EXHIBIT 3.11
SUBLEASE AGREEMENT
This Sublease Agreement entered into as of this 5th day of June, 1997 by
and between Xxxxxx'x Operating Company, Inc., a Delaware corporation
("Xxxxxx'x") and Interactive Entertainment Limited, a Bermuda exempted company
("IEL").
WITNESSETH:
WHEREAS, Xxxxxx'x has leased from Weston management Company as Manager for
Hampton Inns, Inc. (the "Landlord") certain premises known as Xxxxx 000, 000
Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxx consisting of 9,408 square feet (the "Demised
Premises") pursuant to that certain Standard Commercial Lease dated April 18,
1994 as amended (the "Lease");
WHEREAS, IEL desires to sublease from Xxxxxx'x the Demised Premises, and
Xxxxxx'x is willing to enter into this Sublease upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual premises herein contained,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. Demise and Use. Subject to all of the provisions of this
Sublease, Xxxxxx'x demises and sublets to IEL and IEL takes and hires from
Xxxxxx'x the Demised Premises, to be used by IEL solely for general office use.
Up to three offices and one clerical work area in the Demised Premises may be
shared by IEL with Xxxxxx'x or its sublessee (the "Cotenant") without any
physical division. For any month in which a Cotenant occupies any of the
Demised Premises, rent and expenses relating to the Demised Premises shall be
shared pro rata by IEL and the Cotenant based on the relative number of IEL
employees and Cotenant employees occupying the Demised Premises (the "Allocation
Percentage") calculated, in IEL's case, by dividing the number of IEL employees
occupying the Demised Premises by the total number of persons occupying the
Demised Premises, and in the Cotenant's case, by dividing the number of Cotenant
employees occupying the Demised Premises by the total number of persons
occupying the Demised Premises.
2. The Lease. The parties agree that their rights and duties regarding
the Demised Premises are subordinate to the Lease. Except as modified, amended
or supplemented by the Sublease, as against IEL, Xxxxxx'x shall have the rights
and duties of the Landlord as provided in the Lease, and as against Xxxxxx'x,
IEL shall have the rights and duties of Xxxxxx'x as provided in the Lease, as if
Xxxxxx'x had been the lessor under the Lease and IEL the lessee under the Lease,
except that with respect to services, repairs,
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reimbursements or other obligation required of the Landlord under the Lease,
Xxxxxx'x sole obligation with respect thereto shall be to request the same and
to use its best efforts to obtain same from the Landlord. A true and correct
copy of the Lease is attached hereto as Exhibit A and is incorporated herein by
reference. The parties agree that if there are any inconsistencies between the
terms and conditions of the Lease and the terms and conditions herein contained,
this Sublease will be the controlling document as regards matters solely between
IEL and Xxxxxx'x and otherwise the Lease shall be the controlling document.
3. Term. The initial term of this Sublease shall commence on June 6,
1997 and shall extend approximately twenty-three (23) months beyond the date of
commencement or until April 30, 1999, unless earlier terminated or canceled
pursuant to the terms of this Sublease.
4. Purchase and Sale of Leasehold Improvements, Furniture, Fixtures and
Equipment. Xxxxxx'x hereby agrees to sell and IEL hereby agrees to purchase for
a total purchase price of $5,967.51, payable in cash on the date of delivery,
the Leasehold Improvements, furniture, furnishings, fixtures and equipment
installed by Xxxxxx'x in the Demised Premises and more particularly described in
Exhibit B attached hereto and incorporate herein by reference (such improvements
referred to herein as the "Demised Premised Improvements"). Xxxxxx'x shall
execute and deliver to IEL a xxxx of sale conveying all of Xxxxxx'x right, title
and interest in and to the Demised Premises Improvements subject to the
interests of the Landlord under the Lease and of Xxxxxx'x under this Sublease.
The Demised Premises Improvements are sold "AS IS", "WHERE IS", AND WITH NO
WARRANTIES, EXPRESS OR IMPLIED, AS TO CONDITION, STATE OF REPAIR, FITNESS,
FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. Xxxxxx'x will assign to
IEL existing warranties from manufacturers or suppliers covering the Demised
Premises Improvements, if any. IEL shall provide and install office furniture
and equipment at its own expense.
5. Rent.
a. Monthly Rent. Subject to the provisions of this Paragraph 5, IEL shall
pay Xxxxxx'x on the first day of each and every month of the term the sum of
$10,976.00 without demand, demand having been expressly waived. IEL shall pay,
as additional rent, all other sums due to the Landlord under the Lease. For any
month during the term in which a Cotenant occupies any of the Demised Premises,
the amount of monthly rent and expenses payable by IEL shall be reduced in
accordance with the Allocation Percentage. If a Cotenant occupies any of the
Demised Premises for a partial month, the amount of the rent reduction shall be
prorated on a daily basis based on the actual number of days in that month.
b. Common Use Items. For any month in which a Cotenant occupies the
Demised Premises, the amount of monthly rent payable by IEL pursuant to
Paragraph 5a shall be reduced in accordance with the Allocation Percentage on
account of the Cotenant's use of the items described in Exhibit C attached
hereto and incorporated
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herein by reference. If a Cotenant occupies the Demised Premises for a partial
month, the amount of the rent reduction shall be prorated on a daily basis based
on the actual number of days in that month.
6. Indemnification and Insurance.
a. Indemnification. IEL agrees to protect, defend, reimburse, indemnify
and hold Xxxxxx'x and the Landlord, their respective agents, employees and
elected officers and each of them, free and harmless at all times from and
against any and all claims, liability, expenses, losses, costs, fines and
damages (including attorney fees) and causes of action of every kind and
character by reason of any damage to property or the environment, or bodily
injury (including death) incurred or sustained by any person, arising out of or
incident to or in connection with IEL's performance under this Sublease, IEL's
acts, omissions or operations hereunder, or in any way related to or arising out
of IEL's use and occupation of the Demised Premises; provided, however, IEL
shall not be responsible to Xxxxxx'x or the Landlord for damages resulting out
of bodily injury or damages to property which IEL can establish as being
attributable to either the sole negligence or willful act or omission of
Xxxxxx'x or the Landlord, and their respective agents, employees or officers
acting within the scope of their respective employments. This clause shall
survive the termination of this Sublease.
b. Insurance. IEL at its sole expense shall obtain and maintain in force
during the term of this Sublease the insurance required by the Lease. With
respect to insurance required under Exhibit B, Item 4, IEL shall cause the
Landlord and Xxxxxx'x to be named as additional insureds. With respect to
property insurance maintained by IEL, such policy(ies) shall contain a loss
payable endorsement in favor of the Landlord, Xxxxxx'x and IEL, as their
interests may appear.
7. Observance and Performance of the Terms and Conditions of the Lease.
IEL shall, at its own cost and expense, observe and perform all the obligations
of Xxxxxx'x under the Lease, and IEL shall not do, or permit suffer to be done
any act which is prohibited by the Lease, or which would in any way contravene
or violate any term, convenant or condition of the Lease or would constitute a
default thereunder; and IEL will indemnify Xxxxxx'x and hold it harmless from
and against any such default; provided, however, that wherever there are time
limits contained in the Lease pertaining to an event of default, the Lease shall
be deemed amended for the purpose of this Sublease to provide for time limits of
five (5) days less than those provided for in the Lease.
8. Remedies of Xxxxxx'x. In the event of any default by IEL under this
Sublease, including, without limitation, any failure of IEL to observe or
perform any of the terms, convenants and conditions on its part to be observed
or performed under the Lease, Xxxxxx'x shall have all of the rights and remedies
against IEL that the Landlord has against Xxxxxx'x under the Lease or otherwise
by law; provided, however, that IEL shall have fifteen (15) days to cure a
default other than rent, and five (5) days after written notice to cure a
default in paying rent, fees or other sums due. No such right or
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remedy shall be exclusive of any other right or remedy, but all such rights and
remedies shall be deemed to be cumulative. Xxxxxx'x shall have the right, but
not the obligation, to remedy any default by IEL under the terms of this
Sublease (or under the Lease), at the sole cost and expense of IEL; and such
cost and expense shall be recoverable by Xxxxxx'x from IEL, as additional rent,
and shall be due and payable on the first day of the month next following the
month in which such costs and expenses are incurred by Xxxxxx'x, plus interest
at the legal rate from the time such costs and expenses were incurred to the
date of the payment thereof by IEL to Xxxxxx'x. Xxxxxx'x remedying of any such
default shall not be deemed to cure the default, and Xxxxxx'x shall thereafter
remain entitled to all the rights and remedies provided for in this Sublease or
in the Lease in the event of such default.
