agrees to make any
modifications of the terms and provisions of this Lease required or
requested by any lending institution providing financing for the
Building, or Project, as the case may be, provided that no such
modifications will materially adversely affect Tenant's rights and
obligations under this Lease.
27.15 ENTIRE AGREEMENT. This Lease, the exhibits and addenda, if any,
contain the entire agreement between Landlord and Tenant. No promises
or representations, except as contained in this Lease, have been made
to Tenant respecting the condition or the manner of operating the
Premises, the Building, or the Project.
27.16 CAPTIONS. The captions of the various articles and sections of this
Lease are for convenience only and do not necessarily define, limit,
describe, or construe the contents of such articles or sections.
27.17 NOTICE OF LANDLORD'S DEFAULT. In the event of any alleged default in
the obligation of Landlord under this Lease, Tenant will deliver to
Landlord written notice listing the reasons for Landlord's default and
Landlord will have 30 days following receipt of such notice to cure
such alleged default or, in the event the alleged default cannot
reasonably be cured within a 30-day period, to commence action and
proceed diligently to cure such alleged default. A copy of such notice
to Landlord will be sent to any holder of a mortgage or other
encumbrance on the Building or Project of which Tenant has been
notified in writing, and any such holder will also have an additional
like period to cure such alleged default.
27.18 AUTHORITY. Tenant and the party executing this Lease on behalf of
Tenant represent to Landlord that such party is authorized to do so by
requisite action of the board of directors or partners, as the case
may be, and agree upon request to deliver to Landlord a resolution or
similar document to that effect.
27.19 BROKERS. Landlord and Tenant represent and warrant that they have not
consulted or negotiated with any broker, finder or agent with regard
to the Premises except the broker(s) named in Section 1.1. Each agrees
to hold the other harmless and indemnify the other against all costs,
expenses, attorney's fees, or other liability for commissions or other
compensation or charges claimed by any broker, finder or agent
claiming the same by, through or under it and such indemnity shall
survive the expiration or earlier termination of this Lease.
27.20 GOVERNING LAW. This Lease will be governed by and construed pursuant
to the laws of the state in which the Project is located.
27.21 LATE PAYMENTS. Any Rent or other monetary obligation due Landlord that
is not paid within 10 days when due will accrue interest at a rate of
the Prime Rate plus 5% per annum (but in no event in an amount in
excess of the maximum rate allowed by applicable law) from the date on
which it was due until the date on which it is paid in full with
accrued interest. In addition to the foregoing, Tenant shall pay to
Landlord a late charge of 5% of the amount due.
27.22 NO EASEMENTS FOR AIR OR LIGHT. Any diminution or shutting off of
light, air, or view by any structure that may be erected on lands
adjacent to the Building will in no way affect this Lease or impose
any liability on Landlord.
27.23 TAX CREDITS. Landlord is entitled to claim all tax credits and
depreciation attributable to leasehold
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22
improvements in the Premises. Promptly after Landlord's demand, Landlord
and Tenant will prepare a detailed list of the leasehold improvements and
fixtures and their respective costs for which Landlord Tenant has paid.
Landlord will be entitled to all credits and depreciation for those items
for which Landlord has paid by means of any Tenant finish allowances or
otherwise. Tenant will be entitled to any tax credit and depreciation for
all items for which Tenant has paid with funds not provided by Landlord.
27.24
27.25 FINANCIAL REPORTS. Within 15 days after Landlord's request, Tenant will
furnish Tenant's most recent audited financial statements (including any
notes to them) to Landlord, or, if no such audited statements have been
prepared, such other financial statements (and notes to them) as may have
been prepared by an independent certified public accountant or, failing
those, Tenant's internally prepared financial statements. Tenant will
discuss its financial statements with Landlord and will give Landlord
access to Tenant's books and records in order to enable Landlord to
verify the financial statements. Landlord will not disclose any aspect of
Tenant's financial statements that Tenant designates to Landlord as
confidential except (a) to Landlord's lenders or prospective purchasers
of the Project, (b) in litigation between Landlord and Tenant and (c) if
required by court order or subpoena.
27.26 LANDLORD'S FEES. Whenever Tenant requests Landlord to take any action or
give any consent required or permitted under this Lease, Tenant will
reimburse Landlord for all of Landlord's reasonable costs incurred in
reviewing the proposed action or consent, including without limitation
engineers' or architects' fees, within 10 days after Landlord's delivery
to Tenant of a statement of such costs. Tenant will be obligated to make
such reimbursement without regard to whether Landlord consents to any
such proposed action.
27.27 BINDING EFFECT. The covenants, conditions, and agreements contained in
this Lease will bind and inure to the benefit of Landlord and Tenant and
their respective heirs, distributees, executors, administrators,
successors, and, except as otherwise provided in this Lease, their
assigns.
27.28 TERMS. The necessary grammatical changes required to make the provisions
hereof apply either to corporations, partnerships, or individuals, men or
women, as the case may be, shall in all cases be assumed as though in
each case fully expressed.
27.29 DEFINITION OF LANDLORD. All indemnities, covenants and agreements of
Tenant contained herein which inure to the benefit of Landlord shall be
construed to also inure to the benefit of Landlord's beneficiaries and
their partners, agents and employees and employees of their agents.
27.30 RIGHTS CUMULATIVE. All rights and remedies of Landlord under this Lease
shall be cumulative and none shall exclude any other rights and remedies
allowed by law.
