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EXHIBIT 10.9
TENANT : MOTIVATION NET INC.
PROPERTY:
WOODFIELD FINANCIAL CENTRE
0000 XXXX XXXXXXXXX XXXX
XXXXXXXXXX, XXXXXXXX 00000
SUITE 540
PREMISES RENTABLE SQUARE FOOTAGE: 1,954
TENANT PROPORTIONATE SHARE : 1.07%
TERM OF LEASE (3 YEARS)
COMMENCEMENT DATE: XXXXX 0, 0000
XXXXXXXXXXX DATE: MARCH 31, 2001
SECURITY DEPOSIT : $20,000.00
DATE OF LEASE: JANUARY 22, 1998
OFFICE LEASE
BETWEEN
THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK
LANDLORD,
AND
MOTIVATION NET INC.
TENANT
MKS: January 22, 1998
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TABLE OF CONTENTS
Section Page
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1. Base Rent ................................................................. 1
2. Additional Rent ........................................................... 1
3. Security Deposit ........................................................... 5
4. Use of Premises ............................................................ 6
5. Services................................................................... 7
6. Condition and Care of Premises ............................................ 9
7. Return of Premises ......................................................... 9
8. Holding Over .............................................................. 10
9. Rules and Regulations .................................................... 10
10. Rights Reserved to Landlord ............................................... 12
11. Alterations ............................................................... 12
12. Assignment and Subletting ................................................. 13
13. Waiver of Certain Claims; Indemnity by Tenant ............................ 15
14. Damage or Destruction by Casualty ......................................... 15
15. Eminent Domain ............................................................ 18
16. Default: Landlord's Rights and Remedies .................................. 20
17. Subordination ............................................................. 18
18. Mortgagee and Ground Lessor Protection .................................... 20
19. Default Under Other Leases ................................................ 20
20. Insurance ................................................................. 20
21. Nonwaiver ................................................................. 21
22. Estoppel Certificate ..................................................... 21
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Section Page
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23. Tenant-Corporation or Partnership ............................................ 22
24. Real State Brokers ........................................................... 22
25. Notices ...................................................................... 22
26. Miscellaneous ................................................................ 23
27. Delivery of Possession ..................................................... 24
28. Substitution of Premises ................................................... 24
29. Signs ....................................................................... 24
30. Landlord ..................................................................... 25
31. Title and Covenant Against Liens ............................................ 25
32. Exculpatory Provisions ....................................................... 25
33. Financial Statements ......................................................... 26
34. Premises Improvement ........................................................ 26
35. Condition to Lease ........................................................... 26
Exhibit A - Description of Premises
Exhibit B - Base Rent
Exhibit C - Rules and Regulations
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OFFICE LEASE
THIS OFFICE LEASE, made as of January 22, 1998, WITNESSETH: THE MUTUAL
LIFE INSURANCE COMPANY OF NEW YORK (herein called "Landlord"), hereby leases to
MOTIVATION NET INC. (herein called "Tenant"), and Tenant hereby accepts the
premises as outlined on the floor plan attached hereto as Exhibit A known as
suite 540 (herein called "Premises" in the building located at 0000 Xxxx
Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (herein called "Building"), for a
term (herein called "Term") of three (3) years commencing (the "Commencement
Date") on April 1, 1998 and ending on March 31, 2001, unless sooner terminated
as provided herein, paying as rent therefor the sums hereinafter provided,
without any setoff, abatement, counterclaim or deduction whatsoever, except as
set forth below.
IN CONSIDERATION THEREOF, THE PARTIES HERETO COVENANT AND AGREE:
1. BASE RENT. Tenant shall pay an annual base rent (herein called "Base
Rent") to Landlord for the Premises which Base Rent shall be payable in equal
monthly installments (herein called 'Monthly Base Rent"), in advance on the
first day of each calendar month of the Term in the amounts set forth in, and in
accordance with the provisions of. Exhibit B. attached hereto and incorporated
herein by this reference thereto. If the Term shall begin on any date except the
first day, or shall end on any day except the last day of a calendar month, Base
Rent shall be payable at a per diem rate based on the then current monthly
payment.
Base Rent, Additional Rent (as hereinafter defined), and all other
amounts becoming due from Tenant to Landlord hereunder (herein collectively
called the "Rent") shall be paid in lawful money of the United States to
Landlord at the office of Landlord, or as otherwise designated from time to time
by written notice from Landlord to Tenant. Concurrently with the execution
hereof and at Landlord's request, Tenant shall pay Landlord Monthly Base Rent
for the first full calendar month of the Term.
Landlord may authorize Tenant to take possession of all or any part of
the Premises prior to the beginning of the Term. If Tenant does take possession
pursuant to authority so given. all of the covenants and conditions of this
lease shall apply to and shall control such pre-Term occupancy. Rent for such
pre-Term occupancy shall be paid upon occupancy and on the first day of each
calendar month thereafter at the rate set forth in Sections 1 and 2 hereof, If
the Premises are occupied for a fractional month. Rent shall be prorated on a
per diem basis for such fractional month. The payment of Rent hereunder is
independent of each and every oilier covenant and agreement contained in this
lease.
2. ADDITIONAL RENT. In addition to Base Rent, Tenant shall also pay
Additional Rent (as hereinafter defined) in accordance with the following
provisions:
(a) DEFINITIONS. As used in this lease,
(i) "Expenses" shall mean and include all expense, costs,
fees and disbursements paid or incurred by or on
behalf of Landlord for owning, managing, operating,
maintaining and repairing the "Real Property"
(hereinafter defined) and the personal property used
in conjunction therewith (said Real Property aria
personalty being herein collectively called the
"Project"'), including (without limitation): the cost
of electricity. steam, water, gas. fuel. heating.
lighting, air conditioning; window cleaning;
insurance, including but not limited to, fire,
extended coverage, liability, workmen's compensation,
elevator, or any other insurance carried by
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Landlord and applicable to the Project; painting;
uniforms; management fees; supplies, sundries, sales
or use taxes on supplies or services; cost of wages
and salaries of all persons engaged in the operation,
administration, maintenance and repair of the
Project; and fringe benefits, including 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,'
administration, maintenance and repair of the
Project; the charges of any independent contractor
who, under contract with Landlord or its
representatives, does any of the work of operating,
maintaining or repairing of the Project; legal and
accounting expenses, including, but not to be limited
to, such expenses as relate to seeking or obtaining
reductions in and refunds of real estate taxes; any
costs or expenses allocated to the Project under
easement agreements, service or operating agreements,
declarations, covenants or other instruments
providing for sharing of facilities or payment for
services; or any other expense or charge, whether or
not hereinbefore mentioned, which would be considered
as an expense of owning, managing, operating,
maintaining or repairing the Project. Expenses shall
not include costs or other items included within the
meaning of the term "'Taxes" (as hereinafter
defined), costs of alterations of the premises of
tenants of the Building, costs of capital
improvements to the Real Property, depreciation
charges, interest and principal payments on
mortgages, ground rental payments, and real estate
brokerage and leasing commissions, except as
hereinafter otherwise provided. Notwithstanding
anything contained in this clause (i) of Section 2(a)
to the contrary.
(A) The cost of any capital improvements to
the Real Property made after the date of this lease
which are intended to reduce Expenses or enhance the
safety of the Real Property or which are required
under any governmental laws, regulations, or
ordinances applicable to the Real Property, whether
or not in effect at the date this lease was executed.
amortized over such reasonable period as Landlord
shall determine, together with interest on the
unamortized cost of any such improvement (at the
prevailing loan rate available to Landlord on the
date the cost of such improvement was incurred) shall
be included in Expenses.
(B) If the Building is not at least
ninety-five percent (95%) occupied by tenants during
all or a portion of any year, or if during all or a
portion of any year landlord is not furnishing to any
tenant or tenants any particular service, the cost of
which, if furnished by Landlord, would be included in
Expenses, then Landlord may elect to make an
appropriate adjustment for such year of components of
Expenses and the amounts thereof which may vary
depending upon the occupancy level of the Building or
with the number of tenants using the service, such
that the amount of such variable components of
Expenses which would have been incurred if the
Building had been folly occupied during the entire
year or Landlord had furnished such service at
Landlord's expense to all existing Tenants for the
entire year shall be deemed costs and expenses paid
or incurred by Landlord and included in Expenses for
such year.
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(ii) "Taxes" shall mean real estate taxes, assessments
(whether they be general or special), sewer rents,
rates and charges, transit taxes, taxes based upon
the receipt of rent, and any other federal, state or
local governmental charge, genera[, special, ordinary
or extraordinary (but not including income or
franchise taxes, capital stock, inheritance, estate,
gift, or any other taxes imposed upon or measured by
Landlord's income or profits, unless the same shall
be imposed in lieu of real estate taxes or other ad
valorem taxes), which may now or hereafter be levied,
assessed or imposed against the Building or the land
on which the Building is located (the "Land"), or
both. The Building and the Land are herein
collectively. called the "Real Property".
Notwithstanding anything contained in this clause
(ii) of Section 2(a) to the contrary.
(A) If at any time during the Term of this
lease the method of taxation then prevailing shall be
altered so that any new tax, assessment, levy,
imposition or charge or any part thereof shall be
imposed upon Landlord in place or partly in place of
any such Taxes, or contemplated increase therein, and
shall be measured by or be based in whole or in part
upon the Real Property or the rents or other income
therefrom, then all such new taxes, assessments,
levies, impositions or charges or part thereof, to
the extent that they are so measured or based, shall
be included in Taxes levied, assessed or imposed
against the Real Property to the extent that such
items would be payable if the Real Property were the
only property of Landlord subject thereto and the
income received by Landlord from the Real Property
were the only income of Landlord.
(B) Notwithstanding the year with respect to
which any such taxes or assessments are levied, (i)
in the case of special taxes or assessments which may
be payable in installments, the amount of each
installment, plus any interest payable thereon, paid
during a calendar year shall be included in Taxes for
that year and (ii) if any taxes or assessments
payable during any calendar year shall be computed
with respect to a period in excess of twelve calendar
months, then taxes or assessments applicable to the
excess period shall be included in Taxes for that
yeas'. Except as provided in the preceding sentence,
all references to Taxes "for" a particular year shall
be deemed to refer, at Landlord's option, to: (i)
Taxes levied, assessed or imposed for such year
without regard to when such Taxes are payable, or
(ii) Taxes paid or payable for such year, without
regard to when such Taxes are levied, assessed or
imposed, so long as Landlord throughout the Term
consistently applies the chosen method of determining
Taxes.
(C) Taxes shall also include any personal
property taxes (attributable to the calendar year in
which paid) imposed upon ,the. furniture, fixtures,
machinery, equipment, apparatus, systems and
appurtenances used in connection with the Real
Property or Project or the operation thereof.
(D) If the Building is not at least
ninety-five percent (95%) occupied by tenants during
all or n portion of any year. then Landlord may elect
to make
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an appropriate adjustment for such year of components
of Taxes which may vary depending upon the occupancy
level of the Building such that the amount of such
Taxes which would have been incurred if the Building
had been fully occupied during the entire year shall
also be deemed taxes levied or assessed against the
Real Property and included in Taxes for such year.
(iii) "Rentable Area of the Building" shall be decreed to be
182,295 square feet. If, during the Term of this lease, the
actual Rentable Area of the Building is increased or decreased
as a result of adding space to the Building or removing space
from the Building, Landlord may change the Rentable Area of
the Building and Tenant's Proportionate Share by written
notice to Tenant.
(iv) "Rentable Area of the Premises" shall be deemed to be
1,954 square feet.
