EXHIBIT 10.6
BUILDING LEASE
between
SUPERIOR POINTE 1000, LLC (Landlord)
and
ORTHONETX, INC. (Tenant)
A Nevada Corporation
1
BUILDING LEASE
--------------
THIS BUILDING LEASE ("Lease") is made as of this 11th day of November,
2004, by and between Superior Pointe, LLC, a Colorado LLC ("Landlord"), having
an office at 0000 Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000, and OrthoNetx, Inc, a
Nevada Corporation ("Tenant"), having a principal place of business at 0000 X
Xxxxxxxxxx Xxxx, 0000, Xxxxxx, XX 00000.
WITNESSETH:
The parties hereto, for themselves, their distributees, administrators,
legal representatives, successors and assigns, hereby covenant and agree as
follows:
ARTICLE 1
DEFINITIONS, DEMISE, PREMISES, TERM, RENT
1.1 DEFINITIONS. The following terms shall have the meanings
hereinafter set forth throughout this Lease.
a. "BASE RENT" shall mean the base rent payable by Tenant during
the Term, as set forth in Section 1.6. Rent shall include Base Rent and
Additional Rent.
b. "BUILDING" shall mean, that office building containing
approximately 85,841 rentable square feet and other related improvements, having
an address of 0000 XxXxxxxx Xxxxxxxxx, Xxxxxxxx XX 00000, and known as Superior
Pointe - North Building.
c. "BUILDING COMPLEX" shall mean collectively the Building, the
Property (as defined in Section 1.11 hereof) and any sidewalks, vacated alleys,
landscaping or other improvements related to the foregoing.
d. "COMMENCEMENT DATE" shall mean five (5) days after the
Substantial Completion Date (as defined in Section 2.1f hereof) unless
Substantial Completion is delayed due to Tenant Delays pursuant to Section 2.1d.
The Commencement Date is anticipated to occur on or about November 15, 2004.
e. "EXPIRATION DATE" shall mean the last day of the twenty fourth
(24) month after the Commencement Date shall occur; provided, however, that if
the Commencement Date shall be deemed to have occurred on the first day of a
calendar month, the Expiration Date shall be the last day of the twenty fourth
(24) calendar month following the anniversary of the Commencement Date.
f. "LANDLORD'S NOTICE ADDRESS" shall mean c/o Countryside Asset
Management, 0000 Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxx
Xxxxxx.
2
g. "LEASE YEAR" shall mean each twelve (12) month period during the
Term (as defined in Section 1.1lp) commencing on the Commencement Date.
h. "PARKING SPACES" shall mean the spaces for parking automobiles
located on the Property.
i. "PERMITTED USES" shall mean: Executive and Administrative
Offices.
j. "PREMISES" shall mean: A portion of the 3rd floor of the
building (Suite 300, containing approximately 3,921 rentable square feet.
k. "PREMISES IMPROVEMENTS" shall mean the improvements to the
Premises to be shown on the Premises Improvement Plans as defined in Section
2.1a hereof.
l. "PROPERTY" shall mean that certain real property on which the
Building is situated, located in the County of Boulder, State of Colorado and
more particularly described as set forth in Exhibit B which is hereby attached
to and incorporated in this Lease.
m. "RENT PAYMENT ADDRESS" shall mean c/o Countryside Asset
Management, 0000 Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000.
n. "SECURITY DEPOSIT" shall mean cash or a letter of credit in a
form acceptable to Landlord in the amount of $6,208.25.
o. "TENANT'S NOTICE ADDRESS" shall mean 0000 X. XxXxxxxx Xxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000, with a copy to X. X. Xxxxx, MD, 0000 X.
00xx Xxxxxx, Xxxxx, XX 00000.
p. "TERM" shall mean the period commencing on the Commencement Date
and ending on the Expiration Date unless terminated sooner in accordance
herewith.
1.2 DEMISE. Subject to and upon the terms and conditions set forth
herein, Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
the Premises located in the Building for the period commencing on the
Commencement Date and ending on the Expiration Date.
1.3 DELAY IN POSSESSION. Notwithstanding the anticipated Commencement
Date, if for any reason Landlord cannot deliver possession of the Premises to
Tenant on the Commencement Date, Landlord shall not be subject to any liability
for the delay. Any such delay shall not affect the validity of this Lease or the
obligations of Tenant nor
3
extend the Term. Tenant shall not be obligated to pay Rent, subject to paragraph
1.3b or perform any other obligation of Tenant under the terms of this Lease,
except as may be otherwise provided in this Lease, until possession of the
Premises is tendered to Tenant. If Landlord does not deliver possession of the
Premises within sixty (60) days following the anticipated Commencement Date, as
the same may be extended due to Tenant Delays as defined in Section 2.1d or
Force Majeure events as defined in Section 8.9, Tenant may, at Tenant's option,
by notice in writing to Landlord within ten (10) days thereafter (the "10-Day
Notice Period"), cancel this Lease in which event the parties shall be
discharged from all. obligations hereunder. Upon Tenant's timely cancellation,
Landlord shall return any money previously deposited by Tenant. If such written
notice by Tenant is not received by Landlord within the 10-Day Notice Period,
Landlord shall have an additional thirty (30) days following the end of the
10-Day Notice Period (the "30-Day Extension Period") to deliver possession of
the Premises. If Landlord does not deliver possession of the Premises within the
30-Day Extension Period, Tenant shall have an additional 10-Day Notice Period to
cancel this Lease, which shall be followed by successive 30-Day Extension
Periods and 10-Day Notice Periods until the Premises are delivered to Tenant or
the Lease is canceled pursuant to this Section 1.3.
a. POSSESSION TENDERED-DEFINED. Possession of the Premises shall be
deemed tendered to Tenant ("Tender of Possession") on the Commencement Date as
set forth in Section 1.1d, unless otherwise agreed by the parties.
b. DELAYS CAUSED BY TENANT. If the Substantial Completion Date
shall be delayed by reason of a Tenant Delay, the Premises shall be deemed
Substantially Complete for purposes of determining the Commencement Date as of
the day that the Premises would have been Substantially Complete but for such
Tenant Delay as determined by Landlord in its reasonable discretion. Tenant
shall pay to Landlord a sum equal to any additional cost to Landlord in
completing Landlord's Work resulting from any Tenant Delay if, as a result
thereof, the aggregate cost to complete Landlord's Work is increased. Any such
sum shall be in addition to any sums payable pursuant to any other section of
this Lease and shall be paid to Landlord within ten (10) days after Landlord
submits an invoice to Tenant. Any costs payable pursuant to this Section 1.3b
shall be collectable in the same manner as Rent and, if Tenant defaults in the
payment thereof, Landlord shall have the same rights as in the Event of Default
by Tenant in the payment of Rent in addition to any other remedies and Landlord
shall have no obligation to continue the performance of Landlord's Work until
Tenant shall have cured such Default.
4
1.4 ACCESS BY TENANT PRIOR TO COMMENCEMENT OF TERM. Landlord, in
Landlord's sole discretion, may permit Tenant and Tenant's agents to enter the
Premises prior to the Commencement Date in order that Tenant may make the
Premises ready for Tenant's use and occupancy. If Landlord permits such entry
prior to the Commencement Date, such permission shall constitute a license only
and not a lease and such license shall be conditioned upon (a) Tenant working in
harmony and not interfering with Landlord or Landlord's agents, contractors,
workmen, mechanics and suppliers or with the other tenants and occupants of the
Building and (b) Tenant furnishing Landlord with such insurance or other
security as Landlord may require against liabilities which may arise out of such
entry. Landlord shall have the right to withdraw such license for any reason
upon twenty-four hours written notice to Tenant. Tenant agrees that Landlord
shall not be liable in any way for any injury, loss or damage which may occur to
any of Tenant's property placed or installations made in the Premises prior to
the Commencement Date, the same being at Tenant's sole risk, and Tenant agrees
to protect, defend, indemnify and hold harmless Landlord from all liabilities,
costs, damages, fees and expenses arising out of or connected with the
activities of Tenant or its agents, contractors, suppliers or workmen in or
about the Premises or the Building.
1.5 ACCEPTANCE LETTERS. Within ten (10) days after the Commencement
Date, Tenant shall execute an acceptance letter substantially in the form of
Exhibit C annexed hereto (the "Acceptance Letter"), setting forth the
Commencement Date and other information required therein, but the failure by
Tenant to execute the Acceptance Letter shall not affect the Commencement Date.
1.6 RENT. Subject to a final determination of the square footage in the
Premises, Tenant shall pay rent ("Base Rent") for the Premises to Landlord, in
the amounts set forth in the Rent Schedule attached hereto as Exhibit D at the
Rent Payment Address, without any setoff, offset, abatement or deduction
whatsoever during the term of this Lease. The payments shall be payable in equal
monthly installments, in advance, on or before the first day of each and every
calendar month during the term of this Lease, plus any excise, privilege, gross
receipts or sales tax levied on the rentals or the receipt thereof All other
payments of Base Rent shall be due on the first day of each calendar month
during the term of this Lease. Rent for any period which is for less than one
month shall be prorated on a per diem basis and in such case the first payment
shall be made in advance for the remaining fraction of the month and the next
full month to Landlord, in lawful money of the United States of America at the
address of Landlord set forth in Section 1.1f above, or such other place as
Landlord may from time to time designate in writing.
1.7 INTEREST ON LATE PAYMENTS. Any Rent or other amount due from Tenant
to Landlord under this Lease not paid within five (5) days of when due shall
bear interest from the date due, computed on a daily basis, until the date paid,
at the rate of one and one-half percent (1-1/2%) per month until paid, but the
payment of the interest shall not excuse nor cure any default by Tenant under
this Lease. The failure to charge or collect default interest in connection with
any one or more late payments shall not constitute a waiver of Landlord's right
to charge and collect default interest in connection with any
5
other similar or like late payments. The covenants in this Lease to pay Rent
shall be independent of any other covenant set forth in this Lease.
1.8 LATE PAYMENT CHARGE. Further, and notwithstanding the interest
charges provided for in the preceding Section 1.7, if any Rent or other amounts
owing hereunder are not paid within five (5) days of when due, Landlord and
Tenant agree that Landlord will incur additional administrative and financial
expenses and inconveniences the amount of which will be difficult if not
impossible to determine. Accordingly, Tenant shall pay to Landlord an additional
one-time late charge for any late payment in the amount of five percent (5%) of
the amount of the late payment.
1.9 ADDITIONAL RENT. All sums other than Base Rent payable by Tenant
under this Lease shall be deemed additional rent ("Additional Rent"), and shall
be payable on demand unless other payment dates are set forth herein. Landlord
shall have the same rights and remedies with respect to the failure by Tenant to
pay Additional Rent as Landlord has with respect to the failure by Tenant to pay
Base Rent.
1.10 COMMON AREAS.
a. COMMON AREAS - DEFINITION. The term "Common Areas" is defined as
all areas and facilities outside the Premises and within the Building Complex
that are provided and designated by the Landlord from time to time for the
general nonexclusive use of Landlord, Tenant and of other tenants of the
Building and their respective employees, suppliers, and invitees, including but
not limited to common entrances, lobbies, corridors, stairways and stairwells,
public restrooms, elevators, parking areas to the extent not otherwise
prohibited by this Lease, loading and unloading areas, trash areas, roadways,
sidewalks, walkways, parkways, ramps, driveways, landscaped areas and decorative
walls.
b. NON-EXCLUSIVE USE. The Common Areas shall be available for the
non-exclusive use of Tenant during the Term of this Lease. Landlord reserves the
right to change the entrances, exits, traffic lanes and the boundaries and
location of parking areas. Landlord shall keep Common Areas in a neat, clean and
orderly condition provided that the cost of doing so shall be charged as an
Operating Expense. Landlord shall not be subject to any liability and Tenant
shall not be entitled to any abatement of Rent if Common Areas are diminished,
as long as Tenant's business is not materially and substantially disrupted.
c. COMMON AREAS CHANGES. Landlord shall have the right, in
Landlord's sole discretion, from time to time:
i. To make changes to the Building interior and exterior and
Common Areas, including, without limitation, changes in the location, size,
shape, number, and appearance thereof, including but not limited to the lobbies,
windows, stairways, air shafts, elevators, restrooms, driveways, entrances,
parking spaces, parking areas, loading and unloading areas, ingress, egress,
direction of traffic, decorative walls,
6
landscaped areas and walkways; provided, however, Landlord shall at all times
provide the parking facilities required by applicable law;
ii. To close temporarily any of the Common Areas for
maintenance purposes so long as reasonable access to the Premises remains
available;
iii. To do and perform such other acts and make such other
changes in, to or with respect to the Common Areas and Building as Landlord may
deem to be appropriate.
1.11 USE. The Premises shall be used and occupied by Tenant solely for
the Permitted Uses, and for no other purpose without the prior written consent
of Landlord, which consent may be withheld for any or no reason.
1.12 OPTION TO RENEW. Provided that, both at the time that Tenant gives
notice of its rights under this Section, and at the time the renewal Lease Term
commences, Tenant is not in default hereunder and that Tenant is occupying the
Premises, Tenant shall have, and Tenant is hereby given and granted, the option
to renew the Lease Term for two (2) additional one (1) year Terms. The rights
and obligations of Landlord and Tenant during the renewal Lease Term shall be
upon the same terms and conditions as this Lease except that the Rent shall be
at the then market rates, as determined by Landlord and subject to annual
escalations in accordance with market conditions as determined by Landlord.
Tenant shall have no further option to renew beyond the two (2) one (1) year
Terms set forth herein. Tenant shall exercise such option if at all, by giving
Landlord notice, in writing, of its intent to renew no later than prior to the
expiration of the primary Lease Term, failing which Tenant's rights to exercise
such option shall thereupon terminate.
1.13 SECURITY DEPOSIT. This Security Deposit set forth in Section
1.1(n) shall be due upon execution of the Lease. If the Security Deposit is a
letter of credit, then such letter of credit shall be an "evergreen" letter of
credit in a form acceptable to Landlord and Tenant shall provide evidence of
renewal of such letter of credit in writing to Landlord at least sixty (60) days
prior to the expiration of the letter of credit. Said deposit shall serve as
security for the payment by Tenant of all Base Rent and any Additional Rent and
for the faithful performance of all the terms, covenants and conditions hereof.
Landlord shall not be required to segregate the Security Deposit from other
deposits or from other funds of Landlord or pay interest thereon, unless
required by applicable law. If any portion of the Security Deposit is used,
applied, or retained by Landlord as herein permitted, then within thirty (30)
days after written demand therefore, Tenant shall deposit with Landlord an
amount sufficient to restore the Security Deposit to its original or adjusted
amount, and Tenant's failure to do so shall be a breach of this Lease. If Tenant
fully and faithfully performs every term, covenant, condition and obligation of
this Lease during the Term, the Security Deposit (or any balance thereof),
without interest, shall be
7
returned to Tenant sixty (60) days after the expiration of the Term and Tenant's
vacating the Premises in accordance with the Terms of this Lease. Landlord shall
deliver the Security Deposit to any purchaser of Landlord's interest in the
Premises if such interest is sold, in which event Landlord shall be discharged
from any further liability with respect to the Security Deposit.
1.14 EXPANSION OPTION/RIGHT OF REFUSAL Landlord grants Tenant right to
expand into Adjacent Premises (See attached floor plan), anytime during the
Lease under the same terms and conditions of the Lease and coterminous with the
Lease. Tenant shall provide written notice to Landlord of desire to expand and
expansion shall occur immediately upon Landlord's acceptance of Tenants notice.
Landlord grants Tenant a Right of Refusal subject to existing Right of Refusal
by Key Bank. If Landlord receives a bona-fide third party offer for the Adjacent
Premises, Tenant shall have forty-eight (48) hours to notify Landlord of
Tenant's election to accept the premises under the same terms and conditions of
the Lease and coterminous with Tenants existing Lease. If Tenant elects not to
expand into the Adjacent Premises, and Landlord leaves Adjacent Premises to a
third party Landlord shall complete demising work at Landlord's cost and
Tenant's premises shall expand 459 square feet (see attached floor plan) and
rent shall adjust accordingly for Tenants expanded premises ("Partial
Expansion") to accommodate partial expansion due to exiting issues. Adjusted
Rent shall commence after completion of demising partitions.
ARTICLE 2
IMPROVEMENTS, ALTERATIONS AND ADDITIONS
2.1 LANDLORD'S WORK.
a. CONSTRUCTION. Landlord shall undertake and complete the Premises
Improvements as follows: Patch and/or repair holes in walls and touch up paint
as necessary. Install a 110 duplex outlet in floor of boardroom. Other than the
work described in the Premises Improvement Plans, Landlord makes no
representations or warranties as to construction work to be performed at the
Premises and Tenant shall take the Premises in its "as is" condition with no
representations or warranties from Landlord whatsoever.
b. ACCEPTANCE OF PREMISES. By execution of the Acceptance Letter,
Tenant shall be deemed conclusively to have accepted the Premises and to have
acknowledged that the Premises are in the condition required by the Premises
Improvement Plans, except as to incomplete or defective items of the Premises
Improvements then specified in the Acceptance Letter or set forth in the
punch-list. As to
8
any such items, Landlord shall have thirty (30) days following receipt of the
Acceptance Letter within which to correct same. Landlord shall not be
responsible for the repair or completion of any defective or incomplete items of
the Premises Improvements if the need for such repair or completion is not set
forth in the Acceptance Letter, or the punch-list. Landlord shall not be
responsible for, nor have any liability for loss or damage to any fixtures,
equipment or other property of Tenant or others installed or placed in the
Premises or on the Building Complex by Tenant or on Tenant's behalf, by its
servants, employees, agents or independent contractors, except when caused by
Landlord's or Landlord's agents' gross negligence or willful misconduct.
