EXHIBIT 10Q
OFFICE LEASE
THIS LEASE, made as of this 1st day of June, 1996 by and between MASSACHUSETTS
MUTUAL LIFE INSURANCE COMPANY, a Massachusetts corporation ("Landlord") through
its agent CORNERSTONE REAL ESTATE ADVISERS, INC., having an address at 0000 Xxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000-0000 and ANTRIM
CORPORATION, a Texas corporation ("Tenant") having its principal office at 000
Xxxx Xxxx Xxxx., Xxxxx 0000, Xxxxx, XX. 00000.
INDEX
Article Title Page
1. Basic Provisions 2
2. Premises, Term and Commencement Date 3
3. Rent 3
4. Taxes and Operating Expenses 4
5. Landlord's Work, Tenant's Work, Alterations and Additions 5
6. Use 6
7. Services 6
8. Insurance 8
9. Indemnification 9
10. Casualty Damage 9
11. Condemnation 10
12. Repair and Maintenance 10
13. Inspection of Premises 11
14. Surrender of Premises 11
15. Holding Over 12
16. Subletting and Assignment 12
17. Subordination, Attornment and Mortgagee Protection 13
18. Estoppel Certificate 13
19. Defaults 14
20. Remedies of Landlord 14
21. Quiet Enjoyment 15
22. Accord and Satisfaction 15
23. Security Deposit 15
24. Brokerage Commission 16
25. Force Majeure 16
26. Parking 17
27. Hazardous Materials 17
28. Additional Rights Reserved by Landlord 18
29. Defined Terms 19
30. Miscellaneous Provisions 22
ARTICLE 1.
BASIC PROVISIONS
A. Tenant's Tradename: Antrim Corporation
B. Tenant's Address: 000 Xxxx Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, Xxxxx 00000
Attention: President
C. Office Building Name: Nationsbank Plano Tower
Address: 000 Xxxx Xxxx Xxxxxxxxx
Xxxxx, Xxxxx 00000
D. Premises: Suite/Unit No.: Suites 1001, 1100, 1200, 1300
Square feet (Rentable): approximately 47,420 r.s.f.
E. Landlord: Massachusetts Mutual Life
Insurance Company
F. Landlord's Address: 1901 Avenue of the Stars, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Managing Director
G. Building Manager/Address: Transwestern Property Company
000 X. Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxx, Xxxxx 00000
H. Commencement Date: June 1, 1996
I. Expiration Date: May 31, 2001
J. Security Deposit: $0.00
K. Monthly Rent: Year 1: $55,323.33 Year 3: $61,250.83
Year 5: $67,178.33
Year 2: $58,287.08 Year 4: $64,214.58
Provided, however, that Tenant shall be entitled
to a credit in the amount of $332.97 per day, up
to a maximum of 30 days, for each day in June
prior to the day that Landlord substantially
completes the Tenant Improvements to Suite 1300 as
contemplated in Exhibit "B", attached hereto.
L. Operating Expenses Base: 1996 Base Year
M. Tax Base: 1996 Base Year
N. Tenant's Pro Rata Share: 21.06%. Tenant's Pro Rata Share shall be
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determined by dividing the Tenant's Rentable Square Feet of the Premises by
the rentable area of the Building and multiplying the resulting quotient, to
the second decimal place, by one hundred. The Building contains 225,154
square feet of
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rentable area.
O. Normal Business Hours of Building:
Monday through Friday: 7:00 a.m. to 6:00 p.m.
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Saturday: 8:00 a.m. to 1:00 p.m.
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Sunday: n/a a.m. to n/a p.m.
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P. Brokers: Xxxxx Associates, Inc.
Q. Parking Fee: None
The foregoing provisions shall be interpreted and applied in accordance with the
other provisions of this Lease set forth below. The capitalized terms, and the
terms defined in Article 29, shall have the meanings set forth herein or therein
(unless otherwise modified in the Lease) when used as capitalized terms in other
provisions of the Lease.
ARTICLE 2.
PREMISES, TERM AND COMMENCEMENT DATE
Landlord hereby leases and demises to the Tenant and Tenant hereby takes and
leases from Landlord that certain space identified in Article 1 and shown on a
plan attached hereto as Exhibit A ("Premises") for a term ("Term") commencing on
the Commencement Date and ending on the Expiration Date set forth in Article 1,
unless sooner terminated as provided herein, subject to the provisions herein
contained. Such date shall be confirmed by execution of the Commencement Date
Confirmation in the form as set forth in Exhibit E. If Landlord delays
delivering possession of the Premises or substantial completion of any
Landlord's Work under Exhibit B, this Lease shall not be void or voidable,
except as provided in Article 5.
ARTICLE 3.
RENT
A. Monthly Rent. Tenant shall pay Monthly Rent in advance on or before the
first day of each month of the Term. If the Term shall commence and end on a day
other than the first day of a month, the Monthly Rent for the first and last
partial month shall be prorated on a per diem basis.
B. Additional Rent. All costs and expenses which Tenant assumes or agrees to
pay and any other sum payable by Tenant pursuant to this Lease, including,
without limitation, its share of Taxes and Operating Expenses, shall be deemed
Additional Rent.
C. Rent. Monthly Rent, Additional Rent, Taxes and Operating Expenses and any
other applicable and prior identified amounts which Tenant is or becomes
obligated to pay Landlord under this Lease are herein referred to collectively
as "Rent", and all remedies applicable to the nonpayment of Rent shall be
applicable thereto. Landlord may apply payments received from Tenant to any
obligations of Tenant then accrued, without regard to such obligations as may be
designated by Tenant.
D. Place of Payment, Late Charge, Default Interest. Rent and other charges
required to be paid under this Lease, no matter how described, shall be paid by
Tenant to Landlord at the Building Manager's address listed in Article 1, or to
such other person and/or address as Landlord may timely designate in writing
prior to the due date, without any prior notice or demand therefor and without
deduction or set-off or counterclaim and without relief from any valuation or
appraisement laws. In the event Tenant fails to pay Rent due under this Lease
within ten (10) days of due date of said Rent, Tenant shall pay to Landlord a
late charge of five percent (5%) on the amount overdue; provided, however, this
late charge shall not be assessed if Tenant has not been in monetary default
with respect
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to any rental obligation under the Lease at any time during the immediately
previous 12 month period. Any Rent not paid when due shall also bear interest
at the Default Rate.
ARTICLE 4.
TAXES AND OPERATING EXPENSES
A. Payment of Taxes and Operating Expenses. It is agreed that during each
Lease Year beginning with the first month of the second Lease Year and each
month thereafter during the original Lease Term, or any extension thereof,
Tenant shall pay to Landlord as Additional Rent, at the same time as the Monthly
Rent is paid, an amount equal to one-twelfth (1/12) of Landlord's estimate (as
determined by Landlord in its sole, yet reasonable, discretion) of Tenant's Pro
Rata Share of any projected increase in the Taxes or Operating Expenses for the
particular Lease Year in excess of the Tax Base or Operating Expenses Base, as
the case may be (the "Estimated Escalation Increase"). A final adjustment (the
"Escalation Reconciliation") will be made between the parties as soon as
practicable following the end of each Lease Year, but in no event later than
ninety (90) days after the end of each Lease Year. In computing the Estimated
Escalation Increase for any particular Lease Year, Landlord shall take into
account any prior increases in Tenant's Pro Rata Share of Taxes and Operating
Expenses. If during any Lease Year the Estimated Escalation Increase is less
than the Estimated Escalation Increase for the previous Lease Year on which
Tenant's share of Taxes and Operating Expenses were based for said year, such
Additional Rent payments attributable to Estimated Escalation Increase, to be
paid by Tenant for the new Lease Year shall be decreased accordingly; provided,
however, in no event will the Rent paid by Tenant hereunder ever be less than
the Monthly Rent plus all other amounts of Additional Rent.
As soon as practicable following the end of each Lease Year (but in any event
within 90 days following the end of any calendar year), Landlord shall submit to
Tenant a statement setting forth the Estimated Escalation Increase, if any.
Upon request, Landlord shall provide Tenant with reasonable back-up materials
upon which Landlord relied in calculating the Estimated Escalation Increase.
Beginning with said statement for the second Lease Year, it shall also set forth
the Escalation Reconciliation for the Lease Year just completed. To the extent
that the Operating Expense Escalation is different from the Estimated Escalation
Increase upon which Tenant paid Rent during the Lease Year just completed,
Tenant or Landlord, as the case may be, shall pay the difference in cash within
thirty (30) days following receipt by Tenant of such statement from Landlord.
Until Tenant receives such statement, Tenant's Rent for the new Lease Year shall
continue to be paid at the rate being paid for the particular Lease Year just
completed, but Tenant shall commence payment to Landlord of the monthly
installment of Additional Rent on the basis of said statement beginning on the
first day of the month following the month in which Tenant receives such
statement. In addition to the above, if, during any particular Lease Year,
there is a change in the information on which Landlord based the estimate upon
which Tenant is then making its estimated payment of Taxes and Operating
Expenses so that such Estimated Escalation Increase furnished to Tenant is no
longer accurate, Landlord shall be permitted to revise such Estimated Escalation
Increase by notifying Tenant, and there shall be such adjustments made in the
Additional Rent on the first day of the month following the serving of such
statement on Tenant as shall be necessary by either increasing or decreasing, as
the case may be, the amount of Additional Rent then being paid by Tenant for the
balance of the Lease Year (but in no event shall any such decrease result in a
reduction of the rent below the Monthly Rent plus all other amounts of
Additional Rent). Landlord's and Tenant's responsibilities with respect to the
Tax and Operating Expense adjustments described herein shall survive the
expiration or early termination of this Lease for a period of two (2) years.
If the Building is not fully occupied during any particular Lease Year, Landlord
may adjust those Operating Expenses which are affected by Building occupancy for
the particular Lease Year, or portion thereof, as the case may be, to reflect an
occupancy of not less than ninety-five percent (95%) of all such rentable area
of the Building.
Notwithstanding anything to the contrary contained herein, in no event shall
Tenant be required to pay the Tenant's portion of Operating Expenses and Taxes
(excluding, however, amounts attributable to utilities, insurance and taxes)
which exceed the Operating Expense Base plus 6 1/2% per year, calculated
cumulatively.