27.31 CHANGE OF BUILDING NAME. Landlord shall not name the Building after a
competitor of RDD
27.32 FORCE MAJEURE. When a period of time is herein prescribed for any action
to be taken by Landlord, Landlord shall not be liable or responsible for,
and there shall be excluded from the computation for any such period of
time, any delays due to strikes, riots, acts of God, shortages of labor
or materials, war, regulations or restrictions or any other causes of any
kind whatsoever which are beyond the control of Landlord.
27.33 THIRD PARTY BENEFICIARY. It is specifically understood and agreed that no
person shall be a third party beneficiary hereunder, and that none of the
provisions of this Lease shall be for the benefit of or be enforceable by
anyone other than the parties hereto, and that only the parties hereto
and their permitted assignees shall have rights hereunder.
27.34 NO JOINT VENTURE. Landlord and Tenant are not and shall not be deemed to
be, for any purpose, partners or joint venturers with each other.
27.35 REMEDIES. If Tenant believes that Landlord has unreasonably withheld its
consent in any instance in connection with this Lease, Tenant's sole
remedy will be to seek a declaratory judgment that Landlord has
unreasonably withheld its consent or any order of specific performance or
mandatory injunction in
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23
connection with Landlord's agreement to give its consent, and Tenant
shall not be entitled to make xxxxxxx for, and hereby expressly waives,
any claim for damages by reason of Landlord withholding its conxxxxx
27.36 WAIVER OF JURY TRIAL. LANDLORD AND TENANT BY THIS SECTION 27.36 WAIVE
TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY
EITHER OF THE PARTIES TO THIS LEASE AGAINST THE OTHER ON ANY MATTERS
WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE
RELATIONSHIP LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF THE
PREMISES, OR ANY OTHER CLAIMS (EXCEPT CLAIMS FOR PERSONAL INJURY OR
PROPERTY DAMAGE), AND ANY EMERGENCY STATUTORY OR ANY OTHER STATUTORY
REMEDY.
Landlord and Tenant have executed this Lease as of the day and year first above
written.
Tenant: XXXXXX XXXX XXXXXX CORPORATION Landlord: MBL LIFE ASSURANCE CORPORATION
------------------------------ ------------------------------
------------------------------
By: /s/ XXXXXXXX X. XXXX By: [SIGNATURE ILLEGIBLE]
---------------------------------- ------------------------------------
Name: Xxxxxxxx X. Xxxx Name: [ILLEGIBLE]
-------------------------------- ----------------------------------
Title: Vice-President, Secretary Title: VP
------------------------------- ---------------------------------
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THE PREMISES
[DIAGRAM]
XXXXX XXXXX XXXX
XXXXXXX XXXXXX XXXXXXXX 0
X-0
[DIAGRAM]
SECOND FLOOR PLAN
NEWPORT OFFICE BUILDING 6
A-5
25
EXHIBIT B
LEGAL DESCRIPTION OF THE LAND
Tract 1-A-2, a replat of Xxxxx 0-X, Xxxxxxx Xxxxxxxxxx Xxxx Xxxx, Xxxx 0,
containing 1.6747 acres M/L
26
WORKLETTER
This Workletter is dated September 6, 1995, between MBL Life Assurance
Corporation ("Landlord") and Xxxxxx Xxxx Xxxxxx Corporation ("Tenant").
RECITALS
This Workletter is attached to and forms a part of that certain office lease
dated September 29, 1995 ("Lease"), pursuant to which Landlord has leased to
Tenant office space in the Building.
Tenant requests and Landlord agrees to make certain improvements to the
Premises, prior to occupancy, upon the terms and conditions contained in this
Workletter.
1. DEFINITIONS. In this Workletter, some defined terms are used. They are:
(a) TENANT'S REPRESENTATIVE: Xxxx Xxxxxxx
(b) LANDLORD'S REPRESENTATIVE: Xxxxx X. Xxxxx
(c) TENANT'S FINISH ALLOWANCE: Not to exceed $10.00 per rentable square
foot (non-cash), which equals $250,500.00 and is to be applied by
Landlord to the cost of the improvements.
(d) PROGRAMMING INFORMATION: Information provided by Tenant, including the
nature of the Tenant's business, manner of operation, number and types
of rooms, special equipment and functional requirements, anticipated
growth, interactions among groups, and any other programming
requirements the Tenant may have.
(e) PROGRAMMING INFORMATION SUBMISSION DATE: September 29, 1995, the date
Tenant will submit to Landlord the Programming Information necessary
for the preparation of the space plan.
(f) FINAL SPACE PLAN: A drawing of the Premises clearly showing the layout
and relationship of all departments and offices, depicting partitions,
door locations, types of electrical/data/telephone outlets, and
delineation of furniture and equipment as approved by Tenant.
(g) ESTIMATED CONSTRUCTION COST: A preliminary estimate of the costs of
the improvements that are depleted on the Final Space Plan, including
all architectural, engineering, contractor, and any other costs as can
be determined from the Final Space Plan.
(h) WORKING DRAWINGS: Construction documents detailing the improvements,
complete in form and content and containing sufficient information and
detail to allow for competitive bidding or negotiated pricing by
contractor(s) selected and engaged by Landlord.
(i) CONSTRUCTION SCHEDULE: A schedule depicting the relative time frames
for various activities related to the construction of the improvements
in the Premises.
