AGAVE CORPORATE CENTER
FULL SERVICE GROSS LEASE
THIS LEASE (this "Lease") is made as of Jan 17 2005, by and between 'Landlord'
MULTI-EMPLOYER PROPERTY TRUST, a trust organized under 12 C.F.R. Section
9.18[TAG1]
and
"Tenant" DYNASIG CORPORATION, an Arizona corporation
SECTION 1: DEFINITIONS 1
Access Laws 1
Additional Rent 1
Base Amount Allocable to the Premises 1
Base Rent 1
Brokers 1
Building 1
Business Day 1
Claims 1
Commencement Date 1
Estimated Operating Costs Allocable to the Premises 1
Events of Default 1
Governmental Agency 1
Governmental Requirements 1
Hazardous Substance(s 1
Land 1
Landlord 1
Landlord's Agents 1
Lease Term 1
Manager 1
Manager's Address 1
Operating Costs , 1
Operating Costs Allocable to the Premises 2
Parking Ratio 2
Permitted Use 2
Premises 2
Prime Rate 2
Property Taxes 2
Rental Tax. 2
Security Deposit 2
Telecommunication Facilities 2
Telecommunication Services 2
Tenant 2
Tenant Alterations 2
Tenant's Agents 2
Tenant's Pro Rata Share 2
Year 2
SECTION 2: PREMISES AND TERM 3
2.1 Lease of Premises 3
2.2 Lease Term .3
2.3 "AS IS" Condition 3
2.4 Memorandum of Commencement Date 3
2.5 Use and Conduct of Business 3
2.6 Compliance with Governmental Requirements and Rules and Regulations
SECTION 3: BASE RENT, ADDITIONAL RENT AND OTHER SUMS PAYABLE UNDER LEASE 3
3.1 Payment of Rental 3
3.2 Base Rent 4
3.3 Security Deposit 4
3.4 Additional Rent 4
3.5 Interruption of Services 6
3.6 Holdover 6
3.7 Late Charge 7
3.8 Default Rate 7
SECTION 4: GENERAL PROVISIONS 7
4.1 Maintenance and Repair by Landlord 7
4.2 Maintenance and Repair by Tenant 7
4.3 Common Areas/Security 7
4.4 Tenant Alterations 8
4.5 Tenant's Work Performance 8
4.6 Surrender of Possession 8
4.7 Removal of Property 8
4.8 Access 9
4.9 Damage or Destruction 9
4.10 condemnation 9
4.11 Parking 9
4.12 Indemnification 9
4.13 Tenant Insurance 9
4.14 Landlord's Insurance 10
4.15 Waiver of Subrogation 10
4.16 Assignment and Subletting by Tenant 10
4.17 Estoppel Certificates 10
4.18 Hazardous Substances 11
4.19 Access Laws 11
4.20 Quiet Enjoyment 12
4.21 Signs 12
4.22 Subordination 12
4.23 Brokers 12
4.24 Exculpation and Limitation of Liability 13
4.25 Mechanic's Liens and Tenant's Personal Property Taxes 13
SECTION 5: DEFAULT AND REMEDIES 13
5.1 Events of Default 13
5.2 Remedies 14
5.3 Right to Perform 15
5.4 Landlord's Default 15
SECTION 6: MISCELLANEOUS PROVISIONS 15
6.1 Notices 15
6.2 Attorney's Fees and Expenses 15
6.3 No Accord and Satisfaction 15
6.4 Successors; Joint and Several Liability. 15
6.5 Choice of Law 16
6.6 No Waiver of Remedies 16
6.7 Offer to Lease 16
6.8 Force Majeure 16
6.9 Severability; Captions 16
6.10 Interpretation 16
6.11 Incorporation of Prior Agreement; Amendments 16
6.12 Authority 17
6.13 Time of Essence 17
6.14 Survival of Obligations 17
6.15 Landlord's Authorized Agents 17
6.16 Waiver of Jury Trial 17
LISTING OF EXHIBITS
Exhibit A Legal Description of the Land
Exhibit B Drawing Showing Location of the Premises
Exhibit C Form of Memorandum of Commencement Date
Exhibit D Rules and Regulations
SECTION 1: DEFINITIONS
ACCESSLAWS: The Americans With Disabilities Act of 1990 (including the
Americans with Disabilities Act Accessibility Guidelines for Building and
Facilities) and all other Governmental Requirements relating to the
foregoing.
ADDITIONALRENT: Defined in paragraph captioned "Additional Rent".
BASE AMOUNT ALLOCABLE TO THE PREMISES: The actual Operating Expenses
Allocate to the Premises for Year 2005.
BASERENT: For Month 1, $0.00, full service; for Months 2-12, $2,284.75 per
month (based on $19.00 per square foot/year), full service, plus 2.3%
rental tax, paid in advance, and for months 13-25, $2,344.88 per month
(based on $19.50 per square foot/year), full service, plus 2.3% rental tax.
Upon execution of this Lease, Tenant shall pay Twenty-Five Thousand Seven
Hundred Ten and 29/100 Dollars ($25,710.29) to Landlord to be applied to
Base Rent and rental tax for months 2-12 of the Lease Term.
BROKERS: Landlord was represented in this transaction by Xxx Xxxxxx of
Xxxxxxxx Xxxx Company, a licensed real estate broker. Tenant was
represented in this transaction by Xxxxx Close, Commercial Brokers, Inc., a
licensed real estate broker.
BUILDING: The building located on the Land at 0000 X. Xxxxxxxxx Xxxxx,
Xxxxx, Xxxxxxx 00000, commonly known as Agave Corporate Center and
containing approximately 85,593 rentable square feet.
BUSINESSDAY: Calendar days, except for Saturdays and Sundays and holidays
when banks are closed in Washington, D.C.
CLAIMS: An individual and collective reference to any and all claims,
demands, damages, injuries, losses, liens, liabilities, penalties, fines,
lawsuits, actions, other proceedings and expenses (including attorneys'
fees and expenses incurred in connection with the proceeding whether at
trial or on appeal).
COMMENCEMENT DATE: February 1, 2005.
ESTIMATED OPERATING COSTS ALLOCABLE TO THE PREMISES: Landlord's estimate of
Operating Costs allocable to the Premises for a Year to be given by
Landlord to Tenant pursuant to subparagraph 3.4.1.
EVENTS OF DEFAULT: One or more of those events or states of facts defined
in the paragraph captioned "Events of Default".
GOVERNMENTAL AGENCY: The United States of America, the state in which the
Land is located, any county, city, district, municipality or other
governmental subdivision, court or agency or quasi-governmental agency
having jurisdiction over the Land and any board, agency or authority
associated with any such governmental entity, including the fire department
having jurisdiction over the Land.
GOVERNMENTAL REQUIREMENTS: Any and all statutes, ordinances, codes, laws,
rules, regulations, orders and directives of any Governmental Agency as now
or later amended.
HAZARDOUSSUBSTANCE(S): Asbestos, PCBs, petroleum or petroleum-based
chemicals or substances, urea formaldehyde or any chemical, material,
element, compound, solution, mixture, sub-stance or other matter of any
kind whatsoever which is now or later defined, classified, listed,
designated or regulated as hazardous, toxic or radioactive by any
Governmental Agency.
LAND: The land upon which the Building is located in Maricopa County,
Arizona, as legally described in Exhibit A attached to this Lease.
LANDLORD: The trust named on the first page of this Lease, or its
successors and assigns as provided in paragraph captioned "Assignment by
Landlord".
LANDLORD'S AGENTS: Landlord's trustee, authorized signatory, consultants
and advisors, and the employees of the foregoing.
LEASETERM: Commencing on the Commencement Date, and running for twenty-five
(25) months thereafter.
MANAGER: Xxxxxxxx Xxxx Company, or its replacement as specified by written
notice from Landlord to Tenant.
MANAGER'S ADDRESS: 0000 X. Xxxxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000, which
address may be changed by written notice from Landlord to Tenant.
OPERATING COSTS: Defined in paragraph captioned "Additional Rent".
OPERATING COSTS ALLOCABLE TO THE PREMISES: The product of Tenant's Pro Rata
Share times Operating Costs.
PARKING RATIO: Approximately Five (5) parking stalls per 1,000 rentable
square feet of Premises.
PERMITTED USE: General office and administrative uses, so long as such use
is consistent with Governmental Requirements and with first-class buildings
of the same or similar use as the Building located in the metropolitan area
in which the Building is located and as described in further detail in
paragraph 2.5.
PREMISES: The portion of the Building known as Suite #116, consisting of
approximately 1,443 rentable square feet, as depicted on the plan attached
to this Lease as Exhibit B.
PRIMERATE: Defined in paragraph captioned "Default Rate".
PROPERTYTAXES: (a) Any form of ad valorem real or personal property tax or
assessment imposed by any Governmental Agency on the Land, Building,
related improvements or any personal property owned by Landlord associated
with such Land, Building or improvements; (b) any other form of tax or
assessment, license fee, license tax or any other levy, charge, expense or
imposition made or required by any Governmental Agency on any interest of
Landlord in such Land, Building, related improvements or personal property;
(c) any fee for services charged by any Governmental Agency for any
services such as fire protection, street, sidewalk and road maintenance,
refuse collection, school systems or other services provided or formerly
provided to property owners and residents within the general area of the
Land; (d) any governmental impositions allocable to or measured by the area
of any or all of such Land, Building, related improvements or personal
property or the amount of any base rent, additional rent or other sums
payable under any lease for any or all of such Land, Building, related
improvements or personal property, including any tax on gross receipts or
any excise tax or other charges levied by any Governmental Agency with
respect to the possession, leasing, operation, maintenance, alteration,
repair, use or occupancy of any or all of such Land, Building, related
improvements, personal property or the rent earned by any part of or
interest in such Land, Building, related improvements or personal property;
(e) any impositions by any Governmental Agency on any transaction evidenced
by a lease of any or all of such Land, Building, related improvements or
personal property or charge with respect to any document to which Landlord
is a party creating or transferring an interest or an estate in any or all
of such Land, Building, related improvements or personal property; and (f)
any increase in any of the foregoing based upon construction of
improvements or change of ownership of any or all of such Land, Building,
related improvements or personal property. Property Taxes shall not include
taxes on Landlord's net income or any inheritance, estate or gift taxes.
RENTAL TAX. Any and all taxes imposed by any state, city, or local taxing
authority on any Base Rent, Additional Rent or other sum payable by Tenant
to Landlord including Maricopa County sales tax and City of Tempe sales
tax, but excluding any tax on Landlord's net income, or any inheritance,
estate, or gift taxes.
SECURITY DEPOSIT. Tenant shall pay Two Thousand Three Hundred Ninety-Eight
and 81/100 Dollars ($2,398.81) to Landlord upon execution of this Lease to
be held as a security deposit.
TELECOMMUNICATION FACILITIES: Equipment, facilities, apparatus and other
materials utilized for the purpose of electronic telecommunication,
including cable, switches, wires, conduit and sleeves.
TELECOMMUNICATION SERVICES: Services associated with electronic
telecommunications, whether in a wired or wireless mode. Basic voice
telephone services are included within this definition.
TENANT: The person or entity(ies) named on the first page of this Lease.
TENANT ALTERATIONS: Defined in paragraph captioned TenantAlterations".
TENANT'S AGENTS: Any and all officers, partners, contractors,
subcontractors, consultants, licensees, agents, concessionaires,
subtenants, servants, employees, customers, guests, invitees or visitors of
Tenant.
TENANT'S PRO RATA SHARE: One and Sixty-Nine Hundredths Percent (1.69%).
YEAR:A calendar year commencing January 1 and ending December 31.
SECTION 2: PREMISES AND TERM
2.1 LEASEOFPREMISES. Landlord leases the Premises to Tenant, and Tenant leases
the Premises from Landlord, upon the terms and Lease.
2.2 LEASETERM. The Lease Term shall be for twenty-five months. Tenant may have
access to the Premises upon mutual execution of the Lease for the purposes of
setup and installation of equipment, furniture and fixtures, provided that
during any such early access, Tenant shall comply with the terms of this Lease,
other than the payment of Rent.
2.3 "AS IS" CONDITION Tenant shall accept the Premises in their "AS IS"
condition; except that Landlord shall clean the existing carpet and paint the
interior walls of the Premises prior to the Commencement Date. Taking of
possession by tenant shall establish that the Premises are in good and
satisfactory condition when possession was so taken and the Commencement Date
has occurred; Tenant acknowledges that no representations as to the condition
of the Premises have been made by Landlord, unless such are expressly set forth
in this Lease.
2.4 MEMORANDUM OF COMMENCEMENT DATE. At Landlord's election and request, Tenant
shall execute a Memorandum of Commencement Date in the form attached as Exhibit
D. In no event shall Tenant record this Lease or the Memorandum of Commencement
Date.
2.5 USE AND CONDUCT OF BUSINESS.
2.5.1 The Premises are to be used only for the Permitted Uses, and for no
other business or purpose without the prior consent of Landlord. The Premises
shall not be used for lodging or sleeping or for any immoral or illegal
purposes. Landlord makes no representation or warranty as to the suitability of
the Premises for Tenant's intended use. Tenant shall, at its own cost and
expense, obtain and maintain any and all licenses, permits, and approvals
necessary or appropriate for its use, occupation and operation of the Premises.
Tenant's inability to obtain or maintain any such license, permit or approval
necessary or appropriate for its use, occupation or operation of the Premises
shall not relieve it of its obligations under this Lease, including the
obligation to pay Base Rent and Additional Rent.
2.5.2 No act shall be done in or about the Premises that is unlawful or
that will increase the existing rate of insurance on any or all of the Land or
Building. Tenant shall not commit or allow to be committed or exist: (a) any
waste upon the Premises, (b) any public or private nuisance, or (c) any act or
condition which disturbs the quiet enjoyment of any other tenant in the
Building, creates or contributes to any work stoppage, strike, picketing, labor
disruption or dispute, interferes in any way with the business of Landlord or
any other tenant in the Building or with the rights or privileges of any
contractors, subcontractors, licensees, agents, concessionaires, subtenants,
servants, employees, customers, guests, invitees or visitors or any other
persons lawfully in and upon the Land or Building, or causes any impairment or
reduction of the good will or reputation of the Land or Building.
2.5.3 Tenant shall not, without the prior consent of Landlord, use any
apparatus, machinery, device or equipment in or about the Premises which will
cause any substantial noise or vibration or any increase in the normal
consumption level of electric power. If any of Tenant's apparatus, machinery,
devices or equipment should disturb the quiet enjoyment of any other tenant in
the Building, then Tenant shall provide, at its sole cost and expense, adequate
insulation or take other such action, including removing such apparatus,
machinery, devices or equipment, as may be necessary to eliminate the
disturbance.
