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EXHIBIT 10.14
OFFICE BUILDING LEASE
FOR
TEMPLATE SOFTWARE, INC.
XXXXXXX XXXXXX XXXXX
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
XXXXXXX X. XXXXX MANAGEMENT, INC.
0000 Xxxxxxx Xxxxx
Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Xxxxxxx X. Xxxxx Companies
2
TABLE OF CONTENTS
SPECIFIC AND GENERAL PROVISIONS
PAGE
----
1. SPECIFIC PROVISIONS ............................................... 1
2. RENT .............................................................. 4
2.1 Base Annual Rent ............................................ 4
2.2 Additional Rent ............................................. 4
(a) Real Estate Taxes ...................................... 4
(b) Operating Expenses ...................................... 4
(c) CPI ..................................................... 4
(d) Changes in Landlord's Fiscal Year ....................... 4
2.3 Additional Rent Estimates and Adjustments ................... 4
2.4 Rent Adjustment Limit ....................................... 5
2.5 Survival of Rent Obligations ................................ 5
2.6 Pro Rata Share .............................................. 5
2.7 Prorated Rent ............................................... 5
2.8 Applications of Rent ........................................ 5
2.9 Late Payment Fee ............................................ 5
2.10 Other Tenant Costs and Expenses ............................. 5
3. CONSTRUCTION OF PREMISES AND OCCUPANCY ............................ 6
3.1 Tenant Plans, Construction and Rent Liability ............... 6
3.2 Possession .................................................. 6
3.3 Occupancy Permits ........................................... 6
4. SUBLETTING AND ASSIGNMENT ......................................... 6
4.1 Consent ..................................................... 6
4.2 Recapture of Premises ....................................... 6
4.3 Excess Rent ................................................. 7
4.4 Tenant Liability ............................................ 7
5. SERVICES AND UTILITIES ............................................ 7
5.1 Building Standard Services and Utilities .................... 7
5.2 Overtime Services ........................................... 7
5.3 Excessive Electrical Usage .................................. 7
5.4 Excessive Heat Generation ................................... 7
5.5 Security .................................................... 8
6. USE AND UPKEEP OF PREMISES ........................................ 8
6.1 Use ......................................................... 8
6.2 Illegal and Prohibited Uses ................................. 8
6.3 Insurance Rating ............................................ 8
6.4 Alterations ................................................. 8
6.5 Maintenance By Landlord ..................................... 9
6.6 Signs & Advertising ......................................... 9
6.7 Excessive Floor Load ........................................ 9
6.8 Moving & Deliveries ......................................... 9
6.9 Rules and Regulations ....................................... 9
6.10 Tenant Maintenance & Conditions of Premises Upon Surrender... 10
6.11 Tenant Equipment ............................................ 10
7. ACCESS ............................................................ 10
7.1 Landlord's Access ........................................... 10
7.2 Restricted Access ........................................... 10
8. LIABILITY ......................................................... 10
8.1 Personal Property ........................................... 10
8.2 Criminal Acts of Third Parties .............................. 10
8.3 Public Liability ............................................ 10
8.4 Tenant Insurance ............................................ 10
9. DAMAGE ............................................................ 11
9.1 Damages Caused by Tenant .................................... 11
9.2 Fire or Casualty Damage ..................................... 11
9.3 Untenantability ............................................. 11
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10. CONDEMNATION ...................................................... 11
10.1 Landlord Rights to Award ................................ 11
10.2 Tenant Right to File Claim .............................. 12
11. BANKRUPTCY ........................................................ 12
11.1 Events of Bankruptcy .................................... 12
11.2 Landlord's Remedies ..................................... 12
12. DEFAULTS & REMEDIES ............................................... 13
12.1 Default ................................................. 13
12.2 Remedies ................................................ 13
12.3 Landlord's Right to Relet ................................ 13
12.4 Recovery of Damages ..................................... 13
12.5 Waiver .................................................. 13
12.6 Anticipatory Repudiation ................................ 14
12.7 Tenant Abandonment of Premises .......................... 14
13. SUBORDINATION ..................................................... 14
13.1 Subordination ........................................... 14
13.2 Estoppel Certificate .................................... 14
13.3 Attornment .............................................. 15
13.4 Mortgagee Rights ........................................ 15
14. TENANT HOLDOVER ................................................... 15
14.1 With Landlord Consent ................................... 15
14.2 Without Landlord Consent ................................ 15
15. SECURITY DEPOSIT .................................................. 16
16. QUIET ENJOYMENT ................................................... 16
17. SUCCESSORS ........................................................ 16
18 WAIVER OF JURY TRIAL .............................................. 16
19. REASONABLENESS OF LANDLORD AND TENANT ............................. 16
20. PRONOUNS & DEFINITIONS ............................................ 16
21. NOTICES ........................................................... 16
21.1 Addresses for Notices ..................................... 16
21.2 Effective Date of Notice .................................. 16
22. EXHIBITS; SPECIAL PROVISIONS ...................................... 16
22.1 Incorporation in Lease .................................... 16
22.2 Conflicts ................................................. 17
23. CAPTIONS .......................................................... 17
24. ENTIRE AGREEMENT, MODIFICATION .................................... 17
25. SEVERABILITY ...................................................... 17
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This Lease, made this 15th day of February, 1996, between THIRD BALL
ASSOCIATES LIMITED PARTNERSHIP, a Virginia limited partnership, (hereinafter
referred to as "Landlord"), and TEMPLATE SOFTWARE, INC., a Virginia
corporation, (hereinafter referred to as "Tenant").
Landlord, for and in consideration of the covenants and agreements set
forth hereinafter, leases to Tenant, and Tenant leases from Landlord, the
premises described, for the use set forth and for the term and at the rent
reserved herein.
1. SPECIFIC PROVISIONS
1.1 DEMISED PREMISES
(a) SPACE DESCRIPTION: Suite 702.
(b) FLOOR AREA: Approximately 1,739 square feet (Washington D.C.
Association of Realtors Standard Floor Area Measure in
effect at the time of execution of this Lease).
(c) BUILDING: CRYSTAL SQUARE THREE
(d) ADDRESS: 0000 Xxxxxxxxx Xxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
1.2 TERM OF LEASE: Three (3) years and Six (6) months, commencing on
February 1, 1996 ("Lease Commencement Date"), and expiring on July
31, 1999, both dates inclusive.
1-3 BASE ANNUAL RENT: Forty-Six Thousand Eighty-Three and 48/100 Dollars
($46,083.48), payable in equal monthly installments of Three
Thousand Eight Hundred Forty and 29/100 Dollars ($3,840.29),
hereinafter referred to as "base monthly rent", for the first year.
Thereafter, see Section 26.1.
1.4 BASE YEAR: "Base Year" shall mean fiscal year of Landlord ending
December 31, 1996.
1.5 ADDITIONAL RENT: Payable in equal monthly installments, commencing
on February 1, 1997, consisting of the following:
(a) Tenant's pro rata share equal to Eighty-One Hundredths of One
Percent (.81%) of any increase in Real Estate Taxes over the
Base Year Real Estate Taxes; and
(b) Tenant's pro rata share equal to Eighty-One Hundredths of One
Percent (.81%) of any increase in Operating Expenses over the
Base Year Operating Expenses; and
(c) Not Applicable.
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1.6 SECURITY DEPOSIT: Three Thousand Eight Hundred Forty and 29/100 Dollars
($3,840.29).
1.7 (a) DATE TENANT APPROVED PRELIMINARY PLANS TO BE FURNISHED:
Not Applicable.
(b) WORKING DAYS TO PREPARE WORKING DRAWINGS AND COST
ESTIMATE: Not Applicable.
(c) WORKING DAYS TO SUBSTANTIALLY COMPLETE CONSTRUCTION OF
DEMISED PREMISES: Not Applicable.
1.8 STANDARD BUILDING OPERATING DAYS AND HOURS:
8:00 AM to 6:00 PM Monday - Friday
8:00 AM to 1:00 PM Saturday
1.9 USE OF PREMISES:
General office use in keeping with the quality and nature of this first
class office building.
1.10 (a) ADDRESS FOR NOTICES TO TENANT:
Template Software, Inc.
0000 Xxxxxxxxx Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
(b) ADDRESS FOR NOTICES TO LANDLORD:
Third Ball Associates Limited Partnership
c/o Xxxxxxx X. Xxxxx Management, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
ADDRESS FOR PAYMENT OF RENT:
Third Ball Associates Limited Partnership
c/o Xxxxxxx X. Xxxxx Management, Inc.
X.X. Xxx 000000
Xxxxxxxxxx, XX 00000-0000
1.11 SPECIAL PROVISIONS:
Rent Section 26
Waiver of Rent Section 27
Landlord's Improvements Section 28
Accrual of Rent Obligation Section 29
Construction of Premises and Occupancy Section 30
Parking Section 31
Reasonableness of Landlord and Tenant Section 32
Signage and Directory Section 33
Subletting and Assignment Section 34
Use and Upkeep of Premises Section 35
Defaults and Remedies Section 36
Tenant Holdover Section 37
Execution of Document Section 38
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1.12 EXHIBITS TO LEASE:
Exhibit "A" - Not Applicable
Exhibit "B" - Not Applicable
Exhibit "C" - Building Rules and Regulations
Exhibit "D" - Not Applicable
IN WITNESS WHEREOF, Landlord has caused this Lease, comprised of
Specific Provisions, General Provisions, Special Provisions and Exhibits to
be signed and sealed by one or more of its Officers, General Partners,
Trustees, or Agents, and Tenant has caused this Lease, as described above,
to be signed in its corporate name by its duly authorized officer and its
corporate seal to be hereto affixed and duly attested by its Secretary.
WITNESS: LANDLORD: THIRD BALL ASSOCIATES
LIMITED PARTNERSHIP
/s/ BY /s/ (SEAL)
------------------------------- -------------------------------
Agent
ATTEST: TENANT: TEMPLATE SOFTWARE,
INC.
CORPORATE /s/ BY /s/ Xxxxxxxx Xxxxxx (SEAL)
SEAL ---------------------------- -------------------------------
Secretary Name: Xxxxxxxx Osgodd
Title: VP-Administration
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GENERAL PROVISIONS
2. RENT
2.1 BASE ANNUAL RENT. Tenant shall pay monthly installments of Base
Annual Rent specified in Section 1.3 in advance without deduction or demand, on
the first day of each and every calendar month throughout the entire term of the
Lease, as specified in Section 1.2. to and at the office of Landlord's Agent,
Xxxxxxx X Xxxxx Management, Inc., 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx
00000, or to such other person or at such other place as Landlord may hereafter
designate in writing.
2.2 ADDITIONAL RENT. For purposes of computing additional rent
hereunder, the Base Year as used in this Section 2 is stipulated in Section 1.4.