2.2 ALTERATIONS AND ADDITIONS.
a. Tenant shall not, without Landlord's prior written consent make
any alterations, improvements, additions, utility installations or repairs in,
on or about the Premises, or the Building (collectively "Alterations") unless
the Alterations cost less than $10,000 and do not impact or involve any
structural components of the Building, which consent shall not be unreasonably
withheld. The term "utility installation" shall mean carpeting, window and wall
coverings, power panels, electrical distribution systems, lighting fixtures, air
conditioning, plumbing, and telephone, telecommunication and data transmission
wiring and equipment installation. At the expiration of the Term, Landlord may
require the removal of any or all of the Alterations and the restoration of the
Premises and the Building to their prior condition, at Tenant's expense. Should
Landlord permit Tenant to make its own Alterations, Tenant shall use only such
contractor as has been expressly approved by Landlord which approval shall not
be unreasonably withheld, and Landlord may require Tenant to provide Landlord,
at Tenant's sole cost and expense, a lien and completion bond in an amount equal
to one and one-half times the estimated cost of such Alterations, to insure
Landlord against any liability for mechanic's and materialmen's liens and to
insure completion of the work. Should Tenant make any Alterations without the
prior approval of Landlord, or use a contractor not expressly approved by
Landlord, Landlord may, in addition to declaring a default by Tenant, require
that Tenant remove any part or all of the same at any time during the term of
this Lease.
b. Any Alterations in or about the Premises or the Building that
Tenant shall desire to make shall be presented to Landlord in written form, with
proposed detailed plans. if Landlord shall give its consent to Tenant's making
such Alteration, the consent shall be deemed conditioned upon Tenant acquiring a
permit to do so from the applicable governmental agencies, furnishing a copy
thereof to Landlord prior to the commencement of the work, and compliance by
Tenant with all conditions of said permit in a prompt and expeditious manner.
Tenant shall pay, when due, all claims for labor or materials furnished or
alleged to have been furnished to or for Tenant at or for use in the Premises,
which claims are or may be secured by any mechanic's or materialmen's lien
against the Premises, the Building or the Building, or any interest therein.
Tenant shall give Landlord not less than ten (10) days notice prior to the
commencement of any work in the Premises by Tenant, and Landlord shall have the
right to post notices of non-responsibility in or on the Premises or the
Building as provided by law. Tenant shall be
9
subject to Section 4.12 as applicable to all Alterations.
c. All Alterations which may be attached to the Premises by Tenant,
including, but not limited to, floor coverings, panelings, doors, drapes,
built-ins, moldings, sound attenuation, and lighting and telephone or other
communications or data transmission systems, conduit, wiring and outlets, shall
be made and done in a good and workmanlike manner and of good and sufficient
quality and materials and shall be the property of Landlord and remain upon and
be surrendered with the Premises at the expiration of the Lease term, unless
Landlord requires their removal. Provided Tenant is not in default,
notwithstanding the provisions of this Section 2.2c, Tenant's personal property
and equipment, other than that which is affixed to the Premises so that it
cannot be removed without material damage to the Premises or the Building, shall
remain the property of Tenant and may be removed by Tenant subject to the
provisions of Section 4.3b. All Alterations shall be accomplished by Tenant in
accordance with all applicable laws, rules, regulations and ordinances,
including, without limitation, the Americans with Disabilities Act.
ARTICLE 3
OPERATING EXPENSES
3.1 PRO RATA SHARE. This is a full service, gross Lease, and Tenant
shall not be responsible for payment or reimbursement of any Operating Expenses
related to the Building and Premises, including, without limitation, taxes,
maintenance, utilities or insurance other than as specifically set forth
elsewhere in the Lease.
3.2 OPERATING EXPENSES.
a. DEFINITIONS. The term "Operating Expenses" shall mean the
aggregate of those costs and expenses paid or incurred by or on behalf of
Landlord (whether directly or through independent contractors) relating to the
ownership, leasing, maintenance and operation of the Building Complex. Without
limiting the generality of the foregoing, Operating Expenses shall include the
following:
i. TAXES - The term "Taxes" shall mean all taxes, fees and
assessments and governmental charges levied, whether by federal, state, county,
municipal, or other taxing districts or authorities presently or hereafter
created, taxing the Building Complex and any other taxes, fees, charges or
assessments attributable to the Building or its operation that Landlord shall be
required to pay. If and to the extent that due to a change in the method of
taxation or assessment, any franchise, capital stock, capital, rent, income,
profit or other tax or charge shall be a substitute for or supplement to any of
the foregoing, then all such items shall be included within the term Taxes for
the purposes of this Lease. All expenses, including reasonable attorneys' fees
and disbursements, experts' and other witnesses' fees, incurred in contesting
the validity or amount of any Taxes or in obtaining a refund of Taxes shall be
considered as part of the Taxes for the year in which paid. Without the prior
written consent of Landlord, Tenant
10
may not contest Taxes.
ii. INSURANCE - The term "Insurance" shall mean all insurance
of any type that Landlord, in its sole discretion, shall deem necessary,
advisable or be required to carry, including, but not limited to, that necessary
in order to protect itself, its affiliates, agents and employees, the Building
Complex, all personal property used in connection therewith, or its interests
therein. Landlord shall have the right to obtain umbrella or other policies
covering both the Building Complex and other assets owned by or associated with
Landlord or its affiliates, in which event the cost thereof shall be equitably
allocated. For the purposes of this Subsection, the term "affiliate" shall mean
any entity which controls, is controlled by or is under common control with
Landlord.
iii. MAINTENANCE COSTS - The term "Maintenance Costs" shall
mean all costs paid or incurred in connection with the operation or maintenance
of the Building Complex including, without limitation, all parking areas
(whether temporary or permanent) on the Property, access roads, driveways,
curbs, truckways, loading areas and docks, retaining walls, lighting facilities,
service corridors, pedestrian sidewalks, stairways, plazas, malls, foundations,
exterior and demising walls, roofs over the entire Building including the
Premises, escalators, elevators, courts and ramps, decorative walls, vacant
areas, landscaped and planting areas and facilities, service lines or conduits
for gas, water, electric, sewage, heating, ventilating and air conditioning
services, music and intercom equipment, fire suppression and warning systems,
conduits and appurtenances for use by Tenant in common with other tenants, and
other areas and facilities related to the Building Complex, whether within or
outside the Building and whether located on or off the Property. Maintenance
Costs shall include, but are not limited to, the following:
(1) All expenses incurred in connection with making the
parking areas located on the Property, if any, available for use by Tenant and
others including, but not limited to, any management fees that Landlord may be
required to pay for such use, and all costs incurred for sweeping, cleaning,
litter control, resurfacing, repainting, restriping, removal and replacement of
pavement, curbs and car stops, and snow and ice removal;
(2) All expenses incurred for supplies and materials used
in the operation and maintenance of the Building Complex including, but not
limited to, uniforms, paper products, decorations, painting and replacement of
worn out mechanical or damaged equipment;
(3) The cost of all utilities for the Building Complex,
including, but not limited to, the cost of water, electrical service, heating,
lighting, air conditioning and ventilation, excepting those utilities supplied
to tenants of the Building at their respective premises to the extent billed to
such tenants either directly or by means of submetering;
(4) The cost of all maintenance and service agreements
11
for the Building Complex and equipment used in the common operation of the
Building Complex, including, but not limited to, alarm service, cleaning,
janitorial service, waste disposal, security and/or guard service, window
cleaning, fire protection, sprinklers, elevator and mechanical systems
maintenance, exterminating and landscape maintenance;
(5) Amortization, together with Interest, on the cost of
installation of capital improvement items which result in, or are intended to
result in, a reduction in Maintenance Costs or which are required to be
installed under any governmental law, regulation or authority. Expenditures
intended to reduce maintenance costs shall first require the consent of tenants
who lease more than fifty percent (50%) of the Building net rentable space,
which consent shall not be unreasonably withheld. "Interest" shall be calculated
at the lesser of (i) the annual prime rate published in the Western Edition of
The Wall Street Journal plus two percent (2%) per annum or (ii) the maximum
legal rate of interest allowed by the state in which the Building is located.
All such costs shall be amortized over the reasonable life of the capital
improvement items, with the reasonable life and amortization schedule being
determined in accordance with generally accepted accounting principles, but in
no event to extend beyond the reasonable life of the Building;
(6) Management fees (including, without limitation,
salaries and fringe benefits of Building employees and employees of the
Building's managing agent to the extent chargeable to the Building), reasonable
legal fees, accounting costs and disbursements, and other professional services
associated with the operation and maintenance of the Building Complex;
(7) The cost of maintenance and repair of ceilings, roof
and exterior walls, gutters, glass, plate glass, show windows, plumbing, pipes
and fixtures and other equipment; and
(8) The cost of all licenses, dues, permits and other
governmental charges.
b. INCLUSIVE LANDLORD RESPONSIBILITIES. Maintenance and Operating
Costs shall include the following:
i. leasing commissions, costs, disbursements, and other
expenses incurred for leasing, renovating, or improving space for tenants;
ii. costs (including permit, license, and inspection fees)
incurred in renovating, improving, decorating, painting, or redecorating vacant
space or space for tenants;
iii, depreciation and amortization on the Building except as
expressly permitted elsewhere in the Lease;
iv. overhead and profit paid to subsidiaries or affiliates of
12
Landlord for management or other services on or to the Property or for supplies
or other materials, to the extent that the costs of the services, supplies, or
materials exceed the competitive costs of the services, supplies, or materials
were they not provided by a subsidiary or affiliate;
v. interest on debt or amortization payments on mortgages or
deeds of trust or any other debt for borrowed money;
vi. advertising and promotional expenditures; and
vii. nonrecurring costs incurred to remedy structural defects
in original construction materials or installations.
c. OCCUPANCY. In determining the amount of Operating Expenses for
any calendar year during the Term, if less than ninety-five percent (95%) of the
rentable area of the Building shall have been occupied by tenant(s) at any time
during any such calendar year, Operating Expenses shall be determined for such
calendar year to be an amount equal to the expenses which would normally be
expected to be incurred had such occupancy been ninety-five percent (95%)
throughout such calendar year.
3.3 EXTRA CHARGES. In addition, Tenant shall pay, as Additional Rent,
all expenses paid or incurred by Landlord which are attributable to Tenant's use
and occupancy of the Premises or which are incurred pursuant to Tenant's request
for additional or overtime services; including, but not limited to, sales, use
or occupancy taxes payable by Landlord based upon Base Rent and any Additional
Rent; overtime HVAC or heating expenses; overtime electric charges; charges for
keys; or special Tenant requests. Unless such charges are included in the
monthly invoice for Base Rent or other payment dates are otherwise specifically
set forth herein, any extra charges shall be due and payable by Tenant within
thirty (30) days after receipt of invoices for same.
ARTICLE 4
TENANT'S COVENANTS AND RIGHTS
4.1 PARKING.
a. Tenant shall be entitled during the Term to the nonexclusive use
of four (4) Parking Spaces, for every 1,000 rentable square feet which Tenant
leases at the Building. It is specifically understood and agreed that the
parking areas located on the Property shall be for the nonexclusive use of all
tenants in the Building, but shall be limited to the use of such tenants'
employees, visitors, guests or invitees only (hereinafter the parking areas
located on the Property shall be referenced as the "Parking Facilities"). Tenant
and its agents, employees, contractors, visitors, guests, invitees or licensees
shall not interfere with the rights of Landlord or others entitled to similar
use of the Parking Facilities.
13
b. All Parking Facilities furnished by Landlord shall be subject to
the reasonable control and management of Landlord, who may, from time to time,
establish, modify and enforce reasonable rules and regulations with respect to
the Parking Facilities. Landlord further reserves the right to change,
reconfigure, or rearrange the Parking Facilities, to construct or repair any
portion thereof, and to restrict or eliminate the use of any parking areas and
to do such other acts in and to such areas as Landlord deems necessary or
desirable without such actions being deemed an eviction of Tenant or a
disturbance of Tenant's use of the Premises and without Landlord being deemed in
default. Further, Landlord may, in its sole discretion, relocate the Parking
Facility or convert the Parking Facility to a reserved and/or controlled parking
lot.
c. If Parking Spaces are not assigned pursuant to the terms of this
Lease, Landlord reserves the right at any time to assign Parking Spaces, and
Tenant shall be responsible to insure that its employees park in the designated
areas. Tenant shall, if requested by Landlord, furnish to Landlord a complete
list of the license plate numbers of all vehicles operated by Tenant, Tenant's
employees and agents. Landlord shall not be liable for any damage of any nature
to, or any theft of, vehicles, or contents thereof, in or about the Parking
Facilities. At Landlord's request, Tenant shall cause its employees and agents
using Tenant's Parking Spaces to execute an agreement confirming the foregoing.
Excessive use of the Parking Facilities by another tenant shall not be a default
or breach of this Lease by Landlord, and shall not suspend or terminate any of
Tenant's obligations under this Lease.
4.2 ASSIGNMENT AND SUBLETTING.
a. LANDLORD'S CONSENT REQUIRED. Tenant shall not voluntarily or by
operation of law assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all or any part of Tenant's interest in the Lease or in the Premises,
without Landlord's prior written consent, which Landlord shall not unreasonably
withhold. In no event shall Landlord be required to approve any transfer to a
prospective tenant who fails to meet the use restrictions set forth in Section
1.11. Landlord shall respond to Tenant's request for consent hereunder in a
timely manner and any attempted assignment, transfer, mortgage, encumbrance or
subletting without such consent shall be void, and shall constitute a material
default and breach of this Lease without the need for notice to Tenant under any
provision of this Lease. "Transfer" within the meaning of this Section 4.2 shall
also include the transfer or transfers aggregating: (i) if Tenant is a
corporation, more than fifty percent (50%) of the voting stock of such
corporation, unless said corporation is a publicly traded company, or (ii) if
Tenant is a partnership, limited liability company or similar entity, more than
fifty percent (50%) of the profit and loss participation in such partnership.
b. TERMS AND CONDITIONS - ASSIGNMENT AND SUBLETTING.
i. Regardless of Landlord's consent, no assignment or
subletting shall release Tenant of Tenant's obligations hereunder or alter the
primary
14
liability of Tenant to pay Rent and other sums due Landlord hereunder including
Tenant's Pro-Rata Share of Operating Expenses, as specified in Article 3 above,
and to perform all other obligations to be performed by Tenant under this Lease.