2.6 COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS AND RULES AND REGULATIONS. Tenant
shall comply with all Governmental Requirements relating to its use, occupancy
and operation of the Premises and shall observe such reasonable rules and
regulations as may be adopted and published by Landlord from time to time for
the safety, care and cleanliness of the Premises and the Building, and for the
preservation of good order in the Building, including the Rules and Regulations
attached to this Lease as Exhibit E.
SECTION 3: BASE RENT. ADDITIONAL RENT AND OTHER SUMS PAYABLE UNDER LEASE
3.1 PAYMENT OF RENTAL. Tenant agrees to pay Base Rent, Additional Rent and any
other sum due under this Lease to Landlord without demand, deduction, credit,
adjustment or offset of any kind or nature, except as otherwise permitted
elsewhere in this Lease, in lawful money of the United states when due under
this Lease, at the offices of Manager at Manager's Address, or to such other
party or at such other place as Landlord may from time to time designate in
writing.
3.2 BASE RENT. Tenant agrees to pay Base Rent to Landlord without demand, in
advance on or before the first day of each calendar month of the Lease Term.
Base Rent for any partial month at the beginning or end of the Lease Term shall
be prorated. Base Rent for any partial month at the beginning of the Lease Term
shall be paid by Tenant on the Commencement Date.
3.3 SECURITY DEPOSIT. Concurrently with execution of this Lease, Tenant shall
deposit a security deposit with Landlord in the amount specified in the
definition of the term "Security Deposit", as security for the full and
faithful payment of all sums due under this Lease and the full and faithful
performance of every covenant and condition of this Lease to be performed by
Tenant. If Tenant shall breach or default with respect to any payment
obligation or other covenant or condition of this Lease, Landlord may apply all
or any part of the Security Deposit to the payment of any sum in default or any
damage suffered by Landlord as a result of such breach or default, and in such
event, Tenant shall, upon demand by Landlord, deposit with Landlord the amount
so applied so that Landlord shall have the full Security Deposit on hand at all
times during the Lease Term. Landlord's use or application of all or any
portion of the Security Deposit shall not impair any other rights or remedies
provided under this Lease or under applicable law and shall not be construed as
a payment of liquidated damages. If Tenant shall have fully complied with all
of the covenants and conditions of this Lease, the remaining Security Deposit
shall be repaid to Tenant, without interest, within thirty (30) calendar days
after the expiration of this Lease. Tenant may not mortgage, assign, transferor
encumber the Security Deposit and any such act on the part of Tenant shall be
without force or effect. In the event any bankruptcy, insolvency,
reorganization or other creditor-debtor proceedings shall be instituted by or
against Tenant, the Security Deposit shall be deemed to be applied first to the
payment of Base Rent, Additional Rent and all other sums payable under this
Lease to Landlord for all periods prior to the institution of such proceedings
and the balance, if any, may be retained by Landlord and applied against
Landlord's damages.
3.4 ADDITIONAL RENT. Definitions of certain terms used in this paragraph are
set forth in subparagraph 3.4.5. Tenant agrees to pay to Landlord additional
rent as computed in this paragraph (individually and collectively the
"Additional Rent"):
3.4.1 RENTAL ADJUSTMENT FOR ESTIMATED OPERATING COSTS. Landlord shall
furnish Tenant a written statement of Estimated Operating Costs Allocable to the
Premises for each Year and the amount payable monthly by Tenant for such Costs
shall be computed as follows: one-twelfth (1/12) of the amount, if any, by which
the Estimated Operating Costs Allocable to the Premises exceeds the Base Amount
Allocable to the Premises. Such amount shall be paid monthly by Tenant for each
month during such Year after the Commencement Date. If such written statement is
furnished after the commencement of the Year (or as to the first Year during the
Lease Term, after the Commencement Date), Tenant shall also make a retroactive
lump-sum payment to Landlord equal to the monthly payment amount multiplied by
the number of months during the Year (or as to the first Year during the Lease
Term, after the Commencement Date) for which no payment was paid.
3.4.2 ACTUALCOSTS. After the close of each Year, Landlord shall deliver to
Tenant a written statement setting forth the Operating Costs Allocable to the
Premises during the preceding Year. If such Operating Costs Allocable to the
Premises for any Year exceed the Estimated Operating Costs Allocable to the
Premises paid by Tenant to Landlord pursuant to subparagraph 3.4.1 for such
Year, Tenant shall pay the amount of such excess to Landlord within twenty (20)
Business Days after receipt of such statement by Tenant. If such statement shows
the Operating Costs Allocable to the Premises to be less than the Estimated
Operating Costs Allocable to the Premises paid by Tenant to Landlord pursuant to
subparagraph 3.4.1, then the amount of such overpayment shall be paid by
Landlord to Tenant within twenty (20) Business Days following the date of such
statement.
3.4.3 ENDOFTERM. If this Lease shall expire or otherwise terminate on a day
other than the last day of a Year, Landlord shall (a) estimate the Operating
Costs Allocable to the Premises for such Year predicated on the most recent
reliable information available to Landlord; (b) the amount determined under
clause (a) of this sentence shall be prorated by multiplying such amount by a
fraction, the numerator of which is the number of days within the Lease Term in
such Year and the denominator of which is 365; (c) the Base Amount Allocable to
the Premises shall be prorated in the manner described in clause (b); (d) the
clause (c) amount (i.e., the prorated Base Amount Allocable to the Premises)
shall be deducted from the clause (b) amount (i.e., the prorated Operating Costs
Allocable to the Premises); (e) if the clause (d) amount exceeds the Estimated
Operating Costs Allocable to the Premises paid by Tenant for the last Year in
the Lease Term, then Tenant shall pay the excess to Landlord within ten (10)
Business Days after Landlord's delivery to Tenant of a statement for such
excess; and (f) if the Estimated Operating Costs Allocable to the Premises paid
by Tenant for the last Year in the Lease Term exceeds the clause (d) amount,
then Landlord shall refund to Tenant the excess within the ten (10) Business Day
period described in clause (e). After the close of the Year during which this
Lease expired or otherwise terminated, Landlord shall deliver to Tenant a
written statement setting forth the Operating Costs Allocable to the Premises
during the preceding Year through the date of such Lease expiration or
termination. If such Operating Costs Allocable to the Premises for the last Year
in the Lease Term exceeds the sum of (i) the Estimated Operating Costs Allocable
to the Premises paid by Tenant for the last Year in the Lease Term plus (ii) the
sum, if any, paid by Tenant in accordance with the above clause (e) amount, then
Tenant shall pay such excess to Landlord within ten (10) Business Days after
Landlord's delivery to Tenant of a Statement for such excess. If the sum of (i)
and (ii) exceeds the Operating Costs Allocable to the Premises for the last Year
in the Lease Term, then Landlord shall refund such excess within the ten (10)
Business Day period described in the previous sentence. Landlord's and Tenant's
obligations under this paragraph shall survive the expiration or other
termination of this Lease.
3.4.4 OPERATINGCOSTS. Ail expenses paid or incurred by Landlord for
maintaining, operating, owning and repairing any or all of the Land, Building,
related improvements, and the personal property used in conjunction with such
Land, Building and related improvements, including all expenses paid or incurred
by Landlord for: (a) utilities, including electricity, water, gas, sewers, fire
sprinkler charges, refuse collection, Telecommunication Services, cable
television or other electronic or microwave signal reception, steam, heat,
cooling or any other service which is now or in the future considered a utility
and which are not payable directly by tenants in the Building; (b) supplies; (c)
window washing, landscaping and landscaping maintenance (including irrigating,
trimming, mowing, fertilizing, seeding and replacing plants), and other
services; (d) security services, if any; (e) insurance; (f) management fees; (g)
Property Taxes, tax consultant fees and expenses, and costs of appeals of any
Property Taxes; (h) services of independent contractors; (i) compensation
(including employment taxes and fringe benefits) of all persons who perform
duties in connection with any service, repair, maintenance, replacement or
improvement or other work included in this subparagraph; (j) license, permit and
inspection fees; (k) assessments and special assessments due to deed
restrictions, declarations or owners associations or other means of allocating
costs of a larger tract of which the Land is a part; (I) rental of any machinery
or equipment; (m) audit fees and accounting services related to the Building,
and charges for the computation of the rents and charges payable by tenants in
the Building (but only to the extent the cost of such fees and services are in
addition to the cost of the management fee); (n) the cost of improvements or
repairs; (o) maintenance and service contracts; (p) legal fees and other
expenses of legal or other dispute resolution proceedings; (q) maintenance and
repair of the roof and roof membranes, (r) costs incurred by Landlord for
compliance with Access Laws, as set forth in the paragraph captioned 'Access
Laws"; (s) elevator service and repair, if any; and (t) any other expense or
charge which in accordance with generally accepted accounting and management
principles would be considered an expense of maintaining, operating, owning or
repairing the Building (except depreciation and amortization). Without limiting
the foregoing, Operating Costs shall include exterior painting; parking area
resurfacing, resealing and restriping parking areas and driveways; upgrading of
the HVAC systems in the Building, and other capital improvements which are
intended to reduce Operating Costs; provided that, such capital improvements
were installed after the Commencement Date and shall be amortized with market
interest over their estimated useful lives in accordance with generally accepted
accounting and management principles and only the amortization installments and
interest attributable to the Lease Term shall be an Operating Cost under this
Lease.
Operating Costs shall not include any of the following: roof replacement,
ground rent; depreciation and amortization; interest and amortization of funds
borrowed by Landlord for items other than capital improvements; leasing
commissions and advertising and space planning expenses incurred in procuring
tenants; and salaries, wages, or other compensation paid to officers or
executives of Landlord in their capacities as officers and executives, if less
than one hundred percent (i00%) of the net rentable area of the Building is
occupied by tenants at all times during any Year, then Operating Costs for such
Year shall include all additional costs and expenses that Landlord reasonably
determines would have been incurred had one hundred percent (100%) of the
Building been occupied at ail times during such Year by tenants.
3.4.5 OPERATING COST AUDIT. Landlord shall maintain records concerning
estimated and actual Operating Costs Allocable to the Premises for no less than
twelve (12) months following the period covered by the statement or statements
furnished Tenant, after which time Landlord may dispose of such records.
Provided that Tenant is not then in default of its obligation to pay Base Rent,
Additional Rent or other payments required to be made by it under this Lease and
provided that Tenant is not otherwise in default under this Lease, Tenant may,
at Tenant's sole cost and expense, cause a Qualified Person (defined below) to
inspect Landlord's records. Such inspection, if any, shall be conducted no more
than once each Year during Landlord's normal business hours within ninety (90)
calendar days after receipt of Landlord's written statement of Operating Costs
Allocable to the Premises for the previous year, upon first furnishing Landlord
at least twenty (20) calendar days prior written notice. Any errors disclosed by
the review shall be promptly corrected by Landlord; provided, however, that if
Landlord disagrees with any such claimed errors, Landlord shall have the right
to cause another review to be made by an auditor of Landlord's choice. In the
event the results of the review of records (taking into account, if applicable,
the results of any additional review caused by Landlord) reveal that Tenant has
overpaid obligations for a preceding period, the amount of such overpayment
shall be credited against Tenant's subsequent installment of Base Rent,
Additional Rent or other payments due to Landlord under the Lease. In the event
that such results show that Tenant has underpaid its obligations for a preceding
period, the amount of such underpayment shall be paid by Tenant to Landlord with
the next succeeding installment obligation of estimated Operating Costs
Allocable to the Premises. If the actual Operating Costs Allocable to the
Premises for any given Year were improperly computed and if the actual Operating
Costs Allocable to the Premises are overstated by more than 5%, Landlord shall
reimburse Tenant for the cost of its audit. For purposes of this subparagraph,
the term "Qualified Person" means an accountant or other person experienced in
accounting for income and expenses of office projects, who is engaged solely by
Tenant on terms which do not entail any compensation based or measured in any
way upon any savings in Additional Rent or reduction in Operating Costs
Allocable to the Premises achieved through the inspection process described in
this subparagraph.
3.4.6 TENANT'S COSTS. Tenant agrees to reimburse or pay Landlord within
twenty (20) Business Days after invoice from Landlord for (a) any expense or
cost incurred or paid by Landlord for garbage removal, cleaning, or utility
consumption that is over and above what is normal for the Building and is
attributable to Tenant's use of the Premises, and (b) any expense or cost
incurred or paid by Landlord in response to service calls made by Tenant to
Landlord for the repair of heating, ventilating and air conditioning systems
within the Premises. Landlord reserves the right to install and activate
separate metering of water or other utilities to the Premises, and Tenant agrees
to reimburse or pay Landlord within twenty (20) Business Days after invoice from
Landlord for all costs of such separate metering; provided that, as of the
Commencement Date, electrical service to the Premises is separately metered.
3.4.7 REMEDIES. Any sums payable under this Lease pursuant to this
paragraph or otherwise shall be Additional Rent and, in the event of nonpayment
of such sums, Landlord shall have the same rights and remedies with respect to
such nonpayment as it has with respect to nonpayment of the Base Rent due under
this Lease.
3.5 INTERRUPTION OF SERVICES. Landlord shall in no case be liable or in any way
be responsible for damages or loss to Tenant arising from the failure of,
diminution of or interruption in electrical power, natural gas, fuel,
Telecommunication Services, sewer, water, or garbage collection services, other
utility service or building service of any kind to the Premises, unless such
interruption in, deprivation of or reduction of any such service was caused by
the gross negligence or willful misconduct of Landlord, its agents or
contractors or by a failure in facilities, equipment or systems in the
Landlord's ownership. To the extent that Landlord bears any responsibility for
any such interruption, deprivation or reduction in utility or building services
to the Premises, Landlord's responsibility and Tenant's remedy shall be limited
to an abatement in Base Rent for the period beginning with (a) the day which is
two (2) consecutive days after the date on which Tenant delivers notice to
Landlord of such interruption, deprivation or reduction and that Tenant is
being deprived of all reasonable use of the Premises and ending on (b) the date
such interruption, deprivation or reduction which is Landlord's responsibility
is not causing Tenant to be deprived of all reasonable use of the Premises.
