LEASE AMENDMENT
This Lease Amendment Agreement ("Amendment 1") is made this
5th day of January, 1996 by and between Xxxxx Properties Corporation and
Xxxxx Utah Corporation, hereinafter collectively called "Landlord", and HK
Systems, Inc., formerly known as Harnischfeger Engineers, Inc. and
hereinafter called "Tenant."
WHEREAS, Tenant entered into a lease agreement dated February
13, 1995 ("Lease") with Landlord for the lease of 53,558 square feet of
rentable space ("Premises") at 000 Xxxx 000 Xxxxx, Xxxx Xxxx Xxxx Xxxx
("Building"); and
WHEREAS, Tenant and Landlord desire to amend the Lease;
In consideration of the covenants and promises contained herein
Landlord and Tenant hereby agree:
1. Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord the entire seventh floor in the Building, comprised of
11,613 rentable square feet ("Expansion Space"). Tenant accepts the space
"as-is" and acknowledges that no Improvement Allowance is to be provided
by Landlord for the Expansion Space and there have been no representations
or warranties made by or on behalf of Landlord with respect to the
Expansion Space. The taking of possession of Expansion Space by Tenant
shall conclusively establish that the Expansion Space was at that time in
satisfactory condition, order and repair.
2. Tenant acknowledges that it has been in continuous
possession of the Expansion Space since February 13, 1995. Landlord
acknowledges that all Base Rent and Additional Rent due for the period
from February 13,1995 through the execution of this amendment agreement
has been received. The lease term for the Expansion Space shall be
coterminous with the Lease.
3. Except as provided herein, Rent, Additional Rent and all
other sums due Landlord from Tenant for the Expansion Space during the
lease term shall be determined in accordance with the terms and conditions
of the Lease.
4. Tenant hereby relinquishes as of January 1, 1996, all
rights to 3,342 rentable square feet of space on the second floor,
referred to as the "Executive Area" and shown in the attached floor plan.
Tenant shall surrender the Executive Area in broom clean condition. Any
hold over by Tenant in the Executive Area shall create a month-to-month
tenancy, cancelable by either party with thirty (30) days notice, under
the same terms and conditions of the Lease.
5. Exhibit A of the Lease shall be amended to read as follows:
The Premises
Floor Square Feet
Second 5,732
Third 10,629
Fourth 10,629
Fifth 11,613
Sixth 11,613
Seventh 11,613
-------
Total 61,829
6. Tenant's Share as defined in Section 5(e) of the Lease
shall be amended to be the ratio of the number sixty-one thousand eight
hundred twenty-nine (61,829) to the total number of square feet of
leasable space in the Building, which is one hundred fifty-nine thousand
eight hundred seventy-four (159,874), or thirty-eight and seven-tenths
percent (38.7%).
7. Base Rent as calculated in Section 4 of the Lease shall be
amended to be five hundred seventy-one thousand nine hundred eighteen
dollars and twenty-five cents ($571,918.25) annually, payable in equal
monthly installments of forty-seven thousand six hundred fifty-nine
dollars and eight-five cents ($47,659.85).
8. Section 7 of the lease shall be deleted in its entirety and
replaced with the following:
7. Parking.
Landlord shall, at no extra cost to Tenant,
provide Tenant with two hundred (200) parking
spaces in the garage adjoining the Building,
placed as follows:
Parking Level Number of Spaces
E 5
H 10 (High Profile)
J 10
K 44
L 47
M 45
N 39
---
Total 200
9. Tenant shall be granted the exclusive right to use the
third floor entrance for access to the building.
10. Neither of the parties hereto shall be liable or
responsible to the other party for personal property damage or for
consequential damages sustained, other than for personal injury resulting
therefrom, whether or not occasioned by negligence. Each of the parties
shall insure against damage by casualty or negligence to his or its
personal property and be limited to first party recovery from his or its
respective insurance carriers without subrogating the claim of either
against the other to the benefit of the insurance carriers making payment
under insurance contracts. Each party shall name the other party as an
additional insured and shall take such other action as will effectively
prevent the insured party's insurance carrier from subrogating a claim
against the other party.
11. Defined terms referenced herein shall have the same meaning
as defined in the Lease.
12. Except as explicitly stated above, all other terms and
conditions of the Lease remain unchanged and apply to the Expansion Space.
IN WITNESS WHEREOF, Landlord and Tenant have caused this
Amendment 1 to be signed as of the day and year first written above.
Witnesses as to Landlord: Landlord:
XXXXX PROPERTIES CORPORATION
By: /s/
Its:
By: /s/
Its:
XXXXX UTAH CORPORATION
By: /s/
Its:
By: /s/
Its:
Witnesses as to Tenant HK SYSTEMS
By: /s/ Xxxx X. Xxxxxxxxxx, Xx.
Its: Vice President
By:
Its:
LEASE
XXXXX TOWER
000 XXXX 000 XXXXX
XXXX XXXX XXXX, XXXX 00000
LANDLORD:
XXXXX PROPERTIES CORPORATION
XXXXX UTAH CORPORATION
TENANT:
HARNISCHFEGER ENGINEERS, INC.
TABLE OF CONTENTS
Paragraph Page
1. Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
4. Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
5. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . 2
6. Rent Adjustments . . . . . . . . . . . . . . . . . . . . . . . . 4
7. Parking . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
8. Use of Premises . . . . . . . . . . . . . . . . . . . . . . . . 5
9. Alterations . . . . . . . . . . . . . . . . . . . . . . . . . . 6
10. Condition of Premises . . . . . . . . . . . . . . . . . . . . . 7
11. Building Services . . . . . . . . . . . . . . . . . . . . . . . 8
12. Assignment and Subletting . . . . . . . . . . . . . . . . . . . 9
13. Access to Premises . . . . . . . . . . . . . . . . . . . . . . . 10
14. Damage and Repairs . . . . . . . . . . . . . . . . . . . . . . . 10
15. Surrender of Premises . . . . . . . . . . . . . . . . . . . . . 12
16. Waiver of Claims . . . . . . . . . . . . . . . . . . . . . . . . 12
17. Tenant Liability Indemnification and Insurance . . . . . . . . . 12
18. Condemnation . . . . . . . . . . . . . . . . . . . . . . . . . . 13
19. Estoppel Certificates . . . . . . . . . . . . . . . . . . . . . 14
21. Security Deposit . . . . . . . . . . . . . . . . . . . . . . . . 16
22. No waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
23. Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . 17
24. Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . 17
25. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
26. Subordination and Attornment . . . . . . . . . . . . . . . . . . 17
27. Holding Over . . . . . . . . . . . . . . . . . . . . . . . . . . 18
28. Signs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
29. Floor Load . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
30. Landlord Option . . . . . . . . . . . . . . . . . . . . . . . . 19
31. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . 19
33. Gender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
34. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
35. Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
36. Modifications . . . . . . . . . . . . . . . . . . . . . . . . . 20
37. Rules and Regulations . . . . . . . . . . . . . . . . . . . . . 20
38. Common Areas . . . . . . . . . . . . . . . . . . . . . . . . . . 21
39. Marginal Titles . . . . . . . . . . . . . . . . . . . . . . . . 21
40. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . 21
41. Attorney's Fees . . . . . . . . . . . . . . . . . . . . . . . . 21
42. Option on Additional Space . . . . . . . . . . . . . . . . . . . 21
43. Option to Extend . . . . . . . . . . . . . . . . . . . . . . . . 22
44. Additional Space . . . . . . . . . . . . . . . . . . . . . . . . 23
45. Lease of First Floor Space . . . . . . . . . . . . . . . . . . . 23
46. Alternative Dispute Resolution . . . . . . . . . . . . . . . . . 23
EXHIBIT "A" -- The Premises
EXHIBIT "B" -- Description of Land
EXHIBIT "C" -- Initial Tenant Improvements
EXHIBIT "D" -- Janitorial Service
EXHIBIT "E" -- Rules and Regulations
L E A S E
1. Parties.
THIS LEASE, made as of the 13th day of February, 1995, between
XXXXX PROPERTIES CORPORATION, an Ohio corporation, and XXXXX UTAH
CORPORATION, an Ohio corporation, hereinafter collectively called
"Landlord," and HARNISCHFEGER ENGINEERS, INC., a Delaware corporation,
hereinafter called "Tenant."
2. Premises.
Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, the space described or otherwise identified in Exhibit "A"
attached hereto (hereinafter called "Premises") in the fourteen story
office tower (the "Building") known as the Xxxxx Tower on land located at
the address of 000 Xxxx 000 Xxxxx, Xxxx Xxxx Xxxx, Xxxx. Tenant shall
further have the right during the entire term hereof at no charge to
Tenant, except for charges for the common area of the first floor which
will be allocated over floors 2 through 9 of the Building, to locate one
of its employees (along with a desk, telephone and related equipment) in
the lobby of the first floor of the Building for reception purposes.
3. Term.
The term of this Lease shall commence on the date hereof (the
"Commencement Date") and continue through 11:59 p.m. on the last day of
the month of the tenth anniversary of the Commencement Date, unless sooner
terminated or extended as hereinafter provided.
4. Rent.
Subject to the terms and conditions hereof, Tenant covenants and
agrees to pay to Landlord Base Rent (herein so called) at the annual rate
of Four Hundred Ninety-Five Thousand Four Hundred Eleven and 48/100
Dollars ($495,411.48), which is the product of Nine and 25/100 Dollars
($9.25), and the number of square feet of rentable area contained in the
Premises. Base Rent shall be payable in equal monthly installments of
Forty-One Thousand Two Hundred Eighty-Four and 29/100 Dollars ($41,284.29)
each.
All Base Rent with respect to any portion of the Premises shall
be payable in lawful money of the United States of America with the
monthly installments due on the first business day of each calendar month
in advance at the office of the Landlord, or to such other recipient or at
such place as Landlord shall designate by written notice to Tenant,
without prior demand therefor and without any deduction or set-off
whatsoever. Tenant hereby covenants and agrees to pay the Base Rent
hereby reserved as and when due, together with all other sums of money,
rental adjustments, charges and other amounts required to be paid by
Tenant to Landlord to another person under this Lease ("Additional Rent").
Such Base Rent and Additional Rent are hereinafter collectively referred
to as "Rent." This covenant to pay Rent shall be independent of any other
covenant set forth in this Lease.
