000 XXXXX XXXXXXXXX XXXXXX
OFFICE BUILDING LEASE
THIS AGREEMENT OF LEASE is made this _____ day of June, 2004 by and
between XXXXXX PROPERTIES V, LLC, hereinafter called Landlord, and NETSOL USA,
INC., a Nevada corporation, hereinafter called Tenant. WITNESSETH:
ARTICLE 1 - BASIC LEASE PROVISIONS
1.1 PREMISES: Suite 306
1.2 RENTABLE AREA PREMISES: 1,380 square feet
1.3 BUILDING: 000 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000
1.4 PERMITTED USE: Office
1.5 LEASE COMMENCEMENT DATE: July 1, 2004
1.6 EXPIRATION DATE: June 30, 2007
1.7 LEASE TERM: Three (3) years
1.8 EARLY LEASE TERMINATION: Tenant has the right to exercise an early
termination clause at any point in the lease term after the eighteenth
(18 ) month subject to restrictions and penalty
(Section 4.5).
1.9 Base Rent Schedule:
---------------------------------------------------------
LEASE YEAR ANNUAL RENT MONTHLY RENT
---------------------------------------------------------
1 $30,360.00 $2,530.00
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2 $31,270.80 $2,605.90
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3 $32,208.92 $2,684.08
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1.10 SECURITY DEPOSIT: $2,530.00
1.11 TENANT'S PRO RATA SHARE: 2.0 %
1.12 REAL ESTATE TAX BASE YEAR: 2004
1.13 OPERATING EXPENSE BASE YEAR: 2004
1.14 REAL ESTATE BROKERS:
Landlord: Matan Realty, LLLP
0000 Xxxxxxxxx Xxxx. Xxxxx X
Xxxxxxxxx, XX 00000
Tenant: CB Xxxxxxx Xxxxx
0000 Xxxxxxxxx Xxxxxx Xxxxx 000
Xxxxxxxx, XX 00000
1.15 ADDRESS FOR NOTICES:
Landlord: c/o Matan Property Management, Inc.
0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx X
Xxxxxxxxx, Xxxxxxxx 00000
Tenant: NetSol USA, Inc..
Suite 306
000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Prior to 00000 Xxxxx Xxxxx Xx Xxxxx 000
Occupancy: Xxxxxxxxx, XX 00000
1.16 RENT CHECKS PAYABLE TO:
Xxxxxx Properties V, LLC
X/x Xxxx xx Xxxxxxx
X.X. Xxx 000000
Xxxxxxxxx, XX 00000-0000
1.17 SECURITY ACCESS CARDS ISSUED: 5
1.18 PARKING SPACE ALLOCATION:
Unreserved: 5
1.19 GUARANTOR: None
ARTICLE 2 - PREMISES
2.1 PREMISES: In consideration of the rent hereinafter reserved and of the
covenant hereinafter contained, Landlord hereby leases and demises to Tenant,
and Tenant hereby leases from Landlord, the Suite described in Section y1.1 and
containing the rentable square footage set forth in Section 1.2, of the building
located at the address contained in Section y1.3 which space is hereinafter
referred to as the "Premises." The foregoing approximation of square footage
shall in no way affect the basic annual rent hereunder should any variance be
found to exist between the approximation and the actual square footage. The
Premises are identified on Exhibit A, which is attached hereto and incorporated
herein for all purposes. The lease of the Premises includes the right, together
with other tenants of the Building and members of the public, to use the common
areas of the Building, but includes no other rights not specifically set forth
herein. Landlord reserves the right, subject to Tenant's right to quiet
enjoyment of the Premises, to modify the size, location, arrangement, finish and
other features of the common areas of the Building; provided, however, that
Landlord shall not unreasonably impede or interfere with Tenant's access to the
Premises.
2.2 QUIET ENJOYMENT: If Tenant pays all the rent herein reserved and
performs and observes all of the other terms, covenants and conditions of this
Lease on Tenant's part to be performed and observed hereunder, Tenant shall,
during the Term, peaceably and quietly have, hold and enjoy the Premises without
molestation or hindrance by Landlord or any party claiming through or under
Landlord, subject to the provisions of this Lease.
ARTICLE 3 - PERMITTED USE
3.1 Tenant shall use and occupy the Premises solely for the use specified
in Section y1.4 and only in accordance with the uses permitted under applicable
zoning and other municipal regulations and for no other purpose whatsoever.
Tenant will not use or occupy the Premises for any disorderly, unlawful or extra
hazardous purposes, or for any purpose that will constitute waste, nuisance or
annoyance to Landlord or other tenants of the Building, or for any purpose
prohibited in the rules and regulations promulgated by Landlord. Tenant
acknowledges that a use which on a regular basis attracts a large number of
people would cause annoyance to Landlord and other tenants of the Building.
Tenant agrees, at Tenant's expense, with regard to its use and occupancy of the
Premises, to comply with all present and future laws, ordinances, regulations
and orders of the United States of America, the state in which the Premises are
located and any other public or quasi-public authority having jurisdiction over
the Building.
ARTICLE 4 - TERM
4.1 The Commencement Date and Term are set forth in Sections y1.5 and y1.7
respectively. If Landlord is unable to give possession of the Premises on the
Commencement Date by reason of the holding over or retention of possession of
any tenant or occupant, or if repairs, improvements or decorations of the
Premises, or of the Building of which the Premises form a part, are not
completed, or for any other reason, this Lease shall not be void or voidable and
Landlord shall not be subject to any liability for the failure to give
possession on the Commencement Date. Under such circumstances the rent reserved
and covenanted to be paid herein shall not commence until the possession of the
Premises is delivered to Tenant by Landlord, and no such failure to deliver
possession on the Commencement Date shall in any other respect affect the
validity of this Lease or the obligations of Tenant hereunder (other than the
payment of rent), nor shall same be construed in any way to extend the Lease
Term. If permission is given to Tenant to possess the Premises or to occupy
premises other than the Premises prior to the Commencement Date, Tenant
covenants and agrees that such occupancy shall be deemed to be under all the
terms, covenants, conditions and provisions of this Lease. Notwithstanding the
foregoing, in the event that Landlord fails to deliver the Premises to Tenant
within sixty (60) days of the Commencement Date, Tenant shall have the right to
terminate this Lease by written notice to Landlord, and Landlord shall
immediately return to Tenant the Security Deposit and any advanced or pre-paid
rent.
4.2 Promptly after the Lease Commencement Date is ascertained and again
upon delivery of Possession of the Premises, Landlord and Tenant shall execute a
certificate substantially in the form of Exhibit B hereto and incorporated
herein for all purposes affirming the Lease Commencement Date and the Lease
Expiration Date.
4.3 HOLDOVER: This Lease shall terminate on the Lease Expiration Date
pursuant to the terms of this Lease without the necessity of notice from either
Landlord or Tenant. Any holding over by Tenant after the Lease Expiration Date
without Landlord's written consent shall be an unlawful detainer and Tenant
shall be subject to immediate eviction. During such hold over, all the terms and
conditions set forth in this Lease shall apply except that Tenant shall pay to
Landlord basic annual rent equal to double the basic annual rent in effect
during the last month of the Lease Term ("HOLD OVER RENT"). In addition to any
Hold Over Rent, Tenant shall pay to Landlord all costs and damages incurred by
Landlord as a result of Tenant's holding over, which sums shall be deemed
additional rent.
4.4 If, with the written consent of Landlord, Tenant or any party claiming
by, through or under Tenant remains in possession of the Premises, or any part
thereof, after the Lease Expiration Date, Landlord shall treat such holding over
by Tenant as the creation of a month-to-month tenancy, subject to all the terms,
covenants and conditions set forth in this Lease insofar as the same are
applicable to a month-to-month tenancy, except that Tenant shall pay a basic
annual rent equal to double the basic annual rent in effect during the last
month of the Lease Term. Tenant shall give to Landlord at least thirty (30) days
prior written notice to quit said Premises, except in the event of nonpayment of
rent in advance or of any 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; provided, however, that in the
event Tenant shall hold over after the expiration of the Lease Term, and if
Landlord shall desire to promptly regain possession of the Premises hereunder,
Landlord, at its option, may forthwith re-enter and take possession of the
Premises without process, or by legal process in force in the jurisdiction in
which the Building is located.
4.5 EARLY TERMINATION OPTION: Provided that Tenant shall not then be in
default of the Lease (as amended hereby) following the expiration of all
applicable notice and cure periods, Tenant shall have the right, at Tenant's
option, to terminate the Lease any time after the eighteenth (18th) month of the
Lease Term by providing the Landlord with written notice of Tenant's intent to
terminate the Lease early ("Early Termination Notice") at least three (3) months
prior to the date of early termination ("Termination Date") set forth in such
Early Termination Notice. Accompanying the Early Termination Notice shall be a
termination penalty ("Termination Penalty") equal to three months rent and all
unamortized commission and tenant improvement costs. If Tenant shall not timely
exercise its right to terminate the Lease early by failing to provide the Early
Termination Notice and Termination Fee to Landlord at least three (3) months
prior to the Termination Date, then Tenant's right to terminate the Lease early
shall be deemed null and void and of no further force or effect until such time
that the proper notice and Termination Fee is provided to Landlord.
ARTICLE 5 - RENT
5.1 Tenant agrees to pay during the Term a basic annual rent as set forth
in Section y1.9 payable without deduction, set off, abatement, demand or
counterclaim, except as specifically set forth in this Lease, in equal monthly
installments. Such basic annual rent (and the monthly installments thereof)
shall be adjusted annually pursuant to Section y1.9 hereof. Tenant shall pay the
first installment upon Lease Execution and the remaining installments in advance
on the first day of each and every calendar month during the Lease Term
(commencing with the second month of the Term).
5.2 All rent payments shall be made payable and delivered to the Landlord
as specified in Section y1.16 or to such other person and place as Landlord may
hereafter designate in writing. Such rent payments shall be paid by check drawn
on a member bank of the Federal Reserve System.
5.3 The term "LEASE YEAR" shall mean each period of twelve (12)
consecutive months commencing on the Lease Commencement Date, except that if the
Lease Commencement Date is not the first day of a month, then the first Lease
Year shall commence on the Lease Commencement Date and shall continue for the
balance of the month in which the Lease Commencement Date occurs and for a
period of twelve (12) calendar months thereafter and subsequent Lease Years
shall commence on the day following the last day of the preceding Lease Year.
5.4 If the Lease Term begins on other than the first day of a month, basic
annual rent from such date until the first day of the next month shall be
prorated on the basis of the actual number of days in such month and shall be
payable in advance.
5.5 All costs and expenses other than basic annual rent which Tenant
assumes or agrees to pay to Landlord pursuant to this Lease shall be deemed to
be "ADDITIONAL RENT" and, in the event of nonpayment thereof, Landlord shall
have all the rights and remedies provided for in the case of nonpayment of rent,
including assessment of interest and late fees. If such amounts or charges are
not paid at the time provided in this Lease, they shall nevertheless, if not
paid when due, be collectable as additional rent with the next installment of
monthly rent thereafter falling due hereunder, but nothing herein contained
shall be deemed to suspend or delay the payment of any amount of money or charge
at the time the same becomes due and payable hereunder, or limit any other
remedy of Landlord. Basic annual rent and additional rent are sometimes referred
to collectively herein as "RENT."
5.6 Landlord shall have the right to apply any payments made by Tenant to
the satisfaction of any debt or obligation of Tenant to Landlord according to
Landlord's sole discretion and regardless of the instructions of Tenant as to
application of any such sum, whether such instructions be endorsed upon Tenant's
check or otherwise, unless otherwise agreed by the parties in writing which
makes specific reference to this Section y5.2. The acceptance by Landlord of a
check or checks drawn by other than Tenant shall not in any way affect Tenant's
liability hereunder, nor shall any acceptance be deemed an approval of any
subletting or assignment of this Lease by Tenant.
ARTICLE 6 - ADDITIONAL RENT
6.1 REAL ESTATE TAXES: Tenant shall pay to Landlord as additional rent
Tenant's Pro Rata Share as listed in Article 1.11 of the increase in real estate
taxes (including special assessments, if any, and any other taxes now or
hereafter imposed which are in the nature of or in substitution for real estate
taxes) levied on the Building and the land (the "LAND") on which the Building is
situated over the "BASE REAL ESTATE TAXES." For purposes hereof, the Base Real
Estate Taxes are stipulated to be the amount of real estate taxes actually
incurred by Landlord with respect to the Building and the Land during Real
Estate Base Year set forth in Section y1.12. All calculations under this Section
y6.1 shall be done on an annual basis. In the event that the actual real estate
taxes for any calendar year during the Term exceed the Base Real Estate Taxes
set out above, Tenant shall pay its proportionate share of the increase in the
real estate taxes for such year over the Base Real Estate Taxes. Any increase
payable by Tenant under this provision shall be deemed additional rent.