9. Notices. Any notice, demands, requests or other communications under
this Sublease shall be in writing and shall become effective when delivered by
hand or received by overnight courier, telex, telecopy, telegram or registered
first class mail, postage prepaid, addressed as follows:
To Xxxxxx'x: Xxxxxx'x Operating Company, Inc.
Attn: Corporate Secretary
0000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
To IEL: Interactive Entertainment Limited
Attn: Xxxxxxx X. Xxxxx
000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
with a copy to: Xxxxxx X. XxXxxx
Altheimer & Xxxx
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
10. Successors and Assigns. Notwithstanding anything to the contrary
contained herein or in the Lease, IEL may assign this Sublease without Xxxxxx'x
consent to IEL's successor in interest under that certain Plan of Merger and
Amalgamation dated as of May 13, 0000, xxxxx XXX, XXX holding Corporation
Limited and Sky Games International Limited, provided that said assignee assumes
in full the obligations of IEL under this Sublease.
11. Termination of Lease and Sublease. Should the Lease terminated during
the term hereof for any reason, this Sublease shall terminate on the date of
such termination of the Lease, with the same force and effect as if such
termination date has been specified in this Sublease as the date of termination
hereof.
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12. Prior Consent of Landlord. Anything to the contrary contained in this
Sublease or the Lease notwithstanding, this Sublease is subject to the prior
written consent of the Landlord and shall not become effective until Xxxxxx'x
has received written consent in form and content satisfactory to Xxxxxx'x from
the Landlord, with copy to IEL. Such approval shall not release Xxxxxx'x from
its primary liability to the Landlord for fulfilling all obligations, terms and
conditions of the Lease.
IN WITNESS WHEREOF, the parties hereto have duly executed this Sublease as
of the day and year first above written.
ATTEST: XXXXXX'X OPERATING COMPANY, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Secretary
Title: Vice President
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ATTEST: INTERACTIVE ENTERTAINMENT LIMITED
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxx Xxxxxxxxx
----------------------- -----------------------------
Assistant Secretary
Title: President and CEO
--------------------------
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Exhibit "A"
STANDARD COMMERCIAL LEASE
ARTICLE 1.00 BASIC LEASE TERMS
1.01 Parties. This lease agreement ("Lease") is entered into by and
between the following Lessor and Lessee:
Xxxxxx Management Company as Manager for Metropolitan Life Insurance Company ("Lessor")
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Embassy Suites, Inc., a Delaware Corporation ("Lessee")
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1.02 Leased Premises. In consideration of the rents, terms, provisions
and covenants of this Lease, Lessor hereby leases, lets and demises to Lessee
the following described premises ("leased premises") as shown on the floor plan,
Xxxxxx Job Number 93278, which upon completion of the final floor plan will be
attached hereto and made a part hereof as Exhibit "A".
9,408 (Approximate sq. ft.) 93278 (Job no.)
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Audubon Xxxxx Business Campus, Building "D" (Name of building or project)
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000 Xxxxxxxxx Xxxx, Xxxxx 000 (Xxxxxx address/suite number)
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Xxxxxxx, Xxxxxxxxx 00000 (City, State, and Zip Code)
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1.03 Term. Subject to and upon the conditions set forth herein, the term
of this Lease shall commence on
( May 1, 1994 the "commencement date"); and shall terminate 60 months
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thereafter.
1.04 Base Rent and Security Deposit. Base rent is $ 10,976.00 per month.
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Security deposit is $ -0- .
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1.05 Addresses.
Lessor's Address: Lessee's Address:
0000 Xxxxxx Xxxxxx, Xxxxx 000 1023 Cherry Road
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Xxxxxxx, Xxxxxxxxx 00000 Xxxxxxx, XX 00000
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1.06 Permitted Use. General office use
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ARTICLE 2.00 RENT
2.01 Base Rent. Lessee agrees to pay monthly as base rent during the term
of this Lease the sum of money set forth in section 1.04 of this Lease, which
amount shall be payable to Lessor at the address shown above. One monthly
installment shall be due and payable on the date of execution of this Lease by
Lessee for the first month's rent and a like monthly installment shall be due
and payable on or before the first day of each calendar month succeeding the
commencement date or completion date during the term of this Lease; provided, if
the commencement date or the completion date should be a date other than the
first day of a calendar month, the monthly rental set forth above shall be
prorated to the end of that calendar month, and all succeeding installments of
rent shall be payable on or before the first day of each succeeding calendar
month during the term of this Lease. Lessee shall pay, as addditional rent, all
other sums due under this Lease.
2.02 Operating Expenses. In the event Lessor's operating expenses for the
building and/or project of which the leased premises are a part shall, in any
calendar year during the term of this Lease, exceed the actual operating
expenses of the building during the calendar year 1996; Lessee agrees to pay as
additional rent Lessee's pro rata share of such excess operating expenses.
Lessor may invoice Lessee monthly for Lessee's pro rata share of the estimated
operating expenses for each calendar year, which amount shall be adjusted each
year based upon anticipated operating expenses. Within nine months following
the close of each calendar year, Lessor shall provide Lessee an accounting
showing in reasonable detail all computations of additional rent due under this
section. In the event the accounting shows that the total of the monthly
payments made by Lessee exceeds the amount of additional rent due by Lessee
under this section, the accounting shall be accompanied by a refund. In the
event the accounting shows that the total of the monthly payments made by Lessee
is less than the amount of additional rent due by Lessee under this section, the
accounting shall be accompanied by an invoice for the additional rent.
Notwithstanding any other provision in this Lease, during the year which the
Lease terminates, Lessor, prior to the termination date, shall have the option
to invoice Lessee for Lessee's pro rata share of the excess operating expenses
based upon the previous year's operation expenses. If this Lease shall terminate
on a day other than the last day of a calendar year, the amount of any
additional rent payable by Lessee applicable to the year in which such
termination shall occur shall be prorated on the ratio that the number of days
from the commencement of the calendar year to and including the termination date
bears to 365. Lessee shall have the right, at its own expense and within a
reasonable time, to audit Lessor's books relevant to the additional rent payable
under this section. Lessee agrees to pay any additional rent due under this
section within ten days following receipt of the invoice or accounting showing
additional rent due. See Item #2 of Exhibit "B" attached hereto and made a part
hereof.
2.03 Definition of Operating Expenses. The term "operating expenses"
includes all expenses incurred by Lessor with respect to the maintenance and
operation of the building of which the leased premises are a part, including,
but not limited to, the following: maintenance, repair and replacement costs;
electricity, fuel, water, sewer, gas and other utility charges; security, window
washing and janitorial services; trash and snow removal; landscaping and pest
control; management fees, wages and benefits payable to employees of Lessor
whose duties are directly connected with the operation and maintenance of the
building; all services, supplies, repairs, replacements or other expenses for
maintaining and operating the building or project including parking and common
areas; the cost, including interest, amortized over its useful life, of any
capital improvement made to the building by Lessor after the date of this Lease
which is required under any governmental law or regulation that was not
applicable to the building at the time it was constructed; the cost, including
interest, amortized over its useful life, of installation of any device or other
equipment which improves the operating efficiency of any system within the
leased premises and thereby reduces operating expenses; all other expenses which
would generally be regarded as operating and maintenance expenses which would
reasonably be amortized over a period not to exceed five years; all real
property taxes and installments of special assessments, including dues and
assessments by means of deed restrictions and/or owners' associations which
accrue against the building of which the leased premises are a part during the
term of this Lease; and all insurance premiums Lessor is required to pay or
deems necessary to pay, including public liability insurance, with respect to
the building. The term operating expenses does not include the following;
repairs, restoration or other work occasioned by fire, wind, the elements or
other casualty; income and franchise taxes of Lessor, expenses incurred in
leasing to or procuring of lessees, leasing commissions, advertising expenses
and expenses for the renovating of space for new lessees; interest or principal
payments on any mortgage or other indebtedness of Lessor; compensation paid to
any employee of Lessor above the grade of property manager; any depreciation
allowance or expense; or operating expenses which are the responsibility of
Lessee.