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B. Disputes Over Taxes or Operating Expenses. If Tenant disputes the amount of
an adjustment or the proposed estimated increase or decrease in Taxes or
Operating Expenses, Tenant shall give Landlord written notice of such dispute
within sixty (60) days after Landlord advises Tenant of such adjustment or
proposed increase or decrease. Tenant's failure to give such notice shall waive
its right to dispute the amounts so determined. If Tenant timely objects,
Tenant shall have the right to engage its own accountants ("Tenant's
Accountants") for the purpose of verifying the accuracy of the statement (and/or
the back-up materials used in preparing such statement) in dispute, or the
reasonableness of the adjustment or estimated increase or decrease. If Tenant's
Accountants determine that an error has been made, Landlord and Tenant's
Accountants shall endeavor to agree upon the matter, failing which Landlord and
Tenant's Accountants shall jointly select an independent certified public
accounting firm (the "Independent Accountant") which firm shall conclusively
determine whether the adjustment or estimated increase or decrease is
reasonable, and if not, what amount is reasonable. Both parties shall be bound
by such determination. If Tenant's Accountants do not elect to participate in
choosing the Independent Accountant within 20 days notice by Landlord, then
Landlord's determination of the adjustment or estimated increase or decrease
shall be conclusively determined to be reasonable and Tenant shall be bound
thereby. All costs incurred by Tenant in obtaining Tenant's Accountants and the
cost of the Independent Accountant shall be paid by Tenant unless Tenant's
Accountants disclose an error, acknowledged by Landlord (or found to have
conclusively occurred by the Independent Accountant), of more than five percent
(5%) in the computation of the total amount of Taxes or Operating Expenses as
set forth in the statement submitted by Landlord with respect to the matter in
dispute; in which event Landlord shall pay all of the reasonable costs incurred
by Tenant in obtaining such audits, including the cost of the Independent
Accountant. Tenant shall continue to timely pay Landlord the amount of the
prior year's adjustment and adjusted Additional Rent determined to be incorrect
as aforesaid until the parties have concurred as to the appropriate adjustment
or have deemed to be bound by the determination of the Independent Accountant in
accordance with the preceding terms. Landlord's delay in submitting any
statement contemplated herein for any Lease Year shall not affect the provisions
of this Paragraph, nor constitute a waiver of Landlord's rights as set forth
herein for said Lease Year or any subsequent Lease Years during the Lease Term
or any extensions thereof.
ARTICLE 5.
LANDLORD'S WORK, TENANT'S WORK,
ALTERATIONS AND ADDITIONS
A. Landlord's Work. Landlord shall construct the Premises in accordance with
Landlord's obligations as set forth in the work letter attached hereto as
Exhibit B, and hereinafter referred to as "Landlord's Work." Landlord will
deliver the Premises to Tenant with all of Landlord's Work completed (except for
minor and non-material punch list items which in Landlord's reasonable judgment
will not delay completion of Tenant's Work, as defined in subparagraph B of this
Article) on or before the dates specified in Exhibit B and Tenant agrees
thereupon to commence and complete Tenant's Work on or before the Commencement
Date. If Landlord is delayed in completing Landlord's Work by strike, shortages
of labor or materials, delivery delays or other matters beyond the reasonable
control of Landlord, then Landlord shall give notice thereof to Tenant and the
date on which Landlord is to turn the Premises over to Tenant for Tenant's Work
and the Commencement Date shall be postponed for an equal number of days as the
delay as set forth in the notice. If the Commencement Date is postponed as
aforesaid, Tenant agrees upon request of Landlord to execute a writing
confirming the Commencement Date on such form as set forth in Exhibit E attached
hereto.
B. Tenant's Work. On and after the date specified in the immediately preceding
subparagraph A for delivery of the Premises to Tenant for Tenant's Work, Tenant,
at its sole cost and expense, shall perform and complete all other improvements
to the Premises (as set forth in Exhibit C attached hereto and referred to
herein as "Tenant's Work") including but not limited to, all improvements, work
and requirements required of Tenant under the foregoing work letter, if any.
Tenant shall complete all of Tenant's Work in good and workmanlike manner, fully
paid for and free from liens, in accordance with the plans and specifications
approved by Landlord and Tenant as provided in Exhibit C, on or prior to the
scheduled Commencement Date. Tenant shall also have the right during this
period to come onto the Premises to install its fixtures and prepare the
Premises for the operation of Tenant's business. Notwithstanding the fact that
foregoing activities by Tenant will occur prior to the scheduled Commencement
Date,
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Tenant agrees that all of Tenant s obligations provided for in this Lease shall
apply during such period with the exception of any obligation to pay Rent.
C. Alterations. Except as provided in the immediately preceding subparagraph,
Tenant shall make no alterations or additions to the Premises without the prior
written consent of the Landlord, which consent will not be unreasonably withheld
or delayed.
D. Liens. Tenant shall give Landlord at least ten (10) days prior written
notice (or such additional time as may be necessary under applicable laws) of
the commencement of any Tenant's Work, to afford Landlord the opportunity of
posting and recording notices of non-responsibility. Except for liens which
automatically attach by operation of law, Tenant will not cause or permit any
mechanic's, materialman's or similar liens or encumbrances to be filed or exist
against the Premises or the Building in connection with any work done under this
Article. In any event, Tenant shall remove any such lien or encumbrance by bond
or otherwise within a reasonable period. If Tenant fails to do so, Landlord may
pay the amount or take such other action as Landlord deems necessary to remove
any such lien or encumbrance, without being responsible to investigate the
validity thereof. The amounts so paid and costs incurred by Landlord shall be
deemed Additional Rent under this Lease and payable in full upon demand.
E. Compliance with ADA. Notwithstanding anything to the contrary contained in
this Lease, Landlord and Tenant agree that responsibility for compliance with
the Americans With Disabilities Act of 1990 (the "ADA") shall be allocated as
follows: (i) Landlord shall be responsible for compliance with the provisions of
Title III of the ADA for all Common Areas, including exterior and interior areas
of the Building not included within the Premises or the premises of other
tenants; (ii) Landlord shall be responsible for compliance with the provisions
of Title III of the ADA for any construction, renovations, alterations and
repairs made within the Premises if such construction, renovations, alterations
or repairs are made by Landlord at Landlord's request and sole expense for the
purpose of improving the Building generally and not for tenant improvements;
(iii) Tenant shall be responsible for compliance with the applicable provisions
of the ADA for any construction, renovations, alterations and repairs made
within the Premises if such construction, renovations, alterations and repairs
are made by Tenant, its employees, agents or contractors, at Tenant's expense or
at the direction of Tenant.
ARTICLE 6.
USE
A. Use. Tenant shall use the Premises for general office purposes including,
without limitation, the wholesale, development, marketing, service and
maintenance of computer software and hardware and all functions related thereto,
and for no other purpose whatsoever, subject to and in compliance with all other
provisions of this Lease, including without limitation the Building's Rules and
Regulations attached as Exhibit D hereto. Tenant and its invitees shall also
have the non-exclusive right, along with other tenants of the Building and
others authorized by Landlord, to use the Common Areas subject to such rules and
regulations as Landlord in its discretion may timely and reasonably impose from
time to time.
B. Restrictions. Tenant shall not at any time knowingly use or occupy, or
suffer or permit anyone to use or occupy, the Premises or do or permit anything
to be done in the Premises which: (a) causes or is liable to cause injury to
persons, to the Building or its equipment, facilities or systems; (b) impairs or
tends to impair the character, reputation or appearance of the Building as a
first class office building (which shall not be any higher standard than as the
Building exists as of the date of this Lease); (c) impairs or tends to impair
the proper and economic maintenance, operation and repair of the Building or its
equipment, facilities or systems; or (d) annoys or inconveniences or tends to
annoy or inconvenience other tenants or occupants of the Building.
C. Compliance with Laws. Tenant shall keep and maintain the Premises, its use
thereof and its business in compliance with all applicable governmental laws,
ordinances, rules and regulations. Tenant shall comply with all Laws relating
to the Premises and Tenant's use thereof, including without limitation, Laws
requiring the Premises to be closed on Sundays or any other days or hours and
Laws in connection with the health, safety and building
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codes and any permit or license requirements.
ARTICLE 7.
SERVICES
A. Climate Control. Landlord shall furnish heat and air conditioning to the
Premises during Normal Business Hours of Building as set forth in Article I as
required in Landlord's reasonable judgment for the comfortable use and
occupation of the Premises. If Tenant requires heat or air conditioning at any
other time, Landlord shall use reasonable efforts to furnish such service upon
reasonable notice from Tenant, and Tenant shall pay all of Landlord's charges
therefor on demand at Landlord's cost therefore (i.e.. with no markup or
administrative fee).
Tenant shall not use the Premises or any part thereof in a manner exceeding the
heating, ventilating or air-conditioning ("HVAC") design conditions (including
any occupancy or connected electrical load conditions), including the
rearrangement of partitioning which may interfere with the normal operation of
the HVAC equipment, or the use of computer or data processing machines or other
machines or equipment in excess of that normally required for a standard office
use of the Premises (i.e., consistent with Tenant's use of the Premises as of
the date this lease is executed). If any such use requires changes in the HVAC
or plumbing systems or controls servicing the Premises or portions thereof in
order to provide comfortable occupancy, such changes may be made by Landlord at
Tenant's expense and Tenant agrees to promptly pay any such amount to Landlord
as Additional Rent.
B. Elevator Service. If the Building is equipped with elevators, Landlord,
during Normal Business Hours of Building, shall furnish elevator service to
Tenant to be used in common with others (other than the elevator which services
the 13th floor, which shall be for the exclusive use of Tenant for so long as it
is the sole Tenant on the 13th floor). At least one elevator shall remain in
service during all other hours. Landlord may designate a specific elevator for
use as a service elevator.
C. Janitorial Services. Landlord shall provide janitorial and cleaning
services to the Premises, substantially as described in Exhibit D attached
hereto. Tenant shall pay to Landlord on demand the reasonable costs incurred by
Landlord for (i) any cleaning of the Premises in excess of the specifications in
Exhibit D for any reason including, without limitation, cleaning required
because of (A) misuse or neglect on the part of Tenant or Tenant's agents,
contractors, invitees, employees and customers, (B) the use of portions of the
Premises for special purposes requiring greater or more difficult cleaning work
than office areas, (C) interior glass partitions or unusual quantities of
interior glass surfaces installed by Tenant, and (D) non-building standard
materials or finishes installed by Tenant or at its request; and (ii) removal
from the Premises of any refuse and rubbish of Tenant in excess of that
ordinarily accumulated in general office occupancy or at times other than
Landlord's standard cleaning times. Without limiting Tenant's obligations under
this subparagraph, Landlord agrees to make reasonable efforts to notify Tenant
in advance prior to incurring any "excess cleaning" charges.