If Tenant's obligations under this Lease have been guaranteed by third parties,
then an assignment or sublease, and Landlord's consent thereto, shall not be
effective unless said guarantors give their written consent to such sublease and
its terms.
ii. Landlord may accept Rent from any person other than Tenant
pending approval or disapproval of such assignment. Neither a delay in the
approval or disapproval of such assignment or subletting shall constitute a
waiver or estoppel of Landlord's right to exercise its remedies for the breach
of any of the terms or conditions of this Section 4.2b of this Lease.
iii. The consent by Landlord to any assignment or subletting
shall not constitute a consent to any subsequent assignment or subletting by
Tenant or to any subsequent or successive assignment or subletting by the
subtenant. However, Landlord may consent to subsequent sublettings and
assignments of the sublease or any amendments or modifications thereto without
notifying Tenant or anyone else liable on the Lease or sublease and without
obtaining their consent and such action shall not relieve such persons from
liability under this Lease or said sublease; however, such persons shall not be
responsible to the extent any such amendment or modification enlarges or
increases the obligations of the Tenant or subtenant under this Lease or such
sublease.
iv. Upon any default under this Lease, Landlord may proceed
directly against Tenant, any guarantors or any one else responsible for the
performance of this Lease, including the subtenant, without first exhausting
Landlord's remedies against any other person or entity responsible therefor to
Landlord, or any security held by Landlord or Tenant. Landlord's written consent
to any assignment or subletting of the Premises by Tenant shall not constitute
any acknowledgment that no default then exists under this Lease of the
obligations to be performed by Tenant nor shall such consent be deemed a waiver
of any then existing default, except as may be otherwise stated by Landlord
writing at the time. The discovery of the fact that any financial statement
relied upon by Landlord in giving its consent to an assignment or subletting was
materially false shall, at Landlord's election, render Landlord's consent null
and void. Notwithstanding anything to the contrary contained herein, any rights
and/or options of first offer, refusal or extension granted to Tenant shall be
personal to the Tenant named herein and shall be deemed null and void in the
event of any assignment of this Lease or sublease of all or substantially all of
the Premises. No consent by Landlord to an assignment of this Lease shall be
effective unless and until Tenant shall deliver to Landlord an agreement in form
and substance satisfactory to Landlord pursuant to which such assignee assumes
and agrees to be bound by all of the terms, covenants, conditions, provisions
and agreements of this Lease.
c. ADDITIONAL TERMS AND CONDITIONS - Subletting. Regardless of
Landlord's consent, the following terms and conditions shall apply to any
subletting by Tenant of all or any part of the Premises and shall be deemed
included in all subleases
15
under this Lease whether or not expressly incorporated therein:
i. Tenant hereby assigns and transfers to Landlord all of
Tenant's interest in all rentals and income arising from any sublease made by
Tenant, and Landlord may collect such rent and income and apply same toward
Tenant's obligations under this Lease. Landlord shall not, by reason of this or
any other assignment of such sublease to Landlord nor by reason of the
collection of the rents from a subtenant, be deemed liable to the subtenant for
any failure of Tenant to perform and comply with any of Tenant's obligations to
such subtenant under such sublease. Tenant hereby irrevocably authorizes and
directs any such subtenant, upon receipt of a written notice from Landlord
stating that a default exists in the performance of Tenant's obligations under
this Lease, to pay to Landlord the rents due and to become due under the
sublease. Tenant agrees that such subtenant shall have the right to rely upon
any such statement and request from Landlord, and that such subtenant shall pay
such rents to Landlord without any obligation or right to inquire as to whether
such default exists and notwithstanding any notice from or claim from Tenant to
the contrary. Tenant shall have no right or claim against said subtenant or
Landlord for any such rents so paid by said subtenant to Landlord.
ii. No sublease entered into by Tenant shall be effective
unless and until it has been approved in writing by Landlord. In entering into
any sublease, Tenant shall use only such form of sublease as is satisfactory to
Landlord, and once approved by Landlord, such sublease shall not be changed or
modified without Landlord's prior written consent. Any subtenant shall, by
reason of entering into a sublease under this Lease, be deemed, for the benefit
of Landlord, to have assumed and agreed to conform and comply with each and
every obligation herein to be performed by Tenant other than such obligations as
are contrary to or inconsistent with provisions contained in a sublease to which
Landlord has expressly consented in writing. No subtenant shall further assign
or sublet all or any part of the Premises without Landlord's prior written
consent.
iii. Notwithstanding anything in this Section 4.2c to the
contrary, Tenant shall pay to Landlord any amounts received by Tenant from
subtenant in excess of Tenant's obligations to Landlord stated elsewhere in this
Lease. Tenant shall not request the consent of Landlord to any subletting which
provides for rent on a per rentable square foot basis of less than Landlord's
then asking price per rentable square foot for space in the Building and no such
subletting shall be permitted.
d. LANDLORD'S EXPENSES. If Tenant shall assign or sublet the
Premises or request the consent of Landlord to any assignment or subletting or
if Tenant shall request the consent of Landlord for any act Tenant proposes to
do then Tenant shall pay Landlord's reasonable costs and expenses incurred in
connection therewith, including attorneys, architects', engineers' or other
consultants' fees. In addition, Tenant shall pay to Landlord, as Additional
Rent, all reasonable additional direct and indirect expenses incurred by
Landlord due to any such assignee or sublessee taking possession of the
Premises, including, but not limited to, freight elevator operation, security
service, janitorial service and rubbish removal.
16
e. CONDITIONS TO CONSENT. Landlord reserves the right to condition.
any approval to assign or sublet upon Landlord's determination that (i) the
proposed assignee or subtenant shall conduct a business on the Premises of a
quality substantially equal to that of Tenant and consistent with the general
character of the other occupants of the Building, and (ii) the proposed assignee
or subtenant be at least as financially responsible as Tenant was expected to be
at the time of the execution of this Lease or of such assignment or subletting,
whichever is greater.
4.3 CARE OF PREMISES.
a. TENANT'S MAINTENANCE. Subject to the provisions of Sections 6.1
and 6.2 hereof, Tenant shall maintain and repair the Premises during the Term
and preserve same in the condition delivered to Tenant on the Commencement Date,
normal wear and tear excepted. Tenant shall be responsible for repainting and
redecorating the Premises, cleaning drapes or other window coverings and carpets
at reasonable intervals as needed, and making repairs, replacements and
alterations as needed, in a good and workmanlike manner in accordance with the
terms and provisions of this Lease, including those governing the performance of
any Alterations to the Premises, using contractors approved by Landlord in its
sole judgment, and materials of equal or better quality and utility to the
original work. Landlord shall repair or replace, at Tenant's sole cost, any
damage done to the Building Complex or any part thereof caused by Tenant or
Tenant's agents, employees, contractors, invitees or visitors. Landlord may, at
its option, upon reasonable notice, elect to have Tenant perform any particular
such maintenance or repairs the cost of which is otherwise Tenant's
responsibility hereunder.
b. SURRENDER OF THE PREMISES. On the last day of the term of this
Lease, or on any sooner termination, Tenant shall peaceably and quietly quit and
surrender the Premises to Landlord in the same condition as received on the
Commencement Date, clean and free of debris, excepting only ordinary wear and
tear and loss by fire or other casualty which Tenant is not obligated to repair
pursuant to this Lease. Any damage or deterioration of the Premises shall not be
deemed ordinary wear and tear if the same could have been prevented by good
maintenance practices by Tenant. Tenant shall repair any damage to the Premises.
Except as otherwise stated in this Lease, Tenant shall leave the air lines,
power panels, electrical distribution systems, lighting fixtures, air
conditioning, window coverings, wall coverings, carpets, wall paneling, ceilings
and plumbing on the Premises and in good operating condition.
4.4 COMPLIANCE WITH LAW. Tenant, at its sole expense, shall comply with
all laws, orders and regulations of federal, state, county and municipal
authorities and with any directive of any public officer or officers pursuant to
law which shall impose any violation, order or duty upon Landlord or Tenant with
respect to the Premises or the use or occupation of the Premises.
Notwithstanding the above, Landlord shall be solely responsible for all costs
incurred with conforming the Premises as of the Commencement Date, with all
laws, orders, and regulations in existence as of the Commencement Date except as
specifically related to Tenant's operations carried out on the Premises. Tenant
17
shall not do or permit to be done any act or thing in, on or about the Premises
or store anything therein which (i) will in any way conflict with any applicable
law, statute, ordinance or governmental rule or regulation now in force or which
may hereafter be enacted or promulgated, (ii) is not appropriate to the
Permitted Uses of the Premises or (iii) will in any way increase the existing
rate of, or adversely affect, or cause a cancellation of, any fire or other
insurance policies covering the Building or any of its contents. The judgment of
any court of competent jurisdiction or the admission of Tenant in an action
against Tenant whether Landlord be a party to the action or not, that Tenant has
violated any law, statutes, ordinance, or governmental rule, regulation, or
requirement, shall be conclusive of that fact as between Landlord and Tenant.
4.5 TENANT'S INSURANCE.
a. COVERAGE. Tenant shall procure and maintain throughout the Term
of this Lease, at its sole cost and expense, the following insurance:
i. Comprehensive General Liability Insurance utilizing an
Insurance Services Office standard form providing coverage for bodily injury
(including death), property damage and products liability insurance (where such
exposure exists). This policy shall contain a Broad Form General Liability
Endorsement (GL0404) under which the insurer agrees to insure Tenant's
obligations under Section 4.7 hereof. Such insurance shall have a combined
single limit of not less than one Million Dollars ($1,000,000) per occurrence
and Three Million Dollars ($3,000,000) in the aggregate for all occurrences
within each policy year, or such greater amounts as Landlord may from time to
time reasonably require;
ii. Fire and extended coverage insurance covering Tenant's
personal property, fixtures, improvements, wall coverings, floor coverings,
window coverings, alterations, furniture, equipment, lighting, ceilings,
heating, ventilation and air conditioning equipment, interior plumbing and plate
glass against loss or damage by fire, water, windstorms, hail, earthquakes,
explosion, riot, damage from aircraft and vehicles, smoke damage, vandalism and
malicious mischief and such other risks as are from time to time covered under
"extended coverage" endorsements and special extended coverage endorsements
commonly known as "all risks" endorsements, in an amount equal to the greater of
the full replacement value or the amount required by the holder of any Mortgage
from time to time and containing the waiver of subrogation required in Section
4.8 of this Lease;
iii. State Worker's Compensation Insurance in the statutorily
mandated limits and Employers Liability Insurance with limits of not less than
Five Hundred Thousand Dollars ($500,000), or such greater amount as Landlord may
from time to time require; and
iv. Such other insurance as Landlord may reasonably require
from time to time.
18
b. POLICIES. It is expressly understood and agreed that the
foregoing minimum limits of insurance coverage shall not limit the liability of
Tenant for its acts or omissions as provided in this Lease. All of the foregoing
insurance policies (with the exception of Worker's Compensation Insurance to the
extent not available under statutory law) shall name Landlord, any holder of a
Mortgage, or any managing agent for the Building and such other parties as
Landlord shall from time to time designate as an additional insured as their
respective interests may appear, and shall provide that any loss shall be
payable to Landlord and any other additional insured parties as their respective
interests may appear. All insurance required hereunder shall be placed with
companies which are rated A:XI or better by Best's Insurance Guide and licensed
to do business in the state in which the Building is located. All such policies
shall be written as primary policies not contributing with and not supplemental
to the coverage that Landlord may carry, with deductibles not to exceed one-half
of one percent (V2%) of the amount of coverage. Tenant shall deliver duplicate
original copies of all such policies and all endorsements thereto, prior to the
Commencement Date, or, in the case of renewals thereto, fifteen (15) days prior
to the expiration of the prior insurance policy, together with evidence that
such policies are fully paid for, and that no cancellation, material change or
non-renewal thereof shall be effective except upon thirty (30) days' prior
written notice from the insurer to Landlord. If Tenant shall fail at any time to
procure and/or maintain the insurance required herein, Landlord may, at its
option, procure such insurance on Tenant's behalf and the cost thereof shall be
payable upon demand, as Additional Rent. Payment by Landlord of any insurance
premium or the carrying by Landlord of any such insurance policy shall not be
deemed to waive or release the default of Tenant with respect thereto.
4.6 PROTECTION AGAINST INSURANCE CANCELLATION. If any insurance policy
on the Building or any part thereof shall be canceled or if cancellation shall
be threatened, or if the coverage shall be reduced or be threatened to be
reduced, in any way by reason of the use or occupation of the Premises or any
part thereof by Tenant, any assignee or subtenant of Tenant, or by anyone
permitted by Tenant to be upon the Premises, and if Tenant fails to take
reasonable efforts to remedy the condition giving rise to the cancellation,
threatened cancellation, reduction, or threatened reduction of coverage within
forty-eight (48) hours after notice or to complete the remedy within five (5)
days after notice, Landlord may, at its option, enter upon the Premises and
attempt to remedy the condition, and Tenant shall forthwith pay the cost to
Landlord as Additional Rent. Landlord shall not be liable for any damage or
injury caused to any property of Tenant or of other persons located on the
Premises as a result of such entry. If Landlord is unable to remedy the
offensive conditions if it chooses to attempt same, the Landlord shall have all
of the remedies provided for in this Lease in the event of a default by Tenant.
Notwithstanding the foregoing provisions of this Section 4.6, if Tenant fails to
remedy the condition, Tenant shall be in default and Landlord shall have no
obligations to attempt to remedy.
19
4.7 LANDLORD'S INSURANCE. Landlord shall obtain all risk coverage on
the Building and Property Improvements, but not Tenant's personal property,
fixtures or equipment, in such amounts as Landlord determines to be reasonable.
Landlord shall purchase general liability insurance in the amount of five
million dollars ($5,000,000) covering all areas in the Building Complex other
than those required to be insured by individual tenants. Landlord may also
purchase rental income insurance and such other insurance as Landlord reasonably
determines from time to time. The cost of the above insurance shall be treated
as an Operating Expense and allocated among the tenants pursuant to the
provisions of this Lease. All losses will be payable to Landlord. Tenant shall
not be named in any such policies carried by Landlord and shall have no right to
any proceeds of the policies.
4.8 SUBROGATION. Notwithstanding anything to the contrary contained
herein, Landlord and Tenant hereby mutually waive and release their respective
rights of recovery against one another and their officers, agents and employees
for any damage to real or personal property, including resulting loss of use,
interruption of business, and other expenses occurring as a result of the use or
occupancy of the Premises or the Building to the extent that the loss or damage
is either covered by the injured party's insurance or is required to be covered
by the injured party's insurance pursuant to this Lease. Landlord and Tenant
agree that all policies of insurance obtained by them pursuant to the terms of
this Lease shall contain provisions or endorsements thereto waiving the
insurer's rights of subrogation with respect to claims against the other, and,
unless the policies permit waiver of subrogation without notice to the insurer,
each shall notify its insurance companies of the existence of the waiver and
indemnity provisions set forth in this Lease.
4.9 TENANT'S INDEMNIFICATION AND WAIVER.
a. INDEMNIFICATION. Tenant shall indemnify, defend and hold
harmless Landlord and its officers, directors, employees, attorneys and agents
(collectively, the "Indemnitees") from and against any and all claims, demands,
causes of action, judgments, costs, expenses, and all losses and damages
(including consequential and punitive damages) arising from Tenant's use of the
Premises or from the conduct of its business or from any activity, work, or
other acts or things done, permitted or suffered by Tenant in or about the
Premises, and shall further indemnify, defend and hold harmless the Indemnitees
from and against any and all claims arising from any breach or default in the
performance of any obligation on Tenant's part to be performed under the terms
of this Lease, or arising from any act, omission or negligence or willful or
criminal misconduct of Tenant, or any officer, agent, employee, independent
contractor, guest, or invitee thereof, and from all costs, reasonable attorneys'
fees and disbursements, and liabilities incurred in the defense of any such
claim or any action or proceeding which may be brought against, out of or in any
way related to this Lease. Upon notice from Landlord, Tenant shall defend any
such claim, demand, cause of action or suit at Tenant's expense by counsel
satisfactory to Landlord in its sole discretion. As a material part of the
consideration to Landlord for this Lease, Tenant hereby assumes all risk of
damage to property or injury to persons in, upon or about the Premises from any
cause, and Tenant
20
hereby waives all claims with respect thereto against Landlord, except if
directly caused by Landlord's gross negligence or willful misconduct. Tenant
shall give immediate notice to Landlord in case of casualty or accidents in the
Premises. The provisions of this Section 4.9 shall survive the expiration or
earlier termination of this Lease.
b. WAIVER OF LANDLORD LIABILITY. Landlord or its agents shall not
be liable for any loss or damage to persons or property resulting from fire,
explosion, falling plaster, smoke, steam, gas, electricity, water or rain which
may leak from any part of the Building or from the pipes, appliances or plumbing
works therein or from the roof, street or subsurface or from any other places
resulting from dampness or any other cause whatsoever, or from the acts or
negligence of any other tenant or any officer, agent, employee, contractor or
guest of any such tenant, except personal injury or loss or damage to property
caused by or due to the gross negligence or willful misconduct of Landlord. In
addition, Landlord or its agents shall not be liable for (i) interference with
the electrical service, ventilation, or for any latent defect in the Premises,
Building or Building Complex; (ii) any loss or damage for which Tenant is
required to insure; or (iii) any loss or damage resulting from any construction,
Alterations or repair required or permitted to be performed by Tenant under this
Lease.
4.10 UTILITIES.
a. TELEPHONE AND CABLE. Tenant shall separately arrange with the
applicable local public authorities or utilities, as the case may be, for the
furnishing of and payment for all telephone, cable, telecommunications or data
transmission services as may be required by Tenant in the use of the Premises.
Tenant shall directly pay for such services, including the establishment and
connection thereof, at the rates charged for the services by the authority or
utility, and the failure of Tenant to obtain or to continue to receive the
services for any reason whatsoever shall not relieve Tenant of any of its
obligations under this Lease.
b. CONNECTIONS. Tenant shall not make connection to the utilities
except by or through existing outlets and shall not install or use machinery or
equipment in or about the Premises that uses excess water, lighting or power, or
suffer or permit any act that causes extra burden upon the utilities or
services. Landlord shall require Tenant to reimburse Landlord for any excess
expenses or costs that may arise out of a breach of this subparagraph by Tenant.
Landlord may, in its sole discretion, install at Tenant's expense supplemental
equipment and/or separate metering applicable to Tenant's excess usage or
loading.
C. EXTRAORDINARY DEMAND. Tenant shall not install any equipment in
the Premises without Landlord's prior written consent, which consent shall not
be unreasonably withheld, if such equipment requires an electrical current other
than that provided to the Premises as set forth in the Premises Improvement
Plans. All costs of the installation and maintenance of special electrical
facilities approved by Landlord shall be paid by Tenant, as Additional Rent,
upon demand. All costs for extraordinary, unusual or excessive demand by Tenant
for electrical or other utility service and all costs of
21
submetering or monitoring such use shall be borne by Tenant. Unusual costs shall
include, without limitation, 24-hour service, high consumption equipment, high
concentration lighting and additional HVAC supplements for equipment or lighting
induced heat build-up. For the purposes hereof, the term "extraordinary, unusual
or excessive demand" shall mean the consumption of electricity by Tenant over a
given period of time which exceeds the average consumption of electricity or
other utility services of other tenants occupying office space in the Building
over an equivalent period of time. Landlord reserves the right to install, at
Tenant's sole cost and expense, submeters and related equipment, relating to
Tenant's use of electrical or other utility services for the purposes of
monitoring and billing any excessive use of electricity by Tenant.
d. LIABILITY. There shall be no abatement of Rent and Landlord
shall not be liable in any respect whatsoever for the inadequacy, stoppage,
interruption or discontinuance of any utility or service due to riot, strike,
labor dispute, breakdown, accident, repair or other cause beyond Landlord's
reasonable control or in cooperation with governmental request or directions.