2.04 Late Payment Charge. Other remedies for nonpayment of rent
notwithstanding, if the monthly rental payment is not received by Lessor on or
before the tenth day of the month for which the rent is due, or if any other
payment due Lessor by Lessee is not received by Lessor on or before the tenth
day of the month next following the month in which Lessee was invoiced, a late
payment charge of five percent of such past due amount shall become due and
payable in addition to such amounts owed under this Lease.
2.05 Increase in Insurance Premiums. If an increase in any insurance
premiums paid by Lessor for the building is caused by Lessee's use of the leased
premises in a manner other than as set forth in section 1.06, or if Lessee
vacates the leased premises and causes an increase in such premiums, then Lessee
shall pay as additional rent the amount of such increase to Lessor.
2.07 Holding Over. In the event that Lessee does not vacate the leased
premises upon the expiration or termination of this Lease, Lessee shall be a
tenant at will for the holdover period and all of the terms and provisions of
this Lease shall be applicable during that period, except that Lessee shall pay
Lessor as base rental for the period of such holdover an amount equal to 1.5
times the base rent which would have been payable by Lessee had the holdover
period been a part of the original term of this Lease. Lessee agrees to vacate
and deliver the leased premises to Lessor upon Lessee's receipt of notice from
Lessor to vacate. The rental payable during the holdover period shall be payable
to Lessor on demand. No holding over by Lessee, whether with or without the
consent of Lessor, shall operate to extend the term of this Lease. See Item #5
of Exhibit "B" attached hereto and made a part hereof.
ARTICLE 3.00 OCCUPANCY AND USE
3.01 Use. Lessee warrants and represents to Lessor that the leased
premises shall be used and occupied only for the purpose as set forth in section
1.06. Lessee shall occupy the leased premises, conduct its business and control
its agents, employees, invitees and visitors in such a manner as is lawful,
reputable and will not create a nuisance. Lessee shall not permit any operation
which emits any odor or matter which intrudes into other portions of the
building, use any apparatus or machine which makes undue noise or causes
vibration in any portion of the building or otherwise interfere with, annoy or
disturb any other lessee in its normal business operations or Lessor in its
management of the building, Lessee shall neither permit any waste on the leased
premises nor allow the leased premises to be used in any way which would, in the
opinion of Lessor, be extra hazardous on account of fire or which would in any
way increase or render void the fire insurance on the building.
3.02 Signs. No sign of any type or description shall be erected, placed
or painted in or about the leased premises or project except those signs
submitted to Lessor in writing and approved by Lessor in writing, and which
signs are in conformance with Lessor's sign criteria established for the
project.
3.03 Compliance with Laws, Rules and Regulations. Lessee, at Lessee's
sole cost and expense, shall comply with all laws, ordinances, orders, rules and
regulations of state, federal, municipal or other agencies or bodies having
jurisdiction over the use, condition or occupancy of the leased premises. Lessee
will comply with the rules and regulations of the building adopted by Lessor
which are set forth on a schedule attached to this Lease. Lessor shall have the
right at all times to change and amend the rules and regulations in any
reasonable manner as may be deemed advisable for the safety, care, cleanliness,
preservation of good order and operation or use of the building or the leased
premises. All changes and amendments to the rules and regulations of the
building will be sent by Lessor to Lessee in writing and shall thereafter be
carried out and observed by Lessee.
3.04 Warranty of Possession. Lessor warrants that it has the right and
authority to execute this Lease, and Lessee, upon payment of the required rents
and subject to the terms, conditions, covenants and agreements contained in this
Lease, shall have possession of the leased premises during the full term of this
Lease as well as any extension or renewal thereof. Lessor shall not be
responsible for the acts or omissions of any other lessee or third party which
are beyond Lessor's reasonable control, that may interfere with Lessee's use and
enjoyment of the leased premises.
3.05 Inspection. Lessor or its authorized agents shall at any and all
reasonable times have the right to enter the leased premises to inspect the
same, to supply janitorial service or any other service to be provided by
Lessor, to show the leased premises to prospective purchasers or lessees, and to
alter, improve or repair the leased premises or any other portion of the
building as may reasonably be necessary. Lessee hereby waives any claim for
damages for injury or inconvenience to or interference with Lessee's business,
any loss of occupancy or use of the leased premises, and any other loss
occasioned thereby. Lessor shall at all times have and retain a key with which
to unlock all of the doors in, upon and about the leased premises. Lessee shall
not change Lessor's lock system or in any other manner prohibit Lessor from
entering the leased premises. Lessor shall have the right to use any and all
means which Lessor may deem proper to open any door in an emergency without
liability therefor.
ARTICLE 4.00 UTILITIES AND SERVICE
4.01 Building Services. Lessor shall provide water and electricity for
Lessee during the terms of this Lease. Lessee shall pay all telephone charges.
Lessor shall furnish Lessee hot and cold water at those points of supply
provided for general use of other lessees in the building, central heating and
air conditioning in season (at times Lessor normally provides these services to
other lessees in the building, and at temperatures and in amounts as are
considered by Lessor to be standard or in compliance with any governmental
regulations, such service on Saturday afternoons, Sundays, evenings and holidays
to be furnished only upon the request of Lessee, who shall bear the entire
cost). Lessor shall also provide routine maintenance, painting and electric
lighting service for all public areas and special service areas of the building
in the manner and to the extent deemed by Lessor to be standard. Lessor may, in
its sole discretion, provide additional services not enumerated herein.
Temporary failure by Lessor to any extent to provide these defined services or
any other services not enumerated, or any cessation thereof, shall not render
Lessor liable in any respect for damages to either person or property, be
construed as an eviction of Lessee, work an abatement of rent or relieve Lessee
from fulfillment of any covenant in this Lease. Should any of the equipment or
machinery break down, or for any cause cease to function properly, Lessor shall
use reasonable diligence to repair the same promptly, but Lessee shall have no
claim for rebate of rent on account of any interruption in service occasioned
from the repairs. See Item #6 of Exhibit "B" attached hereto and made a part
hereof. Lessor reserves the right from time to time to make changes in the
utilities and services provided by Lessor to the building.
4.02 Theft or Burglary. Lessor shall not be liable to Lessee for losses
to Lessee's property or personal injury caused by criminal acts or entry by
unauthorized persons into the leased premises or the building, except as may be
caused by Lessor's gross negligence of willful misconduct.
4.03 Janitorial Service. Lessor shall furnish janitorial services to the
leased premises and public areas of the building five times per week during the
term of this Lease, excluding holidays. Lessor shall not provide janitorial
service to kitchens or storage areas included in the leased premises.
4.04 Excessive Utility Consumption. Lessee shall pay all utility costs
occasioned by electrodata processing machines, telephone equipment, computers
and other equipment of high electrical consumption, including without
limitation, the cost of installing, servicing and maintaining any special or
additional inside or outside wiring or lines, meters or submeters, transformers,
poles, air conditioning costs, or the cost of any other equipment necessary to
increase the amount or type of electricity or power available to the leased
premises.
4.05 Window Coverings. Lessor shall furnish and install window coverings
on all exterior windows to maintain a uniform exterior appearance. Lessee shall
not remove or replace these window coverings or install any other window
covering which would affect the exterior appearance of the building. Lessee may
install lined or unlined over draperies on the interior sides of the Lessor
furnished window coverings for interior appearance or to reduce light
transmission, provided such over draperies do not affect the exterior appearance
of the building or affect the operation of the building's heating, ventilating
and air conditioning systems.
4.06 Charge for Service. All costs of Lessor for providing the services
set forth in article 4.00 (except those charges paid by Lessee pursuant to
section 4.04) shall be subject to the additional rent provisions in section
2.02.
ARTICLE 5.00 REPAIRS AND MAINTENANCE
5.01 Lessor Repairs. Lessor shall not be required to make any
improvements, replacements or repairs of any kind or character to the leased
premises or the project during the term of this Lease except as are set forth in
this section. Lessor shall maintain only the roof, foundation, parking and
common areas, the structural soundness of the exterior walls, doors, corridors,
windows and other structures or equipment serving the leased premises. Lessor's
cost of maintaining and repairing the items set forth in this section are
subject to the additional rent provisions in
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section 2.02. Lessor shall not be liable to Lessee, except as expressly provided
in this Lease, for any damage or inconvenience, and Lessee shall not be entitled
to any abatement or reduction of rent by reason of any repairs, alterations or
additions made by Lessor under this Lease.