D. Water and Electricity. Landlord shall make available domestic water in
reasonable quantities to the Common Areas of the Building and to the Premises
and cause electric service sufficient for lighting the Premises and for the
operation of Ordinary Office Equipment. "Ordinary Office Equipment" shall mean
office equipment wired for 120 volt electric service and rated and using less
than 6 amperes or 750 xxxxx of electric current or other office equipment
approved by Landlord in writing. Landlord shall have the exclusive right to
make any replacement of lamps, fluorescent tubes and lamp ballasts in the
Premises. Landlord may adopt a system of relamping and ballast replacement
periodically on a group basis in accordance with good management practice.
Tenant's use of electric energy in the Premises shall not at any time exceed the
capacity of any of the risers, piping, electrical conductors and other equipment
in or serving the Premises. In order to insure that such capacity is not
exceeded and to avert any possible adverse effect upon the Building's electric
system, Tenant shall not, without Landlord's prior written consent in each
instance, connect appliances or heavy duty equipment, other than ordinary office
equipment, to the Building's electric system or make any alteration or addition
to the Building's electric system. Should Landlord grant its consent in
writing, all additional risers, piping and electrical conductors or other
equipment therefor shall be provided by Landlord and the reasonable cost
thereof shall be paid by Tenant within 30 days of Landlord's demand
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therefor. As a condition to granting such consent, Landlord may require Tenant
to agree to an increase in monthly Rent to offset the expected cost to Landlord
of such additional service, that is, the cost of the additional electric energy
to be made available to Tenant based upon the estimated additional capacity of
such additional risers, piping and electrical conductors or other equipment. If
Landlord and Tenant cannot agree thereon, such cost shall be determined by an
independent electrical engineer, to be selected by Landlord and paid equally by
both parties.
E. Separate Meters. If the Premises are separately metered for any utility,
Tenant shall pay a utility charge to Landlord (or directly to the utility
company, if possible) based upon the Tenant's actual consumption as measured by
the meter. Landlord also reserves the right to install separate meters for the
Premises to register the usage of all or any one of the utilities and in such
event Tenant shall pay for the cost of utility usage as metered to the Premises
and which is in excess of the usage reasonably anticipated by Landlord for
normal office usage of the Premises. Tenant shall reimburse Landlord for the
cost of installation of meters if Tenant's actual usage exceeds the anticipated
usage level by more than 10 percent. The term "utility" for purposes hereof may
refer to but is not limited to electricity, gas, water, sewer, steam, fire
protection system, telephone or other communication or alarm service, as well as
HVAC, and all taxes or other charges thereon.
F. Interruptions. Landlord does not warrant that any of the services referred
to above, or any other services which Landlord may supply, will be free from
interruption and Tenant acknowledges Landlord's representation that any one or
more of such services may be suspended by reason of accident, repairs,
inspections, alterations or improvements necessary to be made, or by strikes or
lockouts, or by reason of operation of law, or causes beyond the reasonable
control of Landlord. Any interruption or discontinuance of service shall not be
deemed an eviction or disturbance of Tenant's use and possession of the
Premises, or any part thereof, nor render Landlord liable to Tenant for damages
by abatement of the Rent or otherwise unless such interruption exceeds 10
consecutive days, nor relieve Tenant from performance of Tenant's obligations
under this Lease. Landlord shall however, exercise reasonable diligence to
restore any service so interrupted. This provision is not to be construed such
that Landlord may knowingly and intentionally discontinue providing utility
services to Tenant.
G. Utilities Provided by Tenant. Tenant shall make application in Tenant's own
name for all utilities not provided by Landlord to the Building or to other
tenants of the Building and shall: (i) comply with all utility company
regulations for such utilities, including requirements for the installation of
meters, and (ii) obtain such utilities directly from, and pay for the same when
due directly to, the applicable utility company. The term "utilities" for
purposes hereof shall include but not be limited to electricity, gas, water,
sewer, steam, fire protection, telephone and other communication and alarm
services, as well as HVAC, and all taxes or other charges thereon. Tenant shall
install and connect all equipment and lines required to supply such utilities to
the extent not already available at or serving the Premises, or at Landlord's
option shall repair, alter or replace any such existing items. Tenant shall
maintain, repair and replace all such items, operate the same, and keep the same
in good working order and condition. Tenant shall not install any equipment or
fixtures, or use the same, so as to exceed the safe and lawful capacity of any
utility equipment or lines serving the same. The installation, alteration,
replacement or connection of any utility equipment and lines shall be subject to
the requirements for alterations of the Premises set forth in Article 5. Tenant
shall ensure that all Tenant's HVAC equipment, is installed and operated at all
times in a manner to prevent roof leaks, damage, or excessive noise due to
vibrations or improper installation, maintenance or operation.
ARTICLE 8.
INSURANCE
A. Required Insurance. Tenant shall maintain insurance policies, with
responsible companies licensed to do business in the state where the Building is
located and satisfactory to Landlord, naming Landlord, Landlord's Building
Manager, Cornerstone Real Estate Advisers, Inc., Tenant and any Mortgagee of
Landlord, as their respective interests may appear, at its own cost and expense
including (i) "all risks" property insurance which shall be primary on the lease
improvements referenced in Article 5 and Tenant's property, including its goods,
equipment and inventory, in an amount adequate to cover their replacement cost;
(ii) business interruption insurance, (iii)
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comprehensive general liability insurance on an occurrence basis with limits of
liability in an amount not less than $1,000,000 (One Million Dollars) combined
single limit for each occurrence. The comprehensive general liability policy
shall include contractual liability which includes the provisions of Article 9
herein.
On or before the Commencement Date of the Lease, Tenant shall furnish to
Landlord and its Building Manager, certificates of insurance evidencing the
aforesaid insurance coverage, including naming Landlord, Cornerstone Real Estate
Advisers. Inc. and Landlord's Building Manager as additional insureds. Renewal
certificates must be furnished to Landlord at least thirty (30) days prior to
the expiration date of such insurance policies showing the above coverage to be
in full force and effect.
All such insurance shall provide that it cannot be canceled except upon thirty
(30) days prior written notice to Landlord. Tenant shall comply with all rules
and directives of any insurance board, company or agency determining rates of
hazard coverage for the Premises, including but not limited to the installation
of any equipment and/or the correction of any condition necessary to prevent any
increase in such rates.
Landlord shall during the Lease term maintain in full force the following
insurance: (i) general liability insurance issued by one or more insurance
carriers, insuring against liability for injury to or death of persons and loss
of or damage to property occurring in and on the Common Areas and in and on the
entire Building, with coverage limits of at least One Million Dollars
($1,000,000.00) combined single limits for bodily injury and property damage per
occurrence; and (ii) all risk property damage insurance and a standard extended
coverage endorsement issued by one or more insurance carriers covering the
Premises and all of the other buildings and improvements in the Building to the
extent of their full replacement value. Tenant acknowledges that Landlord's
cost of insurance carried by Landlord is passed through as a component of
Operating Expenses. Landlord shall have the right to self-insure so long as
Landlord's net worth exceeds $100,000,000. Landlord and Tenant may comply with
their insurance obligations hereunder by endorsement to any blanket policy of
insurance. Landlord and Tenant shall deliver to each other certificates issued
by the insurance carrier or carriers for each policy of insurance they are
required to maintain by this Lease within ten (10) days after request therefor.
B. Waiver of Subrogation. Landlord and Tenant each agree that neither Landlord
nor Tenant will have any claim against the other for any loss, damage or injury
which is covered by insurance carried by either party and for which recovery
from such insurer is made, notwithstanding the negligence of either party in
causing the loss. This release shall be valid only if the insurance policy in
question permits waiver of subrogation or if the insurer agrees in writing that
such waiver of subrogation will not affect coverage under said policy. Each
party agrees to use its best efforts to obtain such an agreement from its
insurer if the policy does not expressly permit a waiver of subrogation.
C. Tenant's Waiver of Claims. Except as set forth in paragraph D below, and
except for claims arising from Landlord's (or Landlord's employees, agents,
officers, directors or assigns) willful misconduct (including misconduct by
willful and wrongful omission) and/or negligence that are not covered by
Tenant's insurance required hereunder, Tenant waives all claims against Landlord
for injury or death to persons, damage to property or to any other interest of
Tenant sustained by Tenant or any party claiming, through Tenant resulting from:
(i) any occurrence in or upon the Premises, (ii) leaking of roofs, bursting,
stoppage or leaking of water, gas, sewer or steam pipes or equipment, including
sprinklers, (iii) wind, rain, snow, ice, flooding, freezing, fire, explosion,
earthquake, excessive heat or cold, or other casualty, (iv) the Building,
Premises, or the operating and mechanical systems or equipment of the Building,
being defective, or failing, and (v) vandalism, malicious mischief, theft or
other acts or omissions of any other parties including without limitation, other
tenants, contractors and invitees at the Building. Tenant agrees that Tenant's
property loss risks shall be borne by its insurance, and Tenant agrees to look
solely to and seek recovery only from its insurance carriers in the event of
such losses. For purposes hereof, any deductible amount shall be treated as
though it were recoverable under such policies.
D. Landlord's Waiver of Claims. Except for claims arising from Tenant's (or
Tenant's employees, agents, officers, directors or assigns) willful misconduct
(including misconduct by willful and wrongful omission) and/or negligence or
claims that are covered by Tenant's insurance that is required hereunder,
Landlord waives all claims against Tenant for injury or death to persons,
damage to property or to any other interest of Landlord resulting from (1)
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the willful misconduct and/or negligence of Landlord (or Landlord's employees.
agents. officers directors or assigns), or (2) the acts or omissions of other
tenants in the Building.
ARTICLE 9.
INDEMNIFICATION
Tenant shall indemnify and hold harmless Landlord and its agents, successors and
assigns, including its Building Managers from and against all injury, loss,
costs, expenses, claims or damage (including attorney's fees and disbursements)
to any person or property arising from, related to, or in connection with any
use or occupancy of the Premises by or any act or omission (including, without
limitation, construction and repair of the Premises arising out of Tenant's Work
or subsequent work) of Tenant, its agents, contractors, employees, customers,
and invitees. This indemnification shall survive the expiration or termination
of the Lease Term.
Landlord shall indemnify and hold harmless Tenant and its agents, successors and
assigns, from and against all injury, loss, costs, expenses, claims or damage
(including attorney's fees and disbursements) to any person or property arising
from, related to, or in connection with any negligence or willful misconduct
(including negligent or willful and wrongful acts or omissions) by Landlord, its
agents, contractors, employees, customers, and invitees. This indemnification
shall survive the expiration or termination of the Lease Term.
