EXHIBIT 10.1
LEASE DATED FEBRUARY 5, 1999
THE ATRIUM OFFICE LEASE
THIS LEASE is made as of the 5TH day of FEBRUARY, 1999, by and between
Landlord and Tenant, upon the following terms and conditions:
SECTION 1. BASIC LEASE PROVISIONS.
These Basic Lease Provisions set forth the basic terms of this
Lease. In the event of any inconsistency between the terms set forth in these
Provisions and any other provision of this Lease, the Basic Lease Provisions
shall prevail.
1.1 TENANT:
Name and Address of Tenant: Xxxxxxx.xxx, Inc
000 X. Xxxxxx Xxxxx #000
Xxx Xxxxx, XX 00000
Telephone: 000-000-0000
1.2 LANDLORD:
Name and Address of Landlord: L.V. Atrium, Inc.
C/O Imperial Credit Commercial
Mortgage
Investment Corp.
00000 Xxxxxxxx Xxxxxxxxx,
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
1.3 PREMISES: Xxxxx 000, 000 Xxxxx Xxxxxx Xxxx, Xxx Xxxxx, XX, as shown
on EXHIBIT A.
Premises Area: 8057 sq. ft.
Building Area: 138,230 sq. ft.
Tenant's Proportionate Share: 5.83%
1.4 TERM: 4 Lease Years and 0 months
Expiration Date: March 31, 2003
Commencement Date: April 1, 1999
Options to Extend: Not applicable
1.5 BASE RENT: For the period from April 1, 1999 through and including
March 31, 2000 Base Rent shall be $13,294.05 per month;
For the period from April 1, 2000 through and including March
31, 2001, Base Rent shall be $13,696.90 per month;
For the period from April 1, 2001 through and including March
31, 2002, Base Rent shall be $14,099.75 per month;
For the period from April 1, 2002 through and including March
31, 2003, Base Rent shall be $14,502.60 per month;
Adjustments: SEE ADDENDUM
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1.6 SECURITY DEPOSIT: $23,294.05
If (a) between the date hereof and March 15, 2001 all rent and
other amounts due to Landlord pursuant to the terms of this Lease shall have
been paid on or before the due date therefor and in full, and in addition
thereto (b) on or before Xxxxx 0, 0000 Xxxxxx shall have paid to Landlord an
amount equal to the installment of base rent due and payable on March 1, 2001
reduced by the amount to be applied to that installment from the Security
Deposit pursuant to this sentence, $10,000 of the Security Deposit then held by
Landlord (or if the amount of the Security Deposit then held by Landlord and not
otherwise applied is less than $10,000, the entire unapplied amount of the
Security Deposit then held by Landlord) shall be applied toward the installment
of base rent due and payable on March 1, 2001.
1.7 BASE YEAR: 1999
1.8 PERMITTED USE: For general office use for an internet sales and
marketing company, and for no other use or purpose.
1.9 BROKER(S): First City Corporation Xxxxx Xxxxxxx - Landlord's
Representative
1.10 GUARANTOR(S): N/A
1.11 DEFINITIONS: All capitalized terms used in this Lease shall have
the meanings specified in this SECTION 1 or in SECTION 43 or in any Addendum to
this Lease.
1.12 EXHIBITS: The following Exhibits are attached to this Lease and
incorporated herein by this reference:
EXHIBIT A - Floor Plan(s) showing the location of the Premises
EXHIBIT B - Statement of Commencement Date
EXHIBIT C - Work Letter
EXHIBIT D - Rules and Regulations for the Project
EXHIBIT E - Form of Guaranty
1.13 PARKING. Tenant shall have two reserved parking stalls in the
Parking Facilities, each of which stalls shall be in a location designated by
Landlord from time to time.
1.14 ADDENDUM ATTACHED: X Yes No
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SECTION 2. LEASE OF PREMISES.
2.1 LEASE TO TENANT. Landlord hereby leases the Premises to Tenant, and
Tenant hereby leases the Premises from Landlord, for the Term, subject to the
other provisions of this Lease. Landlord and Tenant agree on the area of the
Premises and the Project set forth in the Basic Lease Provisions, and no
remeasurement shall result in any increase or decrease in Base Rent or other
Rent; provided, however, that Landlord shall remeasure the Premises in
accordance with Building Owners and Managers Association standards or other
appropriate standards as determined by Landlord and, if such remeasurement
discloses that the actual square footage of the Premises, as so remeasured,
exceeds or is less than the square footage reflected in Section 1.3, above, by
an amount that is more than 5% of the square footage reflected in said in
Section 1.3, above, the Base Rent and other amounts payable pursuant to this
Lease shall be proportionally adjusted to reflect the actual square footage of
the Premises. If the actual square footage of the Premises, as so remeasured, is
5% or less of the square footage reflected in said Section 1.3, above, the
variance between the square footage reflected in said in Section 1.3, above and
the actual square footage of the Premises shall be deemed immaterial, and there
shall be no adjustment to the Base Rent and other amounts payable as set forth
in this Lease.
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2.2 COMMON AREAS. Tenant shall have the nonexclusive right to use the
Common Areas, subject to the Rules and Regulations. Tenant's rights are subject
to Landlord's right to make changes to the Common Areas or the use of such
Common Areas which Landlord deems reasonable, perform maintenance and repairs
and otherwise use the Common Areas as Landlord may deem appropriate in its
reasonable judgment. Landlord shall not be obligated to light the Common Areas
outside the hours specified in the Rules and Regulations.
2.3 TITLE. Tenant's leasehold estate in the Premises under this Lease
is subject to: (a) the Matters of Record; and (b) the effect of any and all Laws
applicable to the use and occupancy of the Premises.
2.4 ACCEPTANCE OF PREMISES; PROJECT. Tenant accepts the Premises, the
Common Areas and Project as satisfactorily completed and acknowledges that the
Premises and the Project are in good and satisfactory condition as of the time
when possession is taken.
2.5 DELIVERY OF POSSESSION. Landlord shall deliver to Tenant possession
of the Premises upon the Commencement Date, free and clear of all other tenants
and occupancies. Landlord shall not be liable for any delay in delivery of
possession of the Premises, but the Commencement Date and the Expiration Date
shall be extended by the same number of days of delay. Landlord makes no
representation or warranty with respect to the occupancy by any tenant or
occupant (whether a major tenant or occupant, a small shop tenant or occupant,
or the tenant or occupant of any pad or lot within the Project), the date on
which any such tenant or occupant accepted or will accept occupancy of its space
or use to which any other tenant or occupant will put its leased space.
2.6 QUIET POSSESSION. Upon paying all Rent and performing all other
required covenants and conditions, Tenant shall be entitled to quietly have,
hold, and enjoy the Premises during the Term, subject to Landlord's rights under
this Lease.
2.7 USE OF PREMISES. Tenant and Tenant's Employees shall use the
Premises solely for the uses specified in the Basic Lease Provisions and Tenant
shall, at is sole cost and expense, faithfully observe and promptly comply and
cause the Premises to comply with all Rules and Regulations, signage criteria
and any Laws or Matters of Record now in force or which may hereafter be in
force with respect to Tenant's use, occupancy and possession of the Premises.
Tenant shall at all times keep the Premises in a clean and wholesome condition,
and shall further comply with all requirements of any board of fire underwriters
or other similar body now or hereafter constituted. In no event shall Landlord
be liable to Tenant for any damage or claims suffered or incurred as a result of
the failure of Tenant, or any other Person (other than Landlord) to conform to
the foregoing.
2.8 CHANGES TO PROJECT. Landlord reserves the right, in its sole
discretion, at any time to make permanent or temporary changes or replacements
to the Project, including but not limited to the Common Areas, so long as such
change or replacement does not materially and adversely affect Tenant's use of
the Premises for the conduct of its business. Landlord's activities may require
the temporary alteration of means of ingress and egress to the Project and the
installation of scaffolding and other temporary structures while the work is in
progress. None of the same shall be considered to be a constructive eviction of
Tenant from the Premises, or give Tenant any right to rent abatement or
otherwise alter the rights or obligations (including Rent) of Tenant under this
Lease.
2.9 NAME OF PROJECT. Landlord may change the name and/or the address of
the Project at its sole discretion.
2.10 RELOCATION OF PREMISES. Landlord shall have the right at any time,
upon at least 90 days' written notice to Tenant, to relocate Tenant at
Landlord's cost to other comparable premises in the Project ("RELOCATED
PREMISES").
SECTION 3. RENT.
3.1 PAYMENT OF BASE RENT. Tenant shall pay to Landlord the Base Rent
specified in SECTION 1.5 (adjusted as provided below), in advance on or before
the first day of each calendar month during the Term without demand, deduction
or setoff.
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3.2 PAYMENT OF ADDITIONAL RENT. In addition to the Base Rent, Tenant
shall pay as Additional Rent:
3.2.1 All personal property taxes assessed against and levied
upon any Personal Property and Tenant Alterations (including a satellite dish,
if any, that may be installed on the roof of the Building by or on behalf of
Tenant, as contemplated by Section 49 of this Lease) prior to delinquency.
3.2.2 Tenant's Proportionate Share of the Excess Expense (as
hereinafter defined) incurred during the Term, payable in accordance with
SECTION 3.3.
3.2.3 All additional charges for any services, goods or
materials furnished by Landlord at Tenant's request or relating to Tenant's
specific use of the Premises.
3.2.4 All other sums payable by Tenant hereunder.
3.3 PAYMENT OF OPERATING COSTS. In addition to the Base Rent,
commencing on the first day of each calendar month during the Term, Tenant shall
pay in monthly installments an amount equal to Tenant's Proportionate Share of
the excess of Direct Expenses for such year over the Direct Expenses for the
Base Year (the "EXCESS EXPENSE") in accordance with the following provisions:
3.3.1 Following the end of each calendar year, Landlord shall
deliver to Tenant a good faith estimate of the Excess Expenses for the next
calendar year (the "EXCESS EXPENSE ESTIMATE"). The Excess Expense Estimate shall
show the amount previously paid by Tenant for Excess Expenses for the previous
calendar year. In addition to the Base Rent provided for in SECTION 3.1, above,
on the first day of each calendar month during each calendar year, Tenant shall
pay one-twelfth (1/12th) of the Excess Expense Estimate for said calendar year.
3.3.2 Landlord may periodically revise the Excess Expense
Estimate to reflect changed circumstances, and Tenant shall make subsequent
payments for Direct Expenses based upon the revised Excess Expense Estimate.
3.3.3 After each calendar year in the Term, Landlord shall
deliver to Tenant a statement of the actual Excess Expenses (the "ANNUAL
STATEMENT"). The Annual Statement shall state the amount by which Tenant has
underpaid or overpaid Tenant's Proportionate Share of the Excess Expenses.
Tenant shall pay any deficiency to Landlord within 30 days after receipt of the
Annual Statement. The amount of any overpayment shall be refunded to Tenant or
credited against Rent next coming due.
3.3.4 Tenant shall have 30 days after delivery of the Annual
Statement to object in writing to the accuracy of the statement. If Tenant does
not make its written objection within that period, the Annual Statement shall be
binding upon Tenant. Whether or not Tenant objects to the Annual Statement,
Tenant shall pay any amount required by such Statement within the 30 day period.
3.3.5 In the event Landlord elects to rehabilitate the
Project, excluding any construction of additional leasable space, the costs of
such rehabilitation shall be shared by Tenant as an Operating Cost; provided,
however, such rehabilitation costs shall be amortized over the useful life of
the rehabilitation [not to exceed fifteen (15) years] using the interest rate
actually charged by the actual rehabilitation lender as arranged by Landlord.
3.3.6 Even though the Term has expired or this Lease has been
terminated and Tenant has vacated the Premises, when the final determination is
made of Tenant's Proportionate Share of Excess Expenses pursuant to this SECTION
3.3 for the year in which the Term expires or this Lease terminates, Tenant
shall promptly pay any amount due over the estimated amount of the same
previously paid by Tenant for such year, and conversely, any overpayment made
shall be promptly refunded by Landlord to Tenant; provided however, that all or
any part of any such refund may be applied by Landlord in payment of any
delinquent or past due sums, including Base Rent or any other amounts due from
Tenant.
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3.4 ANNUAL BASE RENT ADJUSTMENT. BASE RENT SHALL BE ADJUSTED PER
SECTION 1.5 OF THE LEASE. The Base Rent for the second Lease Year, and each
Lease Year thereafter, shall be an amount equal to the Base Rent in effect for
the preceding Lease Year multiplied by a fraction, equal to the Index for the
month which is 3 months prior to the beginning of the Lease Year for which Base
Rent is being determined, divided by the Index for the same month in the
preceding year. In no event, however, shall the Base Rent for the second Lease
Year and each Lease Year thereafter be less than the Base Rent in effect
immediately prior to each such Lease Year.
3.5 SECURITY DEPOSIT. Concurrently with the execution of this Lease,
Tenant shall deposit with Landlord the Security Deposit. Landlord shall not be
required to pay interest on the Security Deposit or keep the Security Deposit
separate from its general funds. Upon any Default by Tenant, Landlord may use
the Security Deposit to the extent necessary to make good any arrears of sums
payable by Tenant under this Lease, or to compensate Landlord for any damage,
injury, expense or liability caused by Tenant's Default. If any portion of the
Security Deposit is so used or applied, Tenant shall, within five (5) days after
written demand therefor, deposit a certified or bank cashier's check with
Landlord in an amount sufficient to restore the Security Deposit to its amount
immediately preceding such use or application of funds and Tenant's failure to
do so shall be a Default under this Lease. The balance of the Security Deposit
remaining at the end of the Lease Term shall be returned after all of Tenant's
obligations have been fulfilled. If Landlord transfers its interest in the
Premises during the Lease Term, Landlord may assign the Security Deposit to the
transferee and thereafter Landlord shall have no further liability for the
return of such Security Deposit. Tenant agrees to look solely to such transferee
or assignee for the return of the Security Deposit; PROVIDED, HOWEVER, that if
such transferee or assignee is a foreclosing lender or a third party purchaser
at a judicial or non-judicial foreclosure sale (or transfer by deed in lieu
thereof), such transferee or assignee (and its successors and assigns) shall be
obligated to return the Security Deposit to Tenant if and only if it has
actually received the same from Landlord. Landlord and its successors and
assigns shall not be bound by any actual or attempted assignment or encumbrance
of the Security Deposit by Tenant; provided, however, if Tenant's interest in
this Lease has been assigned, Landord shall, provided that Landlord has been
furnished with a fully executed copy of the agreement assigning such Security
Deposit, return the Security Deposit to such assignee in accordance with the
terms and conditions hereof. If Landlord returns the Security Deposit to
Tenant's assignee as aforesaid, Landlord will have no further obligation to
Tenant or any other party with respect thereto.
