1
EXHIBIT 10.25
OFFICE LEASE
between
MPOWER SOLUTIONS INC., a New Mexico Corporation,
Tenant
and
MBL Life Assurance Corporation, Landlord
Date: May 2, 1997
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TABLE OF CONTENTS
Article 1 Basic Lease Information
1.1 Basic Lease Information
1.2 Definitions
1.3 Exhibits
Article 2 Agreement
Article 3 Term, Delivery, and Acceptance of Premises
3.1 Deliver of Possession
3.2 Early Entry
Article 4 Monthly Rent
Article 5 Increases In Taxes and Operating Expenses
5.1 General
5.2 Definitions
5.3 Share of Taxes
5.4 Final Determination
5.5 Operating Expenses
5.6 Disputes
5.7 Audit
5.8 Survival After Termination
5.9 Other Taxes
Article 6 Insurance
6.1 Landlord's Insurance
6.2 Tenant's Insurance
6.3 Forms of Policies
6.4 Waiver of Subrogation
6.5 Adequacy of Coverage
Article 7 Use
Article 8 Requirements of Law; Fire Insurance
8.1 General
8.2 Hazardous Materials
8.3 Certain Insurance Risks
Article 9 Assignment and Subletting
9.1 General
9.2 Submission of Information
9.3 Payments to Landlord
9.4 Prohibited Transfers
9.5 Landlord's Options
9.6 Permitted Transfer
Article 10 Rules and Regulations
Article 11 Common Areas
Article 12 Landlord's Services
12.1 Landlord's Repair and Maintenance
12.2 Landlord's Other Services
12.3 Tenant's Costs
12.4 Limitation on Liability
Article 13 Tenant's Care of the Premises
Article 14 Alterations
14.1 General
14.2 Free-Standing Partitions
14.3 Removal
Article 15 Mechanics Liens
Article 16 End of Term
Article 17 Eminent Domain
Article 18 Damage and Destruction
Article 19 Subordination
19.1 General
19.2 Attornment
Article 20 Entry by Landlord
Article 21 Indemnification, Waiver, and Release
21.1 Indemnification
21.2 Waiver and Release
Article 22 Security Deposit
Article 23 Quiet Enjoyment
Article 24 Effect of Sale
Article 25 Default
2.5.l Events of Default
25.2 Landlord's Remedies
25.3 Certain Damages
25.4 Continuing Liability After Termination
25.5 Cumulative Remedies
25.6 Waiver of Redemption
Article 26 Parking
Article 27 Miscellaneous
27.1 No Offer
27.2 Joint and Several Liability
27.3 No Construction Against Drafting Party
27.4 Time of the Essence
27.5 No Recordation
27.6 No Waiver
27.7 Limitation on Recourse
27.8 Estoppel Certificates
27.9 Attorneys Fees
27.10 No Merger
27.11 Holding Over
27.12 Notices
27.13 Severability
27.14 Written Amendment Required
27.15 Entire Agreement
27.16 Captions
27.17 Notice of Landlord's Default
27.18 Authority
27.19 Brokers
27.20 Governing Law
27.21 Late Payments
27.22 No Easements for Air or Light
27.23 Tax Credits
27.24 Relocation of the Premises
27.25 Financial Reports
27.26 Landlord's Fees
27.27 Binding Effect
27.28 Terms
27.29 Definition of Landlord
27.30 Rights Cumulative
27.31 Change of Building Name
27.32 Force Majeure
27.33 Third Party Beneficiary
27.34 No Joint Venture
27.35 Remedies
27.36 WAIVER OF JURY TRIAL
Addenda and Exhibits
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OFFICE LEASE
THIS OFFICE LEASE ("Lease") is entered into by Landlord and Tenant as described
in the following basic lease information on the date that is set forth for
reference only in the following basic lease information, Landlord and Tenant
agree:
ARTICLE I BASIC LEASE INFORMATION
1.1 Basic Lease Information. In addition to the terms that are defined
elsewhere in this Lease, these terms are used in this Lease:
(a) LEASE DATE: May 2, 1997
(b) LANDLORD: MBL Life Assurance Corporation
(c) LANDLORD'S ADDRESS:
c/o Income Property Services Brokerage, Inc.
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7801 Academy, NE
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Xxxxx Xxxxx Xxx, Xxxxx #000
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Xxxxxxxxxxx, XX 00000
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with a copy at the same time to: MBL Life Assurance Corporation, Vice
President - Real Estate Investment Division, 000 Xxxxx Xxxxxx, Xxxxxx,
XX 00000-0000
(d) TENANT: MPower Solutions, Inc.
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(e) TENANT'S ADDRESS: The Premises as defined this Lease with a copy
at the same time to:
0000 Xxxxxx Xxxxx, XX
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Xxxxxxxxxxx, XX 00000
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(f) BUILDING ADDRESS: 0000 Xxxxx Xxxxx. XX
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Xxxxx #000
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Xxxxxxxxxxx, XX 00000
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(g) PREMISES: The premises shown on Exhibit A to this Lease, known
as Suite #128.
(h) RENTABLE AREA OF THE PREMISES: For purposes of this Lease the
rentable square footage of the Premises shall be deemed to be
6,800 square feet.
(i) RENTABLE AREA OF THE BUILDING: For purposes of this Lease the
rentable square footage of the Building shall be deemed to be
37,000 square feet.
(j) TERM: 32 months, beginning on the Commencement Date and expiring
on the Expiration Date.
(k) COMMENCEMENT DATE: June 25, 1997 or as extended pursuant to the
Workletter.
(l) EXPIRATION DATE: Jan 31, 2000 or as extended pursuant to the
Workletter.
(m) SECURITY DEPOSIT: $6,500
(n) MONTHLY RENT:
Amount Per Month: Commencing On: Ending On:
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$1,086.11 June 25, 1997* June 30, 1997
$6,516.67 July 1, 1997 January 31, 2000
* Expected date of TI completion - 6/24/97
(o) BASE: Taxes - .33 psf; Insurance - .19 psf; and BOC's -
$3.48 psf
(p) TENANT'S SHARE: 100% of expenses attributable solely to the
Premises, and 18.38% of expenses attributable to the building,
percent (determined by dividing the Rentable Area of the
Premises by the Rentable Area of the Building, multiplying the
resulting quotient by 100, and rounding to the 3rd decimal
place).
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(q) PARKING SPACES: Unreserved, in common with the other tenants in
accordance with Article 26.
(r) PARKING CHARGE: $N/A per parking space per month, subject to
adjustments specified in Article 26.
(s) BROKER: Xxx Xxxxxx
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The Xxxxxx Agency
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000 Xxxxxxx, XX, Xxxxx #0000
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Xxxxxxxxxxx, XX 00000
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(t) BUSINESS HOURS: 6 a.m. to 7 p.m. on Monday through Friday.
(u) USE: General Business Offices
1.2 DEFINITIONS.
(a) ADDITIONAL RENT: Any amounts that this Lease requires Tenant to
pay in addition to Monthly Rent.
(b) BUILDING: The building located on the Land and of which the
Premises are a part.
(c) LAND: The land on which the Project is located and which is
described on Exhibit B.
(d) PRIME RATE: The rate of interest from time to time announced by
The Wall Street Journal as the, "prime rate," If The Wall Street
Journal or any reasonable successor to it ceases to announce the
prime rate, the prime Rate will be a comparable interest rate
designated by Landlord to replace, the Prime Rate.
(e) PROJECT: The development consisting of the Land and all
improvements its built on the Land, including without limitation
the Building, parking lot, parking structure, if any, walkways,
driveways, fences, and landscaping.
(f) RENT: The Monthly Rent and Additional Rent.
(g) WORKLETTER: The workletter attached to this Lease as Exhibit C
(if any).
If any other provision of this Lease contradicts any definition of this Article
1, the other provision will prevail.
1.3 Exhibits. The following exhibits and addenda are attached to this Lease
and are made part of this Lease:
EXHIBIT A --The Premises
EXHIBIT B --Legal Description of the Land
EXHIBIT C --Workletter
BXHIB1T D --Rules and Regulations
EXHIBIT E --Commencement Date and Estoppel Certificate
EXHIBIT H --Option to Extend
ADDENDUM:
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ARTICLE 2 AGREEMENT
In consideration for the Rent and other covenants and agreements made by Tenant,
Landlord leases the Premises to Tenant, and Tenant leases the Premises from
Landlord, according to this Lease. The duration of this Lease will be the Term.
The Term will commence on the Commencement Date and will expire on the
Expiration Date unless terminated earlier pursuant to the terms of this Lease.
ARTICLE 3 TERM, DELIVERY, AND ACCEPTANCE OF PREMISES
3.1 DELIVERY OF POSSESSION. Landlord will be deemed to have delivered
possession of the Premises to Tenant on the Commencement Date, as it may
be adjusted pursuant to the Workletter. Landlord will construct or
install in the Premises the improvements as defined in the Workletter to
be constructed or installed by Landlord according to the Workletter.
Except as expressly set forth in the Workletter, Landlord shall deliver
to Tenant possession of the Premises AS IS in its present condition on
the Commencement Date. Tenant acknowledges that neither Landlord nor its
agents or employees have made any representations or warranties as to
the suitability or fitness of the Premises for the conduct of Tenant's
business or for any other purpose, nor has Landlord or its agents or
employees agreed to undertake any alterations or construct any Tenant
improvements to the Premises except as expressly provided in this Lease
and the Workletter. If for any reason Landlord cannot deliver possession
of the Premises to Tenant on the Commencement Date, this Lease will not
be void or voidable, and Landlord will not be liable to Tenant for any
resultant loss or damage. Tenant will execute and deliver to Landlord
the Commencement Date and Estoppel Certificate attached to this Lease as
Exhibit E within 3 days of Landlord's request.
3.2 EARLY ENTRY. If Tenant is permitted entry to the Premises prior to the
Commencement Date for the purpose of installing fixtures or any other
purpose permitted by Landlord, the early entry will be at Tenant's sole
risk and subject to all the terms and provisions of this Lease as though
the Commencement Date had occurred, except for the payment of Rent,
which will commence on the Commencement Date. Tenant, its agents, or
employees will not interfere with or delay Landlord's completion of
construction of the improvements. Tenant hereby agrees to indemnify
Landlord against any injury, and loss or damage which may occur to any
person or to any of the Tenant's work or installations made in such
Premises, Building or Project, or to any personal property placed
therein, the same being at Tenant's sole risk, and, prior to any early
entry by Tenant, provide Landlord with proof of insurance coverages
described in this Lease. Landlord has the right to impose additional
conditions on Tenant's early entry that Landlord, in its reasonable
discretion, deems appropriate and Landlord will further have the right
to require that Tenant execute an early entry agreement containing those
conditions prior to Tenant's early entry.
ARTICLE 4 MONTHLY RENT
Throughout the Term of this Lease, Tenant will pay Monthly Rent to Landlord as
rent for the Premises. Monthly Rent will be paid in advance on or before the
first day of each calendar month of the Term. If the Term commences on a day
other than the first day of a calendar month or ends on a day other than the
last day of a calendar month, then Monthly Rent will be appropriately prorated
by Landlord based on the actual number of calendar days in such month. If the
Term commences on a day other than the first day of a calendar month, then the
prorated Monthly Rent for such month will be paid on or before the first day of
the Term. Monthly Rent will be paid to Landlord, without written notice or
demand, and without deduction or offset, in lawful money of the United States of
America at Landlord's address, or to such other address as Landlord may from
time to time designate in writing.
ARTICLE 5 INCREASES IN TAXES AND OPERATING EXPENSES
5.1 GENERAL. During each calendar year of the original and any additional
term hereof (pro-rated for any period less than a year) tenant shall pay
to Landlord as additional rent, "Tenant's Share of Taxes" (as
hereinafter defined) and "Tenant's Share of Operating Expenses" (as
hereinafter defined) for each such calendar year which is in excess of
Tenant's Share of Taxes or Tenant's Share of Operating Expenses (either
or both, as the case may be) for the Base Year as more fully described
in this Article 5.
5.2 DEFINITIONS. As used in this Article 5, or elsewhere in this Lease, the
following terms shall be defined as hereinafter set forth:
(a) "TAXES" shall mean all real estate taxes and assessments,
general or special, ordinary or extraordinary, foreseen or
unforeseen, imposed upon the Project, and any existing or future
improvements of whatever kind thereto or thereon. Taxes shall
include, without limitation, any assessment imposed by any
public or private entity by reason of the Project being located
in a special services district or similar designation. If, due
to a future change in the method of taxation, any franchise,
income, profit or other tax, however designated, shall be levied
or imposed in substitution, in whole or in part, for (or in lieu
of) any tax which would otherwise be included within the
definition of Taxes, such other tax shall be deemed to be
included within Taxes as defined herein.
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operation, maintenance and management of the Project (after
deducting any reimbursement, discount, credit, Insurance
proceeds, reduction or other allowance received by Landlord)
and shall include, without limitation: (A) service, repair,
replacement and other maintenance to the Building and components
thereof; (B) wages and salaries (and taxes and other charges
imposed upon employers with respect to such wages and salaries)
and fringe benefits paid to persons employed by Landlord for
rendering service in the operation, maintenance and repair of
the Building and related facilities and amenities; (C) costs of
independent contractors hired for the operation, maintenance and
repair of the Building and related facilities and amenities; (D)
costs of electricity, steam, water, fuel, heating, lighting, air
conditioning, newer and other utilities chargeable to the
operation and maintenance of the Building; (E) cost of insurance
for and relating to the Project, including fire and extended
coverage (or such greater coverages as Landlord may elect to
carry) boiler, water damage, public liability and property
damage, plate glass, and rent protection, but excluding any
charge for increased premiums due to acts or omissions of other
occupants of the Building because of extra risk which are
reimbursed to Landlord by such other occupants (or if Landlord
self insures the Project or any part thereof, a sum in lieu
thereof which is not in excess of the then prevailing rates for
such insurance for comparable projects); (F) costs of supplies;
(G) coals of window cleaning, janitorial services, security
services, landscaping, snow and ice removal and painting; (H)
sales or use taxes on supplies and services; (I) consulting,
accounting fees, legal, tax appeal, engineering and other
professional fees and expenses; (J) management fees, or if no
managing agent is employed by Landlord a sum in lieu thereof
which is not in excess of the then prevailing rates for
management fees for comparable projects; (K) alterations and
improvements to the Project which are not capital in nature made
by reason of any requirement of any insurance underwriters or
any federal, state, or local statutes, regulations, ordinances,
or other any duly constituted public authorities having
jurisdiction over the Premises (hereinafter a Governmental
Requirement); and (L) without limiting any of the foregoing, any
other expense or charge which, in accordance with sound
accounting and management principles generally accepted, would
be construed as an operating expense. The term "Operating
Expenses" shall not include: (A) The cost of redecorating or
repairing, or special cleaning or other services, not provided
on a regular basis to office tenants of the Building; (B) wages,
salaries or fees paid to executive personnel of Landlord; (C)
the cost of any replacement item which, by standard accounting
practice, should be capitalized (except as otherwise provided in
subsection (3) below: (D) any charge for depreciation or
interest paid or incurred by Landlord; (E) any charge for
Landlord's income tax, excess profit taxes, franchise taxes or
similar taxes on Landlord's business; (F) leasing commissions;
(G) real estate taxes; or (H) legal fees for the negotiation or
enforcement of leases. If Landlord is not furnishing any
particular work or service (the cost of which, if performed by
Landlord, would constitute an Operating Expense) to a tenant who
has undertaken to perform such work or service in lieu of
performance by Landlord, Operating Expenses shall nevertheless
be deemed to include the amount Landlord would reasonably have
incurred if Landlord had in fact performed the work or service
at its expense.