Landlord shall not be liable to Tenant for any damage by or from any act or
negligence of any co-tenant or other occupant of the Building, or by any owner
or occupants of adjoining or contiguous property. Landlord shall not be liable
for any injury or damage to persons or property resulting in whole or in part
from the criminal activities or willful misconduct of others, unless resulting
from Landlord's willful misconduct or negligence. To the extent not covered by
all risk property insurance, Tenant agrees to pay for all damage to the
Building, as well as all damage to persons or property of other tenants or
occupants thereof, caused by the negligence, fraud or willful misconduct of
Tenant or any of its agents, contractors, employees, customers and invitees.
Nothing contained herein shall be construed to relieve Landlord from liability
for any personal injury resulting from its negligence, fraud or willful
misconduct.
ARTICLE 10.
CASUALTY DAMAGE
A. If the Premises should be damaged by fire or other casualty such that
rebuilding or repairs cannot be completed within 180 days from the date of such
damage, Tenant may, within thirty (30) days of the determination of the number
of days necessary to restore the Premises, terminate this Lease on written
notice to Landlord and, in such event, all charges payable by Tenant hereunder
shall be abated as of the date of the happening of the damage.
B. If the Premises and other portions of the Building should be damaged by fire
or other casualty such that the cost of rebuilding or repairs exceeds fifty
percent (50%) of the replacement cost of the entire Building, then Landlord may,
within thirty (30) days after the determination of the cost of such rebuilding
and repairs, terminate this Lease on written notice to Tenant and, in such
event, all charges payable by Tenant hereunder shall xxxxx as of the date of the
happening of such damage.
C. If the Premises should be damaged and this Lease cannot be or is not
terminated by Landlord or Tenant pursuant to Paragraphs A or B above, then
Landlord shall, at its sole cost and risk, proceed forthwith to rebuild or
repair the Premises in compliance with all Laws to substantially the condition
which existed prior to such damage, except that Tenant shall have the right to
require Landlord to make changes to the Premises in the course of such
restoration, subject to Landlord's reasonable approval of such changes. If the
cost and expense of restoration of the Premises is increased by any change or
changes made by Tenant or if Landlord is damaged by any delay caused solely by
such change or changes, then Tenant shall pay Landlord, within thirty (30) days
after demand therefor,
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the amount or amounts by which the cost or expense or restoration of the
Premises was thereby increased and the reasonable amount by which Landlord was
damaged by such delay.
D. The cost of rebuilding and repair of the Premises and the Building and the
number of days within which the Premises can be rebuilt or repaired shall be
determined by an independent contractor mutually acceptable to both Landlord and
Tenant.
E. If the Premises shall be damaged so that Tenant is unable to conduct its
normal business operations from the Premises for more than 7 consecutive days,
then all charges payable by Tenant hereunder shall xxxxx commencing upon the 8th
day following such damage. Such abatement shall end on the earlier to occur of:
(i) 10 days after completion of rebuilding or repair of damage and the Premises
are in substantially the same condition as prior to the occurrence of the damage
or (ii) the date on which Tenant's conduct of its business from the Premises is
resumed.
F. If this Lease cannot be or is not terminated by Landlord or Tenant pursuant
to Paragraph A or B above, then all insurance proceeds payable with respect to
any damage or destruction of the Premises shall be applied solely to the cost of
the rebuilding or repair of the damage or destruction to the Premises. In the
event the insurance proceeds are insufficient to cover the costs of the
rebuilding or repairs, the excess costs shall be borne by the Landlord (except
with respect to the internal fixturization of the Premises).
G. If more than 50% of the rentable square footage of the Building is damaged
or destroyed and Landlord does not commence within 60 days after such damage or
destruction and diligently continue thereafter to restore the same, Tenant shall
have, as its sole right and remedy, the right to terminate this Lease by giving
written notice of such termination to Landlord, effective upon the expiration of
thirty (30) days following the giving of such notice (provided Landlord has not
commenced the repair during such period).
H. In any event, Landlord will cooperate with Tenant in making other space
available to Tenant during any repair period to the extent reasonably possible
and upon mutually acceptable terms.
ARTICLE 11.
CONDEMNATION
In the event of a condemnation or taking of the entire Premises by a public or
quasi-public authority, this Lease shall terminate as of the date title vests in
the public or quasi-public authority and the Rent shall xxxxx concurrently with
such termination or the earlier vacation of the Premises by Tenant pursuant to
the terms of this paragraph. In the event of a taking or condemnation of
fifteen percent (15%) or more (but less than the whole) of the Building and
without regard to whether the Premises are part of such taking or condemnation,
Landlord may elect to terminate this Lease by giving notice to Tenant within
sixty (60) days of Landlord receiving notice of such condemnation and the Rent
shall xxxxx concurrently with such termination. In the event of a taking or
condemnation of any portion of the Premises, Tenant may elect to terminate this
Lease by giving notice to Landlord within sixty (60) days of tenant receiving
notice of such condemnation and the Rent shall xxxxx concurrently with such
termination. All compensation awarded for any condemnation shall be the
property of Landlord, whether such damages shall be awarded as a compensation
for diminution in the value of the leasehold or to the fee of the Premises, and
Tenant hereby assigns to Landlord all of Tenant's right, title and interest in
and to any and all such compensation. Providing, however that in the event this
Lease is terminated, Tenant shall be entitled to make a separate claim for the
taking of Tenant's personal property (including fixtures paid for by Tenant),
business interruption and for costs of moving. Notwithstanding anything herein
to the contrary, any condemnation award to Tenant shall be available only to the
extent such award is payable separately to Tenant (and Landlord shall have no
interest in any such award made to Tenant) and does not diminish the award
available to Landlord or any Lender of Landlord.
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ARTICLE 12.
REPAIR AND MAINTENANCE
A. Tenant's Obligations. Except to the extent that Landlord is specifically
responsible therefor pursuant to the terms of this Lease, Tenant shall keep the
Premises in good working order, repair (and in compliance with all applicable
Laws now or hereafter adopted) and condition (which condition shall be neat,
clean and sanitary, and free of pests and rodents, ordinary wear and tear
excepted) and shall make all necessary non-structural repairs thereto and any
repairs to non-Building standard mechanical, HVAC, electrical and plumbing
systems or components in or serving the Premises. Tenant's obligations
hereunder shall include but not be limited to Tenant's trade fixtures and
equipment, security systems, signs, interior decorations, floor-coverings, wall-
coverings, entry and interior doors, interior glass, light fixtures and bulbs,
keys and locks, and alterations to the Premises whether installed by Tenant or
Landlord.
B. Landlord's Obligations. Landlord shall make all necessary structural
repairs to the Building and any necessary repairs to the Building standard
mechanical, HVAC, electrical, and plumbing systems in or servicing the Premises
(the cost of which shall be included in Operating Expenses under Article 4),
excluding repairs required to be made by Tenant pursuant to this Article.
Landlord shall have no responsibility to make any repairs to the Premises unless
and until Landlord receives written notice of the need for such repair.
Landlord shall not be liable for any failure to make repairs or to perform any
maintenance unless such failure shall persist for an unreasonable time after
written notice of the need for such repairs or maintenance is received by
Landlord from Tenant. Landlord shall make every reasonable effort to perform
all such repairs or maintenance in such a manner (in its reasonable judgment) so
as to cause minimum interference with Tenant and the Premises but Landlord shall
not be liable to Tenant for any interruption or loss of business pertaining to
such activities; provided, however, that if Landlord fails to act in a
commercially reasonable manner and Tenant is unable to conduct its normal
business operations from the Premises for more than 7 consecutive days, then all
charges payable by Tenant hereunder shall xxxxx commencing upon the 8th day
following such damage. Such abatement shall end on the earlier to occur of: (i)
10 days after completion of rebuilding or repair of damage and the Premises are
in substantially the same condition as prior to the occurrence of the damage or
(ii) the date on which Tenant's conduct of its business from the Premises is
resumed. Landlord shall have the right to require that any damage caused by the
willful misconduct of Tenant or any of Tenant's agents, contractors, employees,
invitees or customers, be paid for and performed by the Tenant (without limiting
Landlord's other remedies herein).
C. Signs and Obstructions. Tenant shall not knowingly or intentionally
obstruct or permit the obstruction of light, halls, Common Areas, roofs,
parapets, stairways or entrances to the Building or the Premises and will not
affix, paint, erect or inscribe any sign, projection, awning, signal or
advertisement of any kind to any part of the Building or the Premises, including
the inside or outside of the windows or doors, without the written consent of
Landlord, except as provided in Exhibit "F" attached hereto. Landlord shall
have the right to reasonably withdraw such consent at any time and to require
Tenant to remove any sign, projection, awning, signal or advertisement to be
affixed to the Building or the Premises. If such work is done by Tenant through
any person, firm or corporation not designated by Landlord, or without the
express written consent of Landlord, Landlord shall have the right to remove
such signs, projections, awnings, signals or advertisements without being liable
to the Tenant by reason thereof and to charge the cost of such removal to Tenant
as Additional Rent, payable within ten (10) days of Landlord's demand therefor.
D. Outside Services. Tenant shall not knowingly or intentionally cause, except
by Landlord or a person or company reasonably satisfactory to and approved by
Landlord: (i) the extermination of vermin in, on or about the Premises; (ii) the
servicing of heating, ventilating and air conditioning equipment; (iii) the
collection of rubbish and trash other than in compliance with local government
health requirements and in accordance with the rules and regulations established
by Landlord, which shall minimally provide that Tenant's rubbish and trash shall
be kept in containers located so as not to be visible to members of the public
and in a sanitary and neat condition; or (iv) window cleaning, janitorial
services or similar work in the Premises.
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ARTICLE 13.
INSPECTION OF PREMISES
Tenant shall permit the Landlord, the Building Manager and its authorized
representatives to enter the Premises to show the Premises during Normal
Business Hours of Building and at other reasonable times to inspect the Premises
and to make such repairs, improvements, alterations or additions in the Premises
or in the Building of which they are a part as Landlord may deem necessary or
appropriate. Reasonable prior written notice to Tenant is required, and
Landlord, Building Manager and its authorized representatives will comply with
Tenant's security procedures.
ARTICLE 14.