6.2 Reasonable expenses incurred by Landlord in obtaining or attempting to
obtain a reduction of real estate taxes shall be added to and included in the
annual statement of real estate taxes. Real estate taxes which are being
contested by Landlord shall nevertheless be included for purposes of the
computation of the liability of Tenant under this Section; provided, however,
that in the event that Tenant shall have paid any amount of additional rent
pursuant to Section 6.1 and Landlord shall thereafter receive a refund of any
portion of the real estate taxes on which such payment was based, Landlord shall
pay to Tenant its proportionate share of such refund less any costs incurred in
obtaining same. Landlord shall have no obligation to contest, object to, or
litigate the levying or imposition of any real estate taxes and may settle,
compromise, consent to, waive, or otherwise determine in its discretion any real
estate tax without consent or approval of Tenant.
6.3 Prior to each January 1st during the Term, Landlord shall provide
Tenant a comparison of the Base Real Estate Taxes and the projected real estate
taxes for the coming year. Commencing each January 1st during the Term, Tenant
shall pay monthly as additional rent, one-twelfth (1/12th) of Tenant's
proportionate share of any projected increase in the annual real estate taxes
over the Base Real Estate Taxes. Landlord shall, within sixty (60) days (or as
soon thereafter as possible) after the close of each calendar year, provide
Tenant a statement of such year's actual real estate taxes, showing the actual
increase, if any, in the real estate taxes over the Base Real Estate Taxes.
Within thirty (30) days after Tenant's receipt of said statement, Tenant shall
pay Landlord Tenant's proportionate share of the excess, if any, of actual real
estate taxes over the projected real estate taxes. If the amount paid by Tenant
during the previous year exceeded Tenant's share of actual real estate taxes for
the year, Landlord shall refund such excess to Tenant within thirty (30) days
after delivery of the said statement of such year's actual real estate taxes.
6.4 OPERATING EXPENSES: Tenant shall pay to Landlord as additional rent
Tenant's Pro Rata Share as listed in Section y1.11 of the increase in Operating
Expenses during the Term over the Operating Expense Base Year set forth in
Section y1.13. Operating Expenses for each calendar year shall be those actually
incurred, provided however, that (i) if the Building was not at least one
hundred percent (100%) occupied during the entire calendar year, the Operating
Expenses shall be adjusted to project the Operating Expenses as if the Building
were one hundred percent (100%) occupied, and (ii) Landlord shall bear the
percentage of Operating Expenses allocable to unleased space within the
Building. For purposes hereof, the Initial Operating Expenses are stipulated to
be the amount of Operating Expenses actually incurred by Landlord during the
Operating Expense Base Year set forth in Section y1.13. Any increase payable by
Tenant under this provision shall be deemed additional rent.
6.5 "OPERATING EXPENSES," as that term is used herein, shall mean all
expenses, costs and disbursements (but not replacement of capital investment
items or specific costs billed to and paid by specific tenants) of every kind
and nature which Landlord shall pay or become obligated to pay because of or in
connection with the ownership, management, maintenance, repair and operation of
the Building, Land, Common Areas, and Parking including, but not limited to, the
following: cost of wages and salaries of all employees engaged in the operation
and maintenance of the Building and Land, including taxes, insurance and
benefits; cost of all supplies and materials; cost of all utilities (including
surcharges) including, but not limited to, water, sewer, electricity, heating,
lighting, air conditioning and ventilating for the Building, but excluding
electricity separately paid for by individual tenants; cost of all maintenance
and service agreements for the Building, Land and the equipment used therein
including, but not limited to, access control, energy management services,
security, window cleaning, elevator maintenance and janitorial service; cost of
insurance relating to the Building and Land, including, but not limited to, the
cost of casualty and liability insurance applicable to the Building, Land and
Landlord's personal property used in connection therewith; cost of repairs and
general maintenance (excluding repairs and general maintenance paid for by the
proceeds of insurance, or by Tenant or third parties, and alterations
attributable solely to particular tenant spaces within the Building), a
management fee not to exceed Five percent (5%) of the gross revenues of the
building; cost of any additional services not provided to the Building at the
Lease Commencement Date, but thereafter provided by Landlord in the prudent
management of the Building; cost of audit and accounting services; with regard
to operation of the Building; cost of any capital improvements made to the
Building after the Lease Commencement Date that, actually reduce other operating
expenses or are required under any governmental law or regulation, enacted after
the effective date of this Lease, such cost thereof to be amortized over such
reasonable period as Landlord shall determine; provided, however, that costs of
complying with the requirements of the Americans with Disabilities Act of 1990
and its implementing regulations applicable to the common areas of the Building
or the structure thereof, shall not be included in Operating Expenses. For
purposes hereof, the "Initial Operating Expenses" are defined as and stipulated
to be the amount of Operating Expenses actually incurred by Landlord during the
Operating Expense Base Year set forth in Section 1.12; provided, however, that
"Excessive Snow Removal Costs" shall not be included in the definition of
Initial Operating Expenses. "Excessive Snow Removal Costs" shall mean all costs
of snow and ice removal in excess of $0.07 per rentable square foot actually
incurred by Landlord during the said Operating Expense Base Year.
6.6 Operating Expenses shall not include the following: costs of capital
improvements other than as set forth in the prior section; title insurance
premiums, survey expenses, appraisals, environmental report or engineering
report; legal fees incurred in connection with the leasing of the Building or in
connection with disputes with other tenants relating to the collection of rent
and similar matters not benefiting the tenants of the Building generally;
leasing commissions, advertising expenses, cost of increases in insurance
premiums due solely to the activities of another tenant; cost of electricity
outside normal business hours sold to tenants of the Building by Landlord
receives reimbursement from such tenants as an additional charge; cost incurred
to remedy, repair or otherwise correct any defects or violations of the Building
or by reason of any changes in governmental laws, rules or regulations occurring
during the Term; cost of repairs incurred by reason of fire or other casualty on
condemnation awards entity, such as trustee's fees, annual fees, partnership
organization or administration expenses, deed recordation expenses, legal and
accounting fees (other than with respect to Building operations); and cost
incurred to remove any hazardous or toxic wastes, materials or substances from
either the Building or Land.
6.7 Prior to each January 1st during the Term, Landlord shall provide
Tenant a comparison of the Initial Operating Expenses and the projected
Operating Expenses for the coming year. Commencing each January 1st during the
Term, Tenant shall pay monthly as additional rent, one twelfth (1/12th) of
Tenant's proportionate share of any projected increase in the Operating Expenses
over the Initial Operating Expenses. Landlord shall, within ninety (90) days (or
as soon thereafter as possible) after the close of each calendar year, provide
Tenant a statement of such year's actual Operating Expenses, showing the actual
increase, if any, in Operating Expenses over the Initial Operating Expenses.
Within thirty (30) days after Tenant's receipt of said statement, Tenant shall
pay Landlord Tenant's proportionate share of the excess, if any, of actual
Operating Expenses over the projected Operating Expenses. If the amount paid by
Tenant during the previous year exceeded Tenant's share of actual Operating
Expenses for the year, Landlord shall credit the amount due against Tenant's
next payable installment(s) of estimated Operating Costs.
6.8 Should this lease commence or terminate at any time other than the
last day of a calendar year, the amounts due as additional rent pursuant to
Sections y6.1 and y6.3 for the commencement or termination year only shall be
prorated based on actual days under lease divided by 365.
6.9 TENANT'S RIGHT TO REVIEW OPERATING EXPENSES: Tenant at its expense
shall have the right during Landlord's business hours, and with fourteen (14)
days prior notice, to examine Landlord's books and records relating to the
Operating Expenses and Real Estate Taxes of the Building (the "Review") for any
fiscal year as shown by the annual reconciliation statement (the "Statement")
for which Additional Rent becomes due for Operating Expenses or Real Estate
Taxes; or, at Landlord's sole discretion, Landlord will provide Tenant with an
audited statement. A Review will be granted only if Tenant has paid all Rent,
Additional Rent, including Operating Expenses and Real Estate Taxes billed to
Tenant's account in full and only if Review is requested in writing within six
(6) months of Statement receipt by Tenant. Such Review will only be granted once
for any fiscal year and only if Tenant is not in default. No subtenant shall
have any right to conduct a Review and no assignee shall conduct a Review of any
period during which such assignee was not in possession of the Premises. Such
Review will be conducted only by a Certified Public Accountant that is
experienced in reviews of Operating Expenses for commercial properties and is
not being compensated by Tenant on a contingency fee basis. Copy of such Review
will be delivered to Landlord within fifteen (15) days of receipt by Tenant. If
Tenant fails to timely request the Review, or the results of the Review are not
timely delivered to Landlord, or Tenant fails to follow any of the procedures
set forth in this Section y6.9, then the Statement that is the subject of such
Review shall be deemed to have been approved and accepted by Tenant. In the
event the results of the Review reveal that Tenant has over- or underpaid, such
amounts will be handled in like manner to amounts under Article 6.
6.10 TENANT'S TAXES: In the event that any business, rent or other taxes,
or any governmental charges that are now or hereafter levied upon Tenant's use
or occupancy of the Premises or Tenant's business at the Premises are enacted,
changed or altered so that any of such taxes are levied against Landlord, or the
mode of collection of payment of such taxes, Tenant shall pay any and all such
taxes to Landlord upon written demand from Landlord.
6.11 Tenant's obligation to pay the amounts due as additional rent
pursuant to Sections y6.1 and y6.3 during the Term shall survive any expiration
or termination of this Lease by lapse of time or otherwise.
ARTICLE 7 - LATE CHARGES
7.1 Tenant agrees to pay to Landlord, as additional rent, a late fee equal
to five percent (5%) of any amount due for monthly rent or other payments due
hereunder if said payments have not been received by Landlord within five (5)
days of the due date. In addition, if Landlord does not receive such payment
within thirty (30) days of such payment's due date, then such payment and late
charge shall bear interest at the rate per annum equal to the greater of (a) ten
percent (10%) per annum; provided, however, such rate is not usurious or (b) the
highest non-usurious rate permitted under the laws of the jurisdiction where the
Building is located from the date such payment was due to the date of payment
thereof. Such late charge and interest shall constitute additional rent due
hereunder, shall be paid with the next monthly installment of basic annual rent
coming due hereunder, and shall be in addition to, and not in lieu of, all other
rights and remedies provided to Landlord in this Lease, at law, or in equity.
ARTICLE 8 - LANDLORD MAINTENANCE & SERVICES
8.1 Landlord covenants and agrees that it will without additional charge,
furnish: (a) heat and air conditioning to maintain the Premises at a reasonably
comfortable temperature between the hours of 8:00 AM and 6:00 PM, Monday through
Friday of each week, except holidays recognized by the US Government: (b)
electricity for lighting purposes and operation of ordinary office appliances,
excluding, however, any equipment requiring heavier than normal office use of
electricity; (c) water; (d) elevator services; and (e) janitorial and char
services Monday through Friday of each week, except holidays recognized by the
US Government. Services provided by Landlord will be comparable to other full
service buildings of similar class in the area. It is also agreed that if Tenant
requires air conditioning or heat beyond the foregoing normal hours of operation
of the Building, and provided arrangements are made with Landlord's managing
agent, Landlord will furnish such services and Tenant shall pay as additional
rent the cost thereof at the price stipulated by Landlord from time to time. The
current cost of after-hours service is $45 per hour.
8.2 Landlord will maintain light fixtures and furnish light bulbs and
replacement service, Landlord will maintain window blinds, and Landlord will
provide hot and cold running water to kitchen and public restrooms. Landlord
shall provide Tenant with the number of security access cards listed in Section
1.16 for after hours access to the main front lobby door. There will be a $25
charge per card for additional, lost, stolen, or damaged security cards.