(j) TENANT COST PROPOSAL: A final estimate of costs of the improvements
that are depicted on the Working Drawings, including all
architectural, engineering, contractor, and any other costs, and
clearly indicating the dollar amount, if any, that is to be paid by
Tenant pursuant to paragraph 7.
(k) MAXIMUM APPROVED COST: The sum of the Tenant Finish Allowance and any
additional amount that Tenant has agreed to pay for the Improvements
to the Premises.
(l) IMPROVEMENTS: The work is inclusive of the following:
(1) The development of space plans and working drawings, including
supporting engineering studies (i.e., structural design or
analysis, lighting or acoustical evaluations, or other as
determined by Landlord's architect);
(2) All construction work necessary to augment the Base Building,
creating the details and partitioning as shown on the Final Space
Plan. The work will create finished ceilings, walls, and floor
surfaces, as well as complete HVAC, lighting, electrical, and
fire protection systems, including any upgrade of the building's
electrical capacity, if necessary to support Tenant's computer
facility.
The Improvements will NOT include personal property items, such as
decorator items or services, artwork, plants, furniture, equipment, or
other fixtures not permanently affixed to the Premises.
(m) COST OF THE IMPROVEMENTS: The cost includes but is not limited to the
following:
27
(1) All architectural and engineering fees and expenses;
(2) All contractor and construction manager costs and fees:
(3) All permits and taxes;
(n) CHANGE ORDER: Any change, modification, or addition to the Final Space
Plan or Working Drawings after Tenant has approved the same.
(o) BASE BUILDING: Those elements of the core and shell construction that
are completed in preparation for the Improvements to the Premises.
This includes Building structure, envelope, and systems as indicated
on Schedule 1. "Base Building Definition," attached hereto. This
defines the existing conditions to which Improvements are added.
(p) BUILDING STANDARD: Component elements utilized in the design and
construction of the Improvements that have been pre-selected by the
Landlord to ensure uniformity of quality, function, and appearance
throughout the Building. These elements include but are not limited to
ceiling systems, doors, hardware, walls, floor coverings, finishes,
window coverings, light fixtures, and HVAC components. A list of
Building Standard elements is attached hereto as Schedule 2.
(q) Other capitalized terms not defined herein shall have the same meaning
as defined in the Lease.
2. REPRESENTATIVES. Landlord appoints Landlord's Representative to act for
Landlord in all matters associated with this Workletter. Tenant appoints
Tenant's Representative to act for Tenant in all matters associated with
this Workletter. All inquiries, requests, instructions, authorizations, and
other communications with respect to the matters covered by this Workletter
will be made to Landlord's Representative or Tenant's Representative, as
the case may be. Tenant will not make any inquiries of or requests to, and
will not give any instructions or authorizations to, any employee or agent
of Landlord, including, without limitation, Landlord's architect,
engineers, and contractors or any of their agents of employees, with regard
to matters associated with this Workletter. Either party may change its
representative under this Workletter at any time by providing 3 days prior
written notice to the other party.
3. PROJECT DESIGN AND CONSTRUCTION. All work will be performed by designers
and contractors selected and engaged by Landlord, except as set forth in
Addendum to Lease.
4. COST RESPONSIBILITIES.
(a) LANDLORD: Landlord will pay up to the amount of the Tenant Finish
Allowance for the cost of the Improvements.
(b) TENANT: Tenant will pay for:
(1) Tenant-initiated changes to the Final Space Plan or Working Drawings
after Tenant's approval in the amount and to the extent such changes
result in costs exceeding the Tenant finish allowance.
(2) Tenant-initiated Change Orders, modifications, or additions to the
Improvements after Tenant's approval of the Working Drawings; in the
amount and to the extent such changes result in costs exceeding the
Tenant finish allowance.
(3) All costs in excess of the Tenant Finish Allowance that are not
included in (1) or (2) immediately above.
(5) Tenant will not be entitled to any credit for any portion of the
Tenant Finish Allowance which is not used.
Landlord's Approval. Landlord, in its sole discretion, may withhold its
approval of any space plan, Working Drawings, or Change Order that:
(a) Exceeds or adversely affects the structural integrity of the Building,
or any part of the heating, ventilating, air conditioning, plumbing,
mechanical, electrical, communication, or other systems of the
Building;
Page C-2
28
(g) Does not conform to applicable building code or is not approved by any
governmental, quasi-governmental, or utility authority with
jurisdiction over the Premises; or
6. SCHEDULE OF IMPROVEMENT ACTIVITIES.
(a) On or before the Programming Information Submission Date, Tenant will
cooperate with and submit to Landlord the Programming Information
necessary for Landlord's architect to prepare the proposed space plan.
(b) Landlord's architect will expeditiously prepare a space plan and
forward it to Tenant. Tenant will give Landlord written notice whether
or not Tenant approves the proposed space plan within 5 days after its
receipt. If Tenant's notice objects to the proposed space plan, the
notice will set forth how the proposed space plan is inconsistent with
the Programming Information and how the proposed space plan must be
changed in order to overcome Tenant's objections. Landlord will
resubmit a revised space plan to Tenant and it will be treated as
though it was the first proposed space plan prepared pursuant to this
paragraph.