(v) "Tenant's Proportionate Share" shall mean 1.07 % which is
the percentage obtained by dividing the Rentable Area of the
Premises by the Rentable Area of the Building.
(vi) "Additional Rent" shall mean Tenant's Proportionate Share
of Taxes and Expenses.
(b) COMPUTATION OF ADDITIONAL RENT. Tenant shall pay Tenant's
Proportionate Share of Taxes and Expenses.
(c) PAYMENTS OF ADDITIONAL RENT; PROJECTIONS. Tenant shall make
payments on account of its Additional Rent with respect to each year
effective as of the first day of each calendar year (the "Adjustment
Date") as follows:
(i) Landlord may, prior to each Adjustment Data or from
time to time during the year, deliver to Tenant a
written notice or notices ('Projection Notice")
setting forth (A) Landlord's reasonable estimates,
forecasts or projections (collectively, the
"Projections") of Taxes and Expenses with respect to
such year. and (B) Tenant's Proportionate Share of
Taxes and Expenses with respect to such year based
upon the Projections.
(ii) Until such time as Landlord furnishes a Projection
Notice with respect to any year, Tenant shall pay to
Landlord a monthly installment of Additional Rent (at
the time of and together with each payment of Monthly
Base Rent) equal to the latest monthly installment of
Additional Rent. On or before the first-day of the
next calendar month following Landlord's service of a
Projection Notice, and on or before the first day of
each month thereafter, Tenant shall pay to Landlord
one-twelfth (1/12) of Tenant's Proportionate Share of
Taxes and Expenses shown in the Projection Notice.
Within fifteen (15) days following Landlord's Service
of a Projection Notice. Tenant shall also pay
Landlord lump sum equal to the monthly Tenant's
Proportionate Share of Taxes and Expenses shown in
the Pro- jection Notice for January to and including
the month(s) in which the Projection Notice was sent
(the "Gap Period") less tile sum of any previous
payments of Additional Rent made during such Gap
Period.
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(d) READJUSTMENTS. At any time and from time to tithe
following the end of each year (and after Landlord shall have
determined the actual amounts or' Taxes and Expenses to be used in
calculating Tenant's Proportionate Share of Taxes and Expenses with
respect to such year) if the actual Tenant's Proportionate Share of
Taxes and Expenses owed for such year exceeds the Additional Rent paid
by Tenant during such year, then Tenant shall, within thirty (30) days
after the date of Landlord's statement, pay to Landlord an amount equal
to such excess. If the Additional Rent paid by Tenant during such year
exceeds the actual Tenant's Proportionate Share of Taxes and Expenses
owed for such year, then Landlord shall credit such excess to Rent
payable after the date of Landlord's statement until such excess has
been exhausted. If this lease shall expire prior to full application of
such excess, Landlord shall pay to Tenant the balance thereof not
theretofore applied against Rent and not reasonably required for
payment of Additional Rent for the year in which the lease expires. No
interest or penalties shall accrue on any amounts which Landlord is
obligated to credit or pay to Tenant by reason of this Section 2(d).
Unless Tenant shall take written exception to any item within thirty
(30) days after the furnishing of Landlord's statement, Landlord's
statement shall be considered as final and accepted by Tenant.
(e) PRORATION AND SURVIVAL. With respect to any year which
does not fall entirely within the Term, Tenant shall be obligated to
pay as Additional Rent for such year only a pro rata share of
Additional Rent as hereinabove determined, based upon the number of
days of the Term falling within the year., Following expiration or
termination of this lease, Tenant shall pay any Additional Rent due to
Landlord within fifteen (15) days after the date of Landlord's
statement sent to Tenant. Without limitation on other obligations of
Tenant which shall survive the expiration or termination of this lease,
the obligations of Tenant to pay Additional Rent provided for in this
Section 2 shall survive the expiration or termination of this lease.
(f) NO DECREASE IN BASE RENT. In no event shall any Additional
Rent result in a decrease of the Base Rent payable hereunder as set
forth in Section 1 hereof.
3. SECURITY DEPOSIT. Tenant has deposited with Landlord the sum of
$20,000.00 as security for the full and faithful performance of every provision
of this lease to be performed by Tenant and every obligation of Tenant owing
Landlord, If Tenant defaults with respect to any obligation owing Landlord
and/or any provision of this lease, including, but not limited to, the
provisions relating to the payment of Rent, Landlord may use. apply or retain
all or any part of this security deposit for the payment of any Rent and any
other sum in default, or for the payment of any other 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 of said deposit is to be used or
applied, Tenant shall within five (5) days after written demand therefor deposit
cash with Landlord in an amount sufficient to restore the security deposit pound
sterlingo its original amount and Tenant's failure to do so shall be a material
breach of this lease. Tenant may not elect to apply any portion of the security
deposit toward the payment of Rent or other charges payable by Tenant under this
lease. Landlord shall not be required to keep this security deposit separate
from its general funds and Tenant shall not he entitled to interest on such
deposit. If Tenant shall fully and faithfully perform every obligation of Tenant
owing Landlord and every provision of this lease to be performed by Tenant it,
the security deposit or any balance thereof shall be returned to Tenant (or at
Landlord's option to the last assignee of Tenant's interest hereunder) within
thirty (30) days after the expiration of the lease Term axed Tenant's vacation
of the Premises, Tenant hereby agrees not to look to any mortgagee as mortgagee,
mortgagee in possession, or successor in title to the Bull(ling for
accountability for any security deposit required by Landlord hereunder, unless
said sums have actually been received by said mortgagee or successor in title as
security for Tenant's
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performance of this lease. In connection with a purchase of the Building, the
security deposit shall be deemed to have been actually received by the purchaser
to the extent same received a credit therefor on any so called "closing"
statement or the like. Landlord may deliver the funds deposited hereunder by
Tenant to the purchaser of Landlord's interest in the Building, in the event
that such interest is sold, or credit same on any closing statement, and
thereupon Landlord shall be discharged from any further liability with respect
to such security deposit.
4. USE OF PREMISES. Tenant shall use and occupy the Premises for
general office purposes, and for no other use or purpose. Tenant shall not use
or occupy the Premises or permit the use or occupancy of the Premises for any
purpose or in any manner which (i) is unlawful or in violation of any applicable
legal or governmental requirement, ordinance or rule: (ii) may be dangerous to
persons or property: (iii) may invalidate or increase the amount of premiums for
any policy of insurance affecting the Project, and if any additional amounts of
insurance premiums are so incurred, Tenant shall pay to Landlord the additional
amounts on demand; or (iv) may create a nuisance, disturb any other tenant of
the Building or injure the reputation of the Building.
Tenant shall not cause or permit any Hazardous Material (as defined
below) to be brought upon, kept. or used in or about the Premises or the Project
by Tenant, its agents. employees, contractors. or invitees, without the prior
written consent of Landlord (which Landlord shall not unreasonably withhold as
long as Tenant demonstrates to Landlord's reasonable satisfaction that such
Hazardous Material is necessary or useful to Tenant's business and will at all
times be used, kept, stored and disposed of in a manner that complies at all
times with all laws regulating any such Hazardous Material so brought upon or
used or kept in or about the Premises and/or the Project and such storage will
not create an undue risk to oilier tenants of the Building, giving consideration
to the nature of the Building). If Tenant breaches the obligations stated in the
preceding sentence, or if the presence of Hazardous Material on the Premises or
the Project caused or permitted by Tenant results in contamination of the
Premises or tile Project, or if contamination of the Premises or the Project, by
Hazardous Material otherwise occurs for which Tenant is legally liable to
Landlord for damage resulting therefrom, then Tenant shall indemnify. defend and
hold Landlord harmless from any and all claims. judgments, damages, penalties,
fines, costs, liabilities. or losses (including, without limitation. diminution
in value of the Premises or the Project, damages for the loss or restriction on
use of rentable or usable space or of any amenity of the Premises or the
Project, damages arising from any adverse impact on marketing of space in the
Building, and sums paid in settlement of claims, attorneys' Fees, consultant
fees and expert fees) which arise during or after the term of this lease as a
result of such contamination. This indemnification of Landlord by Tenant
includes, without Limitation, costs incurred in connection with any
investigation of site conditions or any cleanup, remedial. removal or
restoration work required by any federal, state, or local governmental agency or
political subdivision because of Hazardous Material present in, on, or about the
Premises or the Project or in file soil or ground water on or under the Premises
or the Project. Without limiting the foregoing,if the presence of any Hazardous
Material in. on or about the Premises or the Project caused or permitted by
Tenant results in any contamination of the Premises or the Project, Tenant shall
promptly take all actions at its expense as are necessary to return the Premises
or the Project to the condition existing prior to the introduction of any such
Hazardous Material thereto; provided that Landlord's approval of such actions
shall first be obtained, which approval shall not be unreasonably withheld so
long as such actions would not potentially have any material (as determined by
Landlord) adverse long-term or short-term effect on the Premises or the Project
or exposes Landlord to any liability therefor and such actions are undertaken in
accordance with all applicable laws. rules and regulations and accepted industry
practices.
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"Hazardous Material" is used in this lease in its broadest sense and
shall mean any asbestos, petroleum based products, pesticides, paints and
solvents, polychlorinated biphenyl, lead, cyanide, DDT, acids, ammonium
compounds and other chemical products and any substance or material defined or
designated as hazardous or toxic substance, or other similar term, by any
federal, state or local environmental statute, regulation, or ordinance
affecting the Premises or the Project presently in effect or that may be
promulgated in the future, as such statutes, regulations and ordinances may be
amended from time to time, including but not limited to the statutes listed
below: '
Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901
et seq.
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, 40 U.S.C. Section 1801 et seq.
Clean Air Act, 42 U.S.C. Sections 7401-7626.
Water Pollution Control Act (Clean Water Act of 1977), 33 U.S.C.
Section 1251 et seq.
Insecticide, Fungicide, and Rodenticide Act (Pesticide Act of 1987), 7
U.S.C..Section 135 et seq.
Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.
Safe Drinking Water Act, 42 U.$.C. Section 300(f) et seq.
National Environmental Policy Act (NEPA) 42 U.S.C. Section 4321 et seq.
Refuse Act of 1899, 33 U.S.C. Section 407 et seq.
5. SERVICES. Landlord shall furnish the following services, which shall
all be deemed Expenses (except to the extent to be paid entirely by Tenant, as
hereinafter provided):
(a) Heat and air conditioning to provide a temperature condition
required for comfortable occupancy of the Premises for general office purposes
under normal business operations, daily from 8:00 A.M. to 6:00 P.M. and
Saturdays from 8:00 A.M. to 1:00 P.M.. Sundays and holidays excepted ("Building
Standard Hours").
(b) Electricity and gas to the Premises and the building in which the
Premises is located to meters furnished by the local utility companies. Tenant
shall make all arrangements with the local utility companies to obtain service
at Tenant's sole cost and expense, and no such disconnection of gas or
electricity service shall result in any liability of Landlord to Tenant or be
deemed to be an eviction or a disturbance of Tenant's use of the Premises.
(c) Janitor service in and about that portion of the Premises to be
used for general office purposes, Saturdays, Sundays and holidays excepted, in
accordance with other buildings of the same class located in the general area of
the Building.
(d) Passenger elevator service in common with Landlord and other
tenants, and freight elevator service in common with Landlord and other tenants
during Building Standard Hours. Landlord, however.
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shall provide limited passenger elevator service during non Building Standard
Hours. Freight elevator service shall be subject to scheduling and charges by
Landlord.