In the event Tenant fails to pay Rent within ten (10) days after
such is due and payable, such amount with interest thereon from the date
due at a rate equal to the then current annual prime rate plus two percent
(2%) charged by Zion Bank, Salt Lake City, Utah, to its most creditworthy
customers (provided such rate does not exceed any limitations imposed by
law, in which event the interest rate shall be that which is the highest
rate permitted by law), shall be included as Additional Rent payable by
Tenant on demand by Landlord; provided, however, that Landlord's receipt
of any such Additional Rent shall not be a waiver of Tenant's default, nor
shall such receipt affect any other remedy of Landlord hereunder.
5. Definitions.
As used in this Lease, the following terms shall have the
following respective meanings:
(a) "Impositions" shall mean and include:
(i) all personal property taxes on tangible personal
property owned by Landlord and used in the operation of the
Building;
(ii) real estate taxes and assessments, general or
special, imposed on the Building and the Land provided that any
special assessments shall be paid by Landlord in installments
over the longest term available and Tenant shall only be
responsible for its share of any installments coming due during
the Lease term;
(iii) any tax or excise in addition thereto or
substitution thereof imposed by reason of ownership, leasing,
operation or occupancy of the Building, or the Land, and
incurred by Landlord, and any tax against Landlord on rent from
the Building, excluding income and excess profits taxes,
franchise, capital stock and license, inspection and permit
fees; and
(iv) any water service assessments and/or sewer rents
which may be assessed, levied, confirmed or imposed on or in
respect of the Building or the Land;
(b) "Land" shall mean the entire parcel of land on which
the Building shall be located as described in Exhibit "B" hereto.
(c) "Legal Holidays" shall mean New Year's Day, Memorial
Day, Independence Day, Founder's Day (Utah), Labor Day, Thanksgiving Day
and Christmas Day. Landlord shall give Tenant ninety (90) days prior
notice of any change in such list.
(d) "Operating Expenses" shall mean all expenses paid or
incurred by Landlord or on Landlord' s behalf as reasonably determined by
Landlord to be necessary or appropriate for the efficient operation,
maintenance and repair of the Building, the land upon which it is
situated, and the parking facility situated on the land. Such "Operating
Expenses" shall include all expenses paid or incurred by Landlord for
heating, cooling, electricity, water, gas, sewers, refuse collection;
taxes and property damage insurance; the cost of supplies, janitorial and
cleaning services; landscaping maintenance, window washing, management
services (provided however, no such management service fees shall exceed
four percent (4%) of the annual Base Rent and Additional Rent payable
hereunder); the cost of compensation of all persons who perform duties in
connection with such operating costs; and any other expenses or charge
which, in accordance with generally accepted accounting and management
principles, would be considered an expense of maintaining, operating or
repairing the Building, parking structure, and the land upon which they
are situated. "Operating Expenses" shall not include expenditures paid by
Tenant directly to third parties, or to which Landlord is otherwise
reimbursed by any third party or by any insurance proceeds.
(i) Operating Expenses shall not include any expenses
incurred by Landlord for the following; professional fees,
repairs or other work occasioned by fire, windstorm, or
casualty; leasing or procuring new tenants, renovating vacant
space or renovating space for new tenants; depreciation of the
Building and parking structure; interest, amortization or
principal payments on any debt or mortgage; income, gross
receipts, franchise, capital stock taxes payable by Landlord or
other taxed based upon Landlord's income, or cost incurred by
Landlord for tenants alterations.
(ii) capital costs, including but not limited to
capital improvements, capital repairs, capital equipment, and
capital tools which, in accordance with generally accepted
accounting and management principles would be considered a
capital cost, shall not be considered a part of the "Operating
Expenses." Capital improvements which result in annual savings
of operating expenses in excess of the annual amortization
charge, shall be included at the cost of such improvements
amortized over the useful life of the improvements. Without
limiting the foregoing, any costs of repairing the underground
storage tanks under the Building or the real estate on which the
Building is located shall be considered capital costs hereunder.
(e) "Tenant's Share" shall be that percentage which is
equal to the ratio of the number of fifty-three thousand five hundred
fifty-eight (53,558) to the total number of square feet of leasable space
in the Building, which is one hundred fifty-nine thousand eight hundred
seventy-four (159,874); provided, however, that Tenant's Share at the time
of commencement of this Lease is approximately thirty-three and one-half
percent (33.5%).
6. Rent Adjustments.
(a) It is the intention of the parties hereto that
Impositions and Operating Expenses shall be paid by the tenants of the
Building, as Additional Rent, with each tenant paying its pro rata share
of such expenses (said amount being referred to herein as Tenant's
"Expense Contribution"). On or before January 1st of each year Landlord
shall estimate the total Impositions and Operating Expenses expected to be
incurred during the calendar year beginning on such January 1st. The
amount of the estimated Impositions and Operating Expenses shall be
multiplied by Tenant's Share (as defined in Subparagraph 5(e) above), and
subject to receipt of the statements required below, Tenant shall pay one-
twelfth (1/12th) of said amount as Additional Rent, with the Base Rent.
(b) At the end of each calendar year the actual cost of
Impositions and Operating Expenses shall be reasonably determined by
Landlord, and Tenant's Share of such costs shall be compared to the
amounts paid by Tenant. If the amount paid during the year by Tenant for
Impositions and Operating Expenses exceeds Tenant's Share of the actual
cost of Impositions and Operating Expenses, the amount of such excess
shall be refunded to Tenant, or, at Tenant's option, applied to the
payment of Rent next becoming due. If the amount paid during the year by
Tenant for Impositions and Operating Expenses is less than Tenant's Share
of the actual cost of Impositions and Operating Expenses, Landlord shall
present to Tenant an invoice in the amount of Tenant's underpayment, which
amount shall be due and payable within thirty (30) days of the invoice
date. Landlord and Tenant hereby agree that the Tenant's Expense
Contribution (on an annualized basis) attributable to the calendar year
1995 is approximately Five and 93/100 Dollars ($5.93) per square foot (the
"Floor Amount") of rentable area in the Premises.
(c) with respect to any payment made by Tenant as
Additional Rent hereunder, Tenant shall be entitled to review, within
ninety (90) days following the end of each calendar year, or with respect
to the year in which this Lease terminates or expires, within ninety (90)
days following such termination or expiration, such accounting records or
other records of Landlord, which in the reasonable judgment of Tenant are
pertinent or applicable to such Additional Rent; provided, however, that
Landlord shall not be required to produce any record or records for review
by Tenant, if such production and review would, in the reasonable judgment
of Landlord cause Landlord to be in violation of any applicable laws,
regulations or agreements. In the event that Tenant shall, in good faith,
dispute any amount paid as such Additional Rent during the applicable
calendar year, Tenant shall submit to Landlord in writing the actual
amount in dispute and shall set forth in reasonable detail the reason or
reasons that such amount is being disputed by Tenant. Landlord shall have
thirty (30) days from the date that Landlord shall receive such notice to
remit the disputed amount to Tenant or to notify Tenant of its election to
select an independent certified public accountant (the "CPA") to resolve
such dispute. Tenant shall be entitled to approve the CPA selected by
Landlord, provided that such approval shall not be unreasonably withheld
or delayed. The decision of such CPA shall be binding upon Landlord and
Tenant, and no appeal may be taken from such decision. The fees of such
CPA shall be paid by the party whose position is held to be in error;
provided, however, that if several items are disputed and a part of such
items are determined in favor of one party and a part in favor of the
other party, the fees of such CPA shall be divided between the parties on
an equitable basis by the CPA making the decision. If Tenant shall fail
to object to any Additional Rent paid hereunder within one hundred eighty
(180) days following the end of the calendar year in which such Additional
Rent was paid, neither Landlord nor Tenant shall have any right to
thereafter dispute or question the amount or propriety of any item of
Additional Rent so paid in and for such calendar year. Landlord and
Tenant agree that in no event will the Additional Rent be reduced pursuant
to this Paragraph 6(c) to an amount per square foot less than the Floor
Amount.
(d) Notwithstanding the foregoing, in the event any other
tenant in the Building consumes utilities or other Building services in a
manner or to a degree which is materially in excess of that consumed by
Tenant, or otherwise causes Operating Expenses to be incurred in a manner
which is materially disproportionate to that of Tenant (based upon amount
of space occupied), then Landlord, at its expense, will cause such
services to be separately metered to the applicable tenant, or otherwise
adjust Tenant's Share of Operating Expenses to ensure equitable
responsibility therefor.
7. Parking.
Landlord shall, at no extra cost to Tenant, provide Tenant with
two hundred (200) parking spaces in the garage adjoining the Building,
randomly placed throughout the parking facility.
8. Use of Premises.
Tenant shall use and occupy the Premises for general office
purposes and uses and purposes reasonably related thereto, including,
without limitation, the preparation, serving and consumption of food and
beverages including without limitation, maintenance of facilities
therefor, to employees and their occasional guests and business invitees,
and the preparation and presentation, including maintenance of facilities
therefor, of audio and visual communication programs for its employees and
their occasional guests and business invitees, but not for any other
business or purpose. Tenant shall not use, occupy or permit the Premises
or any part thereof to be used or occupied for any business, use or
purpose reasonably deemed by Landlord to be disreputable or inconsistent
with the operation of a first-class office building complex. In its use
or occupancy of the Premises, Tenant shall comply with all laws, statutes,
ordinances and regulations of all governmental authorities, and with the
certificate of occupancy for the Building. Tenant shall not commit or
allow to be committed any waste upon the Premises, or any public or
private nuisance or other act or thing which disturbs the quiet enjoyment
of any other tenant in the Building. Tenant shall not, without the prior
written consent of Landlord, use any apparatus, machinery or device in or
about the Premises which may cause any substantial noise, vibration or
fumes. If any of Tenant's office machines and equipment disturb the quiet
enjoyment of any other tenant in the building, then Tenant shall provide
adequate insulation, or take such other action as may be necessary to
eliminate the disturbance.
9. Alterations.
(a) Upon commencement of this Lease, Tenant shall have the
right to make the alterations, additions, improvements, installations and
other changes in or to the Premises which are described on Exhibit "C"
hereto (the "Initial Tenant Improvements") without the consent of the
Landlord, subject to clauses (1) through (6) in subparagraph 9(b), below.