(c) After Tenant approval of the Final Space Plan, Landlord will promptly
cause to be prepared, a preliminary estimate of the cost of the
Improvements as set forth in the final space plan (the "Estimated
Construction Cost"). If the Estimated Construction Cost is less than
the Tenant Finish Allowance, the Estimated Construction Cost will be
deemed approved without a required response from the Tenant. If the
Estimated Construction Cost is more than the Tenant Finish Allowance,
Landlord will so notify Tenant in writing and Tenant will establish
the Maximum Approved Cost by either:
(1) Agreeing in writing to pay the amount by which the Estimated
Construction Cost exceeds the Tenant Finish Allowance; or
(2) Agreeing to have the Final Space Plan revised by Landlord's
architect in order to assure that the Estimated Construction
Cost is either:
(A) No more than the Tenant Finish Allowance; or
(B) Exceeds the Tenant Finish Allowance by an amount which
Tenant agrees to pay pursuant to clause (1) immediately
above.
Tenant shall give immediate attention to establishing the Maximum
Approved Cost by responding to Landlord within 2 business days. Upon
Tenant's timely fulfillment of its obligations in either clause (1)
or clause (2) immediately above, the Maximum Approved Cost will be
established.
(d) Upon establishment of the Maximum Approved Cost, Landlord will cause
to be prepared and delivered to Tenant the Working Drawings, the
Construction Schedule, and the Tenant Cost Proposal for the
improvements in accordance with the Final Space Plan. If the Tenant
Cost Proposal is less than the Maximum Approved Cost, Landlord will
take steps necessary to commence construction of the Improvements to
the Premises.
If the Tenant Cost Proposal is more than the Maximum Approved Cost,
Landlord will so notify Tenant in writing and Tenant will either (1)
agree in writing to pay the amount by which the Tenant Cost Proposal
exceeds the Maximum Approved Cost or (2) request Landlord to revise
the Working Drawings in order to assure that the Tenant Cost Proposal
is no more than the Maximum Approved Cost.
Tenant shall give immediate attention to the cost proposal approval
process and to respond to Landlord within 3 business days.
(e) Following approval of the Working Drawings and the Tenant Cost
Proposal, Landlord will cause application to be made to the
appropriate governmental authorities for necessary approvals and
building permits. Upon receipt of the necessary approvals and
permits, Landlord will begin construction of the Improvements.
Page C-3
29
8. CHANGE ORDERS. Tenant may request changes to the Improvements during
construction only by written instructions to Landlord's Representative on
a form approved by Landlord. All such changes will be subject to
Landlord's prior written approval in accordance with paragraph 5. Prior to
commencing any change, Landlord will prepare and deliver to Tenant, for
Tenant's approval, a Change Order setting forth the total cost of such
change, which will include associated architectural, engineering,
construction contractor's costs and fees, Construction Schedule changes,
and the cost of Landlord's overhead. If Tenant fails to approve such
change order within 5 business days after delivery by Landlord, Tenant
will be deemed to have withdrawn the proposed change and Landlord will not
proceed to perform the change. Upon Landlord's receipt of Tenant's
approval, Landlord will proceed with the change.
9. EARLY ENTRY. Landlord shall permit Tenant and Tenant's employees and
agents to enter the Premises prior to the Commencement Date so that Tenant
may do such other work as may be required to make the Premises ready for
Tenant's use and occupancy. Such entry prior to the Commencement Date
will be upon the condition that Tenant and its employees, agents,
contractors and suppliers shall work in harmony with Landlord and its
employees, agents, contractors and suppliers and will not interfere with
the performance of the work by Landlord or with the work of any other
tenants or occupants in the Building. If at any time such entry shall
cause or threaten to cause such disharmony or interference, Landlord shall
have the right to withdraw such license upon 24 hours written notice to
Tenant. Tenant agrees that any such entry or occupation of the Premises
shall be governed by all of the terms, covenants, conditions and
provisions of the Lease, except the covenant for the payment of Rent, and
further agrees that Landlord shall not be liable in any way for injury,
loss or damage which may occur to any of the Tenant's work or
installations made in such Premises, Building or Project, or to any
personal property placed therein, the same being at Tenant's sole risk.
10. COMPLETION AND COMMENCEMENT DATE. Tenant's obligation for payment of Rent
pursuant to the Lease will commence on the Commencement Date, which shall
be November 15, 1995; however, the Commencement Date and the date for the
payment of Rent may be delayed on a day-by-day basis for each day the
substantial completion of the Improvements* is delayed by Landlord or its
contractors or agents. The payment of Rent will not be delayed by a delay
of substantial completion due to Tenant. The following are some examples
of delays which will not affect the Commencement Date and the date Rent is
to commence under the Lease:
(a) Late submissions of Programming Information;
(b) Change Orders requested by Tenant;
(c) Delays in obtaining non-Building Standard construction materials
requested by Tenant;
(d) Tenant's failure to approve timely any item requiring Tenant's
approval; and
(e) Delays by Tenant according to paragraph 6.
In the event that substantial completion of the Improvements is delayed by
Landlord, its contractors, or agents, the Commencement Date will be the
date of substantial completion of the improvements, subject only to the
completion of Landlord's punch-list items (that is, those items that do
not materially interfere with Tenant's use and enjoyment of the Premises).
Landlord and Tenant will confirm the Commencement Date in accordance with
Section 3.1 of the Lease.
11. CONDITION OF THE PREMISES.
(a) Prior to the Commencement Date, Landlord will arrange to have Tenant
conduct a walk-through inspection of the Premises with Landlord and
prepare a punch-list of items needing additional work by Landlord.