(2) Tenant's Expense Share is a fixed percentage and does not vary with
changing occupancy levels of the Building. Operating Expenses are
computed for the Building as a whole.* Accordingly, in order to
stabilize the calculation of increase in Operating Expenses on a square
foot basis for the Demised Premises, a further adjustment is to be made
as follows: In determining Operating Expenses for any year, if the
Building was less than 95% occupied during such entire year, or was not
in operation during such entire year, then Operating Expenses shall be
annualized by Landlord (taking into account seasonal variations) and
adjusted to reflect the amount that such expenses would normally be
expected to have been, in the reasonable estimate of Landlord, had the
Building been 95% occupied and operational throughout such year, except
that in no event shall such adjustment result in an amount less than the
actual Operating Expenses.
(3) In the event Landlord shall make a capital expenditure for an "Essential
Capital Improvement", as hereinafter defined in this subsection (3),
during any year, the annual amortization of such expenditure (determined
by dividing the amount of the expenditure by the useful life of the
improvement, as determined by the Landlord), together with interest at
the greater of the Prime Rate prevailing plus 2% or Landlord's actual
borrowing rate for such Essential Capital Improvement, shall be deemed
an Operating Expense for each year of such useful life. As used herein,
an "Essential Capital Improvement" means any of the following:
(A) a labor saving device, energy saving device or other
installation, improvement or replacement which reduces Operating
Expenses as referred to above, whether or not voluntary or
required by governmental mandate; or
(B) an installation, change, improvement, addition, alteration or
removal of any architectural barriers, whether or not the
foregoing are structural in nature, made by reason of any
Governmental Requirements whether or not such Governmental
Requirement existed on the date of execution of this Lease if
such Governmental Requirement is or will be applicable generally
to similar office buildings; or
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* See page 4a.
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MBL Office Lease for Mpower Solutions, Inc.
Para 5.2(b)(2) added: * except for certain expenses solely attributable to the
demised premises.
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(C) an installation or improvement which directly enhances the
health or safety of tenants in the Building generally, whether
or not voluntary or required by governmental mandate (as, for
example, but without limitation, for fire safety or security).
5.3 SHARE OF TAXES
(a) Increases in Taxes. For and with respect to each calendar year
within which the term of this Lease (and any renewal or
extension thereof) falls, there shall accrue, as additional
rent, the amount, if any, by which Tenant's Share of Taxes for
such calendar year (annualized for any partial year) exceeds the
Tenant's Share of Taxes for the Base Year. Such additional rent
shall be prorated on a per-diem basis for any partial calendar
year included within the term. Such additional rent for any
calendar year is hereinafter referred to as an "Increase in
Taxes", and one-twelfth (1/12) of such amount is hereinafter
referred to as a "Monthly Tax Increase",
(b) Payment of Increase In Taxes. At Landlord's option, each
Increase in Taxes shall be paid with respect to each calendar
year in either or both of the following manners:
(l) Within thirty (30) days after receipt from Landlord of a
Statement of Taxes (defined below) containing the amount
due from Tenant on account of the Increase in Taxes, but
in any event at least thirty (30) days prior to the last
date the tax in question is payable by Landlord to the
taxing authority with discount; or
(2) At any time during the term of this Lease, or any
extension or renewal hereof, Landlord may decide that in
lieu of a one time payment of the Increase in Taxes
provided in Subparagraph (5.3)(1) above, Landlord may
require Tenant to pay any Increase in Taxes in
accordance with Subparagraph (5.3)(d) below.
(c) Statement of Tax Increases. On or before sixty (60) days after
Landlord receives any statement of Taxes due from the applicable
governmental agency (or as soon thereafter as practicable),
Landlord shall furnish to Tenant a "Statement of Taxes" setting
forth, in reasonable detail:
(1) The Amount of Taxes for the calendar Year for which
Taxes are payable to the taxing authority;
(2) The Increase in Taxes for such calendar Year;
(3) The amount, if any, previously paid by Tenant to
Landlord on account of any Increase in Taxes for such
calendar year;
(4) The amount due from Tenant on account of any Increase in
Taxes; and
(5) If applicable, the Monthly Tax Increase payable during
the calendar year.
(d) Payment of Increase in Taxes on a Monthly Basis. At Landlord's
option, payment of additional rent due on account of an Increase
in Taxes for any given calendar year shall be made in advance as
follows:
(1) On the first day of the first month following either
receipt by Tenant of the Statement of Taxes or, if
later, notice of Landlord's election to have an Increase
in Taxes paid on a monthly basis, Tenant shall pay to
Landlord an amount equal to the Monthly Tax Increase
multiplied by the number of months fully or partially
elapsed in the calendar year (including the month in
which the payment is made); and
(2) Commencing on the first day of the second month
following either receipt by Tenant of the Statement of
Taxes or, if later, notice of Landlord's election, and
continuing until the receipt by Tenant of the next
Statement of Taxes, the minimum monthly installments of
rent due hereunder shall be increased by an amount equal
to the Monthly Tax Increase, subject to the provisions
set forth in Subparagraph 5.3(e) below; and
(3) Any overpayment by Tenant of additional rent due on
account of the Increase in Taxes shall be adjusted by a
credit to Tenant given contemporaneously with the
furnishing of the next Statement of Taxes.
(e) Optional Billing for Taxes. At Landlord's option, exercisable
with respect to any one or more calendar years during the term
of this Lease, Landlord may include, within the Statement of
Taxes furnished to Tenant pursuant to Subparagraphs 5.3(c) and
5.3(d) above, Landlord's good faith estimate of Taxes for the
following calendar year, and the estimated annual Increase in
Taxes based thereon. In such case, the "Monthly Tax Increase" as
used in Subparagraph 5.3(d) above, for the computation of
Tenant's payments to Landlord during the calendar year on
account of the Increase in Taxes payable to the taxing authority
for the following calendar year shall be equal to one-twelfth
(1/12) of the aforesaid estimated Increase in Taxes.
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5.4 FINAL DETERMINATIONS. For purposes of Section 5.3 above, any assessment
upon which Tenant's Share of Taxes is based shall be deemed to be the
amount initially assessed until such time as an abatement, refund,
rebate or increase, if any (retroactive or otherwise), shall be finally
determined to be due, and upon such final determination, Landlord shall
promptly notify Tenant of the amount if any due to Tenant or Landlord,
as the case may be, as a result of the adjustment, and appropriate
payment to Landlord or Tenant, as the case may be, shall thereafter be
promptly made. Landlord shall have no duty to Tenant to contest, appeal
or otherwise challenge any Taxes. In the event of any reduction in Taxes
by reason of legal or other action taken by Landlord in contest of same,
there shall be added to and be deemed a part of the Taxes in question
the amount of Landlord's legal and other costs and expenses in obtaining
the reduction (but not an amount in excess of the tax savings).
5.5 OPERATING EXPENSES.
(a) Share of Operating Expenses. For and with respect to each
calendar year of the term of this Lease (and any renewals or
extensions thereof) there shall accrue, as additional rent, the
amount, if any, by which Tenant's Share of Operating Expenses
for such calendar year exceeds Tenant's Share of Operating
Expenses for the Base Year. Such additional rent shall be
prorated on a per-diem basis for any partial calendar year. Such
additional rent for any calendar year is hereinafter referred to
as the "Operating Expense Increase," and one-twelfth of such
amount is hereinafter referred to as the "Monthly Increase."
(b) Comparative Statements: Payments. On or before April 30 (or as
soon thereafter as practicable) of each calendar year during the
term hereof, and any renewals and extensions thereof, Landlord
shall furnish to Tenant a statement of Operating Expenses
prepared by Landlord setting forth, in reasonable detail: (1)
Operating Expenses for the preceding calendar year, (2) the
Operating Expense Increase for the preceding calendar year, (3)
the amount, if any paid by Tenant to Landlord during, the
preceding calendar year on account of said Operating Expense
Increase, (4) the amount due by Tenant on account of the
Operating Expense Increase, and (5) the Monthly Increase.
Payment of the additional rent due on account of the Operating
Expense Increase for the preceding calendar year shall be made
by Tenant within fifteen (15) days after receipt by Tenant of
such statement. Tenant shall also make payments to Landlord, on
account of the Operating Expense Increase for the then current
calendar year, as follows:
(1) On the first day of the first month following receipt by
Tenant of the annual statement, Tenant shall pay to
Landlord an amount equal to the Monthly Increase
multiplied by the number of months fully or partially
elapsed in the current calendar year (including the
month in which the payment is made), less any payments
which may have been made for such elapsed months
pursuant to Subparagraph 5.5(c) below;
(2) Commencing on the first day of the second month
following receipt by Tenant of the annual comparative
statement, and continuing until the receipt by Tenant of
the next annual statement, the minimum monthly
installments of rent due hereunder shall be increased by
an amount equal to the Monthly Increase, subject to the
provisions set forth in Subparagraph 5.5(c) below. Any
overpayment by Tenant of additional rent due on account
of the Operating Expense Increase shall be adjusted by a
credit to Tenant given contemporaneously with the
furnishing of the next comparative statement.
(c) Optional Billing for Operating Expenses. At Landlord's option,
exercisable with respect to any one or more calendar years
during the term of this Lease, Landlord may include, within the
comparative statement furnished to Tenant pursuant to
Subparagraph 5.5(b) above, Landlord's good faith estimate of
Operating Expenses for the then current calendar year, and the
estimated annual Operating Expense Increase based thereon. In
such case, the "Monthly Increase" as used in Subparagraph 5.5(b)
above for the computation of Tenant's payments on account of the
Operating Expense Increase for the current year, shall be equal
to one-twelfth of the aforesaid estimated Operating Expense
Increase.
5.6 DISPUTES. The information set forth on each Comparative Statement of
Operating Expenses and on each Statement of Taxes furnished to Tenant as
provided hereinabove shall be deemed approved by Tenant unless, within
thirty (30) days after submission to Tenant, Tenant shall notify
Landlord that it disputes the correctness thereof, specifying in detail
the basis for such assertion. Pending the resolution of any dispute,
however, Tenant shall continue to make payments in accordance with the
information contained in the comparative statement. Landlord agrees to
promptly provide to Tenant, upon request, extracts from Landlord's books
and records which are relevant to any items in dispute.
5.7 AUDIT. In the event Tenant elects to audit Landlord's Comparative
Statement of Operating Expenses or Statement of Taxes in accordance with
this clause, such audit must be (i) conducted by an independent
nationally recognized accounting firm that is not being compensated by
Tenant on a contingency fee basis, and (ii) completed within sixty (60)
days following Tenant's notice disputing the correctness of the
Comparative Statement of Operating Expenses pursuant to section 5.6
above. Furthermore, all of the information obtained through the Tenant's
audit with respect to financial matters (including, without limitation,
costs, expenses, income) and any other matters pertaining to the
Landlord and/or the Project as well as any compromise, settlement, or
adjustment reached between Landlord and Tenant relative to the results
of the audit shall be held in strict confidence by the Tenant and its
officers, agents, and
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employees; and Tenant shall cause its auditor and any of its officers,
agents, and employees to be similarly bound. As a condition precedent to
Tenant's exercise of its right to audit, Tenant must deliver to Landlord
a signed confidentiality agreement from the auditor (in form acceptable
to Landlord) acknowledging that all of the results of such audit as well
as any compromise, settlement, or adjustment reached between Landlord
and Tenant shall be held in strict confidence and shall not be revealed
in any manner to any person except upon the prior written consent of the
Landlord. Tenant understands and agrees that this provision is of
material importance to the Landlord and that any violation of the terms
of this provision shall result in immediate and irreparable harm to the
Landlord. Landlord shall have all rights allowed by law or equity if
Tenant, its officers, agents, or employees and/or the auditor violate
the terms of this provision, including, without limitation, the right to
terminate this Lease or the right to terminate Tenant's right to audit.
5.8 SURVIVAL AFTER TERMINATION. If, upon termination of this Lease for any
cause, the amount of any additional rent due pursuant to Article 5 has
not yet been determined, an appropriate payment from Tenant to Landlord,
or refund from Landlord to Tenant, shall be made within thirty (30) days
after Tenant's receipt of such determination from Landlord.
5.9 OTHER TAXES
(a) Tenant will reimburse Landlord upon demand for any and all taxes
payable by Landlord (other than as set forth in sub-paragraph
(b) below), whether or not now customary or within the
contemplation of Landlord and Tenant:
(1) upon or measured by rent, including without limitation,
any gross or revenue tax, sales tax, use tax, excise
tax, or value added tax levied by the federal government
or any other governmental body with respect to the
receipt of rent; and
(2) upon this transaction or any document to which Tenant is
a party creating or transferring an interest or an
estate in the Premises.
(b) Tenant will not be obligated to pay any inheritance tax, gift
tax, transfer tax, franchise tax, income tax (based on net
income), profit tax, or capital levy imposed upon Landlord.
(c) Tenant will pay promptly when due all personal property taxes on
Tenant's personal property in the Premises and any other taxes
payable by Tenant that if not paid might give rise to a lien on
the Premises or Tenant's interest in the Premises.
ARTICLE 6 INSURANCE
6.1 LANDLORD'S INSURANCE. At all times during the Term, Landlord will carry
and maintain:
(a) Fire and extended coverage insurance covering the Project, its
equipment, common area furnishings, and leasehold improvements
in the Premises to the extent of the Tenant Finish Allowance (as
that term is defined in the Workletter);
(b) Bodily injury and property damage liability insurance; and
(c) Such other insurance as Landlord reasonably determines from time
to time.
The insurance coverages and amounts in this Section 6.1 will be
reasonably determined by Landlord.