8.3 It is agreed that Landlord shall not be liable in any way for any
failure to furnish or in any way for any damage or inconvenience caused by the
cessation or interruption of such heating, air conditioning, electricity,
elevator, janitor or char services caused by fire, accidents, strikes,
breakdowns, necessary maintenance, alterations, repairs, scarcity of labor or
materials, acts of God or any other causes. It is further agreed that any such
failure or inability to furnish the utilities or services required hereunder
shall not be considered an eviction, actual or constructive, of Tenant from the
Premises, and shall not entitle Tenant to terminate this Lease or to an
abatement of rent payable hereunder. Notwithstanding anything contained herein
to the contrary, in the event that any of the foregoing services or utilities
are unavailable for a period in excess of Five (5) consecutive business days and
only if caused by the gross negligence or willful misconduct of Landlord,
Tenant's rent shall xxxxx from the date of such unavailability until normal
service is restored. Should Landlord fail to provide such services for a period
in excess of fifteen (15) consecutive business days, Tenant may engage such
services for the Premises and deduct the costs of such services from Rent and/or
Additional Rent.
ARTICLE 9 - TENANT MAINTENANCE
9.1 Tenant shall not in any manner deface or injure the Premises or the
Building and, subject to the provisions of Section y19.3 will pay the cost of
repairing any damage or injury done to the Premises or the Building or any part
thereof by Tenant or Tenant's employees, agents, contractors or invitees. Tenant
agrees that it will keep the Premises and the fixtures therein in clean, safe,
sanitary and good order and condition and will, at the expiration or other
termination of the Term hereof, remove all goods and effects not the property of
Landlord and at Tenant's expense shall (a) promptly surrender to the Landlord
possession of the Premises (including keys, locks and any fixtures or other
improvements which Tenant hereby acknowledges are owned by the Landlord) in good
order and repair (ordinary wear and tear excepted) and broom clean, (b) remove
therefrom all signs, goods, effects, machinery, fixtures and equipment used in
conducting the Tenant's trade or business which are neither part of the Building
Service Equipment nor owned by the Landlord, and (c) repair any damage caused by
such removal.
9.2 Maintenance and repair of equipment such as kitchen fixtures, separate
air conditioning equipment, or any other type of special equipment, 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.
9.3 All injury to the Premises or the Building caused by moving the
property of Tenant into, on, or out of, the Building or the Premises and all
breakage done by Tenant, or the agents, servants, employees and visitors of
Tenant, shall be repaired by Tenant, at the expense of Tenant. In the event that
Tenant shall fail to do commence with such repairs within 10 days of notice and
demand to do so by Landlord,, then landlord shall have the right to make such
necessary repairs, alterations and replacements (structural, nonstructural or
otherwise and any charge or cost so incurred by Landlord shall be paid by Tenant
as additional rent, with the monthly installment of rent next becoming due or
thereafter falling due under the terms of this Lease. 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.
9.4 All Personal Property of Tenant in the Premises or in the Building
shall be at the sole risk of Tenant and Tenant agrees to obtain insurance for
such Personal Property as provided in Section y19.2 of this Lease. Landlord
shall not be liable for any accident to or damage to the Personal Property of
tenant resulting from the use or operation of elevators or of the heating,
cooling, electrical or plumbing apparatus. Landlord shall not, in any event, be
liable for damages to the Personal Property resulting from water, steam or other
causes. Tenant hereby expressly releases Landlord from any liability incurred or
claim by reason of damage to Tenant's Personal Property.
ARTICLE 10 - ALTERATIONS
10.1 Tenant hereby accepts possession of the Expansion Premises in its
"AS-IS WHERE-IS CONDITION", except that Landlord, at its cost and expense shall
complete the construction of the Premises substantially in accordance with Final
Plans attached as Exhibit A and the Scope of Work attached as Exhibit C.
10.2 Tenant will not make any Alterations, structural or otherwise, in or
to the Premises or any part thereof nor install any equipment of any kind that
will require any alterations or additions to the use of the water system,
heating system, air conditioning system, ventilation system, electrical system
or plumbing system, without the prior written consent of Landlord. Any
Alterations made by Tenant shall be made: (a) in a good, workmanlike,
first-class and prompt manner; (b) using new materials only; (c) by a contractor
and in accordance with plans and specifications approved in writing by Landlord,
which approval shall not be unreasonably withheld, conditioned or delayed;
Landlord's response will be within fifteen (15) days after receipt of plans and
specifications (d) in accordance with all applicable legal requirements and
requirements of any insurance company insuring the Building or any portion
thereof, including, but not limited to, compliance with Title III of The
Americans with Disabilities Act of 1990, as amended; and (e) after completion of
alterations Tenant shall obtain and deliver to Landlord written, unconditional
waivers of mechanics' and materialmen's liens against the Premises and the
Building from all proposed contractors, subcontractors, laborers and material
suppliers for all work and materials in connection with such Alterations which
exceed Five Thousand Dollars ($5,000.00) in the individual instance. If,
notwithstanding the foregoing, and mechanic's or materialmen's lien is filed
against the Premises, the Building and/or the Land, for work claimed to have
been done for, or materials claimed to have been furnished to, Tenant, such lien
shall be discharged by Tenant within ten (10) days thereafter, at Tenant's sole
cost and expense, by the payment thereof or by filing any bond required by law.
If Tenant shall fail to discharge any such mechanic's or materialmen's lien,
Landlord may, at its option, discharge the same and treat the cost thereof as
additional rent payable with the monthly installment of rent next becoming due;
it being hereby expressly covenanted and agreed that such discharge by Landlord
shall not be deemed to waive, or release the default of Tenant in not
discharging the same.
10.3 It is distinctly understood that all Alterations, including wall to
wall carpeting, upon the Premises (whether with or without Landlord's consent),
shall, at the election of Landlord, remain upon the Premises and be surrendered
with the Premises at the expiration of this Lease without disturbance,
molestation or injury, except reasonable wear and tear and damage due to
casualty or condemnation. Should Landlord elect that Alterations upon the
Premises be removed upon termination of this Lease or upon termination of any
renewal period hereof, Tenant hereby agrees to cause same to be removed at
Tenant's sole cost and expense and should Tenant fail to remove the same, then
and in such event Landlord may cause same to be removed at Tenant's expense and
Tenant hereby agrees to reimburse Landlord for the cost of such removal together
with any and all damages which Landlord may suffer and sustain by reason of the
failure of Tenant to remove the same. Notwithstanding anything contained herein
to the contrary, the parties agree to specify which Alterations shall be removed
by Tenant at the end of the Term at the time that Landlord approves of the
Alterations.
10.4 Tenant shall be responsible for causing the Premises to comply with
Title III of the Americans with Disabilities Act of 1990, as amended ("ADA").
Notwithstanding the above, Landlord represents that as constructed at the
commencement of this Lease, the Premises are in compliance with the ADA.
Landlord shall be responsible for causing the common areas of the Building to
comply with the ADA; provided, however, if Tenant makes any Alterations to the
Premises which causes the common areas not to comply with the ADA, then Tenant
shall be responsible for the cost of making all Alterations to the common areas
of the Building required to correct such noncompliance. Tenant and Landlord
acknowledge and agree that Landlord shall have full benefit of all rules,
regulations and guidelines promulgated under the ADA, such as the guidelines
which require a landlord only to make those alterations which are readily
achievable.
ARTICLE 11 - TENANT'S EQUIPMENT
11.1 Tenant will not install or operate in the Premises any electrically
operated equipment or other machinery, other than typewriter, calculators,
personal computers, servers, server closet portable air conditioning unit,
facsimile machines and such other electrically operated office machinery and
equipment normally used in modern offices, without first obtaining the prior
written consent of Landlord, who may condition such consent upon the payment by
Tenant of additional rent as compensation for such excess consumption of water
and/or electricity as may be occasioned by the operation of said equipment or
machinery. Tenant shall install any other equipment of any kind or nature
whatsoever which will or may necessitate any changes, replacements or additions
to or require the use of the water system, plumbing system, heating system, air
conditioning system, ventilation system or the electrical system of the Premises
without the prior written consent of Landlord. Business machines and mechanical
equipment which cause noise or vibration that may be transmitted to the
structure of the Building or to any space therein to such a degree as to be
objectionable to Landlord or to any tenant shall be installed and maintained by
Tenant, at Tenant's expense, on vibration eliminators or other devices
sufficient to eliminate such noise and vibration. Tenant shall not place a load
upon any floor of the Premises exceeding the floor load per square foot area
which such floor was designed to carry. Landlord reserves the right to prescribe
the weight and position of all safes and other heavy equipment, and to prescribe
the reinforcing necessary, if any, which in the opinion of Landlord may be
required under the circumstances, such reinforcing to be at Tenant's sole
expense.
ARTICLE 12 - SECURITY DEPOSIT
12.1 Tenant has deposited with Landlord the amount set forth in Section
y1.10 (the "SECURITY DEPOSIT") in cash as security for performance of Tenant's
obligations under this Lease. The Security Deposit shall be returned to Tenant,
without interest, within thirty (30) days after the later of: (i) the expiration
of the Term; or (ii) the date on which Tenant vacates the Premises and tenders
possession of the same to Landlord, provided that Tenant has discharged all such
obligations. Landlord may apply the Security Deposit to cure any Event of
Default of Tenant, and Tenant shall deposit with Landlord the amount applied
within ten (10) days after written demand in the form of cash or other current
funds. Landlord's application of the Security Deposit shall not prevent Landlord
from exercising any other right or remedy under this Lease or at law, and shall
not operate as a limitation on any recovery to which Landlord may otherwise be
entitled.
12.2 If Landlord's interest in the Premises is transferred, Landlord shall
transfer the unapplied portion of the Security Deposit to the transferee
thereof. In such event, Landlord shall be deemed to have been released by Tenant
from all liability or obligation for the return of the Security Deposit, Tenant
agrees to look solely to such transferee for the return of the Security Deposit,
and the transferee shall be bound by all provisions of this Lease relating to
the return of the Security Deposit.
ARTICLE 13 - FINANCIAL STATEMENTS
13.1 Not more frequently than twice in any twelve (12) month period,
Tenant agrees to provide to Landlord within fourteen (14) days of Landlord's
request, the most recent audited (or certified to be true and correct by the
President and Chief Financial Officer) annual financial statements of Tenant,
including balance sheets, income statements, and financial notes ("STATEMENTS").
Tenant consents that Landlord may release the Statement to Landlord's trustees,
officers, employees, subsidiaries, affiliates, lenders, advisors, joint venture
partners, or potential purchasers of the Building for the purposes of evaluating
Tenant's financial condition with respect to performance under the Lease or to
any third party pursuant to any order of any governmental agency or court.
Landlord agrees to keep the Statements confidential and not to release the
Statements to third parties except as set forth herein.
ARTICLE 14 - ESTOPPEL CERTIFICATE
14.1 Tenant shall from time to time, within fifteen (15) days after
Landlord shall have requested the same of Tenant, execute, acknowledge and
deliver to Landlord a written instrument in recordable form and otherwise in
such form as required by Landlord (a) certifying that this Lease is in full
force and effect and has not been modified, supplemented or amended in any way
(or, if there have been modifications, supplements or amendments thereto, that
it is in full force and effect as modified, supplemented or amended and stating
such modifications, supplements and amendments); (b) stating the rent payable
and dates to which the rent and other charges hereunder have been paid by
Tenant; (c) stating whether or not to the best knowledge of Tenant, Landlord is
in default in the performance of any covenant, agreement or condition contained
in this Lease, and if so, specifying each such default of which Tenant may have
knowledge; (d) stating the Lease Commencement Date and Lease Expiration Date,
including any optional renewals; and (e) stating any other fact or certifying
any other condition reasonably requested by Landlord or requested by any
mortgagee or prospective mortgagee or purchaser of the Building or Land or of
any interest therein. Any such statement delivered pursuant hereto may be relied
upon by any owner of the Building or the Land, any mortgagee or prospective
mortgagee or purchaser of the Building, Land or any interest therein or any
prospective assignee of any mortgagee.
ARTICLE 15 - SUBORDINATION & NON-DISTURBANCE
15.1 This Lease is subject and subordinate at all times to all ground or
underlying leases, all mortgages and/or deeds of trust, all covenants,
restrictions, easements, and encumbrances which may now or hereafter affect such
leases or the real property of which the Premises form a part, and all future
renewals, modifications, consolidations, replacements and extensions thereof.