SURRENDER OF PREMISES
Upon the expiration of the Term, or sooner termination of the Lease, Tenant
shall quit and surrender to Landlord the Premises, broom clean, in good order
and condition, normal wear and tear and damage by fire and other casualty
excepted. All leasehold improvements and other fixtures, such as light fixtures
and HVAC equipment, wall coverings, carpeting and drapes, in or serving the
Premises, whether installed by Tenant or Landlord, shall be Landlord's property
and shall remain, all without compensation, allowance or credit to Tenant. Any
property not removed (provided that Tenant has had a reasonable opportunity to
remove such property) shall be deemed to have been abandoned by Tenant and may
be retained or disposed of by Landlord at Tenant's expense free of any and all
claims of Tenant, as Landlord shall desire. All property not removed from the
Premises by Tenant may be handled or stored by Landlord at Tenant's expense and
Landlord shall not be liable for the value, preservation or safekeeping thereof.
At Landlord's option all or part of such property may be conclusively deemed to
have been conveyed by Tenant to Landlord as if by xxxx of sale without payment
by Landlord.
ARTICLE 15.
HOLDING OVER
Tenant shall pay Landlord 150% of the amount of Rent then applicable prorated on
a per diem basis for each day Tenant shall retain possession of the Premises or
any part thereof after expiration or earlier termination of this Lease, together
with all damages sustained by Landlord on account thereof to the extent
permitted by law. The foregoing provisions shall not serve as permission for
Tenant to hold-over, nor serve to extend the Term (although Tenant shall remain
bound to comply with all provisions of this Lease until Tenant vacates the
Premises) and Landlord shall have the right at any time thereafter to enter and
possess the Premises and remove all property and persons therefrom.
ARTICLE 16.
SUBLETTING AND ASSIGNMENT
Except as otherwise permitted by the terms of this Lease, Tenant shall not,
without the prior written consent of Landlord, list the Premises or any part
thereof as available for assignment or sublease with any broker or agent or
otherwise advertise, post, communicate or solicit prospective assignees or
subtenants through any direct or indirect means, nor assign this Lease or any
interest thereunder, or sublet Premises or any part thereof, or permit the use
of Premises by any party other than Tenant. In the event that during the term
of this Lease, Tenant desires to sublease and introduces Landlord to a proposed
replacement tenant for Tenant, which replacement tenant has a good reputation,
is of acceptable financial strength (as determined by Landlord in its
discretion) and has a use for Premises and a number of employees reasonably
consistent with that of Tenant's operation, the Landlord may consider such
replacement tenant and notify Tenant with reasonable promptness (but in any
event within 20 days) as to Landlord's choice, at Landlord's sole discretion, of
the following:
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(1) That Landlord consents to a subleasing of the Premises or assignment of the
lease to such replacement tenant provided that Tenant shall remain fully
liable for all of its obligations and liabilities under this Lease and
provided further that Landlord shall be entitled to one-half of any profit
obtained by Tenant from such subletting or assignment; or:
(2) That upon such replacement tenant's entering into a mutually satisfactory
new Lease for the Premises with Landlord, then Tenant shall be released
from all further obligations and liabilities under this Lease (excepting
only any unpaid rentals or any unperformed covenants then past due under
this Lease or any guarantee by Tenant of replacement tenant's obligations);
or
(3) That Landlord declines to consent to such sublease or assignment due to
insufficient or unsatisfactory documentation furnished to Landlord to
establish tenant's reputation, financial strength and proposed use of and
operations upon Premises; or
(4) That Landlord elects to cancel the Lease and recapture the Premises (in the
case of an assignment) or that Landlord elects to cancel the Lease as to
the portion thereof that Tenant had wished to sublease. In either such
event Tenant shall surrender possession of the Premises, or the portion
thereof which is the subject of Tenant's request on the date set forth in a
notice from Landlord in accordance with the provisions of this Lease
relating to the surrender of the Premises. If this Lease shall be canceled
as to a portion of the Premises only, the Rent payable by Tenant hereunder
shall be abated proportionately according to the ratio that the area of the
portion of the Premises surrendered (as computed by Landlord) bears to the
area of the Premises immediately prior to such surrender. If Landlord
shall cancel this Lease, Landlord may relet the Premises, or the applicable
portion of the Premises, to any other party (including, without limitation,
the proposed assignee or subtenant of Tenant), without any liability to
Tenant.
In no case may Tenant assign any options to sublessee(s) or assignee(s)
hereunder, all such options being deemed personal to Tenant only. Consent by
Landlord hereunder shall in no way operate as a waiver by Landlord of, or to
release or discharge Tenant from, any liability under this Lease or be construed
to relieve Tenant from obtaining Landlord's consent to any subsequent
assignment, subletting, transfer, use or occupancy.
Notwithstanding the foregoing, Landlord's consent shall not be required with
respect to (1) any assignment resulting from a consolidation, merger or purchase
of substantially all of Tenant's assets; or (2) any assignment or sublease to a
person (a) who wholly owns Tenant or who wholly owns the person who wholly owns
Tenant (in either case, a "Parent"), or who is wholly owned by Tenant or a
Parent, or is wholly owned by a person who is wholly owned by Tenant or a
Parent, and (b) whose financial strength, both in terms of net worth and in
terms of reasonably anticipated cash flow over the Lease term, is not materially
less than Tenant's financial strength at the time this Lease was executed or at
the time of such assignment or sublease, whichever is greater. With respect to
any assignment or subletting to which Landlord's consent is not required, the
following provisions shall apply:
a. Tenant shall give Landlord written notice of the assignment or
subletting no less than 45 days prior to the effective date thereof, which
notice shall set forth the identity of the proposed transferee, the reason(s)
why Landlord's consent is not required, and the nature of the proposed
transferee's business to be carried on in the Premises.
b. Tenant shall furnish Landlord (i) no less than 30 days prior to the
effective date of the assignment or subletting, with a current financial
statement of the proposed transferee reasonably acceptable to Landlord, and (ii)
within 5 days following Landlord's demand, with all other information reasonably
requested by Landlord with respect to such transferee.
Any assignment or subletting to which Landlord's consent is not required and
with respect to which the provisions of this paragraph are not complied with
shall, at Landlord's option, be void.
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ARTICLE 17.
SUBORDINATION, ATTORNMENT AND MORTGAGEE PROTECTION
This Lease is subject and subordinate to all Mortgages now or hereafter placed
upon the Building, and all other encumbrances and matters of public record
applicable to the Building, including without limitation any reciprocal easement
or operating agreements, covenants, conditions and restrictions and Tenant shall
not knowingly act or permit the Premises to be operated in violation thereof.
If any foreclosure or power of sale proceedings are initiated by any Lender or a
deed in lieu is granted (or if any ground lease is terminated), Tenant agrees,
upon written request of any such Lender or any purchaser at such foreclosure
sale, to attorn and pay Rent to such party (provided same agrees to accept such
Rent) and to execute and deliver any instruments necessary or appropriate to
evidence or effectuate such attornment. In the event of attornment, no Lender
shall be: (i) liable for any act or omission of Landlord, or subject to any
offsets or defenses which Tenant might have against Landlord (prior to such
Lender becoming Landlord under such attornment), (ii) liable for any security
deposit or bound by any prepaid Rent not actually received by such Lender, or
(iii) bound by any future modification of this Lease not consented to by such
Lender. Any Lender may elect to make this Lease prior to the lien of its
Mortgage, and if the Lender under any prior Mortgage shall require, this Lease
shall be prior to any subordinate Mortgage; such elections shall be effective
upon written notice to Tenant. Tenant agrees to give any Lender by certified
mail, return receipt requested, a copy of any notice of default served by Tenant
upon Landlord, provided that prior to such notice Tenant has been notified in
writing (by way of service on Tenant of a copy of an assignment of leases, or
otherwise) of the name and address of such Lender. Tenant further agrees that
if Landlord shall have failed to cure such default within the time permitted
Landlord for cure under this Lease, any such Lender whose address has been so
provided to Tenant shall have an additional period of thirty (30) days in which
to cure (or such additional time as may be required due to causes beyond such
Lender's control, including time to obtain possession of the Building by power
of sale or judicial action or deed in lieu of foreclosure). The provisions of
this Article shall be self-operative; however, Tenant shall execute such
documentation as Landlord or any Lender may reasonable request from time to time
in order to confirm the matters set forth in this Article in recordable form.
Landlord represents and warrants that, as of the time of this Lease, there are
no mortgages encumbering the Building.
ARTICLE 18.
ESTOPPEL CERTIFICATE
Tenant shall from time to time, upon written request by Landlord or Lender,
deliver to Landlord or Lender, within ten (10) days after from receipt of such
request, a statement in writing certifying: (i) that this Lease is unmodified
and in full force and effect (or if there have been modifications, identifying
such modifications and certifying that the Lease, as modified, is in full force
and effect); (ii) the dates to which the Rent has been paid; (iii) that Landlord
is not in default under any provision of this Lease (or if Landlord is in
default, specifying each such default); and, (iv) the address to which notices
to Tenant shall be sent; it being understood that any such statement so
delivered may be relied upon in connection with any lease, mortgage or transfer.
Tenant's failure to deliver such statement within such time shall be conclusive
upon Tenant that: (i) this Lease is in full force and effect and not modified
except as Landlord may represent; (ii) not more than one month's Rent has been
paid in advance; (iii) there are no defaults by Landlord; and, (iv) notices to
Tenant shall be sent to Tenant's Address as set forth in Article I of this
Lease. Notwithstanding the presumptions of this Article, Tenant shall not be
relieved of its obligation to deliver said statement.
ARTICLE 19.
DEFAULTS
If Tenant: (i) fails to pay when due any installment or other payment of Rent
and such failure shall continue for ten days after Tenant's receipt of
Landlord's demand therefor, or to keep in effect any insurance required to be
maintained hereunder; or (ii) intentionally vacates or abandons the Premises
without the consent of Landlord, or (iii)
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becomes insolvent, makes an assignment for the benefit of creditors, files a
voluntary bankruptcy or an involuntary petition in bankruptcy is filed against
Tenant which petition is not dismissed within sixty (60) days of its filing, or
(iv) fails to perform or observe any of the other covenants, conditions or
agreements contained herein on Tenant's part to be kept or performed and such
failure shall continue for 45 days after notice thereof given by or on behalf of
Landlord, unless such failure will reasonably take longer than 45 days to cure
and Tenant has commenced and is diligently pursuing such cure, or (v) except as
permitted hereby, if the interest of Tenant shall be offered for sale or sold
under execution or other legal process or if Tenant makes any transfer,
assignment, conveyance, sale, pledge, disposition of all or a substantial
portion of Tenant's property, then any such event or conduct shall constitute a
"default" hereunder.