3.6 HOLDOVER. If Tenant, without the prior consent of Landlord, holds over
after the expiration or termination of the Lease Term, Tenant shall be deemed
to be occupying the Premises under a month-to-month tenancy, which tenancy may
be terminated as provided by the laws of the state in which the Premises are
located. During such tenancy, Tenant agrees to pay to Landlord one hundred
fifty percent (150%) the rate of Base Rent in effect on the expiration or
termination of the Lease Term, plus all Additional Rent and other sums payable
under this Lease, and to be bound by all of the other covenants and conditions
specified in this Lease, so far as applicable. The preceding provisions shall
not be construed as consent for Tenant to hold over.
3.7 LATE CHARGE. If Tenant fails to make any payment of Base Rent, Additional
Rent or other amount within five (5) calendar days of its due date under this
Lease, a late charge shall be immediately due and payable by Tenant equal to
three percent (3%) of the amount of any such payment. Landlord and Tenant agree
that this charge compensates Landlord for the administrative costs caused by
the delinquency. The parties agree that Landlord's damage would be difficult to
compute and the amount stated in this paragraph represents a reasonable
estimate of such damage. Assessment or payment of the late charge contemplated
in this paragraph shall not excuse or cure any Event of Default or breach by
Tenant under this Lease or impair any other right or remedy provided under this
Lease or under law.
3.8 DEFAULT RATE. Any Base Rent, Additional Rent or other sum payable under
this Lease which is not paid when due shall bear interest at a rate equal to
the lesser of: (a) the published prime rate of Xxxxx Bank N.A., or such other
national banking institution designated by Landlord if such bank ceases to
publish a prime rate (the 'Prime Rate"), then in effect, plus four (4)
percentage points, or (b) the maximum rate of interest per annum permitted by
applicable law (the "Default Rate"), but the payment of such interest shall not
excuse or cure any Event of Default or breach by Tenant under this Lease or
impair any other right or remedy provided under this Lease or under law.
SECTION 4: GENERAL PROVISIONS
4.1 MAINTENANCE AND REPAIR BV LANDLORD. Subject to the paragraphs captioned
"Damage or Destruction" and "Condemnation", Landlord shall maintain the public
and common areas of the Building, the exterior walls, foundations, roof
membrane, plumbing and electrical systems, and heating, ventilating and air
conditioning systems in reasonably good order and condition, subject to
reasonable wear and tear. Landlord shall make such repairs thereto as become
necessary after obtaining actual knowledge of the need for such repairs. All
repair costs shall be included in Operating Costs, except for damage occasioned
by the act or omission of Tenant or Tenant's Agents which shall be paid for
entirely by Tenant upon demand by Landlord. In the event any or all of the
Building becomes in need of maintenance or repair which Landlord is required to
make under this Lease, Tenant shall immediately give written notice to
Landlord, and Landlord shall not be obligated in any way to commence such
maintenance or repairs until a reasonable time elapses after Landlord's receipt
of such notice.
4.2 MAINTENANCE AND REPAIR BV TENANT. Except as is expressly set forth as
Landlord's responsibility pursuant to the paragraph captioned "Maintenance and
Repair bv Landlord." Tenant shall at Tenant's sole cost and expense keep and
maintain the Premises in good condition and repair, including interior
painting, cleaning of the interior side of all exterior glass, plumbing and
utility fixtures and installations, carpets and floor coverings, all interior
wall surfaces and coverings including tile and paneling, replacement of all
broken windows (including without limitation any exterior windows), exterior
and interior doors, roof penetrations and membranes in connection with any
Tenant installations on the roof including satellite dishes, light bulb
replacement and interior preventative maintenance. If Tenant fails to maintain
or repair the Premises in accordance with this paragraph, then Landlord may,
but shall not be required to, enter the Premises upon two (2) Business Days
prior written notice to Tenant (or immediately without any notice in the case
of an emergency) to perform such maintenance or repair at Tenant's sole cost
and expense. Tenant shall pay to Landlord the cost of such maintenance or
repair plus a eight percent (8%) administration fee within ten (10) Business
Days of written demand from Landlord.
4.3 COMMON AREAS/SECURITY.
4.3.1 The common areas of the Building shall be subject to Landlord's sole
management and control. Without limiting the generality of the immediately
preceding sentence, Landlord reserves the exclusive right as it deems necessary
or desirable to install, construct, remove, maintain and operate lighting
systems, facilities, improvements, equipment, Telecommunication Facilities and
signs on, in or to all parts of the common areas; change the number, size,
height, layout, or locations of walks, driveways and truckways or parking areas
now or later forming a part of the Land or Building; make alterations or
additions to the Building or common area; close temporarily all or any portion
of the common areas to make repairs, changes or to avoid public dedication;
grant easements to which the Land will be subject, replat, subdivide, or make
other changes to the Land; place, relocate and operate utility lines through,
over or under the Land and Building; and use or permit the use of all or any
portion of the roofs of the Building. Landlord reserves the right to relocate
parking areas and driveways and to build additional improvements in the common
areas so long as the total number of Tenant's parking stalls is not reduced.
4.3.2 The common areas of the Building are patrolled by security personnel
at various times from sunset to sunrise. Except as described in the preceding
sentence, Landlord has no duty or obligation to provide any security services
in, on or around the Premises, Land or Building, and Tenant recognizes that
security services, if any, provided by Landlord will be for the sole benefit of
Landlord and the protection of Landlord's property and under no circumstances
shall Landlord be responsible for, and Tenant waives any rights with respect to,
Landlord providing security or other protection for Tenant or Tenant's Agents or
property in, on or about the Premises, Land or Building.
4.4 TENANT ALTERATIONS. Tenant shall not make any alterations, additions or
improvements in or to the Premises, or make changes to locks on doors, or add,
disturb or in any way change any floor covering, wall covering, fixtures,
plumbing or wiring or Telecommunication Facilities (individually and
collectively "Tenant Alterations").
4.5 TENANT'S WORK PERFORMANCE. If Landlord permits Tenant to perform any Tenant
Alterations, then the Tenant Alterations shall be performed by contractors
employed by Tenant under one or more construction contracts, in form and
content approved in advance in writing by Landlord (which approval shall be
subject to Landlord's discretion and may include a requirement that the prime
contractor and the respective subcontractors: (a) be parties to, and bound by,
a collective bargaining agreement with a labor organization affiliated with the
Building and Construction Trades Council of the AFL-CIO or with an independent,
nationally recognized labor organization or one of its affiliated locals, and
(b) solely employ members of such labor organizations to perform work within
their respective jurisdictions solely. Tenant's contractors, workers and
suppliers shall work in harmony with and not interfere with workers or
contractors of Landlord or other tenants of Landlord. If Tenant's contractors,
workers or suppliers do, in the opinion of Landlord, cause such disharmony or
interference, Landlord's consent to the continuation of such work may be
withdrawn upon written notice to Tenant. All Tenant Alterations shall be (1)
completed in accordance with the plans and specifications approved by Landlord;
(2) completed in accordance with all Governmental Requirements; (3) carried out
promptly in a good and workmanlike manner; (4) of all new materials; and (5)
free of defect in materials and workmanship. Tenant shall pay for all damage to
the Premises, Building and Land caused by Tenant or Tenant's Agents. Tenant
shall indemnify, defend and hold harmless Landlord and Landlord's Agents from
any Claims arising as a result of any defect in design, material or workmanship
of any Tenant Alterations.
4.6 SURRENDER OF POSSESSION. Subject to the last subparagraph of the paragraph
captioned "Damage or Destruction*. Tenant shall, at the expiration or earlier
termination of this Lease, surrender and deliver the Premises to Landlord in as
good condition as when received by Tenant from Landlord or as later improved,
reasonable use and wear excepted.
4.7 REMOVAL OF PROPERTY Upon expiration or earlier termination of this Lease,
Tenant may remove its personal property, office supplies and office furniture
and equipment if (a) such items are readily moveable and are not attached to
the Premises; (b) such removal is completed prior to the expiration or earlier
termination of this Lease; (c) Tenant is not in default of any covenant or
condition of this Lease at the time of such removal; and (d) Tenant immediately
repairs all damage caused by or resulting from such removal. All other property
in the Premises and any Tenant Alterations (including, wall-to-wall carpeting,
paneling, wall covering or lighting fixtures and apparatus or Telecommunication
Facilities,) or any other article affixed to the floor, walls, ceiling or any
other part of the Premises or Building, shall become the property of Landlord
and shall remain upon and be surrendered with the Premises, except as may be
otherwise provided in the paragraph captioned Tenant Alterations'' or the
paragraph captioned Tenant's Contribution to Tenant Improvement Costs". Tenant
waives all rights to any payment or compensation for such property. If, at the
expiration or earlier termination of this Lease or at such time as Landlord
exercises its right or re-entry, Tenant has failed to remove any property from
the Premises, Building or Land which it is entitled or required to remove as
provided in this Lease, Landlord may, at its option, remove and store such
property without liability for loss of or damage to such property, such storage
to be for the account and at the expense of Tenant. If Tenant fails to pay the
cost of storing any such property, Landlord may, at its option, after it has
been stored for a period of twenty (20) Business Days or more, sell or permit
to be sold, any or all such property at public or private sale (and Landlord
may become a purchaser at such sale), in such manner and at such times and
places as Landlord in its sole discretion may deem proper, without notice to
Tenant, and Landlord shall apply the proceeds of such sale: first, to the cost
and expense of such sale, including reasonable attorney's fees actually
incurred; second, to the payment of the costs or charges for storing any such
property; third, to the payment of any other sums of money which may then be or
later become due Landlord from Tenant under this Lease; and, fourth, the
balance, if any, to Tenant.
4.8 Access. Tenant will have access to the Building and parking areas,
twenty-four (24) hours per day, seven (7) days per week. Tenant shall permit
Landlord and Landlord's Agents to enter into the Premises at any time on at
least one (1) Business Day's notice (except in case of emergency), for the
purpose of inspecting the same or for the purpose of repairing, altering or
improving the Premises or the Building. Nothing contained in this paragraph
shall be deemed to impose any obligation upon Landlord not expressly stated
elsewhere in this Lease. When reasonably necessary, Landlord may temporarily
close Building or Land entrances, Building doors or other facilities, without
liability to Tenant by reason of such closure and without such action by
Landlord being construed as an eviction of Tenant or as relieving Tenant from
the duty of observing or performing any of the provisions of this Lease.
Landlord shall have the right to enter the Premises for the purpose of showing
the Premises to prospective tenants within the period of one-hundred-eighty
(180) Business Days prior to the expiration or sooner termination of this Lease
and to erect on the Premises a suitable sign indicating the Premises are
available. Tenant and Landlord shall arrange to meet for a joint inspection of
the Premises prior to vacating. In the event Tenant fails or refuses to meet
for such joint inspection, Landlord's inspection after Tenant's vacating the
Premises shall be conclusively deemed correct for purposes of determining
Tenant's responsibility for repairs and restoration. Landlord shall not be
liable for the consequences of admitting by passkey, or refusing to admit to
the Premises, Tenant or any of Tenant's Agents, or other persons claiming the
right of admittance.
4.9 DAMAGE OR DESTRUCTION. If the Premises are damaged by fire, earthquake or
other casualty, Tenant shall give immediate written notice thereof to Landlord.
If Landlord reasonably estimates that the damage can not be repaired in
accordance with the then exiting Governmental Requirements within thirty (30)
calendar days, then either Landlord or Tenant may elect to terminate this Lease
by notice in writing to the other party.
4.10 CONDEMNATION. If all of the Premises, or such portions of the Building as
may be required for the Tenant's reasonable use of the Premises, are taken by
eminent domain or by conveyance in lieu thereof, this Lease shall automatically
terminate as of the date the physical taking occurs, and all Base Rent,
Additional Rent and other sums payable under this Lease shall be paid to that
date.
4.11 PARKING. Landlord has allocated five (5) parking spaces per 1,000 rentable
square feet for Tenant's use on a non-exclusive, non-reserved basis. Landlord
shall have the right, but not the obligation, to monitor, secure or police the
use of the parking or other common areas.
4.12 INDEMNIFICATION. Tenant shall indemnify, defend and hold harmless Landlord
and Landlord's Agents from and against any and all Claims, arising in whole or
in part out of (a) the possession, use or occupancy of the Premises or the
business conducted in the Premises, (b) any act, omission or negligence of
Tenant or Tenant's Agents, or (c) any breach or default under this Lease by
Tenant. Except for Claims arising solely out of the gross negligence or willful
misconduct of Landlord or Landlord's Agents in failing to repair or maintain
the Building as required by this Lease; neither Landlord nor Landlord's Agents
shall, to the extent permitted by law, have any liability to Tenant, or to
Tenant's Agents, for any Claims arising out of any cause whatsoever, including
repair to any portion of the Premises; interruption in the use of the Premises
or any equipment therein; any accident or damage resulting from any use or
operation by Landlord, Tenant or any person or entity of heating, cooling,
electrical, sewerage or plumbing equipment or apparatus or Telecommunication
Facilities; termination of this Lease by reason of damage to the Premises or
Building; fire, robbery, theft, vandalism, mysterious disappearance or any
other casualty; actions of any other tenant of the Building or of any other
person or entity; inability to furnish any service required of Landlord as
specified in this Lease; or leakage in any part of the Premises or the Building
from rain, ice or snow, or from drains, pipes or plumbing fixtures in the
Premises or the Building; provided that, in no event shall Landlord be
responsible for any interruption to Tenant's business or for any indirect or
consequential losses suffered by Tenant or Tenant's Agents. The obligations of
this paragraph shall be subject to the paragraph captioned "Waiverof
Subrogation".
4.13 TENANT INSURANCE
4.13.1 Tenant shall, throughout the Lease Term, at its own expense, keep
and maintain in full force and effect:
(a) A policy of comprehensive general liability insurance, including a
contractual liability endorsement covering Tenant's obligations under the
paragraph captioned "Indemnification", insuring against claims of bodily
injury and death or property damage or loss with a combined single limit at
the Commencement Date of this Lease of not less than Two Million Dollars
($2,000,000.00), which limit shall be reasonably increased during the Lease
Term at Landlord's request to reflect both increases in liability exposure
arising from inflation as well as from changing use of the Premises or
changing legal liability standards, which policy shall be payable on an
"occurrence" rather than a "claims made" basis, and which policy names
Landlord and Manager and, at Landlord's request Landlord's mortgage
lender(s) or investment advisors, as additional insureds;
(b) A policy of extended property insurance (which is commonly called
"all risk") covering Tenant Improvements, Tenant Alterations (including
Telecommunication Facilities), and any and all furniture, fixtures,
equipment, inventory, improvements and other property in or about the
Premises which is not owned by Landlord, for one hundred percent (100%) of
the then current replacement value of such property;
(c) Business interruption insurance in an amount sufficient to cover
costs, damages, lost income, expenses, Base Rent, Additional Rent and all
other sums payable under this Lease, should any or all of the Premises not
be usable for a period of up to twelve (12) months;
4.13.2 All insurance policies required under this paragraph shall be
with companies reasonably
approved by Landlord and each policy shall provide that it is not subject to
cancellation or reduction in
coverage except after thirty (30) days' written notice to Landlord. Tenant shall
deliver to Landlord and, at
Landlord's request Landlord's mortgage lender(s), prior to the Commencement Date
and from time to
time thereafter, certificates evidencing the existence and amounts of all such
policies.