This clause shall be self-operative and no further instrument of subordination
shall be required by any mortgagee or trustee. In confirmation of such
subordination, Tenant shall promptly execute and deliver without charge any
certificate or document that Landlord may request in a form which recognizes
this Lease and is otherwise reasonably acceptable to Tenant within Fifteen (15)
days following Landlord's written request. Provided, however, that
notwithstanding the foregoing, the party secured by any such deed of trust, this
Lease shall continue in full force and effect at the option of the party secured
by such deed of trust or the purchaser under any such foreclosure sale, in which
event Tenant shall attorn to such party secured by such deed of trust or
purchaser as Landlord under this Lease. Upon such attornment such party secured
by such deed of trust or purchaser shall not be (a) bound by any payment of rent
or additional rent more than one (1) month in advance, (b) bound by any
amendment of this Lease made without the consent of the holder of the deed of
trust existing as of the date of such amendment, (c) liable for damages for any
breach, act or omission of any prior Landlord, or (d) subject to any offsets or
defenses which Tenant might have against any prior Landlord; provided, however,
that after succeeding to Landlord's interest, such party secured by such deed of
trust or purchaser shall perform, in accordance with the terms of this Lease,
all obligations of Landlord arising after the date of acquisition of title to
the Building. Tenant covenants and agrees that it will, at the written request
of the party secured by any such deed of trust, execute, acknowledge and deliver
any instrument that has for its purpose and effect the subordination of said
deed of trust to the lien of this Lease.
15.2 At the option of any landlord under any ground or underlying lease to
which this Lease is now or may hereafter become subject or subordinate, Tenant
agrees that neither the cancellation nor termination of such ground or
underlying lease, provided that such cancellation does not result in Tenant's
inability to occupy the Premises, shall by operation of law or otherwise, result
in cancellation or termination of this Lease or the obligations of Tenant
hereunder, and Tenant covenants and agrees to attorn to such Landlord or to any
successor to Landlord's interest in such ground or underlying lease subject to
the attornment provisions set forth in Section y15.1 above. In that event, this
Lease shall continue as a direct lease between Tenant herein and such landlord
or its successor.
15.3 Landlord agrees to use its commercially reasonable efforts to obtain
a non-disturbance agreement in favor of Tenant from the holder of any present or
future mortgage on the Land or Building.
ARTICLE 16 - SUBLETTING & ASSIGNMENT
16.1 This Lease and the promises, covenants, conditions and agreements
herein contained shall inure to the benefit of and be binding upon Landlord, its
successors and assigns, and they shall inure to the benefit of and be binding
upon Tenant, its successors and permitted assigns. Tenant shall not be allowed
to assign its leasehold interest created herein, this Lease, or any of its
rights, privileges, or obligations created hereunder without prior written
consent of Landlord, which consent Landlord may withhold in its sole and
absolute subjective discretion. This prohibition against assigning or subletting
shall be construed to include a prohibition against any assignment or subletting
by operation of law. The transfer, sale, assignment or hypothecation of any
shares of stock or ownership interests in the Tenant so as to result in a change
in the control thereof by the persons or entities owning a controlling interest
therein as of the date of this Lease, without the prior written consent of
Landlord, which consent Landlord may withhold in its sole and absolute
subjective discretion, shall be deemed an assignment made in breach of this
covenant. Any other provision in this Lease to the contrary notwithstanding, the
Tenant shall have no right to sublet the Premises, or any part thereof to
subtenants, without the prior written consent of Landlord, which consent
Landlord may withhold in its sole and absolute subjective discretion. Landlord's
consent to any assignment, subletting, occupation, or use by another person
other than Tenant shall not be deemed to be a consent to any subsequent
assignment, subletting, occupation or use by another person other than Tenant,
it being understood that Landlord's rights hereunder are continuing and shall
not be exhausted, regardless of the number of times such assignment, subletting,
occupation or use shall occur. In the event Landlord shall consent to such
subletting or assignment, fifty percent (50%) of the Net Sums or other economic
consideration received by Tenant as a result of such subletting or assignment,
whether denominated rental or otherwise under the sublease or assignment, which
exceed, in the aggregate, the total sums which Tenant is obligated to pay
Landlord under this Lease (prorated to reflect obligations allocable to that
portion of the Demised Premises subject to such sublease) shall be payable to
Landlord as Additional Rent under this Lease without affecting or reducing other
obligations of Tenant hereunder. The term "Net Sums" shall mean the amount of
rental or other consideration received by Tenant in connection with such
subleasing or assignment, less Tenant's costs actually incurred to prepare the
space for leasing and the costs actually incurred to actually lease such space,
including but not limited to commissions, architectural fees, construction
costs, attorneys fees and engineering fees. Upon Landlord's request, Tenant
shall provide Landlord with evidence of payment of any such costs.
16.2 AFFILIATES: Notwithstanding anything to the contrary set forth in
this Lease, Tenant may assign its interest in this Lease or sublease all or part
of the Leased Premises without the receipt of Landlord's consent but with prior
written notice to Landlord, to: (i) an entity which is controlled by, controls,
or is under common control with, Tenant (an "Affiliate"), or which owns or is
owned by an Affiliate; or (ii) an entity with which Tenant merges or
consolidates. The term "control", as used in this Section y16.2 shall mean the
ownership, direct or indirect, of the power to direct or cause the direction of
the management and policies of a person or entity, whether through the ownership
of voting securities, by contract or otherwise. Notwithstanding any assignment
or subleasing pursuant to this Section y16.2, Tenant and Guarantor shall
continue to be liable for Tenant's obligations under this Lease.
16.3 PERMITTING TRANSFERS OF INTEREST: Notwithstanding anything to the
contrary set forth in this Lease, Landlord's consent shall not be required with
respect to: (i) a public offering of the stock of Tenant; (ii) a transfer of
stock or other interest in Tenant between current shareholders or other holders
of interests in Tenant or the Guarantor of Tenant's obligations under this
Lease; and (iii) the sale of additional shares or other interests in Tenant to
those currently not shareholders or other holders of interests in Tenant
provided there is no change in control in Tenant. Further, the pledge,
hypothecation, encumbrance or conditional assignment of stock or other interest
in Tenant shall be permitted without the prior consent of Landlord, until such
time as such pledge, hypothecation, encumbrance or conditional assignment shall
result in an actual change in the control of Tenant.
ARTICLE 17 - LANDLORD'S RESERVED RIGHTS
17.1 Landlord hereby reserves to itself and its successors and assigns the
following rights (all of which are hereby consented to by Tenant): (a) to change
the street address and/or name of the Building and/or the arrangement and/or
location of entrances, passageways, doors, doorways, corridors, elevators,
stairs, toilets, or other public parts of the Building including the Common
Areas and Parking, provided, however, if Landlord changes the street address of
the building, Landlord shall reimburse Tenant for any costs and expenses related
to the reordering of business stationary and cards, if any, (b) to control and
operate the public portions of the Building and the public facilities, as well
as facilities furnished for the common use of the tenants, in such a manner as
it deems best for the benefit of tenants generally, to erect, use and maintain
pipes and conduits in and through the Premises, (c) to grant to anyone the
exclusive right to conduct any particular business or undertaking in the
Building, and (d) to construct additional improvements on the Project and make
alterations thereof or additions thereto and build additional stories on or in
any such buildings adjoining the same; provided, however, that no such change or
alteration shall deprive the Tenant of access to the Premises. Landlord may
exercise any or all of the foregoing rights without being deemed to be guilty of
an eviction, actual or constructive, or a disturbance or interruption of the
business of Tenant or of Tenant's use or occupancy of the Premises.
17.2 RIGHT OF ACCESS: Landlord, its employees and representatives shall
have the right at any time during the Lease Term, upon reasonable advanced
notice except in an emergency, to enter into and upon any and all parts of the
Premises during business hours (or, in an emergency, at any hour) to (a) view,
inspect, secure and clean the Premises, (b) make repairs to the Premises or
Building, or introduce, replace, repair, alter or make new or change existing
connections from any fixture, pipes, wires, ducts, conduits, or other
construction therein, (c) remove, without being held responsible therefore,
placards, signs, lettering, window or door coverings and the like not expressly
consented to or (d) show the Premises to prospective tenants(only during the
last six (6) months of the lease term), purchasers or lenders; and Tenant shall
not be entitled to any abatement or reduction of rent by reason thereof, nor
shall such be deemed to be an actual or construction eviction. Landlord shall
have the right to use a portion of the Premises for all necessary pipes and
wires leading to and from the portions of the Building not hereby leased, which
will not unreasonably interfere with Tenant's use of the Premises. Landlord may,
within one hundred and twenty (120) days preceding the expiration of the Lease
Term, enter the Premises to place and maintain notices for letting, free from
hindrance or control of Tenant. If Tenant shall vacate the Premises during the
last month of the Lease Term, Landlord shall have the unrestricted right to
enter the Premises after Tenant's moving to commence preparations for the
succeeding tenant or for any other purpose whatever, without affecting Tenant's
obligations to pay rent for the full Lease Term.
17.3 RELOCATION OF PREMISES. Throughout the term of this Lease, including
any extensions or renewals thereof, Landlord shall have the one time right, at
its sole cost and expense, on at least ninety (90) days' prior written notice,
to request Tenant to move from the Premises to another suite of equal or greater
size, amenities and decor, including build-out of such relocation space, in the
Building or the Project (the "RELOCATION PREMISES") in accordance with the plans
and specifications originally prepared for the Premises, using materials of like
quality as those used in the build-out of the original Premises provided,
however, that in the event of receipt of any such notice, Tenant by written
notice to Landlord delivered not more than fifteen (15) days after receipt of
Landlord's request for relocation may elect not to move to the Relocation
Premises and in lieu thereof to terminate this Lease, in which case the
termination shall be effective as of the ninetieth (90th) day after the date of
delivery of Landlord's relocation request. If Tenant fails to exercise such
termination right within fifteen (15) days after receipt of Landlord's request
for relocation, Tenant shall be deemed to have agreed to such relocation. If
Tenant exercises such termination right in a timely manner, Landlord may, by
notice delivered to Tenant not more than fifteen (15) days after such
termination notice, rescind its relocation request, in which case Tenant's
termination notice shall become void and this Lease shall continue as if no
relocation request were ever made. If Tenant exercises such termination right in
a timely manner, this Lease shall terminate immediately upon the date set forth
in Tenant's notice. Tenant shall not be obligated to pay any early termination
penalties, including, but not limited to commissions and tenant improvement
costs and, shall only be obligated for rent and additional rent up to the date
of Tenant's occupancy of the Premises.
ARTICLE 18 - LIABILITY OF LANDLORD
18.1 Unless caused by the gross negligence or willful misconduct of
Landlord, its employees, or agents, then Landlord, its employees and agents
shall not be liable to Tenant, its employees, agents, invitees or any other
person or entity claiming through tenant for any damage (including indirect and
consequential damage), injury, loss or claim (including claims for the
interruption of or loss to business) based on or arising out of any cause
whatsoever, including without limitation the following: (a) repair to any
portion of the Premises or the Building; (b) interruption in the use of the
Premises or any equipment therein; (c) any accident or damage resulting from any
use or operation (by Landlord, Tenant or any other person or entity) of
elevators or heating, cooling, electrical, sewerage or plumbing equipment or
apparatus; (d) termination of this Lease by reason of damage to the Premises or
the Building;( e) fire, robbery, theft, vandalism, mysterious disappearance or
any other casualty; (f) actions of any other tenant of the Building or of any
other person or entity; (g) failure or inability of Landlord to furnish any
utility or service specified in this Lease; and (h) leakage in any part of the
Premises or the Building, or from water, rain, ice or snow that may leak into,
or flow from, any part of the Premises or the Building, or from drains, pipes or
plumbing fixtures in the Premises or the Building. All personal property stored
or placed by Tenant or its employees, agents, invitees or any other person or
entity claiming through Tenant in or about the Premises or the Building shall be
at the sole risk of Tenant, and Landlord shall not in any manner be held
responsible therefor. Subject to Tenant's right to quiet enjoyment of the
Premises, and provided Landlord endeavors not to unreasonably interfere with
Tenant's use, enjoyment and access to the Premises, Landlord shall not be liable
in damages, nor shall this Lease be affected, for conditions arising or
resulting from the construction of contiguous premises, which may affect the
Building of which the Premises are a part. Landlord assumes no liability or
responsibility whatsoever with respect to the conduct and operation of the
business to be conducted in the Premises. For purposes of this Section, the term
"BUILDING" shall be deemed to include the Land. Notwithstanding the foregoing,
Landlord shall not be released from liability to Tenant for any physical injury
to any natural person caused solely by Landlord's, or its employees' or agents'
gross negligence or willful misconduct except to the extent otherwise provided
in this Article 18 of this Lease.
