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EXHIBIT 10.5
OFFICE/SERVICE CENTER LEASE
BETWEEN
GREAT LAKES REIT, L.P., LANDLORD
AND
SUPERHIGHWAY CONSULTING, INC., TENANT
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TABLE OF CONTENTS
ARTICLE 1 - BASIC TERMS......................................................................5
1.01 Basic Terms:.........................................................................5
1.02 Effect of Reference to Basic Terms:..................................................6
ARTICLE 2 - QUIET ENJOYMENT..................................................................6
2.01 Quiet Enjoyment......................................................................6
ARTICLE 3 - GRANT, DELIVERY AND TERM.........................................................7
3.01 Grant of Premises....................................................................7
3.02 Conditions of Grant..................................................................7
3.03 Delivery and Acceptance of Premises..................................................7
3.04 Delay of Possession..................................................................7
3.05 Substitute Premises..................................................................7
ARTICLE 4 - SURRENDER AND HOLDING OVER.......................................................8
4.01 Surrender............................................................................8
4.02 Holdover.............................................................................9
ARTICLE 5 - SECURITY DEPOSIT.................................................................9
5.01 Security Deposit.....................................................................9
ARTICLE 6 - RENT............................................................................10
6.01 Base Rent...........................................................................10
6.02 Additional Rent.....................................................................10
6.03 Basic Costs.........................................................................10
6.04 Taxes...............................................................................11
6.05 Insurance Premiums..................................................................11
6.06 Operating Expenses..................................................................11
6.07 Estimates of Expenses during Vacancy and Services to Part of Building...............12
6.08 Estimates of Additional Rent........................................................12
6.09 Audit of Additional Rent............................................................13
6.10 Service Charge......................................................................13
ARTICLE 7 - UTILITY SERVICES................................................................13
7.01 Water Service.......................................................................13
7.02 Electricity/Phone Service...........................................................14
7.03 Utility Payments....................................................................14
7.04 Service Interruption................................................................14
ARTICLE 8 - USE, MAINTENANCE AND COMPLIANCE WITH LAWS.......................................14
8.01 General Use.........................................................................14
8.02 Maintenance and Repair by Tenant....................................................15
8.03 Compliance with Laws................................................................16
8.04 Signs...............................................................................16
8.05 Hazardous Materials.................................................................16
ARTICLE 9 - COMMON AREAS....................................................................17
9.01 Definition..........................................................................17
9.02 Outside Storage and Parking.........................................................17
ARTICLE 10 - TENANT'S FIXTURES, ALTERATIONS, AND LIENS......................................17
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10.01 Tenant's Fixtures..................................................................17
10.02 Leasehold Improvements.............................................................17
10.03 Mechanics' Liens...................................................................18
ARTICLE 11 - SERVICE AND MAINTENANCE BY LANDLORD AND RESERVATIONS...........................19
11.01 Specific Reservations..............................................................19
11.02 Building Alterations By Landlord...................................................19
11.03 Maintenance and Repair by Landlord.................................................19
11.04 Additional Services................................................................20
ARTICLE 12 - LANDLORD'S RIGHTS..............................................................21
12.01 Rights Reserved....................................................................21
ARTICLE 13 - LANDLORD'S INABILITY TO PERFORM................................................22
13.01 Landlord's Inability to Perform....................................................22
13.02 Limit of Landlord's Liability......................................................22
ARTICLE 14 - INSURANCE/INDEMNIFICATION......................................................22
14.01 Tenant's Insurance.................................................................22
14.02 Landlord's Approval................................................................23
14.03 Building Insurance Coverage........................................................23
14.04 Landlord's Liability/Property Damage or Loss.......................................24
14.05 Indemnification of Landlord/Third Party Claims.....................................24
14.06 Waiver of Subrogation..............................................................24
ARTICLE 15 - DAMAGE OR DESTRUCTION..........................................................25
15.01 Reconstruction Following Damage....................................................25
15.02 Excessive Damage...................................................................25
15.03 Damage or Destruction at End of Term...............................................25
15.04 Rent Abatement.....................................................................25
ARTICLE 16 - ASSIGNMENT AND SUBLETTING......................................................26
16.01 Assignment and Subletting Generally................................................26
16.02 Sale of Interest in Tenant.........................................................28
16.03 Mergers, Consolidations and Tenant Affiliates......................................29
ARTICLE 17 - ASSIGNMENT BY LANDLORD.........................................................29
17.01 Assignment by Landlord.............................................................29
ARTICLE 18 - MORTGAGE AND TRANSFER..........................................................29
18.01 Right to Transfer..................................................................29
18.02 Estoppel Letter....................................................................31
18.03 Delivery of Transfer Documents.....................................................31
ARTICLE 19 - EMINENT DOMAIN.................................................................31
19.01 Eminent Domain.....................................................................31
ARTICLE 20 - DEFAULT AND REMEDIES...........................................................32
20.01 Default Generally..................................................................32
20.02 Landlord's Remedies................................................................33
20.03 Damages............................................................................34
20.04 No Reinstatement...................................................................36
20.05 Waiver.............................................................................36
ARTICLE 21 - MISCELLANEOUS..................................................................36
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21.01 No Option..........................................................................36
21.02 Brokers............................................................................36
21.03 Accord and Satisfaction............................................................36
21.04 Financial Statements...............................................................37
21.05 Notice.............................................................................37
21.06 Exhibits...........................................................................37
21.07 Survival...........................................................................37
21.08 Tenant's Authority.................................................................37
21.09 Persons Bound......................................................................37
21.10 Partial Invalidity.................................................................37
21.11 Captions...........................................................................38
21.12 Applicable Law.....................................................................38
21.13 Rights Cumulative..................................................................38
21.14 Entire Agreement...................................................................38
21.15 Waiver of Jury.....................................................................38
ARTICLE 22 - OPTION TO TERMINATE............................................................38
ARTICLE 23 - OPTION TO RENEW................................................................39
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OFFICE/SERVICE CENTER LEASE
THIS LEASE is made as of the 12th day of May, 1998, by and between Great
Lakes REIT, L.P., a Delaware limited partnership, hereinafter called "Landlord"
and Superhighway Consulting, Inc., an Illinois corporation, hereinafter called
"Tenant", together hereinafter called the "Parties".
ARTICLE 1 - BASIC TERMS
1.01. Basic Terms:
A. Landlord's Address for Notices: Great Lakes REIT, Inc.
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Landlord's Address For Great Lakes REIT, Inc.
Rent Payments: Department 77-6085
Xxxxxxx, Xxxxxxxx 00000-0000
B. Tenant's Address for Notices: Superhighway Consulting, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxxx Xxxxx, Xxxxxxxx
C. Building: The land and improvements commonly known
as 000 Xxxxxxxx Xxxxxxx, Xxxxxx Xxxxx,
Xxxxxxxx, together with any parking areas,
walkways, landscaped areas and other
improvements appurtenant thereto.
D. Premises: Those certain premises in the Building as
shown on Exhibit A attached hereto and
known as Suite 135.
E. Schedule of Base Rent:
Period Annual Base Rent Monthly Base Rent
------ ---------------- -----------------
10/1/98 - 9/30/99 $102,084.00 $8,507.00
10/1/99 - 9/30/00 $105,146.52 $8,762.21
10/1/01 - 9/30/01 $108,300.91 $9,025.08
10/1/01 - 9/30/02 $111,549.93 $9,295.83
10/1/02 - 9/30/03 $114,896.42 $9,574.70
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F. Rentable Area of the Building: 84,804 Square Feet
G. Rentable Area of the Premises: 8,688 Square Feet
H. Tenant's Proportionate Share: Ten and 24/100 percent (10.24%) (The percentage
calculated by dividing the Rentable Area of the
Premises by the Rentable Area of the Building).
I. Target Commencement Date: October 1, 1998
J. Lease Term: The period of time commencing on the
Commencement Date and expiring sixty (60)
months after the Commencement Date (except
that if the expiration date would not be
the last day of a calendar month the term
shall extend until the last day of the
calendar month with Rent payable for the
balance of such month at the rate for the
last monthly period during the term),
unless sooner terminated or extended as
may be herein provided.
K. Security Deposit: $50,000.00 (subject to adjustment as
provided in Article 5)
L. Permitted Uses: General office purposes
M. Brokers: The Xxxx Xxxx Company and CB Commercial
Real Estate Group, Inc.
N. Exhibits: A. Plan of Premises
B. Rules and Regulations
C. Construction Rider
D. Confirmation of Commencement Date
1.02 Effect of Reference to Basic Terms: Each reference in this Lease to any of
the Basic Terms contained in Paragraph 1.01 shall be construed to incorporate
into such reference the definition thereof as set forth in Paragraph 1.01.
ARTICLE 2 - QUIET ENJOYMENT
2.01 Quiet Enjoyment Landlord covenants that Tenant, on paying the Rent herein
provided and keeping, performing and observing each and every term, covenant,
and condition herein required of Tenant, shall peaceably and quietly hold and
enjoy the Premises without hindrance or molestation by Landlord for the Lease
Term, subject to the terms of this Lease and
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any encumbrances, easements, rights, covenants, conditions and restrictions of
record existing as of the date of this Lease or placed on the Building
hereafter.
ARTICLE 3 - GRANT, DELIVERY AND TERM
3.01 Grant of Premises In consideration of the rents, terms, covenants, and
conditions hereinafter provided to be paid, kept, performed and observed,
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the
Premises.
3.02 Conditions of Grant Tenant shall have and hold the Premises for and during
the Lease Term, subject to the payment of the Rent and to the full and timely
performance by Tenant of all of the covenants and conditions hereinafter set
forth.
3.03 Delivery and Acceptance of Premises Landlord shall make a good faith effort
to make the Premises Ready for Occupancy ("Ready for Occupancy" having the
meaning as defined in Exhibit C, Construction Rider) by the Target Commencement
Date. However the actual commencement date shall be the "Commencement Date"
defined in Exhibit C. Promptly following the Commencement Date, Tenant shall
execute and deliver to Landlord a confirmation of the Commencement Date on the
form attached hereto as Exhibit D. No promise of Landlord to alter, remodel,
decorate, clean or improve the Premises or the Building and no representation
respecting the condition of the Premises or the Building has been made by
Landlord to Tenant, unless the same is contained herein or in the Construction
Rider. Tenant's taking possession of the Premises or any part thereof shall be
conclusive evidence against Tenant that the portion of the Premises taken
possession of was then in good order and satisfactory condition, except for
punch list items as provided in Exhibit C.
3.04 Delay of Possession If Landlord fails to give possession of the Premises on
the Target Commencement Date for any reason, Landlord shall not be subject to
any liability whatsoever for such failure. Under such circumstances, neither the
Lease Term nor Tenant's obligation to pay Rent shall commence until the
Commencement Date. If such a delay is caused by a Tenant Delay (as defined in
Exhibit C), then Tenant's obligation to pay Rent shall commence on the date that
the Premises would have been Ready for Occupancy but for such Tenant Delay. No
failure to give possession on the Target Commencement Date shall affect or
impair the validity of this Lease or the obligations of Tenant, except as set
forth above in this Paragraph 3.04. Tenant agrees to accept the suspension or
abatement of Rent noted above in full settlement of all claims which Tenant
might otherwise have due to such delay.
Notwithstanding the above, if Landlord is unable to deliver possession
of the Premises within ninety (90) days after the Target Commencement Date,
Tenant shall have the option, as its sole remedy, to terminate this Lease within
ten (10) days thereafter and receive a return of all monies, deposits and other
advances previously paid to Landlord, unless said delay is as a result of Tenant
Delays as defined in Exhibit C.
3.05 Substitute Premises At any time hereafter, Landlord may substitute for the
Premises other premises (herein referred to as the "New Premises") provided:
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A. The New Premises shall be located in the Building, be similar to the
Premises in area and have a separate entrance similar to the Premises;
B. Landlord shall pay the reasonable out-of-pocket expenses of Tenant
for moving from the Premises to the New Premises, for improving the New
Premises so that they are substantially similar to the Premises, and for
the relocation of Tenant's office equipment including, but not limited
to, telephone and computer systems; provided, however, instead of paying
the expenses of moving Tenant's property, Landlord may elect to move
Tenant's property under the reasonable direction of Tenant;
C. Such move shall be made during evenings, weekends, or otherwise so as
to incur the least inconvenience to Tenant as reasonably possible;
D. Landlord shall give Tenant at least thirty (30) days notice before
making such a substitution. The substitution date may be changed from
time to time thereafter upon at least seven (7) days further notice by
Landlord. On the date specified in such notice, Tenant shall vacate the
Premises as if the Lease Term expired on such date and comply with the
requirements of this Lease imposed on Tenant upon the expiration of the
Lease. If Landlord shall exercise its right hereunder, the New Premises
shall thereafter be deemed for the purposes of the Lease to be the
Premises; and
E. Tenant shall not be entitled to any compensation for any
inconvenience or interference with Tenant's business, nor to any
abatement or reduction in Rent, nor shall Tenant's obligations under
this Lease be otherwise affected as a result of the substitution.
However, Base Rent and Additional Rent shall be adjusted on a per square
foot basis to reflect any decrease in rentable square footage of the New
Premises as compared to the Premises (but Tenant shall not be required
to pay more if the New Premises are larger). Such adjustment shall be
set forth in writing by Landlord and considered an amendment to this
Lease. Tenant agrees to cooperate with Landlord so as to facilitate the
prompt completion by Landlord of its obligations under this Paragraph
3.05. Without limiting the generality of the preceding sentence, Tenant
agrees to promptly provide to Landlord such approvals, instructions,
plans, specifications or other information as may be reasonably
requested by Landlord.
ARTICLE 4 - SURRENDER AND HOLDING OVER
4.01 Surrender Upon the expiration of the Lease Term or upon the termination of
Tenant's right of possession, whether by lapse of time or at the option of
Landlord as herein provided, Tenant shall promptly surrender the Premises to
Landlord in good order, repair and condition, ordinary wear and casualty damage
excepted. Prior thereto, Tenant shall remove its office furniture, trade
fixtures, office equipment and all other items of personal property on the
Premises not belonging to Landlord. Tenant shall pay to Landlord upon demand the
actual cost of repairing any damage to the Premises and the Building caused by
such removal. If Tenant shall fail or refuse to remove any such property from
the Premises, Tenant shall be conclusively presumed to have abandoned the same,
and title thereto shall thereupon pass to Landlord without
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any cost by set-off, credit, allowance or otherwise, and Landlord may at its
option, accept the title to such property, and, whether or not Landlord accepts
such title, Landlord may at Tenant's expense: (i) remove the same or any part in
any manner that Landlord shall choose, repairing any damage to the Premises
caused by such removal; and (ii) store or otherwise dispose of the same without
incurring liability to Tenant or any other person. If Landlord incurs any
storage or other costs by reason of Tenant's failure to remove any property
which Tenant is obligated to remove under this paragraph, Tenant upon demand
shall pay to Landlord the actual amount of costs so incurred.