4.11 PERSONAL PROPERTY TAXES. Tenant shall pay before delinquency any
taxes upon Tenant's leasehold improvements, equipment, furniture, fixtures, and
any other personal property located in the Premises. If any such personal
property shall be assessed and taxed with the real property, Tenant shall pay to
Landlord its share of such taxes within ten (10) days after Landlord's delivery
to Tenant of a statement in writing setting forth the amount of such taxes
applicable to Tenant's personal property.
4.12 LIENS.
a. PROHIBITION. Tenant shall keep the Premises and the Building
Complex free from any liens arising out of any work performed, materials
furnished, or obligations incurred by or on behalf of Tenant, except if such
work is performed by Landlord on Tenant's behalf. At Landlord's option, Tenant
shall provide, at Tenant's sole cost, a payment and performance and/or
completion bond in an amount equal to one and one-half (1-112) times the
estimated cost of any improvements, additions or alterations to the Premises to
be made by Tenant and otherwise in form and substance satisfactory to Landlord.
Should any mechanic's or other lien be filed against the Premises or the
Building Complex by reason of Tenant's or its agents' or contractors' acts or
omissions or because of a claim against Tenant, Tenant shall cause the same to
be canceled and discharged of record by bond or otherwise within fifteen (15)
days after the filing thereof. Should Tenant fail to discharge such lien within
the fifteen (15) day period, Landlord may cure same, in which event Tenant shall
reimburse Landlord, on demand, as Additional Rent, for the amount of the lien or
the amount of the bond, if greater, plus all administrative costs incurred by
Landlord in connection therewith. The remedies provided herein shall be in
addition to all other remedies available to Landlord.
b. LIABILITY TO THIRD PARTIES. Nothing contained in this Lease
shall be construed as constituting the consent or request of Landlord, express
or implied, to, or
22
for the performance by, any contractor, laborer, material man or vendor of any
labor or services or for the furnishing of any materials for any construction,
alteration, addition, repair or demolition of or to the Premises or any part
thereof. Tenant and any subtenants shall have no power to do any act or make any
contract which may create or be the foundation of any lien, mortgage or other
encumbrance upon the reversionary or other estate of Landlord, or any interest
of Landlord in the Premises. Notice is hereby given that Landlord is not and
shall not be liable for any labor, services or materials furnished or to be
furnished to Tenant or to anyone holding the Premises or any part thereof, and
that no mechanics' or other liens for any such labor, services or materials
shall attach to or affect the interest of Landlord in and to the Premises or the
building complex.
4.13 NO WASTE. Tenant shall not commit, suffer, nor permit any waste,
damage, disfiguration, or injury to the Premises or the Building's common areas
or the fixtures and equipment located in or on the Building, or permit or suffer
any overloading of the floors and shall not place any safes, heavy business
machines, or other heavy things in the Premises other than as specifically
provided for in the Premises Improvement Plans, without first obtaining the
written consent of Landlord and, if required by Landlord, or Landlord's
architect, and shall not use or permit to be used by any part of the Premises
for any dangerous, noxious, or offensive trade or business, and shall not cause
or permit any nuisance, noise, or action in, at, or on the Premises.
4.14 SIGNS.
a. LANDLORD'S CONSENT. Tenant shall not, without the prior written
consent of Landlord which may be given or withheld in Landlord's sole
discretion, erect or install any type of exterior or interior window or door
signs, or any other type of sign or placard, whether within or without the
Building. All additional signs and placards must comply with the sign criteria
promulgated by Landlord from time to time and all applicable laws. Tenant shall
pay all costs of fabrication, installation and maintenance of all additional
permitted signs or placards. Landlord will provide Tenant with interior signage
comparable to that provided to other tenants at the Building, to be located
adjacent to the entrance of the Premises and in the lobby of the Building.
b. REMOVAL. Prior to vacating the Premises, Tenant shall, at its
sole cost and expense, promptly remove its sign(s) and placards, and upon the
removal or alteration of any of its sign(s) and placards for any reason, Tenant
shall repair, paint, restore or replace the surface beneath such signs or
placards damaged by such removal. If Tenant fails to comply with any of the
provisions set forth in this Section, Landlord may, without liability, enter
upon the Premises and remove the same at Tenant's expense.
ARTICLE 5
LANDLORD'S COVENANTS AND RIGHTS
5.1 QUIET ENJOYMENT. Landlord covenants and agrees that, upon
performance by Tenant of all of the terms, covenants, obligations, conditions
and provisions hereof on
23
Tenant's part to be kept and performed, Tenant shall have, hold and enjoy the
Premises, subject and subordinate to the terms and conditions of this Lease.
5.2 LANDLORD'S SERVICES. Subject to the payment by Tenant of Base Rent
and any Additional Rent, Landlord shall provide the following services to be
charged as Operating Expenses:
a. SERVICES TO PREMISES: Landlord shall provide to the Premises:
i. Heating and air conditioning in season at such temperatures
and in such amounts as shall be considered by Landlord to be building standard,
during the usual and customary business hours of 6:00 a.m. to 6:00 p.m., Monday
through Friday, and 5:00 a.m. to 12:00 noon on Saturday, Sundays, legal
holidays, and any hours other than those set forth herein shall not be deemed
usual and customary business hours, and, while Tenant may, subject to any and
all security procedures which Landlord may require have access to the Premises
at these times, the services described above will be provided at these times
only if Tenant shall request same within a reasonable period of time prior to
the need for such services. Tenant shall pay for such services, as Additional
Rent, within thirty (30) days after rendition of a xxxx therefor, at the
standard rate for such services at the Building as determined by Landlord from
time to time. Whenever machines, equipment, or nonstandard lighting that
generate abnormal heat which affect the temperature otherwise maintained by the
air conditioning system are used in the Premises, Landlord shall have the right
to install supplemental air conditioning equipment in or about the Premises, and
the cost thereof, including the cost of installation, operation, electrical use,
maintenance, and metering, shall be paid by Tenant to Landlord, as Additional
Rent, on demand.
ii. Electrical energy (not exceeding the present electrical
capacity of the Premises).
iii. Janitorial services on usual and customary business days.
b. SERVICES TO BUILDING: Landlord shall provide in the Building:
i. Hot and cold water, at those points of supply provided for
general use of tenants in the Building;
ii. Elevator service in common with other tenants, if needed
and existing, for ingress to and egress from the Premises; and
iii. Heat, ventilation, cooling, lighting, electrical service
and domestic running water, in those areas of the Building as may from time to
time be designated by Landlord for use during normal business hours by Tenant in
common with other tenants and persons in the Building but under the exclusive
control of Landlord.
c. INTERRUPTION OF SERVICE: Landlord shall not be liable for
damages
24
or consequential damages or in any other way in the event of loss, damage,
failure, interruption, defect or change in the quantity or character or. supply
of electricity furnished to the Premises or of any other utility, including, but
not limited to, air conditioning, heat or water, and Tenant agrees that such
supply may be interrupted for inspection, repairs, replacement or in case of
emergency; nor shall the foregoing be construed as a constructive eviction of
Tenant, or excuse Tenant from failing to perform any of its obligations
hereunder. Landlord shall use reasonable efforts to provide Tenant as much
advance notice as reasonably possible of any interruption.
d. LIMITATIONS: Landlord shall maintain as necessary, repair and
replace the foundations, structure, exterior walls, roof, any improvements in
Common Areas, and the systems, facilities and equipment directly necessary for
the provision by Landlord of the services described in this Section 5.2 (unless
same are installed by or are the property of Tenant) provided that:
i. Landlord shall only be required to maintain such services
as are reasonably possible under the circumstances in the event all or any part
of such systems, facilities and equipment are destroyed, damaged or impaired
until completion of the necessary repair or replacement;
ii. Subject to the provisions of Article 5 hereof, Landlord
may temporarily discontinue any services at such times as may be necessary or
advisable due to causes beyond the reasonable control of Landlord or for
purposes of maintenance, repair, replacement, testing or examination;
iii. Landlord shall use reasonable diligence in carrying out
its obligations under this Section 5.2;
iv. No reduction or discontinuance of the services described
in this Section 5.2 shall be construed as an eviction of Tenant or release
Tenant from any of its obligations under this Lease, except as otherwise
provided in Section 6.2;
V. Landlord shall have no liability to Tenant, its employees,
agents, invitees or licensees for damages or consequential damages or in any
other way for losses due to any criminal act or for damages done by unauthorized
persons on the Premises or the Building Complex, and Landlord shall not be
required to insure against any such losses. Tenant shall cooperate fully in
Landlord's efforts to maintain security in the Building and the Building Complex
and shall follow all regulations promulgated by Landlord.
5.3 ALTERATIONS BY LANDLORD.
a. Landlord may from time to time:
i. Make repairs, replacements, changes or additions to the
structure, systems, facilities and equipment in the Premises where necessary to
service
25
the Premises or other parts of the Building or Building Complex;
ii. Make changes in or additions to any part of the Building
Complex not in or forming part of the Premises; and
iii. Change or alter the location of any areas of the Building
Complex (including, but not limited to, the parking areas) which may, from time
to time, be designated by Landlord for use during normal business hours by
Tenant in common with other tenants and persons in the Building but under the
exclusive control of Landlord.
b. In connection therewith, Landlord and/or its representatives may
enter the Premises and other areas of the Building Complex with such materials
as Landlord may deem necessary, and may erect scaffolding and all other
necessary structures in or about the Premises, Building or Building Complex.
Tenant waives and releases any claims for damage including loss of business
resulting therefrom.
5.4 ENTRY BY LANDLORD.
a. Landlord and Landlord's agents and representatives shall have
the right to enter the Premises at any time in case of an emergency, and at all
reasonable times for any purpose permitted pursuant to the terms of this Lease,
including, but not limited to, examining the Premises; making such repairs or
alterations therein as may be necessary or appropriate in Landlord's sole
judgment for the safety and preservation thereof; erecting, installing,
maintaining, repairing or replacing wires, cables, conduits, vents, ducts,
risers, pipes, HVAC equipment or plumbing equipment running in, to, or through
the Premises; showing the Premises to prospective purchasers or mortgagees and,
during the last year of the Term, prospective tenants; and posting notices of
non-responsibility. Landlord shall use reasonable efforts to give advance
reasonable notice of its entry into the Premises.
b. Tenant shall give Landlord a key for all of the doors for the
Premises, excluding Tenant's vaults, safes and files. Landlord shall have the
right to use any and all means to open the doors to the Premises in an emergency
in order to obtain entry thereto without liability to Tenant. Any entry to the
Premises by Landlord by any of the foregoing means, or otherwise, shall not be
construed or deemed to be a forcible or unlawful entry into or a detainer of the
Premises, or an eviction, partial eviction or constructive eviction of Tenant
from the Premises or any portion thereof, and shall not relieve Tenant of its
obligations under this Lease.
5.5 MINIMIZE INTERFERENCE. In performing its covenants under this
Article S, Landlord shall use reasonable efforts to minimize interference with
the conduct of Tenant's business in connection with the performance by Landlord
of any work or the provision of any services required or permitted pursuant to
the terms of this Lease, but Landlord shall not be required to use overtime or
premium time labor.
26
5.6 LANDLORD'S RIGHT TO CURE. All agreements and provisions to be
performed by Tenant under any of the terms of this Lease shall be at Tenant's
sole cost and expense if so provided herein and without any abatement of Base
Rent or any Additional Rent unless otherwise provided. If Tenant shall fail to
perform any act or to pay any sum of money (other than Base Rent) required to be
performed or paid by it hereunder, or shall fail to cure any default and such
failure shall continue beyond any applicable notice and grace period set forth
herein, then Landlord may, at its option, and without waiving or releasing
Tenant from any of its obligations hereunder, make such payment or perform such
act on behalf of Tenant. All sums paid and all costs incurred by Landlord in
taking such action shall be deemed Additional Rent and shall be paid to Landlord
on demand.
ARTICLE 6
EMINENT DOMAIN, CASUALTY, HAZARDOUS MATERIALS
6.1 EMINENT DOMAIN.
a. If, during the Term, all of the Premises shall be taken (or
temporarily taken for a period of six [6] months or more) by a public authority
under any statute or by right of eminent domain, or purchased under threat of
such taking, this Lease shall automatically terminate on the date on which the
condemning authority takes possession of the Premises ("Date of Such Taking").
b. If, during the Term, part of the Building Complex is so taken or
purchased, and if, in the reasonable opinion of Landlord, substantial alteration
or reconstruction of the Building Complex is necessary or desirable as a result
thereof, whether or not the Premises are or may be affected, Landlord shall have
the right to terminate this Lease by giving Tenant at least thirty (30) days'
written notice of such termination, and thereupon this Lease shall terminate on
the date set forth in such notice.
c. Notwithstanding the foregoing, if more than one-third (113) of
the number of rentable square feet in the Premises is so taken or purchased,
Tenant shall have the right to terminate this Lease by giving Landlord notice no
later than thirty (30) days after the Date of Such Taking, and thereupon this
Lease shall terminate on the last day of the month following the month in which
notice is given.
d. If a portion of the Premises is so taken, and no rights of
termination herein conferred are timely exercised, the Term of this Lease shall
expire with respect to the portion so taken on the Date of Such Taking. In such
event, the Base Rent and any Additional Rent with respect to such portion so
taken shall xxxxx on such date or on such later date as Tenant shall deliver
possession thereof, and the Base Rent and any Additional Rent thereafter payable
with respect to the remainder of the Premises shall be adjusted prorata by
Landlord in order to account for the reduction in the number of rentable square
feet in the Premises. Landlord shall restore and redemise the Premises to the
extent required to exclude from the Premises that portion so taken; provided,
27
however, that Landlord's obligation to restore and redemise the remainder of the
Premises shall be limited to the funds available to Landlord from the
condemnation award or other consideration paid for the affected portion of the
Premises.
e. Upon any such taking or purchase, Landlord shall be entitled to
receive and retain the entire award or consideration for the affected portion of
the Building Complex, and Tenant shall not have or advance any claim against
Landlord for the value of its property or its leasehold estate or the unexpired
Term of the Lease, or for costs of removal or relocation, or business
interruption expense or any other damages arising out of such taking or
purchase. Nothing herein shall give Landlord any interest in or preclude Tenant
from seeking and recovering for its own account from the condemning authority
any award or compensation attributable to the taking or purchase of Tenant's
improvements, chattels or trade fixtures, or the removal or relocation of its
business and effects, or the interruption of its business; provided that any
such award or compensation shall not reduce the amount of the award otherwise
payable to Landlord. If any such award made or compensation paid to either party
specifically includes an award or amount for the other, the party first
receiving the same shall promptly account therefor to the other.
6.2 DAMAGE OR DESTRUCTION.
a. DEFINITIONS.
i. "Premises Damage" shall mean if the Premises are damaged or
destroyed to any extent but there has not been a Building Total Destruction.
ii. "Building Partial Damage" shall mean the Building is
damaged or destroyed to the extent that the cost to repair is less than thirty
percent (30%) of the then Replacement Cost of the Building.
iii. "Building Total Destruction" shall mean the Building is
damaged or destroyed to the extent that the cost to repair is thirty percent
(30%) or more of the then Replacement Cost of the Building.
iv. "Insured Loss" shall mean damage or destruction which was
caused by an event covered by the insurance described in Section 4.7 and
acknowledged by the relevant insurance company in a binding writing that such
loss is a valid claim under the insurance policy. The fact that an Insured Loss
has a deductible amount shall not make the loss an uninsured loss.
v. "Replacement Cost" shall mean the amount of money necessary
to be spent in order to repair or rebuild the damaged area to the condition that
existed immediately prior to the damage occurring, excluding all improvements
made by Tenants, other than those installed by Landlord at Tenant's expense.
b. PREMISES DAMAGE; BUILDING PARTIAL DAMAGE.
28
i. Insured Loss: Subject to the provisions of Sections 6.2c,
6.2d, and 6.2e, if at any time during the term of this Lease there is damage
which is an Insured Loss and which falls into the classification of either
Premises Damage or Building Partial Damage, then Landlord, shall as soon as
reasonably possible and to the extent the required materials and labor are
readily available through usual commercial channels, at Landlord's expense,
repair such damage (but not Tenant's fixtures, equipment or tenant improvements
originally paid for by Tenant) to its condition in full force and effect.