If Tenant shall file a voluntary petition pursuant to the United States
Bankruptcy Reform Act of 1978, as the same may be from time to time be amended
(the "Bankruptcy Code"), or take the benefit of any insolvency act or be
dissolved, or if an involuntary petition be filed against Tenant pursuant to the
Bankruptcy Code and said petition is not dismissed within 60 days after such
filing, or if a receiver shall be appointed for its business or its assets and
the appointment of such receiver is not vacated within 60 days after such
appointment, or if it shall make an assignment for the benefit of its creditors,
then Landlord shall have all of the rights provided for in the event of
nonpayment of the Rent.
If any alleged default on the part of the Landlord hereunder occurs, Tenant
shall give written notice to Landlord in the manner herein set forth and shall
afford Landlord 45 days after notice thereof to cure such alleged default,
unless such default will reasonably take longer than 45 days to cure and
Landlord has commenced and is diligently pursuing such cure. In addition,
Tenant shall send notice of such default by certified or registered mail,
postage prepaid, to the holder of any Mortgage whose address Tenant has been
notified of in writing, and shall afford such Mortgage holder a reasonable
opportunity to cure any alleged default on Landlord's behalf. In no event will
Landlord be responsible for any damages incurred by Tenant for lost profits or
interruption of business as a result of any alleged default by Landlord
hereunder.
ARTICLE 20.
REMEDIES OF LANDLORD
The remedies provided Landlord under this Lease are cumulative.
(a) Upon the occurrence of any default and following any applicable cure period,
Landlord may serve notice on Tenant that the Term and the estate hereby vested
in Tenant and any and all other rights of Tenant hereunder shall cease on the
date specified in such notice and on the specified date this Lease shall cease
and expire as fully and with the effect as if the Term had expired for passage
of time.
(b) Without terminating this Lease in case of a default or if this Lease shall
be terminated for default as provided herein, Landlord may re-enter the
Premises, remove Tenant, or cause Tenant to be removed from the Premises in such
manner as Landlord may reasonably deem advisable, with or without legal process,
and using such reasonable force as may be necessary. In the event of re-entry
without terminating this Lease, Tenant shall continue to be liable for all Rents
and other charges accruing or coming due under this Lease.
(c) If Landlord, without terminating this Lease, shall re-enter the Premises or
if this Lease shall be terminated as provided in paragraph (a) above:
(i) All Rent due from Tenant to Landlord shall thereupon become due and shall
be paid up to the time of re-entry, dispossession or expiration, together with
reasonable costs and expenses (including, without limitation, attorney's fees)
of Landlord;
(ii) Landlord, without any obligation to do so, may relet the Premises or any
part thereof for a term or terms which may at Landlord's option be less than
or exceed the period which would otherwise have constituted the balance of
the Term and may grant such concessions in reletting as Landlord, in the
exercise of its reasonable
17
business judgment, deems desirable. In connection with such reletting, Tenant
shall be liable for all costs of the reletting including, without limitation,
rent concessions, leasing commissions legal fees and alteration and remodeling
costs; and
(iii) If Landlord shall have terminated this Lease, Tenant shall also be
liable to Landlord for all damages provided for in law and awarded by a court
of competent jurisdiction resulting from Tenant's breach including, without
limitation, the difference between the aggregate rentals reserved under the
terms of this Lease for the balance of the Term together with all other sums
payable hereunder as Rent for the balance of the Term, less the fair rental
value of the Premises for that period determined as of the date of such
termination. For purposes of this paragraph. Tenant shall be deemed to
include any guarantor or surety of the Lease.
(d) In addition to the above, except as otherwise specified in this Lease,
Landlord and Tenant shall have any and all other rights provided under law or
equity for breach of a lease or tenancy and all remedies and rights existing in
law or in equity are cumulative.
ARTICLE 21.
QUIET ENJOYMENT
Landlord covenants and agrees with Tenant that so long as Tenant pays the Rent
and observes and performs all the terms, covenants, and conditions of this Lease
on Tenant's part to be observed and performed, Tenant may peaceably and quietly
enjoy the Premises subject, nevertheless, to the terms and conditions of this
Lease, and Tenant's possession will not be disturbed by anyone claiming by,
through, or under Landlord.
ARTICLE 22.
ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of an amount less than full payment
of Rent then due and payable shall be deemed to be other than on account of the
Rent then due and payable, 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
provided for in this Lease or available at law or in equity.
ARTICLE 23.
SECURITY DEPOSIT
Not applicable.
ARTICLE 24.
BROKERAGE COMMISSION
Landlord and Tenant represent and warrant to each other that neither has dealt
with any broker, finder or agent except for the Broker(s) identified in Article
1. Tenant represents and warrants to Landlord that (except with respect to the
Broker identified in Article 1 and with whom Landlord has entered into a
separate brokerage agreement) no broker, agent, commission salesperson, or other
person has represented Tenant in the negotiations for and procurement of this
Lease and of the Premises and that no commissions, fees, or compensation of any
kind are due and payable in connection herewith to any broker, agent commission
salesperson, or other person. Tenant agrees to indemnify Landlord and hold
Landlord harmless from any and all claims, suits, or judgments (including,
without limitation, reasonable attorneys' fees and court costs incurred in
connection with any such claims, suits, or judgments, or in connection with the
enforcement of this indemnity) for any fees, commissions, or compensation of any
kind which arise out of or are in any way connected with any claimed agency
relationship not referenced in
18
Article 1.
ARTICLE 25.
FORCE MAJEURE
Landlord shall be excused for the period of any delay in the performance of any
obligation hereunder when prevented from so doing by a cause or causes beyond
its control, including all labor disputes, civil commotion, war, war-like
operations, invasion, rebellion, hostilities, military or usurped power,
sabotage, governmental regulations or controls, fire or other casualty,
inability to obtain any material, services or financing, or through acts of God.
Tenant shall similarly be excused for delay in the performance of any obligation
hereunder; provided:
(a) nothing contained in this Section shall be deemed to excuse or permit any
delay in the payment of the Rent, or any delay in the cure of any default
which may be cured by the payment of money; and
(b) no reliance by Tenant upon this Section shall limit or restrict in any
way Landlord's right of self-help as provided in this Lease.
ARTICLE 26.
PARKING
(a) Landlord hereby grants to Tenant the right, in common with others
authorized by Landlord, to use the parking facilities owned by Landlord and
shown on Exhibit A, if any. Landlord, at its sole election, may designate the
types and locations of parking spaces within the parking facilities which Tenant
shall be allowed to use. Landlord shall have the right, at Landlord's sole
election, to change said types and locations from time to time; provided,
however, such designation shall be uniformly applied and shall not unfairly
favor any tenant in the Building.
(b) Commencing on the Commencement Date, Tenant shall pay Landlord the
Parking Fee, if any, shown in Article 1, as Additional Rent, payable monthly in
advance with the Monthly Rent. If there is a Parking Fee shown in Article 1,
then thereafter, and throughout the Term, the parking rate for each type of
parking space provided to Tenant hereunder shall be the prevailing parking rate,
as Landlord may designate from time to time, at Landlord's sole election, for
each such type of parking space. In addition to the right reserved hereunder by
Landlord to designate the parking rate from time to time, Landlord shall have
the right to change the parking rate at any time to include therein any amounts
levied, assessed, imposed or required to be paid to any governmental authority
on account of the parking of motor vehicles, including all sums required to be
paid pursuant to transportation controls imposed by the Environmental Protection
Agency under the Clean Air Act of 1970, as amended, or otherwise required to be
paid by any governmental authority with respect to the parking, use, or
transportation of motor vehicles, or the reduction or control of motor vehicle
traffic, or motor vehicle pollution.
(c) If requested by Landlord, Tenant shall notify Landlord of the license
plate number, year, make and model of the automobiles entitled to use the
parking facilities and if requested by Landlord, such automobiles shall be
identified by automobile window stickers provided by Landlord, and only such
designated automobiles shall be permitted to use the parking facilities. If
Landlord institutes such an identification procedure, Landlord may provide
additional parking spaces for use by customers and invitees of Tenant on a daily
basis at prevailing parking rates, if any. At Landlord's sole election,
Landlord may make validation stickers available to Tenant for any such
additional parking spaces, provided, however, if Landlord makes validation
stickers available to any other tenant in the Building, Landlord shall make such
validation stickers available to Tenant.
(d) The parking facilities provided for herein are provided solely for the
accommodation of Tenant and Landlord assumes no responsibility or liability of
any kind whatsoever from whatever cause with respect to the automobile parking
areas, including adjoining streets, sidewalks, driveways, property and
passageways, or the use thereof by Tenant or tenant's employees, customers,
agents, contractors or invitees.
19
ARTICLE 27.
HAZARDOUS MATERIALS
A. Definition of Hazardous Materials. The term "Hazardous Materials" for
purposes hereof shall mean any chemical, substance, materials or waste or
component thereof which is now or hereafter listed, defined or regulated as a
hazardous or toxic chemical, substance, materials or waste or component thereof
by any federal, state or local governing or regulatory body having jurisdiction,
or which would trigger any employee or community "right-to-know" requirements
adopted by any such body, or for which any such body has adopted any
requirements for the preparation or distribution of a materials safety data
sheet ("MSDS").
B. No Hazardous Materials. Tenant shall not transport, use, store, maintain,
generate, manufacture, handle, dispose, release or discharge any Hazardous
Materials. However, the foregoing provisions shall not prohibit the
transportation to and from, and use, storage, maintenance and handling within
the Premises of Hazardous Materials customarily used in the business or activity
expressly permitted to be undertaken in the Premises under Article 6 provided:
(a) such Hazardous Materials shall be used and maintained only in such
quantities as are reasonably necessary for such permitted use of the Premises
and the ordinary course of Tenant's business therein, strictly in accordance
with applicable Law, highest prevailing standards, and the manufacturers'
instructions therefor, (b) such Hazardous Materials shall not be disposed of,
released or discharged in the Building, and shall be transported to and from the
Premises in compliance with all applicable Laws, and as Landlord shall
reasonably require, (c) if any applicable Law or Landlord's trash removal
contractor requires that any such Hazardous Materials be disposed of separately
from ordinary trash, Tenant shall make arrangements at Tenant's expense for such
disposal directly with a qualified and licensed disposal company at a lawful
disposal site (subject to scheduling and approval by Landlord), and (d) any
remaining such Hazardous Materials shall be completely, properly and lawfully
removed from the Building upon expiration or earlier termination of this Lease.