3.6 LATE CHARGES. Tenant hereby acknowledges that late payment by
Tenant to Landlord of rent or other sums due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult, if not impossible, to ascertain. Such costs include, but
are not limited to, processing and accounting charges, and late charges which
may be imposed upon Landlord by the terms of any mortgage or trust deed covering
the Premises. Accordingly, if any installment of rent or any sum due from Tenant
shall not be received by Landlord or Landlord's designee within five (5) days
after said amount is past due, then, in addition to all other remedies provided
herein, Tenant shall pay to Landlord a late charge equal to the greater of (i)
ten (10%) percent of such overdue amount (but in no event greater than the
maximum amount permitted by law), or (ii) a service charge equal to the sum of
$50.00 plus $10.00 per day for each day after the due date for which Tenant's
failure to pay continues, plus, in either event, all attorneys' fees incurred by
Landlord by reason of Tenant's failure to pay rent and/or other charges when due
hereunder. The parties hereby agree that such late charges represent a fair and
reasonable estimate of the cost that Landlord will incur by reason of the late
payment by Tenant, and that it does not constitute a forfeiture or penalty.
Acceptance of such late charges by Landlord shall in no event constitute a
waiver of Tenant's default with respect to such overdue amount, nor prevent
Landlord from exercising any of the other rights and remedies granted hereunder.
Landlord may, at its option, include all late charges accrued during any
calendar year in the estimated charges to be paid by Tenant for the ensuing
year, and may deduct all late charges from the security deposit, if any, being
maintained in accordance with SECTIONS 1.6 AND 3.5.
SECTION 4. ALTERATION AND IMPROVEMENTS.
4.1 ALTERATIONS BY TENANT. At its sole cost and expense, Tenant shall
have the right to make Tenant Alterations which have received Landlord's prior
written approval (which will not be unreasonably withheld), so long as each of
the following conditions is met:
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4.1.1 The proposed Tenant Alterations are:
(i) Are normal for general office use and will not
adversely affect the utility of the Premises for future tenants;
(ii) Will not alter the exterior appearance of the
Project;
(iii) Will not of a structural nature and will not
weaken or impair the structural strength of the Project; and
(iv) Will not adversely affect or increase demands on
any of the mechanical, electrical, sanitary, or other Systems and Equipment;
4.1.2 Landlord shall have approved complete construction
drawings and specifications for the proposed Tenant Alterations. Any change must
be approved by Landlord.
4.1.3 Landlord shall have approved of Tenant's contractor,
such approval to be granted or withheld in Landlord's absolute discretion;
4.1.4 Landlord shall have been furnished with original
certificates of insurance from a company approved by Landlord, showing Landlord
as an additional insured on public liability, automobile liability, property
damage, and worker's compensation policies, with such limits as Landlord may
reasonably require; and
4.1.5 Landlord shall have been furnished with copies of all
building and/or other applicable permits or licenses required for the
prosecution of the work.
4.2 WORK DONE BY TENANT. Any Tenant Alterations shall comply with the
following:
4.2.1 All work shall be in compliance with all Laws. Any work
not acceptable to any governmental authority or agency having jurisdiction over
such work or not reasonably satisfactory to Landlord shall be promptly corrected
by Tenant at Tenant's expense.
4.2.2 Tenant and Tenant's Employees shall not install
plumbing, mechanical, electrical wiring or fixtures, ceilings, partitions, or
other alterations which, in Landlord's judgment, may adversely affect any of the
Project systems or their performance (including, but not limited to, the
heating, ventilating and air-conditioning systems).
4.2.3 All work by Tenant and Tenant's Employees shall be
performed diligently until completed and pursuant to any scheduling requirements
imposed by Landlord.
4.3 NO LIABILITY OF LANDLORD. Landlord shall have no liability for any
faulty work or defect regardless of Landlord's approval of Tenant Alterations or
plans and specifications.
4.4 REIMBURSEMENT TO LANDLORD. Tenant shall reimburse Landlord for any
expense incurred by Landlord in approving the plans and specifications for
Tenant Alterations and in reviewing the progress of their construction, and any
expense incurred by Landlord by reason of faulty work or inadequate cleanup.
4.5 PROPERTY OF LANDLORD. All Tenant Alterations shall remain in the
Premises at the expiration or earlier termination of the Term, and shall become
the property of Landlord, without any compensation to Tenant. At Landlord's
written election, Tenant shall remove all of such items from the Premises and
Tenant shall repair any damage caused by the removal.
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4.6 NOTICE OF WORK COMMENCEMENT. Before commencing any work with
respect to the Tenant Alterations, Tenant shall notify Landlord in writing not
less than 5, nor more than 10, business days prior to the date such work
commences. Landlord shall have the right to post all appropriate notices of
non-responsibility.
4.7 MECHANICS' LIENS. Tenant shall pay for all labor and materials
supplied to the Premises for Tenant. Tenant shall not permit any mechanics' or
similar liens to be filed against the Land or the Project, or against Tenant's
leasehold interest in the Premises.
4.8 COMPLETION BOND. Landlord may require Tenant, at Tenant's sole
cost, to obtain and provide to Landlord a lien and completion bond in a form and
by a surety acceptable to Landlord, and in amount no less than 1 and 1/2 times
the estimated cost of such Tenant Alterations.
SECTION 5. REPAIR AND MAINTENANCE.
5.1 TENANT'S OBLIGATIONS. Tenant shall keep the Premises, excepting
only structural portions thereof, and all signs installed by Tenant in good
condition and repair, whether or not the need for such repairs occurs as a
result of Tenant's use, any prior use, the elements or the age of such portion
of the Premises. Without limiting the generality of the foregoing, Tenant shall
maintain at its expense any and all plumbing, HVAC, alarm, fire/life/safety and
electrical systems, fixtures and equipment located within the Premises or
serving only the Premises, in good order, condition and repair in a manner
satisfactory to Landlord in its reasonable business judgment. In addition, all
damage to the Premises or the Project caused by Tenant or Tenant's Employees, or
the failure of Tenant or Tenant's Employees to comply with this Lease and the
Rules and Regulations, shall be promptly repaired by Tenant at Tenant's expense.
Landlord may make any repairs that are not promptly made by Tenant and charge
Tenant for the cost thereof, together with interest thereon at the Default Rate.
Tenant waives all rights to make repairs to the Premises at the expense of
Landlord, or to deduct the cost thereof from Rent. Upon the expiration or
earlier termination of this Lease, Tenant shall surrender the Premises and all
alterations, additions and improvements in the same condition as when received,
ordinary wear and tear excepted.
5.2 LANDLORD'S OBLIGATIONS. Landlord shall maintain and repair the
Systems and Equipment, the Common Areas, and the structural elements of the
Project, except that Landlord shall not be responsible to repair any damage or
wear and tear which is the result of the negligence or willful misconduct of
Tenant or Tenant's Employees. In no event shall Landlord have any liability for
interruption or interference in Tenant's business, or for any other damages
(whether direct or consequential), nor shall Rent be abated, on account of
Landlord's failure to make repairs or on account of Landlord's performance of
its maintenance and repair obligations under this Section 5.2.
SECTION 6. BUILDING SERVICES.
6.1 PROVISION BY LANDLORD. Landlord shall furnish the Premises with the
following Basic Services, provided Landlord reserves the right to adopt such
reasonable non-discriminatory modifications and additions hereto as it deems
appropriate.
6.1.1 As long as Tenant is not in default under any of the
terms, covenants, conditions, provisions or agreements of the Lease, Landlord
shall, subject to limitations and provisions hereinafter set forth in this
SECTION 6.1:
(a) Provide automatic elevator facilities on Monday
through Friday from 8:00 a.m. to 6:00 p.m., excepting state and federal
holidays, and have one automatic elevator available at all other times.
(b) Provide to the Premises, during the times
specified in SECTION 6.1.1(A) hereof (and at other times for an additional
charge to be fixed from time to time by Landlord), heating, ventilation, and
air conditioning ("HVAC") as is necessary in Landlord's judgment for the
comfortable occupancy of Premises for general office purposes, subject to any
energy conservation or other regulations which may be applicable from time
to time. Landlord shall not be responsible for maintaining comfortable room
temperatures if Tenant's lighting and receptacle
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loads exceed those listed in SECTION 6.1.1(C) hereof, or if the Premises contain
other heat generating equipment in excess of those normally found in space used
for, or are used for other than, general office purposes.
(c) Furnish to the Premises, during the times
specified in SECTION 6.1.1(A) hereof, electric current for routine lighting and
the operation of general office machines such as typewriters, dictating
equipment, desk model adding machines, and the like, which use 110 volt electric
power, which lighting shall not exceed the capacity of Building standard office
lighting and receptacles. In no event shall the total electrical requirement for
the Premises exceed 3 xxxxx per square foot of usable area, nor shall it exceed
any limits imposed by any governmental or quasi-governmental authority. Tenant
agrees, should its electrical installation or electrical consumption be in
excess of the foregoing use or extend beyond the times specified in SECTION
6.1.1(A), to reimburse Landlord for the cost of such utilities. In such event,
Landlord may install, at Tenant's expense, any necessary meters for measuring
Tenant's utility consumption.
(d) Furnish water for drinking fountains and
restrooms provided by Landlord; but if Tenant requires, uses or consumes water
for any purpose in addition to ordinary drinking and restroom purposes, Landlord
may install, at Tenant's cost, a water meter and thereby measure Tenant's water
consumption for all purposes, and Tenant shall pay for such water usage at
Landlord's standard charge for such service.
(e) Provide janitorial services to the Premises,
Monday through Friday (except Holidays), such services to be consistent with
janitorial services provided by landlords of similar office buildings in the
vicinity of the Building, provided that the Premises are used exclusively as
offices and are kept reasonably in order by Tenant. Notwithstanding the
foregoing, if the Premises are not used exclusively as offices, or if any Tenant
Alterations require janitorial services in excess or such standard janitorial
services as provided by Landlord, Tenant shall employ such persons as approved
by Landlord to perform such additional janitorial services at Tenant's expense
and to the satisfaction of Landlord. In the alternative, and at Landlord's sole
option, Landlord may provide such additional janitorial services and Tenant
shall promptly reimburse Landlord for the cost and expense of such additional
janitorial services immediately upon receipt of any invoice for such services by
Landlord. Tenant shall pay to Landlord the cost of removal of any of Tenant's
refuse and rubbish, to the extent that the same exceeds the refuse and rubbish
usually attendant upon the use of the Premises for general office purposes.
6.1.2 No electrical equipment, air conditioning or heating units, or
plumbing additions shall be installed, nor shall any changes to the Building's
HVAC, electrical or plumbing systems be made without prior written approval of
Landlord, which consent shall be subject to Landlord's sole and absolute
discretion. Landlord reserves the right to designate and/or approve the
contractor to be used. Any permitted installations shall be made under
Landlord's supervision, Tenant shall pay any additional cost on account of any
increased support to the floor load or additional equipment required for such
installations, and such installations shall otherwise be made in accordance with
SECTION 4 of the Lease.
6.1.3 Landlord shall not provide reception outlets or television or
radio antennas for television or radio broadcast reception, and Tenant shall not
install any such equipment without prior written approval from Landlord, which
approval may be withheld in Landlord's sole discretion.
6.1.4 Tenant will not, without prior written consent of Landlord, use
any apparatus, machine or device in the Premises, including, without limitation,
duplicating machines, computers and machines using current in excess of 110
volts, which will in any way increase the amount of electricity or water
required to be furnished or supplied for use of the Premises in excess of that
which would be required for use of the Premises as general office space as of
the date of the Lease, nor connect with electric current, except through
existing electrical outlets in the Premises, any apparatus or device for the
purpose of using electric current in excess of that now usually furnished or
supplied for use of the Premises as general office space.
6.1.5 Tenant agrees to cooperate fully at all times with Landlord, and
to abide by all regulations and requirements which Landlord may prescribe for
the proper functioning and protection of the Building's HVAC, electrical and
plumbing systems. Tenant shall comply with all Laws in connection with building
services furnished to the
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Premises, including, without limitation, any governmental rule or regulation
relating to the heating and cooling of the Building.
6.1.6 Landlord reserves the right to reduce, interrupt or cease
services of the HVAC, elevator, plumbing, and electric systems, when necessary,
by reason of accident, emergency or governmental regulations, or for repairs,
additions, alterations or improvements to the Premises or the Building until the
repairs, additions, alterations or improvements shall have been completed, and
shall further have no responsibility or liability for failure to supply elevator
facilities, plumbing, ventilating, air conditioning, or utility services, when
prevented from so doing by strike, lockout or accident, or by any cause whatever
beyond Landlord's reasonable control, or by any Laws, labor trouble or any other
cause whatsoever, or failure of gas, oil or other suitable fuel supply or
inability by exercise of reasonable diligence to obtain gas, oil or other
suitable fuel. It is expressly understood and agreed that any covenants,
conditions, provisions or agreements in the Lease, or performance of any act or
thing for the benefit of Tenant, shall not be deemed breached if Landlord is
unable to furnish or perform the same by virtue of a strike, labor dispute,
lockout, any applicable Laws, accident, breakage, or repairs, or any other cause
whatever beyond Landlord's reasonable control, or where reasonable efforts are
made to restore service, nor shall Rent be abated in any manner whatsoever by
such failure of services.
6.1.7 With respect to any meter installed as contemplated in SECTIONS
6.1.1(C) or (D) hereof, Tenant shall keep the meter and installation equipment
in good working order and repair at Tenant's own cost and expense, in default of
which Landlord may cause the meter and equipment to be replaced or repaired and
collect the cost thereof from Tenant. Tenant agrees to pay for utilities
consumed as shown by the meter, as and when xxxxxxxx therefor are rendered, and
in the event of Tenant's default in making such payment, Landlord may pay the
charges and collect the same from Tenant as Additional Rent.