Notwithstanding the above, Landlord's obligation to restore (i) shall be limited
to the amount of funds available to Landlord from any casualty insurance policy
proceeds actually paid to Landlord for such repair work and (ii) shall at all
times be subject to obtaining all necessary approvals from all applicable
governmental entities, and the holder of any Mortgage and the willingness of
such holder to make the proceeds of casualty insurance policies available to
Landlord for such purposes. Landlord shall not be liable for any delay which is
beyond the reasonable control of Landlord in the completion of the repair and
restoration of the Premises.
ii. Uninsured Loss: Subject to the provisions of Sections 6.2d
and 6.2e, if at any time during the term of this Lease there is damage which is
not an Insured Loss and which falls within the classification of Premises Damage
or Building Partial Damage, unless caused by a negligent or willful act of
Tenant (in which event Tenant shall make the repairs at Tenant's expense), which
damage prevents Tenant from making any substantial use of the Premises, Landlord
may at Landlord's option either (1) repair such damage as soon as reasonably
possible at Landlord's expense, in which event this Lease shall continue in full
force and effect, or (2) give written notice to Tenant within sixty (60) days
after the date of the occurrence of such damage of Landlord's intention to
cancel and terminate this Lease as of the date of the occurrence of such damage,
in which event this Lease shall terminate as of the date of the occurrence of
such damage.
c. BUILDING TOTAL DESTRUCTION. Subject to the provisions of
Sections 6.2d and 6.2e, if at any time during the term of this Lease there is
damage, whether or not it is an Insured Loss, which falls into the
classification of Building Total Destruction, then Landlord may at Landlord's
option either (1) repair such damage or destruction as soon as reasonably
possible at Landlord's expense (to the extent the required materials are readily
available through usual commercial channels) to its condition existing at the
time of the damage, but not Tenant's fixtures, equipment or tenant improvements,
and this Lease shall continue in full force and effect, or (2) give written
notice to Tenant within ninety (90) days after the date of occurrence of such
damage of Landlord's intention to cancel and terminate this Lease, in which case
this Lease shall terminate as of the date of the occurrence of such damage.
d. DAMAGE NEAR END OF TERM.
i. Subject to Section 6.2d.ii, if at any time during the last
twelve (12) months of the term of this Lease there is an occurrence of Premises
Damage
29
or Building Partial Damage, Landlord may at Landlord's option cancel and
terminate this Lease as of the date of occurrence of such damage by giving
written notice to Tenant of Landlord's election to do so within thirty (30) days
after the date of occurrence of such damage.
ii. Notwithstanding Section 6.2d.i, if Tenant has an option to
extend or renew this Lease, and the time within which said option may be
exercised has not yet expired, Tenant shall exercise such option, if it is to be
exercised at all, no later than twenty (20) days after the occurrence of an
Insured Loss falling within the classification of Premises Damage or Building
Partial Damage during the last twelve (12) months of the term of this Lease. If
Tenant duly exercises such option during said 20-day period, Landlord shall, at
Landlord's expense, repair such damage (but not Tenant's fixtures, equipment or
tenant improvements) as soon as reasonably possible and this Lease shall
continue in full force and effect. If Tenant fails to exercise such option
during said 20-day period, then Landlord may at Landlord's option terminate and
cancel this Lease as of the expiration of said 20-day period by giving written
notice to Tenant of Landlord's election to do so within ten (10) days after the
expiration of said 20-day period, notwithstanding any term or provision in the
grant of option to the contrary.
e. ABATEMENT OF RENT: TENANT'S REMEDIES.
i. If Landlord repairs or restores the Building or Premises
pursuant to the provisions of this Section 6.2, and any part of the Premises are
not usable (including loss of use due to loss of access or essential services),
the Rent payable hereunder (including Tenant's Share of Operating Expenses) for
the period during which such damage, repair or restoration continues shall be
abated, provided (1) the damage was not the result of the negligence of Tenant,
and (2) such abatement shall only be to the extent the operation and
profitability of Tenant's business as operated from the Premises is adversely
affected. Except for said abatement of Rent, if any, Tenant shall have no claim
against Landlord for any damage suffered by reason of any such damage,
destruction, repair or restoration.
ii. If Landlord shall be obligated to repair or restore the
Premises or the Building under the provisions of this Section 6.2 and shall not
commence such repair or restoration within ninety (90) days after such
occurrence, or if Landlord shall not complete the restoration and repair within
twelve (12) months after such occurrence, Tenant may at Tenant's option cancel
and terminate this Lease by giving Landlord written notice of Tenant's election
to do so at any time prior to the commencement or completion, respectively, of
such repair or restoration. In such event this Lease shall terminate as of the
date of such notice.
iii. Tenant agrees to cooperate with Landlord in connection
with any such restoration and repair, including, but not limited to, the
approval and/or execution of plans and specifications required.
f. Waiver. Landlord and Tenant waive the provisions of any statute
30
which relates to termination of leases when leased property is destroyed and
agree that such event shall be governed by the terms of this Lease.
g. NOTICE OF DAMAGE. Tenant shall give immediate written notice to
Landlord of any damage caused to the Premises by fire or other casualty.
6.3 HAZARDOUS MATERIALS. Tenant represents, warrants, and covenants to
Landlord that:
a. Tenant and the Premises will remain in compliance with all
applicable laws, ordinances, and regulations (including consent decrees and
administrative orders) relating to public health and safety and protection of
the environment, including those statutes, laws, regulations, and ordinances
identified in subparagraph 6.3g all as amended and modified from time to time
(collectively, "Environmental Laws"). All governmental permits relating to the
use or operation of the Premises required by applicable Environmental Laws are
and will remain in effect, and Tenant will comply with them.
b. Tenant will not permit to occur any release, generation,
manufacture, storage, treatment, transportation, or disposal of "Hazardous
Material," as that term is defined in subparagraph 6.3g, on, in, under, or from
the Premises. Tenant will promptly notify Landlord, in writing, if Tenant has or
acquires notice or knowledge that any Hazardous Material has been or is
threatened to be released, discharged, disposed of, transported, or stored on,
in, under, or from the Premises; and if any Hazardous Material is found on the
Premises, Tenant, at its own cost and expense, will immediately take such action
as is necessary to detain the spread of and remove the Hazardous Material to the
complete satisfaction of Landlord and the appropriate governmental authorities.
c. Tenant will immediately notify Landlord and provide copies upon
receipt of all written complaints, claims, citations, demands, inquiries,
reports, or notices relating to the condition of the Premises or compliance with
Environmental Laws. Tenant will promptly cure and have dismissed with prejudice
any such actions and proceeding to the satisfaction of Landlord. Tenant will
keep the Premises free of any lien imposed pursuant to any Environmental Laws.
d. Landlord will have the right at all reasonable times and from
time to time to conduct environmental audits of the Premises, and Tenant will
cooperate in the conduct of each audit. The audits will be conducted by a
consultant of Landlord's choosing. If any Hazardous Material is detected or if a
violation of any of the warranties, representations, or covenants contained in
this paragraph is discovered, the fees and expenses of such consultant will be
borne by Tenant and will be paid as Additional Rent under this Lease on demand
by Landlord.
e. If Tenant fails to comply with any of the foregoing warranties,
representations, and covenants, Landlord may cause the removal (or other cleanup
acceptable to Landlord) of any Hazardous Material from the Premises. The costs
of
31
Hazardous Material removal and any other cleanup (including transportation and
storage costs) will be Additional Rent under this Lease, whether or not a court
has ordered the cleanup, and such costs will become due and payable on demand by
Landlord. Tenant will give Landlord, its agents, and employees access to the
Premises to remove or otherwise clean up any Hazardous Material. Landlord,
however, has no affirmative obligation to remove or otherwise clean up any
Hazardous Material, and this Lease will not be construed as creating any such
obligation.
f. Tenant agrees to indemnify, defend (with counsel reasonably
acceptable to Landlord and at Tenant's sole cost), and hold Landlord and
Landlord's affiliates, shareholders, directors, officers, employees and agents
free and harmless from and against all losses, liabilities, obligations,
penalties, claims, litigation, demands, defenses, costs, judgments, suits,
proceedings, damages (including consequential damages), disbursements or
expenses of any kind (including attorneys' and experts' fees and expenses and
fees and expenses incurred in investigating, defending, or prosecuting any
litigation, claim, or proceeding) that may at any time be imposed upon, incurred
by, or asserted or awarded against Landlord or any of them in connection with or
arising from or out of:
i. any Hazardous Material on, in, under, or affecting all or
any portion of the Premises;
ii. any misrepresentation, inaccuracy, or breach of any
warranty, covenant, or agreement contained or referred to in this paragraph;
iii. any violation or claim of violation by Tenant of any
Environmental Law; or
iv. the imposition of any lien for the recovery of any costs
for environmental cleanup or other response costs relating to the release or
threatened release of Hazardous Material. This indemnification is the personal
obligation of Tenant and will survive termination of this Lease. Tenant, its
successors, and assigns waive, release, and agree not to make any claim or bring
any cost recovery action against Landlord under CERCLA, as that term is defined
in subparagraph 6.3g, or any state equivalent or any similar law now existing or
enacted after this date. To the extent that Landlord is strictly liable under
any such law, regulation, ordinance, or requirement, Tenant's obligation to
Landlord under this indemnity will likewise be without regard to fault on the
part of Tenant with respect to the violation or condition that results in
liability to Landlord.
g. For purposes of this Lease, "Hazardous Material" means: (i)
"hazardous substances" or "toxic substances" as those terms are defined by the
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),
42 U.S.C. ss.9601, et seq., or the Hazardous Materials Transportation Act, 49
U.S.C. ss.1801, all as amended and amended after this date; (ii) "hazardous
wastes" as that term is defined by the Resource Conservation and Recovery Act
(RCRA), 42 U.S.C. ss.6901, et sec.., as amended and amended after this date;
(iii) any pollutant or contaminant or
32
hazardous, dangerous, or toxic chemicals, materials, or substances within the
meaning of any other applicable federal, state, or local law, regulation,
ordinance, or requirement (including consent decrees and administrative orders)
relating to or imposing liability or standards of conduct concerning any
hazardous, toxic, or dangerous waste substance or material, all as amended or
amended after this date; (iv) crude oil or any fraction thereof which is liquid
at standard conditions of temperature and pressure (60 degrees Fahrenheit and
14.7 pounds per square inch absolute); (v) any radioactive material, including
any source, special nuclear or by-product material as defined at 42 U.S.C.
ss.2011, et seq., as amended and amended after this date; (vi) asbestos in any
form or condition; and (vii) polychlorinated biphenyls (PCBs) or substances or
compounds containing PCBs.
ARTICLE 7
EVENTS OF DEFAULT, REMEDIES
7.1 EVENTS OF DEFAULT. In addition to any other event specified in this
Lease as an event of default, the occurrence of any one or more of the following
events during the Term (each, individually, an "Event of Default" and
collectively, "Events of Default") shall constitute a breach of this Lease by
Tenant and Landlord may exercise the rights set forth in Section 7.2 of this
Lease or as otherwise provided at law or in equity:
i. Tenant shall fail to pay any Base Rent or any Additional Rent on
the date when the same shall become due and payable; or
ii. Tenant shall default in the performance of or compliance with
any of the other covenants, agreements, terms or conditions of this Lease to be
performed by Tenant (other than any default curable by the payment of money),
and, unless expressly provided elsewhere in this Lease that no notice and/or
opportunity to cure such default is to be afforded Tenant, such default shall
continue for a period of thirty (30) days after written notice thereof from
Landlord to Tenant, or, in the case of a default which cannot with due diligence
be cured within thirty (30) days, Tenant fails to commence such cure promptly
within such thirty (30) day period and thereafter diligently prosecute such cure
to completion within ninety (90) days. Notwithstanding the above, Tenant must
immediately remedy any default that presently threatens an injury or harm to any
person or property; or
iii. Tenant (or any guarantor of Tenant's obligations hereunder, if
any) ("Guarantor") shall become insolvent within the meaning of the United
States Bankruptcy Code, as amended from time to time (the "Code"); shall have
ceased to pay its debts in the ordinary course of business; shall be unable to
pay its debts as they become due; shall make a general assignment for the
benefit of creditors; shall file, take any action to file, or notify Landlord
that Tenant or Guarantor intends to file, a petition, case or proceeding under
any section or chapter of the Code, or under any similar law or statute of the
United States or any state thereof relating to bankruptcy, insolvency,
reorganization, winding up or composition or adjustment of debts; shall be
adjudicated as a bankrupt or insolvent; shall seek to or consent to or acquiesce
in the appointment of any
33
receiver, trustee, liquidator or other custodian of Tenant or Guarantor or any
material part of its or their properties, whether or not the same shall relate
to their interests in this Lease; or Tenant or Guarantor shall notify Landlord
that it anticipates the occurrence of any of the foregoing conditions; or take
any other action for the purpose of effecting any of the foregoing clauses; or
iv. the Premises shall be effectively abandoned by Tenant, as shown
by failure to occupy the Premises, for a period of ten (14) consecutive days; or
v. any execution or attachment is issued against Tenant or any of
its property whereupon the Premises shall be taken or occupied or attached, or
attempted to be taken or occupied or attached by someone other than Tenant; or
vi. Tenant does or permits to be done anything which creates a lien
upon the Premises or the Building and such lien is not discharged by Tenant
within fifteen (15) days after the filing thereof; or
vii. any Guarantor of this Lease shall default beyond any
applicable notice and grace period under such guaranty; or
viii. this Lease shall be transferred to or shall pass to or
devolve upon any other person or party except in compliance with Section 4.2.
7.2 LANDLORD'S REMEDIES UPON DEFAULT.
a. TERMINATION OF POSSESSION. Upon the occurrence of any Event of
Default, Landlord shall have the option to pursue any one or more of the
following remedies without notice or demand whatsoever, in addition to, or in
lieu of, any and all remedies available to Landlord under the laws of the state
in which the Building is located:
i. Landlord may give Tenant written notice of its election to
terminate this Lease, effective on the date specified therein, whereupon
Tenant's right to possession of the Premises shall cease and this Lease, except
as to Tenant's liability determined in accordance with Section 7.2c herein
below, shall be terminated.
ii. Landlord and its agents may immediately re-enter and take
possession of the Premises, or any part thereof, either by summary proceedings,
or by any other applicable action or proceeding, or by force or otherwise
(without being liable for indictment, prosecution or damages therefor) and may
repossess same as Landlord's former estate and expel Tenant and those claiming
through or under Tenant, and remove the effects of both or either, without being
deemed guilty in any manner of trespass, and without prejudice to any remedies
for arrears of rent or Tenant's breach of covenants or conditions.
iii. Should Landlord elect to re-enter as provided hereinabove
34
or should Landlord take possession pursuant to legal proceedings or pursuant to
any notice provided by law, Landlord may, from time to time, without terminating
this Lease, relet the Premises or any part thereof in Landlord's or Tenant's
name, but for the account of Tenant (subject to the provisions of Section 7.2b),
for such term or terms (which may be greater or less than the period which would
otherwise have constituted the balance of the Term) and on such terms and
conditions (which may include concessions of free rent and alteration, repair
and improvement of the Premises) as Landlord, in its sole discretion, may
determine, and Landlord may collect and receive the rents therefor without
relieving Tenant of any liability under this Lease or otherwise affecting any
such liability. Landlord shall have no obligation to relet the Premises or any
part thereof and shall in no event be liable for failure to relet the Premises
or any part thereof, or, in the event of any such reletting, for refusal or
failure to collect any rent due upon such reletting, and no such refusal or
failure shall operate to relieve Tenant of any liability under this Lease or
otherwise to affect any such liability. No such re-entry or taking possession of
the Premises by Landlord shall be construed as an election on Landlord's part to
terminate this Lease unless a written notice of such intention be given to
Tenant. No notice from Landlord hereunder or under a forcible entry and detainer
statute or similar law shall constitute an election by Landlord to terminate
this Lease unless such notice specifically so states. Landlord reserves the
right following any such re-entry and/or reletting to exercise its right to
terminate this Lease by giving Tenant written notice thereof, in which event
this Lease will terminate as specified in said notice.
b. WAIVER OF NOTICE AND RIGHT TO RE-ENTER. Tenant hereby waives the
service of any notice of intention to re-enter or to institute legal proceedings
to that end which may otherwise be required to be given under any present or
future law. Tenant, on its own behalf and on behalf of all persons claiming
through or under Tenant, including all creditors, does further hereby waive any
and all rights which Tenant and all such persons might otherwise have under any
present or future law to redeem the Premises, or to reenter or repossess the
Premises, or to restore the operation of this Lease, after (i) Tenant shall have
been dispossessed by a judgment or by warrant of any court or judge, or (ii) any
re-entry by Landlord, or (iii) any expiration or termination of this Lease and
the Term, whether such dispossess, re-entry, expiration or termination shall be
by operation of law or pursuant to the provisions of this Lease. The words
"re-enter", "re-entry" and "re-entered" as used in this Lease shall not be
deemed to be restricted to their technical legal meanings. In the event of a
breach or threatened breach by Tenant, or any persons claiming through or under
Tenant, of any term, covenant or condition of this Lease on Tenant's part to be
observed or performed, Landlord shall have the right to enjoin such breach and
the right to invoke any other remedy allowed by law or in equity as if re-entry,
summary proceedings and other special remedies were not provided in this Lease
for such breach. The right to invoke the remedies hereinbefore set forth are
cumulative and shall not preclude Landlord from invoking any other remedy
allowed at law or in equity.
c. DAMAGES.
i. In the event this Lease is terminated in accordance with
the
35
provisions of Section 7.2a.i, Tenant shall remain liable to Landlord for damages
in an amount equal to the Base Rent and any Additional Rent and any other sums
due hereunder as of the date of termination of this Lease plus the Base Rent and
any Additional Rent which would have been owing by Tenant hereunder for the
balance of the Term (collectively, the "Aggregate Gross Rent") had this Lease
not been terminated, less the net proceeds, if any, received as a result of any
reletting of the Premises by Landlord subsequent to such termination, after
deducting all of Landlord's expenses including, without limitation, all
repossession costs, brokerage commissions, legal expenses, attorneys' fees,
expenses of employees, alteration and repair costs and expenses of preparation
for such reletting (collectively, the "Reletting Costs"). Landlord shall use
reasonable efforts to relet the Premises but shall not be obligated to: (i)
attempt to relet the Premises if Landlord has other space available in the
Building; (ii) relet the Premises at a rate substantially below the current rate
being charged to other tenants; or (iii) incur substantial expense to remodel or
refurbish the Premises in order to accommodate prospective tenants. Landlord
shall be entitled to collect Base Rent, any Additional Rent and all other
damages from Tenant monthly on the days on which Base Rent and any Additional
Rent would have been payable hereunder if this Lease had not been terminated.