4.02 Holdover If Tenant shall not immediately surrender the Premises on the
expiration of the Lease Term or the earlier termination of the Lease as provided
herein, Tenant shall be deemed a tenant only by the month at one hundred fifty
percent (150%) of the Rent in effect during the last month of the Lease Term for
each month or part thereof during which Tenant shall retain possession of the
Premises or any part thereof thereafter. In addition, Tenant shall also pay all
damages, consequential and direct, if any, incurred by Landlord on account of
such holding over. Nevertheless, neither the provisions of this paragraph, the
acceptance of any Rent, nor any other act in apparent affirmance of tenancy
(other than a written waiver) shall be held as a waiver by Landlord of any right
of re-entry or any other rights or remedies of Landlord provided herein or at
law or equity.
ARTICLE 5 - SECURITY DEPOSIT
5.01 Security Deposit Tenant shall deposit the Security Deposit in the form of
cash or a letter of credit with Landlord upon the execution of this Lease. Said
sum shall be held by Landlord as security for the faithful performance by Tenant
of all the terms, covenants and conditions of this Lease to be kept and
performed by Tenant and not as an advance rental deposit or as a measure of
Landlord's damage in case of Tenant's default. If Tenant defaults with respect
to any provision of this Lease, Landlord may use any part of the Security
Deposit (or draw such amount under the letter of credit) for the payment of any
rent or any other sum in default, or for the payment of any amount which
Landlord may spend or become obligated to spend by reason of Tenant's default,
or to compensate Landlord for any other loss or damage which Landlord may suffer
by reason of Tenant's default. If any portion is so used, Tenant shall within
five (5) days after written demand therefor, deposit with Landlord an amount
sufficient to restore the Security Deposit to its original amount (or restore
the balance of the letter of credit) and Tenant's failure to do so shall be a
material breach of this Lease. Except to such extent, if any, as shall be
required by law, Landlord shall not be required to keep the Security Deposit
separate from its general funds, and Tenant shall not be entitled to interest on
such deposit. If Tenant shall fully and faithfully perform every provision of
this Lease to be performed by it, the Security Deposit or any balance thereof
shall be returned to Tenant at such time after termination of this Lease when
Landlord shall have determined that all of Tenant's obligations under this Lease
have been fulfilled.
Any letter of credit shall be issued by a bank reasonably acceptable to
Landlord, shall be drawable by Landlord solely upon presentation of a statement
from Landlord that the amount drawn is due and payable under the Lease, shall
allow for partial draws, and shall otherwise be in
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form and substance reasonably acceptable to Landlord. The letter of credit shall
have an expiry date not earlier than one month after the Termination Date of the
Lease or shall be replaced by Tenant not less than thirty (30) days prior to its
expiry date with another letter having an expiry date at least one year later
(except that any initial letter of credit shall have a term expiring not earlier
than thirteen months after the Commencement Date). If Tenant fails to replace an
expiring letter of credit or restore the letter of credit to its full amount
following a draw by Landlord, Landlord may draw the full amount of the letter of
credit and treat such amount as a cash Security Deposit. In the event of a
transfer of Landlord's interest in the Lease, Tenant will promptly deposit a
replacement letter of credit drawable by Landlord's successor and if Tenant
shall fail to do so within ten (10) days of Landlord's request, Landlord may
draw the full amount of the letter of credit and treat such amount as a cash
Security Deposit.
Notwithstanding the above, if Tenant shall fully and faithfully perform
every provision of this Lease to be performed by it as of the third anniversary
of the Commencement Date, the Security Deposit shall be returned to Tenant.
ARTICLE 6 - RENT
6.01 Base Rent Tenant covenants to pay to Landlord, without notice, deduction,
set-off or abatement, the Base Rent in lawful money of the United States in
consecutive monthly installments in advance commencing on the Commencement Date
and thereafter on the first day of each month during the Lease Term. Base Rent,
Additional Rent defined below, and all other amounts due from Tenant under this
Lease shall collectively be referred to as "Rent". Rent shall be payable to
Landlord at Landlord's address shown at Paragraph 1.01 or such other place as
Landlord may designate from time to time in writing. Anything to the contrary
contained in this Lease notwithstanding, if the Commencement Date is other than
the first day of a calendar month, the Base Rent and Additional Rent for such
month shall be prorated on a per diem basis and the prorated Rent for such
month, as well as the first full calendar month's Rent, shall be paid on the
first day of the first full calendar month of the Lease Term. The obligation to
pay Rent hereunder, is independent of each and every other term, covenant, and
condition contained in this Lease.
6.02 Additional Rent Tenant shall pay as Additional Rent Tenant's Proportionate
Share of each component of Basic Costs incurred in each calendar year. Tenant
covenants to pay to Landlord, without notice, deduction, set-off or abatement,
the Additional Rent in lawful money of the United States. Except as otherwise
noted herein, Tenant shall pay Landlord the Additional Rent in the same manner
as Base Rent, on the first day of each calendar month during the Lease Term.
Tenant's obligation to pay Additional Rent shall survive the expiration or
termination of the Lease Term.
6.03 Basic Costs "Basic Costs" shall mean Taxes and Operating Expenses,
determined in accordance with generally accepted accounting principles
consistently applied unless otherwise noted herein.
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6.04 Taxes "Taxes" shall mean the following described taxes or assessments
payable during a calendar year, whether imposed, levied, or assessed pursuant to
provisions now or at anytime hereafter in effect, and regardless of the period
of time for or to which such Taxes apply: (i) all taxes, assessments, and
charges, general or special, imposed, levied, or assessed with respect to the
Building, exclusive of interest and penalties; (ii) ad valorem taxes assessed or
imposed upon personal property owned by Landlord or its agents and used in the
management, operation, maintenance or repair of the Building; (iii) transit
taxes; (iv) occupational taxes or excise taxes levied on rentals derived from
the operation of the Building or the privilege of leasing property; (v) all
taxes, assessments, or charges of any kind imposed, levied, or assessed on
account of Rent hereunder or of Landlord's interest under this Lease; (vi) any
taxes which shall be levied to supplement, in addition to or in lieu of any item
described in (i), (ii), (iii), (iv), or (v) above; and (vii) the expense of
protesting, negotiating or contesting the amount or validity of any such taxes,
charges or assessments, including, but not limited to, reasonable attorney's
fees, whether or not any reduction or limitation is obtained. Taxes shall not
include any federal or state net income tax or franchise taxes payable by
Landlord.
6.05 Insurance Premiums "Insurance Premiums" shall mean the premium for
Landlord's insurance coverage described in Article 14.
6.06 Operating Expenses "Operating Expenses" shall mean and include those costs
and expenses paid or incurred by or on behalf of Landlord in owning, managing,
maintaining, operating and repairing the Building and the personal property used
in conjunction therewith, including, but not limited to, (i) the cost of
security and security devices and systems; snow and ice and trash removal,
cleaning and sweeping; maintenance, repair and replacement of utility systems,
electricity, water, sewers, lighting, and window cleaning; (ii) the cost of
painting, uniforms, management fees, supplies, sundries and sales or use taxes
on supplies or services; (iii) the cost of planting and replacing decorations,
flowers and landscaping; (iv) the cost of wages and salaries of all persons (at
the level or building manager or below) engaged in the operation, management,
maintenance and repair of the Building, and so-called fringe benefits
(including, but not limited to, social security taxes, unemployment insurance
taxes, cost for providing coverage for disability benefits, cost of any
pensions, hospitalization welfare or retirement plans, or any other similar or
like expenses incurred under the provisions of any collective bargaining
agreement, or any other cost or expense which Landlord pays or incurs to provide
benefits for employees so engaged in the operation, management, maintenance and
repair of the Building); (v) the charges of any independent contractor who,
under contract with Landlord or its representatives, does any of the work of
operating, managing, maintaining or repairing the Building; (vi) legal and
accounting expenses; (vii) Insurance Premiums; and (viii) any other expense or
charge, whether or not hereinbefore mentioned, which, in accordance with
generally accepted accounting principles and management principles, would be
considered as an expense of owning, managing, operating, maintaining or
repairing the Building except as hereinafter provided. Operating Expenses shall
not include costs or other items included within the meaning of the term
"Taxes", costs of alterations of the premises of tenants of the Building,
advertising and other expenses incurred in procuring tenants, legal expenses
incurred in the enforcement of leases, costs of capital improvements to the
Building, depreciation charges, interest and principal payments on mortgages,
ground rental payments and real estate leasing and brokerage
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commissions, the cost of any special service rendered to any tenant that is not
rendered to tenants generally, costs relating to the maintenance of Landlord's
existence as a legal entity, fines or penalties resulting from violations of
laws, the amount of any judgements rendered against Landlord, and any
expenditure for which Landlord has been reimbursed (other than pursuant to rent
escalation or tax and operating expense reimbursement provisions in leases),
except as hereinafter provided. Notwithstanding anything contained herein to the
contrary, Operating Expenses shall include the cost of any capital improvements
to the Building made after the date of this Lease which are intended to reduce
Operating Expenses or which are required under any governmental laws,
regulations or ordinances which were not applicable to the Building at the time
it was constructed, amortized over such reasonable period as Landlord shall
reasonably determine, together with interest on the unamortized cost of any such
improvements (at the prevailing construction loan rate available to Landlord on
the date the cost of such improvements was incurred). Operating Expenses shall
be net of all cash discounts, trade discounts, or quantity discounts received by
Landlord in the purchase of any goods, utilities, or services in connection with
the operation of the Building.
6.07 Estimates of Expenses during Vacancy and Services to Part of Building If
the Building is not at least ninety-five percent (95%) occupied by tenants
during all or a portion of any calendar year, Landlord may make appropriate
adjustment for such year in the components of Basic Costs which vary depending
upon the occupancy level of the Building (such as trash removal, recycling and
window washing), employing generally accepted accounting and management
principles. Any such adjustments shall also be deemed expenses paid or incurred
by Landlord and included in Basic Costs for such calendar year, as if the
Building had been ninety-five percent (95%) occupied and Landlord had actually
paid or incurred such expenses, to the end that the actual amounts of such
variable components of Basic Costs be fairly borne by tenants occupying the
Building, and provided that no such adjustment shall include any profit to
Landlord in connection with such variable cost. At any time when a service is
furnished to, or an item of Operating Expense is incurred with respect to only a
part of the Building, the cost of such service or the amount of such item of
Operating Expense may, if in Landlord's judgement it is appropriate to do so, be
allocated entirely to such part of the Building and Tenant's Proportionate Share
of such Operating Expenses shall be adjusted accordingly.
6.08 Estimates of Additional Rent
A. Landlord may give Tenant, from time to time, written notice of its
estimate of Additional Rent due in a calendar year. Tenant shall pay to
Landlord, commencing on the first day of the calendar month following
the month in which Landlord notifies Tenant of the estimated Additional
Rent, one-twelfth (1/12) of the Additional Rent due in any said calendar
year as estimated by Landlord. If at any time during any calendar year
it appears to Landlord that the Additional Rent due for any calendar
year will vary from its estimate thereof by more than ten percent (10%),
Landlord may, by written notice to Tenant, revise its estimate for such
year. Subsequent Additional Rent deposits by Tenant for such year shall
be based on the revised estimate. Tenant shall make monthly payments of
Additional Rent based on Landlord's most recent estimate thereof until
Landlord notifies Tenant of a revision of such estimate. Tenant
acknowledges that
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Landlord has not made and does not hereby make any representation or
warranty whatsoever to Tenant as to the amount of Additional Rent or any
component thereof which may become payable during the Lease Term.
B. Following the end of each calendar year and after Landlord shall have
determined the actual amounts of Basic Costs for such calendar year,
Landlord shall notify Tenant in writing. If Tenant's obligation for
Additional Rent exceeds the deposits paid by Tenant, Landlord shall xxxx
Tenant for the excess amount and Tenant shall pay to Landlord said
amount within thirty (30) days of billing. If Tenant's obligation for
actual Additional Rent is less than the deposits paid by Tenant, Tenant
shall, at Landlord's option, either be given a credit for the excess
amount against the next Additional Rent payments due, or a refund of the
excess so paid by Tenant. Delay in computing any item of Basic Costs
shall neither be deemed a default by Landlord nor a waiver of the right
to collect any item of Basic Costs.
6.09 Audit of Additional Rent Tenant shall have the right to conduct an audit of
Landlord's accounting records concerning Additional Rent. Any such audit shall
be conducted at Landlord's offices following not less than ten (10) business
days prior written notice and shall not unreasonably disrupt Landlord's business
operations. The cost of such audit shall be paid by Tenant except in the event
the audit reveals an error by Landlord which resulted in an overcharge of actual
(as distinguished from estimated) Additional Rent in excess of three percent
(3%) of the total, in which event Landlord shall pay the reasonable cost of the
audit. Any undercharge or overcharge shall be paid, credited or refunded, as
applicable, as provided in Paragraph 6.08. Unless Tenant shall, by written
notice to Landlord, take exception to any item in any annual statement of
Additional Rent within one hundred eighty (180) days after the furnishing of
said statement, such statement shall be conclusively binding upon Tenant. Any
amount shown by such statement to be due to Landlord, whether or not written
exception is taken to such statement, shall be paid by Tenant as provided in
Paragraph 6.08(B) above, without prejudice to any such written exception.
6.10 Service Charge Tenant recognizes that late payment of Rent will result in
administrative expense to Landlord, the extent of which additional expense is
extremely difficult and economically impractical to ascertain. Tenant therefore
agrees that if Rent is not paid when due and payable pursuant to this Lease, a
late charge shall be imposed in an amount equal to five percent (5%) per month
of the unpaid Rent. The amount of the late charge to be paid by Tenant shall be
reassessed and added to Tenant's obligation for each successive monthly period
until paid. The provisions of this Paragraph 6.10 in no way relieve Tenant of
the obligation to pay Rent on or before the date on which they are due, nor do
the terms of this Paragraph 6.10 in any way affect Landlord's remedies pursuant
to this Lease in the event Rent is unpaid after the date due.
ARTICLE 7 - UTILITY SERVICES
7.01 Water Service Landlord shall provide hot and cold water from the municipal
mains for drinking, lavatory and toilet purposes drawn through fixtures
installed by Landlord, or by Tenant
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in the Premises with Landlord's written consent. Tenant shall not waste or
permit the waste of water.