6.2 ADDITIONAL SERVICES. Should Tenant require Additional Services,
Tenant agrees to pay on demand, as Additional Rent, the expense of all
Additional Services, and Landlord shall be entitled to impose and collect
charges for Additional Services. Landlord may cause a switch and metering system
to be installed at Tenant's expense to measure the amount of utility services
consumed. The cost of any such meters and of their installation, maintenance,
repair and replacement shall be paid by Tenant.
6.3 INTERRUPTION. No interruption or malfunction of any Basic Services
or Additional Services shall constitute an eviction or disturbance of Tenant's
use and possession of the Premises or a breach by Landlord of any of its
obligations hereunder, nor render Landlord liable for damages or entitle Tenant
to be relieved from any of its obligations under this Lease, specifically
including, but not limited to, Tenant's obligation to pay Rent. In the event of
any such interruption, however, Landlord shall use reasonable diligence to
restore such service.
SECTION 7. ASSIGNMENT AND SUBLETTING.
7.1 RESTRICTION ON ASSIGNMENT AND SUBLETTING. Tenant shall not make any
Transfer without obtaining Landlord's written approval. Tenant shall provide
Landlord with prior written notice ("TRANSFER NOTICE") of the proposed Transfer,
containing the items specified in SECTION 7.2 below. Any such attempted Transfer
without the approval of the Landlord shall be null and void and of no effect and
shall constitute an incurable Default.
7.2 DOCUMENTATION REQUIRED. The Transfer Notice shall be accompanied by
each of the following:
7.2.1 A copy of all proposed Transfer Documents.
7.2.2 A statement setting forth the name, address and
telephone number of the Transferee, and all principal owners of the Transferee.
7.2.3 Current financial information regarding the proposed
Transferee, including a statement of financial condition.
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7.2.4 For any sublease, a description of the portion of the
Premises to be sublet.
7.3 PARTNERSHIP TENANT. If Tenant is a partnership, a dissolution of
the partnership or a change in ownership of 50% or more of the voting or equity
interests in the partnership, or in any tier of the partnership (including the
admission of new partners or withdrawal of existing partners having a
controlling interest) as of the sate of this Lease, shall be deemed a Transfer,
regardless of whether the Transfer is made by one or more transactions, or
whether one or more persons hold the controlling interest prior or subsequent to
the Transfer.
7.4 MERGER. The transfer of any of Tenant's stock pursuant to merger or
consolidation shall not be deemed to be a Transfer provided that Tenant is not
released from any of its obligations under this Lease.
7.5 REASONABLE DISAPPROVAL. Landlord shall not be deemed to have
unreasonably withheld approval a Transfer if consent to such Transfer is
conditioned on any of the following grounds:
7.5.1 The business of the proposed Transferee and its use of
the Premises shall not conflict with any exclusive use granted to any other
tenant of the Project.
7.5.2 The proposed Transferee must be reputable and of good
character with a net worth sufficiently large and liquid for the proposed
Transferee to meet its obligations.
7.5.3 The subtenant or assignee must assume Tenant's
obligations (other than Base Rent) under the Lease relating to the portion of
the Premises transferred.
7.5.4 The proposed Transferee shall not be a governmental
entity or agency.
7.5.5 There does not then exist any default by Tenant under
this Lease or any non-payment or non-performance by Tenant under this Lease
which, with the passage of time and/or the giving of notice, would constitute a
Default.
7.5.6 The proposed Transferee is not a tenant in the Building
nor has it negotiated with Landlord for a lease of space within the Building for
a period of one year.
7.6 CONTINUING OBLIGATIONS.
7.6.1 Notwithstanding any Transfer, Tenant shall remain fully
liable for the performance of all obligations contained in this Lease. Any act
or omission of a Transferee that violates any Lease obligations shall be a
Default by Tenant.
7.6.2 Landlord shall have the right to approve the terms of
each Transfer authorized by Landlord.
7.7 RECAPTURE. Notwithstanding anything to the contrary contained in
this SECTION 7, Landlord may elect to terminate this Lease as to the portion of
the Premises sought to be subject to the Transfer, except that this Lease shall
terminate only for the term contemplated by the proposed Transfer if the
Transfer would be for a period ending more than one year before the end of the
Term.
7.8 TRANSFER PREMIUM. Landlord shall be entitled to receive as
Additional Rent all revenue from the Transfer in excess of the amounts payable
under this Lease for the space subject to Transfer, including any so-called key
money or personal property lease, rent or sales proceeds.
7.9 LANDLORD'S RIGHTS TO TRANSFER. Landlord shall have the right to
sell, transfer, hypothecate or assign any or all of its rights and obligations
under this Lease. Upon the transfer of all of Landlord's interest under this
Lease, all liabilities and other obligations of the Landlord arising on or after
the date of the transfer shall be the sole
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responsibility of the transferee. The transferor is hereby released from any
claim with respect thereto upon the assumption of the obligations of Landlord
hereunder by the transferee.
SECTION 8. INSURANCE/INDEMNITY.
8.1 POLICIES. All insurance required to be carried by Tenant hereunder
shall be issued by insurance companies qualified to do business in the State of
Nevada and rated A:XII or better in the most current issue of "Best's Key Rating
Guide@, and shall be in form and substance and subject to deductibles acceptable
to Landlord in all respects. Current, original certificates evidencing the
existence and amounts of such insurance shall be delivered to Landlord by Tenant
at least 30 days prior to (a) Tenant's taking occupancy of the Premises, and (b)
the expiration of any policy required hereunder. No policy shall be subject to
cancellation or modification except after not less than 30 days' written notice
to Landlord and any Lender.
8.2 EXTENDED COVERAGE. During the Term, Tenant shall procure and
maintain policies of casualty insurance at its own expense covering (a) all
Tenant Alterations, and (b) any and all Personal Property, in an amount not less
than 100% of their actual replacement cost from time to time, providing
protection against any peril included within the classification "fire and
extended coverage," together with insurance against sprinkler damage, vandalism
and malicious mischief. Such insurance shall include a code compliance
endorsement. The proceeds of such insurance shall be used for the repair or
replacement of the property insured, except that in the event of a loss
occurring after the last 6 months of the Term, the proceeds under clause (a)
above shall be paid and belong to Landlord, and the proceeds under clause (b)
above shall be paid and belong to Tenant. Each policy required under this
SECTION 8.2 shall contain a loss payable endorsement (form 438BFU or an
alternative acceptable to Landlord in its sole discretion) requiring all
proceeds to be paid to Landlord or to a Lender designated by Landlord.
8.3 COMMERCIAL GENERAL LIABILITY; OTHER INSURANCE.
8.3.1 COMMERCIAL LIABILITY INSURANCE. Tenant shall procure and
maintain during the Term, at its own expense, commercial general liability
insurance for injury to or death of any person in connection with the
construction of improvements on the Premises and with Tenant's use of the
Premises and related property. Such insurance shall have limits of not less than
$2,000,000 for injuries to persons in one accident, not less than $2,000,000 for
injury to any one person, and not less than $1,000,000 with respect to damage to
property; EXCEPT that the limits of liability shall be adjusted from time to
time during the Term to such higher limits as Landlord may reasonably require
under then current conditions. Tenant shall also carry such additional insurance
as Landlord requires from time to time.
8.3.2 OTHER INSURANCE. Tenant shall procure and maintain
during the Term, at its own expense, Workers Compensation Insurance as required
by the state in which the Premises is located and in amounts as may be required
by applicable statute, Employers Liability Coverage of One Million Dollars
($1,000,000.00) per occurrence, and coverage against such other perils, all in
such form and amounts, and with such deductibles, as Landlord from time to time
may reasonably require.
8.4 WAIVER OF SUBROGATION. So long as the same does not impair any
insurance coverage required hereunder, Tenant and Landlord each hereby waive:
(a) any rights of recovery against the other and the officers, agents, and
representatives of the other for injury or loss covered by insurance, to the
extent of the injury or loss covered thereby, and (b) on behalf of their
respective insurance companies, any right of subrogation that either may have
against the other. All policies of insurance which Tenant or Landlord obtains
pursuant to this Lease shall include a clause or endorsement denying the insurer
any right of subrogation against Landlord and/or Tenant, so long as the same can
be obtained from an insurance company meeting the standards set forth in SECTION
8.1 above.
8.5 TENANT'S FAILURE TO INSURE. If Tenant fails to maintain any
insurance required by this Lease, Tenant shall be liable for any loss or cost
resulting from that failure. Landlord may, but shall not be obligated to,
provide for such insurance at Tenant's cost. This SECTION 8.5 shall not waive
any of Landlord's other rights and remedies under this Lease. Tenant shall not
keep, use, sell or offer for sale in or upon the Premises any article which may
be prohibited by the standard form of any insurance policy required hereunder.
Tenant agrees to pay for any increase in premiums for
11
insurance referred to herein that may be charged during the Lease Term on the
amount of such insurance which may be carried by Landlord on the Premises or the
Project, resulting from any activity on or in connection with the Premises,
whether or not Landlord has consented to the same.
8.6 INDEMNITY. Tenant hereby indemnifies Landlord and Landlord's
Employees, and shall forever save and hold Landlord and Landlord's Employees
harmless, from and against all obligations, liens, claims, liabilities, costs
(including, but not limited, to all attorneys' and other professional fees and
expenses), actions and causes of action, threatened or actual, which Landlord
may suffer or incur arising out of or in connection with Tenant's and Tenant's
Employees actions and omissions relating to this Lease, including without
limitation (a) the use by Tenant and Tenant's Employees of the Premises, (b) the
conduct of Tenant's business, (c) any activity, work or things done, permitted
or suffered by Tenant in or about the Premises or the Project, (d) Tenant's or
Tenant's Employees' failure to comply with any applicable Law, or (e) any
negligence or willful misconduct of Tenant or any of Tenant's Employees. In case
of any claim, demand, action or cause of action, threatened or actual, against
Landlord, upon notice from Landlord, Tenant shall defend Landlord at Tenant's
expense by counsel reasonably satisfactory to Landlord. If Tenant does not
provide such a defense against any and all claims, demands, actions or causes of
action, threatened or actual, then Tenant shall, in addition to the above, pay
Landlord the expenses and costs incurred by Landlord in providing and preparing
such defense, and Tenant agrees to cooperate with Landlord in such defense,
including, but not limited to, the providing of affidavits and testimony upon
request of Landlord.
8.7 LANDLORD'S INSURANCE. Landlord shall insure the Project during the
Term against damage by fire, and standard extended coverage perils, and shall
carry public liability insurance and insurance against such other perils with
respect to the Premises, the Project, the Lease, the Rent and other amounts
payable thereunder, portions of any thereof or matters related thereto as
Landlord reasonably may determine to be necessary or appropriate from time to
time insuring Landlord, all in such amounts and with such deductibles as
Landlord may determine from time to time in its sole discretion. None of the
insurance carried by Landlord shall name Tenant as an insured or otherwise be
for the benefit of Tenant, as a third party beneficiary or otherwise.
8.8 TENANT'S ASSUMPTION OF RISK. Tenant, as a material part of the
consideration to Landlord, hereby assumes all risk of damage to property or
injury to persons, in, upon or about the Premises from any cause, and Tenant
hereby waives all related claims against Landlord. Such assumption and waiver
includes without limitation any damage or injury arising out of the so-called
"Year 2000" problem relating to the inability of computers and microprocessors
(including imbedded chips) to distinguish between dates before and from and
after January 1, 2000; in no event shall Tenant be entitled to any damages, rent
abatement or right to terminate this Lease for causes related to such problems.
Without implying any obligation of Landlord or Landlord's Employees to accept
any of Tenant's property for safekeeping, Landlord and Landlord's Employees
shall not be liable for any damages to property entrusted to Landlord or
Landlord's Employees, nor for loss of or damage to any property in or about the
Premises by theft or otherwise, nor for any injury or damage to persons or
property resulting from any cause whatsoever unless caused solely by the gross
negligence of Landlord or Landlord's Employees. In no event shall Landlord be
liable for loss of profits or business interruption, nor shall Landlord be
liable for consequential damages. Landlord and Landlord's Employees shall not be
liable for any latent defect in the Premises or in the Project. Tenant shall
give prompt notice to Landlord in case of fire or accidents in the Premises or
in the Project.
8.9 EXEMPTION OF LANDLORD. In the event that Landlord is prevented or
delayed from making any repairs or furnishing any services or performing any
other covenant or duty to be performed by Landlord hereunder by reason of any
Force Majeure, Landlord shall not be liable to Tenant therefor, nor shall Tenant
be entitled to any abatement of Rent, or to claim an actual or constructive,
total or partial eviction from the Premises. Tenant hereby agrees that Landlord
shall not be liable for any injury to Tenant's business or any loss of income
therefrom or for damage to the furniture, fixtures, equipment and other property
of Tenant or Tenant's Employees from any cause whatsoever. Landlord shall not be
liable for any damage, destruction or loss of property or for any injury or
death to any person arising from any act or neglect of any other tenant or other
occupant or user of the Project, or any matter beyond the reasonable control of
Landlord.
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SECTION 9. DAMAGE OR DESTRUCTION.
9.1 DAMAGE GENERALLY. If any part of the Premises or the Project is
damaged by fire or other casualty and the damage affects Tenant's use or
occupancy of the Premises, Tenant shall give prompt notice to Landlord. To the
extent that Landlord receives insurance proceeds in connection with such
casualty, Landlord shall repair such damage with reasonable diligence. If any
substantial part of the Premises is rendered untenantable by reason of damage
not caused by the negligence or willful misconduct of Tenant or any of Tenant's
Employees, for more than 30 consecutive days, then the Base Rent hereunder shall
thereafter xxxxx in proportion to the rentable area of the Premises rendered
untenantable until the date when such part of the Premises shall have been made
tenantable, UNLESS Landlord shall make available to Tenant during the period of
such repair other space in the Project reasonably suitable for the temporary
conduct of Tenant's business. Landlord shall not be liable for any inconvenience
or annoyance to Tenant or injury to the business of Tenant resulting from such
damage or repair, construction or restoration. Tenant waives the provisions of
any Law allowing Tenant to make repairs and deduct the cost thereof from any
Rent. Except as provided herein, Landlord shall restore or repair the Premises
diligently and to their condition immediately prior to the damage. Landlord
shall not be liable for delays in repair or restoration caused by Force Majeure.