18.2 Tenant shall indemnify and hold Landlord, its employees and agents
harmless from and against all costs, damages, claims, liabilities, fines, suits,
expenses and damages of any kind (including without limitation attorneys' fees
and the costs of investigation and settlement of any claims) asserted by or on
behalf of any person, entity or governmental authority against Landlord,
directly or indirectly, based on or arising out of (a) Tenant's use and
occupancy of the Premises or the business conducted by Tenant therein, and/or
(b) any act or omission of Tenant or any employee, agent, or invitee of Tenant
in or on the Premises, and/or (c) any accident, injury or damage whatsoever to
any person, or the property of any person, occurring in or on the Premises
unless the same was caused by the sole gross negligence of willful misconduct of
Landlord, its employees or agents.
18.3 Landlord shall indemnify and hold Tenant, its employees and agents,
harmless from and against all costs, damages, claims, liabilities, fines, suits,
expenses and damages of any kind (including without limitation attorney's fees
and costs of investigation and settlement of any claims) asserted by or on
behalf of any person, entity or governmental authority against Tenant, directly
or indirectly based on or arising out of any act or omission of Landlord to the
extent caused by the gross negligence or willful misconduct of Landlord
18.4 LANDLORD NOT RESPONSIBLE FOR ACTS OF OTHERS. The Landlord shall not
be responsible or liable to the Tenant, or to those claiming by, through or
under the Tenant, for any loss or damage which may be occasioned by or through
the acts or omissions of persons occupying or using space adjoining the Premises
or any part of the premises adjacent to or connecting with the Premises or any
other part of the Building or the Project, or for any loss or damage resulting
to the Tenant (or those claiming by, through or under the Tenant) or its or
their property, from (a) the breaking, bursting, stoppage or leaking of
electrical cable and/or wires, or water, gas, sewer or steam pipes, (b) falling
plaster, or (c) dampness, water, rain or snow in any part of the Building. To
the maximum extent permitted by law, the Tenant agrees to use and occupy the
Premises, and to use such other portions of the Project as the Tenant is herein
given the right to use, at the Tenant's own risk.
The Landlord is not obligated to protect from the criminal acts of third
parties the Tenant, Tenant's agents, customers, invitees or employees, the
Premises or the property of Tenant or any property of any of Tenant's agents,
customers, invitees or employees. Tenant hereby acknowledges that Tenant has the
sole responsibility for the protection of the Premises, the Tenant's property
and the Tenant's customers, agents, invitees and employees. Tenant acknowledges
that, if Landlord shall provide security guards for the Common Areas, Landlord
does not represent, guarantee, or assume responsibility that Tenant will be
secure from any claims or causes of action relating to such security guards. To
induce Landlord to provide such security guards, if any, Landlord deems
reasonable, appropriate and economically feasible in its sole and absolute
discretion, Tenant agrees that Landlord should not be responsible for, and
Tenant shall defend and indemnify Landlord from, any such claims or other causes
of action, including claims or causes of action caused by the sole or concurrent
negligent act or omission, whether active or passive, of Landlord or its
security guards, provided however, that Tenant shall have no obligation to
defend or indemnify Landlord from any claims caused by the willful or criminal
act of Landlord or its security guards, or covered by the public liability
insurance, if any, that Landlord is required to carry by the terms of this
Lease.
18.5 If any landlord hereunder transfers the Building or such landlord's
interest therein, then such landlord shall not be liable for any obligation or
liability based on or arising out of any event or condition occurring on or
after the date of such transfer.
18.6 Tenant shall not have the right to offset or deduct the amount
allegedly owed to Tenant pursuant to any claim against Landlord from any rent or
other sum payable to Landlord. Tenant's sole remedy for recovering upon such
claim against Landlord shall be to institute an independent action against
Landlord. Tenant shall not seek the consolidation of any such action brought by
Tenant with any action brought by Landlord hereunder.
18.7 If permitted by law, Landlord shall have the right at any time and
from time to time during the Lease Term to either continue to contract for
service from the current utility service provider or contract for service from a
different company or companies providing utility service (each such company
shall hereinafter be referred to as an "ALTERNATE SERVICE Provider"). Tenant
shall cooperate with Landlord, the utility service provider, and any Alternate
Service Provider at all times and, as reasonably necessary, shall allow
Landlord, utility service provider, and any Alternate Service Provider
reasonable access to the Property's pipes, electric lines, feeders, risers,
wiring, and any other machinery within the Premises. Provided that Landlord
provides adequate advance notice of a change in service, Landlord shall in no
way be liable or responsible for any loss, damage, or expense that Tenant may
sustain or incur by reason of any change, failure, interference, disruption, or
defect in the supply or character of the utility service furnished to the
Premises, or if the quantity or character of the utility service supplied by the
utility service provider or any Alternate Service Provider is no longer
available or suitable for Tenant's requirements, and no such change, failure,
defect, unavailability, or unsuitability shall constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution of rent, or relieve Tenant from any of its obligations under the
Lease.
18.8 Anything contained in this Lease to be contrary withstanding, Tenant
agrees that tenant shall look solely to Landlord's equity in the Building for
the collection of any judgement (or other judicial process) requiring the
payment of money by Landlord in the event of any default or breach by Landlord
with respect to any of the terms and provisions of this Lease to be kept,
observed and performed by Landlord subject, however, to the prior rights of any
ground or underlying landlords or any mortgagee of all or any part of the
Building or the Premises, and no other assets of Landlord shall be subject to
levy, execution or other judicial process for the satisfaction of Tenant's
claim.
ARTICLE 19 - INSURANCE
19.1 Landlord agrees that it will keep the Building insured against loss
due to fire and other property risks included in standard all risk coverage
insurance policies, and covering loss of income from such property risk, or in
lieu thereof, insure the Building against loss or damage as a self insurer.
19.2 Throughout the Lease Term, Tenant shall insure the contents of the
Premises, including, limitation, alterations, decorations, furnishings, fixtures
and equipment used or installed in the Premises by or on behalf of Tenant, and
the other personal property of Tenant in Premises, against loss due to fire and
other property risks included in standard all risk coverage insurance policies,
in an amount equal to the replacement cost thereof and covering loss of income
from such property risk. All insurance carried by Tenant hereunder shall be
primary and not contributing with any insurance carried by Landlord.
19.3 Landlord and Tenant agree that all insurance policies required to be
carried pursuant to Section 19.1 hereof shall either permit or contain an
express waiver of any right of recovery (by subrogation or otherwise) by the
insurance company against Tenant, and that all insurance policies required to be
carried pursuant to Section y19.2 shall either permit or contain an express
waiver of any right of recovery (by subrogation or otherwise) by the insurance
company against Landlord, its managing agent and any mortgagee of Landlord. Each
party hereby waives any and every right or cause of action for any and all loss
of, or damage to, any of its property (whether or not such loss or damage is
caused by the fault or negligence of the other party or anyone for whom said
other party may be responsible), which loss or damage is covered by valid and
collectible fire, extended coverage, "ALL Risk" or similar policies, maintained
by such party or required to be maintained by such party under this Lease, to
the extent that such loss or damage is recovered under said insurance policies
or would have been recovered if the insurance policies required hereunder had
been maintained as required pursuant to this Lease. Written notice of the terms
of said mutual waivers shall be given to each insurance carrier and said
insurance policies shall be properly endorsed, if necessary, to prevent the
invalidation of said insurance coverages by reason of said waivers.
19.4 Throughout the Lease Term, Tenant shall obtain and maintain
commercial general liability insurance on an occurrence basis protecting against
any liability occasioned by any occurrence on or about the Premises and
containing contractual liability coverage and business interruption coverage.
Such insurance shall be initially in minimum amounts of One Million Dollars per
occurrence and One Million Dollars general aggregate and shall be for a minimum
term of one year.
19.5 Tenant shall also maintain throughout the Lease Term, at Tenant's
sole cost and expense, worker's compensation in statutory limits.
19.6 Each of said policies of insurance to be carried by Tenant hereunder
shall name Landlord and Landlord's managing agent as an additional insured, and
if requested by the holder of any mortgage or deed of trust against the
Building, shall also name such holder as an additional. Each policy shall
contain an endorsement which provides that no cancellation or reduction of
coverage may be made without first giving Landlord, Landlord's managing agent
and, if named as an additional insured, the holder of any mortgage or deed of
trust on the Building, at least thirty (30) days prior written notice of such
proposed action. All insurance policies required under this Lease shall be
issued by insurance companies licensed to do business in the jurisdiction
wherein the Building is located with a then current Xxxxxx X. Best Company, Inc.
general policy holders's rating of "A" or better and a financial size category
of Class XII or higher and which have been in business for the past five (5)
years and which are otherwise reasonably satisfactory to Landlord. On or before
the Lease Commencement Date, and thereafter not less than fifteen (15) days
prior to the expiration dates of said policy or policies, Tenant shall provide
copies of policies or certificates of insurance (Accord 27) evidencing the
coverages required by this Article 18. The aforesaid insurance limits may be
reasonably increased from time to time by Landlord.
19.7 Tenant will not do or permit anything to be done in the Premises or
the Building or bring or keep anything therein which shall in any way increase
the rate of fire or other insurance for said Building, or on the property kept
therein, or obstruct, or interfere with rights of other tenants, or in any way
injure or annoy them, or those having business 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.
19.8 Tenant's Contractor's Insurance. The Tenant shall require any
contractor of the Tenant performing work in, on or about the Premises to take
out and keep in full force and effect, at no expense to the Landlord:
(A) commercial general liability insurance, including Contractor's
Liability coverage, Blanket Contractual Liability coverage, Broad Form Property
Damage Endorsement, Contractor's Protective Liability, Completed
Operations/Products Liability (Completed Operations/Products Liability coverage
to be provided for at least two (2) years after final completion of work),
Personal Injury, Premises Medical Payments, Interest of Employees as additional
insureds, Incidental Medical Malpractice and Broad Form General Liability
Endorsement, in an amount not less than One Million Dollars ($1,000,000)
combined single limit per occurrence and Two Million Dollars ($2,000,000) in the
aggregate;
(B) comprehensive automobile liability insurance, with a combined single
limit of not less than One Million Dollars ($1,000,000) covering all owned,
non-owned or hired automobiles to be used by the contractor;
(C) worker's compensation or similar insurance in form and amounts
required by law; and
(D) employers liability coverage, including All States Endorsement, in an
amount not less than One Million Dollars ($1,000,000)
ARTICLE 20 - FIRE OR CASUALTY
20.1 If the Premises or the Building are totally or partially damaged or
destroyed thereby rendering the Premises totally or partially inaccessible or
unusable, then Landlord shall promptly commence and diligently repair and
restore the Premises and the Building to substantially the same condition they
were in prior to such damage or destruction; provided, however, that if (a) in
Landlord's reasonable judgement such repair and restoration cannot be completed
within two hundred seventy (270) days after the occurrence of such damage or
destruction (taking into account the time needed for effecting a satisfactory
settlement with any insurance company involved, removal of debris, preparation
of plans and issuance of all required governmental permits) or (b) twenty
percent (20%) or more of the Premises is damaged and less than six (6) months
would remain of the Term or any renewal thereof upon completion of the repairs,
then either party shall have the right, at its option, to terminate this Lease
as of the date of such damage or destruction by giving written notice of
termination to the other party within forty-five (45) days after the occurrence
of such damage or destruction. Termination by Tenant under this section 20.1
shall not require the payment of any early termination penalties set forth
herein.
20.2 If this Lease is terminated pursuant to Section y20.1 above, then all
rent shall be apportioned (based on the portion of the Premises which is usable
after such damage or destruction) and paid to the date of termination. If this
Lease is not terminated as a result of such damage or destruction, then until
such repair and restoration of the Premises are substantially complete, Tenant
shall be required to pay the basic annual rent only for the portion of the
Premises that is usable while such repair and restoration are being made.
Landlord shall bear the expenses of repairing and restoring the Premises and the
Building; provided, however, that Landlord shall not be required to repair or
restore the contents of the Premises, including without limitation, alterations,
decorations, furnishings, fixtures and equipment used or installed in the
Premises by or on behalf of Tenant and any other personal property of Tenant.
Tenant shall not be entitled to any compensation or damages from Landlord for
loss of the use of the whole or any portion of the Premises or for any
inconvenience or annoyance occasioned by any such damage, repair or restoration.