If dollar amounts for Base Year real estate taxes and operating expenses are
stipulated under Section 1.4, such dollar amounts shall be used in calculating
additional rent for the purposes of this Lease and shall prevail regardless of
actual historical dollar amounts for the Base Year. Commencing on the date
specified in Section 1.5, and continuing throughout the term of this Lease,
Tenant shall pay to Landlord as additional rent each of the following:
(a) REAL ESTATE TAXES. Tenant's pro rata share, as indicated in
Section 1.5(a), of any increase in real estate taxes during each fiscal year of
Landlord over the Base Year real estate taxes. The term "real estate taxes"
shall mean all taxes, general and special, levied or assessed on the land and
the building improvements of which the Demised Premises is a part, and on any
land and/or improvements now or hereafter owned by Landlord that provide the
building or the Demised Premises with parking or other services.
(b) OPERATING EXPENSES. Tenant's pro rata share, as indicated
in Section 1.5 (b), of any increase in operating expenses during each fiscal
year of Landlord over the Base Year operating expenses.
(i) The term "operating expenses" shall mean any and all
expenses incurred by Landlord in connection with the servicing, operation,
maintenance and repair of the building and related interior and exterior
appurtenances of which the Demised Premises is a part, and the cost of any
services incurred in order to achieve a reduction of or to minimize the increase
in operating expenses, including without limitation management fees, capital
expenditures for equipment or systems installed to reduce or minimize increases
in operating expenses and capital expenditures required by any governmental
ordinance, or depreciation or amortization based on the useful life expectancy
of such equipment or systems or expenditures, the cost of contesting the
validity or amount of real estate taxes, and periodic increases in ground rent
payments under any ground Lease existing at the execution of this Lease. Certain
of these expenses may be apportioned among two or more buildings in the same
complex or locality owned by Landlord and/or managed by Landlord's Agent.
(ii) Operating expenses shall not include any of the
following, except to the extent that such costs and expenses are included in
operating expenses as described in Subsection 2.2(b)(i) above: capital
expenditures and depreciation of the building; painting or decorating of tenant
space; interest and amortization of mortgages; ground rent; compensation paid to
officers or executives of Landlord; taxes as measured by the net income of
Landlord from the operation of the building; increases in real estate taxes; and
brokerage commissions.
(c) CPI. A percentage of the Base Annual Rent equal to the
percent stipulated in section 1.5(c) of the percentage increase in the Index now
known as "United States Bureau of Labor Statistics, Consumer Price Index for
Urban Wage Earners and Clerical Workers," (CPI-W) for Washington, DC-MD-VA, all
items Index (1982-84=100) (hereinafter referred to as the "Index"), between the
last published Index published for each calendar year and the Index for the same
period in the year stipulated in Section 1.5(c) (hereinafter "base period"). If
such Index shall be discontinued or revised without substitution of a comparable
successor Index, the parties shall attempt to agree upon a substitute formula.
If the parties are unable to agree upon a substitute formula, then the matter
shall be determined by arbitration in accordance with the rules of the American
Arbitration Association then prevailing. Any substitute formula determined by
arbitration shall include all of the same items included in the Index effective
at the execution of this Lease and shall be so designed as to achieve a result
as close as possible to the result that would have been achieved if the
discontinued Index were available. Costs of any such arbitration shall be shared
equally by Tenant and Landlord.
(d) Landlord shall have the right to change its fiscal year from
time to time. If Landlord changes its fiscal year during the term of this Lease,
thereby creating a fiscal year with fewer than twelve (12) months (hereinafter
"short year"), the real estate taxes and operating expenses for the short year
shall be determined on an annualized basis by taking the monthly average of the
actual real estate taxes and operating expenses, respectively, and multiplying
each by twelve. The amounts determined by this method shall be used in
determining the increases described in Subsections 2.2(a) and (b) for the "short
year".
2.3 ADDITIONAL RENT ESTIMATES AND ADJUSTMENTS.
(a) In order to provide for current monthly payments of
additional rent, Landlord shall submit to Tenant prior to January 1st of each
year a statement of Landlord's estimate of the amount of the increases described
in Section 2.2 above together with the amount of Tenant's additional rent which
is estimated to result from such increases. Commencing on the date stipulated in
Section 1.5, and continuing throughout the remaining term of this Lease, Tenant
shall pay each month one-twelfth (1/12th) of Tenant's pro rata share of
Landlord's estimate of the increase in each year for (i) real estate taxes and
(ii) operating expenses, over such items for the Base Year. In addition, Tenant
shall pay each month one-twelfth (1/12th) of Landlord's estimate of the annual
rent increase due to the percentage increase in the Consumer Price Index over
the Base Period.
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(b) If payment of additional rent begins on a date other than
January 1st under this Lease, in order to provide for current payments of
additional rent through December 31st of that partial calendar year, Landlord
shall submit to Tenant a statement of Landlord's estimate of Tenant's additional
rent for that partial year, stated in monthly increments, resulting from the
increases described in Section 2.2 above. Tenant shall make these payments of
estimated additional rent together with its installments of base monthly rent.
(c) After the end of each calendar year, Landlord will as soon
as practicable submit to Tenant a statement of the actual increases incurred in
real estate taxes and operating expenses for the fiscal year ended during such
calendar year over such costs for the Base Year and the actual increase
attributable to the increase in the Consumer Price Index over the Base Period.
Such statement shall also indicate the amount of Tenant's excess payment or
underpayment based on Landlord's estimate. If additional rent paid by Tenant
during the preceding calendar year shall be in excess of, or less than, the
aggregate of its share of the actual increase incurred by Landlord for real
estate taxes and operating expenses, and the actual increase attributable to the
increase in the Consumer Price Index, Landlord and Tenant agree to make the
appropriate adjustment following the submission of Landlord's statement. Tenant
shall either pay any additional rent due with the installment of rent due for
the month following submission of Landlord's statement, or pay any additional
rent due within thirty (30) days if the Lease term has expired or is otherwise
terminated. Tenant shall deduct its excess payment, if any, from the installment
of rent for such month, or following the final year of the Lease term, Tenant
shall be reimbursed for any excess payments made.
(d) Within ten (10) days after receipt of Landlord's statement
showing actual figures for the year, Tenant shall have the right to request
copies of real estate bills and an unaudited statement of "operating expenses of
the building" prepared by Landlord's certified public accountant, which shall be
supplied to Tenant within a reasonable time after Tenant's written request.
Unless Tenant asserts specific error(s) within thirty (30) days after Landlord
has complied with Tenant's request, Tenant shall have no right to contest the
statement of actual figures for the year submitted by Landlord. No such request
shall extend the time for payments as set forth in this Section 2.3 above. If
Tenant has given proper notice, and if it shall be determined that there is an
error in Landlord's statement, Tenant shall be entitled to a credit for any
overpayment, which shall be applied to the next installment of rent or refunded
to a Tenant who has vacated the premises, or Tenant shall be billed for any
underpayment and shall remit any amount owing to Landlord within ten (10) days
of receipt of such statement.
(e) In the event Tenant questions the validity of the
statement of operating expenses submitted by Landlord, Tenant shall have the
right to examine or have its accountant examine at the office of Landlord's
accountant the books and records from which such statement has been prepared. No
such examination shall extend the time for payments due in accordance with this
Section 2.3, however, Tenant shall pay upon demand a reasonable sum to reimburse
Landlord for the costs of services of Landlord's accountant in cooperating and
assisting in the examination. If any error amounting to more than five (5)
percent in the operating expenses statement is found, Landlord shall bear its
accountant's costs as aforesaid.
2.4 RENT ADJUSTMENT LIMIT. Notwithstanding any adjustments to rent as
provided for above, in no event shall the total rent to be paid by tenant in any
month during the term of this Lease or any extension thereof be less than the
base monthly rent stipulated in Section 1.3.
2.5 SURVIVAL OF RENT OBLIGATION. The obligation of Tenant with
respect to the payment of rent, or additional rent as defined in Sections 2.2
and 2.10, accrued and unpaid during the term of the Lease, shall survive the
expiration or earlier termination of the Lease.
2.6 PRO RATA SHARE. Tenant's "pro rata share" stipulated in Section
1.5(a) and (b) represents the ratio that the area of the Demised Premises bears
to the total rentable area of office space contained in the building.
2.7 PRORATED RENT. Any rent or additional rent payable for one or
more full calendar months in a partial calendar year at the beginning or end of
the Lease term shall be prorated based upon the number of months. Any rent or
additional rent payable for a portion of a month shall be prorated based upon
the number of days in the applicable calendar month.
2.8 APPLICATION OF RENT. No payment by Tenant or receipt by Landlord
of lesser amounts of rent or additional rent than those herein stipulated shall
be deemed to be other than on account of the earliest unpaid stipulated rent. No
endorsement or statement on any check or any letter accompanying any check or
payment as rent shall be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the balance of such rent or pursue any other remedy provided in this Lease. Any
credit due to Tenant hereunder by reason of overpayment of additional rent shall
first be applied to any damages or rent owed to Landlord by Tenant if Tenant
shall be in default when said credit shall be owed.
2.9 LATE PAYMENT FEE. In the event any installment of rent or
additional rent due hereunder is not paid within ten (10) calendar days after it
is due, then Tenant shall also pay to Landlord as additional rent a late payment
fee equal to five percent (5%) of such delinquent rent for each and every month
or part thereof such rent remains unpaid.
2.10 OTHER TENANT COSTS & EXPENSES. All costs and expenses which
Tenant assumes or agrees to pay to Landlord pursuant to this Lease, including
without limitation costs of construction and alterations, shall be deemed
additional rent and, in the event of nonpayment thereof, Landlord shall have all
the rights and remedies herein provided for in case of nonpayment of rent,
including assessment of late payment fees.