9.2 EXCEPTIONS TO OBLIGATION TO REBUILD. Despite SECTION 9.1, this
Lease may be terminated by Landlord in any of the following situations:
(a) If substantial alteration or reconstruction of the Project
shall, in the opinion of Landlord, be required as a result of damage by fire or
other casualty; or
(b) If all available insurance proceeds are less than 100% of
the cost of restoration;
(c) If the damage to the Project or Premises is caused by the
act or omission (whether or not negligent or willful) of Tenant or any of
Tenant's Employees;
(d) If existing Laws do not permit the Premises to be restored
to substantially the same condition as they were in immediately before the
destruction.
Any such election to terminate this Lease shall be exercised by notice
from Landlord to Tenant served by the later of (i) 60 days after the date of the
damage, or (ii) 30 days after the final settlement of all claims under all
applicable insurance relating to the damage. The notice shall specify the date
of termination, which shall be at least thirty (30) days after notice is given.
In the event Landlord gives such notice of termination, this Lease shall
terminate as of the date specified, and all Rent (to the extent not otherwise
abated) shall be prorated to of the later of the date of termination or Tenant's
vacation of the Premises.
9.3 EXTENT OF LANDLORD'S OBLIGATION TO REPAIR. Subject to Landlord's
right to terminate as set forth above, Landlord shall make repairs to the
structural elements and the shell of the Premises at Landlord's expense, and the
repair and restoration of Tenant Alterations and the Personal Property shall be
the sole obligation of Tenant. Tenant shall commence such repair and restoration
and the installation of its stock-in-trade, fixtures, furniture, furnishings and
equipment promptly upon delivery to it of possession of the Premises and shall
diligently prosecute any such work and installation to completion. In no event
shall Landlord have any obligation to make repairs or restoration to the extent
all insurance proceeds actually received by Landlord are insufficient to pay for
the same. However, at Landlord's option, Landlord's contractor shall perform all
reconstruction work in the Premises at Tenant's expense. In the event that
Landlord does not elect to have Landlord's contractor repair all of the damage
or destruction, Tenant shall undertake the repair and restoration of Tenant
Alterations in a diligent, first-class manner in accordance with the provisions
SECTION 4 hereof.
9.4 NEAR END OF TERM. Notwithstanding anything to the contrary
contained in this SECTION 9, Landlord shall not have any obligation of any
nature to repair, reconstruct or restore the Premises when the damage resulting
from any casualty occurs during the last 24 months of the Term, and, in such
event, Landlord shall have the right to cancel
13
this Lease within 90 days after the occurrence of such damage or destruction or
to allow Tenant a pro rata abatement of all monthly charges hereunder to the
extent the Premises or any portion thereof are rendered untenantable.
SECTION 10. CONDEMNATION AND OTHER TAKINGS.
10.1 CONDEMNATION. If any part of the Project shall be taken for public
or quasi-public use by the right of eminent domain, or if the same is
transferred by agreement in connection with such public or quasi-public use or
under threat of eminent domain (collectively, a "TAKING"), Landlord shall have
the option, exercisable within 30 days after the effective date of the Taking,
to terminate this Lease as of the date possession is acquired by the condemning
authority. Tenant may terminate this Lease by reason of a Taking if, and only
if, there is a Taking of a portion of the Premises to such an extent to
substantially impair Tenant's use of the Premises. Tenant shall have no right to
terminate this Lease following any Taking except as set forth in the preceding
sentence.
10.2 PARTIAL TAKING. In the event of a Taking of a portion of the
Premises which does not result in a termination of this Lease under SECTION 10.1
above, all monthly charges shall be equitably abated, as determined by Landlord
in accordance with its normal standards and practices.
10.3 RESTORATION. In the event of a Taking of a portion of the Premises
which does not result in a termination of this Lease under SECTION 10.1 above,
Landlord shall proceed to restore the remaining portion of the Premises (other
than Tenant Alterations, or any of the Personal Property) as nearly as
practicable to its condition prior to the Taking. However, Landlord shall be
obligated to restore at its expense as provided herein only to the extent of
condemnation proceeds awarded in connection with the Taking and allocated to
restoration costs. To the extent the costs of restoration exceed the portion of
the condemnation award allocated to restoration costs, if any, the excess shall
be paid for by Tenant.
10.4 AWARD. In the event of any Taking of all or a part of the Project,
Landlord shall be entitled to receive the entire award in the condemnation
proceedings, and Tenant hereby assigns to Landlord, any and all right, title and
interest of Tenant in or to any such award, and Tenant shall be entitled to
receive no part of such award. Despite the foregoing, Tenant shall not be
precluded from claiming from the condemning authority any compensation to which
Tenant may otherwise lawfully be entitled in respect of Tenant's tangible
Personal Property, or for relocating to new space, or for the unamortized
portion of any tenant improvements installed in the Premises to the extent they
were paid for by Tenant, SO LONG AS the same does not reduce the amount of any
award payable to Landlord.
SECTION 11. DEFAULT BY TENANT.
The occurrence of any one or more of the following shall be deemed a
"DEFAULT" by Tenant and a material breach of this Lease:
11.1 ABANDONMENT. Tenant's vacation or abandonment of the Premises by
Tenant for a continuous period in excess of 5 consecutive business days or
failure to conduct the business described as the Permitted Use for a continuous
period of 30 days (except for up to 60 days of remodeling). Tenant's failure to
take possession of and occupy the Premises within 30 days following the
Commencement Date shall be deemed to be an abandonment of the Premises by Tenant
for purposes of this SECTION 11.1.
11.2 NONPAYMENT OF RENT. Tenant's failure to pay any Rent when due or
to make any other monetary payment imposed under the terms of this Lease when
due, if such failure (a) has occurred three or more times during any period of
12 consecutive months, or (b) continues for a period of 3 business days after
written notice from Landlord. It is understood and agreed that any such notice
shall be in lieu of any notice required under applicable unlawful detainer
statutes.
11.3 NONDELIVERY OF DOCUMENTS. Tenant's failure to execute and deliver
any documents required by this Lease within the time periods specified.
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11.4 OTHER OBLIGATIONS. Tenant's failure to perform any other
obligation under this Lease (including the Rules and Regulations) or under the
Parking Agreement for 10 days after written notice from Landlord; HOWEVER, if
such failure is curable but more than 10 days are reasonably required for cure,
Tenant shall not be in default hereunder if Tenant shall promptly (and in any
event within 5 days after receipt of Landlord's notice) commence to cure such
failure and diligently prosecute the same to completion, so long as cure is
completed within 30 days after receipt of Landlord's notice. Notwithstanding the
foregoing, if any such failure by Tenant creates a hazardous condition, Tenant
shall cure such failure within one business day after its receipt of Landlord's
notice, and if any failure described in this Section 11.4 HAS occurred three or
more times during any period of 12 consecutive months, any further such failure
by Tenant shall be deemed to be an incurable Default by Tenant under this Lease.
11.5 GENERAL ASSIGNMENT. A general assignment by Tenant or any
Guarantor for the benefit of creditors.
11.6 BANKRUPTCY. The filing of any voluntary petition in bankruptcy by
Tenant or any Guarantor, or the filing of an involuntary petition by Tenant's
creditors or the creditors of any Guarantor, which involuntary petition remains
undischarged for a period of 60 days. In the event that under any Law the
trustee in bankruptcy or Tenant has the right to affirm this Lease and continue
to perform the obligations of Tenant hereunder, such trustee or Tenant shall, in
such time period as may be permitted by the bankruptcy court having
jurisdiction, cure all Defaults of Tenant outstanding as of the date of the
affirmance of this Lease and provide to Landlord such adequate assurances as may
be necessary to ensure Landlord of the continued performance of Tenant's
obligation under this Lease.
11.7 RECEIVERSHIP. The employment of a receiver to take possession of
substantially all of the assets and business of Tenant or any Guarantor or the
Premises, if such receivership remains undissolved for a period of 30 days after
creation thereof.
11.8 ATTACHMENT. The attachment, execution or other judicial seizure of
all or substantially all of the assets of Tenant or any Guarantor or the
Premises, if such attachment or other seizure remains undismissed or
undischarged for a period of 30 days after the levy thereof.
11.9 INSOLVENCY. The admission by Tenant or any Guarantor in writing of
its inability to pay its debts as they become due, the filing by Tenant or any
Guarantor of a petition seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future Law providing for debtor relief, the filing by Tenant or any Guarantor of
an answer admitting or failing timely to contest a material allegation of a
petition filed against Tenant or any Guarantor in any such proceeding or, if
within 30 days after the commencement of any proceeding against Tenant or any
Guarantor seeking any reorganization, or arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future Law, such
proceeding shall not have been dismissed.
11.10 FORECLOSURE OF LEASEHOLD. The leasehold estate created under this
Lease shall be taken on execution or other process of law or equity in any
action against Tenant, or sold under a power of sale pursuant to or contained in
a leasehold Mortgage, or transferred or assigned by assignment or other
instrument in lieu thereof.
11.11 MISREPRESENTATION. Any material misrepresentation herein by
Tenant, or any material misrepresentation or omission in any financial
statements or other materials provided to Landlord by or on behalf of Tenant or
any Guarantor in connection with negotiating or entering into this Lease, or
provided by or on behalf of Tenant, or a Guarantor, or by any Transferee in
connection with any Transfer.
SECTION 12. LANDLORD'S REMEDIES UPON DEFAULT.
12.1 TERMINATION. In the event of a Default, Landlord shall have the
right to terminate this Lease. The election to terminate may be stated in any
notice served upon Tenant with respect to the Default. After the termination,
Landlord may enter the Premises and remove Tenant, any other person occupying
the same, and any or all Personal Property. Any such repossession shall be
without prejudice to any of the remedies that Landlord may have under this
Lease, or at law or in equity, by reason of the Default or the termination.
15
12.2 CONTINUATION AFTER DEFAULT. In the event of the occurrence of a
Default, this Lease shall continue in effect for so long as Landlord does not
terminate Tenant's right to possession under SECTION 12.1, and Landlord may
enforce all its rights and remedies under this Lease, including (but without
limitation) the right to recover Rent as it becomes due. Acts of maintenance,
preservation or efforts to lease the Premises, or the appointment of receiver
upon application of Landlord to protect Landlord's interest under this Lease,
shall not constitute an election to terminate Tenant's right to possession in
the absence of written notice to the contrary.
12.3 DAMAGES UPON TERMINATION. Should Landlord terminate this Lease
pursuant to the provisions of SECTION 12.1, Landlord shall have all the rights
and remedies of any applicable code section. Landlord shall be entitled to
recover from Tenant: (a) the worth at the time of award of the unpaid Rent and
other amounts which had been earned at the time of termination; (b) the worth at
the time of award of the amount by which the unpaid Rent which the unpaid Rent
which would have been earned after termination until the time of award exceeds
the amount of such Rent loss that Tenant proves could have been reasonably
avoided; (c) the worth at the time of award of the amount by which the unpaid
Rent for the balance of the Term after the time of award exceeds the amount of
such Rent loss that Tenant proves could be reasonably avoided; and (d) any other
amount necessary to compensate Landlord for all the detriment proximately caused
by Tenant's failure to perform its obligations under this Lease or which, in the
ordinary course of things, would be likely to result therefrom, including,
without limitation, any costs or expenses incurred by Landlord in maintaining or
preserving the Premises after such Default, recovering possession of the
Premises, expenses of reletting the Premises to a new tenant, (including
necessary renovations, alterations and improvements to the Premises, and leasing
commissions incurred), and all attorneys' and other professional and
paraprofessional fees and other costs and expenses incurred in good faith in
connection with any of the foregoing. The "worth at the time of award" of the
amounts referred to in (a) and (b), above shall be computed with interest at the
maximum lawful rate. The "worth at the time of award" of the amount referred to
in (c), above shall be computed by reference to the formula prescribed by, and
using the lowest discount rate permitted under, any applicable Law.
12.4 REMEDIES CUMULATIVE. All rights, privileges and elections or
remedies of the parties are cumulative and, to the extent permitted by any Law
and except as otherwise provided herein, are not alternative.
SECTION 13. LANDLORD'S DEFAULT.
13.1 RIGHT TO CURE. Landlord shall not be deemed to be in default in
the performance of any obligation required of it under this Lease until it has
failed to perform such obligation within 30 days after receipt by Landlord of
written notice from Tenant to Landlord, specifying the obligation in question
and the manner in which Landlord has failed to perform the obligation. If the
nature of Landlord's obligation is such that more than 30 days are reasonably
required for its performance, Landlord shall not be in default if Landlord
commences to cure the default within the 30 day period and proceeds to
completion with reasonable promptness.
13.2 TENANT'S REMEDIES. Except as expressly set forth in, and limited
by, the terms of this Lease, Tenant hereby waives and relinquishes any and all
rights which Tenant may have to terminate this Lease or to withhold Rent for any
reason whatever, including without limitation on account of any default by
Landlord of its obligations under this Lease, and any damage to, or
condemnation, destruction or state of disrepair of, the Premises. Tenant's sole
remedy for a breach of this Lease shall be limited to an action for damages,
injunctive relief or specific performance of this Lease.
13.3 NOTICE TO LENDERS. Tenant agrees to give all Lenders, by
registered or certified mail, return receipt requested, a copy of any notice of
default served upon Landlord, PROVIDED that prior to such obligation to give
notice, Tenant has been notified, in writing (by way of Notice of Assignment of
Rents and Leases, or otherwise), of the addresses of the Lenders. Tenant further
agrees that if Landlord shall have failed to cure such default within the time
provided in this Lease, then before Tenant pursues its other remedies, all
Lenders shall have an additional 30 days (the "LENDER CURE PERIOD") within which
to cure the default on behalf of Landlord; EXCEPT that if the default cannot be
reasonably cured within the Lender Cure Period, each of the Lenders shall have
such additional time as may be reasonably necessary to complete such cure. If
the default is such that a Lender must gain possession of the Project or
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any portion of it in order to be able to effect a cure, then the commencement of
foreclosure proceedings against Landlord shall be deemed to constitute the
commencement by the Lender of the cure of the default by Landlord.