6.2 TENANT'S INSURANCE. At all times during the Term, Tenant will carry and
maintain, at Tenant's expense, the following insurance, in the amounts
specified below or such other amounts as Landlord may from time to time
reasonably request, with insurance companies and on forms satisfactory
to Landlord:
(a) Bodily injury and property damage liability insurance, with a
combined single occurrence limit of not less than $3,000,000 per
occurrence. All such insurance will be equivalent to coverage
offered by a commercial comprehensive general liability form,
including without limitation personal injury, products and
completed operations, broad form property damage, and
contractual liability coverage for the performance by Tenant of
the indemnity agreements set forth in Article 21 of this Lease;
(b) Insurance covering all of Tenant's furniture and fixtures,
machinery, equipment, stock, and any other personal property
owned and used in Tenant's business and found in, on, or about
the Project, and any leasehold improvements to the Premises
other than those provided by Landlord at the beginning of the
Term, if any, provided pursuant to the Workletter in an amount
not less than the full replacement cost. Property forms will
provide coverage on a broad form basis insuring against "all
risks of direct physical loss," All policy proceeds will be used
for the repair or replacement of the property damaged or
destroyed; however, if this Lease ceases under the provisions of
Article 18, Tenant will be entitled to any proceeds resulting
from damage to Tenant's furniture and fixtures, machinery,
equipment, stock, and any other personal property;
Page 7
11
(c) Worker's compensation insurance insuring against and
satisfying Tenant's obligations and liabilities under the
worker's compensation laws of the state in which the Project is
located, including employer's liability insurance in the limits
required by file laws of the state in which the Project is
located; and
(d) Owned, hired, or nonowned comprehensive automobile liability at
a limit of liability not less than $3,000,000 combined bodily
injury and property damage per occurrence.
If Tenant fails to obtain or maintain any insurance required hereunder,
Landlord shall have the option, without assuming any obligation in
connection therewith, to effect such insurance at the sole cost of the
Tenant and all outlays by Landlord shall be reimbursed by Tenant to
Landlord as Additional Rent.
6.3 FORMS OF POLICIES. Certificates of insurance, together with copies of
the endorsements, when applicable, naming Landlord and any others
specified by Landlord as additional insurers, will be delivered to
Landlord prior to Tenant's occupancy of the Premises and from time to
time at least 10 days prior to the expiration of the term of each such
policy. All commercial general liability or comparable policies
maintained by Tenant will name Landlord and such other persons or firms
as Landlord specifies from time to time as additional insurers,
entitling them to recover under such policies for any loss sustained by
them, their agents, and employees, including those losses sustained as a
result of the negligent acts or omissions of Tenant. All such policies
maintained by Tenant will provide that they may not be terminated nor
may coverage be reduced except after 30 days' prior written notice to
Landlord. All commercial general liability, automobile, and property
policies maintained by Tenant will be written as primary policies, not
contributing with and not supplemental to the coverage that Landlord may
carry.
6.4 WAIVER OF SUBROGATION. Landlord and tenant each waive any and all rights
to recover against the other or against any other tenant or occupant of
the Project, or against the officers, directors, shareholders, partners,
joint venturers, employees, agents, customers, invitees, or business
visitors of such other party or of such other tenant or occupant of the
Project, for any loss or damage to such waiving party arising from any
cause covered by any property insurance required to be carried by such
party pursuant to this Article 6 or any other property insurance
actually carried by such party to the extent of the limits of such
policy. Landlord and Tenant from time to time will cause their
respective insurers to issue appropriate waiver of subrogation rights
endorsements to all property insurance policies carried in connection
with the Project or the Premises or the contents of the Project or the
Premises. Tenant agrees to cause all other occupants of the Premises
claiming by, under, or through Tenant to execute and deliver to Landlord
such a waiver of claims and to obtain such waiver of subrogation rights
endorsements.
6.5 ADEQUACY OF COVERAGE. Landlord, its agents and employees make no
representation that the limits of liability specified to be carried by
Tenant pursuant to this Article 6 are adequate to protect Tenant. If
Tenant believes that any of such insurance coverage is inadequate,
Tenant shall obtain such additional insurance coverage as Tenant deems
adequate, at Tenant's sole expense.
ARTICLE 7 USE
Tenant covenants that the Premises will be used only for general business office
purposes and purposes incidental to that use, and for no other purpose. Tenant
will use the Premises in a careful, safe, and proper manner. Tenant will not use
or permit the Premises to be used or occupied for any purpose or in any manner
prohibited by any applicable laws. Tenant will not commit waste or suffer or
permit waste to be committed in, on, or about the Premises. Tenant will conduct
its business and control its employees, agents, and invitees in such a manner as
not to create any nuisance or interfere with, annoy, or disturb any other Tenant
or occupant of the Project or Landlord in its operation of the Project. Tenant
agrees to take possession of and occupy the entire Premises no later than 60
days after the Commencement Date, and Tenant further agrees to continue to
occupy the Premises throughout the remainder of the Term of this Lease until 90
days prior to the Expiration Date.
ARTICLE 8 REQUIREMENTS OF LAW; FIRE INSURANCE
8.1 GENERAL. At its sole cost and expense, Tenant will promptly comply with
all laws, statutes, ordinances, codes, and governmental rules,
regulations, or requirements of federal, state, county, and local
governmental authorities now in force or in force at any given time
after the Lease Date, with the requirements of any board of fire
underwriters or other similar body constituted now or after the Lease
Date, with any direction or occupancy certificate issued pursuant to any
law by any public officer or officers, as well as with the provisions of
all recorded documents affecting the Premises, insofar as they relate to
the condition, use, or occupancy of the Premises, excluding requirements
of structural changes to the Building, unless required by the unique
nature of Tenant's use or occupancy of the Premises.
Page 8
12
8.2 HAZARDOUS MATERIALS.
(a) For purposes of this Lease, "hazardous materials" means any
explosives, radioactive materials, hazardous wastes, or
hazardous substances, including without limitation asbestos
containing materials, PCB's, CFC's, or substances defined as
"hazardous substances" in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended,
42 U.S.C. Sections 9601-9657; the Hazardous Materials
Transportation Act of 1975, 49 U.S.C. Sections 1801-1812; the
Resource Conservation and Recovery Act of 1976, 42 U.S.C,
Sections 6901-6987; or any other federal, state, or local
statute, law, ordinance, code, rule, regulation, order, or
decree regulating, relating to, or imposing liability or
standards of conduct concerning hazardous materials, waste, or
substances now or at any time hereafter in effect (collectively,
"hazardous materials laws").
(b) Tenant will not cause or permit the storage, use, generation,
release, or disposition of any hazardous materials in, on, or
about the Premises or the Project by Tenant, its agents,
employees, or contractors. Tenant will not permit the Premises
to be used or operated in a manner that may cause the Premises
or the Project to be contaminated by any hazardous materials in
violation of any hazardous materials laws, Tenant will
immediately advise Landlord in writing of (1) any and all
enforcement, cleanup, remedial, removal, or other governmental
or regulatory actions instituted, completed, or threatened
pursuant to any hazardous materials laws relating to any
hazardous materials affecting the Premises; and (2) all claims
made or threatened by any third party against Tenant, Landlord,
the Premises or the Project relating to damage, contribution,
cost recovery, compensation, loss, or injury resulting from any
hazardous materials on or about the Premises. Without
Landlord's prior written consent, Tenant will not take any
remedial action or enter into any agreements or settlements in
response to the presence of any hazardous materials in, on, or
about the Premises.
(c) Tenant will be solely responsible for and will defend, indemnify
and hold Landlord, its agents, and employees harmless from and
against all claims, costs, expenses, damages, and liabilities,
including attorneys' fees and costs, arising out of or in
connection with Tenant's breach of its obligations in this
Article 8. Tenant will be solely responsible for and will
defend, indemnify, and hold Landlord, its agents, and employees
harmless from and against any and all claims, costs, and
liabilities, including attorneys' fees and costs, arising out of
or in connection with the removal, cleanup, and restoration work
and materials necessary to return the Premises and any other
property of whatever nature located on the Project to their
condition existing prior to the appearance of Tenant's hazardous
materials on the Premises. Tenant's obligations under this
Article 8 will survive the expiration or other termination of
this Lease.
(d) Added. See Page 9a
8.3 CERTAIN INSURANCE RISKS. Tenant will not do or permit to be done any act
or thing upon the Premises or the Project which would (a) jeopardize or
be in conflict with fire insurance policies covering the Project and
fixtures and property in the Project; (b) increase the rate of fire
insurance applicable to the Project to an amount higher than it
otherwise would be for general office use of the Project; or (c) subject
Landlord to any liability or responsibility for injury to any person or
persons or to property by reason of any business or operation being
carried on upon the Premises. If the conduct of the Tenant, or any acts
or omissions of the Tenant shall cause or result in any increase in
premiums for insurance carried by the Landlord, whether or not Landlord
allows such act or omission to continue, Tenant shall pay any increase
in premium as Additional Rent.
ARTICLE 9 ASSIGNMENT AND SUBLETTING
9.1 GENERAL. Tenant, for itself, its heirs, distributors, executors,
administrators, legal representatives, successors, and assigns,
covenants and agrees that it will not assign, mortgage, or encumber this
Lease, or sublease, nor otherwise permit the Premises or any part of
the Premises to be used or occupied by others, without the prior written
consent of Landlord in each instance, which consent may be withheld at
the Landlord's sole discretion. Landlord may condition its consent upon,
among other things, execution by the subtenant or assignee, as the case
may be, of an instrument confirming the restrictions on further
subleasing or assignment contained herein and joining in the waivers and
indemnities made by Tenant hereunder. Any assignment or sublease in
violation of this Article 9 will be void. If this Lease is assigned, or
if the Premises or any part of the Premises are subleased or occupied by
anyone other than Tenant, Landlord may, after any default by Tenant,
collect rent from the assignee, subtenant, or occupant, and apply the
net amount collected to Rent. No assignment, sublease, occupancy, or
collection will be deemed (a) a waiver of the provisions of this Section
9.1; (b) the acceptance of the assignee, subtenant, or occupant as
Tenant; or (c) a release of Tenant from the further performance by
Tenant of covenants on the part of Tenant contained in this Lease. The
consent by Landlord to an assignment or sublease will not be construed
to relieve Tenant from obtaining Landlord's prior written consent to any
further assignment or sublease. No permitted subtenant may assign or
encumber its sublease or further sublease all or any portion of its
subleased space, or otherwise permit the subleased space or any part of
its subleased space to be used or occupied by others, without Landlord's
prior written consent in each instance. Any assignee approved by
Landlord must assume all of the obligations and duties of Tenant under
this Lease pursuant to an assumption agreement satisfactory to Landlord
of which Landlord is the beneficiary. See page 9a.
Page 9
13
MBL Office Lease for MPower Solutions, Inc.
Para 8.2 (d) added: Landlord will not cause the unlawful storage, use,
generation, release or disposition of any hazardous materials in, on, or about
the Project by Landlord, its agents, employees or contractors. Landlord will be
solely responsible for and will defend, indemnify, and hold tenant, its agents,
and employees from and against all claims, costs, expenses, damages, and
liabilities, including attorneys' fees and costs, arising out of or in
connections with Landlord's breach of its obligations in this Section 8.2(d).
Landlord's obligation under this Article 8 will survive the expiration or other
termination of this lease.
Para 9.1 (added): Notwithstanding the provisions of 9.1 (c) above, the parties
agree that in the event MPower Solutions, Inc., assigns the Lease to an
un-related bona fide third party (the "1st Assignee") who then further assigns
the Lease to another un-related bona fide third party (the "2nd Assignee"),
MPower Solutions, Inc., shall, upon the effective date of the assignment from
the 1st Assignee to the 2nd Assignee (the "2nd Assignment"), be released from
further performance of the Tenant's covenants contained in this Lease in the
event Landlord consents to the 2nd Assignment but MPower Solutions, Inc., does
not consent to the 2nd Assignment.
Page 9a
14
9.2 SUBMISSION OF INFORMATION. If Tenant requests Landlord's consent to a
specific assignment or subletting, Tenant will submit in writing to
Landlord (a) the name and address of the proposed assignee or subtenant;
(b) the business terms of the proposed assignment or sublease; (c)
reasonably satisfactory information as to the nature and character of
the business of the proposed assignee or subtenant, and as to the
nature of its proposed use of the space; (d) banking, financial, or
other credit information sufficient to enable Landlord to determine the
financial responsibility and character of the proposed assignee or
subtenant; (e) the proposed form of assignment (including lease
assumption provisions) or sublease for Landlord's approval; and (f) any
other information reasonably required by Landlord.
9.3 PAYMENTS TO LANDLORD. If Landlord consents to a proposed assignment or
sublease, then Landlord will have the right to require Tenant to pay to
Landlord a sum equal to (a) any rent or other consideration paid to
Tenant by any proposed transferee that (after deducting the costs of
Tenant, if any, in affecting the assignment or sublease, including
reasonable alterations costs, commissions and legal fees) is in excess
of the Rent allocable to the transferred space then being paid by Tenant
to Landlord pursuant to this Lease; and (b) any other profit or gain
(after deducting any necessary expenses incurred) realized by Tenant
from any such sublease or assignments. All such sums owed to Landlord
under 9.3(c), above, will be payable to Landlord at the time the next
payment of Monthly Rent is due.
9.4 PROHIBITED TRANSFERS. The transfer of a majority of the issued and
outstanding capital stock of any corporate Tenant or subtenant of this
Lease, or a majority of the total interest in any partnership Tenant or
subtenant, however accomplished, and whether in a single transaction or
in a series of related or unrelated transactions, will be deemed an
assignment of this lease or of such sublease requiring Landlord's
consent in each instance. For purposes of this Article 9, the transfer
of outstanding capital stock of any corporate Tenant will not include
any sale of such stock by persons other than those deemed "insiders"
within the meaning of the Securities Exchange Act of 1934, as amended,
effected through the "over-the-counter market" or through any recognized
stock exchange.
9.5 LANDLORD'S OPTIONS. In the event Tenant proposes to transfer this Lease
or all or any part of the Premises, Landlord in addition to any rights
contained herein, shall have the following options at its discretion:
(a) See Page 10a.
(b) to re-enter and take possession of the Premises or the part
thereof subject to such transfer, and to enforce all rights of
Tenant, in accordance with such sublet or assignment of the
Premises, or any part thereof, as if Landlord was the sublessor
or assignor, and to do whatever Tenant is permitted to do
pursuant to the terms of such sublease or assignment.
9.6 PERMITTED TRANSFER. Landlord consents to an assignment of this Lease or
sublease of all or part of the Premises to a wholly-owned subsidiary of
Tenant or the parent of Tenant or to any corporation into or with which
Tenant may be merged or consolidated; provided that (a) Tenant promptly
provides Landlord with a fully executed copy of such assignment or
sublease; (b) Tenant is not released from liability under the Lease and
(c) the assignee assumes in writing all of the obligations of Tenant
under this Lease.