Except as permitted by subparagraphs 9(b) and 9(c), below, Tenant shall
make no other alterations, additions, improvements, installations or other
changes in or to the Premises without the prior written consent of
Landlord in each and every instance, which consent will not be
unreasonably withheld.
(b) Tenant, from time to time during the term of this
Lease, in accordance with subparagraph 9(c), below, may make such
alterations, additions, substitutions and improvements to the Premises as
Tenant may deem necessary or desirable to adapt the Premises or any part
thereof for its purposes, provided, however, that:
(1) such work shall not affect the exterior
appearance or structure of the Building;
(2) the strength of the Building and the mechanical,
electrical and plumbing services thereof are not adversely
affected and the outside appearance of the Building is not
changed;
(3) upon completion of the work Landlord is furnished
with "as built" drawings;
(4) such alterations, additions, substitutions and
improvements conform with the requirements of all insurance
policies of the parties hereto, and with all applicable laws,
statutes, ordinances, regulations and rules of all governmental
authorities;
(5) the work be performed so as not to interfere with
or impair the use and enjoyment of the Land and Building by
Landlord and other tenants; and
(6) Tenant shall not permit to be placed any lien on
the Premises, the Land or the Building and Tenant shall
indemnify, defend and hold Landlord harmless from liens, claims
and liabilities of every kind which may arise out of any
additions, alterations, improvements and installations made by
or at the instance of Tenant and from any costs and expenses
incurred by Landlord as a result thereof.
(c) Prior to undertaking any alteration, addition,
substitution or improvement to the Premises under Subparagraph 9(b),
above, Tenant shall notify Landlord in writing of the proposed alteration,
addition, substitution or improvement and provide copies of the proposed
plans related thereto. For purposes hereof, all such proposed
alterations, additions, substitutions or improvements shall be referred to
herein as "Proposed Tenant Improvements." In the event that within
fifteen (15) days following receipt of such notice Landlord shall notify
Tenant in writing that Landlord has determined in good faith that the
Proposed Tenant Improvements would not be in accordance with clauses (1),
(2), (4) or (5), of subparagraph 9(b), above, then Tenant shall refrain
from making the Proposed Tenant Improvements and Landlord and Tenant shall
negotiate in good faith toward a modification of the proposed Tenant
Improvements. In the event that the parties cannot resolve such dispute
within thirty (30) days, the dispute shall be submitted to alternative
dispute resolution in accordance with paragraph 46, below. In the event
that the parties are able to resolve such a dispute or the dispute is
finally determined in accordance with the alternative dispute resolution
outlining paragraph 46 hereof, then Tenant shall make the alterations,
additions, substitutions and improvements as agreed to by the parties or
determined pursuant to such alternative dispute resolution in accordance
with the plans as agreed to by the parties or determined pursuant to
alternative dispute resolution. For purposes of this Lease, any
improvements made by Tenant which comply with the provisions of this
Subparagraph 9(c) shall be referred to as "Permitted Tenant Improvements."
In addition, within fifteen (15) days following receipt of Tenant's notice
of the Proposed Tenant Improvements, Landlord shall have the right to
notify Tenant whether any of such proposed Tenant Improvements will need
to be removed by Tenant upon termination of this Lease. For purposes
hereof, any of such Proposed Tenant Improvements which become Permitted
Tenant Improvements and as to which Landlord has specified that such
improvements will need to be removed upon termination of this Lease, shall
be referred to herein as the "Removable Improvements."
(d) Except for the Initial Tenant Improvements and any
Removable Improvements, all alterations, additions, substitutions and
improvements shall become a part of the Premises and shall remain upon and
be surrendered with the Premises at the end of the term of this Lease;
provided that Tenant shall have the right, but not the obligation, to
remove any of the Initial Improvements or the Permitted Tenant
Improvements (other than the Removable Improvements) and shall have the
obligation to remove any other alterations, additions, substitutions or
improvements made by Tenant (including the Removable Improvements)
provided further that Tenant shall repair any damage occasioned by such
removal, and in default thereof Landlord may effect said repairs at
Tenant's expense.
10. Condition of Premises.
(a) Tenant acknowledges and agrees that, except as
expressly set forth in this Lease, including without limitation,
Paragraphs 11 and 14 hereof, together with any other written agreements
between Landlord and Tenant concerning the condition of the Premises,
there have been no representations or warranties made by or on behalf of
Landlord with respect to the Premises, the Building or the Land or with
respect to the suitability thereof for the conduct of Tenant's business.
The taking of possession of portions of the Premises by Tenant shall
conclusively establish that such portions of the Premises, the Land and
the Building were at that time in satisfactory condition, order and
repair.
(b) Notwithstanding the foregoing, Tenant shall receive
from Landlord an Improvement Allowance in the amount of Three Hundred
Fifty Thousand Dollars ($350,000.00) for purposes of defraying the costs
associated with any improvements, alterations, modifications or
replacements made by Tenant with respect to the Premises during the first
twenty-four (24) months of the Lease term. Tenant shall pay all invoices
for such improvements, alterations, modifications and replacements and
shall provide Landlord with a copy of each such invoice. Landlord shall
pay Tenant for the amount of each invoice within five (5) days of receipt
of each invoice until such time as the aggregate amount of such payments
by Landlord hereunder equals Three Hundred Fifty Thousand Dollars
($350,000.00).
11. Building Services.
Landlord shall perform and provide, in a manner befitting a
first-class office building, the following services and facilities:
(a) Heating and related ventilation shall be provided
Monday through Friday, from 8:00 a.m. to 8:00 p.m., and on Saturday from
8:00 a.m. to 12:00 noon (other than Legal Holidays), which Landlord
represents are the same hours that such service is provided to all other
tenants in the Building. Throughout the term of the Lease, the Premises
will be maintained with a heating and related ventilation system which
will be activated from time to time so that the temperature in the
Premises does not fall below 65 degrees F. Air conditioning and related
ventilation through the Building's air conditioning systems shall be
provided Monday through Friday, from 8:00 a.m. to 5:00 p.m., and on
Saturday from 8:00 a.m. to 12:00 noon (other than Legal Holidays). Air
conditioning service will be provided outside said hours upon the request
of Tenant and at its expense, provided the request therefor is made no
later than at least twenty-four (24) hours in advance for Saturday, Sunday
and holiday service. Tenant agrees to cooperate fully with Landlord and
to abide by all the regulations and requirements which Landlord may
reasonably prescribe for the proper functioning and protection of the
Building's HVAC systems.
(b) Maintenance service for the public toilet rooms in the
Building and all toilet rooms in the Premises.
(c) Maintenance of standard hardware installed in the
Premises by Landlord.
(d) Cleaning of outside and inside of exterior window
panes.
(e) Cleaning and maintenance of common areas in the
building, as well as all parking areas made available to Tenant under
paragraph 7.
(f) Continuous elevator service during the time periods
set forth in subparagraph II(a) hereof, and service via at least one (1)
elevator car at all other times.
(g) Janitorial service as described on Exhibit "D"
attached hereto; provided, however, no janitorial service shall be
provided Saturdays, Sundays or Legal Holidays.
(h) Hot and cold water for lavatory, drinking and
cafeteria purposes. If Tenant requires water for any additional purposes,
Tenant shall pay the cost thereof as shown on a meter which shall be
installed and maintained at Tenant's expense to measure such consumption.
(i) Electrical service, although Landlord shall not be
liable for the failure of any supply of electricity not arising from
Landlord's negligence.
Landlord reserves the right, without abatement or diminution in
Rent (except to the extent that Tenant may be deprived of the use of the
Premises due to risks included in available rental insurance), and without
any liability to Tenant as a result thereof, to suspend, delay or
discontinue furnishing any of the services to be provided by Landlord
under this Lease whenever necessary by reason of fire, storm, flood,
explosion, strike, lockout, labor dispute, casualty or accident, lack or
failure of sources of supply of labor or fuel (or inability in the
exercise of reasonable diligence to obtain any required fuel), acts of God
or the public enemy, riots, interference by civil or military authorities,
compliance with the laws of the United States of America or with the laws,
orders or regulations of any governmental authority, or by reason of any
other cause or emergency beyond Landlord's control or at the request of
Tenant.
Landlord also reserves the right temporarily to suspend, delay
or discontinue furnishing any of the services to be provided by Landlord
under this Lease, without abatement or diminution in Rent (except to the
extent that Tenant may be deprived of the use of the Premises due to risks
included in available rental insurance) and without any liability to
Tenant as a result thereof, for such inspections, cleaning, repairs,
replacements, alterations, improvements or renewals as may, in Landlord's
reasonable judgment, be desirable or necessary to be made; provided that
such services shall not, to the extent reasonably feasible, be suspended
for such purposes during Tenant's normal business hours.
12. Assignment and Subletting.
(a) Tenant shall not transfer, assign, mortgage or other
wise alienate or hypothecate its interest in this Lease, in whole or in
part, or permit the use or occupancy of the Premises by any person or
persons other than Tenant or its authorized representatives, or sublet the
Premises or any part thereof, without the prior written consent of
Landlord in each instance, which consent shall not be unreasonably
withheld. such prohibition against assignment or subletting shall include
any assignment or subletting by operation of law.
(b) Notwithstanding the foregoing, Tenant shall have the
right, without the consent of Landlord, to assign this Lease or any
interest therein or sublet all or any portion of the Premises to any
subsidiary, affiliate or parent corporation of Tenant or any corporation
into which Tenant may merge or consolidate or to which substantially all
of Tenant's assets are sold. In the event of any such assignment of this
Lease, each such assignee of Tenant shall assume, and shall be deemed to
have assumed, this Lease and shall be and remain jointly and severally
liable with Tenant for all payments and for the due performance of all
terms, covenants and conditions herein contained which are required to be
paid and performed by Tenant. No assignment shall be binding upon
Landlord unless such assignee shall deliver to Landlord an instrument in
recordable form containing a covenant of assumption by such assignee, but
the failure or refusal of such assignee to execute the same shall not
release such assignee from its liability as set forth herein.
No assignment or subletting by Tenant permitted by the terms of
this Lease shall constitute a waiver of the full performance by Tenant of
any of its obligations required to be performed under this Lease.