Other than the items specified in the punch-list and "latent defects"
(as defined below), by taking possession of the Premises Tenant will
be deemed to have accepted the Premises in their condition on the date
of delivery of possession and to have acknowledged that Landlord has
installed the Improvements as required by this Workletter and that
there are no items needing additional work or repair. The punch-list
will not include any damage to the Premises caused by Tenant's move-in
or early access, if permitted. Damage caused by Tenant will be
repaired or corrected by Landlord at Tenant's expense. Tenant
acknowledges that neither Landlord nor its agents or employees have
made any representations or warranties as to the suitability or
fitness of the Premises for the conduct of Tenant's business or for
any other purpose, nor has Landlord or its agents or employees agreed
to undertake any alterations or construct any Tenant improvements to
the Premises except as expressly provided in this Lease and this
Workletter. If Tenant fails to submit a punch-list to Landlord within
5 days after the Commencement Date, it will be deemed that there are
no items needing additional work or repair. Landlord's contractor will
complete all reasonable punch-list items within 15 days after the
walk-through inspection or as soon as practicable after such walk-
through.
(b) A "latent defect" is a defect in the condition of the Premises caused
by Landlord's failure to construct the
* As conclusively established by the issuance of a Certificate of Substantial
Completion by Landlord's Architect and delivery of possession to the
Premises.
Page C-4
30
improvements in a good and workmanlike manner and in accordance with
the working drawings, which defect would not ordinarily be observed
during a walk-through inspection. If Tenant notifies Landlord of a
latent defect within one year following the Commencement Date, then
Landlord, at its expense, will repair such latent defect as soon as
practicable. Except as set forth in this paragraph 11, Landlord will
have no obligation or liability to Tenant for latent defects.
12. NO LIABILITY. Preparation of the Final Space Plan and Working Drawings by
or on behalf of Landlord shall create no responsibility or liability on the
part of the Landlord for their completeness, design sufficiency, or
compliance with all laws, ordinances, rules, regulations of governmental
agencies or authorities, or the use and occupancy permit for the Building.
13. ADJUSTMENTS UPON COMPLETION. As soon as practicable, upon completion of the
Improvements in accordance with this Workletter, Landlord will notify
Tenant of the Rentable Area of the Premises, the Rentable Area of the
Building, Monthly Rent, and Tenant's Share, if such information was not
previously determinable by Landlord, Tenant, within 10 days of Landlord's
written request, will execute a certificate confirming such information.
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Page C-5
31
EXHIBIT D
RULES AND REGULATIONS
1. Landlord may from time to time adopt appropriate systems and
procedures for the security or safety of the Building, any persons occupying,
using, or entering the Building, or any equipment, finishings, or contents of
the Building, and Tenant will comply with Landlord's reasonable requirements
relative to such systems and procedures.
2. The sidewalks, halls, passages, exits, entrances, elevators, and
stairways of the Building will not be obstructed by any tenants or used by any
of them for any purpose other than for ingress to and egress from their
respective Premises. The halls, passages, exits, entrances, elevators,
escalators, and stairways are not for the general public, and Landlord will in
all cases retain the right to control and prevent access to such halls,
passages, exits, entrances, elevators, and stairways of all persons whose
presence in the judgment of Landlord would be prejudicial to the safety,
character, reputation, and interests of the Building and its tenants, provided
that nothing contained in these rules and regulations will be construed to
prevent such access to persons with whom any tenant normally deals in the
ordinary course of its business, unless such persons are engaged in illegal
activities. No tenant and no employee or agent of any tenant will go upon the
roof of the Building except to install, service and maintain such equipment,
systems and signs as Landlord shall allow Tenant to have on the roof, including
but not limited to Tenant's computer, air conditioning and satellite dishes.
3. No sign, placard, picture, name, advertisement, or written notice
visible from the exterior of Tenant's Premises will be inscribed, painted,
affixed, or otherwise displayed by Tenant on any part of the Building or the
Premises without the prior written consent of Landlord. Landlord will adopt and
furnish to Tenant general guidelines relating to signs inside the Building on
the office floors. Tenant agrees to conform to such guidelines. All approved
signs or lettering on doors will be printed, painted, affixed, or inscribed at
the expense of the Tenant by a person approved by Landlord. Other than
draperies expressly permitted by Landlord and building standard window
treatments, material visible from outside the Building will not be permitted.
In the event of the violation of this rule by Tenant, Landlord may remove the
violating items without any liability, and may charge the expense incurred by
such removal to the tenant or tenants violating this rule.
4. No cooking will be done or permitted by any tenant on the Premises,
except in areas of the Premises which are specially constructed for cooking and
except that use by the tenant of microwave ovens and Underwriters' Laboratory
approved equipment for brewing coffee, tea, hot chocolate, and similar
beverages will be permitted, provided that such use is in accordance with all
applicable federal, state, and city laws, codes, ordinances, rules, and
regulations.
5. No tenant will employ any person or persons other than the cleaning
service of Landlord for the purpose of cleaning the Premises, unless otherwise
agreed to by Landlord in writing. Except with the written consent of Landlord,
no person or persons other than those approved by Landlord will be permitted to
enter the Building for the purpose of cleaning it. No tenant will cause any
unnecessary labor by reason of such tenant's carelessness or indifference in
the preservation of good order and cleanliness. Should Tenant's actions result
in any increased expense for any required cleaning, Landlord reserves the right
to assess Tenant for such expenses.