(e) Cold water for drinking, lavatory and toilet purposes and hot water
for lavatory purposes, in restrooms at locations designated by Landlord, in
common with other tenants of the Building. Tenant shall pay Landlord Additional
Rent at rates fixed by Landlord for water furnished for sinks or restrooms
within the Premises or for any other purpose. Tenant shall not waste or permit
the waste of water.
(f) Landlord shall not be obligated to famish any services other 'than
those services specified or to furnish such services at times other than as
specified. If Landlord agrees to provide extra or additional services, Tenant
shall, for such extra or additional services, pay 120% of Landlord's actual coat
reasonably incurred in providing them, such amount to be considered Additional
Rent hereunder. All charges for such extra or additional services shall be due
and payable at the same time as the installment of Base Rent with which they are
billed, or if billed separately, shall be due and payable within ten (10) days
after such billing. Any such xxxxxxxx for extra or additional services shall
include an itemization of the extra or additional services rendered, and the
charge for each such service.
It is acknowledged and agreed that Tenant shall apply to the applicable
utility company or municipality for gas, electricity, telephone and all other
utility services required by Tenant for use in Premises, and Tenant shall be
responsible for the connection and installation of same. In the event that any
such utilities are provided to Tenant in common with other tenants in the
Building and not metered directly to Tenant, Tenant agrees to pay Landlord for
such utility usage based upon Landlord's allocation of such utility usage among
such tenants, including Tenant. In the event Tenant fails to pay any utility
xxxx within forty-five (45) days after the due date, Landlord may but shall not
be obligated to pay such bills (without any duty to investigate the validity
thereof), in which event Tenant shall immediately reimburse Landlord for the
amount paid by Landlord plus interest at the default interest rate set forth in
this lease.
Failure by Tenant to promptly pay Landlord's proper charges for water,
electricity or other services shall give Landlord, upon not less than thirty
(30) days' notice, the right to discontinue furnishing the services, and no such
discontinuance shall be deemed an eviction or disturbance of Tenant's use of the
Premises or render Landlord liable for damages or relieve Tenant from
performance of Tenant's obligations under this lease.
Tenant agrees that Landlord and its agents shall not be [table in
damages, by abatement of Rent or otherwise, for failure to furnish or delay in
furnishing any service or failure to perform or delay in performing any other
obligation required to be performed by Landlord under this lease or by operation
of law, when such failure or delay is occasioned, in whole or in part, by
repairs, renewals or improvements, by any strike. lockout or other labor
trouble, by inability to secure electricity, gas, water, .or other fuel at the
Building after reasonable effort so to do, by any accident or casualty
whatsoever, by the act or default of Tenant or other parties, or by any cause
beyond the reasonable control of Landlord; and such failures or delays, or the
nonexistence of any utility, whether occasioned by Landlord or some third party,
shall never be deemed to constitute an eviction or disturbance of Tenant's use
and possession of the Premises or relieve Tenant from paying Rent or performing
any of its obligations under this lease.
Tenant agrees to cooperate fully, at all times with Landlord in abiding
by all reasonable regulations and requirements which Landlord may prescribe for
the proper functioning and protection of all utilities and services reasonably
necessary for the operation of the Premises and the Building. Landlord,
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throughout the term of this lease, shall have free access to any and all
mechanical installations. and Tenant agrees that there shall be no construction
or partitions or other obstructions which might interfere with moving of the
servicing equipment of Landlord to or from the enclosures containing said
installations, Tenant further agrees that neither Tenant nor its servants,
employees, agents, visitors, licensees or contractors shall at any time tamper
with, adjust or otherwise in any manner affect Landlord's mechanical
installations.
6. CONDITION AND CARE OF PREMISES. Tenant's taking possession of the
Premises or any portion thereof shall be conclusive evidence against Tenant that
the portion of the Premises taken possession of was then in good order and
satisfactory condition. No promises of Landlord to alter, remodel, improve,
repair, decorate or clean the Premises or any part thereof have been made, and
no representation respecting the condition of the Premises, the Building or the
Land, has been made to Tenant by or on behalf of Landlord except to the extent
expressly set forth herein (and except to such extent, Tenant is taking the
Premises in its "as is" condition). Tenant agrees that blinds, shades, drapes or
other forms of window coverings and treatments shall not be placed in, on or
about the outside windows in fine Premises, except to the extent that the
character, shape, color, material and make thereof is expressly approved by
Landlord. This lease does not grant any rights to light or air over or about the
property of Landlord. Except for any damage resulting from any act of Landlord
or its employees and agents, and subject to the provisions of Section 14 hereof,
Tenant shall at its own expense keep the Premises in good repair and tenantable
condition and shall promptly and adequately (i) repair all damage to the
Premises caused by Tenant or any of its employees, agents or invitees, including
replacing or repairing all damaged or broken glass. fixtures and appurtenances
resulting from any such damage, and (ii) maintain and, to the extent necessary,
alter the Premises in accordance and compliance with all applicable governmental
laws and regulations both currently existing and hereinafter enacted. with any
such work to the Premises to be performed, under the supervision and with the
approval of Landlord and within any reasonable period of time specified by
Landlord. If Tenant does not do so promptly and adequately, Landlord may, but
need not, make such repairs and replacements and Tenant shall pay Landlord the
cost thereof on demand.
7. RETURN OF PREMISES. At the termination of this lease by lapse of
time or otherwise or upon termination of Tenant's right of possession without
terminating this lease, Tenant shall surrender possession of the Premises to
Landlord and deliver all keys to the Premises to Landlord and make known to
Landlord the combination of all locks of vaults then remaining in the Premises.
and shall (subject to the following paragraph) return the Premises and all
equipment and fixtures of Landlord therein to Landlord in as good condition as
when Tenant originally took possession, ordinary wear. loss or damage by [ire or
other insured casualty. damage resulting from the act of Landlord or its
employees and agents, and alterations made with Landlord's consent excepted,
failing which Landlord may restore the Premises and such equipment and fixtures
to such condition and Tenant shall pay the cost thereof to Landlord on demand.
All installations, additions. partitions. hardware, light fixtures,
non-trade fixtures and improvements, temporary or permanent. except movable
furniture and equipment belonging to Tenant. in or upon tile Premises. whether
placed there by Tenant or Landlord. shall be Landlord's property and shall
remain upon the Premises. all without compensation. allowance or credit to
Tenant; provided. however, that if prior to such termination or within ten (10)
days thereafter Landlord so directs by notice. Tenant, at Tenant's sole cost and
expense. shall promptly remove such of the installations. additions. partitions,
hardware, light fixtures, non-trade fixtures and improvements placed in the
Premises by Tenant as designated in such notice and repair any damage to the
Premises caused by such removal. failing which Landlord may remove the same and
repair the Premises and Tenant shall pay the cost thereof to Landlord
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on demand.
Tenant shall leave in place any floor covering without compensation to
Tenant. Tenant shall also remove Tenant's furniture, machinery, safe, trade
fixtures and other items of movable personal property of every kind and
description from the Premises prior to the end of the Term or ten (10) days
following termination of this lease or Tenant's right of possession, whichever
might be earlier, failing which Landlord may do so and thereupon the provisions
of Section 16(c) shall apply.
All obligations of Tenant hereunder shall survive the expiration of the
Term or sooner termination of this lease.
8. HOLDING OVER. Tenant shall pay Landlord for each day Tenant retains
possession of the Premises or any part thereof after termination of this lease,
by lapse of time or otherwise, an amount which is double the amount of Rent for
a day (computed on a year of 360 days) based on the annual rate of Base Rent and
Additional Rent applicable under Sections 1 and 2 to the period in which such
possession occurs (and if such possession occurs following the full Term of this
lease, double the annual Base Rent Additional Rent applicable in the last year
of this lease), and Tenant shall also pay all damage, consequential as well as
direct, sustained by Landlord' by reason of such retention. If Landlord gives.
written notice to Tenant of Landlord's election thereof such holding over shall
constitute a renewal of this lease for one year at a market rate determined by
Landlord, but acceptance by Landlord of rent after such termination shall not of
itself constitute a renewal. Nothing in this Section contained, however, shall
be construed or operate as a waiver of Landlord's right of re-entry or any other
right of Landlord.
9. RULES AND REGULATIONS. Tenant agrees to observe the rights reserved
to Landlord contained in Section 10 hereof and agree, for itself, its employees,
agents, clients, customers, invitees and guests, to comply with the rules and
regulations set forth in Exhibit C attached to this lease and by this reference
incorporated herein and such other rules and regulations as shall be adopted by
Landlord pursuant to Section 10(m) of this lease.
Any violation by Tenant of any of the rules and regulations contained
in Exhibit C attached to this lease or other Section of this lease, or as may
hereafter be adopted by Landlord pursuant to Section 10(m) of this lease, may be
restrained: but whether or not so restrained, Tenant acknowledges and agrees
that it shall be and remain liable for all damages, loss, costs and expense
resulting from any violation by Tenant of any of said rules and regulations.
Nothing in this lease contained shall be construed to impose upon Landlord any
duty or obligation to enforce said rules and regulations, or the terms,
covenants and conditions of any other lease against any other tenant or any
other persons, and Landlord and its beneficiaries shall not be liable to Tenant
for violation of the same by any other tenant, its employees, agents, invitees,
or by any other person.
10. RIGHTS RESERVED TO LANDLORD. Landlord reserves the following
rights, exercisable without notice and without liability to Tenant for damage or
injury to property, person or business and without effecting an eviction or
disturbance of Tenant's use or possession or giving rise to any claim for setoff
or abatement of rent or affecting any of Tenant's obligations under this lease:
(a) To change the name or street address of the Building.
(b) To install and maintain signs on the exterior and interior of the
Building, and to prescribe
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the location and style of the suite number and identification sign or lettering
for the Premises occupied by Tenant.
(c) To designate the character. shape, color, material and make of all
window coverings and treatments on all outside windows in the Premises.
(d) To retain at all times, and to use in appropriate instances, pass
keys to the Premises.
(e) To grant to anyone the right to conduct any business or render any
service in the Building, whether or not it is the same as or similar to the use
expressly permitted to Tenant by Section 4.
(f) To exhibit the Premises at reasonable hours.
(g) To decorate, remodel, repair, alter or otherwise prepare the
Premises for reoccupancy at any time after Tenant vacates or abandons the
Premises.
(h) To have access for Landlord and other tenants or occupants of the
Building to all mail chutes according to the rules of the United States Postal
Service.
(i) To enter the Premises at reasonable hours for reasonable purposes,
including the posting of notices of nonresponsibility. inspection and supplying
janitor service or other services to be provided to Tenant hereunder.
(j) To require all persons entering or leaving the Building during such
hours as Landlord may from time to time reasonably determine to identify
themselves to security personnel by registration or otherwise, and to establish
their fight to enter or leave. Landlord shall not be liable in damages for any
error with respect to admission to or eviction or exclusion from the Building of
any person. In case of fire, invasion. insurrection, mob, riot, civil disorder,
public excitement or other commotion, or threat thereof, Landlord reserves the
right to limit or prevent access to the Building during the continuance of the
same, shut down elevator service, activate elevator emergency controls, or
otherwise take such action or preventive measures deemed necessary by Landlord
for the safety of the tenants or other occupants of the Building or the
protection of the Building and the property in the Building. Tenant agrees to
cooperate in any reasonable safety program developed by Landlord.
(k) To control and prevent access to common areas and other areas.