7.02 Electricity/Phone Service Tenant shall arrange and pay for all phone
service installation and utilization costs in the Premises. Electricity shall
not be furnished by Landlord, but shall be furnished by an approved electric
utility company serving the area. Landlord shall permit Tenant to receive such
service direct from such utility company at Tenant's cost and shall permit, at
no cost to Tenant, Landlord's wire and conduits, to the extent available,
suitable and safely capable, to be used for such purposes. Tenant shall make all
necessary arrangements with the utility company for separately metering and
paying for electric current furnished by it to the Premises and Tenant shall pay
for all charges for electric current consumed on the Premises during Tenant's
occupancy thereof. The electricity used during the making of alterations or
repairs in the Premises shall be paid for by Tenant. Tenant shall make no
alterations or additions to the electric equipment or appliances without the
prior written consent of Landlord in each instance, which consent shall not be
unreasonably withheld, delayed or conditioned. Tenant also agrees to purchase
from Landlord at commercially reasonable rates all lamps, bulbs, ballasts and
starters, with the exception of free standing light fixtures, used in the
Premises during the Lease Term. Tenant covenants and agrees that at all times
its use of electric current shall never exceed the capacity of the feeders to
the Building or the risers or wiring installed thereon.
7.03 Utility Payments Tenant shall pay each respective utility company directly
for any utilities which are metered to the Premises. The cost of all utilities
supplied to the Premises which are not directly metered to the Premises shall be
included in Basic Costs.
7.04 Service Interruption Landlord does not warrant against and shall not be
liable to Tenant for any loss, injury or damage to property or otherwise caused
by or resulting from any variation, interruption, or failure of any utility
services due to any cause whatsoever, or from failure to make any repairs or
replacements or perform any maintenance. No interruption, variation, or failure
of such services incident to the making of repairs, alterations, or
improvements, or due to accident, strike, or conditions or events beyond
Landlord's control or any other reason shall be deemed an eviction of Tenant or
relieve Tenant from any Tenant's obligations hereunder.
Notwithstanding the above, if there is an interruption of services which
renders the Premises unusable for its intended purpose for more than five (5)
consecutive business days and such interruption is a result of factors within
the reasonable control of Landlord, then Rent shall xxxxx from the sixth day
until such services are restored; and if there is such an interruption of
services which renders the Premises unusable for its intended purpose for more
than thirty (30) consecutive days (other than as a result of Tenant's negligence
or misconduct), then Tenant may terminate this Lease by written notice to
Landlord delivered while such interruption continues.
ARTICLE 8 - USE, MAINTENANCE AND COMPLIANCE WITH LAWS
8.01 General Use The Premises hereby leased shall be used by Tenant only for the
Permitted Uses and for no other purposes. Throughout the Lease Term Tenant
shall, at Tenant's expense, promptly comply with the Rules and Regulations set
out in Exhibit B, and all applicable
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governmental statutes, ordinances, rules, regulations, orders and requirements
in effect regulating the use of the Premises. Tenant shall not use or permit the
use of the Premises in any manner that will tend to create waste or a nuisance,
or will tend to unreasonably disturb other tenants in the Building. Landlord may
hereafter from time to time promulgate additional reasonable rules and
regulations regarding the Premises and the Building, and Tenant shall comply
with such rules and regulations, so long as such regulations do not conflict
with the Permitted Uses of the Premises by Tenant or reduce Tenant's rights
hereunder.
8.02 Maintenance and Repair by Tenant
A. Tenant shall be responsible for all necessary or appropriate
maintenance, repair, and replacement to the Premises of every kind or
nature not hereinafter set forth specifically as the obligation of
Landlord, including the heating and air conditioning ("HVAC") systems
and equipment serving the Premises. Tenant shall take good care of the
Premises, and keep them in good repair and free from filth, overloading,
danger of fire or any pest or nuisance, and, under the supervision or
subject to the approval of Landlord and within a reasonable period of
time specified by Landlord, Tenant shall repair or replace any damage or
breakage to the Premises or the Building caused by Tenant or Tenant's
agents, employees, licensees, contractors, or invitees, or by Tenant's
equipment or installations. At the end of the Lease Term or any renewal
or extension hereof, Tenant shall quit and surrender the Premises in a
condition as good as when received by Tenant, normal wear and casualty
damage excepted. In the event Tenant fails to maintain, repair or
replace any damage or breakage to the Premises as provided for herein,
Landlord shall have the right, but not the obligation, to perform such
maintenance, repair or replacement in which event Tenant shall promptly
reimburse Landlord for its actual costs in providing such maintenance,
repair or replacements together with a ten percent (10%) charge for
Landlord's incidental costs and expenses. Such amounts charged to Tenant
shall be deemed Rent under this Lease, payable upon demand.
Notwithstanding the above, if an entire HVAC unit (as opposed to any
component part) requires replacement, Landlord shall perform such
replacement and Tenant shall reimburse Landlord on demand for an amount
equal to the cost thereof multiplied by a fraction the numerator of
which is the number of months remaining in the Lease Term (at the time
the unit was replaced) and the denominator of which is the useful life
of the unit (as reasonably determined by Landlord).
B. Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance
contractor approved by Landlord for servicing all HVAC systems and
equipment serving the Premises (and a copy thereof shall be furnished to
Landlord). The service contract must include all services suggested by
the equipment manufacturer in the operation/maintenance manual (but not
fewer than two servicings annually) and must become effective within
thirty (30) days of the date Tenant takes possession of the Premises.
Landlord may, upon notice to Tenant, elect to enter into such a
maintenance/service contract on behalf of Tenant, or to perform the work
and in either case, charge Tenant the cost thereof along with a
reasonable amount for Landlord's overhead.
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8.03 Compliance with Laws Tenant covenants to promptly comply throughout the
Lease Term, at Tenant's sole cost and expense, with all laws, ordinances, rules,
regulations, and orders of any governmental bodies having jurisdiction over the
Premises and to make all repairs, replacements, installations or additions
required thereby, foreseen or unforeseen, ordinary as well as extraordinary.
After the Commencement Date, Tenant will reimburse Landlord for all expenditures
made by Landlord which are required by municipal, state or other governmental
bodies due to the type or extent of Tenant's use of the Premises. Tenant will
likewise observe and comply with the requirements of all policies of public
liability, fire and other insurance at any time in force with respect to the
Building or the Premises and the personal property thereof.
8.04 Signs Tenant shall not place upon nor permit to be placed upon any part of
the Premises or the Building, any signs, billboards or advertisements in any
location or in any form without the prior written consent of Landlord. Tenant
shall be permitted one line for its name on the Building monument sign and an
identification sign with Tenant's logo on the door to its Premises, subject to
Landlord's reasonable approval. The cost of producing, maintaining and removing
said signs shall be paid by Tenant.
8.05 Hazardous Materials Tenant shall not, and shall not direct, suffer or
permit any of its agents, contractors, employees, licensees or invitees to at
any time handle, use, manufacture, store or dispose of in or about the Premises
or the Building any (collectively "Hazardous Materials") flammables, explosives,
radioactive materials, hazardous wastes or materials, toxic wastes or materials,
or other similar substances, petroleum products or derivatives or any substance
subject to regulation by or under any federal, state and local laws and
ordinances relating to the protection of the environment or the keeping, use or
disposition of environmentally hazardous materials, substances, or wastes,
presently in effect or hereafter adopted, all amendments to any of them, and all
rules and regulations issued pursuant to any of such laws or ordinances
(collectively "Environmental Laws"), nor shall Tenant suffer or permit any
Hazardous Materials to be used in any manner not fully in compliance with all
Environmental Laws, in the Premises or the Building and appurtenant land or
allow the environment to become contaminated with any Hazardous Materials.
Notwithstanding the foregoing, and subject to Landlord's prior consent, Tenant
may handle, store, use or dispose of products containing small quantities of
Hazardous Materials (such as aerosol cans containing insecticides, toner for
copiers, paints, paint remover and the like) to the extent customary and
necessary for the use of the Premises for general office purposes; provided that
Tenant shall always handle, store, use, and dispose of any such Hazardous
Materials in a safe and lawful manner and never allow such Hazardous Materials
to contaminate the Premises, Building and appurtenant land or the environment.
Tenant shall protect, defend, indemnify and hold Landlord harmless from and
against any and all loss, claims, liability or costs (including court costs and
attorney's fees) incurred by reason of any actual or asserted failure of Tenant
to fully comply with all applicable Environmental Laws, or the presence,
handling, use or disposition in or from the Premises of any Hazardous Materials
(even though permissible under all applicable Environmental Laws or the
provisions of this Lease), or by reason of any actual or asserted failure of
Tenant to keep, observe, or perform any provision of this Paragraph 8.05. The
indemnity obligations of Tenant under this paragraph shall survive any
termination of the Lease.
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ARTICLE 9 - COMMON AREAS
9.01 Definition The term "Common Areas" means all areas and facilities of the
Building not intended for lease to individual tenants, and which are instead
designed for the common use and benefit of Landlord and all or substantially all
of the tenants, their employees, agents, customers and invitees and which shall
be operated and maintained by Landlord. The Common Areas include, but not by way
of limitation, the roof, exterior walls, all parking lots, landscaped and vacant
areas, driveways, walks and curbs with facilities appurtenant to each as such
areas may exist from time to time. Landlord hereby grants to Tenant the
non-exclusive use of the Common Areas (except the roof and any reserved or
designated parking) by Tenant, Tenant's employees, agents, customers, and
invitees, which use shall be subject at all times to the terms and conditions of
this Lease and the Rules and Regulations attached as Exhibit B and such
additional rules and regulations as Landlord may make pursuant to the terms
hereof.
9.02 Outside Storage and Parking Tenant shall not use any part of the Building
exterior to the Premises for outside storage. No trash, crates, pallets or
refuse shall be placed anywhere outside the Premises by Tenant except in
enclosed metal containers to be located as directed by Landlord. Except as
hereinabove set forth, Tenant shall not park or permit parking of vehicles
overnight anywhere about the Building's parking areas without the prior written
consent of Landlord, unless Tenant is working in the Premises during such hours.
ARTICLE 10 - TENANT'S FIXTURES, ALTERATIONS, AND LIENS
10.01 Tenant's Fixtures Tenant, at Tenant's sole expense, may install in or
affix to the Premises necessary trade fixtures, personal property, equipment and
furniture, provided that such items are installed and are removable without
damage to the Building, and that such items do not exceed the weight bearing
capacity of the Premises or place any unusual demands on the utility services to
the Premises. Prior to the installation of such trade fixtures Tenant will
provide Landlord plans for their installation. Landlord may require that Tenant,
and Tenant upon demand shall, provide data regarding the weight and operating
characteristics of such trade fixtures and other property, and may deny approval
for such trade fixtures or other property if Landlord, acting reasonably,
determines that such trade fixtures will exceed Building capacities or place
unusual demands on the utility services to the Premises.
10.02 Leasehold Improvements Except as noted in Paragraph 10.01 Tenant shall not
make any alterations, improvements, or additions ("Leasehold Improvements") to
the Premises without the prior written consent of Landlord which consent shall
not be unreasonably withheld. Prior to Landlord's final approval of any such
Leasehold Improvements, Tenant must provide Landlord for Landlord's review and
approval; (i) acceptable construction plans and specifications, (ii) the
construction agreements between Tenant and a reputable contractor and
subcontractors (each reasonably satisfactory to Landlord), (iii) satisfactory
evidence (including, but not limited to, certificates of insurance against all
liability which may arise out of the Leasehold Improvements) that all
contractors and subcontractors will be properly insured, (iv) copies of
necessary permits and governmental authorizations, and (v) security for the
payment of all costs to be incurred in connection with the Leasehold
Improvements. Landlord may require that such insurance
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policies include Landlord as an additional insured. All work shall be required
to be done promptly and in a good workmanlike manner using only good grades of
materials and Tenant shall promptly pay the cost of all such Leasehold
Improvements. In addition, Tenant shall reimburse Landlord for all reasonable
sums expended for examination and approval of the architectural and working
plans and specifications for the work and for its inspection and supervision of
the work. Tenant shall also indemnify, defend and hold Landlord harmless from
any and all liabilities and costs of every kind and description, including
reasonable attorneys' fees, which may arise out of or be connected in any way
with the Leasehold Improvements or any work performed by Tenant. Upon completing
any Leasehold Improvements, Tenant shall furnish Landlord with contractors'
affidavits and full and final waivers of lien, and all other supporting
documentation as Landlord may reasonably require, all in form satisfactory to
Landlord. All Leasehold Improvements shall comply with all insurance
requirements and with all ordinances and regulations of any applicable
governmental authority. At all times, Tenant shall cause contractors and others
performing Leasehold Improvements for Tenant to work in harmony with the
contractors, agents and employees performing work in the Building for Landlord
or others, if any. All Leasehold Improvements, except movable furniture,
equipment and trade fixtures placed in the Premises at the expense of Tenant,
shall become the property of Landlord and at the election of Landlord, shall
either remain upon and be surrendered with the Premises to Landlord as a part
thereof at the termination of this Lease or shall be removed at the sole cost
and expense of Tenant. In the event damage to the Premises or the Building shall
be caused by moving Tenant's furniture, equipment, trade fixtures or personal
property in or out of the Premises, said damage shall be promptly repaired at
the cost of Tenant. In the event that Tenant should fail to remove Tenant's
furniture, equipment and trade fixtures as required by Landlord, Landlord shall
have the option, in addition to its other remedies under the Lease, to declare
that such furniture, equipment and trade fixtures are the property of Landlord
and to thereafter dispose of such trade fixtures in a commercially reasonable
manner and retain any proceeds of disposition as security for any liabilities or
obligations Tenant may have to Landlord under the terms of this Lease.
Notwithstanding the preceding provisions of Section 10.02, Tenant may, without
Landlord's consent, make interior, non-structural Leasehold Improvements which
do not affect Building systems (such as HVAC, electric, etc.) such as
installation of trade fixtures, decorating, painting (using Building standard
colors), carpeting and other similar work and which do not cost more than Five
Thousand Dollars ($5,000).