C. Notices To Landlord. Tenant shall promptly notify Landlord of: (i) any
enforcement, cleanup or other regulatory action taken or threatened by any
governmental or regulatory authority with respect to the presence of any
Hazardous Materials on the Premises or the migration thereof from or to other
property, (ii) any demands or claims made or threatened by any party relating to
any loss or injury resulting from any Hazardous Materials on the Premises, (iii)
any release, discharge or non-routine, improper or unlawful disposal or
transportation of any Hazardous Materials on or from the Premises or in
violation of this Article, and (iv) any matters where Tenant is required by Law
to give a notice to any governmental or regulatory authority respecting any
Hazardous Materials on the Premises. Landlord shall have the right (but not the
obligation) to join and participate, as a party, in any legal proceedings or
actions affecting the Premises initiated in connection with any environmental,
health or safety law. At such times as Landlord may reasonably request, Tenant
shall provide Landlord with a written list, certified to be true and complete,
identifying any Hazardous Materials then used, stored, or maintained upon the
Premises, the use and approximate quantity of each such materials, a copy of any
MSDS issued by the manufacturer therefor, and such other information as Landlord
may reasonably require or as may be required by Law.
D. Indemnification of Landlord. If any Hazardous Materials are released,
discharged or disposed of by Tenant or their employees, agents, invitees or
contractors, on or about the Building in violation of the foregoing provisions,
Tenant shall immediately, properly and in compliance with applicable Laws clean
up, remediate and remove the Hazardous Materials from the Building and any other
affected property and clean or replace any affected personal property (whether
or not owned by Landlord), at Tenant's expense (without limiting Landlord's
other remedies therefore. Tenant shall further be required to indemnify and
hold Landlord, Landlord's directors, officers, employees and agents harmless
from and against any and all claims, demands, liabilities, losses, damages,
penalties and judgments directly arising out of or attributable to a violation
of the provisions of this Article by Tenant, Tenant's invitees, employees,
contractors or agents. Any clean up, remediation and removal work shall be
subject to Landlord's prior written approval (except in emergencies), and shall
include, without limitation, any testing, investigation, and the preparation and
implementation of any remedial action plan required by any governmental body
having jurisdiction or reasonably required by Landlord. If Landlord or any
Lender or governmental body arranges for any tests or studies showing that this
Article has been violated, Landlord shall pay for the costs of such
20
tests: provided that if such tests conclusively disclose violations by Tenant
then Tenant shall reimburse Landlord for the costs of such tests on demand. The
provisions of this Article shall survive the expiration or earlier termination
of this Lease. To the actual knowledge of Xxxxx Xxxxxxxxx, the asset manager
responsible for the Building, the Building is not in violation of any
environmental laws.
ARTICLE 28.
ADDITIONAL RIGHTS RESERVED BY LANDLORD
In addition to any other rights provided for herein, Landlord reserves the
following rights, exercisable without liability to Tenant for damage or injury
to property (except as specifically provided for herein), person or business and
without effecting an eviction, constructive or actual, or disturbance of
Tenant's use or possession or giving rise to any claim:
(a) To name the Building and to change the name or street address of the
Building;
(b) To install and maintain all signs on the exterior and interior of the
Building;
(c) To designate all sources furnishing sign painting or lettering for use in
the Building:
(d) During the last ninety (90) days of the Term, if Tenant has vacated the
Premises, to decorate, remodel, repair, alter or otherwise prepare the
Premises for occupancy, without affecting Tenant's obligation to pay Rent
for the Premises;
(e) To have pass keys to the Premises and all doors therein, excluding
Tenant's vaults and safes;
(f) On reasonable prior notice to Tenant, to exhibit the Premises to any
prospective purchaser, Lender, mortgagee, or assignee of any mortgage on
the Building or Land and to others having an interest therein at any time
during the Term, and to prospective tenants during the last six months of
the Term;
(g) To take any and all measures, including entering the Premises for the
purpose of making inspections, repairs, alterations, additions and
improvements to the Premises or to the Building (including for the
purpose of checking, calibrating, adjusting and balancing controls and
other parts of the Building Systems), as may be necessary or desirable
for the operation, improvement, safety, protection or preservation of the
Premises or the Building, or in order to comply with all Laws, orders and
requirements of governmental or other authority, or as may otherwise be
permitted or required by this Lease; provided, however, that during the
progress of any work on the Premises or at the Building, Landlord and its
agents will exercise reasonable efforts not to inconvenience Tenant, but
shall not be liable for inconvenience, annoyance, disturbance, loss of
business, or other damage to Tenant by reason of performing any work or
by bringing or storing materials, supplies, tools or equipment in the
Building or Premises during the performance of any work, and the
obligations of Tenant under this Lease shall not thereby be affected in
any manner whatsoever;
(h) To relocate various facilities within the Building and on the land of
which the Building is a part if Landlord shall determine such relocation
to be in the best interest of the development of the Building and
Property, provided that such relocation shall not materially restrict
access to the Premises; and
(i) To install vending machines of all kinds in the Building and to receive
all of the revenue derived therefrom provided, however, that no vending
machines shall be installed by Landlord in the Premises unless Tenant so
requests.
ARTICLE 29.
DEFINED TERMS
21
A. "Building" shall refer to the Building named in Article 1 of which the
leased Premises are a part (including all modifications, additions and
alterations made to the Building during the term of this Lease), the real
property on which the same is located, all plazas, Common Areas and any other
areas located on said real property and designated by Landlord for use by all
tenants in the Building. A plan showing the Building is attached hereto as
Exhibit A and made a part hereof and the Premises is defined in Article 2 and
shown on said Exhibit A by cross-hatched lines.
B. "Common Areas" shall mean and include all areas, facilities, equipment,
directories and signs of the Building (exclusive of the Premises and areas
leased to other Tenants) made available and designated by Landlord for the
common and joint use and benefit of Landlord, Tenant and other tenants and
occupants of the Building including, but not limited to, lobbies, public
washrooms, hallways, sidewalks, parking areas, landscaped areas and service
entrances. Common Areas may further include such areas in adjoining properties
under reciprocal easement agreements, operating agreements or other such
agreements now or hereafter in effect and which are available to Landlord,
Tenant and Tenant's employees and invitees. Landlord reserves the right in its
sole discretion and from time to time on a reasonable basis, to construct,
maintain, operate, repair, close, limit, take out of service, alter, change, and
modify all or any part of the Common Areas but not so that it affects Tenants
access to the Building or Premises or Tenant's rights to quiet enjoyment.
C. "Default Rate" shall mean eighteen percent (18%) per annum, or the highest
rate permitted by applicable law, whichever shall be less. If the application
of the Default Rate causes any provision of this Lease to be usurious or
unenforceable, the Default Rate shall automatically be reduced so as to prevent
such result.
D. "Hazardous Materials" shall have the meaning set forth in Article 27.
E. "Landlord" and "Tenant" shall be applicable to one or more parties as the
case may be, and the singular shall include the plural, and the neuter shall
include the masculine and feminine; and if there be more than one, the
obligations thereof shall be joint and several. For purposes of any provisions
indemnifying or limiting the liability of Landlord, the term "Landlords shall
include Landlord's present and future partners, beneficiaries, trustees,
officers, directors, employees, shareholders, principals, agents, affiliates,
successors and assigns.
E. "Law" or "Laws" shall mean all federal, state, county and local governmental
and municipal laws, statutes, ordinances, rules, regulations, codes, decrees,
orders and other such requirements, applicable equitable remedies and decisions
by courts in cases where such decisions are binding precedents in the state in
which the Building is located, and decisions of federal courts applying the Laws
of such state.
G. "Lease" shall mean this lease executed between Tenant and Landlord,
including any extensions, amendments or modifications and any Exhibits attached
hereto.
H. "Lease Year" shall mean each calendar year or portion thereof during the
Term.
I. "Lender" shall mean the holder of a Mortgage at the time in question, and
where such Mortgage is a ground lease, such term shall refer to the ground
lessee.
J. "Mortgage" shall mean all mortgages, deeds of trust, ground leases and other
such encumbrances now or hereafter placed upon the Building or any part thereof
with the written consent of Landlord, and all renewals, modifications,
consolidations, replacements or extensions thereof, and all indebtedness now or
hereafter secured thereby and all interest thereon.
K. "Operating Expenses" shall mean all operating expenses of any kind or nature
which are necessary, ordinary or customarily incurred in connection with the
operation, maintenance or repair of the Building as reasonably determined by
Landlord in accordance with the Lease.
Operating Expenses shall include, but not be limited to:
22
1.1 costs of supplies, including, but not limited to, the cost of relamping
all Building standard lighting as the same may be required from time to time;
1.2 costs incurred in connection with obtaining and providing energy for the
Building, including, but not limited to, costs of propane, butane, natural gas,
steam, electricity, solar energy and fuel oils, coal or any other energy
sources:
1.3 costs of water and sanitary and storm drainage services;
1.4 costs of janitorial and security services;
1.5 costs of general maintenance and repairs, including costs under HVAC and
other mechanical maintenance contracts and maintenance, repairs and replacement
of equipment and tools used in connection with operating the Building;
1.6 costs of maintenance and replacement of landscaping;
1.7 insurance premiums, including fire and all-risk coverage, together with
loss of rent endorsements, the part of any claim required to be paid under the
deductible portion of any insurance policies carried by Landlord in connection
with the Building (where Landlord is unable to obtain insurance without such
deductible from a major insurance carrier at reasonable rates), public liability
insurance and any other insurance carried by Landlord on the Building, or any
component parts thereof (all such insurance shall be in such amounts as may be
required by any holder of a Mortgage or as Landlord may reasonably determine);
1.8 labor costs (at or below property manager level), including wages and
other payments, costs to Landlord of worker's compensation and disability
insurance, payroll taxes, welfare fringe benefits, and all legal fees and other
costs or expenses incurred in resolving any labor dispute;
1.9 professional building management fees required for management of the
Building;
1.10 legal, accounting, inspection, and other consultation fees (including,
without limitation, fees charged by consultants retained by Landlord for
services that are designed to produce a reduction in Operating Expenses or to
reasonably improve the operation, maintenance or state of repair of the
Building) incurred in the ordinary course of operating the Building or in
connection with making the computations required hereunder or in any audit of
operations of the Building;
1.11 the costs of capital improvements or structural repairs or replacements
made in or to the Building in order to conform to changes, subsequent to the
date of this Lease, in any applicable laws, ordinances, rules, regulations or
orders of any governmental or quasi-governmental authority having jurisdiction
over the Building (herein "Required Capital Improvements") or the costs incurred
by Landlord to install a new or replacement capital item for the purpose of
reducing Operating Expenses (herein "Cost Savings Improvements"). The
expenditures for Required Capital Improvements and Cost Savings Improvements
shall be amortized over the useful life of such capital improvement or
structural repair or replacement (as determined by Landlord).