(c) When applying to Landlord for its consent pursuant to
Subparagraph 12(a), Tenant shall give written notice to Landlord
identifying the intended assignee or subtenant by name and address and
specifying the terms of the intended assignment or sublease and such other
additional information as Landlord may request.
13. Access to Premises.
Landlord, its employees, agents and servants, and any mortgagee
of the Building, the land or any portion thereof shall have the right to
enter any part of the Premises, at all reasonable times, upon not less
than twenty-four (24) hours advance written notice (except in case of
emergencies) for the purposes of examining or inspecting the same, showing
the same to prospective purchasers or mortgagees, and for making such
alterations, repairs, improvements or additions to the Premises or
Building as Landlord may deem necessary or desirable; provided, that
Landlord shall avoid, to the extent reasonably feasible, entering the
Premises for said purposes during normal business hours. Prospective
tenants shall be limited to entry during the last year of the Lease term.
If representatives of Tenant shall not be present to open and permit such
entry into the Premises at any time when such entry by Landlord is
necessary or permitted hereunder, Landlord may enter the Premises by means
of a master key (or forcibly in the event of an emergency). Landlord
shall incur no liability to Tenant for such entry except for any damages
caused by Landlord's negligence, nor shall such entry constitute an
eviction of Tenant or a termination of this Lease.
14. Damage and Repairs.
Except as otherwise provided herein, Landlord shall make all
repairs and replacements necessary to maintain the plumbing, air
conditioning and electrical systems, windows, floors (excluding
carpeting), and all other items which are installed or furnished in or to
the Premises by Landlord, other than Tenant's trade fixtures and property.
Landlord shall have no obligation to make any repairs required of Landlord
hereunder until the expiration of a reasonable period of time after
written notice that such repair is needed is received from Tenant, except
that when there is a need to make emergency repairs oral notice shall be
sufficient and Landlord shall undertake such emergency repairs as
expeditiously as possible. Landlord shall, to the extent reasonably
feasible, make all repairs required to be made by Landlord during other
than normal business hours, or in such a manner as will not unreasonably
interfere with Tenant's business. Landlord shall not be liable or
responsible for any injury or inconvenience to, or interference with
Tenant's business arising from the making of any repairs, alterations,
additions or improvements in or to the Premises or Building or to any
appurtenances or equipment therein, but Landlord will prosecute the work
with due diligence and will use its best efforts to minimize any
inconvenience to Tenant.
If during the performance of such repairs, alterations,
additions or improvements thirty percent (30%) or more of any floor of the
Premises is rendered unusable for a period of fifteen (15) consecutive
days or more, Rent for the unusable portion of the Premises will be abated
for the period it cannot be used provided Landlord has in force rent
insurance covering the loss. Landlord will maintain rent insurance in
force so long as it is available.
Tenant shall take good care of the Premises and the fixtures and
appurtenances therein. Tenant shall, at its expense, repair all damage to
the Premises, Building and any fixtures and equipment therein to
Landlord's reasonable satisfaction caused directly or indirectly by
Tenant, its employees, agents, invitees, licensees, subtenants or
contractors. If Tenant fails to make such repairs, the same may be made
by Landlord and the reasonable expense thereof shall be deemed Additional
Rent due and payable by Tenant within fifteen (15) days after the sending
of a statement therefor by Landlord to Tenant.
Except for damage that Tenant is obligated to repair pursuant to
this Lease, Landlord will repair or rebuild all damage to the Building.
In the event the damage cannot be repaired within one (1) year after the
occurrence thereof, Tenant may elect to terminate this Lease by written
notice to Landlord, which notice shall specify a date of termination which
is at least sixty (60) days after the date of such notice.
In the event of damage to the Building so that the Premises or a
portion thereof is or will be unusable for Tenant's occupancy under this
Lease, Rent with respect to the portion of the Premises which is rendered
unusable for Tenant's occupancy shall be abated for the period commencing
with the date on which such damage occurred until the damage is repaired
and the affected portion is again available for Tenant's occupancy.
Anything to the contrary herein notwithstanding, Tenant shall be
responsible or repairing and replacing its furniture, furnishings, trade
fixtures and equipment. Nothing in this Paragraph 14 shall be construed
to mean that any expenses incurred by Landlord for repairs of the Premises
shall not be included within the definition of Operating Expenses set
forth in Paragraph 5(d) hereof.
15. Surrender of Premises.
Upon termination of this Lease by lapse of time or otherwise,
Tenant shall surrender the Premises to Landlord, together with all
additions, alterations, improvements and installations thereto (whether
the same shall have been made by Landlord or Tenant and without
compensation or credit to Tenant), subject, however, to Tenant's right of
removal under Paragraph 9, in broomclean condition and in at least as good
a condition as the Premises were in upon commencement of this Lease,
except for ordinary wear and tear and damage which Tenant is not obligated
to repair, failing which Landlord may restore Premises to such condition
at Tenant's expense. Upon such termination Tenant's trade fixtures,
equipment and furniture shall remain Tenant's property, and Tenant shall
remove the same prior to such termination. Tenant shall promptly repair
any damage caused by such removal and shall restore the Premises to the
condition existing prior to installation of the items so removed. Tenant
shall surrender the Premises to Landlord at the end of the term of this
Lease without notice of any kind, and, other than the notices to be given
pursuant to Subparagraph 9(c) hereof Tenant hereby waives all right to any
such notice as may be provided under any present or future law.
16. Waiver of Claims.
Landlord and Tenant each hereby waive any and all rights of
recovery against the other or against the officers, trustees, employees,
agents and representatives of the other, on account of loss or damage
occasioned to such waiving party or its property or the property of others
under its control to the extent that such loss or damage is insured
against under any fire and extended coverage insurance policy which either
may have in force at the time of such loss or damage. Landlord and Tenant
shall, upon obtaining the policies of insurance required under this Lease,
give notice to the insurance carrier or carriers that the foregoing mutual
waiver of subrogation is contained in this Lease.
17. Tenant Liability Indemnification and Insurance.
(a) Tenant will indemnify and hold harmless the Landlord
for any and all claims of any kind or nature arising from Tenant's use of
the Premises during the term hereof, and Tenant hereby waives all claims
against Landlord for damage to goods, wares or merchandise or for injury
to persons in and upon the Premises from any cause whatsoever, except such
as might result from the negligence of Landlord or Landlord's
representatives, employees, agents and contractors or from failure of
Landlord to perform its obligations hereunder within a reasonable time
after notice in writing by Tenant requiring such performance by Landlord.
(b) During the term of this Lease, Tenant shall, at its
expense, secure and maintain an insurance policy or policies in form
reasonably satisfactory to Landlord providing:
(i) public liability, bodily injury and property
damage liability insurance naming Landlord as an additional
insured, insuring against liability for injury to or death of
persons and damage to or destruction of property, having limits
of liability in an amount not less than Three Million Dollars
($3,000,000.00) Combined Single Limit;
(ii) hazard (i.e., casualty or property damage)
insurance with coverage, in an amount equal to the full
replacement cost thereof, upon the fixtures, furniture,
improvements and personal property installed by or at the
expense of Tenant, insuring against the perils of fire, extended
coverage, vandalism, and malicious mischief.
None of the insurance policies obtained by Tenant pursuant
hereto shall have any coinsurance thereon or applicable thereto. Each
policy obtained pursuant to this Paragraph shall include a waiver of
subrogation clause with respect to claims against Landlord. Landlord
shall have the right to review the forms, coverages, amounts, and duration
of such insurance policies from time to time and to require, upon giving
Tenant thirty (30) days advance written notice thereof, that the forms,
coverages, amounts, or duration of such policies be changed or modified so
as to conform to the requirements established by this Paragraph 17. Such
insurance shall be carried with companies having a rating of "A" (or the
equivalent thereof) or better by Best's Key Rating Guide, unless such
rating requirement is waived by Landlord. Tenant shall deliver to
Landlord (at the option of Tenant) either the originals of the policies
evidencing such insurance coverage or certificates duly executed by the
insurer(s) evidencing such insurance coverage. In either event, the
insurer concerned shall agree that the coverage will not be cancelled or
modified unless at least thirty (30) days advance written notice of the
proposed cancellation or modification has been given to Landlord. In the
event Tenant fails to secure and maintain any of the insurance coverage as
provided in this Paragraph, Landlord may procure such insurance on
Tenant's behalf, including insurance in favor of Landlord alone. In the
event of loss, Tenant shall give immediate notice to Landlord.
(c) Landlord shall secure and, at all times during the
term of this Lease, maintain an insurance policy or policies providing
hazard (i.e., casualty or property damage) insurance with coverage upon
the Building against the perils of fire, extended coverage, and malicious
mischief, together with comprehensive liability insurance to the extent
obtained by prudent landlords in the locale of the Building. The
premiums for such insurance shall be included as a part of the Operating
Expenses of the Building, it being the intention of the parties that
Tenant shall pay Tenant's Share of the cost thereof.
18. Condemnation.
(a) In the event that all of the Building is taken for any
public or quasi-public use or purpose in eminent domain proceedings, or in
the event all of the Building is conveyed to a governmental authority or
other entity having the power of eminent domain ("Condemning Authority")
in lieu of such proceedings, this Lease shall terminate upon the date when
the possession of the Premises shall be surrendered to said Condemning
Authority. Any prepaid Rent attributable to periods after such
termination date shall be refunded to Tenant. In any such proceedings,
and to the extent permitted by law, Tenant may make claim to the
Condemning Authority, the then remaining value of its leasehold estate in
the Premises, and to the extent that the same is not payable out of any
condemnation award or payment in lieu thereof, may make claim to the
Condemning Authority for the taking of Tenant's tangible property, for
Tenant's removal and relocation costs and/or Tenant's loss of business
and/or business interruption.
(b) In the event eminent domain proceedings shall be
instituted for the purpose of taking a substantial portion of the
Building, or if the grade of any street or alley adjacent to the Land is
changed so that, as a result of either such events, substantial structural
alteration or reconstruction of a substantial portion of the Building is
necessary or desirable in Landlord's reasonable judgment, and provided
Landlord does not make such structural changes or reconstruction, Landlord
may elect to terminate this Lease by giving Tenant not less than ninety
(90) days' notice of termination prior to a termination date specified in
such notice, and any prepaid Rent attributable to periods after such
termination date specified in such notice shall be refunded to Tenant. If
Landlord does not so elect to terminate, this Lease shall be and remain in
full force and effect for the balance of its term, except that Rent shall
be proportionately abated to the extent of any portion of the Premises
taken.