ARTICLE 10 RULES AND REGULATIONS
Tenant and its employees, agents, licensees, and visitors will at all times
observe faithfully, and comply strictly with, the rules and regulations set
forth in Exhibit D. Landlord may from time to time reasonably amend, delete,
or modify existing rules and regulations, or adopt reasonable new rules and
regulations for the use, safety, cleanliness, and care of the Premises, the
Building, and the Project, and the comfort, quiet, and convenience of
occupants of the Project. Modifications or additions to the rules and
regulations will be effective upon 30 days' prior written notice to Tenant from
Landlord. In the event of any breach of any rules or regulations or any
amendments or additions to such rules and regulations, Landlord will have all
remedies that this Lease provides for default by Tenant, and will in addition
have any remedies available at law or in equity, including the right to
enjoin any breach of such rules and regulations. Landlord will not be liable to
Tenant for violation of such rules and regulations by any other tenant, its
employees, agents, visitors, or licensees or any other person. In the event of
any conflict between the provisions of this Lease and the rules and
regulations, the provisions of this Lease will govern.
Page 10
15
MBL. Office Lease for MPower Solutions, Inc.
Para 9.5 (a) added: to give Tenant written notice of Landlord's intention to
terminate this Lease as to all or any portion of the Premises subject to such
transfer on the date such notice is given or on any later date specified
therein, whereupon, on the date specified on such notice, Tenant's right to
possession of the Premises or such portion of the Premises shall cease and this
Lease and all obligations of Tenant hereunder shall thereupon be terminated, as
they relate to all or any portion of the Premises except as to any incompleted
obligations of date of Tenant; or
Page 10a
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ARTICLE 11 COMMON AREAS
As used in this Lease, the term "common areas" means, without limitation, the
hallways, entryways, stairs, driveways, roadways, parking areas, walkways,
terraces, docks, loading areas, trash facilities, and all other areas arid
facilities in the Project that are provided and designated from time to time by
Landlord for tile general nonexclusive use and convenience of Tenant with
Landlord and other tenants of the Project and their respective employees,
invitees, licensees, or other visitors. Landlord grants Tenant, its employees,
invitees, licensees, and other visitors a nonexclusive license for the Term to
use the common areas in common with others entitled to use the common areas,
subject to the terms and conditions of this Lease. Without advance written
notice to Tenant, except with respect to matters covered by subsection (a)
below, and without any liability to Tenant in any respect, Landlord will have
the right to:
(a) Close off any of the common areas to whatever extent required in
the opinion of Landlord and its counsel to prevent a dedication
of any of the common areas or the accrual of any rights by any
person or the public to the common areas;
(b) Temporarily close any of the common areas for maintenance,
alteration, or improvement purposes; and
(c) Change the size, use, shape, or nature of any such common
areas, including erecting additional buildings on the common
areas, expanding the existing Building or other buildings to
cover a portion of the common areas, converting common areas to
a portion of the Building or other buildings, or converting any
portion of the Building (excluding the Premises) or other
buildings to common areas. Upon erection of any additional
buildings or change in common areas, the portion of the Project
upon which buildings or structures bare been erected will no
longer be deemed to be a part of the common areas. In the event
of any such changes in the size or use of the Building or common
areas of the Building or Project, Landlord will make an
appropriate adjustment in the Rentable Area of the Building or
the Building's pro rata share of exterior common areas of the
Project, as appropriate, and a corresponding adjustment to
Tenant's Share of the operating expenses payable pursuant to
Article 5 of this Lease.
ARTICLE 12 LANDLORD'S SERVICES
12.1 LANDLORD'S REPAIR AND MAINTENANCE. Subject to the condemnation and
casualty provisions contained in this Lease and except as otherwise
expressly provided herein, Landlord will maintain and repair the common
areas and premises and premises of the Project, including but not
limited to, stairs, and restrooms, the windows in the Building, the
mechanical, plumbing and electrical equipment serving the Building, and,
the structure and the roof of the Building in reasonably good order and
condition.
12.2 LANDLORD'S OTHER SERVICES.
(a) Landlord will furnish the Premises with services, including
without limitation (1) electricity for lighting and the
operation of low-wattage office machines (such as desktop
micro-computers, desktop calculators, and typewriters) during
Business Hours, although Landlord will not be obligated to
furnish more power to the Premises than is proportionally
allocated to the Premises under the Building design; (2) beat
and air conditioning reasonably required for the comfortable
occupation of the Premises during Business Hours; (3) access (4)
lighting replacement during Business Hours (for building
standard lights, but not for any special Tenant lights, which
will be replaced at Tenant's sole cost and expense); (5)
restroom supplies; (6) window washing with reasonable frequency,
as determined by Landlord; and (7) daily cleaning service on
weekdays. Landlord may provide, but will not be obligated to
provide, daily such services (except access heating/cooling and
utilities on holidays or weekends.
(b) Tenant will have the right to purchase for use during Business
Hours and non-Business Hours the services described in clauses
(a)(l) and (2) in excess of the amounts Landlord has agreed to
furnish so long as (1) Tenant gives Landlord reasonable prior
written notice of its desire to do so; (2) the excess services
are reasonably available to Landlord and to the Premises; and
(3) Tenant pays as Additional Rent (at the time the next payment
of Monthly Rent is due) the cost of such excess service from
time to time charged by Landlord; subject to the procedures
established by Landlord from time to time for providing such
additional or excess services.
12.3 TENANT'S COSTS. Whenever equipment or lighting (other than building
standard lights) is used in the Premises by Tenant and such equipment
or lighting affects the temperature otherwise normally maintained by the
design of the Building's air conditioning system, Landlord will bare the
right, after prior written notice to Tenant, to install supplementary
air conditioning facilities in the Premises or otherwise modify the
ventilating slid air conditioning system serving the Premises; and the
cost of such facilities, modifications, and additional service will be
paid by Tenant as Additional Rent. If Landlord reasonably believes that
Tenant is using more power than Landlord furnishes pursuant to Section
12.2, Landlord may install separate meters of Tenant's power usage, and
Tenant will pay for the cost of such excess power as Additional Rent,
together with the cost of installing any risers, meters, or other
facilities that may be necessary to furnish or measure such excess
power to the Premises.
Page 11
17
12.4 LIMITATION ON LIABILITY. Landlord will not be in default under this
Lease or be liable to Tenant or any other person for direct or
consequential damage, or otherwise, for any failure to supply any heat,
air conditioning, elevator, cleaning, lighting, or security; for surges
or interruptions of electricity; or for interruptions to other services
Landlord has agreed to supply. Landlord will use reasonable efforts to
diligently remedy any interruption in the furnishing of such services.
Landlord reserves the right temporarily to discontinue such services at
such times as may be necessary by reason of accident; repairs,
alterations or improvements; strikes; lockouts; riots; acts of God;
governmental preemption in connection with a national or local
emergency; any rule, order, or regulation of any governmental agency;
conditions of supply and demand that make any product unavailable;
Landlord's compliance with any mandatory governmental energy
conservation or environmental protection program, or any voluntary
energy conservation program at the request of or with consent or
acquiescence of Tenant; or any other happening beyond the control of
Landlord. Landlord will not be liable to Tenant or any other person or
entity for direct or consequential damages resulting from the admission
to or exclusion from the Building or Project of any person. In the event
of invasion, mob, riot, public excitement, strikes, lockouts, or other
circumstances rendering such action advisable in Landlord's sole
opinion, Landlord will have the right to prevent access to the Building
or Project during the continuance of the same by such means as Landlord,
in its sole discretion, may deem appropriate, including without
limitation locking doors and closing parking areas and other common
areas. Landlord will not be liable for damages to person or property or
for injury to, or interruption of, business for any discontinuance
permitted under this Article 12, nor will such discontinuance in any way
be construed as an eviction of Tenant or cause an abatement of Rent or
operate to release Tenant from any of Tenant's obligations under this
Lease.
ARTICLE 13 TENANT'S CARE OF THE PREMISES
ARTICLE 14 ALTERATIONS
14.1 GENERAL.
(a) Tenant will not make or allow to be made any alterations,
additions, or improvements to or of the Premises or any part of
the Premises, or attach any fixtures or equipment to the
Premises, without first obtaining Landlord's written consent. In
no event shall the work of Tenant affect or impair the
structure, the elevators, or utility systems of the Building.
Landlord's approval of the plans, specifications, and working
drawings for Tenant's alterations shall create no responsibility
or liability on the part of the Landlord for their completeness,
design sufficiency, or compliance with all laws, ordinances,
rules, requirements, and regulations of governmental agencies or
authorities, or the use and occupancy permit for the Building.
All such alterations, additions, and improvements consented to
by Landlord, and capital improvements that are required to be
made to the Project as a result of the nature of Tenant's use of
the Premises:
(1) Will be performed by contractors approved by Landlord
and subject to conditions specified by Landlord (which
may include requiring the posting of performance and
payment bonds);
(2) At Landlord's option, will be made by Landlord for
Tenant's account, and Tenant will reimburse Landlord for
their cost (including 15% for Landlord's overhead)
within 10 days after receipt of a statement of such
cost;
(3) Will be done in a good and workmanlike manner and shall
be completed promptly;
(4) Shall not cause a loss or diminution of electric power
or other utilities or services to other tenants of the
Building;
(5) Will be performed according to plans, specifications,
and working drawings approved by Landlord; and
(6) Will be in accordance with all applicable federal,
state, county and local laws, rules, regulations,
ordinances and codes.
At all times between the start and completion of the work, in addition
to the other policies of insurance required by this Lease, Tenant shall
maintain a policy of "All Risk" Builder's Risk Insurance covering the
full replacement value of all work done and fixtures and equipment
installed or to be installed at the Premises pursuant to this Article
14. Tenant herewith agrees to be responsible for all damages to persons
or property, including loss of life, as a result of occurrences
connected with activities undertaken by
Page 12
18
ARTICLE 13 TENANTS CARE OF THE PREMISES (ADDED)
Tenant will not act or fail to act in a manner causing damage to the Premises
(including Tenant's equipment, personal property, and trade fixtures located in
the Premises) in their condition at the time they were delivered to Tenant,
reasonable wear and tear excluded. Tenant will immediately advise Landlord of
any damage to the Premises or Project. All damage or injury to the Premises, the
Project or the fixtures, appurtenances, and equipment in the Premises or the
Project that is caused by Tenant, its agents, employees, or invitees and not
covered by insurance may be repaired, restored, or replaced by Landlord, at the
expense of Tenant. Such expense (plus 5% of such expense for Landlord's
overhead) will be collectible as Additional Rent and will be paid by Tenant
within 10 days after delivery of a statement for such expense.
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Tenant, its agents, contractors, and employees pursuant hereto, and hereby
indemnifies Landlord and shall defend and hold Landlord harmless from and
against any and all loss, cost or expense in connection with its
responsibilities hereunder.
(b) Subject to Tenant's rights in Article 16, all alterations,
additions, fixtures, and improvements, whether temporary or
permanent in character, made in or upon the Premises either by
Tenant or Landlord, will immediately become Landlord's property
and at the end of the Term will remain on the Premises without
compensation to Tenant, unless Landlord at the time of approval
of same advises Tenant in writing that such alterations,
additions, fixtures, or improvements must be removed at the
expiration or other termination of this Lease.
14.2 FREE-STANDING PARTITIONS. Tenant will have the right to install
free-standing work station partitions, without Landlord's prior written
consent, so long as no building or other governmental permit is required
for their installation or relocation; however, if a permit is required,
Landlord will not unreasonably withhold its consent to such relocation
or installation. The free-standing work station partitions for which
Tenant pays will be part of Tenant's trade fixtures for all purposes
under this Lease. All other partitions installed in the Premises are
and will be Landlord's property for all purposes under this Lease.
14.3 REMOVAL. If Landlord has required Tenant to remove any or all
alterations, additions, fixtures, and improvements that are made in or
upon the Premises pursuant to this Article 14 prior to the Expiration
Date, Tenant will remove such alterations, additions, fixtures, and
improvements at Tenant's sole cost and will restore the Premises to the
condition in which they were before such alterations, additions,
fixtures, improvements, and additions were made.
ARTICLE 15 MECHANICS' LIENS
Tenant will pay or cause to be paid all costs and charges for work (a) done by
Tenant or caused to be done by Tenant, in or to the Premises, and (b) for all
materials furnished for or in connection with such work. Tenant will indemnify
Landlord against and defend and hold Landlord, the Premises, and the Project
free, clear, and harmless of and from all mechanics' liens and claims of liens,
and all other liabilities, liens, claims, and demands on account of such work by
or on behalf of Tenant, other than work performed by Landlord pursuant to the
Workletter. If any such lien, at any time, is filed against the Premises or any
part of the Project, Tenant will cause such lien to be discharged of record
within 10 days after the filing of such lien, except that if Tenant desires to
contest such lien, it will furnish Landlord, within such 10-day period, security
reasonably satisfactory to Landlord of at least 150% of the amount of the claim,
plus estimated costs and interest, or comply with such statutory procedures as
may be available to release the lien. If a final judgement establishing the
validity or existence of a lien for any amount is entered, Tenant will pay and
satisfy the same at once. If Tenant fails to pay any charge for which a
mechanics' lien has been filed, and has not given Landlord security as described
above, or has not complied with such statutory procedures as may be available to
release the lien, Landlord may, at its option, pay such charge and related costs
and interest, and the amount so paid, together with reasonable attorneys' fees
incurred in connection with such lien, will be immediately due from Tenant to
Landlord as Additional Rent. Nothing contained in this Lease will be deemed the
consent or agreement of Landlord to subject Landlord's interest in the Project
to liability under any mechanics' or other lien law. If Tenant receives written
notice that a lien has been or is about to be filed against the Premises or the
Project, or that any action affecting title to the Project has been commenced on
account of work done by or for or materials furnished to or for Tenant, it will
immediately give Landlord written notice of such notice. At least 15 days prior
to the commencement of any work (including but not limited to any maintenance,
repairs, alterations, additions, improvements, or installations) in or to the
Premises, by or for Tenant, Tenant will give Landlord written notice of the
proposed work and the names and addresses of the persons supplying labor and
materials for the proposed work. Landlord will have the right to post notices of
nonresponsibility or similar written notices on the Premises in order to protect
the Premises against any such liens.
ARTICLE 16 END OF TERM
At the end of this Lease, Tenant will promptly quit and surrender the Premises
broom-clean, in good order and repair, ordinary wear and tear excepted and
deliver all keys to the Premises and the Building to Landlord. If Tenant is not
then in default, Tenant may remove from the Premises any trade fixtures,
equipment, and movable furniture placed in the Premises by Tenant, whether or
not such trade fixtures or equipment are fastened to the Building; Tenant will
not remove any trade fixtures or equipment without Landlord's prior written
consent if such fixtures or equipment are used in the operation of the Building,
or if the removal of such fixtures or equipment will result in impairing the
structural strength of the Building. Whether or not Tenant is in default, Tenant
will remove such alterations, additions, improvements, trade fixtures,
equipment, and furniture as Landlord has requested in accordance with Article
14. Tenant will fully repair any damage occasioned by the removal of any trade
fixtures, equipment, furniture, alterations, additions, and improvements. All
trade fixtures, equipment, furniture, inventory, effects, alterations,
additions, and improvements on the Premises after the end of the Term will be
deemed conclusively to have been abandoned and may be appropriated, sold,
stored, destroyed, or otherwise disposed of by Landlord without notice to Tenant
or any other person and without obligation to account for them. Tenant will pay
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Landlord for all expenses incurred in connection with the removal of such
property, including but not limited to the cost of storage, and the cost of
repairing any damage to the Building or Premises caused by the removal of such
property. Tenant's obligation to observe and perform this covenant will survive
the expiration or other termination of this Lease.