(l) Provided that reasonable access to the Premises shall be maintained
and the business of Tenant shall not be interfered with unreasonably, to
relocate. enlarge. reduce or change corridors, exits, entrances in or to the
Building and to decorate and to make repairs, alterations, additions and
improvements, structural or otherwise, in or to the Building or any part
thereof, and any adjacent building, !and, street or alley, including for the
purpose of connection with or entrance into or use of the Building in
conjunction with any adjoining or adjacent building or buildings, now existing
or hereafter constructed, and may for such purposes erect scaffolding and other
structures reasonably required by the character of the work to be performed, and
during such operations may enter upon the Premises and take into and upon or
through any part of the Building, including the Premises, all materials that may
be required to make such repairs. alterations, improvements. or additions, and
in that connection Landlord may temporarily close public entry ways, other
public spaces, stairways or corridors and interrupt or temporarily suspend any
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services or facilities agreed to be furnished by Landlord, all without the same
constituting an eviction of Tenant in whole or in part and without abatement of
rent by reason of loss or interruption of the business of Tenant or otherwise
and without in any manner rendering Landlord liable for damages or relieving
Tenant from performance of Tenant's obligation under this lease; Landlord may at
its option make any repairs, alterations, improvements and additions in and
about the Building and the Premises during ordinary business hours and, if
Tenant desires to have such work done during other than business hours, Tenant
shall pay all overtime and additional expenses resulting therefrom.
(m) From time to time to make and adopt such reasonable rules and
regulations, in addition to or other than or by way of amendment or modification
of the rules and regulations contained in Exhibit C attached to this lease or
other Sections of this lease, for the protection and welfare of the Building and
its tenants and occupants, as Landlord may determine, and Tenant agrees to abide
by all such rules and regulations.
11. ALTERATIONS.
(a) Without Landlord's prior written consent, Tenant shall not make or
cause to be made any decorating, exterior, structural, electrical, plumbing;
ventilation, air conditioning .or other type of alterations, improvements,
additions, changes or repairs in or to the Premises or the Building. As a
condition to granting its consent, Landlord may impose reasonable requirements
in addition to any set forth in this lease, including, without limitation,
requirements as to the manner and time for the performance of any such work and
the type and amount of insurance and bonds Tenant must acquire and maintain in
connection therewith. In addition, at Landlord's option, Landlord shall have the
right: to approve the contractors or mechanics performing the work; to approve
all plans and specifications relating to the work; to review the work of
Tenant's architects, engineers, contractors or mechanics and to control any
construction or other activities being undertaken within the Building, with
Landlord to be reimbursed on demand of same for any costs incurred in connection
with such review or control; and to require correction of the work in instances
in which materials or workmanship is defective or not in accordance with plans
or specifications previously approved by Landlord. Landlord's approval of any
plans and specifications shall create no responsibility on the part of Landlord
for the completeness, design, sufficiency or compliance with all laws,
ordinances. regulations, rules and requirements of governmental entities having
jurisdiction. Tenant shall deliver to Landlord for Landlord's files, at Tenant's
sole cost and expense, complete copies of all final working drawings and plans
and specifications. Except as expressly provided herein, all alterations,
improvements, additions, changes or repairs shall be provided by and paid for by
Tenant at its sole expense, but shall become the property of Landlord and shall
be surrendered with the Premises upon termination of this lease; provided,
however, that Landlord may, by written notice to Tenant as provided in Section 7
of this lease, require Tenant, at Tenant's sole cost and expense, to remove any
or all improvements, alterations, additions or fixtures installed or made by
Tenant on or to the Premises and to repair any damages to the Premises caused by
such removal.
(b) All work in connection with any alterations. improvements, changes,
additions or repairs in the Premises or the Building made by or for the benefit
of Tenant shall be performed in full compliance with all laws. ordinances,
regulations, rules and requirements of all governmental entities having
jurisdiction and in full compliance with all insurance rules, orders,
directions, regulations and requirements. and Tenant shall be responsible for
all such compliance. If there is now or if there shall be installed in the
Building it sprinkler system. and if any fire rating bureau or any similar body
having jurisdiction or any governmental authority having jurisdiction requires
or recommends that any changes, modifications.
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alterations. additional sprinkler heads or other equipment be made or supplied
by reason of Tenant's business or the improvements it has added or the location
of partitions, trade fixtures or other contents of the Premises, or if any such
changes, modifications, alterations, additions or other equipment become
necessary to prevent imposition of a penalty or charge against the full
allowance for a sprinkler system in the fire insurance rate as fixed by said
bureau or by any fire insurance company, Tenant shall, at its own cost, promptly
make and supply all such changes, modifications, alterations, additional
sprinkler heads or other equipment.
(c) Before work is commenced as provided in this Section 11, Tenant
shall give Landlord at least fifteen (15) days' written notice. Landlord shall
be entitled to enter the Premises during regular hours to post a notice of
non-responsibility. Tenant shall secure, at Tenant's own cost, payment and
performance bonds, satisfactory to Landlord, for said work, and during the
progress of the work, Tenant shall at its sole cost and expense, upon Landlord's
request, famish Landlord with sworn contractor's statements and lien waivers
covering all work theretofore performed, together with such endorsements to
Landlord's title insurance policy as Landlord may require. Any mechanic's liens
for work claimed to have been performed for, or materials claimed to have been
furnished to, Landlord or Tenant shall be discharged by Tenant, at Tenant's sole
expense as provided in Section 31. Tenant agrees to indemnify, hold harmless and
defend Landlord from any loss, cost, damage or expense, including attorney's
fees, arising out of any. such lien claim or out of any other claim relating to
work done or materials supplied to the Premises at Tenant's request or on
Tenant's behalf.
12. ASSIGNMENT AND SUBLETTING.
(a) Without Landlord's prior written consent, which Landlord may
withhold in its sole and absolute discretion, Tenant shall not (i) mortgage,
pledge, hypothecate or encumber or subject to or permit to exist upon or be
subjected to any lien or charge, this lease or any interest under it, (ii) allow
to exist or occur any transfer of or lien upon this lease or Tenant's interest
herein by operation of law, or (iii) permit the use or occupancy of the Premises
or any part thereof for any purpose not provided for under Section 4 of this
lease or by anyone other than Tenant and Tenant's employees. Without Landlord's
prior written consent which consent shall not be unreasonably withheld, Tenant
shall not (i) assign its interest in this lease, or (ii) sublet, in whole or in
pan, the Premises. In no event shall this lease be assigned or assignable by
voluntary or involuntary bankruptcy proceedings or otherwise, and in no event
shall this lease or any rights or privileges hereunder be an asset of Tenant
under any bankruptcy, insolvency or reorganization proceedings.
(b) Tenant shall, by notice in writing, advise Landlord of its
intention from, on and after a stated date (which shall not be less than sixty
(60) days after the date of Tenant's notice) to assign this lease or sublet any
part or all of the Premises for the balance or any part of the Term, and,. in
such event, Landlord shall have the right, to be exercised by giving written
notice to Tenant within thirty (30) days after receipt of Tenant's notice, to
recapture the space described in Tenant's notice and such recapture notice
shall, if given, terminate this lease with respect to the space therein
described as of the date stated in Tenant's notice. Tenant's notice shall state
the name and address of the proposed subtenant or assignee and a true and
complete copy of the proposed sublease or assignment shall be delivered to
Landlord with said notice. If Tenant's notice shall cover all of the space
hereby demised, and if Landlord shall give the aforesaid recapture notice with
respect thereto, the Term of this lease shall expire and end on the date stated
in Tenant's notice as fully and completely as if that date had been herein
definitely fixed for the expiration of the Term. If, however, this lease be
terminated pursuant to the foregoing with respect to less
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than the entire Premises, the Rent and Tenant's Proportionate Share as defined
herein shall be adjusted by Landlord on the basis of the number of rentable
square feet retained by Tenant, and this lease as so amended shall continue
thereafter in full force and effect. If Landlord, upon receiving Tenant's notice
with respect to any such space, shall not exercise its right to terminate as
aforesaid, Landlord will not unreasonably withhold its consent to Tenant's
assignment or subletting the space covered by its notice: provided, however,
that in addition to other circumstances under which Landlord's consent may be
withheld (whether similar or dissimilar to the following reasons), Tenant agrees
that the withholding by Landlord of its consent to Tenant's assignment or
subletting the space covered by its notice will not be deemed "unreasonable" if
(i) the proposed assignee or subtenant is disreputable or otherwise not in
keeping with the nature or class of tenants in the Building, (ii) the proposed
assignee or subtenant is not sufficiently financially responsible, or in
Landlord's reasonable opinion will not in the future be sufficiently financially
responsible, to perform its obligations under the !ease or its sublease, (iii)
the use of the Premises by the proposed assignee or subtenant would, in
Landlord's reasonable judgment, significantly increase the pedestrian traffic in
and out of the Building or would require Landlord to perform any alterations to
the Building to comply with applicable building code requirements or other laws,
(iv) there is in existence at the time of such notice any sublease of the
Premises or prior assignments of this lease, (v) there is at the time of such
notice, any uncured default by Tenant pursuant to this lease; or, (vi) at the
time of such notice, Tenant is not in occupancy of the Premises.
(c) Tenant agrees that all advertising by Tenant or on Tenant's behalf
with respect to the leasing of space in the Building must be approved in writing
by Landlord prior to publication.
(d) If Tenant, having first obtained Landlord's consent in accordance
with the foregoing provision of this Section, shall assign this lease or sublet
the Premises, or any part thereof, at a rental or for other monetary
consideration in excess of the Rent or pro rata portion thereof due and payable
by Tenant under this lease. then Tenant shall pay to Landlord, as additional
rent (1) on the first day of each month during the term of any sublease,
one-half (%) of the excess of all rent and other consideration due from the
subtenant for such month over the Rent then payable to Landlord pursuant to the
provisions of this lease for said month (or if only a portion of the Premises is
being sublet, the excess of all rent and other consideration due from the
subtenant for such month over the portion of the Rent then payable to Landlord
pursuant to the provisions of this lease for said month which is allocable on a
square footage basis to the space sublet) and (2) immediately upon receipt
thereof, one-half (1/2) of any other rent or consideration received by Tenant
from such assignment or subletting.
(e) If Tenant is a corporation, (other than a corporation whose stock
is traded through a national or regional exchange or over-the-counter), any
transaction or series of transactions (including, without limitation, any
dissolution, merger, consolidation or other reorganization of Tenant, or any
issuance, sale, gift, transfer or redemption of any capital stock of Tenant,
whether voluntary, involuntary or by operation of law, or any combination of any
of the foregoing transactions) resulting in the transfer of control of Tenant,
other than by reason of death, shall be deemed to be transfer of Tenant's
interest under this lease for the purpose of Section 12(a). If Tenant is a
partnership, any transaction or series of transactions (including, without
limitation, any withdrawal or admittance of a partner or any change in any
partner's interest in Tenant, whether voluntary, involuntary or by operation of
law, or any combination of any of the foregoing transactions) resulting in the
transfer of control of Tenant, other than by reason of death, shall be deemed to
be a transfer of Tenant's interest under this lease for the purposes of Section
12(a). The term "control" as used in this Section 12(e) means tire power to
directly or indirectly direct or cause the direction of tile management or
policies or Tenant. If Tenant is a corporation, a change
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or series of changes in ownership of stock which would result in direct or
indirect change in ownership by the stockholders or an affiliated group of
stockholders of less than fifty percent (50%) of the outstanding stock as of the
date of the execution and delivery of this lease or which are effected through a
recognized stock exchange to stockholders not acting in concert to obtain
control shall not be considered a change of control.
(f) Consent by Landlord to any assignment, subletting, use or
occupancy, or transfer shall not operate to relieve Tenant from any covenant or
obligation hereunder, except to the extent, if any, expressly provided for in
such consent, or be deemed to be a consent to or relieve Tenant from obtaining
Landlord's consent to any subsequent assignment, transfer, lien, charge,
subletting, use or occupancy. Tenant shall pay all of Landlord's costs, charges'
and expenses, including attorney's fees incurred in connection with any
assignment or sublease requested or made by Tenant.