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3. CONSTRUCTION OF PREMISES AND OCCUPANCY
3.1 TENANT PLANS, CONSTRUCTION AND RENT LIABILITY. Tenant shall
deliver to Landlord for its approval, by the date specified in Section 1.7(a),
preliminary plans approved in writing by Tenant showing its partition,
electrical, telephone and all other requirements set forth in Tenant Plans
Guidelines (which shall have been provided by Landlord to Tenant). Tenant
preliminary plans shall permit the preparation of working drawings and cost
estimate, and shall be certified by Tenant's architects or engineers to be in
compliance with applicable building and fire codes. Landlord's approval of
Tenant plans or work does not constitute certification by Landlord that said
plans or work meet the applicable requirements of any building codes, laws, or
regulations, nor shall it impose any liability whatsoever upon Landlord. If
Tenant's plans are not in compliance with applicable building and fire codes,
they shall have working drawings prepared. Nothing contained in this Section
3.1, nor any delay in completing the Demised Premises, shall in any manner
affect the commencement date of this Lease set forth in Section 1.2 or Tenant's
liability for the payment of rent from such commencement date, expect as
follows. If Landlord requires longer than the number of working days
stipulated in Section 1.7(b) to prepare working drawings and prepare the cost
estimate following receipt of Tenant's approved preliminary drawings, or if
Landlord requires longer than the number of working days stipulated in Section
1.7(c) to substantially complete construction improvements in the Demised
Premises, then the date for payment of rent covenanted and reserved to be paid
herein shall be put off by one day for each extra day Landlord requires for the
foregoing preparation of working drawings and cost estimate and/or substantial
completion of construction improvements. For purposes of this Section 3.1,
substantial completion of construction improvements shall mean when all work to
be performed by Landlord pursuant to the approved working drawings has been
completed, except for minor items of work and minor adjustments of equipment
and fixtures that can be completed after occupancy of the Demised Premises
without causing undue interference with Tenant's reasonable use of the Demised
Premises (i.e., so-called "punch-list" items). In the event Tenant's plans
Specify any improvements that are not building standard, however, the delivery
and installation of which precludes Landlord from completing the Demised
Premises for Tenant's occupancy by the commencement date hereof, or in the
event any work to be performed by Tenant or Tenant's contractors delays
Tenant's occupancy by the commencement date hereof, Tenant shall nevertheless
remain liable for the payment of rent from such commencement date.
3.2 POSSESSION. If Landlord shall be unable to tender
possession of the Demised Premises on the date of the commencement of term
hereof, set forth in Section 1.2, by reason of: (a) the fact that the premises
are located in a building being constructed and which has not been sufficiently
completed to make the premises ready for occupancy; (b) the holding over or
retention of possession of any tenant or occupant; or (c) for any other reason
beyond control of Landlord, Landlord shall not be subject to any liability for
the failure to tender possession on said date. In the case of holding over,
provided Landlord shall promptly institute suit for recovery of the premises
and diligently pursue the same, Landlord shall have no responsibility for any
delay in tendering possession of the Demised Premises. Under such
circumstances the rent reserved and covenanted to be paid herein shall not
commence until possession of the Demised Premises is tendered to Tenant. No
such failure to give possession on the date of commencement of the term shall
in any other respect affect the validity of this Lease or the obligations of
Tenant hereunder, nor shall same be construed to extend the termination date of
this Lease set forth in Section 1.2. If permission is given to Tenant to enter
into possession of the Demised Premises prior to the date specified as the
commencement of the term of this Lease, Tenant covenants and agrees that such
occupancy shall be deemed to be under all the terms, covenants, conditions and
provisions of this Lease, except that Tenant shall be responsible for payment
of rent, in advance, at the rate of 1/30th of the base monthly rent set forth
in Section 1.3 for each day of such occupancy prior to the date for the
commencement of the term of this Lease.
3.3 OCCUPANCY PERMITS. Tenant shall be responsible for obtaining
occupancy permits and any other permits or licenses necessary for its lawful
occupancy of the Demised Premises.
4. SUBLETTING AND ASSIGNMENT
4.1 CONSENT. Tenant will not sublet the Demised Premises or any part
thereof or transfer possession or occupancy thereof to any person, firm or
corporation, or transfer or assign this Lease, without the prior written
consent of Landlord, which consent shall be in Landlord's sole discretion to
give or withhold. No subletting or assignment hereof shall be effected by
operation of law or in any other manner unless with prior written consent of
Landlord. Tenant further agrees that any permitted subletting of the Demised
Premises shall be subject to the provisions of Section 4.3. No assignment
shall be made except for the entire premises demised by this Lease. Tenant
further agrees that any permitted assignment of the Lease may be conditioned
upon payment of consideration to be agreed upon by Landlord and Tenant. Any
subletting or conditioned upon payment of consideration to be agreed upon
by Landlord and Tenant. Any subletting or assignment consented to by Landlord
shall be evidenced in writing in a form acceptable to Landlord. Consent by
Landlord to any assignment or subletting by Tenant shall not operate as a
waiver of the necessity for obtaining Landlord's consent in writing to any
subsequent assignment or subletting; nor shall the collection or acceptance of
rent from any such assignee, subtenant or occupant constitute a waiver or
release of Tenant of any covenant or obligation contained in this Lease. In
the event that Tenant defaults under this Lease in the payment or rent or
additional rent, Tenant hereby assigns to Landlord the rent due from any
subtenant of Tenant and hereby authorizes each such subtenant to pay said rent
directly to Landlord.
4.2 RECAPTURE OF PREMISES. In the event Tenant desires to sublet the
Demised Premises or assign the Lease, Tenant shall give the Landlord written
notice of Tenant's intended subtenant or assignee in order to secure Landlord's
written consent in accordance with Section 4.1. Within ninety (90) days of
receipt of said notice, Landlord shall have the right: (i) to terminate this
Lease by giving Tenant not less than thirty (30) days' notice in the case of an
assignment of the entire Lease or a subletting of more than fifty percent (50%)
of the Demised Premises; or (ii) to terminate this Lease and simultaneously to
enter into a new Lease with
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Tenant for that portion of the Demised Premises Tenant may desire to retain upon
the same terms, covenants and conditions of the existing Lease as applicable to
the space retained. If Landlord exercises its right to terminate this Lease,
Tenant agrees that Landlord shall have access to all or a portion of the Demised
Premises sixty (60) days prior to the effective termination date for remodeling
or redecorating purposes.
4.3 EXCESS RENT. In the event Landlord does not exercise its right to
terminate this Lease, and Landlord has granted its written consent, Tenant may
sublet all or a portion of the Demised Premises. Any rent accruing to Tenant as
the result of such sublease, which is in excess of the pro rata share of rent
then being paid by Tenant for the portion of the Demised Premises being sublet,
shall be paid by Tenant to Landlord monthly as additional rent.
4.4 TENANT LIABILITY. In the event of any subletting of the Demised
Premises or assignment of this Lease by Tenant, with or without Landlord's
consent, Tenant shall remain liable to Landlord for payment of the rent
stipulated herein and all other covenants and conditions contained herein.
5. SERVICES AND UTILITIES
5.1 BUILDING STANDARD SERVICES AND UTILITIES. Landlord shall furnish
sufficient electric current for lighting and office equipment, such as
typewriters, calculators, small copiers and similar items, subject to the
limitations of Section 5.3, water for lavatory and drinking purposes, lavatory
supplies, fluorescent tube replacements, automatically operated elevator service
and nightly cleaning service in accordance with Landlord's prevailing practices,
as they may be established from time to time, except that Landlord shall not be
responsible for cleaning Tenant kitchens or private bathrooms, Tenant rugs,
carpeting and drapes. Landlord further agrees to furnish heating and cooling
during the appropriate seasons of the year, between the hours and on the days
set forth in Section 1.8 (exclusive of legal public holidays as defined in
Section 6103 (a) and (c) of Title 5 of the United States Code, as it may be
hereafter be amended, with holidays falling on Saturday observed on the
preceding Friday and holidays falling on Sunday observed on the following
Monday). All of the aforesaid services shall be provided without cost to Tenant
except as such expenses may be included in calculating the additional rent
pursuant to the provisions of Sections 2.2 and 2.3. Landlord shall not be liable
for failure to furnish, or for suspension or delays in furnishing, any of such
services caused by breakdown, maintenance or repair work, strike, riot, civil
commotion, governmental regulations or any other cause or reason whatever beyond
the control of Landlord. Suspension or interruption of services shall not result
in any abatement of rent, be deemed an eviction or relieve Tenant of performance
of Tenant's obligations under this Lease.
5.2 OVERTIME SERVICES. Should Tenant require heating and cooling
services beyond the hours and/or days stipulated in Section 1.8, upon receipt of
at least 72 hours prior written notice from Tenant, Landlord will furnish such
additional service at the then prevailing hourly rates, as established by
Landlord from time to time; provided, further, that there will be a minimum
charge of four (4) hours each time overtime services are required.
5.3 EXCESSIVE ELECTRICAL USAGE.
(a) Tenant will not install or operate in the Demised Premises
any heavy duty electrical equipment or machinery without first obtaining prior
written consent of Landlord. Landlord may, among other conditions, require as a
condition to its consent for the installation of such equipment or machinery,
payment by Tenant as additional rent for excess consumption of electricity that
may be occasioned by the operation of said equipment or machinery. Landlord may
make periodic inspections of the Demised Premises at reasonable times to
determine that Tenant's electrically operated equipment and machinery complies
with the provisions of this Section and Section 5.4.
(b) The total average consumption of electricity, including
lighting, in excess of five (5) xxxxx per square foot for the Demised Premises
shall be deemed excessive. Additionally, any individual piece of electrically
operated machinery or equipment having a name plate rating in excess of two (2)
kilowatts shall also be deemed as requiring excess electric current.
(c) Landlord may require that one or more separate meters be
installed to record the consumption or use of electricity, or shall have the
right to cause a reputable independent electrical engineer to survey and
determine the quantity of electricity consumed by such excessive use. The cost
of any such survey or meters and of installation, maintenance and repair thereof
shall be paid for by Tenant. Tenant agrees to pay Landlord (or the utility
company, if direct service is provided by the utility company), promptly upon
demand therefor, for all such electric consumption and demand as shown by said
meters, or a flat monthly charge determined by the survey, as applicable, at the
rates charged for such service by the local public utility company. If Tenant's
cost of electricity based on meter readings is to be paid to Landlord, Tenant
shall pay a service charge related thereto.
5.4 EXCESSIVE HEAT GENERATION. Landlord shall not be liable for its
failure to maintain comfortable atmospheric conditions in all or any portion of
the Demised Premises due to heat generated by any equipment, machinery or
additional lighting installed by Tenant (with or without Landlord's consent)
that exceeds design capabilities for the building of which the Demised Premises
are a part. If Tenant desires additional cooling to offset excessive heat
generated by such equipment or machinery, Tenant shall pay for auxiliary cooling
equipment, and its operating costs including without limitation electricity,
gas, oil and water, or for excess electrical consumption by the existing cooling
system, as appropriate.
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5.5 SECURITY. Any security measures that Landlord may undertake are
for protection of the building only and shall not be relied upon by Tenant to
protect Tenant, Tenant's property, or employees, or their property.
6. USE AND UPKEEP OF PREMISES
6.1 USE. Tenant shall use and occupy the Demised Premises for the
purposes specified in Section 1.9 and only in accordance with applicable zoning
and other municipal regulations and for no other purpose whatsoever.