ARTICLE 17 EMINENT DOMAIN
If all of the Premises are taken by exercise of the power of eminent domain (or
conveyed by Landlord in lieu of such exercise) this Lease will terminate on a
date (the "termination date") which is the earlier of the date upon which the
condemning authority takes possession of the Premises or the date on which title
to the Premises is vested in the condemning authority. If more than 25% of the
Rentable Area of the Premises is so taken, Tenant will have the right to cancel
this Lease by written notice to Landlord given within 20 days after the
termination date. If less than 25% of the Rentable Area of the Premises is so
taken, or if the Tenant does not cancel this Lease according to the preceding
sentence, the Monthly Rent will be abated in the proportion of the Rentable Area
of the Premises so taken to the Rentable Area of the Premises immediately before
such taking, and Tenant's Share will be appropriately recalculated. If 25% or
more of the Building or the Project is so taken, Landlord may cancel this Lease
by written notice to Tenant given within 30 days after the termination date. In
the event of any such taking, the entire award will be paid to Landlord, and
Tenant will have no right or claim to any part of such award; however, Tenant
will have the right to assert a claim against the condemning authority in a
separate action, so long as Landlord's award is not reduced as a consequence of
such claim, for Tenant's costs including but not limited to moving expenses and
trade fixtures owned by Tenant.
ARTICLE 18 DAMAGE AND DESTRUCTION
(a) If the Premises or the Building is damaged by fire or other
insured casualty, Landlord will give Tenant written notice of
the time which will be needed to repair such damage, as
determined by Landlord in its reasonable discretion, and the
election (if any) which Landlord has made according to this
Article l8. Such notice will be given before the 30th day (the
"notice date,") after the fire, or other insured casualty.
(b) If the Premises or the Building is damaged by fire or other
insured casualty to an extent which may be repaired within 180
days after the notice date, as reasonably determined by
Landlord, Landlord will promptly begin to repair the damage
after the notice date and will diligently pursue the completion
of such repair. In that event this Lease will continue in full
force and effect except that Monthly Rent will be abated on a
pro rata basis from the date of the damage until the date of the
completion of such repairs (the "repair period") based on the
proportion of the Rentable Area of the Premises Tenant is unable
to use during the repair period.
(c) If the Premises or the Building is damaged by fire or other
insured casualty to an extent that may not be repaired within
180 days after the notice date, as reasonably determined by
Landlord, then (1) Landlord may cancel this Lease as of the date
of such damage by written notice given to Tenant on or before
the notice date or (2) Tenant may cancel this Lease as of the
date of such damage by written notice given to Landlord within
10 days after landlord's delivery of a written notice that the
repairs cannot be made within such 180 day period. If neither
Landlord nor Tenant so elects to cancel this Lease, Landlord
will diligently proceed to repair the Building and Premises and
Monthly Rent will abated on a pro rata basis during the repair
period based on the proportion of the Rentable Area of the
Premises Tenant is unable to use during the repair period.
(d) Notwithstanding the provisions of subparagraphs (a), (b), and
(c) above, if the Premises or the Building or the Project are
damaged by uninsured casualty, or if the proceeds of insurance
are insufficient to pay for the repair of any damage to the
Premises or the Building or the Project, Landlord will have the
option to repair such damage or cancel this Lease as of the date
of such casualty by written notice to Tenant on or before the
notice date.
(e) If any such damage by fire or other casualty is the result of
the willful conduct or negligence or failure to act of Tenant,
its agents, contractors, employees, or invitees, there will be
no abatement of Monthly Rent as otherwise provided for in this
Article 18. Tenant will have no rights to terminate this Lease
on account of any damage to the Premises, the Building, or the
Project, except as set forth in this Lease.
(f) For purposes of this Article 18 and subject to subsections (a)
thru (e) hereof, Landlord shall repair or restore any portion of
the alterations, additions or improvements in the Premises or
the decorations thereto to the extent that such alterations,
additions, improvements and decorations were provided by
Landlord at the beginning of the Term. Landlord shall have no
further obligations pursuant to this Lease to repair or restore
any alterations, additions or improvements in the Premises or
the decorations thereto. If Tenant desires any other or
additional repairs or restoration and if Landlord consents
thereto, the same shall be done at Tenant's sole cost and
expense. Tenant acknowledges that Landlord shall be entitled to
the full proceeds of any insurance coverage, carried by Landlord
to the extent of damage to alterations, additions, improvement
or decorations.
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ARTICLE 19 SUBORDINATION
19.1 GENERAL. This Lease and Tenant's rights under this Lease are subject and
subordinate to any ground or underlying lease, mortgage, indenture, deed
of trust, or other lien encumbrance (each a "superior lien"), together
with any renewals, extensions, modifications, consolidations, and
replacements of such superior lien, now or in the future affecting or
placed, charged, or enforced against the Land, the Building, or all or
any portion of the Project or any interest of Landlord in them or
Landlord's interest in this Lease and the leasehold estate created by
this Lease (except to the extent any such instrument expressly provides
that this Lease is superior to such instrument). Notwithstanding the
foregoing, Tenant will execute, acknowledge, and deliver to Landlord,
within 20 days after written demand by Landlord, such documents as may
be reasonably requested by Landlord or the holder of any superior lien
to confirm or effect any such subordination or superiority, as
applicable, see page 15a.
19.2 ATTORNMENT. Tenant agrees that in the event that any holder of a
superior lien succeeds to Landlord's interest in the Premises, Tenant
will pay to such holder all Rent subsequently payable under this Lease.
Further, Tenant agrees that in the event of the enforcement by the
holder of a superior lien of the remedies provided for by law or by such
superior lien, Tenant will, upon request of any person or party
succeeding to the interest of Landlord as a result of such enforcement,
automatically become the Tenant of and attorn to such successor in
interest without change in the terms or provisions of this Lease. Such
successor in interest will not be bound by:
(a) Any payment of Rent for more than one month in advance, except
prepayments in the nature of security for the performance by
Tenant of its obligations under this Lease that are actually
received by such successor in interest;
(b) Any amendment or modification of this Lease made without the
written consent of such successor in interest (if such consent
was required under the terms of such superior lien);
(c) Any claim against Landlord arising prior to the date on which
such successor in interest succeeded to Landlord's interest; or
(d) Any claim or offset of Rent against the Landlord.
Upon request by such successor in interest and without cost to Landlord
or such successor in interest, Tenant will, within 20 days after written
demand, execute, acknowledge, and deliver an instrument or instruments
confirming the attornment.
ARTICLE 20 ENTRY BY LANDLORD
Landlord, its agents, employees, and contractors may enter the Premises at any
time in response to an emergency and at any other reasonable time to:
(a) Inspect the Premises;
(b) Exhibit the Premises to prospective purchasers, lenders, or
tenants;
(c) Determine whether Tenant is complying with all its obligations
in this Lease;
(d) Supply cleaning service and any other service to be provided by
Landlord to Tenant according to this Lease;
(e) Post written notices of nonresponsibility or similar notices; or
(f) Make repairs required of Landlord under the terms of this Lease
or make repairs to any adjoining space or utility services or
make repairs, alterations, or improvements to any other portion
of the Building.
Tenant, by this Article 20, waives any claim against Landlord, its agents,
employees, or contractors for damages for any injury or inconvenience to or
interference with Tenant's business, any loss of occupancy or quiet enjoyment of
the Premises, or any other loss occasioned by any entry in accordance with this
Article 20. Landlord will at all times have and retain a key with which to
unlock all of the doors in, on, or about the Premises (excluding Tenant's
vaults, safes, and similar areas designated in writing by Tenant in advance).
Landlord will have the right to use any and all means Landlord may deem proper
to open doors in and to the Premises in an emergency in order to obtain entry to
the Premises, provided that Landlord will promptly
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PHONE NO. : 000 0000000
MBL Office Lease for MPower Solutions, Inc.
Article 19.1: the following is added: so long as the Owner and holder of such
superior lien agrees not to disturb Tenant's right to possession, so long as
Tenant is not in default, after applicable notice and period of cure, provided
Landlord and/or the Holder of the superior lien (as the case may be) agrees not
to disturb Tenant's right to possession as long as Tenant is not in default of
any Tenant obligation under the Lease
Page 15a
23
repair any damages caused by any forced carry, Any carry to the Premises by
Landlord in accordance with this Article 20 will not be construed or deemed to
be a forcible or unlawful entry into or a detainer of the Premises or an
eviction, actual or constructive, of Tenant from the Premises or any portion of
the Premises, nor will any such entry entitle Tenant to damages or an abatement
of Monthly Rent, Additional Rent, or other charges that this Lease requires
Tenant to pay.
ARTICLE 21 INDEMNIFICATION, WAIVER, AND RELEASE
21.1 INDEMNIFICATION. To the extent not prohibited by law, Landlord, its
employees and agents shall not be liable for damage to person, property
or business or resulting from the loss of use thereof sustained by
Tenant or other persons due to the Building or any part thereof becoming
out of repair or due to an accident or due to any act or neglect of any
tenant, occupant or other person.* Tenant further agrees that all
personal property upon the Premises, loading dock, holding areas, and
freight elevators shall be at the sole risk of Tenant. *unless as a
result of Landlord's intentional act or omission Tenant will neither
hold nor attempt to hold Landlord, its employees, or agents liable for,
and Tenant will indemnify and defend and hold harmless Landlord, its
employees, and agents from and against, any and all demands, claims,
causes of action, fines, penalties, damages (including consequential
damages), liabilities, judgments, and expenses (including without
limitation reasonable attorneys' fees) incurred in connection with or
arising from:
(a) the use or occupancy or manner of use or occupancy of the
Premises or any common areas by Tenant or any person claiming
under Tenant;
(b) any activity, work, or thing done or permitted by Tenant in or
about the Premises, the Building, or the Project;
(c) any breach by Tenant or its employees, agents, contractors, or
invitees of this Lease; and
(d) any injury or damage to the person, property, or business of
Tenant, its employees, agents, contractors, or invitees entering
upon the Premises under the express or implied invitation of
Tenant.
If any action or proceeding is brought against Landlord, its employees,
or agents by reason of any such claim for which Tenant has indemnified
Landlord, Tenant, upon written notice from Landlord, will defend the
same at Tenant's expense, with counsel reasonably satisfactory to
Landlord.
21.2 WAIVER AND RELEASE. Tenant, as a material part of the consideration to
Landlord for this Lease, by this Section 21.2 waives and releases all
claims against Landlord, its employees, and agents with respect to all
matters for which Landlord has disclaimed liability pursuant to the
provisions of this Lease.
ARTICLE 22 SECURITY DEPOSIT
Upon execution of this Lease, Tenant shall deposit the security deposit with
Landlord as security for the full, faithful, and timely performance of every
provision of this Lease to be performed by Tenant. If Tenant defaults with
respect to any provision of this Lease, including but not limited to the
provisions relating to the payment of Rent, Landlord may use, apply, or retain
all or any part of the security deposit for the payment of any Rent, or any
other sum in default, or for the payment of any other amount Landlord may spend
or become obligated to spend by reason of Tenant's default, or to compensate
Landlord for any other loss or damage Landlord may suffer by reason of Tenant's
default. If any portion of the security deposit is so used, applied, or
retained, Tenant will within 5 days after written demand deposit cash with
Landlord in an amount sufficient to restore the security deposit to its original
amount. Landlord will not be required to keep the security deposit separate from
its general funds, and Tenant will not be entitled to interest on the security
deposit. The security deposit will not be deemed a limitation on Landlord's
damages or a payment of liquidated damages or a payment of the Monthly Rent due
for the last month of the Term. If Tenant fully, faithfully, and timely performs
every provision of this Lease to be performed by it, the security deposit or any
balance of the security deposit will be returned to Tenant within 60 days after
the expiration of the Term. Landlord may deliver the balance of the security
deposit then held by Landlord to the purchaser of the Building in the event the
Building is sold or to any transferee or assignee from Landlord, and after such
time Landlord will have no further liability to Tenant with respect to the
security deposit.
ARTICLE 23 QUIET ENJOYMENT
Landlord covenants and agrees with Tenant that so long as Tenant pays the Rent
and observes and performs all the terms, covenants, and conditions of this
Lease on Tenant's part to be observed and performed, Tenant may peaceably and
quietly enjoy the Premises subject, nevertheless, to the terms and conditions of
this Lease, and Tenant's possession will not be disturbed by anyone claiming by,
through, or under Landlord.
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ARTICLE 24 EFFECT OF SALE
A sale, conveyance, or assignment of the Building or the Project will operate to
release Landlord from liability from and after the effective date of such sale,
conveyance, or assignment upon all of the covenants, terms, and conditions of
this Lease, express or implied, except those liabilities that arose prior to
such effective date, and, after the effective date of such sale, conveyance, or
assignment, Tenant will look solely to Landlord's successor in interest in and
to this Lease. This Lease will not be affected by any such sale, conveyance, or
assignment, and Tenant will attorn to Landlord's successor in interest to this
Lease from and after such effective date.