4.13.3 If Tenant fails to acquire or maintain any insurance or provide any
certificate required by this paragraph, Landlord may, but shall not be required
to, obtain such insurance or certificates and the costs associated with
obtaining such insurance or certificates shall be payable by Tenant to Landlord
on demand.
4.14 LANDLORD'S INSURANCE.
Landlord shall,
throughout the Lease Term, keep and maintain in full force and effect:
(a) Commercial general liability insurance, insuring against claims of
bodily injury and death or property damage or loss with a combined single limit
at the Commencement Date of not less than One Million Dollars ($1,000,000.00)
per occurrence and Two Million Dollars ($2,000,000.00) in the aggregate, which
policy shall be payable on an "occurrence" rather than a "claims made" basis;
(b) "Special Form" property insurance (what is commonly called "all risk")
covering the Building and Landlord's personal property, if any, located on the
Land in the amount of one hundred percent (100%) of the then current replacement
value of such property; and
(c) Landlord may, but shall not be required to, maintain other types of
insurance as Landlord deems appropriate, including but not limited to, property
insurance coverage for earthquakes and floods in such amounts as Landlord deems
appropriate. Such policies may be "blanket" policies which cover other
properties owned by Landlord. Landlord shall deliver to Tenant and, at Tenant's
request Tenant's mortgage lender(s), prior to the Commencement Date and from
time to time thereafter, certificates evidencing the existence and amounts of
all such policies.
4.15 WAIVER OF SUBROGATION. Notwithstanding anything in this Lease to the
contrary, Landlord and Tenant hereby each waive and release the other from any
and all Claims or any loss or damage that may occur to the Land, Building,
Premises or personal property located therein, by reason of fire or other
casualty regardless of cause or origin, including the negligence or misconduct
of Landlord, Tenant, Landlord's Agents or Tenant's Agents, but only to the
extent of the insurance proceeds paid to such releasor under its policies of
insurance or, if it fails to maintain the required policies, the insurance
proceeds that would have been paid to such releasor if it had maintained such
policies. Each party to this Lease shall promptly give to its insurance company
written notice of the mutual waivers contained in this subparagraph, and shall
cause its insurance policies to be properly endorsed, if necessary, to prevent
the invalidation of any insurance coverages by reason of the mutual waivers
contained in this subparagraph.
4.16 ASSIGNMENT AND SUBLETTING BV TENANT. Tenant shall not have the right to
assign, transfer, mortgage or encumber this Lease in whole or in part, nor
sublet the whole or any part of the Premises, nor allow the occupancy of all or
any part of the Premises by another, without first obtaining Landlord's
consent.
4.17 ESTOPPEL CERTIFICATES. Tenant shall, from time to time, upon the written
request of Landlord, execute, acknowledge and deliver to Landlord or its
designee a written statement stating: (a) the date this Lease was executed and
the date it expires; (b) the date tenant entered into occupancy of the
Premises; (c) the amount of monthly Base Rent and Additional Rent and the date
to which such Base Rent and Additional Rent have been paid; and (d) certifying
that (1) this Lease is in full force and effect and has not been assigned,
modified, supplemented or amended in any way (or specifying the date of the
agreement so affecting this Lease); (2) Landlord is not in breach of this Lease
(or, if so, a description of each such breach) and that no event, omission or
condition has occurred which would result, with the giving of notice or the
passage of time, in a breach of this Lease by Landlord; (3) this Lease
represents the entire agreement between the parties with respect to the
Premises; (4) all required contributions by Landlord to Tenant on account of
Tenant Improvements have been received; (5) on the date of execution, there
exist no defenses or offsets which the Tenant has against the enforcement of
this Lease by the Landlord; (6) no Base Rent, Additional Rent or other sums
payable under this Lease have been paid in advance except for Base Rent and
Additional Rent for the then current month; (7) no security has been deposited
with Landlord (or, if so, the amount of such security); (8) it is intended that
any Tenant's statement may be relied upon by a prospective purchaser or
mortgagee of Landlord's interest or an assignee of any such mortgagee; and (9)
such other information as may be reasonably requested by Landlord. If Tenant
fails to respond within five (5) Business Days of its receipt of a written
request by Landlord as provided in this paragraph, such shall be a breach of
this Lease and Tenant shall be deemed to have admitted the accuracy of any
information supplied by Landlord to a prospective purchaser, mortgagee or
assignee.
4.18 HAZARDOUS SUBSTANCES.
4.18.1 Tenant agrees that neither Tenant, any of Tenant's Agents nor any
other person will store, place, generate, manufacture, refine, handle, or locate
on, in, under or around the Land or Building any Hazardous Substance, except for
storage, handling and use of reasonable quantities and types of cleaning fluids
and office supplies in the Premises in the ordinary course and the prudent
conduct of Tenant's business in the Premises, provided that (a) the storage,
handling and use of such permitted Hazardous Substances must at all times
conform to all Governmental Requirements and to applicable fire, safety and
insurance requirements; (b) the types and quantities of permitted Hazardous
Substances which are stored in the Premises must be reasonable and appropriate
to the nature and size of Tenant's operation in the Premises and reasonable and
appropriate for a first-class building of the same or similar use and in the
same market area as the Building; (c) no Hazardous Substance shall be spilled or
disposed of on, in, under or around the Land or Building or otherwise discharged
from the Premises or any area adjacent to the Land or Building; and (d) in no
event will Tenant be permitted to store, handle or use on, in, under or around
the Premises any Hazardous Substance which will increase the rate of fire or
extended coverage insurance on the Land or Building, unless: (1) such Hazardous
Substance and the expected rate increase have been specifically disclosed in
writing to Landlord; (2) Tenant has agreed in writing to pay any rate increase
related to each such Hazardous Substance; and (3) Landlord has approved in
writing each such Hazardous Substance, which approval shall be subject to
Landlord's discretion.
4.18.2 Tenant shall indemnify, defend and hold harmless Landlord and
Landlord's Agents from and against any and all Claims arising out of any breach
of any provision of this paragraph, which expenses shall also include laboratory
testing fees, personal injury claims, clean-up costs and environmental
consultants' fees. Tenant agrees that Landlord may be irreparably harmed by
Tenant's breach of this paragraph and that a specific performance action may
appropriately be brought by Landlord; provided that. Landlord's election to
bring or not bring any such specific performance action shall in no way limit,
waive, impair or hinder Landlord's other remedies against Tenant.
4.18.3 As of the execution date of this Lease, Tenant represents and
warrants to Landlord that, except as otherwise disclosed by Tenant to Landlord,
Tenant has no intent to bring any Hazardous Substances on, in or under the
Premises except for the type and quantities authorized in the first paragraph of
the paragraph captioned "Hazardous Substances."
4.19 ACCESSLAWS
4.19.1 Landlord represents and warrants to Tenant that, to Landlord's
actual knowledge, as of the Commencement Date, the Building and the Premises are
in compliance with the Access Laws.
4.19.2 Tenant agrees to notify Landlord immediately if Tenant receives
notification or otherwise becomes aware of: (a) any condition or situation on,
in, under or around the Land or Building which may constitute a violation of any
Access Laws or (b) any threatened or actual lien, action or notice that the Land
or Building is not in compliance with any Access Laws. If Tenant is responsible
for such condition, situation, lien, action or notice under this paragraph,
Tenant's notice to Landlord shall include a statement as to the actions Tenant
proposes to take in response to such condition, situation, lien, action or
notice.
4.19.3 Tenant shall not alter or permit any assignee or subtenant or any
other person to alter the Premises in any manner which would violate any Access
Laws or increase Landlord's responsibilities for compliance with Access Laws,
without the prior approval of the Landlord. In connection with any such
approval, Landlord may require a certificate of compliance with Access Laws from
an architect, engineer or other person acceptable to Landlord. Tenant agrees to
pay the reasonable fees incurred by such architect, engineer or other third
party in connection with the issuance of such certificate of compliance.
Landlord's consent to any proposed Tenant Alteration shall (a) not relieve
Tenant of its obligations or indemnities contained in this paragraph or this
Lease or (b) be construed as a warranty that such proposed alteration complies
with any Access Law.
4.19.4 Tenant shall be solely responsible for all costs and expenses
relating to or incurred in connection with: (a) failure of the Premises to
comply with the Access Laws; and (b) bringing the Building and the common areas
of the Building into compliance with Access Laws, if and to the extent such
noncompliance arises out of or relates to: (1) Tenant's use of the Premises,
including the hiring of employees; or (2) any Tenant Alterations to the
Premises.
4.19.5 Landlord shall be responsible for all costs and expenses relating to
or incurred in connection with bringing the common areas of the Building into
compliance with Access Laws, unless such costs and expenses are Tenant's
responsibility as provided in the preceding subparagraph. Any cost or expense
paid or incurred by Landlord to bring the Premises or common areas of the
Building into compliance with Access Laws which is not Tenant's responsibility
under the preceding subparagraphs shall be amortized over the useful economic
life of the improvements (not to exceed ten (10) years) using an amortization
rate of twelve percent (12%) per annum, and shall be an Operating Cost for
purposes of this Lease.
4.19.6 Tenant agrees to indemnify, defend and hold harmless Landlord and
Landlord's Agents from and against any and all Claims arising out of or relating
to any failure of Tenant or Tenant's Agents to comply with Tenant's obligations
under this paragraph.
4.19.7 The provisions of this paragraph shall supersede any other
provisions in this Lease regarding Access Laws, to the extent inconsistent with
the provisions of any other paragraphs.
4.20 QUIET ENIOVMENT. Landlord covenants that Tenant, upon paying Base Rent,
Additional Rent and all other sums payable under this Lease and performing all
covenants and conditions required of Tenant under this Lease shall and may
peacefully have, hold and enjoy the Premises without hindrance or molestation
by Landlord.
4.21 SIGNS. At Tenant's request, Landlord shall provide Tenant with suite
identity and directory signage at Tenant's sole cost and expense. Tenant shall
not have the right to create and install any signs on the Building's exterior.
4.22 SUBORDINATION Tenant subordinates this Lease and all rights of Tenant
under this Lease to any mortgage, deed of trust, ground lease or vendor's lien,
or similar instrument which may from time to time be placed upon the Premises
(and all renewals, modifications, replacements and extensions of such
encumbrances), and each such mortgage, deed of trust, ground lease or lien or
other instrument shall be superior to and prior to this Lease; provided that.
Landlord provides Tenant with a commercially reasonable nondisturbance
agreement on the standard form of the applicable lender or ground lessor.
Notwithstanding the foregoing, the holder or beneficiary of such mortgage, deed
of trust, ground lease, vendor's lien or similar instrument shall have the
right to subordinate or cause to be subordinated any such mortgage, deed of
trust, ground lease, vendor's lien or similar instrument to this Lease. Tenant
further covenants and agrees that if the lender or ground lessor acquires the
Premises as a purchaser at any foreclosure sale or otherwise, Tenant shall
recognize and attorn to such party as landlord under this Lease, and shall make
all payments required hereunderto such new landlord without deduction or
set-off and, upon the request of such purchaser or other successor, execute,
deliver and acknowledge documents confirming such attomment. Tenant waives the
provisions of any law or regulation, now or hereafter in effect, which may give
or purport to give Tenant any right to terminate or otherwise adversely affect
this Lease or the obligations of Tenant hereunder in the event that any such
foreclosure or termination or other proceeding is prosecuted or completed.
4.23 BROKERS. Each party to this Lease shall indemnify, defend and hold
harmless the other party from and against any and all Claims asserted against
such other party by any real estate broker, finder or intermediary relating to
any act of the indemnifying party in connection with this Lease.
4.24 EXCULPATION AND LIMITATION OF LIABILITY. Landlord has executed this Lease
by its authorized signatory signing solely in a representative capacity.
Notwithstanding anything contained in this Lease to the contrary, Tenant
confirms that the covenants of Landlord are made and intended, not as personal
covenants of the authorized signatory, or for the purpose of binding the
authorized signatory personally, but solely in the exercise of the
representative powers conferred upon the authorized signatory by its principal.
Liability with respect to the entry and performance of this Lease by or on
behalf of Landlord, however it may arise, shall be asserted and enforced only
against the Landlord's estate and interest in the Building. Neither Landlord
nor any of Landlord's Agents shall have any personal liability in the event of
any claim against Landlord arising out of or in connection with this Lease, the
relationship of Landlord and Tenant or Tenant's use of the Premises. Further,
in no event whatsoever shall any Landlord's Agent have any liability or
responsibility whatsoever arising out of or in connection with this Lease, the
relationship of Landlord and Tenant or Tenant's use of the Premises. Any and
all personal liability, if any, beyond that which may be asserted under this
paragraph, is expressly waived and released by Tenant and by all persons
claiming by, through or under Tenant.
4.25 MECHANIC'S LIENS AND TENANT'S PERSONAL PROPERTY TAXES.
4.25.1 Tenant shall have no authority, express or implied, to create or
place any lien or encumbrance of any kind or nature whatsoever upon, or in any
manner to bind, the interest of Landlord or Tenant in the Premises or to charge
the rentals payable under this Lease for any Claims in favor of any person
dealing with Tenant, including those who may furnish materials or perform labor
for any construction or repairs. Tenant shall pay or cause to be paid all sums
legally due and payable by it on account of any labor performed or materials
furnished in connection with any work performed on the Premises on which any
lien is or can be validly and legally asserted against its leasehold interest in
the Premises and Tenant shall indemnify, defend and hold harmless Landlord from
any and all Claims arising out of any such asserted Claims. Tenant agrees to
give Landlord immediate written notice of any such Claim.
4.25.2 Tenant shall be liable for all taxes levied or assessed against
personal property, furniture or fixtures placed by Tenant in the Premises. If
any such taxes for which Tenant is liable are levied or assessed against
Landlord or Landlord's property and Landlord elects to pay them or if the
assessed value of Landlord's property is increased by inclusion of such personal
property, furniture or fixtures and Landlord elects to pay the taxes based on
such increase, Tenant shall reimburse Landlord for the sums so paid by Landlord,
upon demand by Landlord.