13. WAIVER OF CERTAIN CLAIMS; INDEMNITY BY TENANT.
(a) To the extent not expressly prohibited by law, Landlord and Tenant
each releases and waives any and all claims for, and rights to recover, damages
against and from the other, and the other's respective agents, partners,
shareholders, officers, directors (and, in the case of claims. by Tenant, any
trustee ("Trustee") holding legal title to the Real Property if same is held in
trust) and employees (collectively, the "Released Parties"), for loss, damage or
destruction to any of its property (including the Premises, the Building and
their contents), the elements of which are insured against or which would have
been insured against had such party suffering such loss, damage or destruction
maintained the property or physical damage insurance policies required under
Section 20 hereof. In no event shall this clause be deemed, construed or
asserted (i) to affect or limit any claims or rights against any Released
Parties other than the right to recover damages for loss, damage or destruction
to property, or (ii) to benefit any third party other than the Released Parties.
(b) To the extent not expressly prohibited by law, Tenant (the
"Indemnitor") agrees to hold harmless and indemnify Landlord and Landlord's
agents, partners, shareholders, officers, directors, Trustee, and employees
(collectively, the "Indemnitees") from any losses, damages, judgments, claims,
expenses, costs and liabilities imposed upon or incurred by or asserted against
the Indemnitees, including reasonable attorney's fees and expenses, for death or
injury that may arise from or be caused directly or indirectly by any negligent
act of omission or commission of any willful misconduct of the Indemnitor or any
of the Indemnitor's respective agents, partners, or employees. Such third
parties shall not be deemed third party beneficiaries of this agreement. In case
any action, suit or proceeding is brought against any of the Indemnitees by
reason of any such act of the Indemnitor or any of the Indemnitor's respective
agents, partners or employees, then the Indemnitor will, at the Indemnitor's
expense and at the option of said Indemnitees, by counsel approved by said
Indemnitees, resist and defend such action, suit or proceeding.
(c) Subject to the provisions of Section 13(a) to the extent permitted
by law, no agreement of Tenant in this Section 13 shall be deemed to exempt
Landlord from liability or damages for injury to persons or damage to propen3,
caused by or resulting from the willful negligence Of Landlord, its agents,
servants or employees. in the operation or maintenance of the Premises or
Building.
14. DAMAGE OR DESTRUCTION BY CASUALTY. if the Premises or any part of
the Building shall be damaged by fire or other casualty and if such damage does
not render all or a "substantial portion" (as
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determined by Landlord) of the Premises or the Building untenantable, then
Landlord shall proceed to repair and restore the Premises with reasonable
promptness, subject to reasonable delays for insurance adjustments and delays
caused by matters beyond Landlord's control. If any such damage renders all or a
substantial portion of the Premises or the Building untenantable, Landlord
shall, with reasonable promptness after the occurrence of such damage, estimate
the length of time that will be required to substantially complete the repair
and restoration of such damage and shall by notice advise Tenant of such
estimate. If it is so estimated that the amount of time required to
substantially complete such repair and restoration will exceed one hundred
eighty (180) days from the date such damage occurred, then either Landlord or
Tenant (but as to Tenant, only if all or a substantial portion Of the Premises
are rendered untenantable) shall have the right to terminate this lease as of
the data of such damage upon giving notice to the other at any time within
twenty (20) days after Landlord gives Tenant the notice containing said estimate
(it being understood that Landlord may, if it elects to do so, also give such
notice of termination together with the notice containing-said estimate). Unless
this lease is terminated as provided in the preceding sentence, Landlord shall
proceed with reasonable promptness to repair and restore the Premise, subject to
reasonable delays for insurance adjustments and delays caused by matters beyond
Landlord's control, and also subject to zoning laws and building codes then in
effect. Landlord shall have no liability to Tenant. and Tenant shall not be
entitled to terminate this lease if such repairs and restoration are not in fact
completed within the time period estimated by Landlord, as aforesaid, or within
said one hundred. eighty (180) days, so long as Landlord shall proceed with
reasonable diligence to complete such repairs and restoration, Notwithstanding
anything to the contrary herein set forth, (a) landlord shall have no duty
pursuant to this Section 14 to repair or restore any portion of the alterations,
additions or improvements made by Tenant in the Premises or to expend for any
repair or restoration amounts in excess of insurance proceeds paid to Landlord
and available for repair or restoration, and (b) Tenant shall not have the right
to terminate this lease pursuant to this Section 14 if the damage or destruction
was caused by the act or neglect of Tenant, its agents, partners or employees.
In the event any such fire or casualty damage not caused by the act or
neglect of Tenant, its agents, partners or employees. renders the Premises
untenantable and Tenant is not occupying the Premises, and if this lease shall
not be terminated pursuant to the foregoing provisions of this Section 14 by
reason of such damage. then Rent shall xxxxx during the period beginning with
the date of such damage and ending with the date when Landlord completes its
repair and restoration. Such abatement shall be in an amount bearing the same
ratio to the total amount of Rent for such period as the portion of the Premises
not ready for occupancy from time to time bears to the entire Premises. In the
event of termination of this lease pursuant to this Section 14. Rent shall be
apportioned on a per diem basis and be paid to the date of the fire or casualty.
15. EMINENT DOMAIN. If all or a substantial portion of the Building, or
any part thereof which includes all or a substantial portion of the Premises,
shall be taken or condemned by any competent authority for any public or
quasi-public use or purpose, the Term of this lease shall end upon and not
before the date when the possession of the part so taken shall be required for
such use or purpose, and without apportionment of the award to or for the
benefit of Tenant. If any condemnation proceeding shall be instituted in which
it is sought to take or damage any part of the Building, the taking of which
would, in Landlord's opinion, prevent the economical operation of the Building,
or if the grade of any street or alley adjacent to the Building is changed by
any competent authority, and such taking, damage or change of grade makes it
necessary or desirable to remodel the Building to conform to the taking, damage
or changed grade, Landlord shall have the right to terminate this lease upon not
less than ninety (90) days' notice prior to the date of termination designated
in the notice. In either of the events above referred to,
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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, whether for a partial or total taking, for loss of
Tenant's leasehold or improvements, or in any judgment for damages caused by the
change of grade.
16. Default: Landlord's Rights and Remedies.
(a) If default shall be made in the payment of the Rent or any
installment thereof or any other sum required to be paid by Tenant under the
terms of any other agreement between Landlord and Tenant, or if a default
involves a hazardous condition and is not cured by Tenant immediately upon
written notice to Tenant, or if the interest of Tenant in this lease shall be
levied or under execution or other legal peon, or if any voluntary petition in
bankruptcy or for corporate reorganization or any similar relief shall be filed
by Tenant, or if any involuntary petition in bankruptcy shall be filed against
Tenant under any federal Or state bankruptcy or insolvency act and shall not
have been dismissed within thirty (30) days from the filing thereof, or if a
receiver shall be appointed for Tenant or any of the property of Tenant by any
court and such receiver shall not have been dismissed within thirty (30) days
from the date of his appointment, or if Tenant shall make an assignment for the
benefit of creditors, or if Tenant shall admit in writing Tenant's inability to
meet Tenant's debts as they mature, or if Tenant shall abandon or vacate the.
Premises during the Term, or if default shall be made in the observance or
performance of any of the other covenants or conditions in this lease which
Tenant is required to observe and perform and such non-monetary default shall
continue for ten (10) days after written notice to Tenant, then Landlord may
treat the occurrence of any one or more of the foregoing events as a breach of
this lease, and thereupon at its option may, with or without notice or demand of
any kind to Tenant or any other person, have any one or more of the following
described remedies (any of which may be pursued by Landlord in its own name or
by and in the name of the beneficiaries of Landlord or the agent of such
beneficiaries) in addition to all other rights and remedies provided at law or
in equity or elsewhere herein:
(i) Landlord may terminate this lease and the Term created hereby,
in which event Landlord may forthwith repossess the Premises
and be entitled to recover forthwith as damages a sum of money
equal to the value of the Rent provided to be paid by Tenant
for the balance of the original Term, less the rental value of
the Premises for said period ("Rental Value"), and plus any
other sum of money and damages owed by Tenant to Landlord.
Should the Rental Value exceed the value of the Rent provided
to be paid by Tenant for the balance of the original Term of
this lease, Landlord shall have no obligation to pay to
Tenant. the excess or any part thereof.
(ii) Landlord may terminate Tenant's right of possession and may.
repossess the Premises by forcible entry and detainer suit. by
taking peaceful possession or otherwise, without terminating
this lease, in which event Landlord may, but shall be under no
obligation to, relet the same for !he account of Tenant, for
such rent and upon such terms as shall be satisfactory to
Landlord. For the purpose of such reletting, Landlord is
authorized to decorate or to make any repairs. If Landlord
shall fail to relet the Premises, Tenant shall pay to Landlord
as damages a sum equal to the amount of the Rent reserved in
this lease for the balance of its original Term. If the
Premises are relet and a sufficient sum shall not be realized
from such reletting after paying all of the costs and expenses
of such decorations.
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repairs, changes, alterations and additions and the other
expenses of such reletting and of the collection of the rent
accruing therefrom to equal or exceed the Rent provided for in
this lease for the balance of its original Term, Tenant shall
satisfy and pay such deficiency upon demand therefor from time
to time. Tenant agrees that Landlord may file suit to recover
any sums falling due under the terms of this Section 16 from
time to time and that no suit or recovery of any portion due
Landlord hereunder shall be any defense to any subsequent
action brought for any amount theretofore reduced to judgment
in favor of Landlord.
(b) If Landlord exercises either of the remedies provided for in
subparagraphs (i) and (ii) of the foregoing Section 16(a), Tenant 'shall
surrender possession and vacate the Premises immediately and deliver possession
thereof to landlord, and Landlord may then or at any time thereafter re-enter
and take complete and peaceful possession of the Premises, with or without
process of law, full and complete license so to do being hereby granted to
Landlord, and Landlord may remove all occupants and property therefrom, without
being deemed in any manner guilty of trespass, eviction or forcible entry and
detainer and without relinquishing Landlord's right to Rent or any other right
given to Landlord hereunder or by operation of law.
(c) All property removed from the Premises by Landlord pursuant to any
provisions of this lease or of law may be handled, removed or stored by Landlord
at the cost and expense of Tenant, and Landlord shall in no event be responsible
for the value, preservation or safekeeping thereof. Tenant shall pay Landlord
for all expenses incurred by Landlord in such removal and storage charges
against such property so long as the same shall be in Landlord's possession or
Under Landlord's control. All property not removed from the Premises or retaken
from storage by Tenant within thirty (30) days after the end of the Term,
however terminated, shall, at Landlord's election, be conclusively deemed to
have been conveyed by Tenant to Landlord as by xxxx of sale without further
payment or credit by Landlord to Tenant.
(d) Tenant shall pay all of Landlord's costs, charges and expenses,
including court costs and attorneys' fees, incurred in enforcing Tenant's
obligations under this lease or incurred by Landlord in any litigation,
negotiation or transactions in which Tenant causes Landlord, without Landlord's
fault, to become involved or concerned.
(e) In the event that Tenant shall file for protection under any
chapter of the 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 file debtor-in-possession or
trustee-in-bankruptcy, if one is appointed. shall assume or reject this lease
within sixty (60) days thereafter.