(c) The provisions of the preceding paragraph
notwithstanding, in the event thirty percent (30%) or more of the Building
or thirty percent (30%) or more of the Premises is taken in any such
proceedings, Tenant may elect to terminate this Lease by giving Landlord
not less than ninety (90) days' notice of termination prior to a
termination date specified in such notice, and any prepaid Rent
attributable to periods after such termination date specified in such
notice shall be refunded to Tenant.
(d) Tenant shall not share in any condemnation award or
payment in lieu thereof for any taking specified in Subparagraph 19(b),
the same being hereby assigned to Landlord by Tenant; provided, however,
that nothing herein shall preclude Tenant from separately claiming from
the Condemning Authority and receiving, to the extent the same are not
payable out of any condemnation award or payment in lieu thereof,
compensation for the remaining value of the leasehold estate, the taking
of Tenant's tangible property for Tenant's removal and relocation costs
and/or for Tenant's loss of business and/or business interruption.
19. Estoppel Certificates.
Tenant shall, from time to time within fifteen (15) days
following written request from Landlord, execute, acknowledge and deliver
to Landlord, or to any lender, purchaser or prospective lender or
purchaser designated by Landlord, a written statement certifying to the
extent true, (i) that this Lease is in full force and effect and
unmodified (or, if modified, stating the nature of such modification),
(ii) the date to which the Rent has been paid, and (iii) that there are
not, to Tenant's knowledge, any uncured defaults on the part of Landlord
hereunder, or specifying such defaults if any are claimed. Any such
statement may be relied upon by any prospective purchaser or mortgagee of
all or any part of the Land or Building. If Tenant fails to deliver such
statement or to object within said ten-day period to any of the foregoing,
Tenant shall be deemed to have given the same and conclusively deemed to
have certified that this Lease is in full force and effect and unmodified,
that not more than one month's Rent has been paid in advance and that
there are no uncured defaults in Landlord's performance hereunder.
20. Default, Landlord's Remedies, Waiver of Redemption.
The occurrence of any of the following shall be a default and
breach of this Lease by Tenant:
(a) If Tenant abandons the Premises or fails to pay Base
Rent or Additional Rent within ten (10) days after the same shall be due
and payable; or
(b) If Tenant fails to observe and perform any covenant or
obligation required to be observed or performed by Tenant under this Lease
(other than the payment of rent under Subparagraph 20(a), above) for a
period of thirty (30) days after receipt of written notice thereof from
Landlord; provided, however, that if the covenant or obligation to be
performed by Tenant is of such nature that the same cannot reasonably be
performed within such thirty-day period, such default shall be deemed to
have been cured if Tenant commences such performance within said thirty-
day period and thereafter diligently undertakes to complete the same; or
(c) If a trustee or receiver is appointed to take
possession of substantially all of Tenant's assets in or on the Premises
or of Tenant's interest in this Lease, (and Tenant does not regain
possession within sixty (60) days after such appointment), or if Tenant
makes an assignment for the benefit of creditors; or
(d) If any petition in bankruptcy, insolvency, or for
reorganization or arrangement is filed by or against Tenant pursuant to
any statute of the United States or any state, and Tenant fails to secure
a stay or discharge thereof within sixty (60) days after filing of same.
Upon the occurrence of any such event of default as hereinabove
described, Landlord may give Tenant written notice of termination of this
Lease as of a date specified in such notice which shall be at least thirty
(30) days after such notice is given to Tenant. Unless Tenant shall cure
said default within such period, this Lease and the term thereof shall
terminate as of the date specified in said notice. Neither Tenant nor any
person claiming through or under Tenant shall thereafter be entitled to
possession, and Tenant shall thereupon quit and surrender the Premises to
Landlord, but Tenant shall remain liable to Landlord for damages as
hereinafter set forth.
If this Lease is terminated as aforesaid, Landlord may, without
further notice, resume possession of the Premises, undertake summary
proceedings, eviction or otherwise, and may dispossess Tenant, and/or any
other occupant of the Premises and may remove their effects and all other
personal property.
In the event that this Lease is terminated as a result of the
occurrence of any event of default, Tenant or its representatives shall
pay Landlord as liquidated damages, the difference between the Rent
collected on account of the lease of the Premises for each month of the
period which would otherwise have constituted the balance of the term of
this Lease, and the Rent payable under this Lease, and Tenant shall pay
Landlord's expenses for keeping the Premises in good order and for
preparing same for reletting, including broker's fees. Such liquidated
damages shall be paid by Tenant in monthly installments on the first day
of each month after such termination, reentry or dispossession, and no
action brought to collect any monthly installments shall prejudice
Landlord's right to collect any subsequent monthly installment. Landlord
may make such reasonable alterations, repairs, replacements and/or
decorations to the Premises as Landlord considers necessary or desirable
for the purpose of reletting the Premises, and the making of same shall
not release Tenant from liability hereunder, nor shall Landlord's failure
or refusal to relet or failure to collect Rent due under any reletting
affect Tenant's liability for damages.
The rights and remedies of Landlord described above in this
Paragraph 20 shall be in addition to those allowed by law or equity.
21. Security Deposit. (This paragraph deleted)
22. No waiver.
The failure or delay by either party hereto to enforce or
exercise at any time any of the provisions, rights or remedies of this
Lease shall in no way be construed to be a waiver thereof, nor in any way
to affect the validity of any part of this Lease, or the right of either
party to thereafter enforce each and every such provision, right or
remedy. No waiver of any breach of this Lease shall be held to be a
waiver of any other breach. The receipt of Rent by Landlord at a time
after Rent is due under this Lease shall not be construed as a waiver of
such default. The receipt by Landlord of less than the full Rent due
shall not be construed to be other than a payment on account of Rent then
due, and Landlord may accept such payment without prejudice to Landlord's
right to recover the balance of the Rent due or to pursue any other
remedies provided in this Lease. No act or thing done by Landlord or
Landlord's agents or employees during the term of this Lease shall be
deemed an acceptance of a surrender of the Premises, and no agreement to
accept such a surrender shall be valid unless in writing and signed by
Landlord.
Any agreement for extension of the original term of this Lease
or any additional period thereafter shall not prevent Landlord from
terminating this Lease during the term thereof for any reason specified in
this Lease. If any such right of termination is exercised by Landlord
during the original term of this Lease, then any agreement for extension
of the original term shall also be thereby cancelled. Said rights of
termination of Landlord contained herein shall continue during the
original term of this Lease and any subsequent extensions thereafter.
23. Quiet Enjoyment.
If, and so long as Tenant pays the Rent reserved herein and
observes and performs all of the covenants, conditions and obligations to
be observed and performed by Tenant hereunder, and subject to all
provisions of this Lease, Landlord will not hinder or interfere with
Tenant and Tenant shall have peaceable and quiet use and enjoyment of the
Premises for the term of this Lease.
24. Force Majeure.
In the event that either party hereto shall be delayed or
hindered in, or prevented from, the performance of any work, service or
other act required under this Lease to be performed, as a result of
strikes, lockouts, shortages of labor or material, acts of God, flooding
and other weather associated causes, governmental restrictions, enemy act,
civil commotion, fire or other casualty, or other causes or circumstances
beyond the control of the party so delayed or hindered, then performance
of such work, service or other act shall be excused for the period of such
delay and the period for the performance of such work, service or other
act shall be extended for a period equivalent to the period of such delay.
In no event shall such delay constitute a termination of the term of this
Lease. The provisions of this Paragraph 24 shall not operate to excuse
Tenant from the prompt payment of Rent.
25. Successors.
Subject to Paragraph 12 hereof, the respective rights and
obligations provided in this Lease shall inure to the benefit of and shall
be the obligations of the parties hereto, their successors and assigns;
provided, however, that Landlord, its successors and assigns, shall be
obligated to perform Landlord's agreements and covenants under this Lease
only during and in respect of their respective successive periods as
Landlord during the term of this Lease. Provided that Landlord's assignee
assumes in writing for the benefit of Tenant all of Landlord's covenants
and obligations under this Lease, then in the event of Landlord's
assignment of its interest hereunder, Landlord shall, from and after the
time of such assignment, he relieved of any and all liability or
obligation to Tenant hereunder, and all such liabilities and obligations
shall, as of the time of such assignment, automatically pass to Landlord's
assignee, subject to the assumption required above.
26. Subordination and Attornment.
(a) Tenant agrees to subordinate this Lease to any future
ground, air space or underlying lease and to all mortgages which may now
or hereafter affect such leases or the land or any part thereof and to all
renewals, modifications, consolidations replacements, and extensions
thereof; provided, however, that Tenant's rights of possession hereunder
and all of its other rights and privileges hereunder shall not be
disturbed or impaired so long as Tenant is not in default under the terms
of this Lease or such default has been cured within the time permitted for
the curing of default by the Tenant under the terms of this Lease.
(b) Upon written request of any mortgagee, or successor or
assignee of the Landlord, Tenant shall execute an instrument whereby
Tenant shall attorn to such mortgagee, successor or assignee upon all the
terms, covenants, conditions, and agreements set forth in this Lease,
provided the party requesting the same executes an instrument whereby such
party agrees not to disturb or impair Tenant's rights of possession
hereunder and all of its other rights and privileges hereunder so long as
Tenant is not in default under the terms of this Lease or such default has
been cured within the time permitted for the curing of default by the
Tenant under this Lease. The holder of every interest to which this Lease
is subordinate or the purchaser of the Land and Building or any portion
thereof in foreclosure proceedings or otherwise shall not be bound by any
payment of Rent by Tenant to Landlord for more than one month in advance.
The provisions of this Paragraph 25 shall be self-operative and
no further instrument of subordination shall be required by the holders of
any interest to which this Lease is subordinate. Each party agrees,
however, whenever requested so to do upon reasonable notice by the other
party, to execute such instruments confirming the provisions of this
Paragraph 25 as the party requesting the same may require, without expense
to Landlord, and in the event that Tenant shall fail or neglect so to
execute, acknowledge and deliver any such subordination instrument or
certificate, Landlord, in addition to any other remedies, may be the agent
or attorney-in-fact of Tenant and may execute, acknowledge and deliver the
same, and Tenant hereby irrevocably nominates, constitutes, and appoints
Landlord as Tenant's proper and legal attorney-in-fact for such purpose.