6. The toilet rooms, toilets, urinals, wash bowls and other plumbing
fixtures will not be used for any purposes other than those for which they were
constructed, and no sweepings, rubbish, rags, or other foreign substances will
be thrown in such plumbing fixtures. All damages resulting from any misuse of
the fixtures will be borne by the tenant who, or whose servants, employees,
agents, visitors, or licensees, caused the same.
7. No tenant, or tenant's invitees or licensees, will in any way deface
any part of the Premises or the Building of which they form a part. In those
portions of the Premises where carpet has been provided directly or indirectly
by Landlord, Tenant will at its own expense install and maintain pads to
protect the carpet under all furniture having casters other than carpet casters.
8. No tenant will alter, change, replace, or rekey any lock or install
a new lock or a knocker on any door of the Premises. Landlord, its agents, or
employees will retain a pass (master) key to all door locks on the Premises.
Any new door locks required by Tenant or any change in keying of existing locks
will be installed or changed by Landlord following tenant's written request to
Landlord and will be at Tenant's expense. All new locks and rekeyed locks will
remain operable by Landlord's pass (master) key. Landlord will furnish each
tenant, free of charge, with two (2) keys to each suite entry door lock on the
Premises. Landlord will have the right to collect a reasonable charge for
additional keys and cards requested by any tenant. Each tenant, upon
termination of its tenancy, will deliver to Landlord all keys and access cards
for the Premises and Building that have been furnished to such tenant.
9. The elevator designated for freight by Landlord will be available
for use by all tenants in the Building during the hours and pursuant to such
procedures as Landlord may determine from time to time. The persons
Page D-1
32
employed to move Tenant's equipment, material, furniture, or other property in
or out of the Building must be acceptable to Landlord. The moving company must
be a locally recognized professional mover, whose primary business is the
performing of relocation services, and must be bonded and fully insured. A
certificate or other verification of such insurance must be received and
approved by Landlord prior to the start of any moving operations. Insurance
must be sufficient, in Landlord's sole opinion, to cover all personal
liability, theft or damage to the Project, including but not limited to floor
coverings, doors, walls, elevators, stairs, foliage, and landscaping. Special
care must be taken to prevent damage to foliage and landscaping during adverse
weather. All moving operations will be conducted at such times and in such a
manner as Landlord will direct, and all moving will take place during
non-Business Hours unless Landlord agrees in writing otherwise. Tenant will be
responsible for the provision of building security during all moving
operations, and will be liable for all losses and damages sustained by any
party as a result of the failure to supply adequate security. Landlord will
have the right to prescribe the weight, size, and position of all equipment,
materials, furniture, or other property brought into the Building. Heavy
objects will, if considered necessary by Landlord, stand on wood strips of such
thickness as is necessary to properly distribute the weight. Landlord will not
be responsible for loss of or damage to any such property from any cause, and
all damage done to the Building by moving or maintaining such property will be
repaired at the expense of Tenant. Landlord reserves the right to inspect all
such property to be brought into the Building and to exclude from the Building
all such property which violates any of these rules and regulations or the
Lease of which these rules and regulations are a part. Supplies, goods,
materials, packages, furniture, and all other items of every kind delivered to
or taken from the Premises will be delivered or removed through the entrance
and route designated by Landlord, and Landlord will not be responsible for the
loss or damage of any such property.
10. No tenant will use or keep in the Premises or the Building any
kerosene, gasoline, or inflammable or combustible or explosive fluid or
material or chemical substance other than limited quantities of such materials
or substances reasonably necessary for the operation or maintenance of office
equipment or limited quantities of cleaning fluids and solvents required in
tenant's normal operations in the Premises, which shall be stored in accordance
with applicable law. Without Landlord's prior written approval, no tenant will
use any method of heating or air conditioning other than that supplied by
Landlord. No tenant will use or keep or permit to be used or kept any foul or
noxious gas or substance in the Premises.
11. Tenants shall not, prior to or during the Term, either directly or
indirectly, employ or permit the employment of any contractor, mover, mechanic
or laborer, or permit any materials in the Premises. If the use of such
contractor, mover, mechanic or laborer, or such materials would, in Landlord's
opinion, create any difficulty, strike or jurisdictional dispute with other
contractors, movers, mechanics or laborers engaged by Landlord, tenants, or
others, or would in any way disturb the construction, maintenance, cleaning,
repair, management, security or operation of the Building, Project or any part
thereof. Any tenant, upon demand by Landlord, shall cause all contractors,
movers, mechanics, laborers or materials causing such interference, difficulty
or conflict to leave or be removed from the Project immediately.
12. Landlord will have the right to prohibit any advertising by Tenant
mentioning the Building that, in Landlord's reasonable opinion, tends to impair
the reputation of the Building or its desirability as a building for offices,
and upon written notice from Landlord, tenant will refrain from or discontinue
such advertising.
13. Tenant will not bring any animals (except "Seeing Eye" dogs) or
birds into the Building, and will not permit bicycles or other vehicles inside
or on the sidewalks outside the Building except in areas designated from time
to time by Landlord for such purposes.
14. All persons entering or leaving the Building between the hours of 6
p.m. and 7 a.m. Monday through Friday, and at all hours on Saturdays, Sundays,
and holidays will comply with such off-hour regulations as Landlord may
establish and modify from time to time. Landlord reserves the right to limit
reasonably or restrict access to the Building during such time periods.