In the event that Landlord undertakes to reconstruct the Building but fails to
complete the repair or restoration within sixty (60) days beyond the estimated
repair time, Tenant shall have the right to terminate this Lease by written
notice to Landlord.
20.3 Notwithstanding anything herein to the contrary, Landlord shall not
be obligated to restore the Premises or the Building and shall have the right to
terminate this Lease if (a) the holder of any mortgage fails or refuses to make
insurance proceeds available for such repair and restoration, (b) zoning or
other applicable laws or regulations do not permit such repair and restoration,
or (c) the cost of repairing and restoring the Building would exceed fifty
percent (50%) of the replacement value of the Building, whether or not the
Premises is damaged or destroyed, provided the leases of all other tenants in
the Building are similarly terminated.
20.4 Notwithstanding anything herein to the contrary, all injury or damage
to the Premises resulting from the fault or negligence of Tenant, its employees,
agents, contractors or invitees shall be repaired by Tenant at Tenant's expense
and Rent shall not xxxxx.
ARTICLE 21 - CONDEMNATION
21.1 If all or any portion of the Premises or occupancy thereof shall be
permanently taken or condemned by any governmental or quasi-governmental
authority for any public or quasi-public use or purpose or sold under threat of
such a taking or condemnation (collectively, "CONDEMNATION"), and such
Condemnation shall materially and adversely affect Tenant's use of the Premises,
then this Lease shall terminate on the date possession thereof is taken by such
authority and rent shall be apportioned as of such date. In the event of the
Condemnation of any portion of the Premises which does not materially and
adversely affect Tenant's use of the Premises, then this Lease shall continue in
full force and effect as to the part of the Premises not Condemned, except that
as of the date possession is taken by such authority. Notwithstanding anything
herein to the contrary, if twenty-five percent (25%) or more of the Land or the
Building is Condemned, then whether or not any portion of the Premises is
Condemned, Landlord shall have the right to terminate this Lease of the date
title vests in such authority.
21.2 All awards, damages and other compensation paid by such authority on
account of such Condemnation shall belong to Landlord, and Tenant assigns to
Landlord all rights to such awards, damages and compensation. Tenant shall not
make any claim against Landlord or the authority for any portion of such awards,
damages or compensation attributable to damage to the Premises, value of the
unexpired portion of the Lease Term, loss of profits or goodwill, leasehold
improvements or severance damages. Tenant may, if allowed by statute, seek such
awards or damages for moving expenses, loss of profits and fixtures and other
equipment installed by it which do not, under the terms of this Lease, become
the property of Landlord at the termination hereof. Such awards or damages must
be made by a Condemnation court or other authority and must be separate and
distinct from any award to Landlord for the Land and Building and shall not
diminish any award of Landlord.
ARTICLE 22 - ENVIRONMENTAL COVENANTS
22.1 Tenant, its employees, agents, contractors and invitees shall, at
Tenant's own expense, comply with all Environmental laws, as herein defined, in
connection with its use and occupancy of the Premises and shall obtain, maintain
and comply with all necessary environmental permits, approvals, registrations
and licenses.
22.2 Tenant, its employees, agents, contractors and invitees shall not
use, generate, release, manufacture, treat, refine, produce, process, store,
dump or dispose of any Hazardous Substance, as herein defined, on, under, or
about the Premises or the Building, or transport to or from the Premises any
Hazardous Substance except normal office products, which products shall be used,
stored and disposed of in accordance with all Environmental Laws.
22.3 Tenant shall, at Tenant's own expense, make all submissions to,
provide all information required by, and comply with all requirements of all
governmental authorities (the "AUTHORITIES" or "AUTHORITY") under the
Environmental Laws. Tenant shall provide Landlord with copies of any
environmental audit prepared by or for Tenant with respect to the Premises and
any report(s) or filing(s) made by Tenant with any Authority.
22.4 Should Landlord, any Authority or any third party demand that a
clean-up plan be prepared and that a clean-up be undertaken because of any
deposit, spill, discharge, or other release of Hazardous Substances that occurs
as a result of Tenant's use or occupancy of the Premises, then Tenant shall, at
Tenant's own expense, prepare and submit to Landlord and any applicable
Authority the required plans and all related bonds and other financial
assurances, and Tenant shall carry out all such clean-up plans following their
approval by Landlord and all applicable Authorities.
22.5 Tenant shall promptly provide all information regarding the use,
generation, storage, transportation, or disposal of Hazardous Substances that is
requested by Landlord. If Tenant fails to fulfill any duty imposed under this
Article 22 within ten (10) days, Landlord may fulfill such duty on behalf of
Tenant, at Tenant's cost and expense; and in such case, Tenant shall cooperate
with Landlord in order to prepare all documents Landlord deems necessary or
appropriate to determine the applicability of the Environmental Laws to the
Premises and Tenant's use thereof, and for compliance therewith, and Tenant
shall execute all documents promptly upon Landlord's request. No such action by
Landlord and no attempt made by Landlord to mitigate damages under any
Environmental Law shall constitute a waiver of any of Tenant's obligations under
this Article 22.
22.6 Tenant shall immediately notify Landlord in writing of any release or
discharge of any Hazardous Substance, whether or not the release is in
quantities that would require under law the reporting of such release to a
governmental or regulatory agency.
22.7 Tenant shall also immediately notify Landlord in writing of, and
shall contemporaneously provide Landlord with a copy of: (A) Any written notice
of release of Hazardous Substances in the Premises that is provided by Tenant or
any subtenant or other occupant of the Premises to a governmental or regulatory
agency; (B) Any notice of a violation, or a potential or alleged violation, of
any Environmental Law that is received by Tenant or any subtenant or other
occupant of the Premises from any governmental or regulatory agency; (C) Any
inquiry, investigation, enforcement, cleanup, removal, or other action that is
instituted or threatened by a governmental or regulatory agency against Tenant
or any subtenant or other occupant of the Premises and that relates to the
release or discharge of Hazardous Substances on or from the Premises; (D) Any
claim that is instituted or threatened by any third party against Tenant or any
subtenant or other occupant of the Premises and that relates to any release or
discharge of Hazardous Substance on or from the Premises; and (E) Any notice of
the loss of any environmental operating permit by Tenant or any subtenant or
other occupant of the Premises.
22.8 Landlord shall have the right, but not the obligation, at all times
during the Lease Term to (1) inspect the Premises; (2) following reasonable
advanced notice, except in the case of an emergency, enter upon the Premises to
conduct tests and investigations and take samples to determine whether Tenant is
in compliance with the provisions of this Article 22, or as otherwise necessary;
and (3) request lists of all Hazardous Substances used, stored or located on the
Premises. In the event that such inspections reveal that Tenant is not in
compliance with the provisions of this Article 22, the cost of all such
inspections, tests and investigations shall be borne by Tenant.
22.9 Tenant's obligations and liabilities under this Article 22 shall
survive the expiration or early termination of the Lease. For purposes of this
Article 22, the Building shall include the Land (as defined in Section y6.1
hereof).
22.10 Tenant shall indemnify, defend, protect and hold harmless Landlord,
the manager of the Building and their respective officers, directors, trustees,
beneficiaries, shareholders, partners, agents and employees from all fines,
suits procedures, claims, and actions of every kind, and all costs associated
therewith (including without limitation, attorneys' and consultants' fees and
the costs of investigation and settlement of any claims) arising out of or in
any way connected with (1) any deposit, spill, discharge, or other release of
Hazardous Substances which arises at any time from Tenant's, its employees',
agents', contractors', or invitees' use or occupancy of the Premises or the
Building; (2) any failure to provide all information, make all submissions and
take all steps required by all Authorities under the Environmental Laws; and (3)
Tenant's, its employees', agents', contractors' or invitees' breach of this
Article 22, whether or not Tenant has acted negligently with respect to such
Hazardous Substances.
22.11 As used in this Article 22, the term "HAZARDOUS SUBSTANCES" shall be
interpreted broadly to include, but not be limited to, any material or substance
that is defined or classified under federal, state or local laws as: (a) a
"hazardous substance" pursuant to Section 101 of the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. ss. 9601(14), Section 311 of
the Federal Water Pollution Control Act, 33 U.S.C. ss. 1321, as now or hereafter
amended; (b) a "hazardous waste" pursuant to Section 1004 or Section 3001 of the
Resource Conservation and Recovery Act, 42 U.S.C. ss.6903, 42 U.S.C. ss. 6921,
as now or hereafter amended; (c) a toxic pollutant under Section 307(1)(a) of
the Federal Water Pollution Control Act, 33 U.S.C. ss. 1317(1)(a); (d) a
"hazardous air pollutant" under Section 112 of the Clean Air Act, 42 U.S.C. ss.
7412, as now or hereafter amended; (e) a "hazardous material" under the
Hazardous Material Transportation Act, 49 U.S.C. ss. 1802(2), as now or
hereafter amended; (f) toxic or hazardous pursuant to regulations promulgated
now or hereafter under the aforementioned laws: or (g) presenting a risk to
human health or the environment under other applicable federal, state or local
laws, ordinances, or regulations, as now or as may be passed or promulgated in
the future. "Toxic or Hazardous Substances" shall also mean any substance that
after release into the environment and upon exposure, ingestion, inhalation or
assimilation, either directly from the environment or directly by ingestion
through food chains, will or may reasonably be anticipated to cause death,
disease, behavior abnormalities, cancer or genetic abnormalities. "Toxic or
Hazardous Substances" specifically includes, but is not limited to, asbestos,
polychlorinated, biphenyls (PCBs), petroleum based derivatives, and urea
formaldehyde.
22.12 As used in this Article 22, the term "ENVIRONMENTAL LAWS" shall mean
and refer to the entirety of the federal acts, portions of which are referenced
in Section y22.11, and all other federal and all state and local laws, codes,
ordinances, rules, regulations, and directives governing the discharge, emission
or disposal of any pollutant in, to or from the Premises or the Building or
other premises or the environment and prescribing methods for storing, handling
or otherwise managing Hazardous Substances and wastes including, but not limited
to, the then current versions of the following federal statutes, their state
analogs, and the regulations implement them: the Resource Conservation and
Recovery Act (42 U.S.C. 6901 et seq.), the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. 9601 et seq.), the Clean Water Act (33
U.S.C. 1251 et seq.), the Clean Air Act (42 U.S.C. 7401 et seq.), and the Toxic
Substances Control Act (15 U.S.C. 2601 et seq.).
ARTICLE 23 - DEFAULTS & REMEDIES
23.1 Each of the following shall constitute an Event of Default; (a)
Tenant's failure to make any payment of the basic annual rent, additional rent
(excluding reconciliations) or any other sum within ten (10) days of written
notice from Landlord of Tenant's failure to make such payment on such payment's
due date; (b) Tenant's failure to take possession of the Premises within thirty
(30) calendar days after delivery thereof to Tenant; (c) Tenant's violation or
failure to perform or observe any other covenant or condition of this Lease for
a period of thirty (30) days following Landlord's written notice thereof to
Tenant; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of
Bankruptcy as specified in Article 27 with respect to Tenant, any general
partner of Tenant (a "GENERAL Partner") or Guarantor; or (f) Tenant's
dissolution or liquidation.