27. Holding Over.
In the event that Tenant remains in possession of the Premises
with the written consent of Landlord, after the expiration of the term of
this Lease, Tenant shall be a tenant from month to month, at a rate double
the then current Rent, and such tenancy shall otherwise be subject to all
of the covenants and agreements of this Lease. In the event that Landlord
does not so consent to Tenant's continued possession after the expiration
of the term of this Lease, or if no new agreement shall have been entered
into by the parties hereto, Tenant shall pay Landlord all reasonable
damages sustained by reason of Tenant's retention of possession after such
expiration.
28. Signs.
Tenant shall not place, install or affix, or permit the
placement, installation or fixation of any sign of any nature on the
exterior of the Premises, or in the windows or lobbies of the Building
without first obtaining the written consent of Landlord; provided that
Landlord shall remove at its expense, any sign on the exterior of the
Building or the Premises which refers to "Eaton" or "Xxxxx-Xxxxxx",
including without limitation, the sign on top of the Building and Tenant
shall have the right to place any of its signs in place thereof; and
provided, further, that Tenant may, at its expense, remove any sign in the
interior of the Premises which refers to "Eaton" or "Xxxxx-Xxxxxx" and
replace such sign with Tenant's sign. All Tenant signs shall be installed
and maintained by Tenant in compliance with all applicable laws, statutes,
ordinances, rules and regulations of all governmental authorities and
agencies. Tenant shall pay all expenses, and all license and permit fees
relating to the installation and maintenance of authorized signs, and
shall pay all expenses of removal and costs of repairs resulting
therefrom, except as provided in the proviso above.
29. Floor Load.
Tenant shall not place or permit to be placed upon any floor of
the Premises any item of any nature the weight of which shall exceed such
floor's rated floor load limit, which is sixty (60) pounds per square foot
live load or twenty (20) pounds per square foot partition load.
30. Landlord Option. (This paragraph deleted)
31. Governing Law.
This Lease shall be construed, governed and enforced in
accordance with the laws of the State of Utah.
32. Severability.
If any provisions of this Lease shall be held to be invalid,
void or unenforceable, the remaining provisions hereof shall in no way be
affected or impaired and such remaining provisions shall remain in full
force and effect.
33. Gender.
As used in this Lease, the word "person" shall mean and include,
where appropriate, an individual, corporation, partnership or other
entity, the plural shall be substituted for the singular, and the singular
for the plural, where appropriate; and words of any gender shall include
any other gender.
34. Notices.
All notices required or permitted hereunder shall be deemed
sufficiently given if delivered in person or sent by registered or
certified mail, postage prepaid, addressed to the Landlord or Tenant as
follows:
To Landlord: Xxxxx Properties Corporation and
Eaton Utah Corporation
x/x Xxxxx Xxxxxxxxxxx
Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Real Estate Department
To Tenant: Harnischfeger Engineers, Inc.
00000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Secretary and General Counsel
Either party may change its address by written notice to the other.
35. Execution.
This Lease shall become effective when it has been signed by a
duly authorized officer or representative of each of the parties and
delivered to the other party. This Lease is being executed simultaneously
in multiple counterparts. Each of such fully executed counterparts shall
be deemed an original and it shall not be necessary in making proof of
this Lease to produce or account for more than one such counterpart.
36. Modifications.
If, in connection with Landlord's obtaining financing or
refinancing for the Building, a banking, insurance or other institutional
lender shall request reasonable modifications to this Lease as a condition
to such financing or refinancing, Tenant will not unreasonably withhold,
delay or defer its consent thereto, provided that such modifications do
not increase the obligations of the Tenant hereunder, including rental
obligations and any other obligations of Tenant hereunder or materially
adversely affect Tenant's interest in this Lease or the rights, privileges
or benefits hereunder. In no event shall a requirement that the
reasonable consent of any such lender be given for any modification of
this Lease, or for any assignment or sublease be deemed to materially
adversely affect the leasehold interest hereby created.
37. Rules and Regulations.
Tenant, its servants, employees, agents, invitees, licensees,
contractors and subcontractors shall observe and strictly comply with such
reasonable rules and regulations as Landlord or its agents may, after
notice to Tenant, from time to time adopt which are not inconsistent with
any of the terms and conditions of this Lease. A copy of the present
rules and regulations are attached as Exhibit "E." Landlord shall
exercise its best efforts to include in leases of other space in the
Building a similar requirement obligating tenants to comply with the rules
and regulations adopted by Landlord. Landlord shall exercise its best
efforts to enforce said rules and regulations, to the extent applicable,
in a non-discriminatory manner and to enforce the terms, covenants or
conditions in any other lease against any other tenant; provided, however,
that Landlord shall not be liable to Tenant for violation of the same by
any other tenant, its servants, employees, agents, invitees or licensees.
38. Common Areas.
Tenant, its authorized representatives, customers, employees and
invitees shall have the non-exclusive right throughout the term of this
Lease, in common with others, to the use of certain entrances, lobbies,
elevators, ramps, drives, stairs and similar access and serviceways and
common areas adjacent to, and included within, the Building, subject to
such non-discriminatory rules and regulations as may be from time to time
adopted by the Landlord.
39. Marginal Titles.
The marginal titles, headings, and table of contents to this
Lease are inserted only as a matter of convenience and reference, and in
no way affect, define, limit or describe the scope or intent of this
Lease.
40. Entire Agreement.
This Lease, including the Exhibits hereto, contains all the
agreements, conditions, understandings, representations and warranties
made by and between the parties hereto with respect to the subject matter
hereof, and may not be modified orally of in any manner other than by an
agreement in writing signed by both parties.
41. Attorney's Fees.
Landlord and Tenant agree that should either of them default in
any of the covenants or agreements contained herein, the defaulting party
shall pay all costs and expenses, including reasonable attorney's fees,
which may arise or accrue from enforcing this Lease, or in pursuing any
remedy provided by this Lease or the laws the State of Utah whether such
remedy is pursued by filing a suit or otherwise.
42. Option on Additional Space.
During the term of this Lease, including all extensions thereof,
Tenant shall have the right of first refusal with respect to any space in
the Building on the 7th floor as it becomes available. Such right of
first refusal shall be exercisable in the following manner: No sooner
than six (6) months before such space shall become available, Landlord
shall notify Tenant of the availability of such space within the Building.
Tenant shall notify Landlord within ninety (90) days of such notice
whether Tenant elects to take such space, and if such election is
exercised, then such space shall be added to this Lease as soon as it is
delivered to Tenant at the Base Rent and Additional Rent (per leasable
foot) specified in this Lease for the remainder of the Premises, and
otherwise upon all of the terms and conditions of this Lease, including
any extension options. Tenant's election under this Paragraph 42 shall be
irrevocable. If Tenant elects not to lease such space, Landlord shall be
entitled to lease such space to any third party at a rental rate higher
than, equal to or less than the rental rate under this Lease without
offering such space to Tenant at such rental rate. If Tenant elects to
take such space, Landlord shall deliver possession of such space to Tenant
as soon as it becomes available in an "as-is" condition. All demolition,
alterations, additions, improvements and modifications to such space shall
be done by Tenant in accordance with this Lease at Tenant's sole cost and
expense.
43. Option to Extend.
(a) Tenant shall have the option to extend the term of
this Lease for three (3) additional periods of five (5) years each. The
first extension period shall begin on the day following the tenth
anniversary of the Commencement Date and the second and third option
periods shall commence on the first day following the expiration of the
previous extension period (the "Extension Commencement Dates"). Such
options shall be exercised only by Tenant giving Landlord written notice
thereof which is received by Landlord not less than six (6) full calendar
months prior to the applicable Extension Commencement Date. Time shall be
of the essence with respect to Tenant's notice of exercise as aforesaid.
In the event that the term of this Lease is, in fact, extended pursuant to
the foregoing, then such extension shall be upon all of the same terms and
provisions contained in this Lease, except that the Base Rent only shall
be adjusted as expressly set forth in this Paragraph 43.
(b) In the event Tenant exercises one or more of the
foregoing options to extend the term of this Lease, then the monthly Base
Rent payable with respect to the applicable extension period shall be
adjusted to be equal to the Fair Market Rental (as hereinafter defined)
for the Premises as of the commencement of such extension period. "Fair
Market Rental" as used hereunder shall mean the monthly fair market rent
for the Premises as agreed to by the parties, or failing such agreement
within thirty (30) days following Landlord's receipt of Tenant's notice
exercising its option to extend, determined by the Three Appraisal Method
(as hereinafter defined). The "Three Appraisal Method" for purposes of
this Lease shall mean that Landlord and Tenant shall each cause an
appraisal of the Premises to be made by an MAI appraiser. If the two
appraisers are less than ten percent (10%) apart, the Fair Market Rental
shall be the average of the two (2) appraisals. In the event the two (2)
appraisals are more than ten percent (10%) apart, then the two (2)
appraisers shall select a third MAI appraiser and the resulting Fair
Market Rental shall be the average of the third appraiser's appraisal and
the original appraisal closest to the third appraisal. Landlord and
Tenant shall each pay the cost of the appraiser selected by it and
Landlord and Tenant shall share equally the cost of the third appraiser.
Landlord and Tenant shall instruct the appraisers they appoint to complete
the appraisal process and determine the Fair Market Rental within sixty
(60) days from the date Tenant notifies Landlord of its election to
exercise the option to extend this Lease.
44. Additional Space.
(a) Tenant shall have the right to exclusively occupy the
entire seventh (7th) floor of the Building for a period of six (6) months
following the Commencement Date. Tenant shall further have the right to
exclusively occupy the entire eighth (8th) and ninth (9th) floors of the
Building for a period of three (3) months following the Commencement Date.
Said occupancy shall be permitted free of any rental or other charge under
the Lease, except for separately metered utilities.