ARTICLE 25 DEFAULT
25.1 EVENTS OF DEFAULT. The following events are referred to, collectively,
as "events of default" or, individually, as an "event of default":
(a) Tenant fails to pay any Rent or other monetary obligation when
due, and such failure continues for 5 days after written notice
from Landlord; however, Tenant will not be entitled to more
than 1 written notice for monetary defaults during any 12-month
period, and if after such written notice any Rent is not paid
when due, an event of default will be considered to have
occurred without further notice;
(b) Tenant vacates or abandons the Premises;
(c) This Lease or the Premises or any part of the Premises is taken
upon execution or by other process of law directed against
Tenant, or is taken upon or subject to any attachment by any
creditor of Tenant or claimant against Tenant, and said
attachment is not discharged or disposed of within 15 days after
its levy;
(d) Tenant or any guarantor of Tenant's obligations under this Lease
("Guarantor") files a petition in bankruptcy or insolvency or
for reorganization or arrangement under the bankruptcy laws of
the United States or under any insolvency act of any state, or
admits the material allegations of any such petition by answer
or otherwise, or admits in writing its inability to meet its
debts as they mature, or is dissolved or makes an assignment for
the benefit of creditors;
(e) Involuntary proceedings under any such bankruptcy law or
insolvency act or for the dissolution of Tenant or any Guarantor
are instituted against Tenant or any Guarantor, or a receiver or
trustee is appointed for all or substantially all of the
property of Tenant or any Guarantor, and such proceeding is not
dismissed or such receivership or trusteeship vacated within 60
days after such institution or appointment;
(f) Tenant fails to take possession of the Premises on the
Commencement Date of the Term;
(g) Tenant violates the terms of Article 9 "Assignment and
Subletting";
(h) Tenant breaches any of the agreements, terms, covenants, or
conditions of this Lease and such breach involves a hazardous
condition and is not cured immediately upon written notice to
Tenant;
(i) Tenant breaches any of the other agreements, terms, covenants,
or conditions that this Lease requires Tenant to perform, and
such breach continues for a period of 30 days after written
notice from Landlord to Tenant or, if such breach cannot be
cured reasonably within such 30-day period, if Tenant fails to
diligently commence to cure such breach within 30 days after
written notice from Landlord and to complete such cure within a
reasonable time thereafter; or
25.2 LANDLORD'S REMEDIES. If any one or more events of default set forth in
Section 25.1 occurs then Landlord has the right, at its election:
(a) To give Tenant written notice of Landlord's intention to
terminate this Lease on the earliest date permitted by law or on
any later date specified in such notice, in which case Tenant's
right to possession of the Premises will cease and this Lease
will be terminated, except as to Tenant's liability, as if the
expiration of the term fixed in such notice were the end of the
Term;
(b) Without further demand or notice, and without terminating this
Lease, to reenter and take possession of the Premises or any
part of the Premises, repossess the same, expel Tenant and those
claiming through or under Tenant, and remove the effects of both
or either, using such force for such purposes as may be
necessary, without being liable for prosecution, without being
deemed guilty of any manner of trespass, and without prejudice
to any remedies for arrears of Monthly Rent or other amounts
payable under this Lease or as a result of any preceding breach
of covenants or conditions; or
Page 17
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(c) Without further demand or notice to cure any event of default
and to charge Tenant for the cost of effecting such cure,
including without limitation reasonable attorneys' fees and
interest on the amount so advanced at the rate set forth in
Section 27.21, provided that Landlord will have no obligation to
cure any such event of default of Tenant.
Should Landlord elect to reenter as provided in subsection (b), or
should Landlord take possession pursuant to legal proceedings or
pursuant to any notice provided by law, Landlord may, from time to time,
without terminating this Lease, relet the Premises or any part of the
Premises in Landlord's or Tenant's name, but for the account of Tenant,
for such term or terms (which may be greater or less than the period
which would otherwise have constituted the balance of the Term) and on
such conditions and upon such other terms (which may include concessions
of free rent and alteration and repair of the Premises) as Landlord, in
its reasonable discretion, may determine, and Landlord may collect and
receive the rents from such reletting. Landlord will in no way be
responsible or liable for any failure to relet the Premises, or any part
of the Premises, or for any failure to collect any rent due upon such
reletting. No such reentry or taking possession of the Premises by
Landlord will be construed as an election on Landlord's part to
terminate this Lease unless a written notice of such intention is given
to Tenant. No written notice from Landlord under this Section or under a
forcible or unlawful entry and detainer statute or similar law will
constitute an election by Landlord to terminate this Lease unless such
notice specifically so states. Landlord reserves the right following any
such reentry or reletting to exercise its right to terminate this Lease
by giving Tenant such written notice, in which event this Lease will
terminate as specified in such notice.
25.3 CERTAIN DAMAGES. In the event that Landlord does not elect to terminate
this Lease as permitted in Section 25.2(a), but on the contrary elects
to take possession as provided in Section 25.2(b), Tenant will pay to
Landlord Monthly Rent and other sums as provided in this Lease that
would be payable under this Lease if such repossession had not occurred,
less the net proceeds, if any, of any reletting of the Premises after
deducting all of Landlord's reasonable expenses in connection with such
reletting, including without limitation all repossession costs,
brokerage commissions, attorneys' fees, expenses of employees,
alteration and repair costs, and expenses of preparation for such
reletting. Tenant will pay such Rent and other sums to Landlord monthly
on the day on which the Monthly Rent would have been payable under this
Lease if possession had not been retaken, and Landlord will be entitled
to receive such Rent and other sums from Tenant on each such day.
25.4 CONTINUING LIABILITY AFTER TERMINATION. If this Lease is terminated on
account of the occurrence of an event of default, Tenant will remain
liable to Landlord for damages in an amount equal to the Rent and other
amounts that would have been owing by Tenant for the balance of the
Term, had this Lease not been terminated, less the net proceeds, if any,
of any reletting of the Premises by Landlord subsequent to such
termination, after deducting all of Landlord's expenses in connection
with such reletting, including without limitation the expenses
enumerated in Section 25.3. Landlord will be entitled to collect such
damages from Tenant monthly on the day on which Monthly Rent and other
amounts would have been payable under this Lease if this Lease had not
been terminated, and Landlord will be entitled to receive such Monthly
Rent and other amounts from Tenant on each such day. Alternatively, at
the option of Landlord, in the event this Lease is so terminated,
Landlord will be entitled to recover against Tenant as damages for loss
of the bargain and not as a penalty:
(a) The worth at the time of award of the unpaid Rent that had been
earned at the time of termination;
(b) The worth at the time of award of the amount by which the unpaid
Rent that would have been earned after termination until the
time of award exceeds the amount of such rental loss that Tenant
proves could have been reasonably avoided;
(c) The worth at the time of award of the amount by which the unpaid
Rent for the balance of the Term of this Lease (had the same not
been so terminated by Landlord) after the time of award exceeds
the amount of such rental loss that Tenant proves could be
reasonably avoided;
(d) Any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which in the ordinary course of
things would be likely to result therefrom.
The "worth at the time of award" of the amounts referred to in clauses
(a) and (b) above is computed by adding interest at the per annum
interest rate described in Section 27.21 on the date on which this Lease
is terminated from the date of termination until the time of the award.
The "worth at the time of award" of the amount referred to in clause (c)
above is computed by discounting such amount at the discount rate of the
Federal Reserve Bank of New York, New York, at the time of award plus
1%.
25.5 CUMULATIVE REMEDIES. Any suit or suits for the recovery of the amounts
and damages set forth in Sections 25.3 and 25.4 may be brought by
Landlord, from time to time, at Landlord's election, and nothing in this
Lease will be deemed to require Landlord to await the date upon which
this Lease or the Term would have expired had there occurred no event of
default. Each right and remedy provided for in this Lease is cumulative
and is in addition to every other right or remedy provided for in this
Lease or now or after the Lease Date existing at law or in equity or by
statute or otherwise, and the exercise
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or beginning of the exercise by Landlord of any one or more at the
rights or remedies provided for in this Lease or now or after the Lease
Date existing at law or in equity or by statute or otherwise will not
preclude the simultaneous or later exercise by Landlord of any or all
other rights or remedies provided for in this Lease or now or after the
Lease Date existing at law or in equity or by statute or otherwise. All
costs incurred by Landlord in collecting any amounts and damages owing
by Tenant pursuant to the provisions of this Lease or to enforce any
provision of this Lease, including reasonable attorneys' fees from the
date any such matter is turned over to an attorney, whether or not one
or more actions are commenced by Landlord, will also be recoverable by
Landlord from Tenant. *See Page 19a.
25.6 WAIVER OF REDEMPTION. Tenant waives any right of redemption arising as a
result of Landlord's exercise of its remedies under this Article 25.
ARTICLE 26 PARKING
Tenant will be entitled to use only the parking spaces set forth in Section
1.1(q) during the Term subject to the rules and regulations set forth in Exhibit
D, and any amendments or additions to them. Tenant's parking spaces will be
unassigned, nonreserved, and nondesignated.
Neither Landlord nor any operator of the parking areas within the Project, as
the same are designated and modified by Landlord, in its sole discretion, from
time to time (the "parking areas") will be liable for loss of or damage to any
vehicle or any contents of such vehicle or accessories to any such vehicle, or
any property left in any of the parking areas, resulting from fire, theft,
vandalism, accident, conduct of other users of the parking areas and other
persons, or any other casualty or cause. Further, Tenant understands and agrees
that: (a) Landlord will not be obligated to provide any traffic control,
security protection or operator for the parking areas; (b) Tenant uses the
parking areas at its own risk; and (c) Landlord will not be liable for personal
injury or death, or theft, loss of, or damage to property. Tenant waives and
releases Landlord from any and all liability arising out of the use of the
parking areas by Tenant, its employees, agents, invitees and visitors, whether
brought by any of such persons or any other person.
Tenant's right to use the parking areas will be in common with other tenants of
the Project and with other parties permitted by Landlord to use the parking
areas. Landlord reserves the right to assign and reassign, from time to time,
particular parking spaces for use by persons selected by Landlord, provided that
Tenant's rights under the Lease are preserved. Landlord will not be liable to
Tenant for any unavailability of Tenant's designated spaces, if any, nor will
any unavailability entitle Tenant to any refund, deduction, or allowance. Tenant
will not park in any numbered space or any space designated as: RESERVED,
HANDICAPPED, VISITORS ONLY, or LIMITED TIME PARKING (or similar designation).
If the parking areas are damaged or destroyed, or if the use of the parking
areas is limited or prohibited by any governmental authority, or the use or
operation of the parking areas is limited or prevented by strikes or other labor
difficulties or other causes beyond Landlord's control and parking is restored
within a reasonable period of time Tenant's inability to use the parking spaces
will not subject Landlord or any operator of the parking areas to any liability
to Tenant and will not relieve Tenant of any of its obligations under the Lease
and the Lease will remain in full force and effect.
Tenant has no right to assign or sublicense any of its rights in the parking
spaces, except as part of a permitted assignment or sublease of the Lease.
ARTICLE 27 MISCELLANEOUS
27.1 NO OFFER. Submission of the Lease to Tenant is for examination and shall
not bind Landlord in any manner. No lease or obligations of Landlord
shall arise until this instrument is signed by both Landlord and Tenant
and delivery is made to each; provided, however, the execution and
delivery by Tenant of this Lease to Landlord or Landlord's agent shall
constitute an irrevocable offer by Tenant to lease the Premises on the
terms and conditions herein contained, which offer may not be withdrawn
or revoked for 15 days after such execution and delivery.
27.2 JOINT AND SEVERAL LIABILITY. If Tenant is composed of more than one
signatory to this Lease, each signatory will be jointly and severally
liable with each other signatory for payment and performance according
to this Lease. The act of, written notice to, written notice from,
refund to, or signature of any signatory to this Lease (including
without limitation modifications of this Lease made by fewer than all
such signatories) will bind every other signatory as though every other
signatory had so acted, or received or given the written notice or
refund, or signed.
27.3 NO CONSTRUCTION AGAINST DRAFTING PARTY. Landlord and Tenant acknowledge
that each of them and their counsel have had an opportunity to review
this Lease and that this Lease will not be construed against Landlord
merely because Landlord has prepared it.
27.4 TIME OF THE ESSENCE. Time is of the essence of each and every provision
of this Lease.
Page 19
27
MBL Office Lease for MPower Solutions, Inc.
Para 25.5 added: Notwithstanding the foregoing, Landlord waives any right,
whether statutory or otherwise, to a lien against Tenant's personal property.
Page 19a
28
27.5 NO RECORDATION. Tenant's recordation of lifts Lease or any memorandum or
short form of it will be void and an event of default under this Lease.
Tenant shall, at the request of Landlord, execute a short-form lease and
have it properly acknowledged for the purpose of recording. The cost of
recording such short-form lease shall be borne by Landlord.
27.6 NO WAIVER. No waiver by Landlord of any agreement, condition or
provision contained in this Lease will be valid or binding unless
expressed in writing and signed by Landlord. The waiver by Landlord of
any agreement, condition, or provision contained in this Lease will not
be deemed to be a waiver of any subsequent breach of the same or any
other agreement, condition, or provision contained in this Lease, nor
will any custom or practice that may grow up between the parties in the
administration of the terms of this Lease be construed to waive or to
lessen the right of Landlord to insist upon the performance by Tenant in
strict accordance with the terms of this Lease. The subsequent
acceptance of Rent by Landlord will not be deemed to be a waiver of any
preceding breach by Tenant of any agreement, condition, or provision of
this Lease, other than the failure of Tenant to pay the particular Rent
so accepted, regardless of Landlord's knowledge of such preceding breach
at the time of acceptance of such Rent.
27.7 LIMITATION ON RECOURSE. Tenant specifically agrees to look solely to
Landlord's interest in the Project for the recovery of any judgments
from Landlord. It is agreed that Landlord (and its agents, shareholders,
venturers, and partners, and their shareholders, venturers, and partners
and all of their officers, directors, and employees) will not be
personally liable for any such judgments.
27.8 ESTOPPEL CERTIFICATES. At any time and from time to time but with 15
days after prior written request by Landlord, Tenant will execute,
acknowledge, and deliver to Landlord or such other person as Landlord
shall direct, promptly upon request, a certificate* certifying (a) that
this Lease is unmodified and in full force and effect or, if there have
been modifications, that this Lease is in full force and effect, as
modified, and stating the date and nature of each modification; (b) the
date, if any, to which Rent and other sums payable under this Lease
have been paid; (c) that no written notice of any default has been
delivered to Landlord which default has not been cured, except as to
defaults specified in said certificate; (d) that the Tenant has no
knowledge of and that there is no event of default under this Lease or
an event which, with notice or the passage of time, or both, would
result in an event of default under this Lease, except for defaults
specified in said certificate; and (e) such other matters as may be
reasonably requested by Landlord. Any such certificate may be relied
upon by any prospective purchaser or existing or prospective mortgagee
or beneficiary under any deed of trust of the Building or any part of
the Project. Tenant's failure to deliver such a certificate within such
time will be conclusive evidence of the matters set forth in it, and
such failure shall be an event of default. *See Page 20a.
27.9 ATTORNEYS' FEES. If Landlord and Tenant litigate any provision of this
Lease or the subject matter of this Lease, the unsuccessful litigant
will pay to the successful litigant all costs and expenses, including
reasonable attorneys' fees and court costs, incurred by the successful
litigant at trial and on any appeal. If, without fault, either Landlord
or Tenant is made a party to any litigation instituted by or against the
other, the other will indemnify the faultless one against all loss,
liability, and expense, including reasonable attorneys' fees and court
costs, incurred by it in connection with such litigation.
27.10 NO MERGER. The voluntary or other surrender of this Lease by Tenant or
the cancellation of this Lease by mutual agreement of Tenant and
Landlord or the termination of this Lease on account of Tenant's default
will not work a merger, and will, at Landlord's option, (a) terminate
all or any subleases and subtenancies or (b) operate as an assignment to
Landlord of all or any subleases or subtenancies. Landlord's option
under this Section 27.10 will be exercised by written notice to Tenant
and all known subleases or subtenants in the Premises or any part of the
Premises.