6.2 ILLEGAL AND PROHIBITED USES. Tenant will not use or permit the
Demised Premises or any part thereof to be used for any disorderly, unlawful or
extra hazardous purpose and will not manufacture any commodity therein. Tenant
will not use or permit the Demised Premises to be used for any purposes that
interfere with the use and enjoyment by other tenants of the building nor which,
in Landlord's opinion, impair the reputation or character of the building of
which the Demised Premises form a part. Tenant shall refrain from and
discontinue such use upon receipt of written notice from Landlord or no later
than three (3) days after mailing thereof
6.3 INSURANCE RATING. Tenant will not do or permit anything to be
done in the Demised Premises or the building of which they form a part or bring
or keep anything therein which shall in any way increase the rate of fire or
other insurance in said 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 those having business with them, or conflict with them, or conflict
with the fire laws or regulations, or with any insurance policy upon said
building or any part thereof, or with any statutes, rules or regulations enacted
or established by the appropriate governmental authority.
6.4 ALTERATIONS.
(a) Tenant will not make any alterations, installations,
changes, replacements, repairs, additions or improvements (structural or
otherwise) in or to the Demised Premises or any part thereof, without the prior
written consent of Landlord. All Tenant plans and specifications shall be
submitted to Landlord for prior approval. Landlord may, among other things,
condition its consent upon Tenant's agreement that any construction up-gradings
required by any governmental authority as a the result of Tenant's work, either
in the Demised Premises or in any other part of the building, will be paid for
by Tenant. Tenant shall not install any equipment of any kind or nature
whatsoever which will or may necessitate any changes, replacements or additions
to the water system, plumbing system, heating system, air-conditioning system or
the electrical system of the Demised Premises without the prior written consent
of the Landlord. Tenant shall not install or use in the building any air
conditioning unit, engine, boiler, generator, machinery, heating unit, stove,
water cooler, ventilator, radiator or any other similar apparatus without the
prior written consent of Landlord, and then only as Landlord may direct. Tenant
shall not modify or interfere with the heating, ventilating and air-conditioning
supply, return or control systems without the prior written consent of Landlord,
and then only as Landlord may direct. Landlord may condition its consent upon
Tenant's payment of all costs to make such changes, replacement or
modifications. Landlord's consent to any work by Tenant or approval of Tenant
plans or specifications shall not be deemed a certification that such work
complies with applicable building codes, laws or regulations, nor shall it
impose any liability whatsoever upon Landlord.
(b) All of Tenant's approved work shall be done in accordance
with Landlord's Supplemental Rules and Regulations for Contractors and shall be
done by duly licensed contractors in accordance with all applicable laws, codes,
ordinances, rules and regulations, and Tenant shall obtain at its cost any
required permits, licenses or inspections for performance of its work. Tenant
must obtain an executed waiver of lien from each contractor or vendor that will
perform or furnish to Tenant work, labor, services or materials for any
alterations, installations, replacements, additions or improvements in or to the
Demised Premises, prior to the commencement of such work. Notwithstanding the
aforesaid, if any mechanic's lien shall at any time, whether before, during or
after the Lease term, be filed against any part of the building by reason to
work, labor, services or materials performed for or furnished to Tenant, Tenant
shall forthwith cause the lien to be discharged of record or bonded off to the
satisfaction of Landlord. If Tenant shall fail to cause such lien to be
discharge or bonded off within five (5) days after being notified or the filing
thereof, then, in addition to any other right to remedy of Landlord, Landlord
may discharge the lien by paying the amount claimed to be due. The amount paid
by Landlord, and all costs and expenses, including reasonable attorney's fees
incurred by Landlord in procuring the discharge of the lien, shall be due and
payable by Tenant to Landlord as additional rent on the first day of the next
following month, or if the Lease term has expired, upon demand.
(c) All alterations,installations,including without limitation
wall to wall carpet and drapery and drapery accessories, changes, replacements,
repairs, additions, or improvements to or within the Demised Premises (whether
with or without Landlord's consent), shall at the election of Landlord remain
upon the Demised Premises and be surrendered with the Demised Premises at the
expiration of this Lease without disturbance, molestation or injury. Should
Landlord elect that alterations, installations, changes, replacements, repairs,
additions to or improvements made by or for Tenant upon the Demised Premises be
removed upon termination of this Lease or upon termination of any renewal period
hereof, Tenant hereby agrees that Landlord shall have the right to cause same to
be removed at Tenant's sole cost and expense. Tenant hereby agrees to reimburse
Landlord for the cost of such removal together with the cost of repairing any
damage
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resulting therefrom, and the cost of restoring the premises to its condition at
the commencement of the term of this Lease as initially improved by Landlord.
Approximately sixty (60) days prior to Tenant's scheduled vacation of the
Demised Premises, Landlord and Tenant shall meet to decide what items shall be
removed and what items shall remain. At such time Tenant shall deposit with
Landlord an amount equal to the estimated costs of removal and/or restoration of
the Demised Premises, which work shall be performed by or for Landlord at
Tenant's expense.
(d) In the event that either Landlord or Tenant, during the
term hereby demised, shall be required by the order or decree of any court, or
any other governmental authority, or by law, code or ordinance, to repair,
alter, remove, reconstruct, or improve any part of the Demised Premises or of
the building of which said premises are a part, then Tenant shall make or Tenant
shall be required to permit Landlord to perform such repairs, alterations,
removals, reconstructions, or improvements without effect whatsoever to the
obligations or covenants of Tenant herein contained, and Tenant hereby waives
all claims for damages or abatement of rent because of such repairing,
alteration, removal, reconstruction, or improvement.
6.5 MAINTENANCE BY LANDLORD. Landlord shall maintain all public or
common areas located in the building, including external and structural parts of
the building that do not comprise a part of the Demised Premises and are not
Leased to others. Such maintenance shall be provided without cost to Tenant
except as such expenses may be included in calculating the additional rent
pursuant to the provisions of Sections 2.2 and 2.3.
6.6 SIGNS & ADVERTISING. No sign, advertisement or notice shall be
inscribed, painted or affixed on any part of the outside of the building, or
inside of the Demised Premises where it may be visible from the public areas of
the building, except on the directories and doors of offices, and then only in
such size, color and style as Landlord shall approve. Landlord shall have the
right to prohibit any advertisement or publication of Tenant on-or off-premises
which in Landlord's opinion tends to impair the reputation or character of the
building, Landlord or its agent. Tenant shall refrain from and discontinue such
advertisement or publication upon receipt of written notice from Landlord or no
later than three (3) days after mailing thereof
6.7 EXCESSIVE FLOOR LOAD. Landlord shall have the right to prescribe
the weight and method of installation and position of safes, computer equipment,
or other heavy fixtures or equipment. Tenant will not install in the Demised
Premises any fixtures, equipment or machinery that will place a load upon the
floor exceeding the designed floor load capacity of the building. Landlord may
prescribe the placement and positioning of all such objects within the building,
and such objects shall be placed upon platforms, plates or footings of such size
as Landlord shall prescribe if necessary. All damage done to the building by
installing or removing a safe or any other article of Tenant's office equipment,
or due to its being in the Demised Premises, shall be repaired at the expense of
Tenant.
6.8 MOVING & DELIVERIES.
(a) Moving in or out of the building is prohibited on days and
hours specified in Section 1.8. Tenant shall provide Landlord with forty-eight
(48) hours advanced written notice of any move and obtain Landlord's approval
therefor in order to facilitate scheduling use of freight elevators and loading
area.
(b) No freight, furniture or other bulky matter of any
description shall be received into the building or carried in the elevators,
except as authorized by Landlord. All moving of furniture, material and
equipment shall be under the direct control and supervision of Landlord, who
shall, however, not be responsible for any damage to or charges for moving same.
Tenant shall promptly remove from the public area adjacent to said building any
of Tenant's property delivered or deposited there.
(c) Any and all damage or injury to the Demised Premises or
the building caused by moving the property of Tenant into or out of the Demised
Premises shall be repaired at the sole cost of Tenant. Deliveries from lobby and
freight areas requiring use of hand carts shall be restricted to freight
elevators. All hand carts used in delivery, receipt or movement of freight,
supplies, furniture, or fixtures shall be equipped with rubber tires and side
guards. Tenant shall cooperate identifying delivery contractors and movers
causing damage to the building.
6.9 RULES AND REGULATIONS. Tenant shall, and shall insure that
Tenant's agents, employees, invitees and guests, faithfully keep, observe and
perform the Building Rules and Regulations set forth in Exhibit C, attached
hereto and made a part hereof, and such other reasonable rules and regulations
as Landlord may make, which shall not substantially interfere with the intended
use of the Demised Premises, which in Landlord's judgment are needful for the
general well being, operation and maintenance of the Demised Premises and the
building of which they are a part, together with their appurtenances, unless
waived in writing by Landlord. In addition to any other remedy provided for
herein, Landlord shall have the right to impose a fine of S200 per incident for
violations of Building Rules and Regulations. Nothing contained in this Lease
shall be construed to impose upon Landlord any duty or obligation to enforce
such rules and regulations, or the terms, conditions or covenants contained in
any other Lease, as against any other tenant, and Landlord shall not be liable
to Tenant for violation of the same by any other tenant, its employees, agents,
business invitees, licensees, customers, clients family members or guests.
Further, it shall be in Landlord's reasonable judgment to determine whether
Tenant is in compliance with the Rules and Regulations.
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6.10 TENANT MAINTENANCE & CONDITIONS OF PREMISES UPON SURRENDER.
Tenant will keep the Demised Premises and the fixtures and equipment therein in
good order and condition, will suffer no waste or injury thereto, and will, at
the expiration or other termination of the term hereof, surrender and deliver up
the same in like good order and condition as the premises shall be at the
commencement of the term of this Lease, subject to the provisions of Section
6.4(c), ordinary wear and tear excepted.
6.11 TENANT EQUIPMENT. Maintenance and repair of equipment such as
special light fixtures, kitchen fixtures, auxiliary heating, ventilation, or
air-conditioning equipment, private bathroom fixtures and any other type of
special equipment together with related plumbing or electrical services, or
Tenant rugs, carpeting and drapes within the Demised Premises, whether installed
by Tenant or by Landlord on behalf of Tenant, shall be the sole responsibility
of Tenant, and Landlord shall have no obligation in connection therewith.
Notwithstanding the provisions hereof, in the event that repairs required to be
made by Tenant become immediately necessary to avoid possible injury or damage
to persons or property, Landlord may, but shall not be obligated to, make
repairs to Tenant equipment at Tenant's expense. Within ten (10) days after
Landlord renders a xxxx for the cost of said repairs, Tenant shall reimburse
Landlord.
7. ACCESS
7.1 LANDLORD'S ACCESS. Landlord, its agent or employees, shall have
the right to enter the Demised Premises at all reasonable times (a) to make
inspections or to make such repairs and maintenance to the Demised Premises or
repairs and maintenance to other premises as Landlord may deem necessary; (b)
to exhibit the premises to prospective tenants during the last six (6) months of
the term of this Lease; and (c) for any purpose whatsoever relating to safety,
protection or preservation of the building of which the Demised Premises form a
part.