Alternatively, at the option of Landlord, in the event this Lease is so
terminated, Landlord shall be entitled to recover forthwith against Tenant, as
liquidated damages and not as a penalty, the then value of the Aggregate Gross
Rent and Reletting Costs less the aggregate rental value of the Premises for
what otherwise would have been the unexpired balance of the Term. In the event
Landlord shall relet the Premises for the period which otherwise would have
constituted the unexpired portion of the Term (or any part thereof), the amount
of rent and other sums payable by the tenant thereunder shall be deemed prima
facie to be the rental value for the Premises (or the portion thereof so relet)
for the term of such reletting. Tenant shall in no event be entitled to any
rents collected or payable in respect of any reletting, whether or not such
rents shall exceed the Base Rent and any Additional Rent reserved in this Lease.
Tenant shall bear the burden of proof in any proceeding to determine the "rental
value" for purposes of the above calculation.
ii. If Landlord does not elect to terminate this Lease, but
takes possession, Tenant shall pay to Landlord the Base Rent and any Additional
Rent which would be payable hereunder if such repossession had not occurred,
less the net proceeds received by Landlord, if any, of any reletting of the
Premises by Landlord after deducting the Reletting Costs to the extent not paid
to Landlord pursuant to the following sentence. Tenant shall pay rent and all
other sums due to Landlord, monthly, on the ;days on which Base Rent would have
been payable hereunder if possession had not been retaken.
d. CUMULATIVE REMEDIES. Suit or suits for the recovery of the Rent
and other amounts and damages may be brought by Landlord, from time to time, at
Landlord's election, and nothing in this Lease shall be deemed to require
Landlord to await the date when this Lease would have expired had there been no
default by Tenant, or no termination, as the case may be. Each right and remedy
provided for in this Lease shall be cumulative and shall be in addition to every
other right or remedy provided for in this Lease or now or hereafter existing at
law or in equity or by statute or otherwise, including, but not limited to,
suits for injunctive relief and specific performance. The
36
exercise or beginning of the exercise by Landlord of any one or more of the
rights or remedies provided for in this Lease or now or hereafter existing at
law or in equity or by statute or otherwise shall not preclude the simultaneous
or later exercise by Landlord of any or all other rights or remedies provided
for in this Lease or now or hereafter existing at law or in equity or by statute
or otherwise. All such rights and remedies shall be considered cumulative and
nonexclusive. All costs incurred by Landlord in connection with collecting any
rent or other amounts and damages owing by Tenant pursuant to the provisions of
this Lease, or to enforce any provision of this Lease, including reasonable
attorneys' fees from the date such matter is turned over to an attorney, whether
or not one or more actions are commenced by Landlord, shall also be paid by
Tenant to Landlord.
e. MISCELLANEOUS. This Lease shall continue in effect for so long
as Landlord does not terminate Tenant's right to possession, and Landlord may
enforce all its rights and remedies under this Lease, including the right to
recover the Base Rent and any Additional Rent, as the same become due under this
Lease. Acts of maintenance or preservation or efforts to relet the Premises or
the appointment of a receiver upon the initiative of Landlord to protect
Landlord's interest under this Lease shall not constitute a termination of
Tenant's rights to possession unless Landlord shall have specifically elected to
terminate this Lease.
i. No payments of money by Tenant to Landlord after the
expiration or other termination of this Lease after the giving of any notice by
Landlord to Tenant shall reinstate or extend the Term, or make ineffective any
notice given to Tenant prior to the payment of such money. After the service of
notice or the commencement of a suit, or after final judgment granting Landlord
possession of the Premises, Landlord may receive and collect any sums due under
this Lease, and the payment thereof shall not make ineffective any notice, or in
any manner affect any pending suit or any judgment theretofore obtained.
ii. If Tenant is in default under the terms hereof and, by the
sole determination of Landlord, has abandoned the Leased Premises, Landlord
shall have the right to remove all the Tenant's property from the Leased
Premises and dispose of said property in such a manner as determined best by
Landlord, at the sole cost and expense of Tenant and without liability of
Landlord for the actions so taken.
f. CASH DEPOSIT. In addition to Landlord's rights set forth above,
if Tenant fails to pay its rent and all other amounts owing hereunder within the
time period set forth in Section 7.1a.i above more than two (2) times during any
12-month period, then upon the occurrence of the third or any subsequent default
in the payment of monies' during a 12-month period, Landlord at its sole option,
shall have the right to require that Tenant, as a condition precedent to curing
such default, pay to Landlord, in cash or its equivalent, in advance, the Base
Rent and Landlord's estimate of all other amounts which will become due and
owing hereunder by Tenant for a period of six (6) months. All amounts shall be
paid by Tenant within thirty (30) days after notice from Landlord demanding the
same. All monies so paid shall be retained by Landlord, without interest, for
the balance of the Primary term and any extension thereof, and shall be applied
by
37
Landlord to the last due amounts owing hereunder by Tenant. If, however,
Landlord's estimate of the rent and other amounts for which Tenant is
responsible hereunder are inaccurate, when such error is discovered Landlord
shall pay to tenant, or Tenant shall pay to Landlord, within thirty (30) days
after written notice thereof the excess or deficiency, as the case may be, which
is required to reconcile the amount on deposit with Landlord with the actual
amounts for which Tenant is responsible.
g. NO WAIVER. No failure by Landlord to insist upon the strict
performance of any agreement, term, covenant or condition of this Lease or to
exercise any right or remedy consequent upon a breach, and no acceptance of full
or partial payment of Rent during the continuance of any breach, shall
constitute a waiver of any breach or of the agreement to be performed or
complied with by Tenant, and no breach shall be waived, altered or modified
except by written instrument executed by Landlord. No waiver of any breach shall
affect or alter this Lease, but each and every agreement, term, covenant and
condition shall continue in full force and effect with respect to any other then
existing or subsequent breach. Notwithstanding any termination of this Lease,
the same shall continue in force and effect as to any provisions which require
observance or performance by Landlord or Tenant subsequent to such termination.
7.3 BANKRUPTCY. Landlord and Tenant understand that, notwithstanding
certain provisions to the contrary contained herein, a trustee or debtor in
possession under the Code may have certain rights to assume or assign this
Lease. Landlord and Tenant further understand that, in any event, Landlord is
entitled under the Code to adequate assurances of future performance of the
terms and provisions of this Lease. The parties hereto agree that, with respect
to any such assumption or assignment, the term "adequate assurance" shall
include at least the following:
a. In order to assure Landlord that the proposed assignee will have
the resources with which to pay all Base Rent and any Additional Rent payable
pursuant to the terms hereof, any proposed assignee must have, as demonstrated
to Landlord's satisfaction, a net worth (as defined in accordance with generally
accepted accounting principles consistently applied) of not less than the net
worth of Tenant on the date this Lease became effective, increased by seven
percent (7%), compounded annually, for each year from the Commencement Date
through the date of the proposed assignment. The financial condition and
resources of Tenant were a material inducement to Landlord in entering into this
Lease.
b. Any proposed assignee must have been engaged in the conduct of
business for the five (S) years prior to any such proposed assignment, which
business does not violate the Permitted Uses, and such proposed assignee shall
continue to engage in the Permitted Uses. Landlord's asset will be substantially
impaired if the trustee in bankruptcy or any assignee of this Lease makes any
use of the Premises other than the Permitted Uses.
c. Any proposed assignee of this Lease must assume and agree to be
personally bound by the terms, covenants and provisions of this Lease.
38
ARTICLE 8
MISCELLANEOUS PROVISIONS
8.1 HOLDING OVER. If Tenant remains in possession of the Premises after
the expiration or other termination of the Term, then, at Landlord's option,
Tenant shall be deemed to be occupying the Premises as a month-to-month tenant
only pursuant to the provisions of this Lease, at a monthly rental equal to two
(2) times the sum of the Base Rent and any Additional Rent payable hereunder
during the last month of the Term. Such month-to-month tenancy may be terminated
by Landlord or Tenant effective as of the last day of any calendar month by
delivery to the other of notice of such termination prior to the first day of
such calendar month. Tenant shall defend, indemnify and hold Landlord harmless
from and against any and all claims, losses and liabilities for damages
resulting from failure to surrender possession upon the Expiration Date or
sooner termination of the Term, including, without limitation, any claims made
by any succeeding tenant, and such obligations shall survive the expiration or
sooner termination of this Lease.
8.2 NOTICES.
a. Any and all notices required or which either party herein may
desire to give to the other (each, a "Notice") shall be made in writing and
shall be given by certified or registered mail, postage prepaid, return receipt
requested, or by a nationally recognized overnight courier, such as Federal
Express or Airborne Express, or by personal service, and shall be deemed to be
given on the third business day after the date of posting in a United States
Post Office or branch post office or one day after delivery to the overnight
courier, or upon effecting personal service, and shall be delivered to
Landlord's Notice Address or Tenant's Notice Address, as appropriate. The
parties agree that copies of all Notices to be delivered to Landlord and Tenant
hereunder shall be simultaneously delivered to the specified addresses for
copies set forth in Section 1.1, if any. Either party may, by notice as
aforesaid actually received, designate a different address or addresses for
communications intended for it. Anything contained herein to the contrary
notwithstanding, any bills or invoices for Base Rent, any Additional Rent or any
Landlord's Operating Statement may be given by hand or by mail (which need not
be registered or certified) and, if so given, shall be deemed given on the date
of delivery or refusal, if by hand, or on the third (3rd) business day following
the date of posting, if mailed.
b. Notices given hereunder by any party may be given by counsel for
such party or by Landlord's agent. The foregoing notice provisions shall in no
way prohibit notice from being given as provided in the rules of civil procedure
of the state in which the Building is located, as the same may be amended from
time to time and any notice so given shall constitute notice herein.
8.3 AUTHORITY OF TENANT.
39
a. If Tenant is a corporation, each individual executing this Lease
on behalf of said corporation represents and warrants that he is duly authorized
to execute and deliver this Lease on behalf of said corporation in accordance
with a duly adopted resolution of the Board of Directors or the Bylaws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms. In addition, Tenant shall, at the time of execution of this
Lease, deliver to Landlord a certified copy of a resolution of the Board of
Directors of said corporation authorizing or ratifying the execution of this
Lease.
b. If Tenant is a partnership, joint venture, or other
unincorporated association, each individual executing this Lease on behalf of
said partnership, joint venture or unincorporated association represents and
warrants that he is duly authorized to execute and deliver this Lease on behalf
of said partnership, joint venture or unincorporated association, and that this
Lease is binding upon said partnership, joint venture or unincorporated
association in accordance with its terms. Tenant shall, at the time of execution
of this Lease, deliver to Landlord a document to that effect.
8.4 FINANCIAL STATEMENTS. Tenant and Guarantor, if any, shall, when
requested by Landlord from time to time, furnish a true and accurate statement
of its financial condition prepared in conformity with recognized accounting
principles and in a form reasonably satisfactory to Landlord. Landlord
acknowledges that Tenant's and Guarantor's financial statements are confidential
and agrees to exercise reasonable efforts to protect them from unauthorized
disclosure to the same extent that Landlord protects its own confidential
information.
8.5 AUTHORITIES FOR ACTION. Landlord may act through its managing agent
for the Building or through any other person who may from time to time be
designated by Landlord in writing. Tenant shall designate in writing one or more
persons to act on its behalf and may from time to time change such designation
by written notice to Landlord. In the absence of any such designation, the
person or persons executing this Lease on behalf of Tenant shall be deemed to be
authorized to act on behalf of Tenant in any matter provided for herein.
8.6 BROKERAGE. Tenant represents and warrants that it has dealt with no
brokers or agents, in connection with the negotiation or execution of this Lease
except: Xxxxxx and Company. Tenant agrees to indemnify and hold Landlord
harmless from and against any and all damage, loss, cost or expense including,
without limitation, all attorneys' fees and disbursements incurred by reason of
any claim of or liability to any other broker or other person for commissions or
other compensation or charges with respect to the negotiation, execution and
delivery of this Lease incurred as a result of Tenant's actions or commitments,
and such obligations shall survive the expiration or sooner termination of this
Lease. Any brokerage fees due to Xxxxxx and Company shall be the sole
responsibility of the Landlord.
8.7 DEFINITION OF LANDLORD. The term "Landlord" as used in this Lease
shall mean only the owner of the Building at the time in question. In the event
of any transfer
40
of title to or lease of the Building, the transferor shall be entirely freed and
relieved of all covenants and obligations of Landlord to be performed thereafter
(whether express or implied) without further agreement between the parties or
their successors in interest and Tenant shall look solely to the successor in
interest of the transferor as Landlord under this Lease; provided, however, that
any funds in the hands of the Landlord in which Tenant has an interest shall be
delivered to Landlord's successor in interest. This Lease shall not be affected
by such transfer or lease, and Tenant agrees to attorn to the transferee or
assignee, such attornment to be effective and self-operative without the
execution of any further instrument by the parties to this Lease.
8.8 ENTIRE AGREEMENT.
a. Tenant acknowledges and agrees that it has not relied upon any
statements, representations, agreements or warranties except those expressed in
this Lease, and that this Lease contains the entire agreement of the parties. No
amendment or modification of this Lease shall be binding or valid unless
expressed in writing and executed and delivered by Landlord and Tenant in the
same manner as the execution of this Lease.
b. The submission of this document for examination and review does
not constitute an option, an offer to lease space, or an agreement to lease
space. This document shall have no binding effect on the parties hereto unless
and until executed and delivered by both Landlord and Tenant and will be
effective only upon Landlord's execution and delivery of same.
8.9 FORCE MAJEURE. Any obligation of Landlord which is delayed or not
performed due to Acts of God, strike, riot, shortages of labor or materials, war
(whether declared or undeclared), governmental laws, regulations or
restrictions, governmental action, or lack thereof, or any other causes of any
kind whatsoever which are beyond Landlord's reasonable control, shall not
constitute a default hereunder and shall be performed within a reasonable time
after the end of such cause for delay or nonperformance.
8.10 SEVERABILITY. If any term or provision of this Lease or the
application thereof to any person or circumstances shall, to any extent, be
illegal, invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those to which it is held invalid or unenforceable, shall not be affected
thereby, and all other terms and provisions of this Lease shall be valid and
enforced to the fullest extent permitted by law.
8.11 NO SETOFF. This Lease shall be construed as though the covenants
herein between Landlord and Tenant are independent, and Tenant shall not be
entitled to any setoff, offset, abatement or deduction of Rent or other amounts
due Landlord hereunder if Landlord fails to perform its obligations hereunder;
provided, however, the foregoing shall in no way impair the right of Tenant to
commence a separate action against Landlord for any violation by Landlord of the
provisions hereof or to which Tenant has
41
not waived any claim pursuant to the provisions of this Lease so long as notice
is first given to Landlord and any holder of a Mortgage, and a reasonable
opportunity is granted to Landlord and such holder to correct such violation. In
no event shall Landlord, or any holder of a Mortgage be responsible for any
consequential damages incurred by Tenant, including, without limitation, lost
profits or interruption of business, as a result of any default by Landlord.
8.12 RELATIONSHIP OF PARTIES. Nothing contained in this Lease shall
create any relationship between the parties hereto other than that of Landlord
and Tenant, and it is acknowledged and agreed that Landlord shall not be deemed
to be a partner of Tenant in the conduct of its business, or a joint venturer or
a member of a joint or common enterprise with Tenant.
8.13 NAME OF BUILDING. Upon notice to Tenant, Landlord shall have the
right to designate, or to change, the name or numbers of the Building without
liability to Tenant.
8.14 SUCCESSORS BOUND. Except as otherwise specifically provided
herein, the terms, covenants and conditions contained in this Lease shall bind
and inure to the benefit of the respective heirs, successors, executors,
administrators and permitted assigns of each of the parties hereto.