5.02 Lessee Repairs. Lessee shall, at its own cost and expense, repair or
replace any damage or injury to all or any part of the leased premises caused
by any act or omission of Lessee or Lessee's agents, employees, invitees,
licensees or visitors; provided, however, if Lessee fails to make the repairs or
replacements promptly, Lessor may, at its option, make the repairs or
replacements, and the costs of such repairs or replacements shall be charged to
Lessee as additional rent and shall become payable by Lessee with the payment of
the rent next due hereunder.
5.03 Request for Repairs. All requests for repairs or maintenance that are
the responsibility of Lessor pursuant to any provision of this Lease must be
made in writing to Lessor at the address in section 1.05.
5.04 Lessee Damages. Lessee shall not allow any damage to be committed on
any portion of the leased premises or building, and at the termination of this
Lease, by lapse of time or otherwise, Lessee shall return the leased premises to
Lessor in as good condition as existed at the commencement date of this Lease,
ordinary wear and tear excepted. The reasonable cost and expense of any repairs
necessary to restore the condition of the leased premises shall be borne by
Lessee.
ARTICLE 6.00 ALTERATIONS AND IMPROVEMENTS
6.01 Lessor Improvements. If construction to the leased premises is to be
performed by Lessor prior to or during Lessee's occupancy, Lessor will complete
the construction of the improvements to the leased premises in accordance with
plans and specifications agreed to by Lessor and Lessee, which plans and
specifications are made a part of this Lease by reference. Within seven days of
receipt of plans and specifications, Lessee shall execute a copy of the plans
and specifications and, if applicable, change orders setting forth the amount of
any costs to be borne by Lessee. In the event Lessee fails to execute the plans
and specifications and change order within the seven day period, Lessor may, at
its sole option, declare this Lease cancelled or notify Lessee that the base
rent shall commence on the completion date even though the improvements to be
constructed by Lessor may not be complete. Any changes or modifications to the
approved plans and specifications shall be made and accepted by written change
order or agreement signed by Lessor and Lessee and shall constitute an
amendment to this Lease.
6.02 Lessee Improvements. Lessee shall not make or allow to be made any
alterations or physical additions in or to the leased premises without first
obtaining the written consent of Lessor, which consent may in the sole and
absolute discretion of Lessor be denied. Any alterations, physical additions or
improvements to the leased premises made by Lessee shall at once become the
property of Lessor and shall be surrendered to Lessor upon the termination of
this Lease; provided, however, Lessor, at its option, may require Lessee to
remove any physical additions and/or repair any alterations made without
Lessor's consent in order to restore the leased premises to the
condition existing at the time Lessee took possession, all costs of removal
and/or alterations to be borne by Lessee. This clause shall not apply to
moveable equipment or furniture owned by Lessee, which may be removed by Lessee
at the end of the term of this Lease if Lessee is not then in default and if
such equipment and furniture are not then subject to any other rights, liens and
interests of Lessor.
6.03 Mechanics Lien. Lessee will not permit any mechanic's or
materialman's lien(s) or other lien to be placed upon the leased premises or the
building and nothing in this Lease shall be deemed or construed in any way as
constituting the consent or request of Lessor, express or implied, by inference
or otherwise, to any person for the performance of any labor or the furnishing
of any materials to the leased premises, or any part thereof, nor as giving
Lessee any right, power, or authority to contract for or permit the rendering of
any services or the furnishing of any materials that would give rise to any
mechanic's, materialman's or other lien against the leased premises. In the
event any such lien is attached to the leased premises, then, in addition to any
other right or remedy of Lessor, Lessor may, but shall not be obligated to,
obtain the release of or otherwise discharge the same. Any amount paid by Lessor
for any of the aforesaid purposes shall be paid by Lessee to Lessor on demand as
additional rent.
ARTICLE 7.00 CASUALTY AND INSURANCE
7.01 Substantial Destruction. If the leased premises should be totally
destroyed by fire or other casualty, or if the leased premises should be damaged
so that rebuilding cannot reasonably be completed within sixty working days
after the date of written notification by Lessee to Lessor of the destruction,
this Lease shall terminate and the rent shall be abated for the unexpired
portion of the Lease, effective as of the date of the written notification.
7.02 Partial Destruction. If the leased premises should be partially
damaged by fire or other casualty, and rebuilding or repairs can reasonably be
completed within sixty working days from the date of written notification by
Lessee to Lessor of the destruction, this Lease shall not terminate, and Lessor
shall at its sole risk and expense proceed with reasonable diligence to rebuild
or repair the building or other improvements to substantially the same condition
in which they existed prior to the damage. If the leased premises are to be
rebuilt or repaired and are untenantable in whole or in part following the
damage, and the damage or destruction was not caused or contributed to by act or
negligence of Lessee, its agents, employees, invitees or those for whom Lessee
is responsible, the rent payable under this Lease during the period for which
the leased premises are untenantable shall be adjusted to such an extent as may
be fair and reasonable under the circumstances. In the event that Lessor fails
to complete the necessary repairs or rebuilding within sixty working days from
the date of written notification by Lessee to Lessor of the destruction, Lessee
may at its option terminate this Lease by delivering written notice of
termination to Lessor, whereupon all rights and obligations under this Lease
shall cease to exist.
7.03 Property Insurance. Lessor shall at all times during the term of this
Lease maintain a policy or policies of insurance with the premiums paid in
advance, issued by and binding upon some solvent insurance company, insuring the
building against all risk of direct physical loss in an amount equal to at least
ninety percent of the full replacement cost of the building structure and its
improvements as of the date of the loss; provided, Lessor shall not be obligated
in any way or manner to insure any personal property (including, but not limited
to, any furniture, machinery, goods or supplies) of Lessee upon or within the
leased premises, any fixtures installed or paid for by Lessee upon or within the
leased premises, or any improvements which Lessee may construct on the leased
premises. Lessee shall have no right in or claim to the proceeds of any policy
of insurance maintained by Lessor even though the cost of such insurance is
borne by Lessee as set forth in Article 2.00.
7.04 Waiver of Subrogation. Anything in this Lease to the contrary
notwithstanding, Lessor and Lessee hereby waive and release each other of and
from any and all right of recovery, claim, action or cause of action, against
each other, their agents, officers and employees, for any loss or damage that
may occur to the leased premises, improvements to the building of which the
leased premises are a part, or personal property within the building, by reason
of fire or the elements, regardless of cause or origin, including negligence of
Lessor or Lessee and their agents, officers and employees. Lessor and Lessee
agree immediately to give their respective insurance companies which have issued
policies of insurance covering all risk of direct physical loss, written notice
of the terms of the mutual waivers contained in this section, and to have the
insurance policies properly endorsed, if necessary, to prevent the invalidation
of the insurance coverages by reason of the mutual waivers.
7.05 Hold Harmless. Lessor shall not be liable to Lessee's employees,
agents, invitees, licensees or visitors, or to any other person, for an injury
to person or damage to property on or about the leased premises caused by any
act or omission of Lessee, its agents, servants or employees, or of any other
person entering upon the leased premises under express or implied invitation by
Lessee, or caused by the improvements located on the leased premises becoming
out of repair, the failure or cessation of any service provided by Lessor
(including security service and devices), or caused by leakage of gas, oil,
water or steam or by electricity emanating from the leased premises. Lessee
agrees to indemnify and hold harmless Lessor of and from any loss, attorney's
fees, expenses or claims arising out of any such damage or injury. See item #7
of Exhibit "B" attached hereto and made a part hereof.
ARTICLE 8.00 CONDEMNATION
8.01 Substantial Taking. If all or a substantial part of the leased
premises are taken for any public or quasi-public use under any governmental
law, ordinance or regulation, or by right of eminent domain or by purchase in
lieu thereof, and the taking would prevent or materially interfere with the use
of the leased premises for the purpose for which it is then being used, this
Lease shall terminate and the rent shall be abated during the unexpired portion
of this Lease effective on the date physical possession is taken by the
condemning authority. Lessee shall have no claim to the condemnation award or
proceeds in lieu thereof.
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8.02 Partial Taking. If a portion of the leased premises shall be taken
for any public or quasi-public use under any governmental law, ordinance or
regulation, or by right of eminent domain or by purchase in lieu thereof, and
this Lease is not terminated as provided in section 8.01 above, Lessor shall at
Lessor's sole risk and expense, restore and reconstruct the building and other
improvements on the leased premises to the extent necessary to make it
reasonably tenantable. The rent payable under this Lease during the unexpired
portion of the term shall be adjusted to such an extent as may be fair and
reasonable under the circumstances. Lessee shall have no claim to the
condemnation award or proceeds in lieu thereof.