15. Each tenant will store all its trash and garbage within its Premises.
No material will be placed in the trash boxes or receptacles if such material
is of such nature that it may not be disposed of in the ordinary and customary
manner of removing and disposing of trash and garbage without being in
violation of any law or ordinance governing such disposal. All garbage and
refuse disposal will be made only through entryways and elevators provided for
such purposes and at such times as Landlord designates. Removal of any
furniture or furnishings, large equipment, packing crates, packing materials,
and boxes will be the responsibility of each tenant and such items may not be
disposed of in the Building trash receptacles nor will they be removed by the
Building's janitorial service, except at Landlord's sole option and at the
tenant's expense. No furniture, appliances, equipment, or flammable products of
any type may be disposed of in the Building trash receptacles.
16. Canvassing, peddling, soliciting, and distributing handbills or any
other written materials in the Building are prohibited, and each tenant will
cooperate to prevent the same.
17. The requirements of the tenants will be attended to only upon
application by written, personal, or telephone notice at the office of the
Building. Employees of Landlord or Landlord's agent will not perform any work
or do anything outside of their regular duties unless under special
instructions from Landlord.
Page X-0
00
00. A directory of the Building will be provided for the display of the
name and location of tenants only. All entries on the Building directory
display will conform to standards and style set by Landlord in its sole
discretion.
19. Tenant will see that the doors of the Premises are closed and locked
and that all water faucets, water apparatus, and utilities are shut off before
Tenant or Tenant's employees leave the Premises, so as to prevent waste or
damage, and for any failure to comply or carelessness in this regard Tenant
will make good all injuries sustained by other tenants or occupants of the
Building or Landlord. On multiple-tenancy floors, all tenants will keep the
doors to the Building corridors closed at all times except for ingress and
egress.
20. Tenant will not conduct itself in any manner that is inconsistent
with the character of the Building as a first quality building or that will
impair the comfort and convenience of other tenants in the Building.
21. Tenant (including tenant's employees, agents, invitees, and visitors)
will use the parking spaces solely for the purpose of parking passenger model
cars, small vans, and small trucks and will comply in all respects with any
rules and regulations that may be promulgated by Landlord from time to time
with respect to the parking areas. The parking areas will not be used by
Tenant, its agents, or employees, for overnight parking of vehicles, except
with Landlord's prior consent. Tenant will ensure that any vehicle parked in
any of the parking spaces will be kept in proper repair and will not leak oil,
grease, gasoline, or any other fluids. If any of the parking spaces are at any
time used (a) for any purpose other than parking as provided above; (b) in any
way or manner reasonably objectionable to Landlord; or (c) by Tenant after
default by Tenant under the Lease. Landlord, in addition to any other rights
otherwise available to Landlord, may consider such default an event of default
under the Lease.
22. No act or thing done or omitted to be done by Landlord or Landlord's
agent during the term of the Lease in connection with the enforcement of these
rules and regulations will constitute an eviction by Landlord of any tenant nor
will it be deemed an acceptance of surrender of the Premises by any tenant, and
no agreement to accept such termination or surrender will be valid unless in a
writing signed by Landlord. The delivery of keys to any employee or agent of
Landlord will not operate as a termination of the Lease or a surrender of the
Premises unless such delivery of keys is done in connection with a written
instrument executed by Landlord approving the termination or surrender.
23. In these rules and regulations, the term "tenant" includes the
employees, agents, invitees, and licensees of Tenant and others permitted by
Tenant to use or occupy the Premises.
24. Landlord may waive any one or more of these rules and regulations
for the benefit of any particular tenant or tenants, but no such waiver by
Landlord will be construed as a waiver of such rules and regulations in favor
of any other tenant or tenants, nor prevent Landlord from enforcing any such
rules and regulations against any or all of the tenants of the Building after
such waiver.
25. These rules and regulations are in addition to, and will not be
construed to modify or amend, in whole or in part, the terms, covenants,
agreements, and conditions of the Lease.
Page D-3
34
COMMENCEMENT DATE AND ESTOPPEL CERTIFICATE
This Commencement Date and Estoppel Certificate is entered into by Landlord and
Tenant pursuant to Section 3.1 of Lease.
1. DEFINITIONS. In this certificate the following terms have the meanings
given to them:
(a) Landlord: MBL Life Assurance Corporation
(b) Tenant: _____________________________________________________________
(c) Lease: Office lease dated ______________ between Landlord and Tenant.
(d) Premises: Suite ______.
(e) Building Address: _____________________________________
_____________________________________
_____________________________________
_____________________________________
2. Landlord and Tenant confirm that the Commencement Date of the Lease is
________________ and the Expiration Date is ______________________ and
that Sections 1.1(k) and (i) are accordingly amended.
3. The Rentable Area of the Premises is _______________ square feet.
4. The Rentable Area of the Building is _______________ square feet.
5. Tenant's Shares is _____________ percent.
6. Tenant has accepted possession of the Premises as provided in the Lease.
7. The improvements required to be furnished by the Landlord in accordance
with the Workletter (if any) have been furnished to the satisfaction of
Tenant (subject to any corrective work or punch-list items submitted
previously to Landlord).
8. All terms and conditions to be performed by Landlord under the Lease have
been satisfied and on this date there are no existing defenses or offsets
which Tenant has against the full enforcement of the Lease by Landlord.