10.03 Mechanics' Liens Tenant has no authority or power to and shall not cause
or permit any mechanics' liens or other liens to be placed upon the Building or
any portion or component thereof or Landlord's interest therein whether created
by act or inaction of Tenant, operation of law, or otherwise, and in case of the
filing of any such lien or encumbrances or claim therefor, Tenant shall promptly
discharge same; provided, however, that Tenant shall have the right to contest
the validity or amount of any mechanics lien upon its prior posting of security
with Landlord, which security, in Landlord's reasonable judgement, must be
adequate to pay and discharge any such lien in full in addition to any
applicable interest, penalties and Landlord's reasonable estimate of its legal
fees. Tenant agrees to indemnify and hold Landlord harmless against any and all
liabilities, reasonable legal fees and other costs whatsoever incurred by
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Landlord because of any mechanics' or other liens attributable to Tenant being
placed upon the Premises or the Building. Any mechanic's lien or claim for a
mechanic's lien which Tenant desires to contest as herein provided shall be
contested only in good faith, by appropriate proceedings diligently pursued,
and, in any event, such lien or claim for lien shall be released or removed
within six (6) months of the date such claim or lien first attached. If the lien
is not so contested and released or removed, Landlord, at its sole option and in
additional to any other available rights or remedies, may take any and all
action necessary to release and remove such lien or claim of lien (it being
agreed by Tenant that Landlord shall have no duty to investigate the validity
thereof) and Tenant shall promptly upon five (5) days written notice reimburse
Landlord for all sums, costs and expenses (including but not limited to
attorneys' fees) incurred by Landlord in connection with the removal or release
of any such lien or claim.
ARTICLE 11 - SERVICE AND MAINTENANCE BY LANDLORD AND RESERVATIONS
11.01 Specific Reservations The Premises shall not include the roof, exterior
walls, foundation of the Building, or any of the Common Areas, or any other area
outside, above or below the Premises. In addition, so long as such activities do
not unreasonably interfere with Tenant's use of the Premises and reasonable
advance notice is given Tenant prior to their commencement, Landlord reserves
the right to: place, install, maintain, carry through, repair and replace such
utility lines, pipes, wires, appliances, tunneling and the like in, over,
through, under and upon the Premises as may be reasonably necessary or advisable
for the servicing of the Premises or any other portions of the Building; for
such purposes, to reasonably enter upon the Premises; and during the continuance
of any of said work, to temporarily close doors, entryways, public space and
corridors to or in the Building and to interrupt or temporarily suspend services
or use of facilities, all without affecting any of Tenant's obligations
hereunder. Landlord will use reasonable efforts not to unreasonably interfere
with Tenant's normal business activities.
11.02 Building Alterations By Landlord Notwithstanding any provision in this
Lease to the contrary, Landlord reserves the right at any time and from time to
time, with five (5) days notice except in the case of emergencies, and without
liability to Tenant for damage or injury to property, person, or business and
without constituting an eviction or disturbance of Tenant's use or possession of
the Premises or giving rise to any claim for set-off or abatement of Rent: (i)
to make alterations, changes and additions to the Building (including the Common
Areas), (ii) to add additional areas to the Building and/or to exclude areas
therefrom, (iii) to construct additional buildings and other improvements on the
land occupied by the Building, (iv) to remove or relocate a part of the
Building, and (v) to relocate any other tenant in the Building, provided in each
case such changes shall not unreasonably interfere with the Permitted Uses.
11.03 Maintenance and Repair by Landlord
A. Landlord shall maintain, and repair the following:
(i) The Building (other than the Premises and premises of other
tenants) including landscaped areas, parking areas, and the
exterior portions (including windows, doors, foundations and
roofs) of all buildings and structures from time
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to time forming part of the Building and affecting its general
appearance; the systems provided for bringing utilities to the
Common Areas and the Premises; and the other facilities from time
to time provided for use in common by Tenant and other tenants of
the Building;
(ii) The major components of the HVAC system serving the Premises
if any such component requires replacement (but Tenant shall be
responsible for all normal servicing and repairs); and
(iii) Defects in standard demising walls or in structural
elements, suspended ceiling, electrical and mechanical
installations standard to the Building installed by Landlord in
the Premises (if and to the extent that such defects are
sufficient to impair Tenant's use of the Premises) and casualty
damage pursuant to Article 15.
B. Landlord shall not be liable for any failure to make repairs that are
Landlord's responsibility herein until and unless Landlord is actually
aware of the problem requiring repair and Landlord shall have had a
reasonable time thereafter to make such repairs. Landlord reserves the
right to the exclusive use of the roof and exterior walls of the
Building. If any portion of the Premises which Landlord is obligated to
maintain or repair is damaged by the negligence or willful actions or
omissions of Tenant, its agents, employees, contractors, or invitees,
then repairs or replacements necessitated by or appropriate because of
such damage shall be paid for by Tenant as additional rent upon demand
by Landlord. Landlord shall in no event be required to make repairs to
Leasehold Improvements made by Tenant, or by Landlord on behalf of
Tenant.
11.04 Additional Services Upon request by Tenant, Landlord may (but shall not be
obligated to) supply services or materials to the Premises and the Building
which are not provided for under this Lease ("Additional Services"), including,
without limitation:
A. Window blinds or drapery cleaning;
B. Carpet shampooing;
C. Locksmithing;
D. Removal of bulk garbage;
E. Picture hanging; and
F. Special security arrangements.
The cost of Additional Services supplied or furnished by Landlord to Tenant
shall not be included in Common Area Expenses but rather shall be billed
separately by Landlord to Tenant. Such amounts charged to Tenant shall be deemed
Rent under this Lease, payable upon within ten (10) days after billing. In the
event Landlord shall elect not to supply or furnish any Additional Services,
Tenant may obtain such services from a person selected by Tenant and approved in
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writing by Landlord (which approval shall not be unreasonably withheld). The
supplying and furnishing of such services shall be subject to the reasonable
rules fixed by Landlord and Tenant undertakes to cause compliance with such
rules by its contractors.
ARTICLE 12 - LANDLORD'S RIGHTS
12.01 Rights Reserved Landlord reserves the following rights:
A. To change the name of the Building without notice or liability to
Tenant;
B. To establish and change from time to time a security control and/or
locking system with respect to entry to and exit from the Building.
Landlord shall not be liable for any error with respect to admission to
or eviction from the Building of any person;
C. Following at least twenty-four (24) hours notice to Tenant, to
exhibit the Premises to others at reasonable hours, and to decorate,
remodel, repair, alter or otherwise prepare the Premises for
re-occupancy at any time in the event Tenant abandons the Premises;
D. To assign certain parking spaces and parking areas on the Land now
existing or hereafter constructed; to remove abandoned or unlicensed
vehicles and vehicles that are unreasonably interfering with the use of
the parking lot by others and to charge the responsible tenant for the
expense of removing said vehicles; and to generally regulate the flow of
automobile and truck traffic using the Building's facilities;
E. To take any and all reasonable measures, including making
inspections, repairs, alterations, additions and improvements to the
Premises or to the Building as may be necessary or desirable in the
operation thereof and the monitoring of the covenants and obligations of
this Lease;
F. To close temporarily any of the Common Areas as reasonably necessary
for maintenance and repair purposes;
G. To designate any part of the Building outside the Premises to be part
of the Common Areas without the necessity of an amendment or
modification to this Lease;
H. To use Common Areas as reasonably necessary while engaged in making
alterations, additions or repairs to the Premises or the Building;
I. To retain a pass key to the Premises (for emergency and incidental
purposes);
J. To lease the remainder of the Building to any other entity approved
in Landlord's sole and exclusive discretion;
K. To participate in any petition for the inclusion of the Building and
Premises in any local improvement districts providing for assessment of
the Building and Premises for the benefits received. Tenant agrees to
cooperate with Landlord in the foregoing and to
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execute any documents or instruments which, in Landlord's opinion, are
necessary or desirable to effectuate the same;
L. To enter upon the Premises at any reasonable time for the purpose of
exercising any or all of the foregoing rights hereby reserved without
being deemed guilty of an eviction or disturbance of Tenant's use or
possession and without being liable in any manner to Tenant. Prior to
any such entry except that required in an emergency or for the provision
of normal Landlord services, Landlord shall provide Tenant reasonable
notice thereof; and
M. To enforce the Rules and Regulations attached as Exhibit B in a
manner which does not unfairly discriminate against Tenant.
ARTICLE 13 - LANDLORD'S INABILITY TO PERFORM
13.01 Landlord's Inability to Perform If by reason of inability to obtain
suitable labor, materials or supplies; circumstances directly or indirectly the
result of fire, weather, a state of war or national or local emergency; or any
other cause beyond the reasonable control of Landlord (any of the foregoing
being referred to herein as "Force Majeure"), Landlord shall be unable to
perform or shall be delayed in the performance of any covenant or obligation
hereunder, such nonperformance or delay in performance shall not render Landlord
liable in any respect to Tenant, its employees, invitees or licensees for
damages to either person or property, constitute a total or partial eviction,
constructive or otherwise, work an abatement of rent or relieve Tenant from the
fulfillment of any covenant or agreement contained in this Lease.
13.02 Limit of Landlord's Liability It is expressly understood and agreed by
Tenant that none of Landlord's covenants, undertakings, or agreements are made
or intended as personal covenants, undertakings, or agreements by Landlord or
its partners, officers, directors, agents, employees, legal representatives,
successors or assigns. Any liability for damage or breach or non-performance by
Landlord shall be collectible only from Landlord's interest in the Building and
no personal liability is assumed by, nor at any time may be asserted against,
Landlord, its partners, officers, directors, agents, employees, legal
representatives, successors or assigns.
ARTICLE 14 - INSURANCE/INDEMNIFICATION
14.01 Tenant's Insurance
A. Tenant covenants and agrees to maintain at all times during the Lease
Term, or any renewal thereof, a policy or policies of general liability
insurance against claims for personal injury, death or property damage
(on an occurrence basis) with respect to the business carried on by
Tenant in or from the Premises and Tenant's use and occupancy of the
Premises and any other part of the Building, with coverage of not less
than $2,000,000.00 combined single limit in respect to personal injury
and/or death and/or property damage, or any other amount which Landlord
may reasonably require. Such insurance shall include Landlord (and any
other party requested by Landlord) as an
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additional insured and shall protect Landlord with respect to any
claims as if Landlord were separately insured.
B. Tenant covenants and agrees to maintain at all times during the Lease
Term, or any renewal or extension thereof, insurance protection against
"all risk of direct physical loss", as defined by Causes of Loss Special
Form (CP 1030 or its equivalent), for the full replacement cost of all
Leasehold Improvements and of all office furniture, trade fixtures,
office equipment, merchandise and all other items of Tenant's property
on the Premises which insurance shall insure both Tenant and Landlord,
as their interests may appear.
C. Tenant shall procure insurance against other perils and in such
amount (consistent with the standards of other similar landlords of
similar properties) as Landlord may reasonably require upon not less
than ninety (90) days prior written notice, such requirement to be made
on the basis that the required insurance is customary at the time for
prudent tenants of properties similar to the Building.
14.02 Landlord's Approval All insurance required to be maintained by Tenant
shall be on terms, with deductibles and with insurers reasonably satisfactory to
Landlord, which approval shall not be unreasonably withheld. Each policy shall
contain an undertaking by the insurer so that no material change adverse to
Landlord will be made, and the policy will not lapse or be canceled, except
after not less than thirty (30) days' prior written notice to Landlord of the
intended change, lapse or cancellation. Whenever Landlord requests, Tenant shall
furnish Landlord, certificates or other evidences acceptable to Landlord
regarding the insurance required to be effected by Tenant hereunder. If Tenant
shall fail to take out, renew or keep in force such insurance, or if the
evidences submitted to Landlord are unacceptable to Landlord (or no such
evidences are submitted within a reasonable period after request therefor by
Landlord), then Landlord may give to Tenant written notice requiring compliance
with this paragraph and specifying the respects in which Tenant is not then in
compliance. If Tenant does not within forty-eight (48) hours provide appropriate
evidence of compliance with this paragraph, Landlord may (but shall not be
obligated to) obtain some or all of the additional coverage or other insurance
which Tenant shall have failed to obtain, without prejudice to any other rights
of Landlord under this Lease or otherwise, and Tenant shall pay all premiums and
other reasonable expenses incurred by Landlord to Landlord as additional rent on
demand.
14.03 Building Insurance Coverage Landlord shall maintain throughout the Lease
Term, or any extension thereof, fire and extended coverage insurance on the
Building and the property owned by Landlord located in and about the Building in
an amount equivalent to the full replacement cost thereof (excluding foundation,
grading and excavation costs) and with such deductibles as Landlord shall
reasonably determine. Landlord shall not in any way or manner insure any
property of Tenant or any property that may be in the Premises but not owned by
Landlord. Landlord shall keep the Building insured for the benefit of Landlord
against loss or damage by fire and such other risk or risks of a similar or
dissimilar nature as are now, or may in the future be, customarily covered with
respect to buildings and improvements similar in construction, general location,
use, occupancy and design to the Building, including, but without limiting the
generality of the foregoing, windstorms, hail, explosion, vandalism, malicious
mischief, civil
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commotion, provided coverage is obtainable. Landlord shall also maintain, for
its benefit and the benefit of its managing agent, general liability insurance
against claims for personal injury, death or property damage occurring upon, in
or about the Building, and any other insurance that Landlord deems appropriate
and is customarily carried with respect to buildings and improvements similar in
construction, general location, use, occupancy and design to the Building,
including loss of rents coverage
14.04 Landlord's Liability/Property Damage or Loss Tenant agrees, to the extent
not expressly prohibited by law, that Landlord, its officers, directors,
employees, legal representatives, agents and servants shall not be liable for,
and Tenant hereby waives all claims for, damage or loss to property and business
sustained during the Lease Term by Tenant occurring in or about the Building or
the Premises, resulting directly or indirectly from any existing or future
condition, defect, matter or thing in, or on, or about the Building or the
Premises, or from equipment or appurtenances becoming out of repair or from
accident, or from any occurrence or act or omission of Landlord, its agents,
employees or servants, or another tenant or occupant of the Building or any
other person. This paragraph shall apply especially, but not exclusively, to
damage caused as aforesaid or by flooding, sprinkler leakage, snow, frost,
steam, excessive heat or cold, falling plaster, broken glass, sewage, gas, odors
or noise, or the bursting or leaking of pipes or plumbing fixtures, and shall
apply equally, whether any such damage or loss results from the act or omission
of other tenants or occupants in the Building or any other persons. Tenant
agrees to look exclusively to Tenant's insurance coverage in the event of such
loss.
14.05 Indemnification of Landlord/Third Party Claims
A. To the extent not expressly prohibited by law, and except for damage
to the Building covered by the insurance noted in Paragraph 14.03,
Tenant shall indemnify and defend Landlord, its subsidiaries, directors,
officers, employees, legal representatives, servants and agents and save
them harmless from and against any and all loss (including loss of rents
payable by Tenant or other tenants) and against all claims, actions,
damages, liability and expense brought by any person(s), firm(s), or
corporation(s) in connection with loss of life, bodily and personal
injury or property damage arising from (i) any occurrence in, upon or at
the Premises, (ii) any occurrence in, upon or at the Building occasioned
wholly or in part by any act or omission of Tenant, its agents,
contractors, employees, servants, licensees, concessionaires or invitees
or by anyone permitted to be on the Premises by Tenant, or (iii)
Tenant's negligent performance of or failure to perform any of its
obligations under this Lease.