ARTICLE 9.00 ASSIGNMENT OR SUBLEASE
9.01 Lessor Assignment. Lessor shall have the right to sell, transfer or
assign, in whole or in part, its rights and obligations under this Lease and in
the building. Any such sale, transfer or assignment shall operate to release
Lessor from any and all liabilities under this Lease arising after the date of
such sale, assignment or transfer.
9.02 Lessee Assignment. Lessee shall not assign, in whole or in part, this
Lease, or allow it to be assigned, in whole or in part, by operation of law or
otherwise (including without limitation by transfer of a majority interest of
stock, merger or dissolution, which transfer of majority interest of stock,
merger or dissolution shall be deemed an assignment or mortgage or pledge the
same, or sublet the leased premises, in whole or in part, without the prior
written consent of Lessor, which consent shall not be unreasonably withheld, and
in no event shall any such assignment or sublease ever release Lessee or any
guarantor from any obligation or liability hereunder. No assignee or sublessee
of the leased premises or any portion thereof may assign or sublet the leased
premises or any portion thereof.
9.03 Conditions of Assignment. If Lessee desires to assign or sublet all
or any part of the leased premises, it shall so notify Lessor at least thirty
days in advance of the date on which Lessee desires to make such assignment or
sublease. Lessee shall provide Lessor with a copy of the proposed assignment or
sublease and such information as Lessor might request concerning the proposed
sublessee or assignee to allow Lessor to make informed judgments as to the
financial condition, reputation, operations and general desirability of the
proposed sublessee or assignee. Within fifteen days after Lessor's receipt of
Lessee's proposed assignment or sublease and all required information concerning
the proposed sublessee or assignee, Lessor shall have the following options: (1)
cancel this Lease as to the leased premises or portion thereof proposed to be
assigned or sublet; (2) consent to the proposed assignment or sublease, and, if
the rent due and payable by any assignee or sublessee under any such permitted
assignment or sublease (or a combination of the rent payable under such
assignment or sublease plus any bonus or any other consideration or any payment
incident thereto) exceeds the rent payable under this Lease for such space,
Lessee shall pay to Lessor all such excess rent and other excess consideration
within ten days following receipt thereof by Lessee; or (3) refuse, in its sole
and absolute discretion and judgment, to consent to the proposed assignment or
sublease, which refusal shall be deemed to have been exercised unless Lessor
gives Lessee written notice providing otherwise. Upon the occurrence of an event
of default, if all or any part of the leased premises are then assigned or
sublet, Lessor, in addition to any other remedies provided by this Lease or
provided by law, may, at its option, collect directly from the assignee or
sublessee all rents becoming due to Lessee by reason of the assignment or
sublease, and Lessor shall have a security interest in all properties on the
leased premises to secure payment of such sums. Any collection directly by
Lessor from the assignee or sublessee shall not be construed to constitute a
novation or a release of Lessee or any guarantor from the further performance of
its obligations under this Lease. See Item #3 of Exhibit "B" attached hereto
and made a part hereof.
9.04 Subordination. Lessee accepts this Lease subject and subordinate to
any recorded mortgage or deed of trust lien presently existing or hereafter
created upon the building or project and to all existing recorded restrictions,
covenants, easements and agreements with respect to the building or project.
Lessor is hereby irrevocably vested with full power and authority to subordinate
Lessee's interest under this Lease to any first mortgage or deed of trust lien
hereafter placed on the leased premises, and Lessee agrees upon demand to
execute additional instruments subordinating this Lease as Lessor may require.
If the interests of Lessor under this Lease shall be transferred by reason of
foreclosure or other proceedings for enforcement of any first mortgage or deed
of trust lien on the leased premises, Lessee shall be bound to the transferee
(sometimes called the "Purchaser") at the option of the Purchaser, under the
terms, covenants and conditions of this Lease for the balance of the term
remaining, including any extensions or renewals, with the same force and effect
as if the Purchaser were Lessor under this Lease, and, if requested by the
Purchaser, Lessee agrees to attorn to the Purchaser, including the first
mortgagee under any such mortgage if it be the Purchaser, as its Lessor.
See Item #8 of Exhibit "B" attached hereto and made a part hereof.
9.05 Estoppel Certificates. Lessee agrees to furnish, from time to time,
within 15 days after receipt of a request from Lessor or Lessor's mortgagee, a
statement certifying, if applicable, the following: Lessee is in possession of
the leased premises; the leased premises are acceptable; the Lease is in full
force and effect; the Lease is unmodified; Lessee claims no present charge,
lien, or claim of offset against rent; the rent is paid for the current month,
but is not prepaid for more than one month and will not be prepaid for more than
one month in advance; Lessee has no knowledge of an existing default by reason
of some act or omission by Lessor; and such other matters as may be reasonably
required by Lessor or Lessor's mortgagee. Lessee's failure to deliver such
statement, in addition to being a default under this Lease, shall be deemed to
establish conclusively that this Lease is in full force and effect except as
declared by Lessor, that Lessor is not in default of any of its obligations
under this Lease to Lessee's knowledge, and that Lessor has not received more
than one month's rent in advance.
ARTICLE 10.00 LIENS
10.01 Landlord's Lien. As security for payment of rent, damages and all
other payments required to be made by this Lease, Lessee hereby grants to
Lessor a lien upon all property of Lessee now or subsequently located upon the
leased premises. If Lessee abandons or vacates any substantial portion of the
leased premises or is in default in the payment of any rentals, damages or other
payments required to be made by this Lease or is in default of any other
provision of this Lease, Lessor may enter upon the leased premises, by picking
or changing locks if necessary, and take possession of all or any part of the
personal property, and may sell all or any part of the personal property at a
public or private sale, in one or successive sales, with or without notice, to
the highest bidder for cash, and, on behalf of Lessee, sell and convey all or
part of the personal property to the highest bidder, delivering to the highest
bidder all of Lessee's title and interest in the personal property sold. The
proceeds of the sale of the personal property shall be applied by Lessor toward
the reasonable costs and expenses of the sale, including attorney's fees, and
then toward the payment of all sums then due by Lessee to Lessor under the terms
of this Lease. Any excess remaining shall be paid to Lessee or any other person
entitled thereto by law.
10.02 Uniform Commercial Code. This Lease is intended as and constitutes a
security agreement within the meaning of the Uniform Commercial Code of the
state in which the leased premises are situated. Lessor, in addition to the
rights prescribed in this Lease, shall have all of the rights, titles, liens and
interests in and to Lessee's property, now or hereafter located upon the leased
premises, which may be granted a secured party, as that term is defined, under
the Uniform Commercial Code to secure to Lessor payment of all sums due and the
full performance of all Lessee's covenants under this Lease.
ARTICLE 11.00 DEFAULT AND REMEDIES
11.01 Default by Lessee. The following shall be deemed to be events of
default by Lessee under this Lease; (1) Lessee shall fail to pay when due any
installment of rent or any other payment required pursuant to this Lease and
such failure is not cured within ten days after written notice to Lessee; (2)
Lessee shall abandon any substantial portion of the leased premises; (3) Lessee
shall fail to comply with any term, provision or covenant of this Lease, other
than the payment of rent, and the failure is not cured within 20 days after
written notice to Lessee; (4) Lessee shall file a petition or be adjudged
bankrupt or insolvent under any applicable federal or state bankruptcy or
insolvency law or admit that it cannot meet its financial obligations as they
become due; or a receiver or trustee shall be appointed for all or substantially
all of the assets of Lessee; or Lessee shall make a transfer in fraud of
creditors or shall make an assignment for the benefit of creditors; or (5)
Lessee shall do or permit to be done any act which results in a lien being filed
against the leased premises or the building and/or project of which the leased
premises are a part.