SECTION 5: DEFAULT AND REMEDIES
5.1 EVENTS OF DEFAULT.
5.1.1 The occurrence of any one or more of the following events shall
constitute a material default and breach of this Lease by Tenant ("Event of
Default"):
(a) failure by Tenant to make any payment of Base Rent, Additional
Rent or any other sum payable by Tenant under this Lease within three (3)
Business Days after its due date;
(b) failure by Tenant to observe or perform any covenant or condition
of this Lease, other than the making of payments, where such failure shall
continue for a period of ten (10) Business Days after written notice from
Landlord;
(c) (1) the making by Tenant of any general assignment or general
arrangement for the benefit of creditors; (2) the filing by or against
Tenant of a petition in bankruptcy, including reorganization or
arrangement, unless, in the case of a petition filed against Tenant, the
same is dismissed within twenty (20) Business Days; (3) the appointment of
a trustee or receiver to take possession of substantially all of Tenant's
assets located in the Premises or of Tenant's interest in this Lease; (4)
any execution, levy, attachment or other process of law against any
property of Tenant or Tenant's interest in this Lease, unless the same is
dismissed within twenty (20) Business Days; (5) adjudication that Tenant is
bankrupt; (6) the making by Tenant of a transfer in fraud of creditors; or
(7) the failure of Tenant to generally pay its debts as they become due; or
(d) any information furnished by or on behalf of Tenant to Landlord in
connection with the entry of this Lease is determined to have been
materially false, misleading or incomplete when made.
5.1.2 Tenant shall notify Landlord promptly of any Event of Default or any
facts, conditions or events which, with the giving of notice or passage of time
or both, would constitute an Event of Default.
5.1.3 If a petition in bankruptcy is filed by or against Tenant, and if
this Lease is treated as an "unexpired lease" under applicable bankruptcy law in
such proceeding, then Tenant agrees that Tenant shall not attempt nor cause any
trustee to attempt to extend the applicable time period within which this Lease
must be assumed or rejected.
5.2 REMEDIES. If any Event of Default occurs, Landlord may at any time after
such occurrence, with or without notice or demand except as stated in this
paragraph, and without limiting Landlord in the exercise of any right or remedy
at law which Landlord may have by reason of such Event of Default, exercise the
rights and remedies, either singularly or in combination, as are specified or
described in the subparagraphs of this paragraph.
5.2.1 Landlord may terminate this Lease and all rights of Tenant under this
Lease either immediately or at some later date by giving Tenant written notice
that this Lease is terminated. If Landlord so terminates this Lease, then
Landlord may recover from Tenant the sum of:
(a) the unpaid Base Rent, Additional Rent and all other sums payable
under this Lease which have been earned at the time of termination;
(b) interest at the Default Rate on the unpaid Base Rent, Additional
Rent and all other sums payable under this Lease which have been earned at
the time of termination; plus
(c) the amount by which the unpaid Base Rent, Additional Rent and all
other sums payable under this Lease which would have been earned after
termination until the time of award exceeds the amount of such rental loss,
if any, as Tenant affirmatively proves could have been reasonably avoided
and interest on such excess at the Default Rate; plus
(d) the amount by which the aggregate of the unpaid Base Rent,
Additional Rent and all other sums payable under this Lease for the balance
of the Lease Term after the time of award exceeds the amount of such rental
loss, if any, as Tenant affirmatively proves could have been reasonably
avoided and interest on such excess at the Default Rate; plus
(e) any other amount necessary to compensate Landlord for the
detriment proximately caused by Tenant's failure to perform Tenant's
obligations under this Lease or which, in the ordinary course of things,
would be likely to result from such failure, including, leasing
commissions, tenant improvement costs, renovation costs and advertising
costs; plus
(f) all such other amounts in addition to or in lieu of the foregoing
as may be permitted from time to time by applicable law.
5.2.2 Landlord shall also have the right with or without terminating this
Lease, to re-enter the Premises and remove all persons and property from the
Premises. Landlord may cause property so removed from the Premises to be stored
in a public warehouse or elsewhere at the expense and for the account of Tenant
5 2.3 If Tenant vacates, abandons or surrenders the Premises without
Landlord's consent, or if Landlord re-enters the Premises as provided in
subparagraph 5.2.2 or takes possession of the Premises pursuant to legal
proceedings or through any notice procedure provided by law, then, if Landlord
does not elect to terminate this Lease, Landlord may, from time to time, without
terminating this Lease, either (a) recover all Base Rent, Additional Rent and
all other sums payable under this Lease as they become due or (b) relet the
Premises or any part of the Premises on behalf of Tenant for such term or terms,
at such rent or rents and pursuant to such other provisions as Landlord, in its
sole discretion, may deem advisable, all with the right, at Tenant's cost, to
make alterations and repairs to the Premises and recover any deficiency from
Tenant as set forth in subparagraph 5.2.5.
5.2.4 None of the following remedial actions, singly or in combination,
shall be construed as an election by Landlord to terminate this Lease unless
Landlord has in fact given Tenant written notice that this Lease is terminated:
an act by Landlord to maintain or preserve the Premises; any efforts by Landlord
to relet the Premises; any repairs or alterations made by Landlord to the
Premises; re-entry, repossession or reletting of the Premises by Landlord
pursuant to this paragraph; or the appointment of a receiver, upon the
initiative of Landlord, to protect Landlord's interest under this Lease. If
Landlord takes any of the foregoing remedial action without terminating this
Lease, Landlord may nevertheless at any time after taking any such remedial
action terminate this Lease by written notice to Tenant.
5.2.5 If Landlord relets the Premises, Landlord shall apply the revenue
from such reletting as follows: first, to the payment of any indebtedness of
Tenant to Landlord other than Base Rent, Additional Rent or any other sums
payable by Tenant under this Lease; second, to the payment of any cost of
reletting (including finders' fees and leasing commissions); third, to the
payment of the cost of any alterations, improvements, maintenance and repairs to
the Premises; and fourth, to the payment of Base Rent, Additional Rent and other
sums due and payable and unpaid under this Lease. Landlord shall hold and apply
the residue, if any, to payment of future Base Rent, Additional Rent and other
sums payable under this Lease as the same become due, and shall deliver the
eventual balance, if any, to Tenant. Should revenue from letting during any
month, after application pursuant to the foregoing provisions, be less than the
sum of the Base Rent, Additional Rent and other sums payable under this Lease
and Landlord's expenditures for the Premises during such month, Tenant shall be
obligated to pay such deficiency to Landlord as and when such deficiency arises.
5.2.6 Pursuit of any of the foregoing remedies shall not preclude pursuit
of any of the other remedies provided in this Lease or by law (all such remedies
being cumulative), nor shall pursuit of any remedy provided in this Lease
constitute a forfeiture or waiver of any Base Rent, Additional Rent or other sum
payable under this Lease or of any damages accruing to Landlord by reason of the
violation of any of the covenants or conditions contained in this Lease.
5.3 RIGHT TO PERFORM If Tenant shall fail to pay any sum of money, other than
Base Rent or Additional Rent, required to be paid by it under this Lease or
shall fail to perform any other act on its part to be performed under this
Lease, and such failure shall continue for ten (10) Business Days after notice
of such failure by Landlord, or such shorter time if reasonable under the
circumstances, Landlord may, but shall not be obligated to, and without waiving
or releasing Tenant from any obligations of Tenant, make such payment or
perform such other act on Tenant's part to be made or performed as provided in
this Lease. Landlord shall have (in addition to any other right or remedy of
Landlord) the same rights and remedies in the event of the nonpayment of sums
due under this paragraph as in the case of default by Tenant in the payment of
Base Rent.
5.4 LANDLORD'S DEFAULT. In the event that Landlord defaults under or breaches
this Lease, Tenant shall notify Landlord of such default or breach in writing,
and Tenant shall not exercise any right or remedy which Tenant may have under
this Lease or at law if Landlord commences to cure such default or breach
within twenty (20) Business Days after receipt of Tenant's notice and
thereafter diligently prosecutes the cure to completion.
SECTION 6: MISCELLANEOUS PROVISIONS
6.1 NOTICES. Any notice, request or written communication required or permitted
to be delivered under this Lease shall be: (a) in writing; (b) transmitted by
personal delivery. express or courier service, United States Postal Service in
the manner described below, or electronic means of transmitting written
material; and (c) deemed to be delivered on the earlier of the date received or
four (4) Business Days after having been deposited in the United States Postal
Service, postage prepaid. Such writings shall be addressed to Landlord or
Tenant, as the case may be, at the respective designated addresses set forth
opposite their signatures, or at such other address(es) as they may, after the
execution date of this Lease, specify by written notice delivered in accordance
with this paragraph, with copies to the persons at the addresses, if any,
designated opposite each party's signature. Those notices which contain a
notice of breach or default or a demand for performance may be sent by any of
the methods described in clause (b) above, but if transmitted by personal
delivery or electronic means, shall also be sent concurrently by certified or
registered mail, return receipt requested.
6.2 ATTORNEY'S FEES AND EXPENSES. In the event either party requires the
services of an attorney in connection with enforcing the terms of this Lease,
or in the event suit is brought for the recovery of Base Rent, Additional Rent
or any other sums payable under this Lease or for the breach of any covenant or
condition of this Lease, or for the restitution of the Premises to Landlord or
the eviction of Tenant during the Lease Term or after the expiration or earlier
termination of this Lease, the substantially prevailing party shall be entitled
to a reasonable sum for attorney's and paralegal's fees, expenses and court
costs, including those relating to any appeal.
6.3 NO ACCORD AND SATISFACTION. No payment by Tenant or receipt by Landlord of
an amount less than the Base Rent or Additional Rent or any other sum due and
payable under this Lease shall be deemed to be other than a payment on account
of the Base Rent, Additional Rent or other such sum, nor shall any endorsement
or statement on any check or any letter accompanying any check or payment be
deemed an accord and satisfaction, nor preclude Landlord's right to recover the
balance of any amount payable or Landlord's right to pursue any other remedy
provided in this Lease or at law.
6.4 SUCCESSORS: JOINT AND SEVERAL LIABILITY. Except as provided in the
paragraph captioned "Exculpation and Limitation of Liability" and subject to
the paragraph captioned "Assignment and Subletting bv Landlord", all of the
covenants and conditions contained in this Lease shall apply to and be binding
upon Landlord and Tenant and their respective heirs, executors, administrators,
successors and assigns. In the event that more than one person, partnership,
company, corporation or other entity is included in the term "Tenant", then
each such person, partnership, company, corporation or other entity shall be
jointly and severally liable for all obligations of Tenant under this Lease.
6.5 CHOICE OF LAW. This Lease shall be construed and governed by the laws of
the state in which the Land is located. Tenant consents to Landlord's choice of
venue for any legal proceeding brought by Landlord or Tenant to enforce the
terms of this Lease.
6.6 NO WAIVER OF REMEDIES. The waiver by Landlord of any covenant or condition
contained in this Lease shall not be deemed to be a waiver of any subsequent
breach of such covenant or condition nor shall any custom or practice which may
develop between the parties in the administration of this Lease be construed to
waive or lessen the rights of Landlord to insist on the strict performance by
Tenant of all of the covenants and conditions of this Lease. No act or thing
done by Landlord or Landlord's Agents during the Lease Term shall be deemed an
acceptance or a surrender of the Premises, and no agreement to accept a
surrender of the Premises shall be valid unless made in writing and signed by
Landlord. The mention in this Lease of any particular remedy shall not preclude
Landlord from any other remedy it might have, either under this Lease or at
law, nor shall the waiver of or redress for any violation of any covenant or
condition in this Lease or in any of the rules or regulations attached to this
Lease or later adopted by Landlord, prevent a subsequent act, which would have
originally constituted a violation, from having all the force and effect of an
original violation. The receipt by Landlord of Base Rent, Additional Rent or
any other sum payable under this Lease with knowledge of a breach of any
covenant or condition in this Lease shall not be deemed a waiver of such
breach. The failure of Landlord to enforce any of the rules and regulations
attached to this Lease or later adopted, against Tenant or any other tenant in
the Building, shall not be deemed a waiver. Any waiver by Landlord must be in
writing and signed by Landlord to be effective.
6.7 OFFER TO LEASE. The submission of this Lease to Tenant or its broker or
other agent does not constitute an offer to Tenant to lease the Premises. This
Lease shall have no force or effect until: (a) it is executed and delivered by
Tenant to Landlord; and (b) it is executed and delivered by Landlord to Tenant.
6.8 FORCE MAIEURE. In the event that Landlord or Tenant shall be delayed,
hindered in or prevented from the performance of any act or obligation required
under this contract by reason or acts of God. strikes, lockouts, labor troubles
or disputes, inability to procure or shortage of materials or labor, failure of
power or utilities, delay in transportation, fire, vandalism, accident, flood,
severe weather, other casualty, Governmental requirements (including mandated
changes in the Plans and Specifications or the Tenant improvements resulting
from changes in pertinent Governmental Requirements or interpretations
thereof), riot, insurrection, civil commotion, sabotage, explosion, war,
natural or local emergency, acts or omissions of others, including the other
party, or other reasons of a similar or dissimilar nature not solely the fault
of, or under the exclusive control of, Landlord or Tenant, as applicable, then
performance of such act or obligation shall be excused for the period of the
delay and the period for the performance of any such act or obligation shall be
extended for the period equivalent to the period of such delay.
6.9 SEVERABILITV: CAPTIONS. If any clause or provision of this Lease is
determined to be illegal, invalid, or unenforceable under present or future
laws, the remainder of this Lease shall not be affected by such determination,
and in lieu of each clause or provision that is determined to be illegal,
invalid or unenforceable, there be added as a part of this Lease a clause or
provision as similar in terms to such illegal, invalid or unenforceable clause
or provision as may be possible and be legal, valid and enforceable. Headings
or captions in this Lease are added as a matter of convenience only and in no
way define, limit or otherwise affect the construction or interpretation of
this Lease.
6.10 INTERPRETATION. Whenever a provision of this Lease uses the term (a)
"include" or "including", that term shall not be limiting but shall be
construed as illustrative, (b) "covenant", that term shall include any
covenant, agreement, term or provision, (c) "at law", that term shall mean at
law or in equity, or both, and (d) "day", that uncapitalized word shall mean a
calendar day. This Lease shall be given a fair and reasonable interpretation of
the words contained in it without any weight being given to whether a provision
was drafted by one party or its counsel.