B. Anything herein to the contrary notwithstanding, in the event any
damage to the Building arising wholly or in part out of any act or
omission of Tenant, its agent, employees, contractors, or invitees, and
all or any portion of Landlord's loss is "deductible" under Landlord's
insurance policies, Tenant shall pay to Landlord on demand the amount of
such deductible loss as additional rent.
14.06 Waiver of Subrogation Tenant and Landlord release each other and waive any
right of recovery, whether direct or by way of subrogation, against each other,
their agents, officers
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and employees, for any loss of or damage to their respective property, which
occurs in or about the Building or Premises (regardless of the cause or origin,
including negligence of either party, or their agents, officers or employees) to
the extent that such loss or damage is recovered under the insurance required
hereunder. The parties agree to immediately give each insurance company
providing insurance relating to this Lease, notice of the terms of these mutual
waivers, and, if necessary, to have the insurance policies properly endorsed, so
as to prevent the invalidation of the insurance coverages by reason of the
mutual waivers contained in this paragraph.
ARTICLE 15 - DAMAGE OR DESTRUCTION
15.01 Reconstruction Following Damage Except as noted below, if the Premises or
Building are damaged or destroyed during the Lease Term, Landlord shall
diligently repair or rebuild the Premises, in compliance with all applicable
laws ordinances and regulations, to substantially the same condition in which it
existed as of the Commencement Date. Landlord shall be under no obligation to
restore any Leasehold Improvements made by Tenant after the Commencement Date.
Tenant acknowledges that Landlord shall be entitled to the full proceeds of any
insurance coverage, whether carried by Landlord or Tenant, for damage to those
items provided by Landlord either directly or through an allowance to Tenant,
which Landlord is obligated to or elects to restore as herein provided. Landlord
shall not be obligated to expend in restoration an amount in excess of the
proceeds of insurance recovered by Landlord with respect to such damage and
which are usable by Landlord for such restoration as permitted by any mortgagee.
If Landlord fails within one hundred eighty (180) days after such damage occurs
to substantially restore the Premises or eliminate any substantial interference
with Tenant's use of the Premises, Tenant may terminate this Lease as of the end
of said one hundred eighty (180) days by providing written notice to Landlord no
later than five (5) days after expiration of said one hundred eighty (180) day
period. Such one hundred eighty (180) day period shall be extended for
reasonable delay caused by adjustment of insurance loss or Force Majeure.
Landlord shall notify Tenant promptly of any delay caused by adjustment of
insurance loss or Force Majeure.
15.02 Excessive Damage If the Building or Premises is damaged or destroyed to
the extent that the Premises or Building cannot, in Landlord's sole judgement,
be fully repaired or restored by Landlord within one hundred eighty (180) days
after the date of the damage or destruction, Landlord may terminate this Lease
by providing Tenant written notice of Landlord's election within sixty (60) days
after the damage or destruction.
15.03 Damage or Destruction at End of Term If the Building or the Premises is
damaged or destroyed during the last twelve (12) months of the Lease Term, and
the Premises or the Building cannot, in Landlord's sole judgement, be fully
repaired or restored by Landlord within sixty (60) days after the damage or
destruction, either Landlord or Tenant may terminate this Lease upon written
notice to the other.
15.04 Rent Abatement If the Premises are rendered untenantable but this Lease is
not terminated, all Rent shall xxxxx from the date of the damage or destruction
until the restoration of the Premises is substantially completed. If only a
portion of the Premises is untenantable, Rent
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shall be prorated on a per diem basis and apportioned in accordance with the
portion of the Premises which is usable by Tenant until the restoration of the
Premises is substantially completed.
ARTICLE 16 - ASSIGNMENT AND SUBLETTING
16.01 Assignment and Subletting Generally
A. Except as noted hereafter, Tenant shall not permit or suffer to exist
any assignment, transfer, mortgage, encumbrance, conveyance, lien or
hypothecation of this Lease, voluntarily or by operation of law, nor
sublet or otherwise transfer its interest in all or any part of the
Premises or permit the use of the Premises by any parties other than
Tenant or its employees without the prior written consent of Landlord,
which consent shall not be unreasonably withheld, delayed or
conditioned. Any action by Tenant in violation of this Paragraph 16.01
shall be void and of no effect.
B. If Tenant wishes to assign this Lease or sublet all or any part of
the Premises it shall first give notice in writing in the manner
required under this Lease of such intention to Landlord, furnishing
Landlord with a copy of the proposed assignment or sublease document and
full information as to the identity and financial status of the proposed
assignee or subtenant. Thereupon, Landlord shall have, within fifteen
(15) days of receipt of such notice and documents and information, the
right to (i) terminate this Lease, or so much thereof as Tenant proposes
to sublease, or (ii) approve or reject such assignment or subletting by
written notice to Tenant. If no such response is given, Landlord shall
be deemed to have elected to approve the assignment or subletting. If
Landlord elects to terminate this Lease as set forth herein, Tenant may
notify Landlord within five (5) days after Landlord notifies Tenant of
such election that Tenant no longer wishes to assign the Lease or
sublease such space, in which case this Lease shall continue as if
Tenant's request to assign or sublease has never been made.
Notwithstanding any assignment or sublease, Tenant shall remain liable
hereunder and shall not be released without the express written
agreement of Landlord to such release. The consent by Landlord to any
assignment or subletting shall not constitute a waiver of the necessity
for such consent to any subsequent assignment or subletting.
C. If Tenant's notice covers all of the Premises and if Landlord
exercises its right to terminate this Lease as to such space, then the
Lease Term shall expire and end on the date stated in Tenant's notice
for the commencement of the proposed assignment or sublease as fully and
completely as if that date had been the expiration date. If, however,
Tenant's notice covers less than all of the Premises, and if Landlord
exercises its right to terminate this Lease with respect to such space
described in Tenant's notice, then as of the date stated in Tenant's
notice for the commencement of the proposed sublease, (i) the Base Rent
and Tenant's Proportionate Share shall be adjusted on the basis of the
number of rentable square feet retained by Tenant, (ii) Tenant shall on
demand by Landlord pay to Landlord as additional rent the reasonable
cost to physically divide and separate the parts of the Premises, (iii)
upon demand pay to Landlord as additional rent ten percent (10%) of the
amount payable under clause (ii) above to reimburse Landlord for all
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overhead, general conditions, fees and other costs and expenses arising
from Landlord's involvement in such work, and (iv) execute and deliver
to Landlord such amendments to this Lease as Landlord may reasonably
require to evidence the partial termination of this Lease and this Lease
as so amended shall continue thereafter in full force and effect.
D. Landlord shall not be deemed to have unreasonably withheld its
consent to any assignment or sublease if its consent is withheld because
(a) Tenant is then in default under this Lease or a notice of
termination of this Lease or Tenant's right to possession hereunder
shall have been given; (b) in the case of a sublease, the division of
the Premises would result in a violation of any applicable law,
ordinance, code or governmental rule or regulation; (c) in the
reasonable judgment of Landlord, the proposed subtenant or assignee is
of a character or is engaged in a business which would be deleterious to
the reputation of Landlord or of the Building; (d) the proposed assignee
or subtenant is not sufficiently responsible to perform its obligations
under this Lease or the proposed sublease, as the case may be; or (e)
the proposed assignee or subtenant is a tenant or occupant of the
Building or is actively negotiating with Landlord or an agent of
Landlord for space in the Building; provided, however, that the
foregoing are merely examples of reasons for which Landlord may
reasonably withhold its consent and shall not be deemed exclusive of any
permitted reasons for reasonably withholding consent, whether similar or
dissimilar to the foregoing examples.
E. If a subletting or assignment is so approved and the rents under such
a sublease or assignment are greater than the rents provided for herein,
then Tenant shall pay to Landlord as additional rent fifty percent (50%)
of the excess rents as and when received. Tenant shall furnish Landlord
with a sworn statement, certified by an officer of Tenant or an
independent certified public accountant, setting forth in detail the
computation of excess rents, and Landlord, or its representatives, shall
have access to the books, records and papers of Tenant in relation
thereto, and the right to make copies thereof. If a part of the
consideration for such sublease or assignment shall be payable other
than in cash, the payment to Landlord shall be payable in such form as
is reasonably satisfactory to Landlord. For purposes of this Paragraph
16.01(E), the term "excess rents" shall mean the excess, if any, of (i)
all amounts received or to be received in the form of cash, cash
equivalents, and non-cash consideration by Tenant from any assignee or
sublessee over (ii) the sum of the Rent payable to Landlord hereunder
(or, in the case of a sublease of a portion of the Premises, the portion
of the Rent which is allocable on a per square foot basis to the space
sublet), plus the amount of any reasonable advertising expenses,
brokers' commissions, attorneys' fees, costs of tenant improvements and
other actual, out-of-pocket expenses incurred by Tenant in connection
with such assignment or sublease, all of which shall be, in the case of
a sublease, amortized over the term of the sublease for the purpose of
calculating the amounts of the periodic payments due to Landlord
hereunder.
F. In no event shall Tenant assign this Lease or enter into any
sublease, license, concession or other agreement for use, occupancy or
utilization of any part of the Premises which provides for a rental or
other payment for such use, occupancy or
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utilization based in whole or in part on the income or profits derived
by any person from the Premises leased, used, occupied or utilized, and
Tenant agrees that all assignments, subleases, licenses, concessions or
other agreements for use, occupancy or utilization of any part of the
Premises shall provide that the person having an interest in the
possession, use, occupancy or utilization of the Premises shall not
enter into any lease, sublease, license, concession or other agreement
for use, occupancy or utilization of space in the Premises which
provides for a rental or other payment for such use, occupancy or
utilization based in whole or in part on the income or profits derived
by any person from the Premises leased, used, occupied or utilized and
any such purported assignment, sublease, license, concession or other
agreement shall be absolutely void and ineffective as a conveyance of
any right or interest in the possession, use, occupancy or utilization
of any part of the Premises. In addition, in no event shall Tenant
assign this Lease or enter into any sublease, license, concession or
other agreement for use, occupancy or utilization of any part of the
Premises which provides to a tenant of the Premises services other than
those usually or customarily rendered in connection with the rental of
space for occupancy only.
G. Tenant shall pay to Landlord upon demand by Landlord, notwithstanding
that Landlord may have withheld its consent to any transfer contemplated
by this Article 16, an amount sufficient to reimburse Landlord for all
reasonable costs and expenses incurred by it, including but not limited
to reasonable attorney's fees, in determining whether to grant or
withhold any consent contemplated by this Article or otherwise in
connection with any assignment, subletting or other transfer of Tenant's
interest in this Lease, or any attempt to do any of the foregoing.
H. Any assignment or subletting by Tenant pursuant of all or any portion
of the Premises shall automatically operate to terminate each and every
special right, option, or election, if any exist, belonging to Tenant,
including by way of illustration, but not limitation, any option to
expand its Premises, to extend or renew the Lease Term for all or any
portion of the Premises, or to terminate as to all or any portion of the
Premises - i.e. such rights and options shall cease as to both space
sublet or assigned and as to any portion of the original Premises
retained by Tenant.
16.02 Sale of Interest in Tenant The transfer of a majority of the issued and
outstanding capital stock or membership interests, or sale or transfer of
substantially all of the assets of any corporate or limited liability company
tenant or subtenant of this Lease (including without limitation by way of any
merger, consolidation or other reorganization of Tenant, or any issuance, sale,
gift, transfer or redemption of any capital stock or membership interest,
whether voluntary, involuntary, or by operation of law, or any combination of
any of the foregoing transactions) or a majority of the total interest in the
profits, losses, and capital of any partnership tenant or subtenant (including
without limitation by way of any withdrawal or admittance of a partner or any
change in any partners interest in Tenant, whether voluntary, involuntary or by
operation of law, or any combination of any of the foregoing transactions),
however accomplished, and whether in a single transaction or a series or related
or unrelated transactions, shall be deemed an assignment of this Lease or of
such sublease.
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16.03 Mergers, Consolidations and Tenant Affiliates The foregoing
notwithstanding, Tenant may, without Landlord's consent (but only after notice
to Landlord), assign this Lease to any corporation resulting from a sale,
merger, or consolidation of Tenant upon the following conditions: (i) that the
total assets and net worth of such assignee shall be equal to or more than that
of Tenant immediately prior to such sale, consolidation, or merger; (ii) that
Tenant is not at such time in default hereunder; and (iii) that such successor
shall execute an instrument in writing in form and substance acceptable to
Landlord fully assuming all of the obligations and liabilities imposed upon
Tenant hereunder and shall deliver the same to Landlord. Tenant shall not be
relieved of its obligations in the event of such assignment.
ARTICLE 17 - ASSIGNMENT BY LANDLORD
17.01 Assignment by Landlord The term "Landlord" as used in this Lease, so far
as covenants or obligations on part of Landlord are concerned, shall be limited
to mean and include only the owner or owners at the time in question of the fee
of the Premises, and in the event of any transfer or transfers of the title to
such fee, Landlord herein named (and in case of any subsequent transfers or
conveyances, the then grantor) shall be automatically freed and relieved, from
and after the date of such transfer or conveyance, of all liability as respects
the performance of any covenants or obligations on the part of Landlord
contained in this Lease thereafter to be performed; provided that any funds in
the hands of such Landlord or the then grantor at the time of such transfer, in
which Tenant has an interest, shall be turned over or credited to the grantee,
and any obligation then due and payable to Tenant by Landlord or the then
grantor under any provisions of this Lease, shall be paid to Tenant or assumed
by the grantee.