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11.02 Remedies for Lessee's Default. Upon the occurrence of any event of
default set forth in this Lease, Lessor shall have the option to pursue any one
or more of the remedies set forth herein without any notice or demand. (1)
Lessor may enter upon and take possession of the leased premises, by picking or
changing locks if necessary, and lock out, expel or remove Lessee and any other
person who may be occupying all or any part of the leased premises without being
liable for any claim for damages, and relet the leased premises on behalf of
Lessee and receive the rent directly by reason of the reletting. Lessee agrees
to pay Lessor on demand any deficiency that may arise by reason of any reletting
of the leased premises; further, Lessee agrees to reimburse Lessor for any
expenditures made by it in order to relet the leased premises, including, but
not limited to, remodeling and repair costs. (2) Lessor may enter upon the
leased premises, by picking or changing locks if necessary, without being liable
for any claim for damages, and do whatever Lessee is obligated to do under the
terms of this Lease. Lessee agrees to reimburse Lessor on demand for any
expenses which Lessor may incur in effecting compliance with Lessee's
obligations under this Lease; further, Lessee agrees that Lessor shall not be
liable for any damages resulting to Lessee from effecting compliance with
Lessee's obligations under this Lease caused by the negligence of Lessor or
otherwise. (3) Lessor may terminate this Lease, in which event Lessee shall
immediately surrender the leased premises to Lessor, and if Lessee fails to
surrender the leased premises, Lessor may, without prejudice to any other remedy
which it may have for possession or arrearages in rent, enter upon and take
possession of the leased premises, by picking or changing locks if necessary,
and lock out, expel or remove Lessee and any other person who may be occupying
all or any part of the leased premises without being liable for any claim for
damages. Lessee agrees to pay on demand the amount of all loss and damage which
Lessor may suffer by reason of the termination of this Lease under this
section, whether through inability to relet the leased premises on satisfactory
terms or otherwise. Notwithstanding any other remedy set forth in this Lease, in
the event Lessor has made rent concessions of any type or character, or waived
any base rent, and Lessee fails to take possession of the leased premises on the
commencement or completion date or otherwise defaults at any time during the
term of this Lease, the rent concessions, including any waived base rent, shall
be cancelled and the amount of the base rent or other rent concessions shall be
due and payable immediately as if no rent concessions or waiver of any base rent
had ever been granted. A rent concession or waiver of the base rent shall not
relieve Lessee of any obligation to pay any other charge due and payable under
this Lease including without limitation any sum due under section 2.02.
Notwithstanding anything contained in this Lease to the contrary, this Lease may
be terminated by Lessor only by mailing or delivering written notice of such
termination to Lessee, and no other act or omission of Lessor shall be construed
as a termination of this Lease.
ARTICLE 12.00 RELOCATION
ARTICLE 13.00 DEFINITIONS
13.01 Abandon. "Abandon" means the vacating of all or a substantial
portion of the leased premises by Lessee, whether or not Lessee is in default of
the rental payments due under this Lease.
13.02 Act of God or Force Majeure. An "act of God" or "force majeure" is
defined for purposes of this Lease as strikes, lockouts, sitdowns, material or
labor restrictions by any governmental authority, unusual transportation delays,
riots, floods, washouts, explosions, earthquakes, fire, storms, weather
(including wet grounds or inclement weather which prevents construction), acts
of the public enemy, wars, insurrections and any other cause not reasonably
within the control of Lessor and which by the exercise of due diligence Lessor
is unable, wholly or in part, to prevent or overcome.
13.03 Building or Project. "Building" or "project" as used in this Lease
means the building and/or project described in section 1.02, including the
leased premises and the land upon which the building or project is situated.
13.04 Commencement Date. "Commencement date" shall be the date set forth
in section 1.03. The commencement date shall constitute the commencement of the
term of this Lease for all purposes, whether or not Lessee has actually taken
possession.
13.05 Completion Date. "Completion date" shall be the date on which the
improvements erected and to be erected upon the leased premises shall have been
completed in accordance with the plans and specifications described in article
6.00. The completion date shall constitute the commencement of the term of this
Lease for all purposes, whether or not Lessee has actually taken possession.
Lessor shall use its best efforts to establish the completion date as the date
set forth in section 1.03. In the event that the improvements have not in fact
been completed as of that date, Lessee shall notify Lessor in writing of its
objections. Lessor shall have a reasonable time after delivery of the notice in
which to take such corrective action as may be necessary and shall notify Lessee
in writing as soon as it deems such corrective action has been completed and the
improvements are ready for occupancy. Upon completion of construction, Lessee
shall deliver to Lessor a letter accepting the leased premises as suitable for
the purposes for which they are let and the date of such letter shall constitute
the commencement of the term of this Lease. Whether or not Lessee has executed
such letter of acceptance, taking possession of the leased premises by Lessee
shall be deemed to establish conclusively that the improvements have been
completed in accordance with the plans and specifications, are suitable for the
purposes for which the leased premises are let, and that the leased premises are
in good and satisfactory condition as of the date possession was so taken by
Lessee, except for latent defects, if any.
13.06 Square Feet. "Square feet" or "square foot" as used in this Lease
includes the area contained within the leased premises together with a common
area percentage factor of the leased premises proportionate to the total
building area.
ARTICLE 14.00 MISCELLANEOUS
14.01 Waiver. Failure of Lessor to declare an event of default immediately
upon its occurrence, or delay in taking any action in connection with an event
of default, shall not constitute a waiver of the default, but Lessor shall have
the right to declare the default at any time and take such action as is lawful
or authorized under this Lease. Pursuit of any one or more of the remedies set
forth in article 11.00 above shall not preclude pursuit of any one or more of
the other remedies provided elsewhere in this Lease or provided by law, nor
shall pursuit of any remedy constitute forfeiture or waiver of any rent or
damages accruing to Lessor by reason of the violation of any of the terms,
provisions or covenants of this Lease. Failure by Lessor to enforce one or more
of the remedies provided upon an event of default shall not be deemed or
construed to constitute a waiver of the default or of any other violation or
breach of any of the terms, provisions and covenants contained in this Lease.
14.02 Act of God. Lessor shall not be required to perform any covenant or
obligation in this Lease, or be liable in damages to Lessee, so long as the
performance or non-performance of the covenant or obligation is delayed, caused
or prevented by an act of God, force majeure or by Lessee.
14.03 Attorney's Fees. In the event either party defaults in the
performance of any of the terms, covenants, agreements or conditions contained
in this Lease and the other party places in the hands of an attorney the
enforcement of all or any part of this Lease, the collection of any rent due or
to become due or recovery of the possession of the leased premises the
defaulting party agrees to pay the prevailing party costs of collection,
including reasonable attorney's fees for the services of the attorney, whether
suit is actually filed or not.
14.04 Successors. This Lease shall be binding upon and inure to the
benefit of Lessor and Lessee and their respective heirs, personal
representatives, successors and assigns. It is hereby covenanted and agreed that
should Lessor's interest in the leased premises cease to exist for any reason
during the term of this Lease, then notwithstanding the happening of such event
this Lease nevertheless shall remain unimpaired and in full force and effect,
and Lessee hereunder agrees to attorn to the then owner of the leased premises.
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14.05 Rent Tax. If applicable in the jurisdiction where the leased
premises are situated. Lessee shall pay and be liable for all rental, sales and
use taxes or other similar taxes, if any, levied or imposed by any city, state,
county or other governmental body having authority, such payments to be in
addition to all other payments required to be paid to Lessor by Lessee under the
terms of this Lease. Any such payment shall be paid concurrently with the
payment of the rent, additional rent, operating expenses or other charge upon
which the tax is based as set forth above.
14.06 Captions. The captions appearing in this Lease are inserted only as
a matter of convenience and in no way define, limit, construe or describe the
scope or intent of any section.
14.07 Notice. All rent and other payments required to be made by Lessee
shall be payable to Lessor at the address set forth in section 1.05. All
payments required to be made by Lessor to Lessee shall be payable to Lessee at
the address set forth in section 1.05, or at any other address within the United
States as Lessee may specify from time to time by written notice. Any notice or
document required or permitted to be delivered by the terms of this Lease shall
be deemed to be delivered (whether or not actually received) when deposited in
the United States Mail, postage prepaid, certified mail, return receipt
requested, addressed to the parties at the respective addresses set forth in
section 1.05.
14.08 Submission of Lease. Submission of this Lease to Lessee for
signature does not constitute a reservation of space or an option to lease. This
Lease is not effective until execution by and delivery to both Lessor and
Lessee.
14.09 Corporate Authority. If Lessee executes this Lease as a corporation,
each of the persons executing this Lease on behalf of Lessee does hereby
personally represent and warrant that Lessee is a duly authorized and existing
corporation, that Lessee is qualified to do business in the state in which the
leased premises are located, that the corporation has full right and authority
to enter into this Lease, and that each person signing on behalf of the
corporation is authorized to do so. In the event any representation or warranty
is false, all persons who execute this Lease shall be liable, individually, as
Lessee.