17. Subordination.
(a) Landlord may have heretofore or may hereafter encumber with a
mortgage or trust deed the Real Property or any interest therein, and may have
heretofore and may hereafter sell and lease back the Land, or any part of the
Real Property, and may have heretofore or may hereafter encumber the leasehold
estate under such lease with a mortgage or trust deed. (Any such mortgage or
trust deed is herein called a "Mortgage" and fire holder of any such mortgage or
the beneficiary under any such trust deed is herein called a "Mortgagee". Any
such lease of the underlying land is herein called a "Ground Lease", and the
lessor under any such lease is herein called a "Ground Lessor". Any Mortgage
which is a first lien against the Building. the Land, the Real Property. the
leasehold estate under a Ground Lease or any interest
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therein is herein called a "First Mortgage" and the holder or beneficiary of any
First Mortgage is herein called a "First Mortgagee".)
(b) If requested by a Mortgagee or Ground Lessor, Tenant will either
(i) subordinate its interest in this lease to said Mortgage or Ground Lease, and
to any and all advances made thereunder and to the interest thereon, and to all
renewals, replacements, supplements, amendments, modifications and extensions
thereof, or (ii) make certain of Tenant's rights and interest in this lease
superior thereto: and Tenant will promptly execute and deliver such agreement or
agreements as may be reasonably required by such Mortgagee 6r Ground Lessor;
provided however, Tenant covenants it will not subordinate thin lease to any
Mortgage other than a First Mortgage without the prior written consent of the
First Mortgagee.
(c) It is further agreed that (i) if any Mortgage shall be foreclosed,
or if any Ground Least be terminated, (A) the liability of the Mortgagee or
purchaser at such foreclosure sale or the liability of a subsequent owner
designated as Landlord under this lease shall exist only so long as such
Mortgagee, purchaser or owner is the owner of the Building, Land or Real
Property, and such liability shall not continue or survive after further
transfer of ownership; (B) the Mortgagee or Ground Lessor or their successors or
assigns that succeeds to the interest of Landlord in the Building or the Land,
or acquires the right to possession of the Building or the Land, shall not be
(1) liable for any act or omission of the party. named above (or any successor
in title thereto) as Landlord, under this lease; (2) liable for the performance
of Landlord's covenants pursuant to the provisions of thin lease which arise and
accrue prior to such entity succeeding to the interest of Landlord (or any
successor in title thereto) under thin lease or acquiring such right to
possession; (3) subject to any offsets or defenses which Tenant may have at any
time against Landlord(or any successor in title thereto); (4) bound by any Rent
which Tenant may have paid previously for more than one (1) month: (5) liable
for the performance of any covenant of Landlord under this lease which is
capable of performance only by the original Landlord (or any successor in title
thereto); and (C) upon request of the Mortgagee, if the Mortgage shall be
foreclosed, Tenant will attorn, as Tenant under this lease, to the purchaser at
any foreclosure sale under any Mortgage or upon request of the Ground Lessor, if
any Ground Lease shall be terminated, Tenant will attorn as Tenant under this
lease to the Ground Lessor, and Tenant will execute such instruments as may be
necessary or appropriate to evidence such attornment; and (ii) this lease may
not be modified or amended so as to reduce the Rent or shorten the Term, or so
as to adversely affect in any other respect to any material extent the rights of
Landlord, nor shall this lease be canceled or surrendered, without the prior
written consent, in each instance, of the First Mortgagee or any Ground Lessor.
(d) Should any prospective First 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 and adversely change the rights and obligations of Tenant hereunder,
in the reasonable judgment of Tenant, then and in such event. Tenant agrees that
this lease may be so modified and agrees to execute whatever documents are
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 recording (containing,
among other customary provisions, the names of the parties, a description of the
Premises and the Term of. this lease), Tenant agrees to execute such short form
of lease and deliver the same to Landlord within fen (10) days following the
request therefor.
(e) If Tenant fails within ten (10) days after written demand therefor
to execute and deliver any instruments as may be necessary or proper to
effectuate any of the covenants of Tenant set forth above
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in this Section 17, Tenant hereby makes. constitutes and irrevocably appoints
any one of Landlord or its beneficiaries as its attorney-in-fact (such power of
attorney being coupled with an interest) to execute and deliver any such
instruments for and in the name of Tenant.
18. MORTGAGEE AND GROUND LESSOR PROTECTION. Tenant agrees to give any
First Mortgagee and any Ground Lessor, by registered or certified mail, a copy
of any notice or claim of default served upon Landlord by Tenant, provided that
prior to such notice Tenant has been notified in writing Xxx way of service on
Tenant of a copy of an assignment of Landlord's interests in leases, or
otherwise) Of the address of such First Mortgagee or Ground Lessor (hereinafter
the "Notified Party"). Tenant further agrees that if Landlord shall have failed
to cure such default within twenty (20) days after such notice to Landlord (or
if such default cannot be cured or corrected within that time, then such
additional time as may be necessary if Landlord has commenced within such twenty
(20) days and is diligently pursuing the remedies or steps necessary to cure or
correct such default), then the Notified Party shall have an additional thirty
(30) days within which to cure or correct such default (or if such default
cannot be cured or corrected within that time, then such additional time as may
be necessary if such Notified Party has commenced within such thirty (30) days
and is diligently pursuing the remedies or steps necessary to cure or correct
such default, including the time necessary to obtain possession if possession is
necessary to cure or correct such default) before Tenant may exercise any right
or remedy which it may have on account of any such default of Landlord.
19. DEFAULT UNDER OTHER LEASES. If the term of any lease, other than
this lease, heretofore or hereafter made by Tenant for any space in the Building
shall be terminated or terminable after the making of this lease because of any
default by Tenant under such other lease, such fact shall empower Landlord, at
Landlord's sole option, to terminate this lease by notice to Tenant or to
exercise any of the rights or remedies set forth in Section 16.
20. INSURANCE.
(a) At all times during the Term of this lease, Tenant shall at its
sole cost and expense maintain in full force and effect insurance protecting
Tenant and Landlord (and Landlord's beneficiaries, if Landlord is ever a land
trust), and their respective agents. and any other parties designated by
Landlord from time to time, with terms, coverages and in companies at all times
satisfactory to Landlord as follows:
(i) Commercial General Liability Insurance against claims for
personal injury, death or property damage occurring in connection with the use
and occupancy of the Premises. including contractual liability insuring the
indemnification provisions contained in this lease, naming Landlord, and
Landlord's mortgagee, principals and principals' beneficiaries, and the
management of the Building, as additional insureds, such insurance to afford
protection to the limit of not less than Two Million Dollars ($2,000,000.00) for
each occurrence and annual aggregate.
(ii) Workers Compensation Insurance, as required to meet rite
applicable laws of the state in which the Building is located, and Employers
Liability Insurance.
(iii) At all times when any work is in process in connection
with any change or alteration being made by Tenant, Tenant shall require all
contractors and subcontractors to maintain the insurance described in (i) and
(ii). Landlord and Landlord's mortgagee, principals and principals'
beneficiaries and the management of the Building will be added as additional
insureds to such policies. and evidence of same
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shall be delivered to Landlord.
(iv) Property insurance on an "all risk" basis (including
sprinkler leakage, if applicable) for the full replacement cost of all
additions, improvements and alterations to the Premises and of all office
equipment, furniture, trade fixtures, merchandise and all other items of
Tenant's property on the Premise, Tenant agrees to have such insurance policies
endorsed to provide for a waiver of subrogation against Landlord by the
insurance carrier.
Tenant shall, prior to the commencement of the Term hereof and prior to
the expiration of any policy, furnish Landlord certificates evidencing that all
required insurance is in force and providing that such insurance may not be
canceled or changed without at least thirty (30) days' prior written notice to
Landlord and Tenant (unless such cancellation is due to nonpayment of premiums,
in which event ten (10) days' prior notice shall be provided).
(b) Tenant shall comply with all applicable laws and ordinances, all
orders and decrees of court and all requirements of other governmental authority
and shall not directly or indirectly make any use of the Premises which may
thereby be prohibited or be dangerous to person or property or which may
jeopardize any insurance coverage, or may increase the cost of insurance or
require additional insurance coverage.
(c) Landlord and Tenant hereby waive all claims of recovery from the
other party for loss or damage to any of its property to the extent of any
recovery collectible under valid and collectible property insurance policies.
21. NONWAIVER. No waiver of any condition expressed in this lease shall
be implied by any neglect of Landlord to enforce any remedy on account of the
violation of such condition whether or not such violation be continued or
repeated subsequently, and no express waiver shall affect any condition other
than the one specified in such waiver and that one only for the time and in the
manner specifically stated. Without limiting the provisions of Section 8, it is
agreed that no receipt of moneys by Landlord from Tenant after the termination
in any way of the Term or of Tenant's right of possession hereunder or after the
giving of any notice shall reinstate, continue or extend the Term or affect any
notice given to Tenant prior to the receipt of such moneys. It is also agreed
that after the service of notice or commencement of a suit' or after final
judgment for possession of the Premises, Landlord may receive and collect any
moneys due, and the payment of said moneys shall not waive or affect said
notice, suit or judgment.
22. ESTOPPEL CERTIFICATE. Tenant agrees that from time to time upon
written request by Landlord, or the holder of any Mortgage or any ground lessor,
Tenant (or any permitted assignee, subtenant or other occupant of the Premises
claiming by, through or under Tenant) will deliver to Landlord or to the holder
of any Mortgage or ground lessor or contract purchaser of an interest in
Landlord or in the Building, within ten (10) days after such written request
shall have been served upon Tenant, a statement in writing signed by Tenant,
addressed to such person or persons as Landlord shall request, certifying (a)
that this lease is unmodified and in full force and effect (or if there have
been modifications, that the lease as modified is in full force and effect and
identifying the modifications); (b) the date upon which Tenant began paying Rent
and the dates to which the Rent and other charges have been paid, (c) the: date
upon which the Term shall end. (d) that Landlord is not in default trader any
provision of this lease, or, if in default, the nature thereof in detail; (e)
that the Premises have been completed in accordance with
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the terms hereof and Tenant is in occupancy and paying Rent on a current basis
with no rental offsets or claims; (f) that there has been no prepayment of Rent
other than that provided for in the lease; (g) the amount of any security
deposit made by Tenant or Tenant-successor, (h) that there are no actions,
whether voluntary or otherwise, pending against Tenant under the bankruptcy laws
of the United States or any State thereof, and (i) such other matters as may be
required by Landlord, holder of a Mortgage, ground lessor or contract purchaser.
If Tenant fails within ten (10) days after written demand therefor to execute
and deliver any instrument as may be necessary or proper to effectuate any of
the covenants of Tenant set forth above in this Section 22, Tenant hereby makes,
constitutes and irrevocably appoints Landlord as. its attorney-in-fact (such
power of attorney being coupled with an interest) to execute and deliver any
such instrument for and in the name of Tenant. Without limitation to the
foregoing, if Tenant fails within said ten (10) period to execute and deliver
said certification as may be necessary or proper to effectuate any of the
covenants of Tenant set forth above in this Section 22, Tenant shall be deemed
to have irrevocably agreed to all of the statements therein contained.
23. TENANT-CORPORATION OR PARTNERSHIP. In case Tenant is a corporation,
Tenant (a) represents and warrants that this lease has been duly authorized,
executed and delivered by and on behalf of Tenant and constitutes the valid and
binding. agreement of Tenant in accordance with the terms hereof and (b) if
Landlord so requests, it shall deliver to Landlord or its agent, concurrently
with the delivery of this lease executed by Tenant, certified resolutions of the
board of directors (and shareholders, if required) authorizing Tenant's
execution and delivery of this lease and the performance of Tenant's obligations
hereunder. In case Tenant is a partnership, Tenant represents and warrants that
all of the persons who are general or managing partners in said partnership have
executed this lease on behalf of Tenant, or that this lease has been executed
and delivered pursuant to and in conformity with a valid and effective
authorization therefor by all of the general or managing partners of such
partnership, and is and constitutes the valid and binding agreement of the
partnership and each and every partner therein in accordance with its terms.