23.2 If there shall be an Event of Default, including an Event of Default
prior to the Lease Commencement Date, then Landlord shall have the right, at its
sole option, to terminate this Lease. In addition, with or without terminating
this Lease, Landlord may reenter the Premises, terminate Tenant's right of
possession and take possession of the Premises. The provisions of this Section
shall operate as a notice to quit, any other notice to quit or of Landlord's
intention to reenter the Premises being hereby expressly waived. If necessary,
Landlord may proceed to recover possession of the Premises under and by virtue
of the laws of the jurisdiction in which the Building is located, or by such
other proceedings, including reentry and possession, as may be applicable. If
Landlord elects to terminate this Lease and/or elects to terminate Tenant's
right of possession, then everything contained in this Lease to be done and
performed by Landlord shall cease, without prejudice, however, to Landlord's
right to recover from Tenant all rent and other sums due hereunder through the
Lease Expiration Date as defined in Section y1.6. No such reentry or taking
possession of the Premises by Landlord shall be construed as an election on its
part to terminate this Lease unless a written notice of such intention be given
to Tenant or unless the termination thereof shall result as a matter of law or
be decreed by a court of competent jurisdiction. Whether or not this Lease
and/or Tenant's right of possession is terminated, Landlord may, but shall not
be obligated to, relet the Premises or any part thereof, alone or together with
other premises, for such rent and upon such terms and conditions (which may
include concessions, free rent and alterations of the Premises) as Landlord, in
its sole discretion, may determine, but Landlord shall not be liable for, nor
shall Tenant's obligations be diminished by reason of, Landlord's failure to
relet the Premises or collect any rent due upon such reletting. Whether or not
this Lease is terminated, Tenant nevertheless shall remain liable for any basic
annual rent, additional rent or damages which may be due or sustained by reason
of such default, and all costs, fees and expenses (including without limitation
reasonable attorneys' fees, brokerage fees, expenses incurred in placing the
Premises in rentable condition and tenant finish necessitated to obtain the new
tenant) incurred by Landlord in pursuit of its remedies and in renting the
Premises to others from time to time. Notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect to terminate this Lease
for such previous breach. Tenant shall also be liable to Landlord for additional
damages, which shall be, at Landlord's option, either (a) or (b) below:
(A) an amount equal to the basic annual rent and additional rent
which would have become due during the remainder of the Lease Term, less the
amount of rent, if any, which Landlord receives during such period from others
to whom the Premises may be rented (other than any additional rent payable as a
result of any failure of such other person to perform any of its obligations),
which damages shall be computed and payable in monthly installments, in advance,
on the first day of each calendar month following Tenant's default and
continuing until the date on which the Lease Term would have expired but for
Tenant's default. Separate suits may be brought to collect any such damages for
any month(s), and such suits shall not in any manner prejudice Landlord's right
to collect any such damages for any subsequent month(s), or Landlord may defer
any such suit until after the Lease Expiration Date, in which event the cause of
action shall be deemed not to have accrued until the Lease Expiration Date; or
(B) an amount equal to the present value (as of the date of
Landlord's election to accelerate) of the basic annual rent and additional rent
which would have become due during the remainder of the Lease Term, less the
rent received by Landlord under any reletting of the Premises, which damages
shall be payable to Landlord in one lump sum on demand; provided that Landlord
has relet the Premises which reletting may occur at any time up to the Lease
Expiration Date. For purposes of this subsection (b), present value shall be
computed by discounting at a rate equal to one (1) whole percentage point above
the discount rate then in effect at the Federal Reserve Bank of New York.
23.3 TENANT EXPRESSLY WAIVES ANY RIGHT TENANT MAY HAVE TO REDEEM ITS
INTEREST IN THE PREMISES FOLLOWING ENTRY OF A JUDGEMENT FOR POSSESSION IN FAVOR
OF LANDLORD BY A COURT OF COMPETENT JURISDICTION OR TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED ON THE LEASE OR ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS LEASE, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER
VERBAL OR WRITTEN) OR ACTION OF LANDLORD OR TENANT. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR LANDLORD'S ENTERING INTO THIS LEASE AND THIS WAIVER IS GIVEN
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY.
23.4 If Tenant fails to perform any covenant or observe any condition to
be performed or observed by Tenant hereunder or acts in violation of any
covenant or condition hereof or fails to make any payment to any third party,
Landlord may, but shall not be required to on behalf of Tenant, perform such
covenant and/or take such steps, including entering the Premises, as may be
necessary or appropriate, in which case Landlord shall have the right to proceed
immediately and all costs and expenses incurred by Landlord in so doing,
including reasonable legal fees, shall be paid by Tenant to Landlord upon
demand, plus interest thereon at the rate per annum equal to the greater of (a)
ten percent (10%) per annum; provided, however such rate is not usurious or (b)
the highest non usurious rate permitted under the laws of the jurisdiction where
the Building is located, from the date of expenditure(s) by Landlord, as
additional rent. Landlord's proceeding under the rights reserved to Landlord
under this Section shall not in any way prejudice or waive any rights Landlord
might otherwise have against Tenant by reason of Tenant's default.
23.5 Landlord's rights and remedies set forth in this Lease are cumulative
and in addition to Landlord's other rights and remedies at law or inequity,
including those available as a result of any anticipatory breach of this Lease.
Landlord's exercise of any such right or remedy shall not prevent the concurrent
or subsequent exercise of any other right or remedy. Landlord's delay or failure
to exercise or enforce any of Landlord's rights or remedies or Tenant's
obligations shall not constitute a waiver of any such rights, remedies or
obligations.
23.6 LEGAL FEES: If, as a result of any breach or default in the
performance of any of the provisions of this Lease (whether or not such default
is later cured), Landlord uses the services of an attorney in order to secure
compliance with such provisions or recover damages therefore, or to terminate
this Lease or evict Tenant, or if Landlord is required to defend itself or the
terms of this Lease and Landlord uses the services of an attorney, then Tenant
shall reimburse Landlord upon demand for any and all attorneys' fees and
expenses so incurred including, but not limited to the fees and expenses of
counsel (even if house counsel), agents and others retained by Landlord incurred
in enforcing Tenant's obligations hereunder or incurred by Landlord in any
litigation, negotiation or transaction in which Landlord is involved with such
amounts being additional rent.
23.7 Confession of Judgment. If any Event of Default occurs which is not
cured within any applicable grace period provided herein, the Tenant and any
guarantor of any of the Tenant's obligations hereunder hereby authorizes and
empowers any attorney of any court of record within the United States to appear
for the Tenant and any such guarantor or any one or more of them in any court in
one or more proceedings or before any clerk thereof, and confess judgment
against the Tenant and each such guarantor without prior notice, or opportunity
for prior hearing, in favor of the Landlord for all unpaid Rent and other sums
due hereunder, hereby waiving and releasing, to the extent permitted by law, all
errors and all rights of exemption, appeal, stay of execution, inquisition and
extension upon any levy on real estate or personal property to which the Tenant
or any such guarantor may otherwise be entitled under the laws of the United
States or of any state or possession of the United States now in force or which
may hereafter be passed. Such authority and power may be exercised on one or
more occasions, from time to time, in the same or different jurisdictions, as
often as the Landlord deems necessary or desirable, for all of which this Lease
shall be a sufficient warrant.
23.8 Landlord's Security Interest. In addition to any lien for Rent
available to the Landlord, the Landlord shall have, and the Tenant hereby grants
to the Landlord, a continuing security interest for all Rent and other sums of
money becoming due hereunder from the Tenant, upon all of the Tenant's accounts
receivable, inventory, equipment and all other personal property located on the
Premises. If an Event of Default occurs, the Landlord shall have, in addition to
any other remedies provided herein or by law, all of the rights and remedies
afforded to secured parties under the Uniform Commercial Code, as codified in
Maryland ("the U.C.C."), including but not limited to (a) the right to sell the
Tenant's said property at public or private sale upon ten (10) days' notice to
the Tenant, and (b) the right to take possession of such property without resort
to judicial process in accordance with the provisions of Section 9-503 of the
U.C.C. The Tenant, on its receipt of a written request therefor from the
Landlord, shall execute such financing statements and other instruments as are
necessary or desirable, in the Landlord's judgment, to perfect such security
interest.
ARTICLE 24 - WAIVER AND NOTICE
24.1 No waiver of any breach of any covenant, condition or agreement
herein contained 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
not be construed as a waiver of any subsequent, similar default or of any
covenant or condition set forth in this Lease except as to the specific
circumstances described in such written waiver. No payment by Tenant or receipt
by Landlord of a lesser amount than the monthly installments of rent herein
stipulated shall be deemed to be a payment in full of the stipulated rent nor
shall any endorsement or statement on any check or any letter accompanying any
check or payment as rent 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 in this Lease provided.
Landlord shall have the right to apply Tenant's payments to any balance or
arrearage Tenant has outstanding. Landlord's reentry and acceptance of keys
shall not be considered in acceptance of a surrender of this Lease.
ARTICLE 25 - WAIVER OF JURY TRIAL
25.1 LANDLORD, TENANT, AND ALL GUARANTORS AND GENERAL PARTNERS OF TENANT
AGREE TO AND THEY HEREBY DO WAIVE TRIAL BY JURY AN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON ANY
MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE
RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF SAID PREMISES
AND/OR ANY CLAIM OF INJURY OR DAMAGE, AND ANY STATUTORY REMEDY.
25.2 Tenant consents to service of process and any pleading relating to
any such action at the Premises; provided, however, that nothing herein shall be
construed as requiring such service at the Premises. Landlord, Tenant, Guarantor
and all General Partners of Tenant waive any objection to the venue of any
action filed in any court situated in the jurisdiction in which the Building is
located and waive any right under the doctrine of forum non coveniens or
otherwise, to transfer any such action filed in any such court to any other
court.
ARTICLE 26 - NOTICES
26.1 All notices required hereunder by either party to the other shall be
sent by recognized overnight courier with receipt therefor (such as Federal
Express) or by certified mail. Notices to Landlord and Tenant shall be to their
respective addresses set forth in Section y1.15. Tenant hereby elects domicile
at the Premises for the purpose of all notices, writs of summons, or other legal
documents, or process, in any suit, action, or proceeding which Landlord may
undertake under this Lease.
ARTICLE 27 - BANKRUPTCY
27.1 The following shall be Events of Bankruptcy under this Lease; (a)
Tenant, Guarantor or a General Partner becoming insolvent, as that term is
defined in Title 11 of the United States Code (the "BANKRUPTCY CODE"), or under
the insolvency laws of any state (the "INSOLVENCY LAWS"); (b) appointment of a
receiver or custodian for any property of Tenant, Guarantor or a General
Partner, or the institution of a foreclosure or attachment action upon any
property of Tenant, Guarantor or a General Partner; (c) filing of a voluntary
petition by Tenant, a guarantor or a General Partner under the provisions of the
Bankruptcy Code or Insolvency Laws; (d) filing of an involuntary petition
against Tenant, Guarantor or a General Partner as the subject debtor under the
Bankruptcy Code or Insolvency Laws, which either (1) is not dismissed within
ninety (90) days of filing, or (ii) results in the issuance of an order for
relief against the debtor; or (e) Tenant, Guarantor or a General Partner making
or consenting to an assignment for the benefit of creditors or a composition of
creditors.
ARTICLE 28 - MISCELLANEOUS
28.1 BROKERS: Landlord recognizes the Brokers listed in Section 1.13
("BROKER(S)") as the sole Broker(s) procuring this Lease and shall pay said
Broker(s) a commission therefore pursuant to a separate agreement between said
Broker(s) and Landlord. Landlord and Tenant each represent and warrant to one
another that except as set forth herein neither of them has employed any broker,
agent or finder in carrying on the negotiations relating to this Lease. Landlord
shall indemnify and hold Tenant harmless, and Tenant shall indemnify and hold
Landlord harmless, from and against any claim or claims for brokerage or other
commissions arising from or out of any breach of the foregoing representation
and warranty by respective indemnitors.
28.2 NO REPRESENTATIONS. Tenant acknowledges that neither Landlord nor any
broker, agent or employee of Landlord has made any representations or promises
with respect to the Premises or the Building except as herein expressly set
forth, and no rights, privileges, easements or licenses are being acquired by
Tenant except as herein expressly set forth.
28.3 NO PARTNERSHIP. Nothing contained in this Lease shall be deemed or
construed to create a partnership or joint venture of or between landlord and
Tenant, or to create any other relationship between the parties hereto other
than that of Landlord and Tenant.
28.4 AUTHORITY. Landlord and Tenant covenant each for itself, that each
has full right, power and authority to enter into this Lease upon the terms and
conditions herein set forth. If Tenant signs as a corporation, Tenant does
hereby covenant and warrant that each of the persons executing this Lease on
behalf of Tenant is a duly authorized and existing corporation, qualified to do
business in the state in which the Building is located, that the corporation has
full right and authority to enter into this Lease, and that each persons signing
on behalf of the corporation were authorized to do so. Tenant shall advise
Landlord in writing if the name and address of its resident agent is changed
during the Term hereof.
28.5 FORCE MAJEURE. If Landlord is in any way delayed or prevented from
performing any of its obligations under this Lease due to fire, acts of God,
governmental act or failure to act, strike, labor dispute, inability to procure
materials or any other cause beyond Landlord's reasonable control (whether
similar or dissimilar to the foregoing events), then the time for performance of
such obligation shall be excused for the period of such delay or prevention.
28.6 NO RECORDING. This Lease shall not be recorded in any office legally
established for the purpose of giving public notice of real estate records and
any attempt to do so may be treated by Landlord as an Event of Default under
this Lease. In the event Tenant does record this Lease or any memorandum
thereof, Tenant, by such act, irrevocably constitutes and appoints Landlord as
its special attorney-in-facto execute any and all documents required to remove
the Lease or any memorandum thereof from the public records.