(b) Landlord agrees that Tenant owns and shall have the
right to remove, relocate or otherwise dispose of any and all furniture,
furnishings and equipment and the raised floor in the computer room
located in the space occupied under Subparagraph 44(a), above, and any
other leasehold improvements which are included in the definition of the
Subject Assets in the Asset Purchase Agreement dated January 12, 1995,
among Tenant, Xxxxx-Xxxxxx, Inc. and Xxxxx Corporation.
45. Lease of First Floor Space.
Landlord has agreed it shall not allow the first floor space of
the Building to be used or leased for any improper, immoral or unlawful
purpose.
46. Alternative Dispute Resolution.
In the event that any dispute shall arise among the parties,
except for any disputes which are to be resolved by the CPA, or in the
event that the CPA shall be unable or unwilling to resolve any particular
dispute which is to be resolved by it under the terms of this Lease, the
parties agree to follow the following procedure prior to pursuing other
available remedies with respect to such dispute:
(a) A meeting shall be held promptly among the parties,
attended by representatives having decision-making authority regarding the
dispute, to attempt in good faith to negotiate a resolution of the
dispute.
(b) If, within thirty (30) days after such meeting, the
parties have not succeeded in negotiating a resolution of the dispute,
they will jointly appoint a mutually acceptable neutral person not
affiliated with any of the parties (the "Neutral"), seeking assistance in
such regard from the American Arbitration Association center for Public
Resources, or other mutually agreed upon organization if they have been
unable to agree upon such appointment within forty (40) days from the
initial meeting. The fees of, and authorized costs incurred by, the
Neutral shall be shared equally by the parties.
(c) In consultation with the Neutral, the parties will
select or devise an alternative dispute resolution procedure ("ADR") by
which they will attempt to resolve the dispute, and a time and place for
the ADR to be held, with the Neutral making the decision as to the
procedure, and/or place and time if the parties have been unable to agree
on any of such matters within twenty (20) days after initial consultation
with the Neutral. In any case, the ADR shall be held not later than sixty
(60) days after selection of the Neutral.
(d) The parties agree to participate in good faith in the
APR to its conclusion. If the parties are not successful in resolving the
dispute through the APR, then any party may pursue other available
remedies upon seven (7) days' written notice to the other parties
specifying its intended course of action.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease
to be signed as of the day and year first above written.
Witnesses as to Landlord: LANDLORD:
XXXXX PROPERTIES CORPORATION
By: /s/ P.X. Xxxxxxx
Its: President and Treasurer
By: /s/
Its:
EATON UTAH CORPORATION
By: /s/ P.X. Xxxxxxx
Its: President and Treasurer
By: /s/
Its:
Witnesses as to Tenant: TENANT:
HARNISCHFEGER ENGINEERS, INC.
By: /s/ Xxxx X. Xxxxxx
Its: President
By: /s/ Xxxx X. Xxxxxxxxxx, Xx.
Its: Secretary
EXHIBIT A
The Premises
Floor Square Feet
Second 9,074
Third 10,629
Fourth 10,629
Fifth 11,613
Sixth 11,613
------
Total 53,558
EXHIBIT B
COMMENCING at the Southwest corner of Xxx 0, Xxxxx 00, Xxxx "X",
XXXX XXXX XXXX SURVEY, and running thence East 259.5 feet; thence North
330 feet; thence West 259.5 feet; thence South 330 feet to the point of
BEGINNING.
TOGETHER WITH AND SUBJECT TO a right-of-way over the following
(which said right-of-way was created by that certain Warranty Deed
recorded in Salt Lake County, Utah on October 1, 1917 as Entry No. 384546
in Book 10-G of Deeds, Page 349): BEGINNING at a point 94.5 feet East of
the Southwest corner of Lot 3 of said Block and Plat, and running thence
East 4.5 feet; thence North 330 feet; thence West 9 feet; thence South 330
feet; thence East 4.5 feet to the point of BEGINNING.
SUBJECT TO a right-of-way in favor of Salt Lake City, for the
purpose of constructing, operating, and maintaining flumes in which to
carry the waters of the Jordan and Salt Lake Canal, on, over, and through
a strip of land 16.5 feet wide described as follows (which said right-of-
way was created by that certain Indenture recorded in Salt Lake County,
Utah on April 29, 1882 in Boot T of Deeds at Page 88-89): BEGINNING at a
point 60 feet East from the Southwest corner of said Lot 4, thence North
66 degrees 30' West 61 feet; thence North 58 degrees 30' West 9.5 feet to
the West line of said Lot 4, thence North 20 feet; thence South 58 degrees
30' East 17 feet; thence South 66 degrees 30' East 99 feet to the South
line of said Lot 4; thence West 41 feet to the place of BEGINNING.
EXHIBIT C
Initial Tenant Improvements
The following is a list of the Initial Tenant Improvements:
1. Removal and replacement of carpeting.
2. Demolition of existing interior walls.
3. Construction of new interior walls.
4. Modification of the mechanical and electrical systems to
facilitate the Initial Tenant Improvements.
5. Installation of new communication and computer wiring.
6. Removal of the computer room equipment and accessories from
floor 7 and the installation of those items in the Premises.
7. Repainting and decorating.
8. Removal of furniture, furnishings and equipment from floors
7 through 9 as provided in Paragraph 44(b), and installation of such items
in the Premises.
9. Removal of existing interior signs which refer to "Eaton"
or "Xxxxx-Xxxxxx" and replacement of such signs with Tenant's signs.
10. Relocation of Tenant's furniture and equipment from
Tenant's offices in the Salt Lake City area to the Premises.
E X H I B I T "D"
JANITORIAL SPECIFICATIONS
Attached)
SCHEDULE D
JANITORIAL REQUIREMENTS
JANITORIAL SERVICES ARE TO BE INCLUDED AS PART OF THE PROPOSAL
All janitorial services shall be performed after 6:00 p.m. and
must be completed prior to 7:00 a.m. the following morning. Lessor shall
be willing to submit to the State a list of Janitorial employees with
their home addresses and telephone number for a security investigation.
The State shall have the right to ask for the dismissal of any janitorial
employee not meeting security requirements The janitorial duties shall
include, but not limited to, the following:
Daily Duties (except Saturdays, Sundays and holidays):
Empty and replace liners in all trash containers
Vacuum all carpets and reposition all furniture in proper
positions
Dust mop or vacuum hallways and entries
Sweep, dry dust mop and buff all vinyl floors
Clean and polish drinking fountains
Clean entry glass
Re-set chairs to standard position in conference rooms
Spot clean carpet and upholstery as needed
Clean all entries to drip line
Re-set chairs to standard positions in meeting rooms
Clean elevator walls
Clean elevator floors
Wipe down break room tables and chairs
Clean sinks and counter tops in break room
Clean restroom mirrors
Clean and sanitize restroom fixtures and partitions
Clean, wet mop and sanitize restroom floors
Refill restroom dispensers (tissue, soap and towels)
Shake and clean entry walk-off mats, if applicable
Remove finger and hand prints from doors, door glass and
partitions
Close and secure all windows, where applicable
Turn off all lights
Tuesday and Thursday Duties:
Hand broom corners in corridors, halls and stairwells
Spot clean office and hall walls
Clean around light switches
Clean doors and door frames
Clean conference tables
Sanitize restroom walls
Polish bright work areas often touched
Clean and polish all handrails and banisters
Broom in front of all entrances to drip line
Clean (shake) all entry walk-off mats
Keep area around trash dumpster clean
Weekly duties (Same Day Each Week):
Vacuum all upholstery (chairs and couches)
Dust furniture and fixtures
Dust and clean window xxxxx
Dust and clean mop boards
Spot clean all carpet
Dust and spot clean levelor blinds
Dust and clean tops of partitions
Keep restroom floors sealed and polished as needed
Clean main entry glass, exterior and interior
Clean all janitorial equipment
Monthly Duties (First Working Day of Each Month):
Damp wipe all vinyl chairs and couches in offices,
conference room and halls
Dust all surface areas as necessary, clearing cobwebs, etc.
Quarterly Duties:
Dust and vacuum air diffusers and grills
Scour clean all office and hall trash containers
Strip and re-polish floors
Semi-Annual Duties:
Clean and treat all vinyl and leather chairs and couches
Vacuum draperies
Clean exterior and interior windows.
Annual Duties:
Clean all light fixtures
Remove and clean levelor blinds
Changes in the frequencies, or days of performance of any duty, shall be
made by mutual agreement with the State and shall be specified in writing.
E X H I B I T "E"
RULES AND REGULATIONS
(Attached)
EXHIBIT E
RULES AND REGULATIONS
WHICH CONSTITUTE A PART OF THE LEASE
1. The sidewalks, entrances, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or used
for any purpose other than ingress and egress.
2. Except as otherwise provided in the Lease, no awnings or
other projection shall be attached to the outside walls of the Building.
No curtains, blinds, shades or screens shall be attached to or hung in, or
used in connection with, any window or door of the Premises other than
Landlord's standard window coverings. All electric ceiling fixtures hung
in offices or spaces along the perimeter of the Buildings must be
fluorescent, of a quality, type, design and bulb color approved by
Landlord. Neither the interior nor exterior of any windows shall be
coated or otherwise sunscreened without the express written consent of
Landlord.
3. No sign, advertisement or notice shall be exhibited,
painted or affixed by any Tenant on any part of the Premises or the
Building without the prior written consent of the Landlord. In the event
of the violation of the foregoing by any Tenant, Landlord may remove same
without any liability, and may charge the expense incurred in such removal
to the Tenant violating this rule. Interior signs on doors and directory
tablets shall be inscribed, painted or affixed for each Tenant by the
Landlord at the expense of such Tenant, and shall be of a size, color and
style prescribed by Landlord. The directory tables will be provided
exclusively for the display of the name and location of Tenants only and
Landlord reserves the right to exclude any other names therefrom. Nothing
may be placed on the exterior of corridor walls or corridor doors other
than Landlord's standard lettering.
4. The sashes, sash doors, skylights, windows, and doors that
reflect or admit light and air into the halls, passageways or other public
places in the Building shall not be covered or obstructed by any Tenant,
nor shall any bottles, parcels or other articles be placed on the
windowsills.
5. The water and wash closets and other plumbing fixtures
shall not be used for any purpose other than those for which they were
constructed and no sweepings, rubbish, rags or other substances shall be
thrown therein. All damages resulting from any misuse of the fixtures
shall be borne by the Tenant, who or whose servants, employees, agents,
visitors or licensees, shall have caused the same.