SECTION 14. SUBORDINATION AND ATTORNMENT.
14.1 SUBORDINATION. Subject to the provisions of SECTION 14.2 below,
this Lease and the rights of Tenant hereunder shall be and are hereby made
subject and subordinate at all times to any Mortgage now or hereafter existing,
and to all advances made or hereafter to be made against or to protect the
security thereof. If requested by Landlord, Tenant shall execute and deliver to
Landlord, within 10 days after written demand therefor, an agreement confirming
the subordination of this Lease to any Mortgage as may be requested by Landlord
or any Lender from time to time. Any failure or refusal of Tenant to execute
such an agreement within 10 days shall constitute a Default. However, no such
additional agreement shall be necessary to effectuate such subordination.
14.2 ATTORNMENT. Notwithstanding the provisions of SECTION 14.1, in the
event of the foreclosure of any Mortgage or cancellation or termination of any
Master Lease, Tenant, at the request of the then successor to the Landlord
following such event, shall attorn to and recognize the successor as the
Landlord under this Lease. Tenant agrees to execute and deliver at any time upon
request of any Lender or purchaser, and the successors of either, any instrument
reasonably requested to further evidence such attornment. Tenant hereby waives
its right, if any, to elect to terminate this Lease or to surrender possession
of the Premises in the event of any Mortgage termination or foreclosure. Tenant
also agrees that any Lender may, at its option, unilaterally elect to fully or
partially subordinate its Mortgage to this Lease by an instrument in form and
substance satisfactory to the Lender which Tenant shall execute within 10 days
after written request. Any failure or refusal by Tenant to execute such
instrument within the time period specified in this SECTION 14.2 (without
additional time, despite any other provision of this Lease) shall constitute a
Default hereunder, but shall not affect the validity or enforceability of the
subordination.
14.3 MORTGAGEE'S LIABILITY. Despite the provisions of SECTION 42 below,
in the event that any Lender or its respective successor in title shall succeed
to the interest of Landlord hereunder, the liability of the Lender or successor
shall exist only so long as it is the owner of the Project, the Project, or the
interest therein superior to this Lease under any Master Lease. Except for the
Base Rent paid by Tenant upon execution of this Lease, no Base Rent or any other
Rent charge shall be paid more than 30 days prior to the due date thereof, and
payments made in violation of this provision shall be a nullity as against any
Lender, EXCEPT to the extent that those payments are actually received by the
Lender.
SECTION 15. INSPECTIONS AND ACCESS.
15.1 ENTRY. Landlord and its agents or representatives may enter the
Premises at reasonable hours and with reasonable prior notice to (a) inspect the
Premises, (b) exhibit the Premises to prospective purchasers, lenders or
tenants, (c) determine whether Tenant is complying with all Tenant's obligations
hereunder, (d) supply janitorial service and any other service to be provided by
Landlord to Tenant hereunder, (e) post notices of nonresponsibility, and (f)
make repairs or do any work required of Landlord under this Lease or make
repairs or do any other work for the benefit of the Project. All such work shall
be done as expeditiously as reasonably feasible so as to cause as little
interference to Tenant as reasonably possible without requiring extraordinary
expenditure on the part of Landlord. In no event shall Tenant be entitled to any
reduction or abatement of Rent, or to make any claim for damages against
Landlord, as a result of any act of Landlord carried out pursuant to this
SECTION 15.1. Tenant hereby waives any claim for damages or claim in connection
with any injury or inconvenience to or interference with Tenant's business, any
loss of occupancy or quiet enjoyment of the Premises, or any other loss caused
by the exercise of such rights by Landlord. Landlord shall at all times have a
key to all doors providing entry to the Premises, but excluding Tenant's vaults,
safes, files, or security rooms (as to which Tenant shall provide Landlord with
prompt supervised access. Landlord shall have the right to use any and all means
that Landlord may deem proper to open any doors to or within the Premises in the
event of an emergency, without liability to Tenant except for any failure by
Landlord to exercise due care for Tenant's property under the circumstances, and
in any event with no liability to Tenant if the emergency was caused by the act
or omission of Tenant or any of Tenant's Employees.
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15.2 ACCESS. If Tenant shall not have any representative personally
present to open and permit Landlord's entry into the Premises at any time when
such an entry by Landlord is necessary or permitted hereunder, Landlord may
enter by means of a master key without liability to Tenant except for any
failure to exercise due care.
SECTION 16. SURRENDER OF PREMISES.
16.1 REMOVAL BY TENANT. At the expiration or earlier termination of
this Lease, Tenant shall surrender to Landlord the Premises and all Tenant
Alterations in good order, repair and condition, EXCEPT for ordinary wear and
tear, free of all tenancies and occupancies. Tenant shall remove all of the
Personal Property to the extent specified in SECTION 4.5 above. Tenant, at
Tenant's expense, shall perform all necessary restoration, including, without
limitation, restoration made necessary to the Premises or the Project by the
removal of the Personal Property, at or prior to the expiration or termination
of this Lease.
16.2 REMOVAL BY LANDLORD. Landlord may elect to retain or dispose of,
in any manner, any Tenant Alterations or Personal Property that Tenant does not
remove from the Premises on expiration or earlier termination of the Term. Title
to such Tenant Alterations or Personal Property Landlord elects to retain on
expiration or earlier termination of the Term shall vest in Landlord. Tenant
waives all claims against Landlord for any damage to Tenant resulting from
Landlord's retention or disposition of any such Tenant Alterations or Personal
Property. Tenant shall be liable to Landlord for Landlord's costs for storing,
removing and disposing of any Tenant Alterations or Personal Property and the
cost of any repairs to the Premises and/or the Project associated with the
removal.
16.3 HOLDING OVER. If Tenant holds over after the expiration or earlier
termination of the Term with or without the express written consent of Landlord,
such Tenancy shall be from month-to-month only, at a rental rate equal to 200%
of the Rent in effect upon the date of such expiration or termination, and
otherwise subject to the terms, covenants and conditions herein specified.
Acceptance by Landlord of Rent after such expiration or earlier termination
shall not constitute a holdover hereunder or result in a renewal. The foregoing
provisions of this SECTION 16.3 are in addition to and do not affect Landlord's
right of re-entry or any rights of Landlord hereunder or as otherwise available
to Landlord as a matter of law nor shall the foregoing be construed as consent
by Landlord to any holding over by Tenant. Landlord expressly reserves the right
to require Tenant to surrender possession of the Premises to Landlord upon the
expiration or other termination of this Lease.
SECTION 17. LANDLORD'S LIABILITY; SALE BY LANDLORD.
17.1 NO PERSONAL LIABILITY. Landlord or any successor in interest of
Landlord (whether one or more individual(s), a partnership, a joint venture, a
corporation, a trustee or other fiduciary, or the trust or other entity or
organization for which any fiduciary acts) shall have no direct or personal
liability with respect to any term or requirement of this Lease beyond
Landlord's or the successor's interest in the Project. Tenant shall look solely
to the estate of Landlord or the successor in the Project for the satisfaction
of any claim by Tenant. Under no circumstances shall any Lender, purchaser at a
foreclosure sale or grantee under a deed in lieu of foreclosure, or their
respective successors and assigns, be liable for or obligated to cure any acts,
failures to act or breaches of this Lease by any prior landlord (including
Landlord) or for events that occurred or conditions that existed prior to the
conveyance or title to such Lender, purchaser or grantee.
17.2 TENANT'S EQUITABLE REMEDY. Tenant shall not be entitled to any
damages because of Landlord's failure or refusal to consent or approve of any
matter requested by Tenant. Tenant's sole remedy shall be an action for specific
performance or injunction.
17.3 DEPOSIT. In the event the original Landlord hereunder, or any
successor in interest of Landlord, shall sell or convey its interest in the
Project, Tenant agrees to attorn to such new owner. Landlord shall transfer to
the new owner the balance of the Security Deposit, if any, and, after notice to
Tenant, Landlord shall be relieved of all future liability with respect to the
Security Deposit.
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17.4 COVENANTS. In the event of any transfer by any Landlord of its
interest, such Landlord shall be automatically relieved from all liability
accruing from and after the date of the transfer or conveyance.
SECTION 18. HAZARDOUS MATERIALS.
18.1 DEFINITIONS As used in this SECTION 18, the following words or
phrases shall have the following meanings:
(a) "AGENTS" means Tenant's partners, officers, directors,
shareholders, employees, agents, contractors, assignees, subtenants and any
other third parties entering upon the Project at the request or invitation of
Tenant.
(b) "CLAIMS" means claims, liabilities, losses, actions,
environmental suits, causes of action, legal or administrative proceedings,
damages, fines, penalties, loss of rents, liens, judgments, costs and expenses
(including, without limitation, attorneys' fees and costs of defense, and
consultants', engineers' and other professionals' fees and costs).
(c) "HAZARDOUS MATERIALS" means any: (A) Substance which is
regulated by any Hazardous Materials Law; (B) asbestos and asbestos-containing
materials; (C) urea formaldehyde; (D) radioactive substance; (E) flammable
explosives; (F) petroleum, including crude oil or any fraction thereof; (G)
polychlorinated biphenyls; and (H) "hazardous substances," "hazardous materials"
or "hazardous waste" under any Hazardous Materials Law.
(d) "HAZARDOUS MATERIALS LAWS" mean: (A) any existing or
future federal, state or local law, ordinance regulation or code which protects
health, safety or welfare, or the environment; (B) any existing or future
administrative or legal decision interpreting any such law, ordinance,
regulation or code; and (C) any common law theory which may result in Claims
against Landlord, the Premises or the Project.
(e) "PERMITS" means any permit, authorization, license or
approval required by any applicable governmental agency.
(f) "SUBSTANCE" means any substance, material, product,
chemical, waste, contaminant or pollutant.
(g) "USE" means use, generate, manufacture, produce, store,
release, discharge, and transport to or from the Project.
18.2 USE OF HAZARDOUS MATERIALS. Without limiting the generality of
this SECTION 18, and except as provided hereinbelow, Tenant covenants and agrees
that Tenant and its Agents shall not bring into, maintain upon, or Use in or
about the Project, or transport to or from the Project, any Hazardous Materials,
nor shall Tenant or its Agents release or dispose of any Hazardous Materials in,
on, under or about the Project in violation of any Hazardous Materials Law.
Notwithstanding the foregoing provisions, Tenant may Use any Substance typically
found or used in applications of the type permitted by this Lease so long as:
(A) any such Substance is typically found only in such quantity as is reasonably
necessary and customary for Tenant's Permitted Use; (B) a list of such Hazardous
Materials is provided to Landlord in writing prior to any such Use; (C) any such
Substance and all equipment necessary in connection with the Substance are Used
strictly in accordance with the manufacturers' instructions therefore; (D) no
such Substance is released or disposed of in or about the Project in violation
of any Hazardous Materials Law; (E) any such Substance and all equipment
necessary in connection with the Substance are removed from the Project and
Premises and transported for Use or disposal by Tenant in compliance with any
applicable Hazardous Materials Laws upon the expiration or earlier termination
of this Lease; and (F) Tenant and its Agents comply with all applicable
Hazardous Materials Laws. Tenant shall not use or install in or about the
Premises any asbestos or asbestos-containing materials.
18.3 DELIVERY OF NOTICES. Tenant shall furnish to Landlord copies of
all notices, claims, reports, complaints, warnings, asserted violations,
documents or other communications received or delivered by Tenant, as soon as
possible
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and in any event within five (5) days after such receipt or delivery, with
respect to any actual or alleged Use, disposal or transportation of Hazardous
Materials in or about the Premises and the Project. Whether or not Tenant
received any such notice, claim, report, complaint, warning, asserted violation,
document or other communication, Tenant shall immediately notify Landlord,
orally and in writing, if Tenant or any of its Agents knows or has reasonable
cause to believe that any Hazardous Materials, or a condition involving or
resulting from the same, is present, in Use, has been disposed of, or
transported to or from the Premises or the Project.
18.4 CLEANUP AND REMEDIATION. If Tenant or its Agents violate any
provision of this SECTION 18, then Tenant shall immediately notify Landlord in
writing and shall be obligated, at Tenant's sole cost, to xxxxx, remediate,
clean-up and/or remove from the Project, and dispose of, all in compliance with
all applicable Hazardous Materials Laws, all Hazardous Materials Used by Tenant
or its Agents. Such work shall include, but not be limited to, all testing and
investigation required by Landlord, Landlord's Lender and/or ground Lessor, if
any, and any governmental authorities having jurisdiction, and preparation and
implementation of any remedial action plan required by any governmental
authorities having jurisdiction. Tenant's indemnification covenant set forth in
SECTION 18.6 shall extend to any enforcement or other action instituted by any
governmental authority with respect to any such alleged requirement and, Tenant
shall promptly, at Tenant's cost, comply with any requirement determined to be
applicable to Tenant. All such work shall, in each instance, be conducted (A) to
the satisfaction of the governmental authority having jurisdiction, if a
governmental authority has assumed jurisdiction of such work, (B) to Landlord's
reasonable satisfaction if a governmental authority has but declines to assume
jurisdiction of such work or (C) to Landlord's reasonable satisfaction if there
is no applicable governmental requirement with respect to such work and no
governmental authority takes jurisdiction of such work. If Tenant does not
reasonably comply with the provisions of this SECTION 18.4, then Landlord may,
without prejudicing, limiting, releasing or waiving Landlord's rights under this
SECTION 18, separately undertake such work, but only after first giving Tenant
notice of its intent to do so and the opportunity to cure such default and
Tenant shall promptly reimburse all costs incurred by Landlord.
18.5 ENTRY. Landlord shall have the right to enter and inspect the
Premises, and the right to inspect Tenant's books and records, to verify
Tenant's compliance with, or violations of, the provisions of this SECTION 18.