7.2 RESTRICTED ACCESS. No additional locks, other devices or systems
which would restrict access to the Demised Premises shall be placed upon any
doors without the prior consent of Landlord. Landlord's consent to installation
of anti-crime warning devices or security systems shall not be unreasonably
withheld; provided Landlord shall not be required to give such consent unless
Tenant provides Landlord with a means of access to the demised premises for
emergency and routine maintenance purposes. Unless access to the Demised
Premises is provided during the hours when cleaning service is normally
rendered, Landlord shall not be responsible for providing such service to the
Demised Premises or to those portions thereof which are inaccessible. Such
inability by Landlord to provide cleaning services to inaccessible areas shall
not entitle Tenant to any adjustment in rent.
8. LIABILITY
8.1 PERSONAL PROPERTY. All personal property or Tenant in the Demised
Premises or in the building of which the Demised Premises is a part shall be at
the sole risk of Tenant. Landlord shall not be liable for any damage thereto or
for the theft or misappropriation thereof, unless such damage, theft or
misappropriation is directly attributable to the negligence of Landlord, its
agents or employees. Landlord shall not be liable for any accident to or damage
to property of Tenant resulting from the use or operation of elevators or of the
heating, cooling, electrical or plumbing apparatus, unless caused by and due to
the negligence of Landlord, its agents or employees. Landlord shall not, in any
event, be liable for damages to property resulting from water, steam or other
causes. Tenant hereby expressly releases Landlord from any liability incurred or
claimed by reason of damage to Tenant's property, unless said damages are proved
to be the direct result of negligence of Landlord, its agents or employees.
Landlord shall not be liable in damages, nor shall this Lease be affected, for
conditions arising or resulting, and which affect the building of which the
Demised Premises is a part, due to construction on contiguous premises.
8.2 CRIMINAL ACTS OF THIRD PARTIES. Landlord shall not be liable in
any manner to Tenant, its agents, employees, invitees or visitors for any injury
or damage to Tenant, Tenant's agents, employees, invitees, or visitors, or their
property, caused by the criminal or intentional misconduct of third parties or
of Tenant, Tenant's employees, agents, invitees, or visitors. All claims against
Landlord for any such damage or injury are hereby expressly waived by Tenant,
and Tenant hereby agrees to hold harmless and indemnify Landlord from all such
damages and the expense of defending all claims made by Tenant's employees,
agents, invitees, or visitors arising out of such acts.
8.3 PUBLIC LIABILITY. Landlord assumes no liability or responsibility
whatsoever with respect to the conduct and operation of the business to be
conducted upon the Demised Premises. Landlord shall not be liable for any
accident to or injury to any person or persons or property in or about the
Demised Premises which are caused by the conduct and operation of said business
or by virtue of equipment or property of Tenant in said premises. Tenant agrees
to hold Landlord harmless against all such claims, and indemnify Landlord from
all damages and the expense of defending all such claims.
8.4 TENANT INSURANCE.
(a) Tenant at its cost shall maintain as named insured, during
the term of this Lease, public liability and property damage insurance with at
least a single combined liability and property damage limit of $1,000,000.00,
insuring against all liability of Tenant and its authorized representatives
arising out of and in connection with Tenant's use or occupancy of the premises.
All public liability insurance and property damage insurance shall insure
performance by Tenant of the indemnity provisions of Section 8.1, 8.2 and 8.3.
Landlord and Landlord's Agent shall be named as additional insureds. The policy
shall contain cross-liability endorsements, and an assumed contractual liability
endorsement that refers expressly to this Lease.
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(b) Tenant at its cost shall maintain as named insured, during
the term of this Lease, fire and extended coverage insurance on the Demised
Premises and its contents, including any Leasehold improvements made by Tenant,
in an amount sufficient so that no co-insurance will be payable in case of loss.
(c) Tenant shall increase its insurance coverage as required
not more frequently than each three (3) years, if in the opinion of the
mortgagee of the building or Landlord's insurance agent the amount of public
liability and property damage insurance coverage at that time is not adequate.
(d) All insurance required under this Lease shall be insurance
companies authorized to do business in the jurisdiction where the building of
which the Demised Premises is a part is located. Such companies shall have a
policyholder rating of at least "A" and be assigned a financial size category of
at least "Class XIV" as rated in the most recent edition of "Best's Key Rating
Guide" for insurance companies. Each policy shall contain an endorsement
requiring 30 days' written notice from the insurance company to Landlord before
cancellation or any charge in the coverage, scope or amount of any policy. Each
policy, or a certificate showing it is in effect, together with evidence of
payment of premiums, shall be deposited with Landlord at least thirty (30) days
prior to the expiration date of any policy.
(e) Notwithstanding the fact that any liability of Tenant to
Landlord may be covered by Tenant's insurance, Tenant's liability shall in no
way be limited by the amount of its insurance recovery.
9. DAMAGE
9.1 DAMAGES CAUSED BY TENANT. Subject to the provision of Section
9.2, all injury to the Demised Premises and other portions of the building of
which it is a part, caused by Tenant, its agents, employees, invitees and
visitors, will be repaired by Landlord at the expense of Tenant, except as
otherwise provided in Section 6.11, or repaired by Tenant with Landlord's
approval in accordance with Section 6. Tenant shall reimburse Landlord for such
repairs within ten (10) days of receipt or invoice from Landlord of the costs.
At its election, Landlord may regard the same as additional rent, in which event
the cost shall become additional rent payable with the installment of rent next
becoming due after notice is received by Tenant from Landlord. This provision
shall be construed as an additional remedy granted to Landlord and not in
limitation of any other rights and remedies which Landlord has or may have in
said circumstances.
9.2 FIRE OR CASUALTY DAMAGE. In the event of damage or destruction of
the Demised Premises by fire or any other casualty without the fault or neglect
of Tenant, its agents, employees, invitees or visitors, this Lease shall not be
terminated, but structural damage to the premises including demising partitions
and doors shall be promptly and fully repaired and restored as the case may be
by Landlord at its own cost and expense. Due allowance, however, shall be given
for reasonable time required for adjustment and settlement of insurance claims,
and for such other delays as may result from government restrictions, and
controls on construction, if any, and for strikes, national emergencies and
other conditions beyond the control of Landlord. Restoration by Landlord shall
not include replacement of furniture, equipment or other items that do not
become part of the building or any improvements to the Demised Premises in
excess of those provided for as building standard items as of the commencement
date of this Lease. Tenant shall be responsible for the repair and restoration
of the Demised Premises and Tenant's property beyond Landlord's obligation at no
cost to Landlord, in accordance with the provisions of Section 6. for which it
shall maintain adequate insurance pursuant to Section 8.4 herein. In the event
of fire or casualty damage to the Demised Premises caused by the fault or
neglect of Tenant, its agents, employees, invitees or visitors, Landlord shall
restore structural damages as described herein at Tenant's cost and expense. It
is agreed that in any of the aforesaid events, this Lease shall continue in full
force and effect.
9.3 UNTENANTABILITY. If the condition referred to in Section 9.2 is
such so as to make the entire premises untenantable, then the rental which
Tenant is obligated to pay hereunder shall xxxxx as of the date of the
occurrence until the premises have been fully and completely restored by
Landlord. Any unpaid or prepaid rent for the month in which said condition
occurs shall be prorated. If the premises are partially damaged or destroyed,
then during the period that Tenant is deprived of the use of the damaged portion
of said premises, Tenant shall be required to pay rental covering only that part
of the premises that it is able to occupy, based on the portion of the total
rent which the amount of square foot area remaining that can be occupied bears
to the total square foot area of all premises covered by this Lease. In the
event the premises are substantially or totally destroyed by fire or other
casualty so as to be entirely untenantable, and it shall require more than
ninety (90) days from the date of said fire or other casualty for Landlord to
complete restoration of same, then Landlord, upon written notice to Tenant, may
terminate this Lease, in which case the rent shall be apportioned and paid to
the date of said Fire or other casualty. Due allowance, however, shall be given
for reasonable time required for adjustment and settlement of insurance claims,
and for such other delays as may result from government restrictions, and
controls on construction, if any, and or strikes, national emergencies and other
conditions beyond the control of Landlord. No compensation, or claim, or
diminution of rent will be allowed or paid by Landlord, by reason of
inconvenience, annoyance, or injury to business, arising from the necessity or
repairing the Demised Premises or any portion of the building of which they arc
a part.
10. CONDEMNATION
10.1 LANDLORD RIGHTS TO AWARD. Tenant agrees that if the whole or a
substantial part of the Demised Premises shall be taken or condemned for public
or quasi-public use or purpose by any competent authority, Tenant shall have no
claim against Landlord and shall not have any claim or right to any portion of
the amount that may be awarded as damages or paid as a result of any such
condemnation. All rights of
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Tenant to damages therefor, if any, are hereby assigned by Tenant to Landlord.
Upon such condemnation or taking, the term of this Lease shall cease and
terminate from the date of such government taking or condemnation. If a portion
of the building or the Demised Premises is taken or condemned, and the remainder
in Landlord's opinion is not economically usable, Landlord shall notify Tenant
of the termination of this Lease effective as of the date of such governmental
taking or condemnation. Tenant shall have no claim against Landlord for the
value of any unexpired term of this Lease. If less than a substantial part of
the Demised Premises is taken or condemned by any governmental authority for
public or quasi-public use or purpose and the remainder is usable by Tenant, the
rent shall be equitably adjusted on the date when title vests in such
governmental authority and the Lease shall otherwise continue in full force and
effect. For the purposes of this Section 10, a substantial part of the Demised
Premises shall be considered to have been taken if more than fifty percent (50%)
of the Demised Premises are unusable by Tenant.
10.2 TENANT RIGHT TO FILE CLAIM. Nothing In Section 10.1 shall
preclude Tenant from filing a separate claim against the condemning authority
for the undepreciated value of its Leasehold improvements and relocation
expenses, provided that any award to Tenant will not result in a diminution of
any award to Landlord.
11. BANKRUPTCY
11.1 EVENTS OF BANKRUPTCY. The following shall be Events of Bankruptcy
under this Lease:
(a) Tenant's becoming insolvent, as the term is defined in Title
11 of the United States Code, entitled Bankruptcy, 11 U.S.C Sec. 101 et seq.
(the "Bankruptcy Code"), or under the insolvency laws of any State, District,
Commonwealth or Territory of the United States ("Insolvency Laws");
(b) The appointment of a receiver or custodian for any or all
of Tenant's property or assets, or the institution of a foreclosure action upon
any of Tenant's real or personal property,
(c) The filing of a voluntary petition under the provisions of
the Bankruptcy Code or Insolvency Laws;
(d) The filing of an involuntary petition against Tenant as the
subject debtor under the Bankruptcy Code or Insolvency Laws, which is either not
dismissed within thirty (30) days of filing, or results in the issuance of an
order for relief against the debtor, whichever is later, or
(e) Tenant's making or consenting to an assignment for the
benefit of creditors of a common law composition of creditors.