6.11 INCORPORATION OF PRIOR AGREEMENT: AMENDMENTS. This Lease contains all of
the agreements of the parties to this Lease with respect to any matter covered
or mentioned in this Lease, and no prior agreement or understanding pertaining
to any such matter shall be effective for any purpose. No provision of this
Lease may be amended or added to except by an agreement in writing signed by
the parties to this Lease or their respective successors in interest.
6.12 AUTHORITY. If Tenant is a partnership, company, corporation or other
entity, each individual executing this Lease on behalf of Tenant represents and
warrants to Landlord that he or she is duly authorized to so execute and
deliver this Lease and that all partnership, company, corporation or other
entity actions and consents required for execution of this Lease have been
given, granted or obtained. If Tenant is a partnership, company, corporation or
other business organization, it shall, within ten (10) Business Days after
demand by Landlord, deliver to Landlord satisfactory evidence of the due
authorization of this Lease and the authority of the person executing this
Lease on its behalf.
6.13 TIME OF ESSENCE. Time is of the essence with respect to the performance of
every covenant and condition of this Lease.
6.14 SURVIVAL OF OBLIGATIONS. Notwithstanding anything contained in this Lease
to the contrary or the expiration or earlier termination of this Lease, any and
all obligations of either party accruing prior to the expiration or termination
of this Lease shall survive the expiration or earlier termination of this
Lease, and either party shall promptly perform all such obligations whether or
not this Lease has expired or terminated. Such obligations shall include any
and all indemnity obligations set forth in this Lease.
6.15 LANDLORD'S AUTHORIZED AGENTS. Notwithstanding anything contained in the
Lease to the contrary, including without limitation, the definition of
Landlord's Agents, Xxxxx Bank N A (the trustee of Landlord) and Xxxxxxx
Associates Real Estate Counsel, Inc. (the authorized signatory of Landlord) are
the only entities authorized to amend, renew or terminate this Lease, or to
compromise any of Landlord's claims under this Lease or to bind Landlord in any
manner with respect to this Lease. Without limiting the effect of the previous
sentence, no property manager or broker shall be considered an authorized agent
of Landlord to amend, renew or terminate this Lease or to compromise any of
Landlord's claims under this Lease or to bind Landlord in any manner.
6.16 WAIVER OF JURY TRIAL. Landlord and Tenant agree to waive trial by jury in
any action, proceeding or counterclaim brought by either against the other on
any matter arising out of or relating in any way to this Lease.
IN WITNESS WHEREOF, this Lease has been executed the day and year first
above set forth.
Designated Address for Landlord: LANDLORD:
------------------------------- ---------
c/x Xxxxxxx Associates Real Estate MULTI-EMPLOYER PROPERTY TRUST, a trust
Counsel, Inc. organized under 12 C.F.R. Section 9.18
Attn: Senior Vice President - Asset
Management
0000 Xxxxxx Xxxxxx, Xxxxx 0000 By: Xxxxxxx Associates Real Estate
Xxxxxxx, XX 00000 Counsel, Inc., Authorized Signatory
Facsimile: 000-000-0000 /s/ Xxxxx X. Xxxxxxxx
---------------------
and to: Xxxxx X. Xxxxxxxx, Vice President
------
Multi-Employer Property Trust
c/x Xxxxx Bank N.A.
Attn: Senior Vice President/MEPT
or Xxxxxxx X. Xxxxxxxx
000-00xx Xxxxxx XX, 0xx Xxxxx
Xxxxxxxxxx, X.X. 00000-0000
Facsimile: 000-000-0000
with a copy to Manager at:
-------------------------
Xxxxxxxx Xxxx Company
Attn: Property Manager
0000 X. Xxxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
Telephone: 000-000-0000
Facsimile: 602-285-3141
Designated Address for Tenant: TENANT:
----------------------------- ------
DynaSig Corporation DYNASIG CORPORATION, an Arizona corporation
00000 X. 00xx Xx., Xxxxx 000 /s/ Xxxxxxx Xxx
Xxxxxxx, XX 00000 ---------------
Facsimile: 000-000-0000 Xxxxxxx Xxx, President
LANDLORD ACKNOWLEDGEMENT
STATE OF WASHINGTON )
)ss.
COUNTY OF KING )
On this 19thday of January, 2005, before me personally appeared Xxxxx
Xxxxxxxx to me known to be a Vice President of Xxxxxxx Associates Real Estate
Counsel, Inc., the Authorized Signatory for the Multi-Employer Property Trust,
the trust that executed the within and foregoing instrument, and acknowledged
said instrument to be the free and voluntary act and deed of said Trust for the
uses and purposes therein mentioned, and on oath stated that hewas authorized to
execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
/s/ Xxxxxxx X. Xxxx
-------------------
Name: Xxxxxxx X. Xxxx
NOTARY PUBLIC in and for the State of Washington,
residing at Bellevue, WA. My appointment
expires: July 10, 2008.
[NOTARIAL SEAL]
TENANT ACKNOWLEDGEMENT
STATE OF )
)SS.
COUNTY OF )
On this 17th day of January, 2005, before me, a Notary Public in and for
the State of Arizona personally appeared Xxxxxxx Xxx, the President of DynaSig
Corporation, the Arizona corporation that executed the within and foregoing
instrument, and acknowledged said instrument to be the free and voluntary act
and deed of said corporation for the uses and purposes therein mentioned, and on
oath stated that s/he/they was/were authorized to execute said instrument.
WITNESS my hand and official seal hereto affixed the day and year first as
above written.
/s/Xxxxxxx X. Xxxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxxx
NOTARY PUBLIC in and for the State of Arizona,
residing at Maricopa County. My appointment
expires: March 12, 2008.
EXHIBIT A TO LEASE
LEGAL DESCRIPTION OF LAND
-------------------------
PARCEL NO. 1:
-------------
Lots 5 to 10 inclusive, of AGAVE CENTER, according to the plat of record in the
office of the County Recorder of Maricopa County, Arizona, recorded in Book 498
of Maps, Page 9.
PARCEL NO. 2:
-------------
A non-exclusive easement for vehicular and pedestrian ingress, egress and access
over the Easterly 30 feet of Lot 11, of AGAVE CENTER, according to the plat of
record in the office of the County Recorder of Maricopa County, Arizona,
recorded in Book 498 of Maps, Page 9, as more fully described in Reciprocal
Easement Agreement dated April 2,1999, recorded April 2,1999 as Instrument No.
00-0000000, of Official Records and re-recorded April 13, 1999 as Instrument No.
00-0000000, of Official Records for the use and benefit of Lot 10.
PARCEL NO. 3:
-------------
An easement for public utilities, drainage and sewer as dedicated on the plat of
AGAVE CENTER, according to the plat of record in the office of the County
Recorder of Maricopa County, Arizona, recorded in Book 498 of Maps, Page 9 and
as set forth in Article 6.5 of the Declaration of Covenants, Conditions and
Restrictions recorded April 2, 1999 as Instrument No. 00-0000000, of Official
Records and re-recorded April 13, 1999 as Instrument No. 00-0000000, of Official
Records.
PARCEL NO. 4:
-------------
A perpetual, non-exclusive easement for the discharge and drainage of all storm
water, surface water and other naturally occurring water flow from Lots 5
through 10, of AGAVE CENTER, according to the plat of record recorded on April
2, 1999 in Book 498 of Maps, Page 9, Official Records of Maricopa County,
Arizona, on, under and over Lot 13, of AGAVE CENTER, according to the plat of
record recorded April 2, 1999 in Book 498 of Maps, Page 9, Official Records of
Maricopa County, Arizona, as more fully described in the Special Warranty Deed
and Reservation of Easement recorded of even date herewith.
TOGETHER WITH and subject to those rights, mutually beneficial covenants,
conditions, restrictions, standards, limitations, prohibitions, easements,
charges and liens as created by and set forth in the Declaration of Covenants,
Conditions and Restrictions recorded April 2,1999 as Instrument No. 00-0000000,
of Official Records and re-recorded April 13, 1999 as Instrument No. 99-0348349,
of Official Records of Maricopa County, Arizona.
EXHIBITS TO LEASE
DRAWING SHOWING LOCATION OF THE PREMISES
----------------------------------------
[GRAPHIC OMITED]
AGAVE CORPORATE CENTER
CENT I
0000 X. XXXXXXXXX
XXXXX, XXXXXXX
VICINITY MAP
K&L
ARCHITECTS & INTERIORS, LLC
0000 X. XXXXXXX XXX. XXXXXXX, XX. 00000
PH: 602-252-52O2
FAX: 000-000-0000
Xxxxxxxx Xxxx Company
0000 X. XXXXXXXXX XX, XXXXX 000
XXXXXXX, XXXXXXX 00X00-0000
000-000-0000
000-000-0000 FAX.
EXHIBIT C TO LEASE
FORM OF MEMORANDUM OF COMMENCEMENT DATE
---------------------------------------
THE MULTI-EMPLOYER PROPERTY TRUST, A TRUST ORGANIZED UNDER 12 C.F.R.
SECTION 9.18, AS LANDLORD, AND DYNASIG CORPORATION, AN ARIZONA CORPORATION, AS
TENANT, EXECUTED THAT CERTAIN LEASE DATED AS OF ______________________ 2005 (THE
"LEASE").
THE LEASE CONTEMPLATES THAT UPON SATISFACTION OF CERTAIN CONDITIONS
LANDLORD AND TENANT WILL AGREE AND STIPULATE AS TO CERTAIN PROVISIONS OF THE
LEASE. ALL SUCH CONDITIONS PRECEDENT TO THAT STIPULATION HAVE BEEN SATISFIED.
LANDLORD AND TENANT AGREE AS FOLLOWS:
1. THE COMMENCEMENT DATE OF THE LEASE IS ___ .
2. THE TERMINATION DATE OF THE LEASE IS ___.
3. THE PREMISES CONSIST OF ___RENTABLE SQUARE FEET.
4. BASE RENT IS AS FOLLOWS:
---______________ THROUGH________________; $__________PER MONTH
---______________ THROUGH________________; $__________PER MONTH
---______________ THROUGH________________; $__________PER MONTH
5. TENANT'S PRO RATA SHARE IS_________ PERCENT (______%)
6. THE LEASE IS IN FULL FORCE AND EFFECT AS OF THE DATE HEREOF, LANDLORD
HAS FULFILLED ALL OF ITS OBLIGATIONS UNDER THE LEASE REQUIRED TO BE
FULFILLED BY LANDLORD ON OR PRIOR TO SUCH DATE, AND TENANT HAS NO RIGHT OF
SET-OFF AGAINST ANY RENTALS.
IN WITNESS WHEREOF, THE PARTIES HAVE CAUSED THIS MEMORANDUM TO BE DULY
EXECUTED AS OF _________ 2005.
LANDLORD: TENANT:
-------- ------
MULTI-EMPLOYER PROPERTY TRUST, DynaSig Corporation, an Arizona
A TRUST ORGANIZED UNDER 12 C.F.R. corporation
SECTION 9.18
BY: XXXXXXX ASSOCIATES REAL ESTATE /s/Xxxxxxx Xxx
COUNSEL, INC., THE AUTHORIZED Xxxxxxx Xxx, President
SIGNATORY
EX. C
1
EXHIBIT C-1 to Lease
--------------------
TENANT IMPROVEMENT BUILDING STANDARDS
-------------------------------------
AGAVE CORPORATE CENTER (AGAVE II - TENANT IMPROVEMENT STANDARDS 8/21/00
-----------------------------------------------------------------------
DEMISING PARTITION - BOTTOM OF DECK ABOVE +/-14'-0"
---------------------------------------------------
STUD: 3-5/8" METAL STUD, 22 GA., @ 24" O.C.
DRYWALL: 5/8" GYP. BD. EACH SIDE
INSULATION: R-11 BATT INSULATION IN WALL
FINISH: TAPED, BEDDED AND LIGHT KNOCK DOWN
CORRIDOR PARTITION - BOTTOM OF DECK ABOVE +/-14'-0" F OR TUNNEL ON2NDFLOOR)
---------------------------------------------------------------------------
STUD: 3-5/8" METAL STUD, 22 GA., @ 24" O.C.
DRYWALL: 5/8" TYPE "X" BOTH SIDES
INSULATION: X-X 1 XXXX INSULATION
FINISH: TAPED, BEDDED AND FINISHED SMOOTH
BASE: CORRIDOR SIDE 4" CARPET BASE - TO MATCH CORRIDOR CARPET
TENANT PARTITION - BOTTOM OF CEILING 9'-0"
------------------------------------------
STUD: 2-1/2" METAL STUD, 25 GA.,@ 24" O.C.
DRYWALL: 5/8" GYP. BD. EACH SIDE
INSULATION: NONE
FINISH: TAPED, BEDDED AND FINISHED SMOOTH
SUITE ENTRANCE DOOR:
--------------------
SIZE: WOOD: FINISH: HARDWARE:
HINGE: DOORSTOP: DOOR SILENCERS: CLOSER: KEYING:
3'-0"X 8'-0 "XL-3/4" THICK FULL HEIGHT SINGLE SLAB DOOR - 20 MIN. RATED
FLUSH MAPLE VENEER
CLEAR SATIN
BEST '9K' SERIES, # 626 SATIN CHROMIUM PLATED, #14 LEVER,
93K7( )14KS3-78-626
FOUR (4) 4-1/2" BALL BEARING HINGES PER DOOR; FINISH TO MATCH
HARDWARE DOOR STOPS BY TRIMCO 1210; FINISH TO MATCH HARDWARE; WALL
MOUNTED OR FLOOR MOUNTED DEPENDING UPON APPLICATION.
GREY RUBBER TYPE BY QUALITY; INSTALL LATCH SIDE OF DOOR; FOUR
(4) PER DOOR WITH SMOKE SEAL NORTON 8300 SERIES OR YALE 3300 SERIES; FINISH
SIMILAR TO OTHER HARDWARE FINISH KEY PER MASTER KEY OF BUILDING AND SUPPLY TEN
(10) SPECIFIC KEYS
SUITE ENTRANCE DOOR FRAME:
--------------------------
FRAME MATERIAL: WESTERN INTEGRATED MATERIALS - 20-MIN RATED
FRAME FINISH: CLEAR SATIN
SUITE ENTRANCE SIDELITE:
------------------------
SIZE: 18"XDOORHT.