Also, it is agreed that each and every present and future general partner in
Tenant shall be and remain at all times jointly and severally liable hereunder
and that the death, resignation or withdrawal of any partner shall not release
the liability of such partner under the terms of this lease unless and until
Landlord shall have consented in writing to such release, Landlord being under
no obligation to so consent.
24. REAL ESTATE BROKERS. Tenant represents that Tenant has directly
dealt with and only with CB Commercial Real Estate Group (whose commission. if
any, shall be paid by Landlord pursuant to separate agreement) and JD Partners
(whose commission, if any, shall be paid by CB Commercial Real Estate Group from
any commission it may receive from Landlord) as brokers in connection with this
lease and agrees to indemnify and hold Landlord harmless from all damages,
liability and expense (including reasonable attorneys' fees) arising from any
claims or demands of any other broker or brokers or finders for any commission
alleged to be due such broker or brokers or finders in connection with its
participating in the negotiation with Tenant of this lease.
25. NOTICES. All notices to or demands upon Landlord or Tenant desired
or required to be given under any of the provisions hereof shall be in writing.
Any notices or demands from Landlord to Tenant shall be deemed to have been
given if a copy thereof has been personally delivered to Tenant or Tenant's
agent (including without limitation delivery by messenger or courier. with
evidence of receipt) or mailed by United States registered or certified mail,
return receipt requested, addressed to Tenant at the address of the Premises
after 'Tenant's occupancy of the Premises. If Tenant is a corporations. any
notices or demands from Landlord to Tenant also shall be deemed to have been
given if a copy thereof is mailed
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by United States registered or certified mail, return receipt requested, to
Tenant's registered agent in Illinois. Any notices or demands from Landlord to
Tenant may be signed by Landlord, its beneficiaries, the managing agent for the
Building or any agent of any of them. Any notices or demands from Tenant to
Landlord shall be deemed to have been given if a copy thereof has been
personally delivered to Landlord or the managing agent of the Building
(including without limitation delivery by messenger or courier, with evidence of
receipt) or mailed by United States registered or certified. mail, return
receipt requested, to Landlord in care of the Manager of the Building at the
Building's on site management office, 0000 X. Xxxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, with a copy to MONY Real Estate Investment Management, 0000
Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxx 00000. Landlord, its
beneficiaries, or the managing agent of the Building may, upon notice to Tenant,
change either the address for, or the party who shall receive, notices or
demands from Tenant to Landlord on Landlord's behalf. All notices to or demands
upon Landlord or Tenant mailed by registered or certified mail, return receipt
requested, shall be deemed served at the time the same were posted.
26. MISCELLANEOUS.
(a) Each provision of this lease shall extend to and shall bind and
inure to the benefit not only of Landlord and Tenant, but also their respective
heirs, legal representatives, successors and assigns, but this provision shall
not operate to permit any transfer, assignment, mortgage, encumbrance, lien,
charge, or subletting contrary to the provisions of Section 12.
(b) All of the agreements of Landlord and Tenant with respect to the
Premises are contained in this lease; and no modification, waiver or amendment
of this lease or of any of its conditions or provisions shall be binding upon
Landlord unless in writing signed by Landlord.
(c) Submission of this instrument for examination shall not constitute
a reservation of or option for the Premises or in any manner bind Landlord and
no lease or obligation on Landlord shall arise until this instrument is signed
and delivered by Landlord and Tenant; provided, however, the execution and
delivery by Tenant of this lease to Landlord or the agent of Landlord's
beneficiary shall constitute an irrevocable offer by Tenant to lease the
Premises on the terms and conditions herein contained, which offer may not be
revoked for thirty (30) days after such delivery.
(d) The word "Tenant" whenever used herein shall be construed to mean
Tenants or any one or more of them in all cases where there is more than one
Tenant; and the necessary grammatical changes required to make the provisions
hereof apply either to corporations or other organizations, partnerships or
other entities, or individuals, shall in all cases be assumed as though in each
case fully expressed. In all cases where there is more than one Tenant, the
liability of each shall be joint and several.
(e) Clauses, plats, and riders, if any, signed by Landlord and Tenant
and endorsed on or affixed to this lease are part hereof and in the event of
variation or discrepancy the duplicate original hereof, including such clauses,
plats and riders, if any, held by Landlord shall control.
(f) The headings of Sections are for convenience only and do not limit,
expand or construe the contents of the Sections.
(g) Landlord's title is and always shall be paramount to the title of
Tenant, and nothing in this lease contained shall empower Tenant to do any act
which can. shall or may encumber the title of
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Landlord.
(h) Time is of the essence of this lease and of each and all provisions
thereof.
(i) All amounts (including, without limitation, Base Rent and
Additional Rent) owed by Tenant to Landlord pursuant to any provision of this
lease shall not be deemed a loan but shall bear interest from the date due until
paid at the annual rate equal to three percentage points in excess of the rate
of interest announced from time to time by The First National Bank of Chicago at
Chicago, Illinois, or any successor thereto, as its corporate base rate,
changing as and when said corporate base rate changes. unless a lesser rate
shall then be the maximum rate permissible by law with respect thereto, in which
event said lesser rate shall be charged.
(j) The invalidity of any provision of this lease shall not impair or
affect in any manner the validity, enforceability or effect of the rest of this
lease.
(k) All understandings and agreements, oral or written, heretofore made
between the parties hereto are merged in this lease, which alone fully and
completely expresses the agreement between Landlord (and its beneficiary and
their agents) and Tenant.
27. DELIVERY OF POSSESSION. If Landlord shall be unable to give
possession of the Premises on the date of the commencement of the Term for any
reason, Landlord shall not be subject to any liability for failure to give
possession. Under such circumstances the Rent reserved and covenanted to be paid
herein shall not commence until the Premises are available for occupancy, and no
such failure to give possession on the date of commencement of the Term shall
affect the validity of this lease or the obligations of Tenant hereunder.
Provided, however, if the Premises are not delivered to Tenant on the
Commencement Date as stated on page one of this lease, the Commencement Date and
the stated expiration date as set forth on page one of this lease shall be
adjusted so as to accord the parties hereto with the term they would have had if
the Premises had been delivered on the original Commencement Date. In accordance
therewith, and in such event, Landlord and Tenant shall execute an amendment to
this lease reflecting the new commencement date and the new expiration date.
28. SUBSTITUTION OF PREMISES. At any time hereafter, Landlord may
substitute for the Premises other premises (herein called "The New Premises")
provided that the New Premises shall be similar to the Premises in area and use
for Tenant's purposes and shall be located in the Building. If Tenant is already
in occupancy of the Premises, then in addition, Landlord shall pay the expense
of Tenant for moving from the Premises to the New Premises and for improving the
New Premises so that alley are substantially similar to the Premises; such move
shall be made during evenings, weekends, or otherwise so as to incur the least
inconvenience to Tenant; and landlord shall first give Tenant at least thirty
(30) days notice before: making such change. If Landlord shall exercise its
right hereunder, the New Premises shall thereafter be deemed for the purposes of
this lease as the Premises.
29. SIGNS. No signs shall be installed on the exterior of. or adjacent
to, the Premises or the Building. All signs which are erected in or on the
interior of the Premises shall be in accordance with the building standard
designated by Landlord and subject to Landlord's prior written approval. The
installation and maintenance of any and all signs by or on behalf of Tenant
shall be in full compliance with all applicable laws. ordinances, regulations,
rules anti orders of any governmental authority having jurisdiction, and Tenant
shall obtain all necessary licenses and permits in connection therewith. Tenant
shall install
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and promptly repair, maintain and service all such signs in accordance with
proper techniques and procedures. and shall indemnify, hold harmless and defend
Landlord from all loss, cost, damage or expense, including attorney's fees,
arising out of any claim relating to the installation, existence, operation,
maintenance, repair, removal or condition of any such sign. On or before the
termination of this lease, Tenant shall, at its sole expense, remove all such
signs in a manner satisfactory to Landlord and shall immediately repair, at
Tenant's sole expense, any injury or damage caused by removal. All costs and
expenses relating to all such signs shall be borne solely by Tenant.
30. LANDLORD. The term "Landlord" as used in this lease means only the
owner or owners at the time being of landlord's interest in the Building and the
Land so that in the event of any assignment conveyance or sale, once or
successively, of Landlord's interest in the Land and Building, or any assignment
of this lease by Landlord, said Landlord making such sale, conveyance or
assignment shall be and hereby is entirely freed and relieved of all covenants
and obligations of Landlord hereunder accruing after such conveyance, sale or
assignment, and Tenant agrees to look solely to such purchaser, grantee or
assignee with respect thereto. This lease shall not be affected by any such
conveyance, assignment or sale, and Tenant agrees to attorn to the purchaser,
grantee or assignee.
31. TITLE AND COVENANT AGAINST LIENS. Landlord's title is and always
shall be paramount to the title of Tenant and nothing in this lease contained
shall empower Tenant to do any act which can, shall or may encumber the title of
Landlord. Tenant covenants and agrees not to suffer or permit any lien of
mechanics or materialmen to be placed upon or against the Real Property any
portion thereof including the Premises or against Tenant's leasehold interest in
the Premises and, in case of any such lien attaching, to immediately pay and
remove same. Tenant has no authority or power to cause or permit any lien or
encumbrance of any kind whatsoever, whether created by act of Tenant, operation
of law or otherwise, to attach to or be placed upon the Real Property, Land,
Building or Premises, and any and all liens and encumbrances created by Tenant
shall attach only to Tenant's interest in the Premises. If any such liens
created, caused or permitted by Tenant so attach and Tenant fails to pay and
remove same within ten (10) days, Landlord, at its election, may pay and satisfy
the same and in such event the sums so paid by Landlord, shall be due and
payable by Tenant upon demand, with interest from the date of payment at the
rate set forth in Section 26(i) hereof for amounts owed Landlord by Tenant.
32. EXCULPATORY PROVISIONS. The liability of any Landlord under this
lease or any amendment to this lease, or any instrument or document executed in
connection with this lease, shall be limited to and enforceable solely against
the assets of such Landlord constituting an interest in the Land or Building
(including, where Landlord is a trustee of a land trust, the subject matter of
the trust) and not other assets of such Landlord. Assets of a Landlord which is
a partnership do not include the assets of the partners of such Landlord, and
negative capital account of a partner in a partnership which is a Landlord and
an obligation of a partner to contribute capital to the partnership which is
Landlord shall not be deemed to be assets of the partnership which is Landlord.
No directors, officers, employees or shareholders of any corporation which is
Landlord shall have any personal liability arising from or in connection with
this lease. At any time during which Landlord is trustee of a land trust. all of
the representations, warranties, covenants and conditions to be performed by it
under this lease or any documents or instruments executed in connection with
this lease are undertaken solely as trustee, as aforesaid, and not individually.
and no personal liability shall be asserted or be enforceable against it or any
of the beneficiaries under said trust agreement by reason of any of the
representations, warranties. covenants or conditions contained its this lease or
any documents or instruments executed in connection with this lease.
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33. FINANCIAL STATEMENTS. Tenant shall deliver to Landlord, upon
Landlord's request, from time to time, current financial statements of Tenant,
including without limits, ion, net worth statements and statements of profit and
loss. Landlord shall use its reasonable efforts to keep the financial statements
confidential, provided that the foregoing shall not prohibit Landlord from
showing same to: (i) its employees, (ii) agents, including the managing and
leasing agents of the Building, (iii) prospective purchasers of the Building,
and (iv) existing, future and/or prospective lenders of Landlord.