11.2 LANDLORD'S REMEDIES.
(a) Termination of Lease. Upon occurrence of an Event of
Bankruptcy, Landlord shall have the right to terminate this Lease by giving
written notice to Tenant; provided, however, that this Section 11.2(a) shall
have no effect while a notice in which Tenant is the subject debtor under the
Bankruptcy Code is pending, unless Tenant or its Trustee is unable to comply
with the provisions of Section 11.2(d) and (e) below. At all other times this
Lease shall automatically cease and terminate, and Tenant shall be immediately
obligated to quit the premises upon the giving of notice pursuant to this
Section 11.2(a). Any other notice to quit, or notice of Landlord's intention to
re-enter is hereby expressly waived. If Landlord elects to terminate this Lease,
everything contained in this Lease on the part of Landlord to be done and
performed shall cease without prejudice, subject, however, to the rights of
Landlord to recover from Tenant all rent and any other sums accrued up to the
time of termination or recovery of possession by Landlord, whichever is later,
and any other monetary damages or loss of reserved rent sustained by Landlord.
(b) Suit for Possession. Upon termination of this Lease pursuant
to Section 11.2(a), Landlord may proceed to recover possession under and by
virtue of the provisions of the laws of any applicable jurisdiction, or by such
other proceedings, including reentry and possession, as may be applicable.
(c) Non-Exclusive Remedies. Without regard to any action by
Landlord as authorized by Section 11.2(a) and (b) above, Landlord may at its
discretion exercise all the additional provisions set forth below in Section 12.
(d) Assumption or Assignment by Trustee. In the event Tenant
becomes the subject debtor in a case pending under the Bankruptcy Code,
Landlord's right to terminate this Lease pursuant to Section 11.2(a) shall be
subject to the rights of the Trustee in Bankruptcy to assume or assign this
Lease. The Trustee shall not have the right to assume or assign this Lease
unless the Trustee (i) promptly cures all defaults under this Lease, (iii)
promptly compensates Landlord for monetary damages, incurred as a result of such
default, and (iii) provides adequate assurance of future performance on the part
of Tenant as debtor in possession or on the part of the assignee Tenant.
(e) Adequate Assurance of Future Performance. Landlord and Tenant
hereby agree in advance that adequate assurance of future performance, as used
in Section 11.2(d) above, shall mean that all of the following minimum criteria
must be met: (i) Tenant's gross receipts in the ordinary course of business
during the thirty-day period immediately preceding the initiation of the case
under the Bankruptcy Code must be at least two times greater than the next
payment of rent due under this Lease; (ii) Both the average and median of
Tenant's gross receipts in the ordinary course of business during the six-month
period immediately preceding the initiation of the case under the Bankruptcy
Code must be at least two times greater than the next payment of rent due under
this Lease; (iii) Tenant must pay its estimated pro rata share of cost of all
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services provided by Landlord (whether directly or through agents or contractors
and whether or not previously included as part of the base rent), in advance of
the performance or provision of such services; (iv) The Trustee must agree that
Tenant's business shall be conducted in a first class manner, and that no
liquidating sales, auctions, or other non-first class business operations shall
be conducted on the premises; (v) The Trustee must agree that the use of the
premises as stated in this Lease will remain unchanged and that no prohibited
use shall be permitted; and (vi) The Trustee must agree that the assumption or
assignment of this Lease will not violate or affect the rights of other tenants
in the building.
(f) Failure to Provide Adequate Assurance. In the event Tenant
is unable to (i) cure its defaults, (ii) reimburse the Landlord for its monetary
damages, (iii) pay the rent due under this Lease, and all other payments
required of Tenant under this Lease on time (or within five (5) days), or (iv)
meet the criteria and obligations imposed by Section 11.2(e) above, Tenant
agrees in advance that it has not met its burden to provide adequate assurance
of future performance, and this Lease may be terminated by Landlord in
accordance with Section 11.2(a) above.
12. DEFAULTS & REMEDIES
12.1 DEFAULT. It Is agreed that Tenant shall be in default if: Tenant
shall fail to pay the rent, or any installments thereof as aforesaid, at the
time shall become due and payable and/or any additional rent as herein provided
although no demand shall have been made for the same; or Tenant shall violate or
fail or neglect to keep and perform any of the covenants, conditions and
agreements, or rules and regulations herein contained on the part of Tenant to
be kept and performed.
12.2 REMEDIES. In each and every such event set forth in Section 12.1
above, from thenceforth and at all times thereafter, at the option of Landlord,
Tenant's right of possession shall thereupon cease and terminate, and Landlord
shall be entitled to the possession of the Demised Premises and to re-enter the
same without demand of rent or demand of possession of said premises and may
forthwith proceed to recover possession of the Demised Premises by process of
law, any notice to quit being hereby expressly waived by Tenant. In the event of
such re-entry by process of law or otherwise, Tenant nevertheless agrees to
remain answerable for any and all damage, deficiency or loss of rent which
Landlord may sustain by such re-entry, including reasonable attorney's fees and
court costs. If, under the provisions hereof, seven (7) days summons or other
applicable summary process shall be served, and a compromise or settlement
therefor shall be made, such action shall not be constituted as a waiver of any
breach of any covenant, condition or agreement herein contained. No waiver of
any breach of any covenant, condition or agreement, herein contained, on one or
more occasions shall operate as a waiver of the covenant, condition or agreement
itself, or of any subsequent breach thereof. No provision of this Lease shall be
deemed to have been waived by Landlord unless such waiver shall be in writing
signed by Landlord.
12.3 LANDLORD'S RIGHT TO RELET. Should this Lease be terminated before
the expiration of the term of this Lease by reason of Tenant's default as
provided in Section 11 or 12, or if Tenant shall abandon or vacate the premises
before the expiration or termination of the term of this Lease, the Demised
Premises may be relet by Landlord for such rent and upon such terms as are
reasonable under the circumstances. If the full rent reserved under this Lease
(and any of the costs, expenses or damages indicated below) shall not be
realized by Landlord, Tenant shall be liable for all damages sustained by
Landlord, including, without limitation, deficiency in rent, reasonable
attorney's fees, other collection costs, brokerage fees, and expenses of placing
the premises in first-class rentable condition. Landlord, in putting the
premises in good order or preparing the same for rerental may, at Landlord's
option, make such alterations, repairs, or replacements in the premises, and the
making of such alterations, repairs, or replacements in the premises as
Landlord, in Landlord's sole judgment, considers advisable and necessary for the
purpose of reletting the premises, and the making of such alternations, repairs,
or replacements shall not operate or be construed to release Tenant from
liability hereunder as aforesaid. Landlord shall in no event be liable in any
way whatsoever for failure to relet the premises, or in the event that the
premises are relet, for failure to collect the rent thereof under such
reletting. In no event shall Tenant be entitled to receive any excess ,if any,
of such net rent collected over the sums payable by Tenant to Landlord
hereunder.
12.4 RECOVERY OR DAMAGES. Any damage or loss of rent sustained by
Landlord may be recovered by Landlord, at Landlord's option, in separate
actions, from time to time, as said damage shall have been ascertained or, at
Landlord's option, may be deferred until the expiration of the term of this
Lease (in which event Tenant hereby agrees that the cause of action shall not be
deemed to have accrued until the date of expiration of said term). The
provisions contained in this paragraph shall be in addition to and shall not
prevent the enforcement of any claim Landlord may have against Tenant for
anticipatory breach of the unexpired term of this Lease. All rights and remedies
of Landlord under this Lease shall be cumulative and shall not be exclusive of
any rights and remedies provided to Landlord under applicable law. In the event
Tenant becomes the subject debtor in a case under the Bankruptcy Code, the
provisions of this Section 12.4 may be limited by the limitations of damage
provisions of the Bankruptcy Code.
12.5 WAIVER. If under the provisions hereof Landlord shall institute
proceedings and a compromise or settlement thereof shall be made, the same shall
not constitute a waiver of any covenant, rule or regulation herein contained nor
of any of Landlord's rights hereunder. No waiver by Landlord of any breach of
any covenant, condition, agreement, rule or regulation herein contained shall
operate as a waiver of such covenant, condition, agreement, rule or regulation
itself, or of any subsequent breach thereof.
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12.6 ANTICIPATORY REPUDIATION. If, prior to the commencement of the
term of this Lease, Tenant notifies Landlord of or otherwise unequivocally
demonstrates as intention to repudiate this Lease, Landlord may, at its option,
consider such anticipatory repudiation a breach of this Lease. In addition to
any other remedies available to it hereunder or at law or in equity, Landlord
may retain all rent paid upon execution of the Lease and the security deposit,
if any, shall be applied to Landlord's damages: reletting, loss of rent, etc. It
is agreed between the parties that for the purpose of calculating Landlord's
damages, in a building which has other available space at the time of Tenant's
breach, the premises covered by this Lease shall be deemed the last space
rented, even though the premises may be rerented prior to such other vacant
space. Tenant shall pay in full for all tenant improvements constructed or
installed within the Demised Premises to the date of the breach, and for
materials ordered at its request for the Demised Premises.
12.7 TENANT ABANDONMENT OF PREMISES.
(a) Abandonment. If the Demised Premises shall be deserted or
vacated by Tenant for thirty (30) consecutive days or more without notice to
Landlord, and Tenant shall have failed to make the current rental payment, the
premises may be deemed abandoned. Landlord may consider Tenant in default under
this Lease and may pursue all remedies available to it under this Lease or at
law.
(b) Landlord Right to Enter and to Relet. If Tenant vacates or
abandons the premises as defined above, Landlord may, at its option, enter into
the premises without being liable for any prosecution therefor or for damages by
reason thereof. In addition to any other remedy, Landlord, as agent of Tenant,
may relet the whole or any part of the premises for the whole or any part of the
then unexpired Lease term. For the purposes of such reletting, Landlord may make
any alterations or modifications of the premises considered desirable in its
sole judgment.
(c) Rights to Dispose of Tenant Property. If Tenant vacates or
abandons the premises as defined above, any property that Tenant leaves on the
premises shall be deemed to have been abandoned and may either be retained by
Landlord as the property of Landlord or may be disposed of at public or private
sale in accordance with applicable law as Landlord sees fit. The proceeds of any
public or private sale of Tenant's property, or the then current fair market
value of any property retained by Landlord, shall be applied by Landlord against
(i) the expenses of Landlord for removal, storage or sale of the property, (ii)
the arrears of rent or future rent payable under this Lease; and (iii) any other
damages to which Landlord may be entitled hereunder.