The following items are specifically excluded from the definition and
computation of Operating Expenses under the Lease:
1.1 any and all late payments and penalties on payments made by Landlord for
any Operating Expenses.
1.2 expenses for repairs, restoration of other work occasioned by fire, wind,
the elements or other casualty that are required to be covered under this Lease.
1.3 interest or principal payments on any mortgage or other indebtedness of
Landlord.
23
1.4 compensation paid to any employee of Landlord above the grade of property
manager.
1.5 income and franchise taxes of Landlord.
1.6 expenses incurred by Landlord in leasing to or procuring of tenants,
leasing commissions, advertising expenses and expenses for renovating of space
for new or existing tenants.
1.7 any depreciation allowance or expense.
1.8 operating expenses which are solely the responsibility of other tenants in
the Building.
In making any computations contemplated hereby, Landlord shall also be permitted
to make such adjustments and modifications to the provisions of this paragraph
and Article 4 as shall be reasonable and necessary to achieve the intention of
the parties hereto.
L. "Rent" shall have the meaning specified therefor in Article 3.
M. "Tax" or "Taxes" shall mean:
1.1 all real property taxes and assessments levied against the Building by
any governmental or quasi-governmental authority. The foregoing shall include
all federal, state, county, or local governmental, special district, improvement
district, municipal or other political subdivision taxes, fees, levies,
assessments, charges or other impositions of every kind and nature, whether
general, special, ordinary or extraordinary, respecting the Building, including
without limitation, real estate taxes, general and special assessments, interest
on any special assessments paid in installments, transit taxes, water and sewer
rents, sales taxes based upon the receipt of rent, personal property taxes
imposed upon the fixtures, machinery, equipment, apparatus, appurtenances,
furniture and other personal property used in connection with the Building which
Landlord shall pay during any calendar year, any portion of which occurs during
the Term (without regard to any different fiscal year used by such government or
municipal authority except as provided below). Provided, however, any taxes
which shall be levied on the rentals of the Building shall be determined as if
the Building were Landlord's only property, and provided further that in no
event shall the term "taxes or assessment," as used herein, include any net
federal or state income taxes levied or assessed on Landlord, unless such taxes
are a specific substitute for real property taxes. Expenses incurred by
Landlord for tax consultants and in contesting the amount or validity of any
such taxes or assessments shall be included in such computations.
1.2 all "assessments", including so-called special assessments, license tax,
business license fee, business license tax, levy, charge, penalty or tax imposed
by any authority having the direct power to tax, including any city, county,
state or federal government, or any school, agricultural, lighting, water,
drainage, or other improvement or special district thereof, against the Premises
of the Building or any legal or equitable interest of Landlord therein. For the
purposes of this lease, any special assessments shall be deemed payable in such
number of installments as is permitted by law, whether or not actually so paid.
If as of the Commencement Date the Building has not been fully assessed as a
completed project, for the purpose of computing the Operating Expenses for any
adjustment required herein or under Article 4, the Tax shall be adjusted by
Landlord, as of the date on which the adjustment is to be made, to reflect full
completion of the Building including all standard Tenant finish work if the
method of taxation of real estate prevailing to the time of execution hereof
shall be, or has been altered, so as to cause the whole or any part of the taxes
now, hereafter or theretofore levied, assessed or imposed on real estate to be
levied, assessed or imposed on Landlord, wholly or partially, as a capital levy
or otherwise, or on or measured by the rents received therefrom, then such new
or altered taxes attributable to the Building shall be included within the term
real estate taxes, except that the same shall not include any enhancement of
said tax attributable to other income of Landlord. All of the preceding clauses
M (1.1 and 1.2) are collectively referred to as the "Tax" or Taxes".
All other capitalized terms shall have the definition set forth in the Lease.
24
ARTICLE 30.
MISCELLANEOUS PROVISIONS
A. RULES AND REGULATIONS.
Tenant shall comply with all of the rules and regulations promulgated by
Landlord and timely made known to Tenant from time to time for the Building.
A copy of the current rule and regulations is attached hereto as Exhibit D.
B. EXECUTION OF LEASE.
If more than one person or entity executes this Lease as Tenant, each such
person or entity shall be jointly and severally liable for observing and
performing each of the terms, covenants, conditions and provisions to be
observed or performed by Tenant.
C. NOTICES.
All notices under this Lease shall be in writing and will be deemed sufficiently
given for all purposes if, to Tenant, by delivery to Tenant at the Premises
during the hours the Building is open for business or by certified mail, return
receipt requested or by overnight delivery service (with one acknowledged
receipt), to Tenant at the address set forth below, and if to Landlord, by
certified mail, return receipt requested or by overnight delivery service (with
one acknowledged receipt), at the addresses set forth below.
Landlord: at address shown in Article 1, item F.
with a copy sent concurrently to: Building Manager at address shown in
Article 1, item G.
Tenant: at address shown in Article 1, item B.
with copy to: The Compucare Company
0000 Xxxxxx Xxxx Xxxx
Xxxxxx, XX 00000
Attn: CEO
D. TRANSFERS.
The term "Landlord" appearing herein shall mean only the owner of the Building
from time to time and, upon a sale or transfer of its interest in the Building,
the then Landlord and transferring party shall have no further obligations or
liabilities for matters accruing after the date of transfer of that interest and
Tenant, upon such sale or transfer, shall look solely to the successor owner and
transferee of the Building for performance of Landlord's obligations hereunder.
E . RELOCATION.
Not Applicable.
F. TENANT FINANCIAL STATEMENTS.
Upon the written request of Landlord, which Landlord shall only make in the
event of a proposed sale of the Building, Tenant shall submit financial
statements for its most recent financial reporting period and for the prior
Lease Year. Landlord shall make such request no more than once during any Lease
Year or at any time that Tenant is a publicly traded company on a nationally
recognized exchange. All such financial statements shall be certified as true
and correct by the responsible officer or partner of Tenant and if Tenant is
then in default hereunder, the financial statements shall be certified by an
independent certified public accountant.
25
G. RELATIONSHIP OF THE PARTIES.
Nothing contained in this Lease shall be construed by the parties hereto, or by
any third party, as constituting the parties as principal and agent, partners or
joint venturers, nor shall anything herein render either party (other than a
guarantor) liable for the debts and obligations of any other party, it being
understood and agreed that the only relationship between Landlord and Tenant is
that of Landlord and Tenant.
H. ENTIRE AGREEMENT: MERGER.
This Lease embodies the entire agreement and understanding between the parties
respecting the Lease and the Premises and supersedes all prior negotiations,
agreements and understandings between the parties, all of which are merged
herein. No provision of this Lease may be modified, waived or discharged except
by an instrument in writing signed by the party against which enforcement of
such modification, waiver or discharge is sought.
I. NO REPRESENTATION BY LANDLORD.
Neither Landlord nor any agent of Landlord has made any representations,
warranties, or promises with respect to the Premises or the Building except as
expressly set forth herein.
J. LIMITATION OF LIABILITY.
Notwithstanding any provision in this Lease to the contrary, under no
circumstances shall Landlord's liability or that of its directors, officers,
employees and agents for failure to perform any obligations arising out of or in
connection with the Lease or for any breach of the terms or conditions of this
Lease (whether written or implied) exceed the greater of (1) $1,500,000 or (2)
Landlord's equity interest in the Building. No personal judgment in excess of
this amount shall lie against Landlord. The provisions hereof shall inure to
Landlord's successors and assigns including any Lender. The foregoing
provisions are not intended to relieve Landlord from the performance of any of
Landlord's obligations under this Lease, but only to limit the personal
liability of Landlord in case of recovery of a judgment against Landlord; nor
shall the foregoing be deemed to limit Tenant's rights to obtain injunctive
relief or specific performance or other remedy which may be accorded Tenant by
law or under this Lease. Nothing in this paragraph shall limit Tenant's right
to the proceeds of any applicable insurance policy obtained in connection with
the Building.
K. MEMORANDUM OF LEASE.
Neither party, without the written consent of the other, will execute or record
this Lease or any summary or memorandum of this Lease in any public recorders
office.
L. NO WAIVERS: AMENDMENTS.
Failure of either party to insist upon strict compliance by the other party of
any condition or provision of this Lease shall not be deemed a waiver of that
condition. No waiver shall be effective against either party unless in writing
and signed by such affected party. Similarly, this Lease cannot be amended
except by a writing signed by Landlord and Tenant.
M. SUCCESSORS AND ASSIGNS.
The conditions, covenants and agreements contained herein shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
N. GOVERNING LAW.
This Lease shall be governed by the law of the State where the Building is
located.
26
O. EXHIBITS.
All exhibits attached to this Lease are a part hereof and are incorporated
herein by reference and all provisions of such exhibits shall constitute
agreements, promises and covenants of this Lease.
P. CAPTIONS.
The captions and headings used in this Lease are for convenience only and in no
way define or limit the scope, interpretation or content of this Lease.
Q. COUNTERPARTS.
This Lease may be executed in one (1) or more counterparts, each of which shall
be deemed an original but all of which together shall constitute one and the
same instrument.
R. REASONABILITY STANDARD.
All consents and approvals to be given and/or granted hereunder by either party
shall not be unreasonably withheld or delayed.
S. ACKNOWLEDGEMENT OF LANDLORD'S WAIVER.
Landlord acknowledges its execution of that certain Landlord's Waiver in favor
of Central Fidelity National Bank dated February 12, 1996, and agrees that such
waiver shall cover and continue in full force and effect during the term of this
Lease.
27
IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
hare duly executed this Lease with the Exhibits attached hereto, as of this 1st
day of June 1996.
Attest or Witness: LANDLORD:
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: CORNERSTONE REAL ESTATE
ADVISERS, INC., its agent
/s/ Xxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
---------------- -----------------------
Name Typed: Xxxxxx X. Xxxxxxxxx
Title: Vice President
TENANT:
ANTRIM CORPORATION
Attest or Witness:
/s/ Xxxxx Xxxx By:/s/ Xxxxxxx X. Xxxxx
-------------- -------------------------
Name Typed: Xxxxxxx X. Xxxxx
Title: President
Dated: May 31, 1996
28
Certificate of Tenant
(If A Corporation or Partnership)
I, Xxxxxxxx X. Xxxxxx, Secretary of Antrim Corporation, Tenant, hereby
certify that the officers executing the foregoing Lease on behalf of Tenant
is/are duly authorized to act on behalf of and bind the Tenant.
(Corporate Seal ) Xxxxxxxx X. Xxxxxx
------------------
Secretary
Date: May 30, 1996
29