Furthermore, Landlord may conduct such investigations and tests as Landlord or
Landlord's Lender may require. If either (i) as a result of such inspections or
tests, Tenant is found to be in material breach of the provisions of this
SECTION 18 or (ii) as to any test or investigation requested by any governmental
authority or Landlord's Lender there is reasonable cause to believe that Tenant
is in material breach of the provisions of this SECTION 18, then, in either such
instance, Tenant, in addition to its other obligations set forth in this SECTION
18, shall promptly reimburse Landlord for all costs incurred in connection with
such test or inspection.
18.6 INDEMNITY. Tenant shall indemnify, defend and hold harmless
Landlord, its partners and its and their respective successors, assigns,
partners, directors, officers, shareholders, employees, agents, lenders, ground
lessors and attorneys, and the Project, from and against any and all Claims
incurred by such indemnified persons, or any of them, in connection with or as
the result of: (A) the presence, Use or disposal of any Hazardous Materials in
or about the Premises or Project by Tenant or its Agents; (B) any injury to or
death of persons or damage to or destruction of property resulting from the
presence, Use or disposal of any Hazardous Materials in or about the Premises or
Project by Tenant or its Agents; (C) any violation by Tenant or its Agents of
any Hazardous Materials Laws; and (D) any failure of Tenant or its Agents to
observe the provisions of this SECTION 18.6. Tenant's obligations hereunder
shall include, without limitation, and whether foreseeable or unforeseeable, all
costs of any required or necessary testing, investigation, studies, reports,
repair, clean-up, detoxification or decontamination of the Premises or Project,
and the preparation and implementation of any closure, removal, remedial action
or other required plans in connection therewith, and shall survive the
expiration or earlier termination of the Term. For purposes of this
indemnification provision, any acts or omissions of Tenant and its Agents
(regardless of whether they are negligent, intentional, willful, or unlawful)
shall be strictly attributable to Tenant. If, at any time after the initiation
of any suit, action, investigation or other proceeding which could create a
right of indemnification under this SECTION 18.6, Tenant is not complying with
the provisions of SECTION 18.4, then Landlord may, without prejudicing,
limiting, releasing or waiving the right of indemnification provided herein,
separately defend or retain separate counsel to represent and control the
defense as to Landlord's interest in such suit, action, investigation or other
proceeding. Tenant shall pay all costs of Landlord's separate defense or counsel
upon demand.
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SECTION 19. CORPORATION OR OTHER ENTITY AS TENANT. If a corporation, limited
liability company, trust, estate or other entity or association executes this
Lease as Tenant, then Tenant and the Persons executing this Lease on behalf of
Tenant hereby represent and warrant that the individuals executing this Lease on
Tenant's behalf are duly authorized to execute and deliver this Lease on behalf
of Tenant, and that this Lease is binding upon and enforceable against Tenant in
accordance with its terms.
SECTION 20. ENTIRE AGREEMENT. This Lease constitutes the entire understanding of
the parties with respect to the Premises and supersedes all prior or
contemporaneous understandings and agreements relating to the subject matter
thereof. There are no other promises, covenants, understandings, agreements,
representations, or warranties with respect to the subject matter of this Lease
except as expressly set forth herein or in any instrument executed concurrently
herewith.
SECTION 21. MODIFICATION. This Lease may not be modified, terminated or amended
except pursuant to a written instrument duly executed by all of the parties
hereto.
SECTION 22. BROKERS. Landlord and Tenant each warrant and represent to the other
that it has not employed or dealt with any real estate broker or finder in
connection with this Lease, except for the broker(s), if any, whose name(s) is
(are) set forth in the Basic Lease Provisions, and that it knows of no other
real estate broker, agent or finder who is or might be entitled to a commission
or fee in connection with this Lease. Landlord and Tenant each agree to
indemnify, defend and hold the other harmless from and against any and all
claims of any other broker or finder, used by it on account of any brokerage
commission or finder's fee in connection with this Lease.
SECTION 23. NO RECORDATION. In no event shall this Lease or any memorandum
thereof be recorded without the written consent of both Landlord and Tenant.
SECTION 24. TIME OF THE ESSENCE. Subject to the provisions of SECTION 32, time
is of the essence of this Lease and each of the provisions hereof.
SECTION 25. FINANCIAL STATEMENT. At any time during the Term, Tenant shall upon
10 days prior written notice from Landlord, provide Landlord with a current
financial statement and financial statements of the 2 fiscal years of Tenant
prior to the current financial statement year. Such statements shall be prepared
in accordance with generally accepted accounting principles.
SECTION 26. FURTHER ASSURANCES. From time to time, either party, at the request
of the other party, and without further consideration, shall execute and deliver
further instruments and take such other actions as the requesting party may
reasonably require to complete more effectively the transactions contemplated by
this Agreement.
SECTION 27. MODIFICATION FOR LENDER. If, in connection with obtaining any
financing for the Project, the prospective lender shall request reasonable
modifications to this Lease as a condition to such financing, Tenant will not
unreasonably withhold, delay or defer its consent thereto, provided that such
modifications shall not increase the obligations of Tenant hereunder or have a
materially adverse effect on the leasehold interest hereby created or Tenant's
rights hereunder.
SECTION 28. NO THIRD PARTY BENEFITS. This Lease is made and entered into for the
sole benefit and protection of the parties hereto, and the parties do not intend
to create any rights or benefits under this Lease for any person who is not a
party to this Lease, other than a Lender.
SECTION 29. NAME OF PROJECT. Tenant shall not use the name, insignia or logotype
of the Project for any purpose. Tenant shall not use any picture of the Project
in its advertising, stationery or any other manner.
SECTION 30. WAIVER. The waiver by any party of any term, covenant, agreement or
condition herein contained shall be effective only if in writing and shall not
be deemed to be a waiver of any subsequent breach of the same or any
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other term, covenant, agreement or condition herein contained, nor shall any
custom or practice which may develop between the parties in the administration
of this Lease be construed to waive or to lessen the right of any party to
insist upon the performance by the other party in strict accordance with all of
the terms, covenants, agreements and conditions of this Lease. The subsequent
acceptance of Rent hereunder by Landlord shall not be deemed to be a waiver of
any preceding breach by Tenant of any term, covenant, agreement or condition of
this Lease, other than the failure of Tenant to timely pay, the particular Rent
so accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such Rent.
SECTION 31. NO LIGHT AND AIR EASEMENT. Any diminution, restriction or shutting
off of light or air by any structure that may at any time be erected on lands
adjacent to or in the vicinity of the Project shall in no way affect this Lease,
xxxxx any Rent or otherwise impose any cost, liability or obligation upon
Landlord.
SECTION 32. FORCE MAJEURE. Landlord shall not be chargeable with, nor be liable
or responsible to Tenant for, anything or in any amount for any failure to
perform or delay in performing caused by Force Majeure. Any such failure or
delay due to Force Majeure shall not be deemed a breach of or default in the
performance of this Lease by Landlord.
SECTION 33. CIVIC PROGRAMS. Tenant agrees to cooperate and use its best efforts
to participate in any traffic management, resource conservation, safety, and
other similar programs, whether voluntary or required, which may be civic or
community benefit programs generally applicable to businesses located in Las
Vegas, Nevada, or specifically applicable to the Project or the area in which
the Project is located, to, the fullest extent permitted by the requirements of
Tenant's business. Tenant shall execute and deliver promptly any documents
requested by any governmental authority in connection with the foregoing.
Neither this SECTION 33 nor any other provision in this Lease, however, is
intended to, nor shall it, create any rights or benefits in any other person,
firm, company, governmental entity or the public.
SECTION 34. ESTOPPEL CERTIFICATE. Tenant, shall at any time, and from time to
time, upon 10 business days' prior written notice from Landlord, execute,
acknowledge and deliver to Landlord an Estoppel Certificate. Any Estoppel
Certificate may be relied upon by any Lender or any prospective lender with
respect to, or any prospective purchaser of any interest in, the Project. Any
failure or refusal by Tenant to execute and return a requested Estoppel
Certificate within the time period specified in this SECTION 34 (without
additional time, despite any other provision of this Lease) shall constitute a
Default.
SECTION 35. RIGHT TO PERFORMANCE. If Tenant shall fail to perform any act on its
part to be performed hereunder, and such failure shall continue for 10 days
after written notice thereof to Tenant, provided that no notice shall be
required in cases of emergency, Landlord may, without waiving or releasing
Tenant from any obligations of Tenant perform such act. All sums so paid by
Landlord and all costs incidental thereto (including attorneys and other fees
and costs), together with interest thereon at the Interest Rate from the date of
such payment by Landlord, shall be deemed to be Rent and shall be payable to
Landlord by Tenant upon demand therefor. Any obligation of Landlord under this
Lease may be fulfilled by Landlord's Employees or by any agent or independent
contractor of Landlord.
SECTION 36. EXECUTION OF LEASE BY LANDLORD. Neither the submission of this
document to Tenant, nor examination and negotiation by Landlord or Tenant,
constitutes an offer to lease, or a reservation in favor of Tenant of, or option
to Tenant for, the Premises. This document shall become effective and binding
only upon execution and delivery hereof by Tenant and by Landlord.
SECTION 37. PROFESSIONAL FEES. If either party becomes involved in litigation or
arbitration arising out of this Lease or the performance thereof, the court in
such litigation or arbitrator in such arbitration shall, award legal expenses
(including, but not limited to attorneys and other professional and
paraprofessional fees incurred) to the prevailing party.
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SECTION 38. SURVIVAL OF INDEMNITIES. All provisions in this Lease relating to
indemnities by Tenant in favor of Landlord shall survive the expiration or
termination hereof for any reason and shall run to the benefit of the original
Landlord named herein as well as any successor in interest to it.
SECTION 39. NOTICES. All notices, requests, demands or other communications
required or desired to be given hereunder, to be legally binding, shall be in
writing and may be served personally (including service by any commercial
messenger or courier service) or by registered or certified United States mail,
return receipt requested, with all postage and fees fully prepaid, addressed to
the respective address set forth in SECTION 1 above, or to such other address as
the party to whom the notice is addressed has theretofore specified in a notice
served upon the other party in accordance with the requirements hereof.
Alternatively, notices may be served by facsimile transmission sent to the
respective facsimile transmission number specified in the applicable Base Lease
Provisions. All notices shall be effective upon actual delivery to the
addressee, as evidenced by the return receipt if service is by mail, EXCEPT in
the case of a party that has relocated and has not served upon the other party a
notice of a new address for service of notices as specified above, or in the
case if a party to whom the notice is addressed that refuses to accept delivery
of the notice, in either of which cases the notice shall be deemed effective
upon the first date of attempted delivery, as indicated by the return receipt if
the attempted service was by mail, at the last address of which the party
attempting to make the service had notice. In addition, a copy of any notice
with respect to a default of or claim against Landlord which is served upon
Landlord shall be sent concurrently to all Lenders of which Tenant has notice,
as provided in SECTION 13.3 above.
SECTION 40. GOVERNING LAW. This Lease shall be governed by and construed
pursuant to the law of the State of Nevada, without reference to conflicts of
laws rules.
SECTION 41. SEVERABILITY. In the event that any provision of this Lease shall be
adjudicated to be void, illegal, invalid, or unenforceable, the remaining terms
and provisions of this Lease shall remain in full force and effect.
SECTION 42. SUCCESSORS AND ASSIGNS. Subject to all restrictions set forth
herein, the terms, covenants, conditions and agreements herein contained shall
inure to the benefit of and bind the heirs, successors, legal representatives
and assigns of the parties hereto.
SECTION 43. DEFINITIONS.
In addition to the terms defined in SECTION 1 of the Lease, the
following terms shall have the meanings specified below when used in the Lease:
43.1. "ADDITIONAL RENT" means all of those items to be paid by Tenant
which are specified in SECTION 3.2.
43.2. "ADDITIONAL SERVICES" means all excessive or additional services
in excess of Basic Services relating to Tenant's use and occupancy of the
Premises.
43.3. "AFFILIATE" means, with respect to a Person, any other Person
controlled by or in control of such Person, or any other Person who, together
with such Person, are under the common control of a third Person.
43.4. "ANNUAL STATEMENT" shall have the meaning specified in
SECTION 3.3.4.
43.5. "BASIC SERVICES" means the utilities and services specified in
SECTION 6.1 as being provided to the Premises by Landlord, subject to the
conditions therein set forth.
43.6. "BUILDING" means the nine story office building located at 000
Xxxxx Xxxxxx Xxxx, Xxx Xxxxx, Xxxxxx.
43.7. "COMMON AREAS" means all areas within the exterior boundaries of
the Project now or later made available for the general use of Landlord and
other persons entitled to occupy floor area in the Project, including the common
entrances, lobbies, restrooms, elevators, stairways and accessways, loading
docks, ramps, parkways, driveways
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and roadways, loading and unloading areas, trash areas, landscaped areas in the
Project, and the common pipes, conduits, wires and appurtenant equipment serving
the Premises. Any enlargement of or addition to the Common Areas shall be
included in the definition of Common Areas.
43.8. "DEFAULT RATE" means the lesser of (a) 18% per annum, or (b) the
maximum rate per annum permitted by applicable Law.
43.9. "DIRECT EXPENSES" means the sum of Operating Costs and Taxes.
43.10. "ESTOPPEL CERTIFICATE" means a certificate to be executed by
Tenant as specified in SECTION 34 and in the form requested by Landlord.
43.11. "EXCESS EXPENSE ESTIMATE" shall have the meaning specified in
SECTION 3.3.1.
43.12. "FORCE MAJEURE" means fire, earthquake, explosion, flood,
hurricane, the elements, acts of God or the public enemy, action, restrictions,
limitations, or interference of governmental authorities or agents, war,
invasion, insurrection, rebellion, riots, strikes or lockouts, or any other
cause or occurrence, whether similar or dissimilar to the foregoing, which is
beyond the reasonable control of Landlord.
43.13. "HOLIDAYS" means all federally observed Holidays, as they may be
observed from time to time, including New Year's Day, President's Day, Memorial
Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, Christmas Day,
and, to the extent of Basic Services provided by union members engaged at the
Project, such other holidays observed by such unions.