8.15 INTERPRETATION.
a. Whenever in this Lease any words of obligation or duty are used,
such words or expressions shall have the same force and effect as though made in
the form of a covenant.
b. Words of any gender used in this Lease shall be deemed to
include any other gender, and words in the singular shall be deemed to include
the plural, when the context requires.
c. All pronouns and any variances thereof shall be deemed to refer
to the neuter, masculine, feminine, singular or plural, when the context
requires.
d. No remedy or election given pursuant to any provision in this
Lease shall be deemed exclusive unless so indicated, but each shall, wherever
possible, be cumulative with all other remedies at law or in equity as otherwise
specifically provided herein.
e. If and to the extent that, any of the provisions of any
amendment, modification or rider to this Lease conflict or are otherwise
inconsistent with any of the preceding provisions of this Lease, or of the Rules
and Regulations (if any) appended to this Lease, whether or not such
inconsistency is expressly noted in such amendment, modification or rider, the
provisions of such amendment, modification or rider shall prevail, or in case of
any inconsistency with the Rules and Regulations, such Rules and
42
Regulations shall be deemed to be waived with respect to Tenant to the extent of
such inconsistency.
f. The parties mutually agree that the headings and captions
contained in this Lease are inserted for convenience of reference only, and are
not to be deemed part of or to be used in construing this Lease.
g. This Lease shall be construed in accordance with the laws of the
state in which the Building is located. Unless herein waived, Landlord and
Tenant acknowledge that all of the applicable statutes of such state are
superimposed on the rights, duties and obligations of Landlord and Tenant
hereunder.
h. Except as expressly contained herein, neither Landlord nor
Landlord's agent or attorneys have made representations, warranties or promises
with respect to the Premises, the Building, the Building Complex or this Lease.
i. Landlord and Tenant each acknowledge and warrant that each has
been represented by independent counsel and has executed this Lease after being
fully advised by said counsel as to its effect and significance. This Lease is
the result of negotiations between the parties and their respective attorneys
and shall be construed in an even and fair manner, regardless of the party who
drafted this Lease, or any provision thereof
j. In all instances where Tenant is required by the terms and
provisions of this Lease to pay any sum of money or to do any act at a
particular indicated time or within any indicated period, it is understood and
agreed that time is of the essence.
8.16 JOINT AND SEVERAL OBLIGATION. If this Lease is executed by more
than one tenant, Tenant's obligations hereunder shall be the joint and several
obligations of each tenant executing this Lease.
8.17 EASEMENTS. Landlord shall have the right to grant any Easements
on, over, under and above the Premises for such purposes as Landlord determines,
provided that such Easements will not materially interfere with Tenant's use or
quiet enjoyment of the Premises.
8.18 LIMITATION OF LANDLORD LIABILITY. In no event shall Landlord be
liable to Tenant for any failure of other tenants in the Building to operate
their businesses, or for any loss or damage that may be occasioned by or through
the acts or omissions of other tenants. Notwithstanding anything to the contrary
provided in this Lease, neither Landlord, nor any general or limited partner in
or of Landlord, whether direct or indirect, nor any direct or indirect partners
in such partners, nor any disclosed or undisclosed officers, shareholders,
principals, directors, employees, partners, servants or agents of Landlord, nor
any of the foregoing, nor any investment adviser or other holder of any equity
interest in Landlord, their successors, assigns, agents, or any mortgagee in
43
possession shall have any personal liability with respect to any provisions of
this Lease and, if Landlord is in breach or default with respect to its
obligations or otherwise, Tenant shall look solely to Landlord's interest in the
Building and Parking Lot for the satisfaction of Tenant's remedies.
8.19 SHORT FORM LEASE. Tenant shall not record this Lease or a
memorandum hereof without the prior written consent of Landlord. Upon Landlord's
request, Tenant agrees to execute and acknowledge a short form lease in
recordable form, indicating the names and addresses of Landlord and Tenant, a
description of the Premises, the Term, the Commencement and Expiration Dates,
and options for renewal, if any, but omitting rent and other terms of this
Lease. Further, upon Landlord's request, Tenant agrees to execute and
acknowledge a termination of lease in recordable form to be held by Landlord
until the Expiration Date or sooner termination of the Term.
8.20 ASSIGNMENT OF RENTS, LEASES.
a. Tenant agrees that Landlord may assign the rents and its
interest in this Lease to the holder of any Mortgage.
b. Tenant further agrees that, in the event of such an assignment,
Tenant shall give the holder of such Mortgage a copy of any request for
performance by Landlord or any notice of default by Landlord; and, in the event
Landlord fails to cure any such default, Tenant shall give such holder a
reasonable period, commencing on the last day on which Landlord could cure such
default, in which to cure same.
8.21 RULES AND REGULATIONS.
a. The rules and regulations set forth in Exhibit F annexed hereto
(the "Rules and Regulations") have been adopted by Landlord for the safety and
convenience of all tenants and other persons in the Building. Tenant shall at
all times comply with, and shall cause its employees, agents, contractors,
licensees and invitees to comply with, the Rules and Regulations from time to
time in effect. Landlord may, from time to time, amend, delete or add to the
Rules and Regulations, provided that any such modification:
i. shall not be inconsistent with any other provision of this
Lease;
ii. shall be reasonable and have general application to all
tenants in the Building; and
iii. shall be effective only upon delivery of a copy thereof
to Tenant at the Premises or posting same in a conspicuous place within the
Building.
b. Landlord shall use reasonable efforts to secure compliance by
all tenants and other persons with the Rules and Regulations from time to time
in effect, but shall not be liable to Tenant for failure of any person to comply
with such Rules and
44
Regulations. Any failure by Landlord to enforce any of the Rules and Regulations
will not constitute a waiver of same with respect to Tenant. Landlord reserves
the right, in its sole discretion, to waive, either temporarily or permanently,
application of the Rules and Regulations to any particular tenant in the
Building.
8.22 ESTOPPEL CERTIFICATE. At any time and from time to time upon
written request by Landlord, Tenant hereby agrees to deliver within ten (10)
days after request, a certificate to Landlord or to any present or proposed
mortgagee or purchaser designated by Landlord, in the form supplied, certifying:
(1) that Tenant has accepted the Premises (or, if Tenant has not done so, that
Tenant has not accepted the Premises, and specifying the reasons therefore);
(ii) that this Lease is in full force and effect and has not been modified (or
if modified, setting forth all modifications), or, if this Lease is not in full
force and effect, the certificate shall so specify the reasons therefor; (iii)
the Commencement Date, the Expiration Date and the terms of any extension
options of Tenant; (iv) the date to which the Base Rent and any Additional Rent
have been paid under this Lease and the amount thereof then payable; (v) the
amount of the Security Deposit and prepaid rent, if any, being held by Landlord;
(vi) whether there are then any existing defaults by Landlord in the performance
of its obligations under this Lease, and, if there are any such defaults,
specifying the nature and extent thereof; (vii) that no notice has been received
by Tenant of any default under this Lease which has not been cured, except as to
defaults specified in the certificate; (viii) the capacity of the person
executing such certificate, and that such person is duly authorized to execute
the same on behalf of Tenant; (ix) the amount of the then current Base Rent; and
(x) any other information reasonably requested by Landlord, its present or
proposed purchaser, or the holder of any Mortgage.
8.23 MORTGAGEE REQUIREMENTS. If any present or future or prospective
holder of a Mortgage shall require a reasonable change or changes in this Lease
as a condition of its approval of this Lease, and if within thirty (30) days
after notice from Landlord, Tenant fails or refuses to execute the amendment or
amendments of this Lease effecting such change or changes as are stated by
Landlord to be necessary to secure the approval of such present or future or
prospective holder of a Mortgage, Landlord shall have the right to cancel this
Lease at any time prior to the Commencement Date. In the event of the
cancellation of this Lease by Landlord pursuant to the terms hereof, this Lease
shall be null and void and of no further force or effect and neither party shall
have any further liability or obligation hereunder, including, without
limitation any Tenant liability for internal costs of Landlord. Notwithstanding
the above, any additional documents or amendments required under this Lease
shall not increase Tenant's Rent or Additional Rent or materially alter Tenant's
rights and responsibilities under this Lease.
8.24 ATTORNEYS' FEES. If any party breaches this Lease, the other party
shall be entitled to collect its reasonable attorneys' fees, arbitration fees,
court costs, expert witness fees, and other incidental expenses from the
breaching party incurred to enforce this Lease whether or not a suit has been
commenced, all in addition to any other remedies or damages that may be
available.
45
8.25 LANDLORD'S FAILURE TO CONSENT. If Tenant shall request Landlord's
consent hereunder and Landlord shall fail or refuse to give such consent, Tenant
shall not be entitled to any damages for the withholding of its consent, it
being intended that Tenant's sole remedy shall be an action for specific
performance or injunction and that such remedy shall be available only in those
cases where Landlord has expressly agreed in writing not to unreasonably
withhold its consent or where, as a matter of law, Landlord may not unreasonably
withhold its consent.
8.26 NO WAIVER. The failure of Landlord to exercise its rights in
connection with this Lease or any breach or violation of any term, covenant or
condition herein contained shall not be deemed to be a waiver of such term,
covenant or condition or any subsequent breach of the same or any other term,
covenant or condition herein contained. The subsequent acceptance of Base Rent
and any Additional Rent hereunder by Landlord shall not be deemed to be a waiver
of any preceding breach by Tenant of any term, covenant or condition of this
Lease other than the failure of Tenant to pay the particular amount of Base Rent
or any Additional Rent so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of acceptance of such monies.
8.27 NO MERGER. The voluntary or other surrender of possession of the
Premises by Tenant, or a mutual cancellation of this Lease, shall not result in
a merger of Landlord's and Tenant's estates, and shall, at the option of
Landlord, either terminate any or all existing subleases or subtenancies, or
operate as an assignment to Landlord of any or all of such subleases or
subtenancies.
8.28 NO LIGHT OR AIR EASEMENT. Any diminution or shutting off of light
or air by any structure which is now or hereafter erected on the Property or
upon property adjacent to the Property shall not affect this Lease or impose any
liability on Landlord.
8.29 CROSSED OUT
46-48
8.30 TIME IS OF ESSENCE. Time is of the essence with respect to the
obligations to be performed under this Lease.
8.31 SUBORDINATION.
a. This Lease, and any option or right of first refusal granted
hereby, at Landlord's option, shall be subordinate to any ground lease,
mortgage, deed of trust, or any other hypothecation or security (collectively,
"Mortgage") now or hereafter placed upon the Building and to any and all
advances made on the security thereof and to all renewals, modifications,
consolidations, replacements and extensions thereof. Notwithstanding such
subordination, Tenant's right to quiet possession of the Premises shall not be
disturbed if Tenant is not in default and so long as Tenant shall pay the rent
and observe and perform all of the provisions of this Lease, unless this Lease
is otherwise terminated pursuant to its terms. If any mortgagee, trustee or
ground Landlord shall elect to have this Lease and any options granted hereby
prior to the lien of its mortgage, deed of trust or ground lease, and shall give
written notice thereof to Tenant, this Lease and such options shall be deemed
prior to such mortgage, deed of trust or ground lease, whether this Lease or
such options are dated prior or subsequent to the date of said mortgage, deed of
trust or ground lease or the date of recording thereof.
49
b. Tenant agrees to execute any documents required to effectuate an
attornment, a subordination, or to make this Lease or any option granted herein
prior to the lien of any mortgage, deed of trust or ground lease, as the case
may be. Tenant's failure to execute such documents within ten (14) days after
written demand shall constitute a material default by Tenant hereunder without
further notice to Tenant or, at Landlord's option, Landlord shall execute such
documents on behalf of Tenant as Tenant's attorney-in-fact. Tenant does hereby
make, constitute and irrevocably appoint Landlord as Tenant's attorney-in-fact
and in Tenant's name, place and stead, to execute such documents in accordance
with this Section 8.31b.
8.32 AUCTIONS. Tenant shall not conduct, nor permit to be conducted,
either voluntarily or involuntarily, any auction upon the Premises or the Common
Areas without first having obtained Landlord's prior written consent.
Notwithstanding anything to the contrary in this Lease, Landlord shall not be
obligated to exercise any standard of reasonableness in determining whether to
grant such consent. The holding of any auction on the Premises or Common Areas
in violation of this Section shall constitute a material default of this Lease.
8.33 SECURITY MEASURES - LANDLORD'S RESERVATIONS.
a. Tenant hereby acknowledges that Landlord shall have no
obligation whatsoever to provide guard service or other security measures for
the benefit of the Premises or the Building. Tenant assumes all responsibility
for the protection of Tenant, its agents, its employees and invitees and the
property of Tenant and of Tenant's agents and invitees from acts of third
parties. Nothing contained herein shall prevent Landlord, at Landlord's sole
option, from providing security protection for the Building or any part thereof,
in which event the cost thereof shall be included within the definition of
Operating Expenses, as set forth in Section 3.2.
b. Landlord shall have the following rights:
i. To provide and install Building standard graphics on the
door of the Premises and such portions of the Common Areas as Landlord shall
reasonably deem appropriate;
ii. To place such signs, notices or displays as Landlord
reasonably deems necessary or advisable upon the roof, exterior of the buildings
or the Building or on pole signs in the Common Areas.
c. Tenant shall not suffer or permit anyone, except in emergency,
to go up on the roof of the Building.
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
Lease as of the day and year first above written.
50
TENANT: ORTHONETX, INC. a Nevada Corporation
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: CEO
LANDLORD:
SUPERIOR POINTE NORTH, LLC
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Asset Mgr for Superior Pt
51
EXHIBIT A
FLOOR PLAN
Suite 300
Shown with Adjacent Premises.
[picture of floor plan here]
Suite 300
Shown with Partial Expansion
[picture of floor plan here]
EXHIBIT B
LEGAL DESCRIPTION
XXX 0,
XXXXXXXX XXXX XXXXXX XXXX,
XXXX XX XXXXXXXX,
XXXXXX OF BOULDER,
STATE OF COLORADO.
EXHIBIT C
TENANT ACCEPTANCE LETTER
[CROSSED OUT]
EXHIBIT D
RENT SCHEDULE
Period of Lease Term (Months) Annual Base Rent Per Rentable Square Foot
1-24 $19.00/rentable sq.ft., full service gross
$6208.25/month
EXHIBIT E
INTENTIONALLY DELETED
MINIMUM TENANT FINISH STANDARDS
EXHIBIT F
RULES AND REGULATIONS
(1) SECURITY. Landlord may from time to time adopt systems and
procedures for the security or safety of the Building Complex, any persons
occupying, using or entering the same, or any equipment, furnishings or contents
thereof, and Tenant shall comply with Landlord's reasonable requirements
relating thereto.
(2) LOCKS. Landlord may from time to time install and change locking
mechanisms on entrances to the Building, common areas thereof, and the Premises
and (unless 24-hour security is provided for the Building) shall provide to
Tenant a reasonable number of keys and replacements therefor to meet the bona
fide requirements of Tenant. In these rules "keys" include any device serving
the same purpose. Tenant shall not add to or change existing locking mechanisms
on any door in or to the Premises without Landlord's prior written consent, nor
duplicate any keys provided for access to the Building, common areas thereof, or
the Premises. If, without Landlord's consent, Tenant installs lock(s)
incompatible with the Building master locking system:
(a) Landlord, without abatement of rent, shall be relieved of any
obligation under the Lease to provide any service to the affected areas which
requires access thereto;
(b) Tenant shall indemnify Landlord against any expense as a result
of forced entry thereto which may be required in an emergency; and
(c) Tenant shall at the end of the Term and at Landlord's request
remove such lock(s) at Tenant's expense.
(3) RETURN OF KEYS. At the end of the Term, Tenant shall promptly
return to Landlord all keys for the Building and Premises which are in the
possession of Tenant.
(4) WINDOW COVERINGS. Tenant shall observe Landlord's rules with
respect to maintaining uniform drapes or blinds on all windows in the Premises
so that the Building represents a uniform exterior appearance, and shall not
install deflective film, window shades, screens, drapes, covers or other
materials on or at any window in the Premises without Landlord's prior written
consent.
(5) Signs. Unless otherwise expressly agreed to in writing by Landlord:
(a) no signs will be allowed on the exterior of the Building or the
interior or exterior of windows;
(b) no signs except in uniform locations and styles designated by
Landlord will be permitted in the public corridors or on corridor doors or
entrances to Tenant's space; and
(c) the construction and/or installation of all authorized signs
for Tenant will be contracted for by Landlord at the rate fixed by Landlord from
time to time, and Tenant shall pay for such service promptly upon rendition of a
xxxx therefor.
(6) REPAIR, MAINTENANCE. ALTERATIONS AND IMPROVEMENTS. Tenant shall
perform Tenant's repair, maintenance, alterations and improvements in the
Premises only during times agreed to in advance by Landlord and in a manner
which will not interfere with the rights of other tenants in the Building.
(7) WATER FIXTURES. Tenant shall not use water closets or water
fixtures for any purposes for which they are not intended. Tenant shall pay any
cost incurred as a result of any misuse of water closets or fixtures by Tenant.