28.7 GOVERNING LAW. This Lease is governed under the laws of the
jurisdiction in which the Building is located.
28.8 CAPTIONS. Section headings are used for convenience and shall not be
considered when construing this Lease.
28.9 SEVERABILITY. If any term or provision of this Lease or the
application thereof to any person or circumstances shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to person or circumstances other than those to which it
is invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforceable to the fullest extent
permitted by law.
28.10 TENANT LIABILITY. If two or more individuals, corporations,
partnerships or other persons (or any combination of two or more thereof) shall
sign this Lease as Tenant, the liability of each such individual, corporation,
partnership or other persons to pay the rent and perform all other obligations
hereunder shall be deemed to be joint and several.
28.11 TIME IS OF THE ESSENCE. Time is of the essence with respect to each
and every provision of this Lease.
28.12 ENTIRE AGREEMENT. This Lease contains the entire agreement of the
parties in regard to the Premises and this Lease and no representations,
inducements or agreements, oral or otherwise, between the parties not contained
in this Lease shall be of any force or effect. This Lease may not be amended,
modified or changed in whole or in part in any manner other than by an agreement
in writing duly signed by both parties.
28.13 BENEFIT AND BURDEN. The provisions of this Lease shall be binding
upon, and shall inure to the benefit of, the parties hereto and each of their
respective heirs, executors, administrators, successors, and assigns. Landlord
may freely assign its interest hereunder.
28.14 GENDER AND NUMBER. 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 herein for convenience has been
referred to in the neuter form.
28.15 SURVIVAL. Tenant's liabilities existing as of the expiration or
earlier termination of the Lease Term shall survive such expiration or earlier
termination.
28.16 SUBMISSION OF LEASE. The submission of this Lease for examination
does not constitute a reservation of or an option for lease, and the same shall
not be effective as a lease or otherwise until execution and delivery by both
Landlord and Tenant.
28.17 PARKING. Tenant, its employees and agents, shall have the right to
use the parking space allocation set forth in Section y1.18 at the specified
rate, if any, throughout the term of this lease subject, however, to the
following restrictions:
(A) Tenant's employees, agents, officers, directors and invitees
shall have non-exclusive access to park in the Parking Areas. The "Parking
Areas" shall mean those portions of the Common Areas which from time to time are
designated by the Landlord for the parking of automobiles and other automotive
vehicles while engaged in business upon the Premises (other than while being
used to make deliveries to and from the Premises).
(B) The Landlord reserves the right to change the entrances, exits,
traffic lanes, boundaries and locations of the Parking Areas. The Landlord
reserves the right to designate for the specific account of the Tenant, and/or
of other tenants of the Project, specific parking areas or spaces constructed
around, within or under the Project. All Parking Areas and facilities which may
be furnished by the Landlord in or near the Project, including any employee
parking areas, truckways, loading docks, pedestrian sidewalks and ramps,
landscaped areas and other areas and improvements which may be provided by the
Landlord for the Tenant's exclusive use or for general use, in common with other
tenants, their officers, agents, employees and visitors, shall at all times be
subject to the Landlord's exclusive control and management, and the Landlord
shall have the right from time to time to establish, modify and enforce
reasonable rules and regulations with respect thereto. The Landlord shall have
the right to (a) police the Common Areas, (b) establish and from time to time to
change the level of parking surfaces, (c) close all or any portion of the Common
Areas to such extent as, in the opinion of the Landlord's counsel, may be
legally sufficient to prevent a dedication thereof or the accrual of any rights
to any person or to the public therein, (d) close temporarily all or any portion
of the Parking Areas, (e) discourage non-tenant parking, and (f) do and perform
such other acts in and to the Common Areas as, in the use of good business
judgment, the Landlord determines to be advisable with a view to the improvement
of the convenience and use thereof by tenants, their officers, agents, employees
and visitors. The Tenant shall cause its officers, agents and employees to park
their automobiles only in such areas as the Landlord from time to time may
designate by written notice to the Tenant as employee parking areas, and the
Tenant shall not use or permit the use of any of the Common Areas in any manner
which will obstruct the driveways or throughways serving the Parking Areas or
any other portion of the Common Areas allocated for the use of others.
28.18 ROOF RIGHTS. Landlord shall have the exclusive right to use all or
any portion of the roof of the building for any purposes.
28.19 RULES AND REGULATIONS. Tenant will comply with all Rules and
Regulations as stated in Exhibit D of this lease.
28.20 DELIVERIES. It is understood that employees of Landlord are
prohibited as such from receiving any packages or other articles delivered to
the Building for Tenant and that should any such employee receive any such
packages or articles, he or she in so doing shall be the agent of Tenant and not
of Landlord.
28.21 EXHIBITS. Each writing or drawing referred to herein as being
attached hereto as a schedule, an exhibit or otherwise designated herein as a
schedule or an exhibit hereto is hereby made a part hereof.
[NO FURTHER TEXT ON THIS PAGE. SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed under seal by a duly authorized officer, intending to be legally bound
hereby, as of the day and year first above written. The covenants of Tenant are
joint and several obligations of each party signing as Tenant, and, when the
parties signing as Tenant are partners, shall be the obligation of the firm and
of the individual members thereof.
Witness/Attest: TENANT:
NETSOL USA, INC.
/s/ Xxxxx Xxxxx
------------------------------------ ------------------------------------
(Seal)
Name: Xxxxx Xxxxx
-------------------
(Print Name Here)
Title:
------------------------------
Federal Tax Identification Number:
------------------------------------
Witness/Attest: LANDLORD:
XXXXXX PROPERTIES V, LLC
BY: /s/ Xxxx X. Xxxxx
------------------------------------ --------------------------------
Name: Xxxx X. Xxxxx
Title: As Agent for Landlord
EXHIBIT A
PREMISES
EXHIBIT B
COMMENCEMENT DATE MEMORANDUM
This Exhibit B is made as of June____, 2004, by and between by and between
XXXXXX PROPERTIES V, LLC, hereinafter called Landlord, and NETSOL TECHNOLOGIES
INC., hereinafter called Tenant, with reference to the Lease dated June ____,
2004 for the Premises known as 000 Xxxxx Xxxxxxxxx Xxxxxx. Landlord and Tenant
agree as follows:
1. The Commencement Date is July 1, 2004.
2. The last date of the term shall be June 30, 2007, unless the
lease term is terminated or extended.
B. Tenant acknowledges that (a) it is in possession of the Premises, (b)
the Lease is in full force and effect, (c) Landlord is not in default under the
Lease, and (d) the Premises are accepted by Tenant as having been completed in
accordance with the provisions of the Lease.
Witness/Attest: TENANT:
NETSOL USA, INC.
By:
------------------------------------ ---------------------------------
(Seal)
Name:
-------------------------------
(Print Name Here)
Title:
------------------------------
Federal Tax Identification Number:
------------------------------------
Witness/Attest: LANDLORD:
XXXXXX PROPERTIES V, LLC
BY:
------------------------------------ ---------------------------------
Name: Xxxx X. Xxxxx
Title: As Agent for Landlord
EXHIBIT C
SCOPE OF WORK
1. Construct a 3/4 wall partition to create a reception area.
2. Install one side light in the rear office designated in Exhibit A.
3. Construct one data closet approximately 5' x 8'.
4. Paint all new drywall to match existing.
EXHIBIT D
RULES AND REGULATIONS:
Tenant will:
(A) not strip, overload, damage or deface the Premises or hallways,
stairways, elevators, parking facilities or other approaches thereto, of said
Building, or the fixtures therein or used therewith, nor permit any hole to be
made in any of the same;
(B) not suffer or permit any trade or occupation to be carried on or
use made of the Premises which shall be unlawful, noisy, odorous, offensive, or
injurious to any person or property, or such as to increase the danger of fire
or affect or make void or voidable any insurance on said Building, or which may
render any increased or extra premium payable for such insurance, or which shall
be contrary to any law or ordinance, rule or regulation from time to time
established by any public authority;
(C) not move any furniture or equipment into or out of the Premises
except at such times as Landlord may from time to time designate;
(D) not place upon the interior or exterior of the Building or any
window or any part thereof or door of the Premises any placard, sign, lettering,
window covering, drapes, hangings or any other item which Landlord in its sole
discretion deems unsuitable, except such and in such place and manner, as shall
have been first approved in writing by Landlord. The directory of the Building
is provided exclusively for the display of the name and location of Tenants only
and Landlord reserves the right to exclude any other names therefrom;
(E) park vehicles only in the area from time to time designated by
Landlord; Landlord reserves the right to determine the number of parking spaces
that shall be used by Tenant. Tenant will not park any vehicles in the Building
parking areas other than automobiles, motorcycles, motor-driven or
non-motor-driven bicycles or four-wheeled trucks;
(F) not install a television antenna or air conditioning on the
roof, in the windows or upon the exterior of the Premises or Building;
(G) use and allow to be used all plumbing within the Premises and
the Building only for the purpose for which it was designed, and no foreign
substance of any kind shall be thrown therein;
(H) not use any space in the Building or Land for the sale of goods
to the public at large or for the sale at auction of goods or property of any
kind, nor will Tenant make any room-to-room solicitation of business from other
tenants in the Building;
(I) not place additional locks or bolts of any kind on any of the
doors or windows, and shall not make any change in any existing lock or locking
mechanism therein, without Landlord's prior written consent;
(J) not use the Premises for lodging or sleeping or for any immoral
or illegal purpose;
(K) not construct, maintain, use or operate within the Premises or
Building or Land any electrical device, wiring or apparatus in connection with a
loud speaker system or other sound system without Landlord's prior written
consent and Tenant shall not construct, maintain, use or operate any such loud
speaker or sound system outside of the Premises;
(L) not obstruct or encumber or use for any purpose other than
ingress and egress to and from the Premises any sidewalk, entrance, passage,
court, elevator, escalator, vestibule, stairway, corridor, hall or other part of
the Building not exclusively occupied by Tenant. The entrances, passages,
elevator, escalators, vestibules, stairways, corridors and halls are not open to
the general public; Landlord will in all cases retain the right to control and
prevent access to such areas of all persons whose presence in the judgment of
Landlord would be prejudicial to the safety, character, reputation and interest
of the Land, Building and the Building's tenants, provided that nothing
contained in this Lease will be construed to prevent such access to persons with
whom any tenant in the Building normally deals in the ordinary course of its
business, unless such persons are engaged in illegal activities;
(M) comply with all reasonable rules or regulations from time to
time established by Landlord for the operation and maintenance of the Building
provided that Tenant has written notice of same and provided further that, in
the event of a conflict between the provisions of such rules and regulations and
the provisions of this Lease, the provisions of this Lease shall control; and
(N) not manufacture any commodity therein, without the prior written
consent of Landlord;
(O) not smoke nor permit its employees, agents, customers, invitees,
or contractors to smoke in the Building except in the areas designated by the
Landlord as smoking area;
(P) comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency;
(Q) not use in the Premises or in the public halls of the Building
any hand truck except those equipped with rubber tires and side guards or such
other material-handling equipment as Landlord may approve. Tenant will not bring
any other vehicle of any kind into the Building;
(R) not use or permit the use of the Building, its parking areas or
its common areas for purposes of hosting any activities or events, including,
but not limited to, company picnics, fairs, bazaars, promotional events,
demonstrations or rallies;
(S) HVAC service shall be provided to the Premises Monday through
Friday from 8:00 a.m. to 6:00 p.m. and Saturday from 8:00 a.m. to 2:00 p.m., and
janitorial service Monday through Friday, except New Years Day, Memorial Day,
Fourth of July, Labor Day, Thanksgiving Day and Christmas Day.
Landlord may waive any one or more of these Rules and Regulations for the
benefit of Tenant or any other tenant, but no such waiver by Landlord shall be
construed as a waiver of such Rules and Regulations in favor or any other
person, nor prevent Landlord from thereafter revoking such waiver and/or
enforcing any such Rules and Regulations against any or all of the tenants of
the Building. These Rules and Regulations are in addition to, and will not be
construed in any way to modify or amend, in whole or in part, the covenants and
conditions of any lease of premises in the Building. If any provisions of these
Rules and Regulations conflicts with any provision of such leases, the terms of
the leases shall prevail. Tenant will be responsible for the observance of all
the foregoing rules by Tenant and Tenant's agents