FRAME MATERIAL: WESTERN INTEGRATED MATERIALS -20-MIN RATED
FRAME FINISH: CLEAR SATIN
GLAZING: 1/4" CLEAR TEMPERED W/SPRINKLER WASH EA. SIDE
INTERIOR DOORS:
---------------
SIZE: WOOD: FINISH: HARDWARE:
HINGE: DOORSTOP: DOOR SILENCERS:
INTERIOR DOOR FRAME:
--------------------
FRAME MATERIAL: FRAME-FINISH:
3'-0" X 8'-0" X 1-3/4" THICK FULL HEIGHT SINGLE SLAB DOOR
SOLID CORE FLUSH MAPLE VENEER
CLEAR SATIN
BEST '9K* SERIES, # 626 SATIN CHROMIUM PLATED, #14 LEVER,
93K7( )14KS3-78-626
FOUR (4) 4-1/2" BALL BEARING HINGES PER DOOR; FINISH TO MATCH
HARDWARE
DOOR STOPS BY TRIMCO 1210; FINISH TO MATCH HARDWARE; WALL
MOUNTED OR FLOOR MOUNTED DEPENDING UPON APPLICATION
GREY RUBBER TYPE BY QUALITY; INSTALL LATCH SIDE OF DOOR UNIT
WESTERN INTEGRATED MATERIALS CLEAR SATIN
INTERIOR DOOR SIDELITE:
----------------------
SIZE:
FRAME MATERIAL: FRAME FINISH: GLAZING:
18"WXDOORHT.
WESTERN INTEGRATED MATERIALS
CLEAR SATIN
1/4" CLEAR TEMPERED
MANUFACTURER: MATERIALS:
CUSTOM / EURO STYLE 1.
1. PLASTIC LAMINATE (FORMICA STANDARD COLORS) ON EXPOSED
SURFACES
2. WHITE MELAMINE INTERIOR
HARDWARE:
DOORS: HANDLES:
CONCEALED EURO STYLE WIRE PULLS, SATIN CHROME
SIZE:
BASE CABINETS: 24" DEEP, 36" HIGH
UPPER CABINETS: 12" DEEP, 30" HIGH
CONFIGURATION: 1. KITCHEN BASE CABS W/ DOORS AND ONE (1) ROW OF DRAWERS AT
TOP;
ONE (1) ADJUSTABLE SHELF
2. ALL OTHER BASE CABS W/ DOORS ONLY; ONE (1) ADJUSTABLE SHELF
3. UPPER DOORS WITH TWO (2) ADJUSTABLE SHELVES
4.12 X 12 STAINLESS STEEL SINK, SELF RIMMING - GOOSENECK FAUCET, FLIP HANDLES,
INSTA-HOT UNDER SINK 277V
VINYL COMPOSITE TILE:
---------------------
MANUFACTURER: XXXXXXXXX
STYLE: STANDARD 12" X 12" X 1/8", IMPERIAL TEXTURE, STANDARD EXCELON
COLOR: SELECTED BY TENANT
CARPET:
-------
TYPE: STYLE: COLOR: ALLOWANCE:
BASE:
-----
MANUFACTURER: XXXXX
STYLE:
COLOR:
PAINT:
------
MANUFACTURER:
FINISH:
COLOR:
COVERAGE:
STOCK:
DIRECT GLUE DOWN 30 OZ CUT PILE OR 26 OZ LOOP AS SELECTED BY TENANT AS SELECTED
BY TENANT S13/SY INSTALLED
4" COVED
AS SELECTED BY TENANT
XXXX XXXXXXX
EGGSHELL FINISH
AS SELECTED BY TENANT
ONE (1) BASE COAT AND ONE (1) FINISH COAT, MINIMUM
ONE (1) GAL. OF EACH COLOR CLEARLY MARKED FOR TENANT
WINDOW TREATMENT:
-----------------
STYLE: COLOR: LOCATION:
CEILINGS:
---------
MANUFACTURER:
HEIGHT:
GRID COMPONENTS:
ACOUSTICAL TILE:
COLOR:
HVAC:
-----
GENERAL:
DIFFUSERS: CONTROLS:
1" MINI BLINDS
MATT BRUSHED ALUMINUM
ALL PERIMETER GLASS
USG
9'-0"
XXXXXXX00/16", LASER LEVELED, EXPOSED TEE
24"X24"X5/8 , OLYMPIA MICRO, ANGLED TEGULAR
WHITE (WH)
AIR DISTRIBUTION, BASIC T-STAT INSTALLATION, SECONDARY AND FLEX
DUCT PROVIDED WITH TENANT IMPROVEMENT
SUPPLY AIR: XXXXX TMSA 24X24 WHITE
RETURN AIR: XXXXX PAR 24X24 WHITE W/SOUND BOOT
EMS/AFTER HOUR CONTROL OPTIONAL AT TENANTS EXPENSE
LIGHT FIXTURES:
---------------
MANUFACTURER:
MODEL:
SIZE:
LENS TYPE:
NUMBER OF LAMPS:
COLUMBIA
P4D24-332G-MA3653EBB277-F0735-C388
2X4
18 CELL PARABOLIC 3" DEEP
THREE (3)
LAMP TYPE: 4' ,T8,32 WATT
VOLTAGE: 277 VOLT
BALLAST: ELECTRONIC
ALLOWANCE: 1/80 SF
MANUFACTURER: PRESCOLITE
MODEL: CFRBIBUEB-ST492A
SIZE: 8" RECESSED CAN LIGHT
LENS TYPE: WHITE BAFFLE W/ UPPER REFLECTOR
NUMBER OF LAMPS: TWO (2)
LAMP TYPE: 18WPL
VOLTAGE: 120/277 VOLT
ALLOWANCE: 2/1000 SF OF TENANT SPACE
TELEPHONE/DATA SYSTEM:
----------------------
MOUNTING BOARD: 4'-0" X 4'-0" PAINTED PLYWOOD MOUNTING BOARD IN TENANT
DEMISED
SPACE, WITH 3/4" CONDUIT TO BUILDING TELEPHONE ROOM; PLASTER
RING WITH PULL STRING FROM WALL TO PLENUM
CABLING: ALL CABLING BY TENANT; CABLING MUST BE PLENUM RATED AND
INSTALLATION APPROVED BY LANDLORD
OUTLETS: BLDG. STD. ROUGH-IN BOX W/MUDRING AND PULLSTRING MOUNTED AT
18"AFF. ALLOWANCE 1/150 SF.
ELECTRICAL;
-----------
LIGHT SWITCHES:
MANUF/MODEL: XXXXXXX CRS AMP 20
TYPE: TOGGEL
COLOR: WHITE
D
UPLEX ELECTRICAL OUTLET;
-------------------------
MANUF/MODEL: XXXXXXX XX AMP 20
COLOR: WHITE
HEIGHT: 15" A.F.F. TO CENTER OF BOX
ALLOWANCE: 1/75 SF
SPRINKLER HEADS;
----------------
SPRINKLER SYSTEM: MODIFY SYSTEM AS REQUIRED BY CODE
MOUNTING: CENTER OF TILE UNLESS NOTED OTHERWISE
TYPE OF HEAD: GEM UNI A BRZ SSU
SPECIALTY HEADS: AVAILABLE AT TENANTS EXPENSE
PIPING: SCHEDULE 40, BLACK IRON NFPA 13
EXIT SIGN; PROVIDED AS REQUIRED BY CODE
----------
MANUFACTURER: PRESCOLITE
MODEL: EDC-1R-EN-B/BA, W/BATTERY BACKUP
VOLTAGE: 277
EMERGENCY LIGHTING; PROVIDED AS REQUIRED BY CODE
-------------------
MANUFACTURER: COLUMBIA
MODEL: P4D24-332G-MA3653EB8277-P0735-C388-B5C
VOLTAGE: 277 V
EMERGENCY BALLAST AND BATTERY PACK TO BE PROVIDED FOR EMERGENCY LIGHTING OF
ONE BULB PER FIXTURE AS REQUIRED BY CODE.
SIGNAGE; PROVIDE ONE EA. BUILDING STANDARD TENANT IDENTIFICATION/SUITE
--------
NUMBER SIGN AND DIRECTORY STRIP
EXHIBIT D TO LEASE
RULES AND REGULATIONS
---------------------
1. NO SIGN, PLACARD, PICTURE, ADVERTISEMENT, NAME OR NOTICE SHALL BE
INSTALLED OR DISPLAYED ON ANY PART OF THE OUTSIDE OR INSIDE OF THE BUILDING OR
LAND WITHOUT THE PRIOR WRITTEN CONSENT OF THE LANDLORD. LANDLORD SHALL HAVE THE
RIGHT TO REMOVE, AT TENANT'S EXPENSE AND WITHOUT NOTICE, ANY SIGN INSTALLED OR
DISPLAYED IN VIOLATION OF THIS RULE. AIL APPROVED SIGNS OR LETTERING ON DOORS
AND WALLS SHALL BE PRINTED, PAINTED, AFFIXED OR INSCRIBED AT THE EXPENSE OF
TENANT BY A PERSON CHOSEN BY LANDLORD.
2. IF LANDLORD OBJECTS IN WRITING TO ANY CURTAINS, BLINDS, SHADES, SCREENS
OR HANGING PLANTS OR OTHER SIMILAR OBJECTS ATTACHED TO OR USED IN CONNECTION
WITH ANY WINDOW OR DOOR OF THE PREMISES, TENANT SHALL IMMEDIATELY DISCONTINUE
SUCH USE. NO AWNING SHALL BE PERMITTED ON ANY PART OF THE PREMISES. TENANT SHALL
NOT PLACE ANYTHING AGAINST OR NEAR GLASS PARTITIONS OR DOORS OR WINDOWS WHICH
MAY APPEAR UNSIGHTLY FROM OUTSIDE THE PREMISES.
3. TENANT SHALL NOT OBSTRUCT ANY SIDEWALK, HALLS, PASSAGES, EXITS,
ENTRANCES, ELEVATORS, ESCALATORS, OR STAIRWAYS OF THE BUILDING. THE HALLS,
PASSAGES, EXITS, ENTRANCES, ELEVATORS, ESCALATORS AND STAIRWAYS ARE NOT OPEN TO
THE GENERAL PUBLIC. LANDLORD SHALL IN ALL CASES RETAIN THE RIGHT TO CONTROL AND
PREVENT ACCESS TO SUCH AREAS OF ALL PERSONS WHOSE PRESENCE IN THE JUDGMENT OF
LANDLORD WOULD BE PREJUDICIAL TO THE SAFETY, CHARACTER, REPUTATION AND INTEREST
OF THE LAND, BUILDING AND THE BUILDING'S TENANTS; PROVIDED THAT, NOTHING IN THIS
LEASE CONTAINED SHALL BE CONSTRUED TO PREVENT SUCH ACCESS TO PERSONS WITH WHOM
ANY TENANT NORMALLY DEALS IN THE ORDINARY COURSE OF ITS BUSINESS, UNLESS SUCH
PERSONS ARE ENGAGED IN ILLEGAL ACTIVITIES. TENANT SHALL NOT GO UPON THE ROOF OF
THE BUILDING.
4. THE DIRECTORY OF THE BUILDING WILL BE PROVIDED EXCLUSIVELY FOR THE
DISPLAY OF THE NAME AND LOCATION OF TENANTS ONLY, AND LANDLORD RESERVES THE
RIGHT TO EXCLUDE ANY OTHER NAMES THEREFROM.
5. INTENTIONALLY DELETED.
6. INTENTIONALLY DELETED.
7. INTENTIONALLY DELETED.
8. IF TENANT REQUIRES TELECOMMUNICATION SERVICES, COMPUTER CIRCUITS,
BURGLAR ALARM OR SIMILAR SERVICES, IT SHALL FIRST OBTAIN, AND COMPLY WITH,
LANDLORD'S INSTRUCTIONS FOR THEIR INSTALLATION, AND SHALL PAY THE ENTIRE COST OF
SUCH INSTALLATION^).
9. TENANT SHALL NOT PLACE A LOAD UPON ANY FLOOR OF THE PREMISES WHICH
EXCEEDS THE LOAD PER SQUARE FOOT WHICH SUCH FLOOR WAS DESIGNED TO CARRY AND
WHICH IS ALLOWED BY GOVERNMENTAL REQUIREMENTS. LANDLORD SHALL HAVE THE RIGHT TO
PRESCRIBE THE WEIGHT, SIZE AND POSITION OF ALL EQUIPMENT, MATERIALS, FURNITURE
OR OTHER PROPERTY BROUGHT INTO THE BUILDING. HEAVY OBJECTS SHALL, IF CONSIDERED
NECESSARY BY LANDLORD, STAND ON SUCH PLATFORMS AS DETERMINED BY LANDLORD TO BE
NECESSARY TO PROPERLY DISTRIBUTE THE WEIGHT. BUSINESS MACHINES AND MECHANICAL
EQUIPMENT BELONGING TO TENANT, WHICH CAUSE NOISE OR VIBRATION THAT MAY BE
TRANSMITTED TO THE STRUCTURE OF THE BUILDING OR TO ANY SPACE IN THE BUILDING OR
TO ANY OTHER TENANT IN THE BUILDING, SHALL BE PLACED AND MAINTAINED BY TENANT,
AT TENANT'S EXPENSE, ON VIBRATION ELIMINATORS OR OTHER DEVICES SUFFICIENT TO
ELIMINATE NOISE OR VIBRATION. THE PERSONS EMPLOYED TO MOVE SUCH EQUIPMENT IN OR
OUT OF THE BUILDING MUST BE ACCEPTABLE TO LANDLORD. LANDLORD WILL NOT BE
RESPONSIBLE FOR LOSS OF, OR DAMAGE TO, ANY SUCH EQUIPMENT OR OTHER PROPERTY FROM
ANY CAUSE, AND ALL DAMAGE DONE TO THE BUILDING BY MAINTAINING OR MOVING SUCH
EQUIPMENT OR OTHER PROPERTY SHALL BE REPAIRED AT THE EXPENSE OF TENANT.
10. TENANT SHALL NOT USE OR KEEP IN THE PREMISES ANY KEROSENE, GASOLINE OR
INFLAMMABLE OR COMBUSTIBLE FLUID OR MATERIAL OTHER THAN THOSE LIMITED QUANTITIES
PERMITTED BY THE LEASE. TENANT SHALL NOT USE OR PERMIT TO BE USED IN THE
PREMISES ANY FOUL OR NOXIOUS GAS OR SUBSTANCE, OR PERMIT OR ALLOW THE PREMISES
TO BE OCCUPIED OR USED IN A MANNER OFFENSIVE OR OBJECTIONABLE TO LANDLORD OR
OTHER OCCUPANTS OF THE BUILDING BY REASON OF NOISE, ODORS OR VIBRATIONS NOR
SHALL TENANT BRING INTO OR KEEP IN OR ABOUT THE PREMISES ANY BIRDS OR ANIMALS.