34. PREMISES IMPROVEMENTS. (a) Landlord shall promptly following
the full execution of this lease, at a cost to Landlord not to exceed $1,000,00,
install kitchen cabinets above the kitchen counter, Except as provided in the
immediately prior sentence, Tenant is taking the Premise in its "as is"
condition.
(b) Tenant shall have the right, subject to the terms and
provisions of this lease, including without limitation the terms and
provisions-of Section 11 Alterations, to install at its sole cost and expense, a
dishwasher in the Premise.
35. CONDITION TO LEASE. This lease is conditioned on Landlord
securing possession of the Premises and entering into a termination agreement,
in form and substance satisfactory to Landlord, with the current tenant to the
Premises. In the event that Landlord has not secured possession of the Premises
and entered into a termination agreement in form and substance satisfactory to
Landlord, prior to the end of business on February 28, 1998, this lease shall be
null and void, and Tenant shall have no claim against Landlord or to the
Premise.
IN WITNESS WHEREOF, the parties have caused this lease to be
executed on the date first above written.
LANDLORD:
THE MUTUAL LIFE INSURANCE COMPANY
OF NEW YORK, A NEW YORK MUTUAL LIFE INSURANCE COMPANY
BY:
-----------------------------
NAME:
---------------------------
ITS: DATE:
---------------------------- ------------------
TENANT:
MOTIVATION NET INC.
BY: /s/ XXXXXX X. XXXXXX
---------------------------
ITS: CEO
---------------------------
NAME: Xxxxxx X. Xxxxxx DATE: 4/3/98
--------------------------- ------
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EXHIBIT A
DESCRIPTION OF PREMISES
[FLOOR PLAN]
31
EXHIBIT B
BASE RENT
Lease Year Square Base Rent Annual Base Monthly Base
Footage per. sq. ft. Rent Rent
--------------------------------- ------- ------------ ----------- -------------
April 1, 1998 to March 31, 1999 1,954 $12.00 $23,448.00 $1,954.00
April 1, 1999 to March 31, 2000 1,954 $12.50 $24,425.00 $2,035.42
April 1, 2000 to March 31, 2001 1,954 $13.00 $25,402.00 $2,116.83
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EXHIBIT C
RULES AND REGULATIONS
ATTACHED TO AND MADE A PART OF THE LEASE
The following Rules and Regulations shall be in effect at the Building. Landlord
reserves the right to adopt reasonable modifications and additions hereto. In
the case of any conflict between these regulations and the Lease, the Lease
shall be controlling.
1. Except with the prior written consent of Landlord, no tenant shall
conduct any retail sales in or from the Premises, or any business other
than that specifically provided for in the Lease.
2. Landlord reserves the right to prohibit personal goods and services
vendors from access to the Building except upon such reasonable terms
and conditions, including but not limited to a provision for insurance
coverage, as are related to the safety, care and cleanliness of the
Building, the preservation of good order thereon, and the relief of any
financial or other burden on Landlord occasioned by the presence of
such vendors or the sale by them of personal goods or services to a
tenant or its employees. If reasonably necessary for the accomplishment
of these purposes, Landlord may exclude a particular vendor entirely or
limit the number of vendors who may be present at any one time in the
Building. The term "personal goods or services vendors" means persons
who periodically enter the Building of which the Premises are a part
for the purpose of selling goods or services to a tenant, other than
goods or services which are used by a tenant only for the purpose of
conducting its business on the Premises. "Personal goods or services"
include, but are not limited to, drinking water and other beverages,
food, barbering services, and shoeshining services.
3. The sidewalks, halls, passages, elevators and stairways shall not be
obstructed by any tenant or used by it for any purpose other than for
ingress to and egress from their respective Premises. The halls,
passages, entrances, elevators, stairways, balconies, janitorial
closets, and roof are not for the use of the general public, and
Landlord shall in all cases retain the right to control and prevent
access thereto of all persons whose presence in the judgment of
Landlord shall be prejudicial to the safety, character, reputation and
interests of the Building and its tenants, provided that nothing herein
contained shall be construed to prevent such access to persons with
whom Tenant normally deals only for the purpose of conducting its
business on the Premises (such as clients, customers, office suppliers
and equipment vendors, and the like) unless such persons are engaged in
illegal activities. No tenant and no employees of any tenant shall go
upon the roof of the Building without the written consent of Landlord.
4. The sashes, sash doors, windows, glass lights, and any lights or
skylights that reflect or admit light into the halls or edict places of
the Building shall not be covered or obstructed. The toilet rooms,
water and wash closets and other water apparatus shall not be used for
any purpose other than that for which they were constructed, and no
foreign substance of any kind whatsoever shall be thrown therein, and
the expense of any breakage, stoppage or damage, resulting from the
violation of this rule shall be borne by the tenant who, or whose
clerks, agents. employees, or visitors, shall have caused it.
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5. No sign, advertisement or notice visible from the exterior of the
Premises or Building shall be inscribed, painted or affixed by Tenant
on any part of the Building or the Premises without the prior written
consent of Landlord. If Landlord shall have given such consent at any
time, whether before or after the execution of this Lease, such consent
shall in no way operate as a waiver or release of any of the provisions
hereof or of this Lease, and shall be deemed to relate only to the
particular sign, advertisement or notice so consented to by Landlord
and shall not be construed as dispensing with the necessity of
obtaining the specific written consent of Landlord with respect to each
and every such sign, advertisement or notice other than the particular
sign, advertisement or notice, as the case may be, so consented to by
Landlord.
6. In order to maintain the outward professional appearance of the
Building, all window coverings to be installed at the Premised shall be
subject to Landlord's prior reasonable approval. If Landlord, by a
notice in writing to Tenant, shall object to any curtain, blind, shade
or screen attached to, or hung in, or used in connection with, any
window or door of the Premises, such use of such curtain, blind, shade
or screen shall be forthwith discontinued by Tenant. No awnings shall
be permitted on any part of the Premises.
7. Tenant shall not do or permit anything to be done in the Premises, or
bring .or keep anything therein, which shall in any way increase the
rate of fire insurance on the Building, or on the property kept
therein, or obstruct or interfere with the rights of other tenants, or
in any way injure or annoy them; or conflict with the regulations of
the Fire Department or the fire laws, or with any insurance policy upon
the Building, or any part thereof, or with any mica and ordinances
established by the Board of Health or other governmental authority.
8. No safes or other objects larger or heavier than the freight elevators
of the Building are limited to carry shall be brought into or installed
in the Premises. Landlord shall have the power to prescribe tile
weight, method of installation and position of such safes or other
objects. The moving of safes shall occur only between such hours as may
be designated by, and only upon previous notice to, the manager of the
Building, and the persons employed to move safes in or out of the
Building must be acceptable to Landlord. No freight. furniture or bulky
matter of any description shall be received into the Building or
carried into the elevators except during hours and in a manner approved
by Landlord.
9. Landlord shall clean the Premises as provided in the Lease, and except
with the written consent of Landlord, no person or persons other than
those approved by Landlord will be permitted to enter the Building for
such purpose, but Tenant shall not cause unnecessary labor by reason of
Tenant's carelessness and indifference in the preservation of good
order and cleanliness.
10. No tenant shall sweep or throw or permit to be swept or thrown from the
Premises any dirt or other substance into any of the corridors or halls
or elevators, or out of the doors or windows or stairways of the
Building, and Tenant shall not use, keep or permit to be used or kept
any foul or noxious gas or substance in the Premises, or permit or
suffer the Premises to be occupied or used in a manner offensive or
objectionable to Landlord or other occupants of the Building by reason
of noise, odors and/or vibrations, or interfere in any way with other
tenants or those having business therein, nor shall any animals or
birds be kept in or about the Building. Smoking or carrying lighted
cigars or cigarettes in the elevators of the Building is prohibited.
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11. Except for the use of microwave ovens and coffee makers for Tenant's
personal use. no cooking shall be done or permitted by Tenant on the
Premises, nor shall the Building be used for lodging,
12. Tenant shall not use or keep in the Building any kerosene, gasoline, or
inflammable fluid or any other illuminating material, or use any method
of heating other than that supplied by Landlord.
13. If Tenant desires telephone or telegraph connections, Landlord will
direct electricians as to where and how the wires are to be introduced.
No boring or cutting for wires or other otherwise shall be made without
directions from Landlord.
14. Each tenant, upon the termination of its tenancy, shall deliver to
Landlord all the keys of offices. rooms and toilet rooms, and security
access card/keys which shall have been furnished such tenant or which
such tenant shall have had made, and in the event of loss of any keys
so furnished, shall pay Landlord therefor.
15. No Tenant shall lay linoleum or other similar floor covering so that
the same shall be affixed to the floor of the Premises m any manner
except by a paste, or other material which may easily be removed with
water, the use of cement or Other similar adhesive materials, being
expressly prohibited. The method of affixing any such linoleum or other
similar floor covering to the floor, as well as the method of affixing
carpets or rugs to the Premises shall be subject to reasonable approval
by Landlord. The expense of repairing any damage resulting from a
violation of this rule shall be borne by Tenant by whom, or by those
agents, clerics, employees or visitors, the damage shall have been
caused.
16. No furniture, packages or merchandise will be received in the Building
or carried up or down in the elevators. except between such Building
hours and in such elevators as shall be designated by Landlord.
17. On Saturdays, Sundays and legal holidays, and on other days between the
hours of 5:00 p.m. and 8:00 a.m. access to the Building or to the
halls, corridors, elevators or stairways in the Building, or to the
Premises may be refused unless the person seeking access is known to
the building watchman, if any, in charge and has a pass or is properly
identified. Landlord shall in no ease be liable for damages for the
admission to or exclusion from the Building of any person whom Landlord
has the right to exclude under Rule 3 above. In case of invasion, mob,
riot, public excitement. or other commotion, Landlord reserves the
right but shall not be obligated to prevent access to the Building
during the continuance of the same by closing the doors or otherwise,
for the safety of the tenants and protection of property in the
Building.
18. Tenant shall see that the windows and doors of the Premises are closed
and securely locked before leaving the Building and Tenant shall
exercise extraordinary care and caution that all water faucets or water
apparatus are entirely shut off before Tenant or Tenant's employees
leave the Building, and that all electricity, gas or air shall likewise
be carefully shut off, so as to prevent waste or damage, and for any
default or carelessness Tenant shall make good all injuries sustained
by other tenants or occupants of the Building or Landlord.
19. Tenant shall not alter any lock or install a new or additional lock or
any bolt on any door of the Premises without prior written consent of
Landlord, If Landlord shall give its consent. Tenant
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shall in each case furnish Landlord with a key for any such lock.
20. Tenant shall not install equipment, such as but not limited to
electronic tabulating or computer equipment, requiring electrical or air
conditioning service in excess of those to be provided by Landlord under
the Lease.
21. No bicycle, or shopping can, or other vehicle or any animal shall be
brought into the Premises or the halls, corridors, elevators or any part
of the Building by Tenant.
22. Landlord shall have the right to prohibit use of the name of the
Building or Project or any other publicity by Tenant which in Landlord's
opinion tends to impair the reputation of the Building or Project or
their desirability for other tenants, and upon written notice from
Landlord, Tenant will refrain from or discontinue such publicity.
23. Tenant shall not erect any aerial or antenna on the roof or exterior
walls of the Premises, Building, or Project without the prior written
consent of Landlord.
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