9. The Lease is in full force and effect and has not been modified, altered,
or amended, except as follows:
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
10. There are no setoffs or credits against Rent, and no Security Deposit or
prepaid Rent has been paid except as provided by the Lease.
Landlord and Tenant have executed this Commencement Date and Estoppel
Certificate as of the dates set forth below.
Tenant: ___________________________ Landlord: MBL LIFE ASSURANCE CORPORATION
By: ___________________________ By: _________________________________
Name: ___________________________ Name: _________________________________
Title: ___________________________ Title: _________________________________
Date: ___________________________ Date: _________________________________
35
EXHIBIT H
OPTION TO EXTEND
Tenant may extend this Lease for a period of twelve (12) months (the "Extension
Term" beginning the day after the Lease Expiration Date, upon the same terms
and conditions of the Lease, except that:
1. the Term is modified to include the Extension Term;
2. The Monthly Rent for the Extension Term shall be $26,093.75;
3. the Option to Extend shall be deleted and shall not be available to
Tenant at the end of the Extension Term.
To exercise this Option to Extend, Tenant must:
1. Not be in default of the Lease; and
2. given notice to Landlord that Tenant is exercising its Option to
Extend at least 180 days, but not more than 240 days before the Lease
Expiration Date (Tenant's Notice to Extend Term;
3. provide such financial reports and statements evidencing to the
Landlord's satisfaction the Tenant's ability to meet its obligations
during the Extension Term;
4. execute the extension agreement to be provided by Landlord and return
it to Landlord within 10 days of receipt.
Failure of Tenant to observe or comply with terms of this Option to Extend
shall render the option null and void. Landlord shall not be required to extend
the Term of this Lease if, in its reasonable judgment, Tenant's financial
condition may impair its ability to meet its obligations during the Extended
Term. This option is personal to the Tenant named herein and shall be void upon
any transfer as per Article 9 of this Lease.
36
ADDENDUM
TENANT IMPROVEMENTS: During the period or thereafter Landlord is completing
the Landlord improvements, below, Tenant has Landlord's
permission to install its telephone system, to complete
its computer room, including but not limited to,
adding an additional air conditioning system and
back-up generator to serve the computer room and to
install a satellite dish on the roof. All or part of
the costs for such improvements/installations shall be
paid out of the Tenant Finish Allowance, if said Tenant
Finish Allowance is sufficient to cover the same;
otherwise they will be at Tenant's cost.
LANDLORD IMPROVEMENTS: (a) Landlord will clean windows of mineral buildup
from landscape irrigation system;
(b) Landlord will install code/card building access
system;
(c) Landlord will remodel/improve restrooms on the
first floor of the building to comply with the
Americans with Disabilities Act.
Items a, b, c, shall be paid for solely by Landlord,
in addition to Tenant Finish Allowance.
SIGNAGE: Tenant shall be permitted to mount signs on two
elevations of the building, at Tenant's expense. Sign
design shall be submitted for Landlord's approval,
which shall not be unreasonably withheld, and shall
comply with City of Albuquerque zoning code.
37
EXHIBIT E
COMMENCEMENT DATE AND ESTOPPEL CERTIFICATE
This Commencement Date and Estoppel Certificate is entered into by Landlord and
Tenant pursuant to Section 3.1 of the Lease.
1. DEFINITIONS. In this certificate the following terms have meanings
given to them:
(a) Landlord; MBL Life Assurance Corporation
(b) Tenant: Xxxxxx Xxxx Xxxxxx Corporation
(c) Lease: Office lease dated September 29, 1995 between Landlord
and Tenant.
(d) Premises: entire building
(e) Building Address: 0000 Xxxxxx Xxxxx XX
Xxxxxxxxxxx, XX 00000
2. Landlord and Tenant confirm that the Commencement Date of the Lease is
February 1, 1996 and the Expiration Date is January 31, 2000 and that
Sections 1.1(k) and (i) are accordingly amended.
3. The Rentable Area of the Premises is 25,050 square feet.
4. The Rentable Area of the Building is 25,050 square feet.
5. Tenant's Share is 100 percent.
6. Tenant has accepted possession of the Premises as provided in the
Lease.
7. The Improvements required to be furnished by the Landlord in
accordance with the Workletter (if any) have been furnished to the
satisfaction of Tenant (subject to any corrective work or punch-list
items submitted previously to Landlord).
8. All terms and conditions to be performed by Landlord under the Lease
have been satisfied and on this date there are no existing defenses
or offsets which Tenant has against the full enforcement of the Lease
by Landlord.
9. The Lease is in full force and effect and has not been modified,
altered, or amended, except as follows:
----------------------------------------------------------------------
----------------------------------------------------------------------
10. There are no setoffs or credits against Rent, and no Security Deposit
or prepaid Rent has been paid except as provided by the Lease.
Landlord and Tenant have executed this Commencement Date and Estoppel
Certificate as of the dates set forth below.
Tenant: Xxxxxx Xxxx Xxxxxx Corporation Landlord: MBL Life Assurance
Corporation
--------------------------------
By: /s/ Xxxxxxx X. Xxxxxx By: ------------------------------
--------------------------------
Name: Xxxxxxx X. Xxxxxx Name: -----------------------------
--------------------------------
Title: President Title: ----------------------------
--------------------------------
Date: -------------------------------- Date: ----------------------------