6. No Tenant shall xxxx, paint, drill into, or in any way
deface any part of the Premises or the Building. No boring, cutting or
stringing of wires or laying of linoleum or other similar floor coverings
shall be permitted, except with the prior written consent of the Landlord
and as the Landlord may direct.
7. No bicycles, vehicles, birds or animals of any kind shall
be brought into or kept in or about the Premises, and no cooking shall be
done or permitted by any Tenant on the Premises, except that the
preparation of coffee, tea, hot chocolate and similar items for Tenants
and their employees shall be permitted provided power shall not exceed
that amount which can provided by a 30 amp circuit. No Tenant shall cause
or permit any unusual or objectionable odors to be produced or permeate
the Premises or the Building.
8. The Premises shall not be used for manufacturing or for the
storage of merchandise except as such storage may be incidental to the use
of the Premises for general office purposes or Tenant's use of the
Premises as set forth in the Lease. Tenant shall not occupy or permit any
portion of its Premises to be occupied as an office for a public
stenographer or typist, or for the manufacture or sale of liquor,
narcotics, or tobacco in any form, or as a medical office, or as a xxxxxx
or manicure shop, or as an employment bureau. No Tenant shall engage or
pay any employees on the Premises except those actually working for such
Tenant on the Premises nor advertise for laborers giving an address at the
Premises. The Premises shall not be used for lodging or sleeping or for
any immoral or illegal purposes.
9. No Tenant shall make, or permit to be made, any unseeingly
or disturbing noises or disturb or interfere with occupants of the
Building, or neighboring buildings or premises, or those having business
with them, whether by the use of any musical instrument, radio,
phonograph, unusual noise, or any other way. No Tenant shall throw
anything out of doors, windows or skylights or down the passageways.
10. No Tenant nor any of Tenant's servants, employees, agents,
visitors or licensees, shall at any time bring or keep upon the Premises
any dangerous inflammable, combustible or explosive fluid, chemical or
substance.
11. No additional locks or bolts of any kind shall be placed
upon any of the doors or windows by any Tenant, nor shall any changes be
made in existing locks or the mechanism thereof. Each Tenant must, upon
the termination of its tenancy, restore to the Landlord all keys of
stores, offices, and toilet rooms, either furnished to, or otherwise
procured by such Tenant and in the event of the loss of any keys so
furnished, such Tenant shall pay to the Landlord the costs of replacing
the same or of changing the lock or locks opened by such lost key if
Landlord shall deem it necessary to make such change.
12. All removals, the carrying in or out of any safes, freight,
furniture, or bulky matter of any description or the use of the Building's
elevators therefor must take place between the hours of 9:00 - 11:00 a.m.
and 1:30 - 4:15 p.m. Monday through Friday (exclusive of holidays). The
moving of safes, other fixtures, equipment or bulky matter of any kind
must be made upon previous notice to the management of the Building and
under its supervision, and the person employed by any tenant for such work
must be acceptable to the Landlord. The Landlord reserves the right to
inspect all safes, freight or other bulky articles to be brought into the
Building and to exclude from the Building all safes, freight or bulky
articles which violate any of these Rules and Regulations or the Lease.
The Landlord reserves the right to prescribe the weight and position of
all safes, which must be placed upon supports approved by Landlord to
distribute weight. If additional expenses are incurred by Landlord by
reason of moving of tenant's safes, other fixtures, equipment or bulky
matter of any kind, such expenses shall be borne by tenant.
13. The Landlord reserves the right to exclude from the
Building on Mondays through Fridays between the hours of 6:00 p.m. and
8:00 a.m., at all hours on Saturdays, Sundays and legal holidays all
persons who have not received clearance as a result of a written request
from tenant or who do not present a pass to the Building signed by the
Landlord. The Landlord will furnish passes, or at Landlord's option
clearances, to persons for whom any tenant requests the same in writing.
Each tenant shall be responsible for all persons for whom it requests
passes or clearances and shall be liable to the Landlord for all acts of
such persons. Landlord shall in no case be liable for damages for any
error with regard to the admission to, or exclusion from, the building of
any person. In case of an invasion, mob, riot, public excitement or other
circumstances rendering such action advisable in Landlord's opinion,
Landlord reserves the right to prevent access to the Building during the
continuance of the same by closing the doors or otherwise, for the safety
of the tenants and the protection of the Building and the property in the
Building.
14. Any persons employed by any tenant to do janitorial work,
shall, while in the Building and outside of the Premises, be subject to
and under the control and direction of the management of the Building (but
not as an agent or servant of the Landlord), and tenant shall be
responsible for all acts of such persons. No such person shall be allowed
in the Building between 6:00 p.m. and 8:00 a.m. on Mondays through
Fridays, and at all hours on Saturdays, Sundays and legal holidays.
15. All doors opening onto public corridors shall be kept
closed, except when in use for ingress and egress.
16. The requirements of tenant will be attended to only upon
appropriate application to the office of the Building by an authorized
individual. Employees of Landlord shall not perform any work or do
anything outside of their regular duties unless under special instructions
from Landlord, and no employee of Landlord will admit any person (tenant
or otherwise) to any office without specific instructions from Landlord.
17. Canvassing, soliciting and peddling in the Building are
prohibited and each tenant shall cooperate to prevent the same.
18. All office equipment of any electrical or mechanical nature
shall be placed by tenant in the Premises in settings approved by
Landlord, to absorb or prevent any vibration, noise or annoyance.
19. No air conditioning unit or other similar apparatus shall
be installed or used by any tenant without the written consent of
Landlord.
20. There shall not be used in any space, or in the Common Area
of the Building, either by any tenant or others, any hand trucks except
those equipped with rubber tires and rubber side guards or such other
material handling equipment as Landlord may approve. Tenant shall not
bring any other vehicles into the Building.
21. No vending or similar machines shall be installed,
maintained or operated upon the Premises without the written consent of
Landlord.
22. The scheduling of moves of tenant's furniture and equipment
into or out of the Building is subject to the reasonable discretion of
Landlord.
23. All electric wiring and electrical outlets and connections
of every kind shall be introduced and connected only by Landlord, and no
boring or cutting of wires shall be allowed except with the prior written
consent of the Landlord. The location of telephone, call boxes and other
office equipment affixed to the Premises shall be subject the prior
written of Landlord. No air conditioning unit or other similar apparatus
shall be installed or used by any tenant without prior written consent of
Landlord.
24. Landlord reserves the right to exclude or expel from the
Building and the Premises any person who, in the judgement of Landlord, is
intoxicated or under the influence of liquor or drugs, or who shall in any
manner do any act in violation of the Rules and Regulations.
25. Except as provided in the Lease, Tenant shall not place any
radio or television antenna on the roof or on any part of the inside or
the outside of the Building, other than the inside of the Premises,
without the prior written consent of the Landlord. Tenant shall not
operate or permit to be operated any musical or sound producing instrument
or devise inside or outside the Premises which may be heard outside the
Premises, or operate any electrical devise from which may emanate
electrical waves which may interfere with or impair radio or television
broadcasting or reception from or in the Building or elsewhere, without
the Landlord's prior written consent.
26. Tenant shall comply with all rules and regulations
applicable to the parking garage determined by the Landlord or its
appointed parking garage operator from time to time. Landlord reserves
the right to limit access to the parking garage based on vehicle
dimensions.
27. Tenant shall close and lock the doors of its Premises and
entirely shut off all water faucets or other water apparatus, and
electricity, gas or air outlets before tenant and its employees leave the
Premises. Tenant shall be responsible for any damage or injuries
sustained by other tenants or occupants of the Building or by Landlord for
noncompliance with this Rule.
28. Tenant shall not place a load upon any floor of the
Premises which exceed the live load limit of 80 PSF + 20 PSF partitions as
set forth in the letter of Xxxxx and Xxxxxx Engineers, dated September 5,
1993, as referenced under Exhibit "E". Heavy objects shall, if considered
necessary by Landlord, stand on such platforms as determined by Landlord
to be necessary to properly distribute the weight. Business machines and
mechanical equipment belonging to tenant, which cause noise or vibration
that may be transmitted to the structure of the Building, or to any space
therein, to such a degree as to objectionable to Landlord; or to any
tenants in the Building, shall be placed and maintained by tenant, at
tenant's expense, on vibration eliminators or other devices sufficient to
eliminate noise or vibration. The person employed to move such equipment
in or out of the Building must be acceptable to Landlord. Landlord will
not be responsible for loss of, or damage to any such equipment or other
property from any cause, and all damage done to the Building by
maintaining or moving such equipment or other property shall be repaid at
the expense of tenant.
29. Tenant shall contain all its trash and garbage within its
Premises until Landlord disposes of it in the ordinary and customary
manner of trash and garbage disposal. Tenant shall not place in any trash
box or receptacle any material which cannot be disposed of in the ordinary
and customary manner of trash and garbage disposal. All garbage and
refuse disposal shall be made in accordance with directions issued from
time to time by Landlord.
30. Landlord shall not be liable to any tenant of the Building
for the non-observance or violation of these Rules and Regulations, the
attached Lease or any other lease for premises within the Building.
31. Tenant shall keep all window coverings closed when the
Building air conditioning, heating and ventilation systems are in
operation. Landlord shall not be responsible for room temperatures if
Tenant fails to comply with this Rule.
32. Tenant shall not connect any apparatus, device, conduct or
the Building chilled or hot water supply lines or to the air conditioning
system. Neither tenant nor tenant's servants, employees, agents,
visitors, licensees or contractors shall, at any time, enter the
mechanical installations or facilities of the Building or adjust, tamper
with, touch or otherwise in any manner affect said installation or
facilities.
33. Tenant's use of electric current shall never exceed the
electrical capacity of the floor or Building or cause such capacity to be
exceeded.
34. The word "tenant" as used herein shall include any sub-
tenant.
35. Normal business hours for the Building are from 7:00 a.m.
to 6:00 p.m. Monday through Friday and 7:00 a.m. to 1:00 p.m. on Saturday,
except for legal holidays.
36. Xxxxx Center is a non-smoking building environment. Tenant
shall not permit its employees, agents or invitees to smoke in the
Premises or the Common Areas of the Building.