43.14. "INDEX" means the Consumer Price Index published by the United
States Department of Labor, Bureau of Labor Statistics ("All Items" index) for
All Urban Consumers B Los Angeles, Riverside, Orange County, 1982- 84=100;
PROVIDED that, in the event the Index shall not be published or published
monthly, or shall be discontinued, the most nearly comparable index as
reasonably determined by Landlord shall be substituted therefor.
43.15. "LANDLORD'S EMPLOYEES" means Landlord's agents, contractors,
licensees, employees, directors, officers, partners, trustees and invitees.
43.16. "LAW" means any federal, state, county, municipal, or other
local governmental statute, law, ordinance, rule, regulation, code, decree, or
order, including all decisions of any court that are binding precedents in the
State of Nevada and all directions, directives, regulations or requirements of
any federal, state, county or municipal authority, whether or not having the
force of law, now in force or which may hereafter be enacted or promulgated.
43.17. "LEASE YEAR" means a period of 12 consecutive calendar months,
the first of which shall commence on the first day of the first full calendar
month during the Term, with each following Lease Year beginning on each
consecutive anniversary thereof.
43.18. "LENDER" means any holder of any Mortgage, and if the Mortgage
is a ground lease, such term shall refer to the ground lessor.
43.19. "LENDER CURE PERIOD" means the period given any Lender to cure
any default of Landlord, as provided in SECTION 13.3 of the Lease.
43.20. "MASTER LEASE" means any estate for years, whether now existing
or created in the future, and whether constituting a leasehold estate or any
tier of subleasehold estate, in the Land or in any portion of the Project which
includes the Premises, which estate for years at any time lies between the fee
estate in the Land or the Parking Facilities and the estate created under the
Lease.
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43.21. "MATTERS OF RECORD" means all easements, agreements,
rights-of-way, liens, covenants, conditions, or restrictions of any nature
affecting the Project or any part thereof and constituting a matter of public
record, any Reciprocal Easement and Operating Agreement, and any Master Lease.
43.22. "MORTGAGE" means any mortgage, deed of trust, Master Lease, or
other similar encumbrance now or hereafter placed upon the Land, the Project,
any portion thereof which includes the Premises, or against the estate for years
created by any Master Lease, and all renewals, modifications, consolidations,
replacements or extensions thereof, and all indebtedness of other monetary
obligations now or hereafter secured thereby together with all interest thereon.
43.23. "OPERATING COSTS" means all costs incurred by Landlord in
owning, maintaining, repairing, replacing, managing, and operating the Project
during or allocable to the term of the Lease, including, but not limited to, all
costs for (a) utilities, (b) supplies, (c) all insurance maintained by Landlord
(including but not limited to, public liability and property damage, earthquake,
rent continuation, and/or fire and extended coverage insurance for up to the
full replacement cost of the Project), (d) services of independent contractors,
(e) compensation (including employment taxes and fringe benefits) of all persons
who perform regular duties connected with the day-to-day management, operation,
maintenance, repair and overhaul of the Project, including, without limitation,
office personnel for the office of the Project, engineers, janitors, painters,
floor waxers, window washers, parking attendants, watchmen, and gardeners, (f)
management of the Project or any portion of it, (g) rental expenses for, or a
reasonable allowance for depreciation of, personal property used in the
management, maintenance, operation and repair of the Project, (h) performance
of, or any costs incurred in connection with, any REA and CC&R's that may now
exist or may hereafter be entered into by Landlord as permitted herein, and
allocable to the Project, (i) the cost of any capital improvements made to the
Project after the date of the Lease which improvements are either intended to
reduce other Operating Costs, or are required by any Law enacted after the date
of the Lease, in any such case such cost to be amortized over the useful life of
the improvement in question, (j) the cost of providing Basic Services, and (k)
any other costs and expenses incurred by Landlord relating to the Project or
under or relating to the Lease and not reimbursed separately by tenants of the
Project. Operating Costs for any year other than the Base Year shall not be less
than the Operating Costs for the Base Year. Operating Costs for the Base Year
shall not include any capital item amortization or nonrecurring costs and
expenses.
43.24. "PERSON" means an individual, trust, partnership, joint venture,
association, corporation, and any other legal or business entity.
43.25. "PERSONAL PROPERTY" means any trade fixtures, furnishings or
equipment, and all other personal property contained in the Premises from time
to time, including all Tenant alterations.
43.26 "PARKING FACILITIES" means the parking area included within the
Project as designated from time to time by Landlord in its sole and absolute
discretion. Landlord reserves the right to charge a fee on an hourly, daily,
monthly and/or other basis, in Landlord's sole and absolute discretion, for the
use of the Parking Facilities by tenants of and visitors to the Project.
43.27. "PROJECT" means the Building and the land thereunder and related
to the Building, and all roads, plazas, landscaped areas, Common Areas,
improvements and other facilities situated on such land.
43.28. "REA AND CC&RS" means any reciprocal easement and/or operating
agreement, and any covenants, conditions and restrictions, now existing or
hereafter entered into between the owner or ground lessee of the Land, with or
for the benefit of any other party who is the owner or ground lessee of any land
adjacent to or in the vicinity of the Land, including land separated from the
Land by a public right-of-way. Landlord shall be entitled to enter into any
REA(s) and CC&Rs at any time during the Term, and Tenant agrees that the Lease
shall be subordinate and subject to all REAs and CC&Rs now existing or so
entered into by Landlord.
43.29. "RELOCATED PREMISES" means the other premises within the Project
to which Landlord may cause Tenant to relocate as provided in SECTION 2.10.
25
43.30. "RENT" means the aggregate total of all of the following: (a)
the Base Rent payable by Tenant hereunder; (b) all sums designated as
"ADDITIONAL RENT" payable by Tenant hereunder; and (c) any other sums required
to be paid by Tenant hereunder.
43.31. "RULES AND REGULATIONS" means the requirements set forth in
EXHIBIT F and such reasonable and nondiscriminatory additions, modifications and
amendments thereto as Landlord may adopt from time to time for use in the
Project.
43.32. "SYSTEMS AND EQUIPMENT" means any plant, machinery,
transformers, duct work, cable, wires, equipment, facilities, or systems
designed to supply heat, ventilation, air conditioning, humidity, or any other
services or utilities, or comprising or serving as any component or portion of
the electrical, gas, steam, plumbing, sprinkler, communications, alarm,
security, or fire/life/safety systems or equipment, or any other mechanical,
electrical, electronic, computer or other systems or equipment utilized for the
Project or any portion of it.
43.33. "TAXES" means all taxes, assessments, water and sewer charges
and other similar governmental charges levied on or attributable to the Project
or its operation, including, but not limited to, real property taxes and
assessments levied or assessed against the Project, personal property taxes or
assessments levied or assessed against the Project, and any tax measured by
gross rents received from the Project, together with any costs incurred by
Landlord (including attorneys' and other professional and paraprofessional fees
and costs incurred in good faith) in contesting any such taxes, assessments or
charges, but excluding any net income, franchise, capital stock, estate or
inheritance taxes imposed by the state or federal government or by any agency,
branch or department thereof. If at any time during the Term there shall be
levied, assessed or imposed on Landlord or the Project by any governmental
entity, any general or special, ad valorem or specific, excise, capital levy or
other tax, assessment, levy or charge directly on any Rent received under the
Lease or other leases affecting the Project, and/or any license fee, excise or
franchise tax, assessment, levy or charge measured by or based, in whole or in
part, upon any Rent, and/or any transfer, transaction, or similar tax,
assessment, levy or charge based directly or indirectly upon the execution of
the Lease or any document to which Tenant is a party creating or transferring an
interest or estate in the Premises, or the transactions represented by other
leases affecting the Project or based upon a reassessment of the Project, or any
portion thereof, or due to a change in ownership or transfer of all or part of
Landlord's interest in the Lease, the Project, or any portion thereof, and/or
occupancy, use, per capita or other tax, assessment, levy or charge based
directly or indirectly upon the use or occupancy of the Premises or the Project,
then Taxes shall include any such tax, assessment, levy or charge. If the
assessed valuation of, or the taxes, assessments and charges attributable to the
Project, shall not be based upon the Project being at least 95% occupied, then,
for purpose of calculating Tenant's Proportionate Share of Taxes hereunder, such
taxes, assessments and charges shall be adjusted to reflect the amount of such
taxes, assessments and charges that would have been payable if the Project had
been 95% occupied, with the valuation of the Project being based upon rental
income being attributed to the unoccupied portions of the Project at rates equal
to the net effective rental under the Lease. Taxes for the Base Year shall not
include special assessments or nonrecurring charges or levies; Taxes for years
other than the Base Year shall not be less than the Taxes for the Base Year.
43.34. "TENANT ALTERATIONS" means any alterations, additions, or
improvements to the interior of the Premises, including utility installations
and the improvements installed in the Premises at the outset of the Lease, and
whether paid for by Landlord, by Tenant, or otherwise.
43.35. "TENANT'S EMPLOYEES" means, collectively, all of Tenant's
agents, licensees, contractors, subcontractors, employees, directors, officers,
partners, trustees and invitees.
43.36. "TENANT'S PROPORTIONATE SHARE" means the percentage set forth in
SECTION 1.3 of the Lease, pending any change in the rentable area of the
Premises or in the rentable area of the Project.
43.37. "TRANSFER" means any transfer, sale, conveyance, assignment,
subleasing, granting of a license, encumbrance, or hypothecation by Tenant of
all or any part of its interest in the Lease or the Premises, as the case may
be.
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43.38. "TRANSFER DOCUMENTS" means any assignment or sublease or other
document pursuant to which a Transfer is, or is proposed to be, accomplished.
43.39. "TRANSFER NOTICE" shall mean the notice from Tenant to Landlord
required by the terms of SECTION 7.1 as a prerequisite to any Transfer.
43.40. "TRANSFEREE" means any Person to whom a Transfer is made or
proposed to be made.
SECTION 44. COUNTERCLAIM AND JURY TRIAL. IN THE EVENT THAT LANDLORD COMMENCES
ANY SUMMARY PROCEEDINGS OR ACTION FOR NON-PAYMENT OF RENT OR OTHER CHARGES
PROVIDED IN THIS LEASE, TENANT SHALL NOT INTERPOSE ANY COUNTERCLAIM OF ANY
NATURE OR DESCRIPTION IN ANY SUCH PROCEEDING OR ACTION. TENANT AND LANDLORD BOTH
WAIVE A TRIAL BY JURY OF ANY AND ALL ISSUES ARISING IN ANY ACTION OR PROCEEDING
BETWEEN THE PARTIES HERETO OR THEIR AFFILIATES, UNDER OR CONNECTED WITH THIS
LEASE, ANY OF ITS PROVISIONS, OR ANY TRANSACTIONS OR AGREEMENTS SET FORTH HEREIN
OR CONTEMPLATED HEREBY.
SECTION 45. QUITCLAIM DEED. At the expiration or earlier termination of this
Lease, Tenant shall, upon the request of Landlord, execute, acknowledge, and
deliver to Landlord, within five (5) days after such request, any quitclaim deed
or other documents to remove the cloud of this Lease from the Premises.
IN WITNESS WHEREOF, the parties have executed this Lease on the day and
year specified above.
"TENANT":
XXXXXXX.XXX, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------
Xxxxxxx Xxxxxxxxx
Its: President
By: /s/ Xxxxx Xxxxxxxxx
------------------------
Its: COO/Chief of Operations
"LANDLORD":
L.V. ATRIUM, INC., A CALIFORNIA CORPORATION
By: /s/ Xxxxxxx Xxxxxxx
------------------------
Its: Senior VP
27
EXHIBIT A
FLOOR PLAN OF PREMISES
(Map of floor plan here)
28
EXHIBIT B
STATEMENT OF COMMENCEMENT DATE
Date: _______ February 5, 1999
Date of Lease:____ February 5, 1999
The undersigned hereby agree that the Commencement Date and Expiration
Date of the above-referenced Lease shall be:
Commencement Date: April 1, 1999
Expiration Date: Xxxxx 00, 0000
Xxxxx 000 - Xxxxx 31, 2003
Suite 810 - March 31, 2003
The Expiration Date set forth above shall not limit any options to
extend the term contained in the Lease.
"LANDLORD":
L.V. ATRIUM, INC., A CALIFORNIA CORPORATION
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------
Its: Senior V.P.
"TENANT":
XXXXXXX.XXX, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------
Its: President & C.E.O.
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------
Its: Chief of Operations
29
EXHIBIT C
WORK LETTER
Landlord shall provide tenant improvements to space consist of:
Install one door connecting Suite 650 to Suite 660 Provide separate
HVAC to the data processing area within the Premises Install 20
electrical outlets in the data processing area Install one door at
opening within Suite 650 Perform fire and life safety work required by
law Add Tenant's name to existing Monument Sign
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EXHIBIT D
RULES AND REGULATIONS
These Rules and Regulations are in addition to the terms,
covenants, agreements and conditions of any lease of space in the Project. In
the event these Rules and Regulations conflict with any provision of the Lease,
the Lease shall control. Landlord reserves the right to modify and make such
other and reasonable Rules and Regulations as, in its judgment, may from time to
time be needed for safety and security, for care and cleanliness of the Project
and for the preservation of good order therein. Tenant agrees to abide by all
such Rules and Regulations hereinabove stated and any additional rules and
regulations which are adopted. Tenant shall be responsible for the observance of
all the foregoing Rules and Regulations by Tenant's employees, agents, clients,
customers, invitees and guests. Landlord may waive any one or more of these
Rules and Regulations for the benefit of Tenant or any other occupant of the
Project, but no such waiver by Landlord shall be construed as a waiver of such
Rules and Regulations in favor of Tenant or any other occupant, nor prevent
Landlord from thereafter enforcing any such Rules and Regulations against any or
all of the occupants of the Project, including Tenant.
1. SIGNS/ADVERTISING. No sign, placard, picture, advertisement, name or notice
shall be installed or displayed on any part of the outside or inside of the
Project without the prior written consent of Landlord. Landlord shall have the
right to remove, at Tenant's expense and without notice, any sign installed or
displayed in violation of this rule. Except for retail tenant, all approved
signs or lettering on doors, windows and walls shall be printed, painted,
affixed or inscribed at the expense of Tenant by a person chosen by Landlord,
using materials of Landlord's choice and in a style and format approved in
writing by Landlord.