(8) DAMAGE TO PREMISES. Except as permitted by Landlord, no tenant
shall xxxx up, paint signs upon, cut, drill into, drive nails or screws into, or
in any way mar or deface the walls, ceilings, partitions or floors of any
premises or the Building. Notwithstanding the foregoing, normal picture hanging
is permitted within the Premises. Any defacement, damage or injury
caused by any tenant, its agents or employees shall be paid for by such tenant.
(9) PROHIBITION AGAINST INFLAMMABLE OR HAZARDOUS MATERIALS. The use of
oil, gas, or other inflammable liquids for any purpose is expressly prohibited.
Explosives or any other article deemed hazardous shall not be brought into the
Building or Building Complex.
(10) ANTENNAS AND AERIALS. No antenna or aerial shall be erected on the
roof or exterior walls of the Building without the prior written consent of
Landlord. Notwithstanding that Landlord consents, Landlord reserves the right to
assess a reasonable charge for such use which shall be paid monthly as
Additional Rent. Any antenna or aerial so installed without prior consent shall
be subject to removal without notice at any time, and Tenant shall bear all
costs of removal and any repairs necessitated by virtue of its attachment to the
Building.
(11) PERSONAL USE OF PREMISES. The Premises shall not be used or
permitted to be used for residential lodging or sleeping purposes or for the
storage of personal effects or property not required for business purposes.
(12) HEAVY ARTICLES. Tenant shall not place in or move about the
Premises, without Landlord's prior written consent, any safe or other heavy
article which in Landlord's reasonable opinion may damage the Building, and
Landlord may designate the location of any heavy articles in the Premises.
(13) CARPET PADS. In those portions of the Premises where carpet has
been provided directly or indirectly by Landlord, Tenant shall, at its expense,
install and maintain pads to protect the carpet under all furniture having
casters other than carpet casters.
(14) VEHICLES, ANIMALS. Tenant shall not bring any animals or birds
into the Building, and shall not permit other vehicles inside or on the
sidewalks outside the Building except in areas designated from time to time by
Landlord for such purposes.
(15) DELIVERIES. Tenant shall insure that deliveries of materials and
supplies to the Premises are made through such entrances, elevators and
corridors and at such times as may from time to time be designated by Landlord,
and shall promptly pay or cause to be paid to Landlord the cost of repairing any
damage in or to the Building caused by any person making such deliveries.
(16) FURNITURE AND EQUIPMENT. Tenant shall insure that furniture and
equipment being moved into or out of the Premises is moved through such
entrances, elevators and corridors and at such times as may from time to time be
designated by Landlord, and by movers or a moving company approved by Landlord,
and shall promptly pay or cause to be paid to Landlord the cost of repairing any
damage in or to the Building or Premises, if any, caused thereby. Landlord shall
not be obligated to permit Tenant to use the freight elevators at any time that
Tenant is in default in the payment of Base Rent or any Additional Rent.
(17) SOLICITATIONS. Landlord reserves the right to restrict or prohibit
canvassing, soliciting or peddling in the Building or Building Complex.
(18) FOOD AND BEVERAGE. Only persons approved from time to time by
Landlord may commercially, for profit, prepare, solicit orders for, sell, serve
or distribute foods or beverages in the Building or Building Complex, or use the
elevators, corridors or common areas for any such purpose. Except with
Landlord's prior written consent and in accordance with arrangements approved by
Landlord, Tenant shall not permit the use of equipment for dispensing food or
beverages or for the preparation, solicitation of orders for sale, serving or
distribution of food or beverages at the Premises.
(19) REFUSE. Tenant shall place all refuse in proper receptacles
provided by Tenant at its expense in the Premises or in receptacles (if any)
provided by Landlord for the Building, and shall keep the lobbies, corridors,
stairwells, ducts and shafts of the Building free of all refuse.
(20) OBSTRUCTION. Tenant shall not obstruct or place anything in or on
the sidewalks or driveways of the Building Complex or in the lobbies, corridors,
stairwells or other common areas of the Building, or use such locations for any
purpose except ingress to and egress from the
Premises without Landlord's prior written consent. Landlord may remove, at
Tenant's expense, any such obstruction or thing (unauthorized by Landlord)
without notice or obligation to Tenant.
(21) DANGEROUS OR IMMORAL ACTIVITIES. Tenant shall not make any use of
the Premises which involves any danger of injury to any person, nor shall the
same be used for any immoral purpose.
(22) PROPER CONDUCT. Tenant shall not conduct itself in any manner
which is inconsistent with the character of the Building as a first quality
office building or which will impair the comfort and convenience of other
tenants in the Building.
(23) EMPLOYEES. AGENTS AND INVITEES. In these Rules and Regulations,
"Tenant" includes the employees, contractors, agents, invitees and licensees of
Tenant and others permitted by Tenant to use or occupy the Premises.
(24) DIRECTORY LISTINGS. Landlord shall provide Tenant, at Landlord's
expense, with a single listing of Tenant's name on the directory in the lobby of
the Building. At Tenant's request, Landlord shall provide Tenant with additional
listings on such directory at Tenant's expense; provided that unless there is a
computerized directory, Tenant shall be limited to the lesser of (i) its
proportionate share of the total number of spaces for listings on such directory
or (ii) the number of spaces then available on such directory.
(25) EXTERMINATION. If the Premises shall become infested with vermin,
Tenant, at its expense, shall cause the same to be exterminated as may be
required by contractors approved by Landlord.
XXXXXX AND COMPANY 0000 Xxxxxxxx Xxxxxx, #0000
Xxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
The printed portions of this form, except differentiated additions, have
been approved by the Colorado Real Estate Commission. (BD24-05-04)
DIFFERENT BROKERAGE RELATIONSHIPS ARE AVAILABLE WHICH INCLUDE
SELLER AGENCY, BUYER AGENCY, OR TRANSACTION-BROKERAGE.
BROKERAGE DISCLOSURE TO BUYER
DEFINITIONS OF WORKING RELATIONSHIPS
For purposes of this disclosure, seller also means "landlord" (which includes
sublandlord) and buyer also means "tenant" (which includes subtenant).
SELLER'S AGENT: A seller's agent (or listing agent) works solely on behalf of
the seller to promote the interests of the seller with the utmost good faith,
loyalty and fidelity. The agent negotiates on behalf of and acts as an advocate
for the seller. The seller's agent must disclose to potential buyers all adverse
material facts actually known by the seller's agent about the property. A
separate written listing agreement is required which sets forth the duties and
obligations of the broker and the seller.
BUYER'S AGENT. A buyer's agent works solely on behalf of the buyer to promote
the interests of the buyer with the utmost good faith, loyalty and fidelity. The
agent negotiates on behalf of and acts as an advocate for the buyer. The buyer's
agent must disclose to potential sellers all adverse material facts actually
known by the buyer's agent including the buyer's financial ability to perform
the terms of the transaction and if a residential property, whether the buyer
intends to occupy the property. A separate written buyer agency agreement is
required which sets forth the duties and obligations of the broker and the
buyer.
TRANSACTION-BROKER: A transaction-broker assists the buyer or seller or both
throughout a real estate transaction by performing terms of any written or oral
agreement, fully informing the parties, presenting all offers and assisting the
parties with any contracts, including the closing of the transaction, without
being an agent or advocate for any of the parties. A transaction-broker must use
reasonable skill and care in the performance of any oral or written agreement,
and must make the same disclosures as agents about all adverse material facts
actually known by the transaction-broker concerning a property or a buyer's
financial ability to perform the terms of a transaction and if a residential
property, whether the buyer intends to occupy the property. No written agreement
is required.
CUSTOMER: A customer is a party to a real estate transaction with whom the
broker has no brokerage relationship because such party has not engaged or
employed the broker, either as the party's agent or as the party's
transaction-broker.
RELATIONSHIP BETWEEN BROKER AND BUYER
The Broker and Buyer referenced below have NOT entered into buyer agency
agreement. The working relationship specified below is for a specific property
described as: 1000 X. XxXxxxxx or real estate which substantially meets the
following requirements:
CHECK ONE BOX ONLY:
[X] CUSTOMER: The Broker is the seller's agent and the Buyer is a customer.
[ ] CUSTOMER FOR BROKER'S LISTINGS-TRANSACTION-BROKER FOR OTHER PROPERTIES: When
the Broker is the seller's agent, the Buyer is a customer. When the Broker is
not the seller's agent, the Broker is a transaction-broker assisting in the
transaction.
[ ] TRANSACTION-BROKERAGE ONLY: The Broker is a transaction-broker assisting in
the transaction.
If the Broker is acting as a transaction-broker, Buyer consents to Broker's
disclosure of Buyer's confidential information to the supervising broker or
designee for the purpose of proper supervision, provided such supervising broker
or designee shall not further disclose such information without consent by
Buyer, or use such information to the detriment of Buyer.
THIS IS NOT A CONTRACT.
BUYER ACKNOWLEDGMENT:
The Buyer acknowledges that the Buyer has received this Brokerage Disclosure to
Buyer on 11-11-04.
/s/ signature
----------------------------------- -----------------------------------
Buyer Buyer
By By
----------------------------------- -----------------------------------
BROKER ACKNOWLEDGEMENT:
On 11/11/04, the Broker provided Orhonetx, Inc. (Buyer) with this Brokerage
Disclosure to Buyer at 1000 X. XxXxxxxx (location) and retained a copy for the
Broker's records.
Brokerage Firm's Name:
XXXXXX AND COMPANY
/s/ signature
-----------------------------------
Broker
COUNTRYSIDE ASSET MANAGEMENT CORPORATION
March 21, 2005
Xxxxx X. Xxxxx, M.D.
Orthonetx, Inc.
0000 Xx. XxXxxxxx Xxxxxxxxx, Xxxxx
000 Xxxxxxxx, XX 00000
Dear Xx. Xxxxx:
On March 17, 2005, the Superior Pointe office complex was sold to PBL
Investments of Ashevile, NC, an office building investment firm. Countryside
Asset Management Corporation, Xxxx Xxxxx, and I will continue to manage the
property.
As part of the sale, the lender, First National Bank of Colorado, is
asking that you sign the attached agreement and return it to them as follows:
Xxxxxx X. Xxxxxxxxxxxx, Vice
President Corporate Real Estate
First National Bank of Colorado
0000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Phone 000-000-0000
Your prompt attention to this matter will be appreciated. If you have any
questions, please give me a call.
Very truly yours,
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Asset Manager
JJM/kp
Enclosure
NONDISTURBANCE, ATTORNMENT, ESTOPPEL, AND SUBORDINATION AGREEMENT
Landlord and tenant have entered into the lease with respect to the premises.
The premises are part of the property. Lender has agreed to make the loan to
landlord and to accept the mortgage as security for repayment of the loan and
performance of landlord's obligations related to the loan. However, as a
condition to malting the loan, lender has required a subordination of the lease
to the mortgage. Tenant is willing to subordinate the lease to the mortgage so
long as tenant is assured that its possession of the premises will not be
disturbed. Accordingly, landlord, tenant, and lender agree that:
1. Definitions.
(a) Date: Xxxxx 00, 0000
(x) Landlord: PBL INVESTMENTS, LLC
(c) Tenant: ORTHONETX, INC.
(d) Lease: the Lease Agreement dated NOVEMBER 11, 2004, between Landlord
SUPERIOR POINTE LLC
and Tenant ORTHONETX, INC.
(e) Lender: First National Bank of Colorado, its successors and assigns,
and anyone else who succeeds to landlord's interest in the lease through
foreclosure (both judicial and power-of-sale), or deed in lieu of foreclosure.
(f) Loan: a loan by lender to landlord.
(g) Premises: the subject matter of the lease. Address 0000 XXXXX XXXXXXXX
XXXX, XXXXX 000, XXXXXXXX, XX 00000
(h) Property: the real property described in Exhibit A (Legal Description)
to this agreement.
(i) Mortgage: the Loan Agreement, Mortgage, Security Agreement, and
Assignment of Rents, all dated March 17, 2005, between landlord and lender, and
any extensions, modifications, renewals, substitutions, replacements, or
consolidations of any of them.
2. Nondisturbance. So long as no event of default under the lease has occurred,
lender will not disturb tenant's possession of the premises.
3. Attornment. If lender succeeds to landlord's interest in the lease, tenant
will be bound to lender according to the lease for the balance of the term of
the lease and any extension of the lease as if lender were the landlord under
the lease, and tenant will attorn to lender as its landlord, immediately upon
lender's succeeding to the interest of landlord under the lease; however, tenant
will not be obligated to pay rent to lender until tenant receives written notice
from lender that it has succeeded to the interest of landlord in the lease.
Subject to paragraph 4, upon such attornment the rights and obligations of
tenant and lender will be the same as they would have been if lender had been
landlord under the lease.
4. Subordination. Subject to the terms of this agreement, the lease now is, and
will be, subject and subordinate to the mortgage.
5. Estoppel. Landlord and tenant certify to lender that:
(a) the lease is in effect and unmodified;
(b) the term of the lease will continence or did continence on, Date
NOVEMBER 11, 2004, or within sixty (60) days after tenant's receipt of a written
notice from landlord advising that the premises have been substantially
completed, whichever occurs later, and full rental will then accrue or is now
accruing under the lease;
(c) all conditions required under the lease that could have been satisfied
as of the date have been met;
(d) no rent under the lease has been paid more than thirty (30) days in
advance of its due date;
(e) no default exists under the lease;
(f) tenant, as of the date, has no charge, lien, or claim of offset under
the lease or otherwise, against rents or other charges due to become due under
the lease;
6. Curing Defaults; Landlord's Termination. If landlord fails to perform any of
its obligations under the lease, tenant will give written notice of the failure
to lender and lender will have the right (but not the obligation) to cure such
failure.
7. Counterparts. This agreement may be executed in several counterparts and,
when executed by landlord, tenant, and lender, will constitute one agreement,
binding upon them, even though they are not signatories to the original or the
same counterpart.
8. Notices. All notices under this agreement will be in writing and will be
considered properly given if mailed by first-class United States mail, postage
prepaid, registered or certified with return receipt requested, or if personally
delivered to the intended addressee, or by prepaid telegram. Notice by mail will
be effective two (2) days after deposit in the United States mail. Notice given
in any other manner will be effective when received by the addressee. For
purposes of notices, the addresses of landlord, tenant, and lender are:
Landlord: PBL INVESTMENTS, LLC, 0 XXXXX XXXX XXXX XXXXXX, XXXXX 000, XXXXXXXX,
XX 00000
Tenant: ORTHONETX, INC., 0000 XXXXX XXXXXXXX XXXX, XXXXX 000, XXXXXXXX, XX 00000
Lender: First National Bank of Colorado, Attn: Real Estate Dept, 0000 Xxxx Xxx,
Xxxxxxx, XX 00000
Any of them may change its dress for notice to any other location within the
continental United States by the giving of thirty (30) days' notice in the
manner set forth in this paragraph.
/s/ signature 3-23-05
--------------------------------------------
TENANT DATE
/s/ signature 3-17-05
--------------------------------------------
LANDLORD: DATE
--------------------------------------------
LENDER: DATE
EXHIBIT A
LEGAL DESCRIPTION
PARCEL A:
XXX 0,
XXXXXXXX XXXX XXXXXX XXXX, XXXXXXXXX TO THE PLAT RECORDED SEPTEMBER 2, 1998 AT
RECEPTION NO. 1843535 IN PLANFILE X-00, X-0, #00, XXXXXX XX XXXXXXX, XXXXX OF
COLORADO
AND
A NON-EXCLUSIVE PERPETUAL EASEMENT FOR VEHICULAR PARKING AND PEDESTRIAN AND
VEHICULAR ACCESS, INGRESS AND EGRESS OVER XXX 0, XXXXXXXX XXXX XXXXXX XXXX,
XXXXXXXXX TO THE PLAT RECORDED SEPTEMBER 2, 1998 AT RECEPTION NO. 1843535 IN
PLANFILE X-00, X-0, #00, XXXXXX XX XXXXXXX, XXXXX OF COLORADO, AS SET FORTH AND
DESCRIBED IN DECLARATION OF RECIPROCAL EASEMENTS AND MAINTENANCE OBLIGATIONS
RECORDED SEPTEMBER 2, 1998 AT RECEPTION NO. 1843536.
PARCEL B:
XXX 0,
XXXXXXXX XXXX XXXXXX XXXX, XXXXXXXXX TO THE PLAT RECORDED SEPTEMBER 2, 1998 AT
RECEPTION NO. 1843535 IN PLANFILE X-00, X-0, #00, XXXXXX XX XXXXXXX, XXXXX OF
COLORADO.
AND
A NON- EXCLUSIVE PERPETUAL EASEMENT FOR VEHICULAR PARKING AND PEDESTRIAN AND
VEHICULAR ACCESS, INGRESS AND EGRESS OVER XXX 0, XXXXXXXX XXXX XXXXXX XXXX,
XXXXXXXXX TO THE PLAT RECORDED SEPTEMBER 2, 1998 AT RECEPTION NO. 1843535 IN
PLANFILE X-00, X-0, #00, XXXXXX XX XXXXXXX, XXXXX OF COLORADO, AS SET FORTH AND
DESCRIBED IN DECLARATION OF RECIPROCAL EASEMENTS AND MAINTENANCE OBLIGATIONS
RECORDED SEPTEMBER 2, 1998 AT RECEPTION NO. 1843536.