ARTICLE 18 - MORTGAGE AND TRANSFER
18.01 Right to Transfer
A. Landlord shall have the right to transfer, mortgage, pledge or
otherwise encumber, assign, sell, sell and leaseback, lease (such lease
being hereinafter referred to as a "Ground Lease" and the lessor
thereunder as a "Ground Lessor") and convey, in whole or in part, the
Premises, the Building, this Lease, and all or any part of the rights
now or thereafter existing and all rents and amounts payable to Landlord
under the provisions hereof. Nothing herein contained shall limit or
restrict any such rights, and the rights of Tenant under this Lease
shall be subject and subordinate to all instruments executed and to be
executed in connection with the exercise of any such rights, including,
but not limited to, the lien of any mortgage, deed of trust, or security
agreement now or hereafter placed upon Landlord's interest in the
Premises (such mortgage, deed of trust or security interest being
hereinafter referred to as a "Mortgage" and the obligee thereunder as a
"Mortgagee"). This paragraph shall be self-operative. However, Tenant
covenants and agrees to execute and deliver upon demand such further
instruments subordinating this Lease to the lien of any such Mortgage as
shall be reasonably requested by Landlord and/or proposed Mortgagee,
provided such Mortgagee shall agree not to interfere with Tenant's use
and possession of the Premises pursuant to the terms hereof so long as
Tenant is not in default hereunder. Upon the request of Tenant, Landlord
shall obtain a
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non-disturbance agreement from its Mortgagee for Tenant's benefit; the
cost of obtaining such non-disturbance agreement shall be paid by
Tenant. If any Mortgage is foreclosed or Landlord's interest under this
Lease is conveyed or transferred in lieu of foreclosure, or if any
Ground Lease is terminated:
(i) No person or entity which, as the result of any of the
foregoing has succeeded to the interest of Landlord in this Lease
(any such person or entity being hereafter called a "Successor")
shall be liable for any default by Landlord or any other matter
which occurred prior to the date such Successor succeeded to
Landlord's interest in this Lease nor shall such Successor be
bound by or subject to any offsets or defenses which Tenant may
have against Landlord or any other predecessor in interest to
such Successor;
(ii) Upon request of any Successor, Tenant will attorn, as Tenant
under this Lease, subject to the provisions of this Paragraph
18.01 to each Successor and will execute and deliver such
instruments as may be necessary or appropriate to evidence such
attornment within ten (10) days after receipt of a written
request to do so; and
(iii) No Successor shall be bound to recognize any prepayment of
Rent by more than thirty (30) days.
B. Notwithstanding anything to the contrary contained herein, any
Mortgagee or Ground Lessor may subordinate, in whole or in part, its
Mortgage or Ground Lease (as the case may be) to this Lease by sending
Tenant notice in writing subordinating such Mortgage or Ground Lease to
this Lease, and Tenant agrees to execute and deliver to such Mortgagee
or Ground Lessor such further instruments consenting to or confirming
the subordination of such Mortgage or Ground Lease to this Lease and
containing such other provisions which may be requested in writing by
such Mortgagee or Ground Lessor within ten (10) days after notice to
Tenant of such request.
C. Whether or not any Mortgage is foreclosed or any Ground Lease is
terminated or any Successor succeeds to any interest of Landlord under
this Lease, no Mortgagee, Ground Lessor, Successor or other successor of
Landlord's interest in this Lease shall have any liability to Tenant for
any security deposit paid to Landlord by Tenant hereunder, unless such
security deposit has actually been received by such person.
D. Should any prospective Mortgagee or Ground Lessor require a
modification or modifications of this Lease, which modification or
modifications will not cause an increased cost or expense to Tenant or
in any other way materially or adversely change the rights and
obligations of Tenant hereunder, or diminish the duties or liabilities
of Landlord, then and in such event, Tenant agrees that this Lease may
be so modified and agrees to execute whatever documents are reasonably
required therefor and deliver the same to Landlord within ten (10) days
following the request therefor. Should any prospective Mortgagee or
Ground Lessor require execution of a short form of Lease for
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recording (containing, among other customary provisions, the names of
the parties, a description of the Premises and the Lease Term), Tenant
agrees to execute such short form of Lease and deliver the same to
Landlord within ten (10) days following the request therefor.
E. Tenant agrees that the provisions of this paragraph shall remain in
full force and effect, notwithstanding that any Mortgagee or Ground
Lessor may directly or indirectly own or have an interest in Landlord,
or in the Building in addition to its interest as Mortgagee or Ground
Lessor.
18.02 Estoppel Letter Tenant covenants and agrees to execute and deliver to
Landlord within ten (10) days of written request from Landlord, estoppel letters
setting forth: (i) the date of this Lease and any amendments thereto, the
Commencement Date, and any rights or options to extend or renew this Lease or
the Lease Term or to purchase or of first refusal or offer with respect to the
Premises or the Building, (ii) the date through which rents have been paid
hereunder, (iii) the amount of any security deposit held by Landlord, (iv)
whether Tenant is in occupancy of the Premises and the improvements and space
required to be furnished by Landlord with the Premises and the Building have
been completed and paid for in all respects as required by this Lease, (v)
whether the Lease is in full force and effect, (vi) whether Landlord or Tenant
is in default under the Lease and whether there are defenses or offsets against
the enforcement thereof, and setting forth such defaults, defenses or offsets
claimed by Tenant, (vii) whether Tenant is subject to any bankruptcy, insolvency
or similar proceedings in any Federal, state or other court or jurisdiction, and
(viii) any other information which Landlord or its mortgagee or prospective
mortgagee or purchaser may reasonably require relating to the Lease, which may
include Tenant financial statements.
18.03 Delivery of Transfer Documents If Tenant shall fail to deliver any
subordination document, attornment document, or estoppel letter that may be
submitted to Tenant under this Article 18 within ten (10) days after the request
by Landlord or any other permitted party, as the case may be, Tenant shall pay
Landlord, as additional rent, a $100 per day penalty from the end of the initial
ten (10) day period until the date such documents are signed and returned to
Landlord.
ARTICLE 19 - EMINENT DOMAIN
19.01 Eminent Domain If the Premises, the Building, or such a substantial part
thereof, which in Landlord's reasonable judgment renders the remainder unfit for
the intended uses, shall be taken by any competent authority under the power of
the eminent domain or be acquired for any public or quasi-public uses or
purpose, the Lease Term shall cease and terminate upon the effective date of the
taking and Tenant shall have no claim against Landlord for the value of any
unexpired Lease Term. If any part of the Building is taken by any competent
authority under the power of eminent domain or is acquired for any public or
quasi-public uses or purpose, or if the configuration or grade of any street or
alley or other improvement or structure adjacent to the Building is changed and
such taking, or acquisition, or change of grade or configuration makes it
necessary or desirable in Landlord's judgment to remodel the Building to conform
to the taking,
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acquisition, or changed grade or configuration, Landlord shall have the right
to terminate this Lease after having given written notice of termination to
Tenant not less than ninety (90) days prior to the date of termination
designated in the notice. In either of said events, Rent at the then current
rate shall be apportioned as of the date of the termination. No money or other
consideration shall be payable by Landlord to Tenant for the right of
termination and Tenant shall have no right to share in the condemnation award or
in any judgment for damages caused by the taking or the change of grade.
However, nothing in this paragraph shall preclude Tenant from independently
seeking an award from the authority for any damages or relocation benefits which
Tenant is entitled to under governing law, provided that such separate award
shall not reduce the award or judgment recoverable by Landlord.
ARTICLE 20 - DEFAULT AND REMEDIES
20.01 Default Generally Tenant shall be deemed in default under the terms of
this Lease if any of the following events occur:
A. Tenant shall have failed to pay an installment of Base Rent,
Additional Rent or any other amount payable hereunder, and such failure
shall be continuing for a period of more than ten (10) days after
written notice to Tenant that such amount was due on the first occasion
in any twelve (12) month period or within five (5) days after written
notice to Tenant that such amount was due on the second and subsequent
occasions within any twelve (12) month period;
B. There shall be a default under any term, condition, covenant, or
other obligation on the part of Tenant to be kept, observed or performed
hereunder (other than a condition, covenant, agreement or other
obligation to pay Base Rent, Additional Rent or any other amount of
money) and such default shall be continuing for a period of more than
fifteen (15) days after written notice to Tenant; provided, however, if
such default may not be practicably cured by Tenant within such fifteen
(15) day period, and provided further Tenant shall commence to cure the
default within the fifteen (15) day period, the fact that the default is
not cured within the fifteen (15) day period shall not constitute a
breach of the Lease so long as Tenant diligently proceeds to cure the
default and such default is cured within a reasonable period thereafter.
Notwithstanding the fifteen (15) day period for cure noted above, if the
default creates a hazardous situation or involves disturbance of the
quiet enjoyment of other Building tenants, Tenant must cure the default
immediately upon notice;
C. If any policy of insurance upon the Building or any part thereof
shall be canceled or threatened with cancellation by the insurer by
reason of the use or occupation of the Premises by Tenant, or any
assignee, sub-tenant or licensee of Tenant, or anyone permitted by
Tenant to be upon the Premises, and Tenant after receipt of written
notice from Landlord shall have failed to take such immediate steps with
respect to such use or occupation as shall enable Landlord to reinstate
or avoid cancellation (as the case may be) of such policy of insurance;
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D. The Premises shall be abandoned, or remain unoccupied for fifteen
(15) consecutive days or more while capable of being occupied, unless
Tenant has provided Landlord prior written notice of its intent to
vacate or abandon the Premises;
E. The balance of the Lease Term or any other interest of Tenant in this
Lease or any of the goods and chattels of Tenant shall at any time be
seized or levied in execution, attachment or other legal process; or
F. Any of the following shall be done or suffered to be done: (i) Tenant
shall make any assignment for the benefit of creditors; (ii) Tenant
shall become the subject of commencement of an involuntary case under
the Federal bankruptcy law as now or hereafter constituted, or of a
petition against Tenant seeking reorganization, arrangement, adjustment
or composition of or in respect of Tenant under the Federal bankruptcy
law as now or hereafter constituted, or under any other applicable
Federal or state bankruptcy, insolvency, reorganization or other similar
law, or seeking the appointment of a receiver, liquidator, or assignee,
custodian, trustee, sequestrator (or similar official) of Tenant or any
substantial part of its property, or seeking the winding-up or
liquidation of its affairs and such involuntary case or petition is not
dismissed within sixty (60) days after the filing thereof; (iii) Tenant
shall commence a voluntary case or institutes proceedings to be
adjudicated a bankrupt or insolvent, or consents to the institution of
bankruptcy or insolvency proceedings against it, under the Federal
bankruptcy laws as now or hereafter constituted or any other applicable
Federal or state bankruptcy or insolvency or other similar law, or
consents to the appointment of or taking possession by a receiver or
liquidator or assignee, trustee, custodian, sequestrator (or other
similar official) of Tenant or of any substantial part of its property,
or admits in writing its inability to pay its debts generally as they
become due; (iv) Tenant, its stockholders or its governing Board of
Directors, Managers, or Partners, or any committee thereof takes any
action contemplating, in preparation for or in furtherance of any of the
occurrences, steps or proceedings in items (ii) or (iii) above; (v)
Tenant, if a corporation, shall take any steps or suffer any order to be
made for its winding-up or termination of its corporate existence, not
approved by Landlord.
20.02 Landlord's Remedies Landlord shall have the following rights and remedies,
all of which are cumulative and not alternative and not to the exclusion of any
other or additional rights and remedies in law or equity available to Landlord
by statute or otherwise:
A. to remedy or attempt to remedy any default of Tenant, and in doing so
to make any payments due or alleged to be due by Tenant to third parties
and to enter upon Premises to do any work or other things therein
(without such entry being in any way deemed a repossession of the
Premises or a termination of this Lease), and in such event all
reasonable expenses of Landlord in remedying or attempting to remedy
such default shall be payable by Tenant to Landlord on demand;
B. to terminate this Lease forthwith by leaving upon the Premises or by
affixing to an entrance door to the Premises or otherwise delivering
notice to Tenant a notice
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terminating the Lease, in which event the Lease Term and all right,
title and interest of Tenant hereunder shall end on the date stated in
the notice;
C. to terminate the right of Tenant to possession of the Premises
without terminating this Lease, whereupon the right of Tenant to
possession of the Premises or any part thereof shall cease on the date
stated in such notice;
D. to enforce the provisions of this Lease and to enforce and protect
the rights of Landlord hereunder by a suit or suits in equity and/or at
law for the specific performance of any covenant or agreement contained
herein, and for the enforcement of any other appropriate legal or
equitable remedy, including without limitation (i) injunctive relief,
(ii) recovery of all monies due or to become due from Tenant under any
of the provisions of the Lease, and (iii) any other damages incurred by
Landlord by reason of Tenant's default under this Lease.
20.03 Damages
A. If Landlord exercises any of the remedies provided for in
subparagraph 20.02(B) or (C) above, Tenant shall surrender possession of
and vacate the Premises and immediately deliver possession thereof to
Landlord, and Landlord may re-enter and take complete and peaceful
possession of the Premises.
B. If Landlord terminates the right of Tenant to possession of the
Premises without terminating this Lease, such termination of possession
shall not release Tenant, in whole or in part, from Tenant's obligation
to pay Rent hereunder for the full Lease Term. Furthermore the present
value (such present value to be computed on the basis of a per annum
discount rate equal to seven percent (7%)) of the aggregate amount of
Rent for the period from the date stated in the notice terminating
possession to the date of the expiration of the Lease Term absent such
termination shall, at the option of Landlord, be immediately due and
payable by Tenant to Landlord, together with any other monies due
hereunder, and Landlord shall have the right to immediate recovery of
all such amounts. In the alternative, Landlord shall have the right from
time to time to recover from Tenant (without the need to commence new
process), and Tenant shall remain liable for, all Rent not theretofore
accelerated and paid pursuant to the foregoing sentence, as well as for
any other sums thereafter accruing as they become due under this Lease
during the period from the date of such notice of termination of
possession to the date the Lease Term would expire if not terminated
early. In any such case, Landlord may, but shall be under no obligation
to (except to the extent required by law), relet the Premises or any
part thereof for the account of Tenant for such rent, for such time
(which may be for a term extending beyond the Lease Term) and upon such
terms as Landlord in Landlord's sole discretion shall determine, and
Landlord shall not be required to accept any tenant offered by Tenant or
to observe any instructions given by Tenant relative to such reletting;
provided, however, that any Rent received by reason of such reletting
shall be applied as described below. Also, in any such case, Landlord
may change the locks or other entry devices of the Premises and make
repairs, alterations and additions in or to the Premises
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and redecorate the same to the extent deemed by Landlord necessary or
desirable and Tenant shall upon written demand pay the cost thereof
together with Landlord's expenses of reletting, including, without
limitation, brokerage commissions payable to Landlord or Landlord's
agent or to others. Landlord may collect the rents from any such
reletting and apply the same first to the payment of the expenses of
reentry, redecoration, repair and alterations and the expenses of
reletting and second to the payment of Rent, and any excess or residue
shall operate only as an offsetting credit to reduce the amount of Rent
due and owing or paid as a result of acceleration or as the same
thereafter becomes due and payable hereunder; provided that the use of
such offsetting credit to reduce the amount of Rent due Landlord, if
any, shall not be deemed to give Tenant any right, title or interest in
or to such excess or residue and any such excess or residue shall belong
to Landlord solely. No such reentry, repossession, repairs, alterations,
additions, or reletting shall be construed as an eviction or ouster of
Tenant or as an election on Landlord's part to terminate this Lease, or
shall operate to release Tenant in whole or in part from any of Tenant's
obligations hereunder unless a written notice of such intention is given
to Tenant, and Landlord may, at any time and from time to time xxx and
recover judgment for any deficiencies from time to time remaining after
the application from time to time of the proceeds of any such reletting.