14.10 Severability. If any provision of this Lease or the application
thereof to any person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Lease and the application of such provisions to
other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
14.11 Lessor's Liability. If Lessor shall be in default under this Lease
and, if as a consequence of such default, Lessee shall recover a money judgment
against Lessor, such judgment shall be satisfied only out of the right, title
and interest of Lessor in the building as the same may then be encumbered and
neither Lessor nor any person or entity comprising Lessor shall be liable for
any deficiency. In no event shall Lessee have the right to levy execution
against any property of Lessor nor any person or entity comprising Lessor other
than its interest in the building as herein expressly provided.
14.12 Indemnity. Lessor agrees to indemnify and hold harmless Lessee from
and against any liability or claim, whether meritorious or not, arising with
respect to any broker whose claim arises by, through or on behalf of Lessor.
Lessee agrees to indemnify and hold harmless Lessor from and against any
liability or claim, whether meritorious or not, arising with respect to any
broker whose claim arises by, through or on behalf of Lessee.
ARTICLE 15.00 AMENDMENT AND LIMITATION OF WARRANTIES
15.01 Entire Agreement. IT IS EXPRESSLY AGREED BY LESSEE, AS A MATERIAL
CONSIDERATION FOR THE EXECUTION OF THIS LEASE, THAT THIS LEASE, WITH THE
SPECIFIC REFERENCES TO WRITTEN EXTRINSIC DOCUMENTS, IS THE ENTIRE AGREEMENT OF
THE PARTIES; THAT THERE ARE, AND WERE, NO VERBAL REPRESENTATIONS, WARRANTIES,
UNDERSTANDINGS, STIPULATIONS, AGREEMENTS OR PROMISES PERTAINING TO THIS LEASE OR
TO THE EXPRESSLY MENTIONED WRITTEN EXTRINSIC DOCUMENTS NOT INCORPORATED IN
WRITING IN THIS LEASE.
15.02 Amendment. THIS LEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR
EXTENDED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY LESSOR AND LESSEE.
15.03 Limitation of Warranties. LESSOR AND LESSEE EXPRESSLY AGREE THAT
THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OF MERCHANTABILITY, HABITABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING OUT OF THIS LEASE,
AND THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY SET FORTH IN
THIS LEASE.
ARTICLE 16.00 OTHER PROVISIONS
16.01 See Exhibit "B", Addendum to Lease, attached hereto and made a part
hereof.
ARTICLE 17.00 SIGNATURES
SIGNED at Memphis, Tennessee this 18th day of April , 1994
--------------------------- ---- -------- --
LESSOR LESSEE
Weston Management Company as Manager for Embassy Suites, Inc.
---------------------------------------- -------------------------
Metropolitan Life Insurance Company a Delaware Corporation
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By: Xxxxx X. Xxxx By: Xxxx X. Barnhast
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Xxxxx X. Xxxx, President Vice President
---------------------------------------- -------------------------
(Type Name and Title) (Type Name and Title)
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RULES AND REGULATIONS
1. Lessor agrees to furnish Lessee two keys without charge. Additional keys
will be furnished at a nominal charge. Lessee shall not change locks or
install additional locks on doors without prior written consent of Lessor.
Lessee shall not make or cause to be made duplicates of keys procured from
Lessor without prior approval of Lessor. All keys to leased premises shall
be surrendered to Lessor upon termination of this Lease.
2. Lessee will refer all contractors, contractor's representatives and
installation technicians rendering any service on or to the leased premises
for Lessee to Lessor for Lessor's approval before performance of any
contractual service. Lessee's contractors and installation technicians
shall comply with Lessor's rules and regulations pertaining to construction
and installation. This provision shall apply to all work performed on or
about the leased premises or project, including installation of telephones,
telegraph equipment, electrical devices and attachments and installations
of any nature affecting floors, walls, woodwork, trim, windows, ceilings
and equipment or any other physical portion of the leased premises or
project.
3. Lessee shall not at any time occupy any part of the leased premises or
project as sleeping or lodging quarters.
4. Lessee shall not place, install or operate on the leased premises or in any
part of the building any engine, stove or machinery, or conduct mechanical
operations or xxxx thereon or therein, or place or use in or about the
leased premises or project any explosives, gasoline, kerosene, oil, acids,
causties, or any flammable, explosive or hazardous material without written
consent of Lessor.
5. Lessor will not be responsible for lost or stolen personal property,
equipment, money or jewelry from the leased premises or the project
regardless of whether such loss occurs when the area is locked against
entry or not.
6. No dogs, cats, fowl, or other animals shall be brought into or kept in or
about the leased premises or project.
7. Employees of Lessor shall not receive or carry messages for or to any
Lessee or other person or contract with or render free or paid services to
any Lessee or to any of Lessee's agents, employees or invitees.
8. None of the parking, plaza, recreation or lawn areas, entries, passages,
doors, elevators, hallways or stairways shall be blocked or obstructed or
any rubbish, litter, trash, or material of any nature placed, emptied or
thrown into these areas or such area used by Lessee's agents, employees or
invitees at any time for purposes inconsistent with their designation by
Lessor.
9. The water closets and other water fixtures shall not be used for any
purpose other than those for which they were constructed, and any damage
resulting to them from misuse or by the defacing or injury of any part of
the building shall be borne by the person who shall occasion it. No person
shall waste water by interfering with the faucets or otherwise.
10. No person shall disturb occupants of the building by the use of any radios,
record players, tape recorders, musical instruments, the making of unseemly
noises or any unreasonable use.
11. Nothing shall be thrown out of the windows of the building or down the
stairways or other passages.
12. Lessee and its employees, agents and invitees shall park their vehicles
only in those parking areas designated by Lessor. Lessee shall furnish
Lessor with state automobile license numbers of Lessee's vehicles and its
employees' vehicles within five days after taking possession of the leased
premises and shall notify Lessor of any changes within five days after such
change occurs. Lessee shall not leave any vehicle in a state of disrepair
(including without limitation, flat tires, out of date inspection stickers
or license plates) on the leased premises or project. If Lessee or its
employees, agents or invitees park their vehicles in areas other than the
designated parking areas or leave any vehicle in a state of disrepair,
Lessor, after giving written notice to Lessee of such violation, shall have
the right to remove such vehicles at Lessee's expense.
13. Parking in a parking garage or area shall be in compliance with all parking
rules and regulations including any sticker or other identification system
established by Lessor. Failure to observe the rules and regulations shall
terminate Lessee's right to use the parking garage or area and subject the
vehicle in violation of the parking rules and regulations to removal and
impoundment. No termination of parking privileges or removal of
impoundment of a vehicle shall create any liability on Lessor or be deemed
to interfere with Lessee's right to possession of its leased premises.
Vehicles must be parked entirely within the stall lines and all directional
signs, arrows and posted speed limits must by observed. Parking is
prohibited in areas not striped for parking, in aisles, where "No Parking"
signs are posted, on ramps, in cross hatched areas, and in other areas as
may be designated by Lessor. Parking stickers or other forms of
identification supplied by Lessor shall remain the property of Lessor and
not the property of Lessee and are not transferable. Every person is
required to park and lock his vehicle. All responsibility for damages to
vehicles or persons is assumed by the owner of the vehicle or its driver.
14. Movement in or out of the building of furniture or office supplies and
equipment, or dispatch to receipt by Lessee of any merchandise or materials
which requires use of elevators or stairways, or movement through the
building entrances or lobby, shall be restricted to hours designated by
Lessor. All such movement shall be under supervision of Lessor and carried
out in the manner agreed between Lessee and Lessor by prearrangement before
performance. Such prearrangement will include determination by Lessor of
time, method, and routing of movement and limitations imposed by safety or
other concerns which may prohibit any article, equipment or any other item
from being brought into the building. Lessee assumes, and shall indemnify
Lessor against, all risks and claims of damage to persons and properties
arising in connection with any said movement, other than damage caused by
Lessor's negligence or misconduct.
15. Lesssor shall not be liable for any damages from the stoppage of elevators
for necessary or desirable repairs or improvements or delays of any sort or
duration in connection with the elevator service.
16. Lessee shall not lay floor covering within the leased premises without
written approval of the Lessor. The use of cement or other similar adhesive
materials not easily removed with water is expressly prohibited.
17. Lessee agrees to cooperate and assist Lessor in the prevention of
canvassing, soliciting and peddling within the building or project.
18. Lessor reserves the right to exclude from the building or project, between
the hours or 6:00 p.m. and 7:00 a.m. on weekdays and at all hours on
Saturday, Sunday and legal holidays, all persons who are not known to the
building or project security personnel and who do not present a pass to the
building signed by the Lessee. Each Lessee shall be responsible for all
persons for whom he supplies a pass.