(d) Transfer of Tenant Property to Creditors. If Tenant vacates
or abandons the premises, as defined above, Landlord may, upon presentation of
evidence of a claim valid upon its face of ownership or of a security interest
in any of Tenant's property abandoned in the premises, turn over such property
to the claimant with no liability to Tenant.
13. SUBORDINATION
13.1 SUBORDINATION. This Lease is subject and subordinate to all
ground or underlying Leases and to all mortgages and/or deeds of trust and/or
other security interests which may now or hereafter affect the real property of
which the Demised Premises form a part, and to all renewals, modifications,
consolidations, replacements and extensions thereof. This clause shall be
self-operative and no further instrument of subordination shall be required to
effect this subordination. Notwithstanding the foregoing, in confirmation of
such subordination, Tenant shall at Landlord's request execute and deliver to
Landlord within ten (10) business days after Landlord's request, any requisite
or appropriate certificate, subordination agreement or other document that may
be reasonably requested by Landlord or any other party requiring such
certificate, subordination agreement or document. If Tenant fails to execute
such certificate, subordination agreement or other document within said ten (10)
day period, Tenant by such failure irrevocably constitutes and appoints Landlord
as its special attorney-in-fact to execute such certificate, subordination
agreement or other document on Tenant's behalf. Notwithstanding the foregoing
subordination, Tenant agrees that any landlord under any ground or underlying
Lease, and any mortgagee or trustee under any security agreement to which this
Lease is now, or may hereafter, become subject or subordinate, may elect to
continue this Lease and Tenant agrees that in such event neither the
cancellation nor termination of any ground or underlying Lease, nor the
foreclosure under any mortgage or deed of trust, nor the sale at foreclosure,
nor the transfer by a deed in lieu of foreclosure, shall, by operation of law or
otherwise, result in cancellation or termination of this Lease or the
obligations of Tenant hereunder and this Lease shall continue as a direct Lease
between Tenant and such landlord, mortgagee, purchaser or trustee.
13.2 ESTOPPEL CERTIFICATES. Tenant shall execute and return within ten
(10) business days any certificate that Landlord may request from time to time,
stating that this Lease is unmodified and in full force and effect, or in full
force and effect as modified, and stating the modification. The certificate also
shall state (a) the amount of base monthly rent and the dates to which the rent
has been paid in advance; (b) the amount of any security deposit or prepaid
rent; (c) that there is no present default on the part of Landlord, or attach a
memorandum stating any such instance of default; (d) that Tenant has no right to
setoff and no defense or counterclaim against enforcement of its obligations
under this Lease; (e) that Tenant has no other notice of any sale, transfer or
assignment of this Lease or of the rentals; (f) that all work required of
Landlord has been completed and that the work is accepted as satisfactory; (g)
that Tenant is in full and complete possession of the Demised Premises; (h) the
date on which rent commenced and the date to which it is paid; (i) that Tenant
has not advanced any amounts to or on behalf of Landlord which have not been
reimbursed; (j) that Tenant understands that this Lease has been collaterally
assigned to Landlord's mortgagee as security for a loan to Landlord; (k) that
rent may not be prepaid without the prior written approval of Landlord's
mortgagee; and
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(1) such other items as Landlord may reasonably request. Failure to deliver the
certificate within the ten (10) business days shall be conclusive upon Tenant
for the benefit of Landlord and any successor to Landlord that this Lease is in
full force and effect and has not been modified EXCEPT AS MAY BE REPRESENTED BY
THE PARTY requesting the certificate. If Tenant fails to deliver the certificate
within the ten (10) business days. Tenant by such failure irrevocably
constitutes and appoints Landlord as its special attorney-in-fact to execute and
deliver the certificate to any third party.
13.3 ATTORNMENT. Tenant covenants and agrees that, in the event of any
foreclosure under any mortgage or deed of trust, or any renewal, modification,
consolidation, replacement or extension thereof, or in the event of any
acceptance of any deed in lieu of foreclosure, which may now or hereafter affect
the real property of which the Demised Premises are a part, Tenant shall attorn
to the party secured by such mortgage or deed of trust, or any renewal,
modification, consolidation, replacement or extension thereof, and to any
purchaser at any foreclosure sale or party taking a deed in lieu of foreclosure.
Tenant covenants and agrees to attorn to any successor to Landlord's interest in
any ground or underlying Lease. In any case, such landlord or successor under
such ground or underlying Lease or such secured party or purchaser at
foreclosure sale or party taking a deed in lieu of foreclosure shall not be
bound by any prepayment on the part of Tenant of any rent for more than one
month in advance, so that rent shall be payable under this Lease in accordance
with its terms, from the date of the termination or transfer of the ground or
underlying Lease or the foreclosure under such mortgage or deed of trust, or the
date of foreclosure sale or transfer by deed in lieu of foreclosure, as if such
prepayment had not been made. Further, such landlord or successor in interest
shall not be liable for damages for any act or omission of Landlord or any prior
landlord or be subject to any offsets or defenses which Tenant may have against
Landlord or any prior landlord. Tenant shall, upon request of such landlord or
successor landlord, execute and deliver an instrument or instruments confirming
Tenant's attornment.
13.4 MORTGAGEE RIGHTS.
(a) Tenant shall, at its own expense, comply with all
reasonable notices of Landlord's mortgagee or other financial institution
providing funds which are secured by a mortgage or deed of trust placed on the
whole or any part of the real property of which the Demised Premises are a part,
respecting all matters of occupancy, use, condition or maintenance of the
Demised Premises, provided the same shall not unreasonably interfere with the
conduct of Tenant's business nor materially limit or affect the rights of the
parties under this Lease. Notwithstanding acceptance and execution of this Lease
by the parties hereto, the terms hereof shall be deemed automatically modified,
if so required, for the purpose of complying with or fulfilling the reasonable
requirements of any mortgagee or trustee named or secured by a mortgage or deed
of trust that may now or hereafter be placed upon or secured by the real
property of which the Demised Premises are a part or any part thereof, or any
other financial institution providing funds to finance or refinance the real
property of which the Demised Premises are a part, provided, however, that such
modifications(s) shall not be in material derogation or diminution of any of the
rights of the parties hereunder, nor materially increase any of the obligations
or liabilities of the parties hereunder.
(b) Tenant agrees to give Landlord's mortgagee and any trustee
named or secured by a mortgage or deed of trust a copy of any notice of default
served upon Landlord by Tenant, provided that prior to such notice Tenant has
been notified in writing (by way of Notice of Assignment of Rents and Leases, or
otherwise) of addresses of such mortgagees and trustees. Notice shall be
provided to the mortgagees and trustees by registered mail. Tenant further
agrees that if Landlord shall have failed to cure such default within the cure
period provided in this Lease, if any, then the mortgagees and/or trustees shall
have an additional thirty (30) days within which to cure such default, or if
such default cannot be cured within that time, then such additional time as may
be necessary if within such thirty (30) days any mortgagee and/or trustee has
commenced and is diligently pursuing the remedies necessary to cure such default
(including but not limited to commencement of foreclosure proceedings if
necessary to effect such cure), in which event this Lease shall not be
terminated while such remedies are being diligently pursued.
14. TENANT HOLDOVER
14.1 WITH LANDLORD CONSENT. If Tenant continues, with the knowledge
and written consent of Landlord obtained at least thirty (30) days prior to the
expiration of the term of this Lease, to remain in the premises after the
expiration of the term of this Lease, then and in that event, Tenant shall, by
virtue of this holdover agreement, become a tenant by the month at the rent
stipulated by Landlord in said holdover agreement, commencing said monthly
tenancy with the first day next after the end of the term above demised. Tenant
shall give to Landlord at least thirty (30) days' written notice of any
intention to quit said premises. Tenant shall be entitled to thirty (30) days'
written notice to quit said premises, except in the event of nonpayment of rent
in advance or of the breach of any other covenant by Tenant, in which event
Tenant shall not be entitled to any notice to quit, the usual thirty (30) days'
notice to quit being hereby expressly waived.
14.2 WITHOUT LANDLORD CONSENT. In the event that Tenant, without the
consent of Landlord, shall hold over the expiration of the term hereby created,
then Tenant hereby waives all notice to quit and agrees to pay to Landlord for
the period that Tenant is in possession after the expiration of this Lease, a
monthly rent which is three times the total rent (base monthly rent, as
stipulated in Section 1.3, plus additional rent, as stipulated in Section 1.5)
applicable to the last month of this Lease. Tenant expressly agrees to hold
Landlord harmless from all loss and damages, direct and consequential, which
Landlord may suffer in defense of claims by other parties against Landlord
arising out of the holding over by Tenant, including without limitation
attorneys' fees which may be incurred by Landlord in defense of such claims.
Acceptance of rent by Landlord subsequent to the expiration of the term of this
Lease shall not constitute consent to any holding over. Landlord shall have the
right to apply all payments received after the expiration date of this Lease or
any renewal thereof toward payment for use and occupancy of the premises
subsequent to the expiration of the term and toward any other sums owed by
Tenant to Landlord. Landlord, at its option, may forthwith re-
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enter and take possession of said premises without process, or by any legal
process in force. Notwithstanding the foregoing, Tenant's holdover without
Landlord consent due to acts of God, riot, or war shall be at the total rent
applicable to the last month of the term for the duration of the condition (but
not to exceed ten days), but such continued occupancy shall not create any
renewal of the term of this Lease or a tenancy from year-to-year, and Tenant
shall be liable for any loss and damages suffered by Landlord as described
above.
15. SECURITY DEPOSIT
15.1 Tenant shall deposit with Landlord simultaneously with the
execution of this Lease, the amount stipulated in Section 1.6 as a security
deposit. Provided Tenant is not in default in the payment of rent or any other
charges due Landlord, and further provided the Demised Premises are left in good
condition, reasonable wear and tear excepted, as described in Section 6.10, said
deposit (which shall not bear interest to Tenant) shall be returned to Tenant
within thirty (30) days after the termination of this Lease. If Tenant is in
default or if the premises are not left in good condition, then the security
deposit shall be applied to the extent available on account of sums due Landlord
or the cost of repairing damages to the Demised Premises. In the event of the
sale or transfer of Landlord's interest in the building, Landlord shall have the
right to transfer the security deposit to such purchaser or transferee, in which
event Tenant shall look only to the new Landlord for the return of the security
deposit and Landlord shall thereupon be released from all liability to Tenant
for the return of such security deposit.
16. QUIET ENJOYMENT
16.1 So long as Tenant shall observe and perform the covenants and
agreements binding on it hereunder, Tenant shall at all times during the term
herein granted, peacefully and quietly have and enjoy possession of the premises
without any encumbrance or hindrance by, from or through Landlord, except as
provided for elsewhere under this Lease. Nothing in this Section shall prevent
Landlord from performing alterations or repairs on other portions of the
building not Leased to Tenant, nor shall performance of such alterations or
repairs be construed as a breach of this covenant by Landlord.