27.11 HOLDING OVER. Tenant will have no right to remain in possession of all
or any part of the Premises after the expiration of the Term* and
Landlord may, at its option, re-enter and take possession of the
Premises, reserving its rights to collect damages sustained by reason of
Tenant's unlawful retention of possession of the Premises or any part
thereof. If Tenant remains in possession of all or any part of the
Premises after the expiration of the Term, with the express written
consent of Landlord: (a) such tenancy will be deemed to be a periodic
tenancy from month-to-month only; (b) such tenancy will not constitute
a renewal or extension of this Lease for any further term; and (c) such
tenancy may be terminated by Landlord upon the earlier of 30 days' prior
written notice or the earliest date permitted by law. In such event,
Monthly Rent will be increased to an amount equal to 140% of the Monthly
Rent payable during the last month of the Term, and any other sums due
under this Lease will be payable in the amount and at the times
specified in this Lease. During such month-to-month tenancy, Tenant will
observe every other term, condition, and covenant contained in this
Lease. *See Page 20a
27.12 NOTICES. Any notice, request, demand, consent, approval, or other
communication required or permitted under this Lease must be in writing
and will be deemed to have been given when personally delivered, sent by
facsimile with delivery acknowledged by the sending machine, deposited
with any nationally recognized overnight carrier that routinely issues
receipts, or deposited in any depository regularly maintained by the
United States Postal Service, postage prepaid certified mail, return
receipt
Page 20
29
Para 27.8 added: *in a form substantially similar to Exhibit E.
Para 27.11 added: *and the Renewal Term, if Tenant renews the Lease as provided
herein.
Page 20a
30
requested, addressed to the party for whom It is Intended at its
address(es) set forth in Section 1.1. Either Landlord or Tenant may add
additional addresses or change its address for purposes of receipt of
any such communication by giving 10 days' prior written notice of such
change to the other party in the manner prescribed in this Section
27.12.
27.13 SEVERABILITY. If any provision of this Lease proves to be illegal,
invalid, or unenforceable, the remainder of this Lease will not be
affected by such finding, and in lieu of each provision of this Lease
that is illegal, invalid, or unenforceable a provision shall be deemed
added as a part of this Lease as similar in terms to such illegal,
invalid, or unenforceable provision as may be possible and be legal,
valid, and enforceable.
27.14 WRITTEN AMENDMENT REQUIRED. No amendment, alteration, modification of,
or addition to the Lease will be valid or binding unless expressed in
writing and signed by Landlord and Tenant. Tenant agrees to make any
modifications of the terms and provisions of this Lease required or
requested by any lending institution providing financing for the
Building, or Project, as the case may be, provided that no such
modifications will materially adversely affect Tenant's rights and
obligations under this Lease.
27.15 ENTIRE AGREEMENT. This Lease, the exhibits and addenda, if any, contain
the entire agreement between Landlord and Tenant. No promises or
representations, except as contained in this Lease, have been made to
Tenant respecting the condition or the manner of operating the Premises,
the Building, or the Project.
27.16 CAPTIONS. The captions of the various articles and sections of this
Lease are for convenience only and do not necessarily define, limit,
describe, or construe the contents of such articles or sections.
27.17 NOTICE OF LANDLORD'S DEFAULT. In the event of any alleged default in the
obligation of Landlord under this Lease, Tenant will deliver to Landlord
written notice listing the reasons for Landlord's default and Landlord
will have 30 days following receipt of such notice to cure such alleged
default or, in the event the alleged default cannot reasonably be cured
within a 30-day period, to commence action and proceed diligently to
cure such alleged default. A copy of such notice to Landlord will be
sent to any holder of a mortgage or other encumbrance on the Building or
Project of which Tenant has been notified in writing, and any such
holder will also have an additional like period to cure such alleged
default.
27.18 AUTHORITY. Tenant and the party executing this Lease on behalf of Tenant
represent to Landlord that such party is authorized to do so by
requisite action of the board of directors or partners, as the case may
be, and agree upon request to deliver to Landlord a resolution or
similar document to that effect.
27.19 BROKERS. See page 21a.
27.20 GOVERNING LAW. This Lease will be governed by and construed pursuant to
the laws of the state in which the Project is located.
27.21 LATE PAYMENTS. Any Rent or other monetary obligation due Landlord that
is not paid within 10 days when due will accrue interest at a rate of
the Prime Rate plus 5% per annum (but in no event in an amount in excess
of the maximum rate allowed by applicable law) from the date on which it
was due until the date on which it is paid in full with accrued
interest. In addition to the foregoing, Tenant shall pay to Landlord a
late charge of 5% of the amount due.
27.22 NO EASEMENTS FOR AIR OR LIGHT. Any diminution or shutting off of light,
air, or view by any structure that may be erected on lands adjacent to
the Building will in no way affect this Lease or impose any liability
on Landlord.
27.23 TAX CREDITS. Landlord is entitled to claim all tax credits and
depreciation attributable to leasehold improvements in the Premises.
Promptly after Landlord's demand, Landlord and Tenant will prepare a
detailed list of the leasehold improvements and fixtures and their
respective costs for which Landlord or Tenant has paid. Landlord will be
entitled to all credits and depreciation for those items for which
Landlord has paid by means of any Tenant finish allowance or otherwise.
Tenant will be entitled to any tax credits and depreciation for all
items for which Tenant has paid with funds not provided by Landlord.
Page 21
31
MBL Office Lease for MPower Solutions, Inc.
Para 27.19 added: BROKERS. Landlord and Tenant represent and warrant that they
have not consulted or negotiated with any broker, finder, or agent with regard
to the Premises except the brokers named in Section 1.1. Each agrees to hold the
other harmless and indemnify the other against all costs, expenses, attorney's
fees, or other liability for commissions or other compensation or charges
claimed by any broker, finder, or agent claiming the same by, through or under
it and such indemnity shall survive the expiration or earlier termination of
this lease.
Page 21a
32
27.25 FINANCIAL REPORTS. Within 15 days after Landlord's request, Tenant will
furnish Tenant's most recent audited financial statements (including any
notes to them) to Landlord, or, if no such audited statements have been
prepared, such other financial statements (and notes to them) as may
have been prepared by an independent certified public accountant or,
failing those, Tenant's internally prepared financial statements. Tenant
will discuss its financial statements with Landlord and will give
Landlord access to Tenant's books and records in order to enable
Landlord to verify the financial statements. Landlord will not disclose
any aspect of Tenant's financial statements that Tenant designates to
Landlord as confidential except (a) to Landlord's lenders or prospective
purchasers of the Project, (b) in litigation between Landlord and
Tenant, and (c) if required by court order or subpoena.
27.26 LANDLORD'S FEES. Whenever Tenant requests Landlord to take any action or
give any consent required or permitted under this Lease, Tenant will
reimburse Landlord for all of Landlord's reasonable costs incurred in
reviewing the proposed action or consent, including without limitation
reasonable attorneys', engineers' or architects' fees, within 10 days
after Landlord's delivery to Tenant of a statement of such costs. Tenant
will be obligated to make such reimbursement without regard to whether
Landlord consents to any such proposed action.
27.27 BINDING EFFECT. The covenants, conditions, and agreements contained in
this Lease will bind and inure to the benefit of Landlord and Tenant and
their respective heirs, distributees, executors, administrators,
successors, and, except as otherwise provided in this Lease, their
assigns.
27.28 TERMS. The necessary grammatical changes required to make the provisions
hereof apply either to corporations, partnerships, or individuals, men
or women, as the case may be, shall in all cases be assumed as though in
each case fully expressed.
27.29 DEFINITION OF LANDLORD. All indemnities, covenants and agreements of
Tenant contained herein which inure to the benefit of Landlord shall be
construed to also inure to the benefit of Landlord's beneficiaries and
their partners, agents and employees and employees of their agents.
27.30 RIGHTS CUMULATIVE. All rights and remedies of Landlord under this Lease
shall be cumulative and none shall exclude any other rights and remedies
allowed by law.
27.31 CHANGE OF BUILDING NAME. Landlord reserves the right at any time and
without liability to any tenant to change the name by which the Building
or Project is designated.
27.32 FORCE MAJEURE. When a period of time is herein prescribed for any action
to be taken by Landlord, Landlord shall not be liable or responsible
for, and there shall be excluded from the computation for any such
period of time, any delays due to strikes, riots, acts of God, shortages
of labor or materials, war, regulations or restrictions or any other
causes of any kind whatsoever which are beyond the control of Landlord.
27.33 THIRD PARTY BENEFICIARY. It is specifically understood and agreed that
no person shall be a third party beneficiary hereunder, and that none of
the provisions of this Lease shall be for the benefit of or be
enforceable by anyone other than the parties hereto, and that only the
parties hereto and their permitted assignees shall have rights
hereunder.
27.34 NO JOINT VENTURE. Landlord and Tenant are not and shall not be deemed to
be, for any purpose, partners or joint venturers with each other.
27.35 REMEDIES. If Tenant believes that Landlord has unreasonably withheld its
consent in any instance in connection with this Lease, Tenant's sole
remedy will be to seek a declaratory judgment that Landlord has
unreasonably withheld its consent or an order of specific performance or
mandatory injunction in connection with Landlord's agreement to give its
consent, and Tenant shall not be entitled to make claim for, and hereby
expressly waives, any claim for damages by reason of Landlord
withholding its consent.
Page 22
33
27.36 WAIVER OF JURY TRIAL. LANDLORD AND TENANT BY THIS SECTION 27.36 WAIVE
TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY
EITHER OF THE PARTIES TO THIS LEASE AGAINST THE OTHER ON ANY MATTERS
WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE
RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF THE
PREMISES, OR ANY OTHER CLAIMS (EXCEPT CLAIMS FOR PERSONAL INJURY OR
PROPERTY DAMAGE), AND ANY EMERGENCY STATUTORY OR ANY OTHER STATUTORY
REMEDY.
Landlord and Tenant have executed this Lease as of the day and year first above
written.
Tenant: MPower Solutions, Inc. Landlord: MBL Life Assurance Corporation
------------------------------- -------------------------------
By: /s/ XXXXXXX F.X. X'XXXX By: /s/ [Signature Illegible]
----------------------------------- -----------------------------------
Name: Xxxxxxx F.X. O'Neil Name:
---------------------------------- -----------------------------------
Title: EVP, COO Title:
-------------------------------- ----------------------------------
[affix corporate seal]
*****[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]*****
Page 23
34
EXHIBIT A
THE PREMISES
[FLOOR PLAN OF
BUSINESS CENTER PHASE III
NEWPORT BUSINESS PARK
BUILDING NO. 2]
35
EXHIBIT B
LEGAL DESCRIPTION OF THE LAND
TRACT 3-A of Corrected Plat of TRACT L & 2 Newport Industrial ParkWest Xxxx 0 &
XXXXX 0 Xxxxxxx Xxxxxxxxxx.
1
36
EXHIBIT C
WORKLETTER
This workletter is date May 2, 1997 between MBL Life Assurance Corporation
("Landlord") and MPower Solutions, Inc. ("Tenant").
RECITALS
This Workletter is attached to and forms a part of that certain Lease dated May
2, 1997 ("Lease"), pursuant to which the Landlord has leased Tenant space in the
Building.
1. Improvements. Tenant shall perform and contract with and pay contractors
for all Tenant Improvements. Landlord will reimburse Tenant a total of
$34,000 for Tenant Improvements. In addition, Landlord will provide a
Buildout Allowance of up to an additional $34,000 which Tenant shall
repay as Monthly Rent amortized over 32 months at 9.5% interest.
Provided Tenant is not in default, Tenant Improvement Allowance ??
($34,000) and Buildout Allowance (not to exceed $34,000) to be payable
to Tenant upon presentation of certified pay requests from contractor
and invoices from consultants. A 20% retainage shall be held by Landlord
until receipt of lien releases from all workmen and Landlord's
satisfaction that all Tenant Improvements are completed in a workmanlike
manner.
If Landlord does not reimburse Tenant within 60 days of date of Tenant
Invoice, Tenant will have the right to set-off rent, and unpaid balance
will bear interest at rate of 8.5% per annum from invoice date.
2. Landlord agrees to repair east door to facility to prevent water from
entering Premises in addition to improvements indicated in Article 1
above.
3. The following fixtures installed by Tenant shall remain property of the
Tenant at the end of the Lease, and Tenant will be allowed to remove
them:
Sconces
Shelving in Bathrooms
Retractable Screens
Alarm System
Suspended Lights
Mirror behind receptionist area
Dry Erase Boards
Office Furniture
Track Lighting
Window coverings installed by Tenant
in addition to building standard mini blinds
currently in place which shall remain with
the Premises.
37
EXHIBIT D
RULES AND REGULATIONS
1. Landlord may from time to time adopt appropriate systems and
procedures for the security or safety of the Building, any persons occupying,
using, or entering the Building, or any equipment, finishings, or contents of
the Building, and Tenant will comply with Landlord's reasonable requirements
relative to such systems and procedures.
2. The sidewalks, passages, exits, entrances, and stairways of the
Building will not be obstructed by any tenants or used by any of them for any
purpose other than for ingress to and egress from their respective Premises. No
tenant and no employee or invitee of any tenant will go upon the roof of the
Building except to perform required repairs or maintenance, and then only after
Tenant has obtained Landlord's consent. No tenant will be permitted to place or
install any object (including without limitation radio and television antennas,
loudspeakers, sound amplifiers, microwave dishes, solar devices, or similar
devices) on the exterior of the Building or on the roof of the Building.
3. No sign, placard, picture, name, advertisement, exterior light,
decoration, balloon, flag, pennant, banner or written notice visible from the
exterior of Tenant's Premises will be inscribed, painted, affixed, or otherwise
displayed by Tenant on any part of the Building or the Premises without the
prior written consent of Landlord. Landlord will adopt and furnish to Tenant
general guidelines relating to exterior signs and to signs inside the Building
but visible from outside the Premises. Tenant agrees to conform to such
guidelines. All approved signs or lettering on doors will be printed, painted,
affixed, or inscribed at the expense of the Tenant by a person approved by
Landlord. Tenant shall repair, paint, and/or replace the building fucia surface
to which its signs are attached upon vacation of the Premises, or the removal or
alteration of its signage. Tenant shall not make any changes to the exterior of
the Premises except as approved in writing by Landlord. In the event of the
violation of this rule by Tenant, Landlord may remove the violating items
without any liability, and may charge the expense incurred by such removal to
the tenant or tenants violating this rule.
4. No cooking will be done or permitted by any tenant on the
Premises, except in areas of the Premises which are specially constructed for
cooking and except that use by the tenant of microwave ovens and Underwriters'
Laboratory approved equipment for brewing coffee, tea, hot chocolate, and
similar beverages will be permitted, provided that such use is in accordance
with all applicable federal, state, and city laws, codes, ordinances, rules and
regulations.