C. In the event of the termination of this Lease by Landlord as provided
for by subparagraph 20.02(B) above, Landlord shall be entitled to
recover from Tenant all damages and other sums which Landlord is
entitled to recover under any provision of this Lease or at law or
equity, including, but not limited to, all the fixed dollar amounts of
Rent accrued and unpaid for the period up to any including such
termination date, as well as all other additional sums payable by
Tenant, or for which Tenant is liable or in respect of which Tenant has
agreed to indemnify Landlord under any of the provisions of this Lease,
which may be then owing and unpaid, and all costs and expenses,
including without limitation court costs and attorneys' fees incurred by
Landlord in the enforcement of its rights and remedies hereunder and, in
addition, any damages provable by Landlord as a matter of law including,
without limitation, an amount equal to the excess of the Rent provided
to be paid for the remainder of the Lease Term over the fair market
rental value of the Premises (determined at the date of termination of
this Lease) after deduction of all anticipated expenses of reletting.
D. All amounts owed by Tenant to Landlord under this Lease shall be
deemed additional rent and unless otherwise provided, and (other than
the Base Rent and Additional Rent which shall be due as provided) shall
be paid within ten (10) days from the date Landlord renders a statement
of account therefor to Tenant. All such amounts (including Base Rent and
Additional Rent) shall bear interest from the date due until the date
paid at the annual rate of eighteen percent (18%) or at the then maximum
legal rate of interest, if any, whichever is lower. Tenant shall pay all
of Landlord's costs, charges and expenses, including without limitation,
court costs and attorneys' fees, incurred in enforcing Tenant's
obligations under this Lease or incurred by Landlord in any litigation,
negotiation or transaction in which Tenant causes Landlord, without
Landlord's fault, to become involved or concerned.
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E. If Tenant shall file for protection under the United States
Bankruptcy Code now or hereafter in effect, or a trustee in bankruptcy
shall be appointed for Tenant, Landlord and Tenant agree, to the extent
permitted by law, to request that the debtor-in-possession or
trustee-in-bankruptcy, if one shall have been appointed, either assume
or reject this Lease within sixty (60) days after such appointment.
20.04 No Reinstatement No receipt of money by Landlord from Tenant after the
expiration or termination of this Lease or after the service of any notice or
after the commencement of any suit, or after final judgement for possession of
the Premises, shall reinstate, continue or extend the Lease Term or affect any
such notice, demand or suit unless expressly agreed to in writing by Landlord.
20.05 Waiver No waiver by Landlord of any default or breach of any covenant by
Tenant hereunder shall be inferred from any omission by Landlord to take action
on account of such default, and no express waiver shall affect any default other
than the default specified in the waiver and then said waiver shall be operative
only for the time and to the extent therein stated. The consent or approval of
Landlord to any act of Tenant shall not be deemed to waive or render unnecessary
Landlord's consent or approval to any subsequent similar acts. No waiver by
Landlord of any provision under this Lease shall be effective unless in writing
and signed by Landlord. Landlord's acceptance of full or partial payment of Rent
during the continuance of any breach of this Lease shall not constitute a waiver
of any such breach of this Lease. Efforts by Landlord to mitigate damages caused
by Tenant's breach of this Lease shall not be construed as a waiver of
Landlord's right to recover damages.
ARTICLE 21 - MISCELLANEOUS
21.01 No Option Submission of this instrument for examination does not
constitute a reservation of or option for the Premises. The instrument does not
become effective as a lease or otherwise until execution and delivery by both
Landlord and Tenant.
21.02 Brokers Tenant and Landlord each hereby represents to the other that it
has dealt directly with and only with the broker or brokers set forth in
Paragraph 1.01 and that it does not know of another broker who negotiated this
Lease or is entitled to any commission in connection herewith. Tenant and
Landlord hereby agree to indemnify, defend (with counsel reasonably acceptable
to the other) and hold the other harmless from and against all losses, damages,
claims, liens, liabilities, costs and expense (including without limitation
reasonable attorneys' fees) arising from any claims or demands of any other
broker or brokers or finders for any commission or other compensation alleged to
be due such broker or brokers or finders in connection with its participating in
the negotiation of this Lease or in exhibiting the Premises on behalf of the
indemnifying party.
21.03 Accord and Satisfaction No payment by Tenant of a lesser amount than the
Rent nor any endorsement on any check or letter accompanying any check or
payment as Rent shall be deemed an accord and satisfaction of full payment of
Rent, and Landlord may accept such
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payment without prejudice to Landlord's right to recover the balance of such
Rent or to pursue other remedies.
21.04 Financial Statements In the event of a proposed sale or other transfer,
financing or refinancing by Landlord of the Building, where the proposed lender
or purchaser requests tenant financial statements, within ten (10) days after
Landlord's request, Tenant shall deliver to Landlord the most current year-end
financial statements of Tenant and any guarantor of this Lease, which statements
shall have been reviewed or audited by an independent certified public
accountant.
21.05 Notice Except as otherwise herein provided, whenever by the terms of this
Lease notice shall or may be given either to Landlord or to Tenant, such notice
shall be in writing and shall be deemed to have been properly served only if
sent via certified mail return receipt requested, hand-delivery, or by overnight
courier, to the appropriate address set forth in Paragraph 1.01, provided,
however, that either Landlord or Tenant may change the location at which it
receives notices, to another location within the United States of America, upon
not less than ten (10) days notice. Communications delivered by hand or
overnight courier shall be deemed to have been served on the date of receipt.
Mailed communications shall be deemed to have been served at the time the same
were posted plus three (3) business days. Notwithstanding the foregoing, notices
served with respect to emergency matters may be communicated in person or by
telephone.
21.06 Exhibits Reference is made to the Exhibits listed in Paragraph 1.01, which
exhibits are attached hereto and incorporated herein by reference.
21.07 Survival Tenant agrees that its obligations pursuant to Paragraphs 4.02,
8.03, 8.05, 10.02, 10.03, 14.05, 21.02, 21.09, Article 20, and any other
provision intended to survive, shall survive the termination of this Lease.
21.08 Tenant's Authority If Tenant signs as a corporation or partnership, each
of the persons executing this Lease on behalf of Tenant does hereby covenant and
warrant that Tenant is a duly authorized and existing entity, that Tenant has
and is qualified to do business in the state in which the Premises are located,
that Tenant has full right and authority to enter into this Lease, and that each
and every person signing on behalf of Tenant is authorized to do so. Upon
Landlord's request, Tenant shall provide Landlord with evidence reasonably
satisfactory to Landlord confirming the foregoing covenants and warranties.
21.09 Persons Bound The agreements, covenants and conditions of this Lease shall
be binding upon and inure to the benefit of the successors and assigns of each
of the Parties, except that no assignment, encumbrance or subletting by Tenant,
unless permitted by the provisions of this Lease, shall vest any right in the
assignee, encumbrancer or subtenant under such assignment, encumbrance or
subletting.
21.10 Partial Invalidity If any term, covenant, condition or provision of this
Lease, or the application thereof to any person or circumstance, shall to any
extent be declared invalid, unenforceable or in violation of a party's legal
rights, then such term, covenant, condition or
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provision shall be deemed to be null and void and unenforceable. However, all
other provisions of this Lease, or the application of such term or provision to
persons or circumstances other than those to which are held invalid,
unenforceable or violative of legal rights, shall not be affected thereby, and
each and every other term, condition, covenant the provision of this Lease shall
be valid and be enforced to the fullest extend permitted by law.
21.11 Captions The headings and captions used throughout this Lease are for
convenience and reference only and shall in no way be held to explain, modify,
amplify, or aid in the interpretation, construction or meaning of any provisions
in this Lease. The words "Landlord" and "Tenant" wherever used in this lease
shall be construed to mean plural where necessary, and the necessary grammatical
changes required to make the provisions hereof apply to corporations, limited
liability companies, partnerships, or individuals, men and women, shall in all
cases be assumed as though in each case fully expressed.
21.12 Applicable Law This Lease, its interpretation and enforcement shall be
governed by the internal laws of the state in which the Premises are located,
without resort to the choice or conflicts of law provisions of that or any other
state.
21.13 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.
21.14 Entire Agreement This Lease contains the entire agreement between the
Parties and no modification of this Lease shall be binding upon the Parties
unless evidenced by an agreement in writing signed by Landlord and Tenant after
the date hereof. If there be more than one party comprising Tenant, the
provisions of this Lease shall be applicable to and binding upon all such
tenants jointly and severally.
21.15 Waiver of Jury Landlord and Tenant agree that, to the extent permitted by
law, each shall and hereby does waive trial by jury in any action, proceeding or
counterclaim brought by either against the other on any matter whatsoever
arising out of or in any way connected with this Lease.
ARTICLE 22 - OPTION TO TERMINATE.
Provided (a) the Lease is in full force and effect, and (b) Tenant is not in
default hereunder at the time of notification or termination, Tenant shall have
one (1) option to terminate the Lease as of the third anniversary of the
Commencement Date, by notice in writing delivered to Landlord not later than
nine (9) months prior to the third anniversary of the Commencement Date. To be
effective, Tenant's notice of termination must be accompanied by a termination
payment equal to the sum of (x) the unamortized cost (as of the termination
date) of tenant improvements, leasing commissions and tenant concessions paid
for by Landlord amortized with interest at ten percent (10%) per annum and (y)
$27,887.49. For purposes of such determination, the unamortized portion of such
costs shall be the amount that bears the same ratio to all such costs as the
amount of Base Rent due after the termination date bears to the total amount of
Base Rent due over the stated term set forth on the Schedule. Landlord will
provide the calculation
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and amount of the termination fee within thirty (30) days of any termination and
Tenant shall have thirty (30) days to review and object to such amount and the
calculation thereof.
ARTICLE 23 - OPTION TO RENEW.
Provided (a) the Lease is in full force and effect, (b) Tenant is not in
default hereunder at the time of notification or commencement, (c) neither the
Premises nor any part thereof have been sublet, (d) the Lease has not been
assigned, (e) Tenant is an occupant of the Building under this Lease and intends
to continue to use the Premises itself, and (f) that both at the time of
notification and commencement there has been no material adverse change in the
financial condition of the Tenant as reasonably determined by Landlord, Tenant
shall have one (1) option to renew the Lease for five (5) years (the "Renewal
Term") by notice in writing delivered to Landlord not less than nine (9) months
prior to the expiration of the then current term of the Lease. All of the
covenants, conditions and provisions of the Lease shall be applicable to the
Renewal Term, except that the Annual and Monthly Base Rent shall be adjusted to
reflect the current fair market rental for the Premises as of the date the
Renewal Term is to commence. Landlord shall advise Tenant of the new monthly
rental for the Renewal Term within thirty (30) days after a request therefor
from Tenant; Landlord's notification of the new rental may include an escalation
to provide for a change in the fair market rental between the time of
notification and the commencement of the Renewal Term. In no event shall the
Annual and Monthly Base Rent be subject to determination or modification by any
person, entity, court or authority other than as expressly set forth herein and
in no event shall the Annual and Monthly Base Rent for the Renewal Term be less
than the monthly rental during the last year of the then expiring term.
IN WITNESS WHEREOF, the parties have signed triplicate counterparts
hereof as of the date and year hereinabove set forth.
TENANT: Superhighway Consulting, Inc. LANDLORD: Great Lakes REIT, L.P.
By: Great Lakes REIT, Inc., its general
partner
By: By:
---------------------------------- -----------------------------------
Title: Title:
------------------------------- --------------------------------
Date: , 1998 Date: , 1998
-------------------------- -----------------------
ATTEST: ATTEST:
By: By:
----------------------------------- -----------------------------------
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EXHIBIT A
PLAN OF THE PREMISES
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EXHIBIT B
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, vestibules, or other
parts of the Building not occupied by Tenant shall not be obstructed or
encumbered by Tenant or used for any purpose other than ingress and egress to
and from the Premises. Landlord shall have the right to control and operate the
public portions of the Building, and the facilities furnished for the common use
of the all of the Building tenants, in such manner as Landlord deems best for
the benefit of the tenants generally. Tenant shall not invite people to visit
the Building or the Premises in such numbers or under such conditions as to
interfere with the use and enjoyment by other tenants of the entrances,
corridors, and other public portions or facilities of the Building.
2. Canvassing, soliciting and peddling in the Building are prohibited
and Tenant shall cooperate to prevent the same.
3. No hand trucks except those equipped with rubber tires and side
guards shall be used in any space, either by Tenant, its employees,
subcontractors, agents or invitees.
4. No bicycles, vehicles or animals, birds or pets of any kind shall be
brought into or kept in or about the Building or the Premises, except that
bicycles may be kept in bicycle racks located at the Building, if Landlord, at
its sole discretion chooses to provide such bicycle racks for the tenants' use.
5. Mats, trash or other objects shall not be placed in the public
corridors.
6. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by Tenant, nor shall any changes be made in existing locks
or the mechanism thereof. Tenant shall not make or permit to be made any keys
for any door to the Premises or the Building other than those provided by
Landlord, and if more than two keys for one lock are desired by Tenant, Landlord
may provide the same upon payment by Tenant. Tenant shall, upon the termination
of this tenancy, restore to Landlord all keys furnished to Tenant, and in the
event of the loss of any keys, so furnished, Tenant shall pay to Landlord the
cost thereof.
7. Awnings, projections, curtains, blinds, shades, screens or other
fixtures shall not be attached within the Premises or hung in the Premises
without the prior written consent of Landlord. Such items must be of a quality,
type, design and color, and attached in the manner approved by Landlord.
8. Tenant shall not install antennae, or aerial wires inside or outside
the Premises or the Building without the prior written consent of Landlord. The
use thereof, if permitted, shall be subject to control by Landlord to the end
that others shall not be disturbed or annoyed.
9. If Tenant desires telegraphic, telephonic, burglar alarm or signal
service, Landlord will direct electricians as to where and how telephone and
telegraph wires are to be introduced. No boring or cutting for wires will be
allowed without the consent of Landlord. The locations of
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telephones, call boxes and other office equipment affixed to the Premises shall
be subject to the approval of Landlord. Tenant shall not construct, maintain,
use or operate within the Premises or elsewhere within or on the outside of the
Building, any electrical device or apparatus in connection with any sound
system.
10. Unless Landlord gives prior written consent, Tenant shall not
install or operate any machinery, refrigerating or heating device or air
conditioning apparatus in or about the Premises or carry on any mechanical
business therein. Tenant shall not install in the Premises any equipment which
uses a substantial amount of electricity without the prior written consent of
Landlord. Tenant shall ascertain from Landlord the maximum amount of electrical
current which can safely be used in the Premises, taking into account the
capacity of the electric wiring in the Building and the Premises and the needs
of other tenants in the Building and shall not use more than the safe capacity.