11. TENANT SHALL NOT USE ANY METHOD OF HEATING, VENTILATING, OR
AIR-CONDITIONING OTHER THAN THAT SUPPLIED BY LANDLORD.
12. TENANT SHALL NOT WASTE ANY UTILITY PROVIDED BY LANDLORD AND AGREES TO
COOPERATE FULLY WITH LANDLORD TO ASSURE THE MOST EFFECTIVE OPERATION OF THE
BUILDING'S HEATING AND AIR-CONDITIONING AND TO COMPLY WITH ANY GOVERNMENTAL
ENERGY-SAVING RULES, LAWS OR REGULATIONS OF WHICH TENANT HAS ACTUAL NOTICE.
13. LANDLORD RESERVES THE RIGHT, EXERCISABLE WITHOUT NOTICE AND WITHOUT
LIABILITY TO TENANT, TO CHANGE THE NAME AND STREET ADDRESS OF THE BUILDING.
14. LANDLORD RESERVES THE RIGHT TO EXCLUDE FROM THE BUILDING BETWEEN THE
HOURS OF 6 P.M. AND 7 A.M. THE FOLLOWING DAY, OR SUCH OTHER HOURS AS MAY BE
ESTABLISHED FROM TIME TO TIME BY LANDLORD, AND ON SUNDAYS AND LEGAL HOLIDAYS,
ANY PERSON UNLESS THAT PERSON IS KNOWN TO THE PERSON OR EMPLOYEE IN CHARGE OF
THE BUILDING AND HAS A PASS OR IS PROPERTY IDENTIFIED. TENANT SHALL BE
RESPONSIBLE FOR ALL PERSONS FOR WHOM IT REQUESTS PASSES AND SHALL BE LIABLE TO
LANDLORD FOR ALL ACTS OF SUCH PERSONS. LANDLORD SHALL NOT BE LIABLE FOR DAMAGES
FOR ANY ERROR WITH REGARD TO THE ADMISSION TO OR EXCLUSION FROM THE BUILDING OF
ANY PERSON. LANDLORD RESERVES THE RIGHT TO PREVENT ACCESS TO THE BUILDING IN
CASE OF INVASION, MOB, RIOT, PUBLIC EXCITEMENT OR OTHER COMMOTION BY CLOSING THE
DOORS OR BY OTHER APPROPRIATE ACTION.
15. TENANT SHALL CLOSE AND LOCK THE DOORS OF ITS PREMISES AND ENTIRELY SHUT
OFF ALL WATER FAUCETS OR OTHER WATER APPARATUS, AND ELECTRICITY, GAS OR AIR
OUTLETS BEFORE TENANT AND ITS EMPLOYEES LEAVE THE PREMISES. TENANT SHALL BE
RESPONSIBLE FOR ANY DAMAGE OR INJURIES SUSTAINED BY OTHER TENANTS OR OCCUPANTS
OF THE BUILDING OR BY LANDLORD FOR NONCOMPLIANCE WITH THIS RULE.
16. TENANT SHALL NOT OBTAIN FOR USE ON THE PREMISES ICE, DRINKING WATER,
FOOD, BEVERAGE, TOWEL OR OTHER SIMILAR SERVICES, EXCEPT AT SUCH HOURS AND UNDER
SUCH REGULATIONS AS MAY BE FIXED BY LANDLORD.
17. THE TOILET ROOMS, TOILETS, URINALS, WASH BOWLS AND OTHER APPARATUS
SHALL NOT BE USED FOR ANY PURPOSE OTHER THAN THAT FOR WHICH THEY WERE
CONSTRUCTED AND NO FOREIGN SUBSTANCE OF ANY KIND WHATSOEVER SHALL BE DEPOSITED
IN THEM. THE EXPENSES OF ANY BREAKAGE, STOPPAGE OR DAMAGE RESULTING FROM THE
VIOLATION OF THIS RULE SHALL BE BORNE BY TENANT IF IT OR ITS EMPLOYEES OR
INVITEES SHALL HAVE CAUSED IT.
18. TENANT MAY SELL, OR PERMIT THE SALE AT RETAIL, OF NEWSPAPERS,
MAGAZINES, PERIODICALS, THEATER TICKETS OR OTHER GOODS OR MERCHANDISE TO THE
STUDENTS, EMPLOYEES, AND/OR TENANT'S VISITORS IN THE STUDENT STORE ONLY. TENANT
SHALL NOT MAKE ANY ROOM-TO-ROOM SOLICITATION OF BUSINESS FROM OTHER TENANTS IN
THE BUILDING. TENANT SHALL NOT USE THE PREMISES FOR ANY BUSINESS OR ACTIVITY
OTHER THAN THAT SPECIFICALLY PROVIDED FOR IN THE LEASE.
19. TENANT SHALL NOT INSTALL ANY RADIO OR TELEVISION ANTENNA, LOUDSPEAKER
OR OTHER DEVICE ON THE ROOF OR EXTERIOR WALLS OF THE BUILDING. TENANT SHALL NOT
INTERFERE WITH RADIO OR TELEVISION BROADCASTING OR RECEPTION FROM OR IN THE
BUILDING OR ELSEWHERE. OTHER THAN THE USUAL AND CUSTOMARY CELLULAR TELEPHONES,
TENANT SHALL NOT INSTALL OR UTILIZE ANY WIRELESS TELECOMMUNICATION FACILITIES
WITHIN THE PREMISES OR ON, IN, OR ABOUT THE BUILDING WITHOUT FIRST OBTAINING
LANDLORD'S PRIOR WRITTEN CONSENT; EXCLUDING THE ROOFTOP EQUIPMENT THAT LANDLORD
HAS APPROVED IN EXHIBIT G "ROOFTOP EQUIPMENT"), AND LANDLORD AT ITS OPTION MAY
REQUIRE THE ENTRY OF A SUPPLEMENTAL AGREEMENT WITH RESPECT TO SUCH CONSTRUCTION
OR INSTALLATION. TENANT SHALL COMPLY WITH ALL INSTRUCTIONS FOR INSTALLATION AND
SHALL PAY OR SHALL CAUSE TO BE PAID THE ENTIRE COST OF SUCH INSTALLATIONS.
APPLICATION FOR SUCH FACILITIES SHALL BE MADE IN THE SAME MANNER AND SHALL BE
SUBJECT TO THE SAME REQUIREMENTS AS SPECIFIED FOR TELECOMMUNICATION SERVICES AND
TELECOMMUNICATION FACILITIES IN THE PARAGRAPH OF THE LEASE ENTITLED "UTILITIES".
SUPPLEMENTAL RULES AND REGULATIONS MAY BE PROMULGATED BY LANDLORD SPECIFYING THE
FORM OF AND INFORMATION TO BE INCLUDED WITH THE APPLICATION AND ESTABLISHING
PROCEDURES, REGULATIONS AND CONTROLS WITH RESPECT TO THE INSTALLATION AND USE OF
SUCH WIRELESS TELECOMMUNICATION FACILITIES.
20. TENANT SHALL NOT XXXX, DRIVE NAILS, SCREWS OR DRILL INTO THE
PARTITIONS, WOODWORK OR PLASTER OR IN ANY WAY DEFACE THE PREMISE, OTHER THAN
NORMAL TENANT SIGNS, POSTERS, EDUCATION PICTURES, FRAMES, ARTWORK,
PRESENTATIONS, ETC. LANDLORD RESERVES THE RIGHT TO DIRECT ELECTRICIANS AS TO
WHERE AND HOW TELEPHONE AND TELEGRAPH WIRES ARE TO BE INTRODUCED TO THE
PREMISES. TENANT SHALL NOT CUT OR BORE HOLES FOR WIRES. TENANT SHALL NOT AFFIX
ANY FLOOR COVERING TO THE FLOOR OF THE PREMISES IN ANY MANNER EXCEPT AS APPROVED
BY LANDLORD. TENANT SHALL REPAIR ANY DAMAGE RESULTING FROM NONCOMPLIANCE WITH
THIS RULE.
21. INTENTIONALLY DELETED.
22. CANVASSING, SOLICITING AND DISTRIBUTION OF HANDBILLS OR ANY OTHER
WRITTEN MATERIAL, AND PEDDLING IN THE BUILDING OR LAND ARE PROHIBITED, AND
TENANT SHALL COOPERATE TO PREVENT THE SAME.
23. LANDLORD RESERVES THE RIGHT TO EXCLUDE OR EXPEL FROM THE BUILDING AND
LAND ANY PERSON WHO, IN LANDLORD'S JUDGMENT, IS INTOXICATED, UNDER THE INFLUENCE
OF LIQUOR OR DRUGS OR IN VIOLATION OF ANY OF THESE RULES AND REGULATIONS.
24. TENANT SHALL STORE ALL OF ITS TRASH AND GARBAGE WITHIN THE PREMISES.
TENANT SHALL NOT PLACE IN ANY TRASH BOX OR RECEPTACLE ANY MATERIAL WHICH CANNOT
BE DISPOSED OF IN THE ORDINARY AND CUSTOMARY MANNER OF TRASH AND GARBAGE
DISPOSAL. ALL GARBAGE AND REFUSE DISPOSAL SHALL BE MADE IN ACCORDANCE WITH
DIRECTIONS ISSUED FROM TIME TO TIME BY LANDLORD.
25. THE PREMISES SHALL NOT BE USED FOR LODGING OR ANY IMPROPER OR IMMORAL
OR OBJECTIONABLE PURPOSE. NO COOKING SHALL BE DONE OR PERMITTED BY TENANT,
EXCEPT THAT USE BY TENANT OF UNDERWRITERS' LABORATORY APPROVED EQUIPMENT FOR
BREWING COFFEE, TEA, HOT CHOCOLATE AND SIMILAR BEVERAGES SHALL BE PERMITTED;
PROVIDED THAT, SUCH EQUIPMENT AND ITS USE IS IN ACCORDANCE WITH ALL GOVERNMENTAL
REQUIREMENTS.
26. TENANT SHALL NOT USE IN THE PREMISES OR IN THE PUBLIC HALLS OF THE
BUILDING ANY HAND TRUCK EXCEPT THOSE EQUIPPED WITH RUBBER TIRES AND SIDE GUARDS
OR SUCH OTHER MATERIAL-HANDLING EQUIPMENT AS LANDLORD MAY APPROVE. TENANT SHALL
NOT BRING ANY OTHER VEHICLES OF ANY KIND INTO THE BUILDING.
27. WITHOUT THE PRIOR WRITTEN CONSENT OF LANDLORD, TENANT SHALL NOT USE THE
NAME OF THE BUILDING IN CONNECTION WITH OR IN PROMOTING OR ADVERTISING THE
BUSINESS OF TENANT EXCEPT AS TENANT'S ADDRESS.
28. TENANT SHALL COMPLY WITH ALL SAFETY, FIRE PROTECTION AND EVACUATION
PROCEDURES AND REGULATIONS ESTABLISHED BY LANDLORD OR ANY GOVERNMENTAL AGENCY.
29. TENANT ASSUMES ANY AND ALL RESPONSIBILITY FOR PROTECTING THE PREMISES
FROM THEFT, ROBBERY AND PILFERAGE, WHICH INCLUDES KEEPING DOORS LOCKED AND OTHER
MEANS OF ENTRY TO THE PREMISES CLOSED.
30. THE REQUIREMENTS OF TENANT WILL BE ATTENDED TO ONLY UPON APPROPRIATE
APPLICATION TO THE MANAGER OF THE BUILDING BY AN AUTHORIZED INDIVIDUAL.
EMPLOYEES OF LANDLORD ARE NOT REQUIRED TO PERFORM ANY WORK OR DO ANYTHING
OUTSIDE OF THEIR REGULAR DUTIES UNLESS UNDER SPECIAL INSTRUCTIONS FROM LANDLORD,
AND NO EMPLOYEE OF LANDLORD IS REQUIRED TO ADMIT TENANT TO ANY SPACE OTHER THAN
THE PREMISES WITHOUT SPECIFIC INSTRUCTIONS FROM LANDLORD.
31. TENANT SHALL NOT PARK ITS VEHICLES IN ANY PARKING AREAS DESIGNATED BY
LANDLORD AS AREAS FOR PARKING BY VISITORS TO THE BUILDING OR LAND. TENANT SHALL
NOT LEAVE VEHICLES IN THE PARKING AREAS OVERNIGHT NOR PARK ANY VEHICLES IN THE
BUILDING PARKING AREAS OTHER THAN AUTOMOBILES, MOTORCYCLES, MOTOR DRIVEN OR
NONMOTOR DRIVEN BICYCLES OR FOUR-WHEELED TRUCKS.
32. LANDLORD MAY WAIVE ANY ONE OR MORE OF THESE RULES AND REGULATIONS FOR
THE BENEFIT OF TENANT OR ANY OTHER TENANT, BUT NO SUCH WAIVER BY LANDLORD SHALL
BE CONSTRUED AS A WAIVER OF SUCH RULES AND REGULATIONS IN FAVOR OF ANY OTHER
PERSON, NOR PREVENT LANDLORD FROM THEREAFTER REVOKING SUCH WAIVER AND ENFORCING
ANY SUCH RULES AND REGULATIONS AGAINST ANY OR ALL OF THE TENANTS OF THE
BUILDING.
33. THESE RULES AND REGULATIONS ARE IN ADDITION TO, AND SHALL NOT BE
CONSTRUED TO IN ANY WAY MODIFY OR AMEND, IN WHOLE OR IN PART, THE COVENANTS AND
CONDITIONS OF ANY LEASE OF PREMISES IN THE BUILDING. IF ANY PROVISION OF THESE
RULES AND REGULATIONS CONFLICTS WITH ANY PROVISION OF THE LEASE, THE TERMS OF
THE LEASE SHALL PREVAIL.
34. LANDLORD RESERVES THE RIGHT TO MAKE SUCH OTHER AND REASONABLE RULES AND
REGULATIONS AS, IN ITS JUDGMENT, MAY FROM TIME TO TIME BE NEEDED FOR SAFETY AND
SECURITY, THE CARE AND CLEANLINESS OF THE BUILDING AND LAND AND THE PRESERVATION
OF GOOD ORDER IN THE BUILDING. TENANT AGREES TO ABIDE BY ALL THE RULES AND
REGULATIONS STATED IN THIS EXHIBIT AND ANY ADDITIONAL RULES AND REGULATIONS
WHICH ARE SO MADE BY LANDLORD.
35. TENANT SHALL BE RESPONSIBLE FOR THE OBSERVANCE OF ALL OF THE FOREGOING
RULES BY TENANT AND TENANT'S AGENTS.