5. No tenant will employ any person or persons other than a
cleaning service approved by Landlord for the purpose of cleaning the Premises,
unless otherwise agreed to by Landlord in writing. Except with the written
consent of Landlord, no person or persons other than those approved by Landlord
will be permitted to enter the Building for the purpose of cleaning it. No
tenant will cause any unnecessary labor by reason of such tenant's carelessness
or indifference in the preservation of good order and cleanliness. Should
Tenant's actions result in any increased expense for any required cleaning,
Landlord reserves the right to assess Tenant for such expenses.
6. The toilet rooms, toilets, urinals, wash bowls and other
plumbing fixtures will not be used for any purposes other than those for which
they were constructed, and no sweepings, rubbish, rags, or other foreign
substances will be thrown in such plumbing fixtures. All damages resulting from
any misuse of the fixtures will be borne by the tenant who, or whose servants,
employees, agents, visitors, or licensees, caused the same.
7. No tenant or tenant's invitees or licensees, will in any way
deface any part of the Premises or the Building of which they form a part. In
those portions of the Premises where carpet has been provided directly or
indirectly by Landlord, Tenant will at its own expense install and maintain pads
to protect the carpet under all furniture having casters and other than carpet
casters.
8. No tenant will alter, change, replace, or rekey any lock or
install a new lock or a knocker on any door of the Premises. Landlord, its
agents, or employees will retain a pass (master) key to all door locks on the
Premises. Any new door locks required by Tenant or any change in keying of
existing locks will be installed or changed by Landlord following tenant's
written request to Landlord and will be at Tenant's expense. All new locks and
rekeyed locks will remain operable by Landlord's pass (master) key. Landlord
will furnish each tenant, free of charge, with two (2) keys to each suite entry
door lock on the Premises. Landlord will have the right to collect a reasonable
charge for additional keys and cards requested by any tenant. Each tenant, upon
termination of its tenancy, will deliver to Landlord all keys and access cards
for the Premises and Building that have been furnished to such tenant.
38
The moving company must be a locally recognized professional mover, whose
primary business is the performing of relocation services, and must be bonded
and fully insured. A certificate or other verification of such insurance must be
received and approved by Landlord prior to the start of any moving operations.
Insurance must be sufficient, in Landlord's sole opinion, to cover all personal
liability, theft or damage to the Project, including but not limited to floor
coverings, doors, walls, stairs, foliage, and landscaping. Special care must be
taken to prevent damage to foliage and landscaping during adverse weather. All
moving operations will be conducted at such times and in such a manner as
Landlord will direct, and all moving will take place during non-business hours
unless Landlord agrees in writing otherwise. Tenant will be responsible for the
provision of building security during all moving operations, and will be liable
for all losses and damages sustained by any party as a result of the failure to
supply adequate security. Landlord will have the right to prescribe the weight,
size, and position of all equipment, materials, furniture, or other property
brought into the Building. Heavy objects will, if considered necessary by
Landlord, stand on wood strips of such thickness as is necessary to properly
distribute the weight. Landlord will not be responsible for loss of or damage to
any such property from any cause, and all damage done to the Building by moving
or maintaining such property will be repaired at the expense of Tenant. Landlord
reserves the right to inspect all such property to be brought into the Building
and to exclude from the Building all such property which violates any of these
rules and regulations or the Lease of which these rules and regulations are a
part. Supplies, goods, materials, packages, furniture, and all other items of
every kind delivered to or taken from the Premises will be delivered or removed
through the entrance and route designated by Landlord, and Landlord will not be
responsible for the loss or damage of any such property.
10. No tenant will use or keep in the Premises or the Building any
kerosene, gasoline, or inflammable or combustible or explosive fluid or material
or chemical substance other than limited quantities of such materials or
substances reasonably necessary for the operation or maintenance of office
equipment of limited quantities of cleaning fluids and solvents required in
tenant's normal operations in the Premises, which shall be stored in accordance
with applicable law. No storage outside the Premises is permitted. Without
Landlord's prior written approval, no tenant will use any method of heating or
air conditioning other than that supplied by Landlord. No tenant will use or
keep or permit to be used or kept any foul or noxious gas or substance in the
Premises.
11. Tenants shall not, prior to or during the Term, either directly
or indirectly, employ or permit the employment of any contractor, mover,
mechanic or laborer, or permit any materials in the Premises. If the use of such
contractor, mover, mechanic or laborer or such materials would, in Landlord's
opinion, create any difficulty, strike or jurisdictional dispute with other
contractors, movers, mechanics or laborers engaged by Landlord, tenants, or
others, or would in any way disturb the construction, maintenance, cleaning,
repair, management, security or operation of the Building, Project or any part
thereof. Any tenant, upon demand by Landlord, shall cause all contractors,
movers, mechanics, laborers or materials causing such interference, difficulty
or conflict to leave or be removed from the Project immediately.
12. Landlord will have the right to prohibit any advertising by
Tenant mentioning the Building that, in Landlord's reasonable opinion, tends to
impair the reputation or desirability of the Building, and upon written notice
from Landlord, Tenant will refrain from or discontinue such advertising.
13. Tenant will not bring any animals (except "Seeing Eye" dogs) or
birds into the Building, and will not permit bicycles or other vehicles inside
or on the sidewalks outside the Building except in areas designated from time to
time by Landlord for such purposes.
15. Each tenant will store all its trash and garbage within its
Premises. No material will be placed in the trash boxes or receptacles if such
material is of such nature that it may not be disposed of in the ordinary and
customary manner of removing and disposing of trash and garbage without being in
violation of any law or ordinance governing such disposal. All garbage and
refuse disposal will be made only through entryways and elevators provided for
such purposes and at such times as Landlord designates. Removal of any furniture
or furnishings, large equipment, packing crates, packing materials, and boxes
will be the responsibility of each tenant and such items may not be disposed of
in the Building trash receptacles nor will they be removed by the Building's
janitorial service, except at Landlord's sole option and at the tenant's
expense. No furniture, appliances, equipment, or flammable products of any type
may be disposed of in the Building trash receptacles.
16. Canvassing, peddling, soliciting, and distributing handbills or
any other written materials in the Building are prohibited, and each tenant will
cooperate to prevent the same.
17. The requirements of the tenants will be attended to only upon
application by written, personal, or telephone notice to the Landlord's
management company for the Building. Employees of Landlord or Landlord's agent
will not perform any work or do anything outside of their regular duties unless
under special instructions from Landlord.
39
18. A directory of the Building may be, but is not required to be,
provided for the display of the name and location of tenants only. All entries
on any Building directory display will confirm to standards and style set by
Landlord in its sole discretion. Space on any exterior signage will be provided
in Landlord's sole discretion. No tenant will have any right to the use of any
exterior sign.
19. Tenant will see that the doors of the Premises are closed and
locked and that all water faucets, water apparatus, and utilities are shut off
before Tenant or Tenant's employees leave the Premises, so as to prevent waste
or damage, and for any failure to comply or carelessness in this regard Tenant
will make good all injuries sustained by the other tenants or occupants of the
Building or Landlord.
20. Tenant will not conduct itself in any manner that is
inconsistent with the character of the Building as a first quality building or
that will impair the comfort and convenience of other tenants in the Building.
21. Tenant (including tenant's employees, agents, invitees, and
visitors) will use the parking spaces solely for the purpose of parking
passenger model cars, small vans, and small trucks and will comply in all
respects with any rules and regulations that may be promulgated by Landlord from
time to time with respect to the parking areas. The parking areas will not be
used by Tenant, its agents, or employees, for overnight parking of vehicles,
except with Landlord's prior consent. Tenant will ensure that any vehicle parked
in any of the parking spaces will be kept in proper repair and will not leak
oil, grease, gasoline, or any other fluids. If any of the parking spaces are at
any time used (a) for any purpose other than parking as provided above; (b) in
any way or manner reasonably objectionable to Landlord; or (c) by Tenant after
default by Tenant under the Lease, Landlord, in addition to any other rights
otherwise available to Landlord, may consider such default an event of default
under the Lease.
22. No act or thing done or omitted to be done by Landlord or
Landlord's agent during the term of the Lease in connection with the enforcement
of these rules and regulations will constitute an eviction by Landlord of any
tenant nor will it be deemed an acceptance of surrender of the Premises by any
tenant, and no agreement to accept such termination or surrender will be valid
unless in a writing signed by Landlord. The delivery of keys to any employee or
agent of Landlord will not operate as a termination of the Lease or a surrender
of the Premises unless such delivery of keys is done in connection with a
written instrument executed by Landlord approving the termination or surrender.
23. In these rules and regulations, the term "tenant" includes the
employees, agents, invitees, and licensees of Tenant and others permitted by
Tenant to use or occupy the Premises.
24. Landlord may waive any one or more of these rules and
regulations for the benefit of any particular tenant or tenants, but no such
waiver by Landlord will be construed as a waiver of such rules and regulations
in favor of any other tenant or tenants, nor prevent Landlord from enforcing any
such rules and regulations against any or all of the tenants of the Building
after such waiver.
25. These rules and regulations are in addition to, and will not be
construed to modify or amend, in whole or in part, the terms, covenants,
agreements, and conditions of the Lease.
40
EXHIBIT E
COMMENCEMENT DATE AND ESTOPPEL CERTIFICATE
This Commencement Date and Estoppel Certificate is entered into by Landlord and
Tenant pursuant to Section 3.1 of the Lease.
1. DEFINITIONS. In this certificate the following terms have the meanings
given to them:
(a) Landlord: MBL Life Assurance Corporation
(b) Tenant: MPower Solutions Inc.
(c) Lease: Office lease dated April 17th, 1997 between Landlord and
Tenant.
(d) Premises: Suite 128.
(e) Building Address: 0000 Xxxxx Xxxxx, XX
--------------------------
Xxxxxxxxxxx, XX 00000
--------------------------
--------------------------
--------------------------
2. Landlord and Tenant confirm that the Commencement Date of the Lease is
______________________ and the Expiration Date is ______________________
and that Sections 1.l(k) and (l) are accordingly amended.
3. The Rentable Area of the Premises is deemed to be 6,800 square feet.
4. The Rentable Area of the Building is deemed to be 37,000 square feet.
5. Tenant's Share is 18.38 percent.
6. Tenant has accepted possession of the Premises as provided in the Lease.
7. The Improvements required to be furnished by the Landlord in accordance
with the Workletter (if any) have been furnished to the satisfaction of
Tenant (subject to any corrective work or punch-list items submitted
previously to Landlord).
8. All terms and conditions to be performed by Landlord under the Lease
have been satisfied and on this date there are no existing defenses or
offsets which Tenant has against the full enforcement of the Lease by
Landlord.
9. The Lease is in full force and effect and has not been modified,
altered, or amended, except as follows:
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
10. There are no setoffs or credits against Rent, and no Security Deposit or
prepaid Rent has been paid except as provided by the Lease.
Landlord and Tenant have executed this Commencement Date and Estoppel
Certificate as of the dates set forth below.
Tenant: MPower Solutions, Inc. Landlord: MBL Life Assurance Corporation
----------------------------- -------------------------------
-----------------------------
By: By:
---------------------------------- -------------------------------------
Name: Name:
------------------------------- -----------------------------------
Title: Title:
------------------------------- -----------------------------------
Date: Date:
------------------------------- -----------------------------------
Page 13
41
EXHIBIT H
OPTION TO EXTEND
Tenant may extend this Lease for a period of 12 months (the "Extension Term")
beginning the day after the Lease Expiration Date, upon the same terms and
conditions of the Lease, except that:
1. the Term is modified to include the Extension Term;
2. the Monthly Rent for the Extension Term shall be $6,800.00; and
3. the Option to Extend shall be deleted and shall not be available
to Tenant at the end of the Extension Term.
To exercise this Option to Extend, Tenant must:
1. not be in default of the Lease;
2. give Notice to Landlord that Tenant is exercising its Option to
Extend at least 180 days, but not more than 240 days before the
Lease Expiration Date ("Tenant's Notice to Extend Term").
3. provide such financial reports and statements evidencing to the
Landlord's satisfaction the Tenant's ability to meet its
obligations during the Extension Term; and
4. execute the extension agreement to be provided by Landlord and
return it to Landlord within 10 days of receipt.
Failure of Tenant to observe or comply with the terms of this Option to Extend
shall render the option null and void. Landlord shall not be required to extend
the Term of this Lease if, in its reasonable judgment, Tenant's financial
condition may impair its ability to meet its obligations during the Extended
Term. This option is personal to the Tenant named herein and shall be void upon
any transfer as per Article 9 of this Lease.
Page H-1
42
EXHIBIT E
COMMENCEMENT DATE AND ESTOPPEL CERTIFICATE
This Commencement Date and Estoppel Certificate is entered into by Landlord and
Tenant pursuant to Section 3.1 of the Lease.
1. DEFINITIONS. In this certificate the following terms have the meanings
given to them:
(a) Landlord: MBL Life Assurance Corporation
(b) Tenant: Xxxxxx Xxxx Xxxxxx Corporation
(c) Lease: Office lease dated September 29, 1995 between Landlord
and Tenant.
(d) Premises: Suite entire building
(e) Building Address: 0000 Xxxxxx Xxxxx XX
--------------------------
Xxxxxxxxxxx, XX 00000
--------------------------
--------------------------
--------------------------
2. Landlord and Tenant confirm that the Commencement Date of the Lease is
February 1, 1996 and the Expiration Date is January 31, 2000 and that
Sections 1.1(k) and (l) are accordingly amended.
3. The Rentable Area of the Premises is 25,050 square feet.
4. The Rentable Area of the Building is 25,050 square feet.
5. Tenant's Share is 100 percent.
6. Tenant has accepted possession of the Premises as provided in the Lease.
7. The Improvements required to be furnished by the Landlord in accordance
with the Workletter (if any) have been furnished to the satisfaction of
Tenant (subject to any corrective work or punch-list items submitted
previously to Landlord).
8. All terms and conditions to be performed by Landlord under the Lease
have been satisfied and on this date there are no existing defenses or
offsets which Tenant has against the full enforcement of the Lease by
Landlord.
9. The Lease is in full force and effect and has not been modified,
altered, or amended, except as follows:
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
10. There are no setoffs or credits against Rent, and no Security Deposit or
prepaid Rent has been paid except as provided by the Lease.
Landlord and Tenant have executed this Commencement Date and Estoppel
Certificate as of the dates set forth below.
Tenant: Xxxxxx Xxxx Xxxxxx Corporation Landlord: MBL Life Assurance Corporation
------------------------------- -------------------------------
------------------------------- By:
-------------------------------------
By: /s/ XXXXXXX X. XXXXXX
---------------------------------- Name:
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
------------------------------- Title:
-----------------------------------
Title: President
------------------------------- Date:
-----------------------------------
Date:
-------------------------------