17. SUCCESSORS
17.1 All rights, remedies and liabilities herein given to or imposed
upon either of the parties hereto, shall extend to their respective heirs,
executors, administrators, successors, and assigns. This provision shall not be
deemed to grant Tenant any right to assign this Lease or to sublet the premises.
18. WAIVER OF JURY TRIAL
18.1 Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other one or in respect of any matter whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant hereunder,
Tenants's use or occupancy of the Demised Premises, and/or any claim of "injury
or damage."
19. LIMITATION OF LIABILITY
19.1 Notwithstanding anything to the contrary contained in this Lease,
if any provision of this Lease expressly or impliedly obligates Landlord not to
unreasonably withhold its consent or approval, an action for declaratory
judgment or specific performance will be Tenant's sole right and remedy in any
dispute as to whether Landlord has breached such obligation.
20. PRONOUNS & DEFINITIONS
20.1 Feminine or neuter pronouns shall be substituted for those of the
masculine form, and the plural shall be substituted for the singular number, in
any place or places herein in which the context may require such substitution or
substitutions. Landlord and Tenant herein for convenience have been referred to
in the neuter form.
20.2 Wherever the word "premises" is used in this Lease, it shall
refer to the Demised Premises described in Section 1.1, unless the context
clearly requires otherwise.
21. NOTICES
21.1 ADDRESSES FOR NOTICES. All notices required or desired to be
given hereunder by either party to the other shall be personally delivered or
given by certified or registered mail and addressed as specified in Section
1.10. Either party may, by like written notice, designate a new address to which
such notices shall be directed.
21.2 EFFECTIVE DATE OF NOTICE. Notice shall be deemed to be effective
when personally delivered or received or rejected unless otherwise stipulated
herein.
22. EXHIBITS; SPECIAL PROVISIONS
22.1 INCORPORATION IN LEASE. It is agreed and understood that any
Exhibits and Special Provisions referred to in Sections 1.11 and 1.12,
respectively, and attached hereto, form an integral part of this Lease and are
hereby incorporated by reference.
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22.2 Conflicts. If there is a conflict between a Special Provision
hereto and the Specific Provisions or General Provisions of this Lease, the
Special Provision shall govern.
23. CAPTIONS
23.1 All Section and paragraph captions herein are for the convenience
of the parties only, and neither limit nor amplify the provisions of this Lease.
24. ENTIRE AGREEMENT; MODIFICATION
24.1 This Lease, all Exhibits hereto, and Special Provisions
incorporated herein by reference contain all the agreements and conditions made
between the parties and may not be modified orally or in any other manner than
by an agreement in writing, signed by the parties hereto.
25. SEVERABILTY
25.1 The unenforceability, invalidity, or illegality or any provision
herein shall not render any other provision herein unenforceable, invalid, or
illegal.
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26. RENT
26.1 On the first day of the second Lease year and of each subsequent
Lease year, the Base Annual Rent shall be increased by Three Percent (3%) of the
Base Annual Rent in effect during the previous Lease year. The escalated Base
Annual Rent so determined shall be the "Base Annual Rent" for all purposes of
this Lease, including the calculation of the increase in Base Annual Rent for
the subsequent Lease year. The increase in Base Annual Rent shall be calculated
without regard to any waiver of rent or rent credit provided to Tenant.
26.2 In Subsection 2.2(b)(i), in the fifth line, change 'installed
to' to "which actually"; in the sixth line, after 'expenses' insert ", but only
to the extent of the savings realized therefrom," and after 'expenditures'
insert ", not exceeding $10,000 amortized annually," and change the first 'or'
to "using"; and in the eighth line, after 'taxes' insert a period and delete the
remainder of the sentence.
26.3 Subsection 2.2(c) is deleted entirely; in subsection 2.3(a), the
last sentence of the paragraph is deleted entirely; in Subsection 2.3(c), in the
third line, insert a period after 'Year' and delete the rest of the sentence; in
the seventh and eighth lines, delete 'and the actual increase attributable to
the increase in the Consumer Price Index'.
27. WAIVER OF RENT
27.1 Provided Tenant is not then in default under any of the terms and
conditions of this Lease, then notwithstanding anything to the contrary in
Section 2.1, Landlord agrees to waive One Hundred Eighty-Six and 00/100 Dollars
($186.00) of Base Annual Rent due in each and every month of the initial Lease
term. Notwithstanding anything herein, the Base Annual Rent escalation payable
pursuant to Section 26.1 shall be calculated without regard to any waiver of
rent or rent credit provided to Tenant.
28. LANDLORD'S IMPROVEMENTS
28.1 Provided Tenant is not then in default of any of the terms or
conditions of this Lease, on Tenant's behalf, Landlord agrees to remodel the
demised premises in accordance with plans to be approved by both Tenant and
Landlord. Provided Tenant is not then in default of any of the terms or
conditions of this Lease, Landlord shall contribute to the cost of such Tenant
remodeling the sum of Eighteen Thousand Forty and 00/100 Dollars ($18,040.00),
with the understanding that any costs in excess thereof will be paid by Tenant.
Such excess costs shall be paid in full by Tenant simultaneously with the
approval by Landlord and Tenant of Tenant's working drawings and Landlord's
estimate of extra costs. Provided Tenant is not then in default of any of the
terms or conditions of this Lease, any remainder of said contribution shall be
credited against Tenant's rent obligations hereunder, apportioned equally and
applied once a month over the term hereof.
28.2 The Construction Schedule attached to this Lease as Exhibit "D"
is incorporated herein and describes the obligations of Landlord and Tenant, and
the respective time periods of performance thereof, for the preparation, review
and approval of Preliminary Plans, Working Drawings and estimates, and the
substantial completion of construction of the Demised Premises. Tenant shall
deliver, or cause to be delivered, to Landlord by the dates and within the time
periods specified, the Preliminary Plans and subsequent approvals specified on
Exhibit D. Any delay by Tenant in the timely performance of its obligations as
set forth on Exhibit D shall not affect the Lease Commencement Date set forth in
Section 1.2 and shall be a Tenant delay as set forth in Section 3 of the Lease.
In Section 3.1 of the Lease, any reference to Section 1.7 or any subsection
thereof shall be deemed to refer to Exhibit D and the corresponding subsection
thereof.
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28.3 In Section 3.1, in the second line, after 'plans' insert,
"prepared by Landlord at Landlord's expense,"; in the fifth line, after
'estimate' insert "prepared by Landlord at Landlord's expense." and delete the
remainder of the sentence; delete the third and fourth sentences entirely; and
in the tenth line, before the second 'Landlord' delete the preceding part of
the sentence and after 'prepared' insert "at Landlord's expense".
28.4 Notwithstanding anything to the contrary in Section 3.3,
Landlord, with Tenant's cooperation, will obtain the necessary occupancy
permit.
29. PARKING
29.1 Landlord agrees to arrange for parking in the garage of the
building described in Section 1.1 for up to Eight (8) automobiles of Tenant or
Tenant's employees at the prevailing monthly rate for such service.
30. REASONABLENESS OF LANDLORD AND TENANT
30.1 Notwithstanding anything to the contrary, whenever Landlord's or
Tenant's consent or approval is required hereunder, it shall not be
unreasonably withheld, conditioned or delayed.
31. CANCELLATION OPTION
31.1 Provided Tenant is not then in default of any of the terms or
conditions of this Lease, Tenant shall have the right, upon written notice to
Landlord on or before February 16, 1996, to cancel this Lease and the
Landlord shall return the deposit within seven (7) days.
32. EXCESS ELECTRICITY
32.1 Tenant agrees to pay monthly additional rent for the cost of
electricity consumed by supplemental HVAC units in the operation of Suite 700.
The cost shall be established after a survey by Landlord's agent to determine
the approximate number of hours each unit is operated monthly, or by
installation of a check meter, and may be adjusted from time to time to account
for changes in the rates charged by the utility company or imposition of taxes
related thereto.
33. SIGNAGE AND DIRECTORY
33.1 Landlord shall maintain in the lobby of the building a directory
board which shall include the name of Tenant and any other names reasonably
requested by Tenant in proportion to the number of square feet leased by Tenant
in the building pursuant to this Lease. Landlord shall also provide building
standard signage for the suite entry door to the demised premises.
34. SUBLETTING AND ASSIGNMENT
34.1 In Section 4.1, in the third line, after 'Landlord' insert a
period and delete the remainder of the sentence.
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35. USE AND UPKEEP OF PREMISES
35.1 In Subsection 6.4(c), in both the third and sixth lines, after
'Premises' insert "after the Lease Commencement Date"; in the eighth line,
after 'expense' insert "; provided Landlord so advised Tenant when Tenant
requested Landlord's consent thereto."; and delete the last two sentences in
their entirety.
36. DEFAULTS AND REMEDIES
36.1 Notwithstanding anything to the contrary in Sections 2.1 and
12.1, if Tenant defaults in the payment of rent, or defaults in the
performance of any other covenants, conditions and agreements, or rules and
regulations herein contained, Landlord shall give Tenant written notice of
such default. If Tenant fails to cure any rent (or additional rent) default
within ten (10) days, or fails to cure any other default within twenty (20)
days after such notice (or if such other default is of such nature that it
cannot be completely cured within said twenty (20) days, if Tenant fails to
commence to cure within said twenty (20) days and thereafter proceed with
reasonable diligence and in good faith), then Landlord, in addition to all
other rights set forth in this Lease, may terminate this Lease on not less
than ten (10) days notice to Tenant. On the date specified in such notice, the
term of this Lease shall terminate, and Tenant shall then quit and surrender
the premises to Landlord. If this Lease shall have been so terminated by
Landlord, Landlord may at any time thereafter take possession of the demised
premises by any lawful means and remove Tenant or other occupants and their
effects. Nevertheless, in the event Tenant fails to pay rent or otherwise
defaults in the performance of any of the covenants, conditions and agreements
or rules and regulations herein contained, more than two (2) times in any
twelve (12) month period, Landlord shall not be required during the remainder
of the term of this Lease to send written notice before proceeding with its
remedies under Section 12. Tenant acknowledges that the purpose of the
preceding sentence is to prevent repetitive defaults by Tenant under the
Lease, which work a hardship upon Landlord and deprive Landlord of the timely
performance by Tenant hereunder.
37. TENANT HOLDOVER
37.1 In Section 14.2, in the fourth line, change 'three' to "two".
38. EXECUTION OF DOCUMENT
38.1 In the event Tenant does not execute and return this document by
the close of business on January 31, 1996, then Landlord may market the subject
space to others without further notice to Tenant.
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