19. It is Lessor's desire to maintain in the building or project the highest
standard of dignity and good taste consistent with comfort and convenience
for Lessees. Any action or condition not meeting this high standard should
be reported directly to Lessor. Your cooperation will be mutually
beneficial and sincerely appreciated. Lessor reserves the right to make
such other and further reasonable rules and regulations as in its judgment
may from time to time be necessary, for the safety, care and cleanliness of
the leased premises and for the preservation of good order therein.
ACKNOWLEDGMENTS FOR LESSOR AND LESSEE
STATE OF )
)ss.
COUNTY OF )
BEFORE ME, the undersigned Notary Public in and for the State and County
aforesaid, personally appeared Xxxx Xxxxxxxx with whom I am personally
acquainted (or proved to me on the basis of satisfactory evidence) and who, upon
oath, acknowledged himself to be the Vice President of Embassy Suites, Inc., a
Delaware Corporation the within named bargainor, a corporation and that he as
such Vice President executed the foregoing instrument for the purposes therein
contained, by signing the name of the corporation by himself as such Vice
President.
WITNESS my hand and Official Seal at office this 29th day of March, 1994.
Xxxxxxx X. Xxxxx
-----------------------------
Notary Public
My Commission Expires:
MY COMMISSION EXPIRES SEPT. 17, 1996
------------------------------------
STATE OF TENNESSEE )
) ss.
COUNTY OF SHELBY )
BEFORE ME, the undersigned Notary Public in and for the State and County
aforesaid, personally appeared Xxxxx X. Xxxx with whom I am personally
acquainted (or proved to me on the basis of satisfactory evidence) and who, upon
oath, acknowledged himself to be the President of Weston Management Company, the
within named bargainor, a corporation, and that he as such President, executed
the foregoing instrument for the purposes therein contained, by signing the name
of the corporation by himself as such President.
WITNESS my hand and Official Seal at office this 18th day of April, 1994.
Xxxxx Xxxx Xxxxxx
------------------------------
Notary Public
My Commission Expires:
EXHIBIT "B"
ADDENDUM TO LEASE
between
WESTON MANAGEMENT COMPANY AS MANAGER FOR
METROPOLITAN LIFE INSURANCE COMPANY, LESSOR
and
EMBASSY SUITES, INC., A DELAWARE CORPORATION, LESSEE
1. Finish Allowance: It is agreed and understood Lessor will furnish Lessee a
finish allowance of up to $11.00/rentable square foot for the completion of
the construction of the improvements as specified on floor plan as Weston
Job Number 93278, which upon completion of final design and layout will be
attached hereto and made a part hereof as Exhibit "A". Any amount in excess
of the said finish allowance, including change orders, shall be paid to
Lessor by Lessee in cash upon completion of the improvements and prior to
occupancy of the premises. Any amount due from Lessee will be invoiced when
the work is released for construction and payment in full is due on the
completion date. After thirty (30) days, past due payments will have
interest added to the unpaid balance at a rate of 1 1/2% per month until
payment, including any added interest, is received in full.
2. Section 2.02 Operating Expenses: For the purposes of this Lease, the Lessor
reserves the right to appeal the 1993 real estate taxes, and in the event
the appeal with the taxing authority produces a reduction in real estate
taxes for the year 1993, the expense stop as set forth in Section 2.02 of
this Lease shall be reduced accordingly whether the appeal is successful in
1993 or in a succeeding year.
3. Section 9.03 Conditions of Assignment: Anything in Article 9.00 Assignment
or Sublease to the contrary notwithstanding, Lessee shall have the right to
assign this Lease or sublet the leased premises without the consent of the
Lessor to (a) an affiliate or subsidiary of Lessee, (b) an entity with
which Lessee is merged or consolidated, or (c) an entity which purchases
substantially all of Lessee's assets by stock purchase or otherwise,
provided such assignee or sublessee shall continue to use the leased
premises for the same purposes and in substantially the same manner as
Lessee, and provided further that the assignee's or sublessee's financial
strength meets Lessor's financial requirements. Lessee must give Lessor
thirty (30) days written notice of such assignment or sublease as set forth
herein. No such assignment or subletting shall be construed to constitute a
novation or release Lessee from any obligation or liability under this
Lease unless such release shall be in writing and signed by Lessor. No such
assignee or sublessee may assign or sublet the leased premises or any
portion thereof without the prior written consent of Lessor.
4. Insurance: Lessee shall at Lessee's expense, obtain and keep in force at
all times during the term of this Lease, comprehensive general liability
insurance including, property damage on an occurrence basis with limits of
not less than One Million Dollars (1,000,000) combined single limit
insuring Lessor and Lessee against any liability arising out of the
ownership, use, occupancy or maintenance of the leased premises and all
areas appurtenant thereto. The limit of said insurance shall not, however,
limit the liability of the Lessee hereunder. Lessee may carry said
insurance under a blanket policy providing an endorsement naming Lessor as
an additional insured is attached thereto.
5. Section 2.07 Holding Over: If Lessee holds over with the written consent of
Lessor, the holdover rent shall be at a rate negotiated by Lessee and
Lessor.
Page 2
Addendum to Lease Agreement
Embassy Suites, Inc.
6. Section 4.01 Building Services: however, if such failure is within the
reasonable control of Lessor and not subject to the provisions of Section
14.02 of the Lease, Lessee upon giving written notice to Lessor of such
failure and the failure of Lessor to use its best efforts to provide such
service, may take reasonable necessary action to provide such services. The
cost of such repair shall be reimbursed to Lessee by Lessor within ten
(10) days upon receipt of an invoice from Lessee with paid receipts or
other evidence substantiating the actual cost of the work performed.
7. Section 7.05 Hold Harmless: This clause shall not apply to negligent acts
or negligent omissions of Lessor or Lessor's agents, contractors or
employees.
8. Section 9.04 Subordination: Lessor will use reasonable and diligent effort
to obtain a non-disturbance agreement for Lessee from any future mortgagee
or lien holder. Lessor covenants that as of the date hereof there is no
mortgage deed or trust or ground and/or building leases constituting a
lien against the land and/or building.
SIGNED by Lessor at Memphis, this 18th day of April, 1994.
LESSOR LESSEE
Weston Management Company as Manager for Embassy Suites, Inc.
Metropolitan Life Insurance Company a Delaware Corporation
---------------------------------------- ----------------------------------
BY: Xxxxx X. Xxxx BY: Xxxx X. Xxxxxxxx
------------------------------------- ----------------------------------
TITLE: TITLE: VP
---------------------------------- ---------------------------
LEASEHOLD IMPROVEMENTS
----------------------
Asset # Description NBV 6-1-97
------- ------------ ----------
5 Fire Extinguisher $ 77.95
6 Ice Cuber 359.50
8 Refrigerator (Partial) 142.89
9 Refrigerator (Partial) 259.79
11 Voice & Data Wiring 53.39
13 Voice & Data Wiring 81.10
14 Voice & Data Wiring 38.81
15 Paging System 4,526.31
51 Window Film 427.77
---------
TOTAL $5,967.51
EXHIBIT C
Value of common use items at Audubon Xxxxx
NBV 6/1/97 Months Per Month
---------- ------ ---------
5/31/97 - 4/30/99
Common Leasehold Improvements:
------------------------------
Fire Extinguisher 77.95 23 3.39
Ice Cuber 359.50 23 15.63
Partial Refrigerator 142.89 23 6.21
Partial Refrigerator 259.79 23 11.30
Voice & Data Wiring 53.39 23 2.32
Voice & Data Wiring 81.10 23 3.53
Voice & Data Wiring 38.81 23 1.69
Paging System 4,526.31 23 196.80
Carpet 5,890.97 23 256.13
Carpet Installation 6,626.50 23 288.11
China, Silverware for Breakroom 154.87 23 6.73
Tables for Breakroom 173.10 23 7.53
Conference Room Chairs 2,680.59 23 116.55
Conference Room Tables 897.00 23 39.00
Other Common Use Items:
-----------------------
Alarm System (monitoring (WAG) 25.00
Copy Machine Plus Supplies (per Xxxxxxxx) 400.00
Konica is $300/month = tax = .008 per copy
Coffee Service/Breakroom Supplies @ .50/ea/da (WAG) 195.00
------
Total Monthly Charge $1,574.90
=========