Landlord's consent to the installation of electric equipment shall not relieve
Tenant from the obligation not to use more electricity than such safe capacity.
11. Tenant shall not waste water by tying, wedging or otherwise
fastening open any faucet. The toilet rooms, urinals, wash bowls and other
plumbing fixtures shall not be used for any purposes other than those for which
they were constructed, and no sweepings, rubbish rags, or other substances shall
be thrown therein. The cost of all damages resulting from any misuse of the
fixtures shall be borne by Tenant if its servants, employees, agents, visitors
or licensees, shall have caused the same.
12. Any person employed by Tenant to do janitor work within the Premises
must obtain Landlord's consent and such person shall, when in the Building and
outside of said Premises, comply with all instructions issued by Landlord.
13. Except as provided in Section 8.05, no inflammable, combustible or
explosive fluid, chemical or substance shall be brought or kept upon the
Premises.
14. Landlord shall have the right, exercisable with reasonable advance
notice and without liability to Tenant, to change the name and street address of
the Building of which the Premises are a part.
15. Tenant shall not make, or permit to be made, any unseemly or
disturbing noises or odors or disturb or interfere with other occupants of the
Building or neighboring Buildings whether by the use of any musical instrument,
radio, talking machine, unmusical noise, whistling, singing, or in any other
way.
16. No sign, advertisement or notice shall be inscribed, painted,
affixed or displayed on any part of the outside or the inside of the Building
except on the directories and the doors of offices, and then only in such place,
number, size, color and style as is approved by Landlord. If any such sign,
advertisement or notice is exhibited without Landlord's approval by Tenant,
Landlord shall have the right to remove the same and Tenant shall be liable for
any and all expenses incurred by Landlord by said removal. Any such permitted
use, including directories and name plates, shall be at the sole expense and
cost of Tenant.
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17. Tenant shall not use the name of the Building for any purpose other
than as the business address of Tenant and shall not use any pictures or
likeness of the Building in any circulars, notices, advertisements or
correspondence without Landlord's prior written consent.
18. Tenant and Tenant's employees, agents and patients shall park their
cars only in those portions of the parking area located on the Building as may
be designated for that purpose from time to time by Landlord.
19. Except such machines to be used exclusively by Tenant's employees,
no vending machine or machines of any description shall be installed, maintained
or operated upon the Premises without the prior written consent of Landlord. The
Premises shall not be used for the storage of merchandise, for washing clothes,
for lodging, or for any improper, objectionable or immoral purposes. Tenant
shall not cause or permit any unusual or objectionable odors to be produced upon
or permeate the Premises or the Building.
20. The requirements of Tenant will be attended to only upon application
at the office of Landlord. Employees or agents of Landlord shall not perform any
work or do anything outside of their regular duties unless under special
instruction from Landlord.
21. Tenant shall comply with all rules and regulations established by
Landlord regarding the disposition of all trash and waste materials in and about
the Premises including "Special Medical Wastes" described in any local, state,
or federal statutes, and will indemnify and hold harmless Landlord for any claim
of damages brought by any party as a result of Tenant's failure to follow such
regulations.
22. Landlord may, upon request by any tenant, waive the compliance by
such tenant of any of the foregoing rules and regulations, provided that (i) no
waiver shall be effective unless signed by Landlord or Landlord's authorized
agent, (ii) any such waiver shall not relieve such tenant from the obligation to
comply with such rule or regulation in the future unless expressly consented to
be Landlord, and (iii) no waiver granted to any tenant shall relieve any other
tenant from the obligation of complying with the foregoing rules and regulations
unless such other tenant has received a similar waiver in writing from Landlord.
Landlord shall not be liable to Tenant for violation of such rules and
regulations by, or for Landlord's failure to enforce the same against, any other
tenant, its subtenants and occupants and its and their agents, employees,
invitees or licensees, nor shall any such violation or failure constitute or be
treated as contributing to an eviction, actual or constructive, or affect
Tenant's covenants and obligations hereunder, or allow Tenant to reduce, xxxxx
or offset the payment of any Base Rent or other sum under this Lease.
23. Violation of these rules and regulations, or any amendments thereto,
shall be a default of Tenant under the terms of the Lease and shall be
sufficient cause for termination of this Lease at the option of Landlord or the
exercise of any other right or remedy, in accordance with the terms of Article
20 thereof.
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EXHIBIT C
CONSTRUCTION RIDER (LANDLORD RESPONSIBLE FOR WORK)
1. Landlord's Work. Landlord shall perform the work and make the installations
on the Premises, if any, substantially as set forth below ("Landlord's Work").
Other than as provided in this Construction Rider Landlord has no obligation to
improve, alter or remodel the Premises. Unless otherwise provided herein, all
such installations shall remain the property of Landlord.
A. Landlord shall enter into a contract with a licensed general
contractor ("GC"), for completion of the work necessary to finish the Premises
as shown in the "Working Drawings" (hereinafter defined) to be agreed upon by
Landlord and Tenant in accordance with Paragraph 1(B) below. All materials and
finishing shall be in accordance with the Building Standard as established by
Landlord in accordance with the Working Drawings. Any changes or additions to
the Working Drawings shall require written approval by Landlord, which approval
shall not constitute approval of any municipality or other authority having
jurisdiction. Working Drawings shall mean, collectively, the space plan dated
_______________________ prepared by ________________ , (the "Space Plan"), the
final plans and specifications for the Premises (the "Construction Drawings"),
including all plans prepared by ________ (the "Architect") and
___________________ (the "Engineer"), including but not limited to details of
partitions, doors, electrical and telephone outlets, ceilings, finishes,
sprinklers, heating, ventilating, sound attenuation, air conditioning, plumbing,
and electrical systems, finishes, paint, millwork, cabinetry and floor and wall
coverings in the Premises.
B. Landlord has caused or shall cause to be prepared Working Drawings
for the Premises. Landlord and Tenant and their respective consultants shall
review and discuss the Working Drawings, revise them as appropriate, and reach
agreement on the final Working Drawings. Landlord and Tenant, or their
authorized representatives, shall sign two sets of the Working Drawings and one
signed set shall be delivered to each party. The cost of the Working Drawings
shall be paid for initially by Landlord but shall be included as a part of the
"Tenant's Allowance" hereinafter specified.
C. Upon completion of the Working Drawings, Landlord shall immediately
make application to the appropriate regulatory authorities for the required
permits and approvals.
D. Upon receipt of a copy of the Working Drawings approved and signed by
Landlord, and receipt of necessary permits Landlord will cause GC to commence
construction.
E. Landlord shall pay the cost of Landlord's Work up to but not in
excess of an amount equal to $23.50 per square foot of Rentable Area in the
Premises ("Tenant's Allowance"). Tenant's Allowance was based on the
construction proposals solicited by Landlord from its contractor in good faith
but does not constitute a guaranty of the actual cost of Landlord's work. Such
costs shall include all construction costs, and all architect's, space
planner's, and construction management fees incurred by Landlord. In the event
that the cost of Landlord's Work exceeds the amount of the Tenant's Allowance,
Tenant shall pay to Landlord
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said excess amount within thirty (30) days of Tenant's receipt of Landlord's
statement of such excess costs.
F. Landlord's Work shall be completed in a good and workmanlike manner
in accordance with applicable laws.
G. Landlord shall make a good faith effort to make the Premises Ready
for Occupancy (as defined below) not later than the Target Commencement Date set
forth in Paragraph 1.01(J) of the Lease; provided, however, that the
Commencement Date shall be extended for a period equal to the period of any
delay encountered by Landlord because of Force Majeure (as defined in the
Lease), which shall include, in addition to other named events, Tenant Delays.
Landlord's obligation to complete Landlord's Work shall not require Landlord to
incur overtime costs and expenses, except to the extent the same are reimbursed
by Tenant to Landlord.
2. Tenant's Work. Tenant, at its sole cost and expense, shall perform all work
(other than Landlord's Work) in accordance with the terms of this Rider as
required to put the Premises in a condition to permit the conduct of Tenant's
business therein and in accordance with the requirements of this Lease.
A. When Landlord's Work has proceeded to the point where the work
described in the Working Drawings to be performed by Tenant and the installation
of Tenant's trade fixtures and equipment in the Premises (collectively "Tenant's
Work") can, in the opinion of Landlord, be commenced in accordance with good
construction practice, Landlord shall notify Tenant to that effect. After such
notice, Tenant shall have the right to occupy the Premises for the purpose of
performing Tenant's Work so far as its occupancy is not inconsistent with
Landlord's Work or any work to be done in the Building by Landlord, subject to
all the terms and condition of this Lease, except that the payment of Rent by
Tenant shall not commence until the Premises are Ready for Occupancy. All work
by Tenant shall be performed in accordance with and be subject to the terms and
conditions of Article 10 of the Lease.
B. Tenant acknowledges that entry onto the Premises when the Premises
are not Ready for Occupancy entails a risk of personal injury, death, or damage,
destruction, loss or misappropriation of property. To the extent not expressly
prohibited by law, Tenant hereby assumes all such risks for entry onto the
Premises, and agrees to defend and hold harmless Landlord (its agents,
contractors, employees and any lessor under any ground or underlying lease)
against all costs and expenses, including reasonable attorneys' fees in
connection therewith, arising out of any personal injury, death, or damage,
destruction, loss or misappropriation of property related to entry onto the
Premises by Tenant or its agents, employees, contractors, invitees or subtenants
prior to such time as the Premises are Ready for Occupancy, except to the extent
such costs or expenses arise out of the negligence or willful misconduct of
Landlord, its employees, agents or representatives (it being expressly
understood that for purposes of this Lease, Landlord's contractors,
subcontractors and their employees shall not be considered employees, agents or
representatives of Landlord).
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C. Tenant shall be solely responsible to determine at the site all
dimensions of the Premises and the Building which affect any work to be
performed by Tenant hereunder.
D. Neither review nor approval by Landlord of any plans or
specifications for Tenant's Work or any other work to be performed by Tenant
shall constitute a representation or warranty by Landlord that any of such plans
or specifications either (i) are complete or suitable for their intended
purpose, or (ii) comply with applicable laws, ordinances, codes and regulations,
it being expressly agreed by Tenant that Landlord assumes no responsibility or
liability whatsoever to Tenant or to any other person or entity for such
completeness, suitability, or compliance.
E. Once approved by Landlord, Tenant shall not make any changes,
modifications or additions to the any plans and specifications submitted to
Landlord for Tenant's Work or any other Leasehold Improvements without the prior
written consent of Landlord.
3. Punch List. Upon substantial completion of Landlord's Work, Landlord shall
notify Tenant that the Premises are ready for inspection. Tenant agrees to
inspect the Premises and to deliver to Landlord, within three (3) business days
after such notification, a written "Punch List" of any of Landlord's Work which
does not conform with the Working Drawings or which are otherwise reasonably
unsatisfactory to Tenant, including a specific reference to any conditions which
would materially affect the appearance or functioning of the Premises. Upon
receipt of the Punch List, Landlord agrees to diligently pursue the correction
of all Punch List items. The failure of Tenant to inspect the Premises, or to
prepare a written Punch List within the aforesaid period of time, shall be
deemed in acceptance of Landlord's Work and an acknowledgment that the Premises
are Ready for Occupancy by Tenant.
After Tenant has taken possession of the Premises, Landlord, its agents,
contractors, mechanics and workmen shall have the right to enter the Premises at
any time to complete Punch List items. Such entry by Landlord, its agents,
contractors mechanics or workmen for such purpose shall not constitute an actual
or constructive eviction in whole or in part, nor shall it entitle Tenant to any
abatement or diminution of Rent, nor shall it relieve Tenant from any of its
obligations under the Lease, nor shall it impose any liability upon Landlord.
4. Commencement Date. Notwithstanding anything to the contrary stated in this
Lease, the obligations of the Tenant to pay Rent to Landlord as otherwise
provided in this Lease shall not begin or commence until the "Commencement Date"
which for purposes of this Lease shall be the earlier of dates noted below:
A. The date upon which the Premises shall be "Ready for Occupancy",
which shall be the date when: (i) Landlord's Work is substantially completed;
(ii) Landlord has obtained all permits and governmental certificates (if any)
necessary for Tenant to fully occupy the Premises; and (iii) Landlord has
notified Tenant of (i) and (ii) above. The Premises shall be deemed Ready for
Occupancy notwithstanding Tenant Delays or a requirement to complete minor
corrective work or the fact that portions of the Building and Common Areas may
not be completed. In the
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event of any dispute as to whether the Premises are Ready for Occupancy, the
decision of Landlord's architect shall be final and binding on Landlord and
Tenant.
B. The date on which the Premises would have been Ready for Occupancy
but for Tenant Delays. For this purpose "Tenant Delays" shall include, but not
be limited to delays caused in whole or in part by: (i) Tenant's failure to
approve plans or specifications as required in this Construction Rider; or (ii)
due to special work, changes, alterations or additions required or made by
Tenant in the layout or finish of the Premises or any part thereof following the
approval of the Construction Documents; or (iii) Tenant's delay in approving
plans or materials (e.g. carpet or paint), giving authorizations; or (iv) delay
in the completion of Tenant's Work; or (v) any other delay and/or default on the
part of Tenant.
5. Miscellaneous. This Construction Rider is expressly made a part of the Lease
and is subject to each and every term and condition thereof, including, without
limitation, the limitations on liability set forth therein.
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EXHIBIT D
CONFIRMATION OF COMMENCEMENT DATE
THIS CONFIRMATION OF COMMENCEMENT DATE is made as of this day of
________, 199_, by and between GREAT LAKES REIT, INC., a Maryland corporation
("Landlord") and _________________________ , a _______________________
("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into a written lease dated
______________ , _____ , (the "Lease") for Suite ______ , at ___________________
; and
WHEREAS, the Premises have now been delivered to Tenant; and
WHEREAS, Landlord and Tenant now desire to confirm the actual
Commencement Date [and correct the Schedule of Base Rent to reflect the actual
Commencement Date].
NOW, THEREFORE, in consideration of the mutual covenants and conditions
hereinafter contained, Landlord and Tenant hereby agree as follows:
1. Commencement Date. The Commencement Date of the Lease is
_______________ , 19__ .
[2. Base Rent. Tenant shall pay as Base Rent for the Lease Term the
following amounts:
Period Annual Base Rent Monthly Base Rent]
3. Terms of Lease. Capitalized terms used but not defined herein shall
have the meanings ascribed thereto in the Lease.
4. Incorporation of the Lease. Except as otherwise modified hereby, the
terms and covenants of the Lease remain in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Confirmation
as of the day and year first above written.
LANDLORD:
GREAT LAKES REIT, INC.
By:
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Its:
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TENANT:
By:
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Its:
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