2. NO OBSTRUCTIONS. Tenant shall not obstruct any sidewalks, halls, exits,
entrances, elevators, stairways or other passageways of the Project. The halls,
exits, entrances, malls, elevators, stairways and other passageways are not for
the general public, and Landlord shall in all cases retain the right to control
and prevent access thereto by all persons whose presence, in the judgment of
Landlord, would be prejudicial to the safety, character, reputation or other
interests of the Project and its tenants; however, nothing herein shall be
construed to prevent access to the Premises by persons with whom Tenant normally
deals in the ordinary course of its business, unless such persons are engaged in
illegal activities. Neither Tenant nor any employee or invitee of Tenant shall
go upon the roof of the Project without Landlord's consent. Tenant shall not
have the right to maintain displays of or to sell merchandise in the Common
Areas or to use Common Areas in any manner which would interfere with the rights
of other tenants to use and access Common Areas.
3. DIRECTORY. The directory of the Project, if any, will be provided exclusively
for the display of the name and location of tenants only, and Landlord reserves
the right to exclude any other names therefrom.
4. CLEANING/JANITORIAL. Except for retail tenants, all cleaning and janitorial
services for the Project and the Premises shall be provided exclusively through
Landlord, and except with the written consent of Landlord, no person or persons
other than those approved by Landlord shall be employed by Tenant or permitted
to enter the Project for the purpose of cleaning the same. Tenant shall not
cause any unnecessary labor by carelessness or indifference to the good order
and cleanliness of the Premises. Landlord shall not in any way be responsible to
Tenant for any loss of property on the Premises, however occurring, or for any
damage to Tenant's property by the janitor or any other employee or any other
person.
5. KEYS. Landlord will furnish Tenant, free of charge, with two keys to each for
lock in the Premises. Landlord may make a reasonable charge for any additional
keys. Tenant, upon the termination of its tenancy, shall deliver to Landlord the
keys of all doors which have been furnished to Tenant, and in the event of loss
of any keys so furnished, shall pay Landlord therefor.
31
6. ALARMS. If Tenant requires telephonic, burglar alarm or similar services, it
shall first obtain Landlord's approval thereof, which shall not be unreasonably
withheld by Landlord, and Tenant shall comply with all of Landlord's
instructions in their installation.
7. FREIGHT ELEVATOR. Any freight elevator shall be available for use by all
occupants of the Project, subject to such reasonable scheduling as Landlord in
its discretion shall deem appropriate. No equipment, materials, furniture,
packages, supplies, merchandise or other property will be received in the
Project or carried in the elevators except between such hours and in such
elevators as may be designated by Landlord.
8. FLOOR LOADING. Tenant shall not place a load upon any floor of the Premises
which exceeds the load per square foot which such floor was designed to carry
and which is allowed by law. Landlord and Landlord's consultant, the cost of
which consultant shall be borne by Tenant, shall have the right to prescribe the
weight, size and position of all equipment, materials, furniture or other
property brought into the Project. Heavy objects, if such objects are considered
necessary by Tenant, shall stand on such platforms as determined by Landlord or
its consultant to be necessary to properly distribute the weight. Business
machines and mechanical equipment belonging to Tenant which cause noise or
vibration that may be transmitted to the structure of the Project or to any
space therein to such a degree as to be objectionable to Landlord or to any
other occupant of the Project, shall be placed and maintained by Tenant, at
Tenant's expense, on vibration eliminators or other devices sufficient to
eliminate noise or vibration. The persons employed to move such equipment in or
out of the Project must be approved by Landlord. Landlord will not be
responsible for loss of, or damage to, any such equipment or other property from
any cause, and all damage done to the Project by maintaining or moving such
equipment or other property shall be repaired at the expense of Tenant. If
Tenant fails to repair in an expeditious manner any and all damage caused, then
Landlord may (but shall not be obligated to) contract for the performance of the
repair work, which work shall be billed to Tenant and shall be payable by Tenant
to Landlord as Additional Rent within 10 days after Tenant's receipt of the
billing.
9. FLAMMABLE; TOXIC MATERIAL. Tenant shall not use or keep in the Premises any
kerosene, gasoline or inflammable or combustible fluid or material except in
those limited quantities necessary for the operation or maintenance of office
equipment, and then only in such a manner as to ensure the safety of the
Premises. Tenant shall not use or permit to be used in the Premises any foul or
noxious gas or substance, or permit or allow the Premises to be occupied or used
in a manner offensive or objectionable to Landlord or other occupant of the
Project by reason of noise, odors or vibrations, nor shall Tenant bring into or
keep in or about the Premises any birds or animals, except seeing-eye dogs when
accompanied by their masters.
10. SUPPLEMENTAL HVAC. Tenant shall not use any method of heating or air
conditioning other than that supplied or approved in writing by Landlord.
11. WASTAGE. Tenant shall not waste electricity, water, air conditioning or
other utilities or supplies furnished to the Premises, and Tenant agrees to
cooperate fully with Landlord to assure the most effective operation of the
Project's heating, air conditioning and other utility distribution systems, and
to comply with any governmental energy-saving rules, laws or regulations of
which Tenant has actual notice. Tenant shall refrain from attempting to adjust
controls other than room thermostats installed in the Premises and intended for
Tenant's use. Tenant shall keep corridor doors closed, and shall close window
coverings at the end of each business day. Heat and air conditioning shall be
provided during ordinary business hours of generally recognized business days,
but not less than the hours of 8:00 a.m. to 6:00 p.m. on Monday through Friday
and 9:00 a.m. to 1:00 p.m. on Saturday (excluding in any event Sundays and
holidays, it being understood that holidays shall mean and refer to those
holidays of which Landlord provides Tenant with reasonable prior written notice
which shall in any event include, without limitation, state and federal holidays
and those holidays on which the New York Stock Exchange is closed).
12. EXCLUSION OF PERSONS. Landlord reserves the right to exclude from the
Project (other than from retail tenants' premises which are open for business)
between the hours of 6:00 p.m. any day and 8:00 a.m. the following day, or such
other hours as may be established from time to time by Landlord, and on
Saturdays, Sundays and legal holidays, any person unless that person is known to
the person or employee in charge of the Project, or has a valid pass and is
properly identified. Tenant shall be responsible for all persons for whom it
requests passes and shall be liable to Landlord for
32
acts of such persons. Landlord shall not be liable for damages for any error
with regard to the admission to or exclusion from the Project of any person.
Landlord reserves the right to prevent access to the Project in case of
invasion, mob, riot, public excitement or other commotion by closing the doors
or by other appropriate action. Landlord reserves the right to exclude or expel
from the Project any person who, in Landlord's judgment, is intoxicated, or
under the influence of liquor or drugs, or who is in violation of any of the
Rules and Regulations of the Project.
13. TENANT SECURITY. Tenant shall close and lock the doors of the Premises and
entirely shut off all water faucets or other water apparatus, and, except with
regard to Tenant's computers and other equipment which require utilities on a
24-hour basis, all electricity, gas or air outlets before Tenant and its
employees leave the Premises each day. Tenant shall be responsible for any
damage or injuries sustained by other occupants of the Project or by Landlord
for noncompliance with this rule. Tenant assumes any and all responsibility for
protecting the Premises from theft, robbery and pilferage, which includes
keeping doors locked and other means of entry to the Premises closed.
14. EXTRA SERVICES. Office tenants shall not obtain for use on the Premises ice,
drinking water, food, beverage, towel or other similar services, nor accept
barbering or bootblacking services upon the Premises, except at such hours and
under such regulations as may be fixed by Landlord.
15. LAVATORIES. The toilet rooms, toilets, urinals, wash basins and other
apparatus shall not be used for any purpose other than that for which they were
constructed, and no foreign substance of any kind whatsoever shall be thrown
therein. The expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by Tenant if and to the extent caused by
Tenant or its employees or invitees.
16. NO SALES. Except as specifically permitted in the Basic Lease Provisions,
Tenant shall not sell, or permit the sale of newspapers, magazines, periodicals,
theater tickets or any other goods or merchandise to the general public from the
Premises. Tenant shall not make any room-to-room or public area solicitation of
business from other occupants of the Project or their employees or guests.
Tenant shall not use the Premises for any business or activity other than that
specifically provided in Tenant's Lease.
17. DAMAGE. Tenant shall not xxxx, drive nails, screw or drill into the
partitions, woodwork or plaster or in any way deface the Premises or any part
thereof, except to install decorative wall hangings. Landlord reserves the right
to direct electricians as to where and how telephone, telegraph,
telecommunication and computer wires are to be introduced to the Premises.
Tenant shall not cut or bore holes for wires. Tenant shall not affix any floor
covering to the floor of the Premises in any manner except as approved by
Landlord. Tenant shall repair any damage resulting from non-compliance with this
rule. If Tenant fails to repair in an expeditious manner any and all damage
caused, then Landlord may (but shall not be obligated to) contract for the
performance of the repair work, which work shall be billed to Tenant and shall
be payable by Tenant to Landlord as additional rent within 10 days after
Tenant's receipt of the billing.
18. VENDING MACHINES. Tenant shall not install, maintain or operate upon the
Premises any vending machine without the written consent of Landlord.
19. REFUSE. Tenant shall store all its trash and garbage within its Premises.
Tenant shall not place in any trash box or receptacle any material which cannot
be disposed of in the ordinary and customary manner of trash and garbage
disposal. All garbage and refuse disposal shall be made in accordance with
directions issued from time to time by Landlord.
20. STORAGE. Except as specifically permitted in the Basic Lease Provisions, the
Premises shall not be used for the storage of merchandise held for sale to the
general public, nor for lodging, nor for manufacturing of any kind, nor shall
the Premises be used for any improper, immoral or objectionable purpose. Other
than restaurants, no cooking shall be done or permitted by Tenant in the
Premises, except that use by Tenant of Underwriters' Laboratory-approved
equipment for brewing coffee, tea, hot chocolate and similar beverages shall be
permitted, and the use of a microwave oven shall be permitted, so long as such
equipment and use is in accordance with all recommendations of the manufacturer
thereof and all applicable Laws.
33
21. NO BLOCKAGE. Tenant shall not use in any space or in the public halls of the
Project any mail carts or hand trucks except those equipped with rubber tires
and side guards or such other material handling equipment as Landlord may
approve.
22. SAFETY COMPLIANCE. Tenant shall comply with all safety, fire protection and
evacuation procedures and regulations established by Landlord and any
governmental agency.
23. LANDLORD RESPONSE. The requirements of Tenant will be attended to only upon
appropriate application to the office of the Project by an authorized
individual. Employees of Landlord shall not be required to perform any work or
do anything outside of their regular duties unless under special instructions
from Landlord, and no employee of Landlord shall be required to admit any person
(Tenant or otherwise) to any office without specific instructions from Landlord.
34
ADDENDUM TO THE ATRIUM OFFICE LEASE
BETWEEN L.V. ATRIUM, INC., A CALIFORNIA CORPORATION AS LANDLORD
AND
XXXXXXX.XXX, INC. AS TENANT
Dated: July 1, 1999
The terms of this Addendum shall supplement, amend and, to the extent
in conflict with the provisions of the Lease, supersede the above-referenced
Lease, to which this Addendum is attached.
SECTION 46 CONDITIONAL FIRST REFUSAL RIGHT. The first time on or after the date
of this Lease that the premises currently identified as Suite 600 in the
Building and/or the premises currently identified as Suite 625 in the Building
(collectively, such two Suites consist of approximately 5,090 leasable square
feet and are referred to as the "EXPANSION PREMISES") is (or are) anticipated by
Landlord to become the subject of a lease negotiation between Landlord or its
representatives and a third party prospective tenant, Landlord shall give Tenant
a written notice of that fact within a reasonable time thereafter (each such
notice is referred to herein as a "LANDLORD'S NOTICE"). Each time that Landlord
gives the Landlord's Notice to Tenant, Tenant shall have the right (that right
is referred to as the "FIRST REFUSAL RIGHT") to lease such portion of the
Expansion Premises as is specified in the Landlord's Notice, on the same terms
and conditions as those under which Tenant is in possession of the Premises
demised under this Lease and for a term of four years from the date on which
Tenant takes possession of such portion of the Expansion Premises, except that
the Base Rent per square foot for such portion of the Expansion Premises as to
which Tenant exercises the First Refusal Right shall be $1.65 per rentable
square foot during the calendar year 1999, such $1.65 per rentable square foot
increasing by five cents per rentable square foot during each calendar year
thereafter, in all cases pro-rated for partial calendar years, and with Landlord
only required to provide its standard tenant improvements in or with respect to
the Expansion Premises; provided, however, that Landlord unilaterally and in its
sole and absolute discretion may revoke the First Refusal Right at any time if
Tenant (a) has not fully and timely paid and performed each and every term,
covenant, obligation and condition of this Lease required to be performed by
Tenant from and after the date hereof through and including the date on which
Tenant would, but for this proviso, take possession of and occupy the portion of
the Expansion Premises (as that term is defined below) with respect to which the
determination as to such payment and performance is being made, or (b) fails to
give written notice to Landlord of Tenant's exercise of the First Refusal Right
within fifteen (15) days after the date on which Landlord gives Tenant the
Landlord Notice. If Landlord is obligated to return Tenant's entire security
deposit with respect to Suite 900 in the Building at the time Tenant exercises
its First Refusal Right, Landlord may elect to hold that security deposit as an
addition to the Security Deposit with respect to the Expansion Premises. If
Landlord has already returned and/or applied all or a portion of Tenant's
security deposit with respect to Suite 900 in the Building at the time Tenant
exercises its First Refusal Right, Tenant shall post an addition to the Security
Deposit with respect to the Expansion Premises, which addition to the Security
Deposit shall be proportionately equal to the security deposit previously
provided by tenant in connection with its lease of said Suite 900 in the
Building.
SECTION 47 CONDITIONAL DEFERRALS AND ABATEMENTS OF PORTIONS OF BASE RENT.
Subject to the next sentence of this Section 47, Tenant shall be entitled to a
deferral of 50% of the installments of Base Rent payable pursuant to Section 3.1
of this Lease (including Base Rent for the Expansion Premises, if applicable) on
each of January 1, 2000, January 1, 2001 and January 1, 2002, but not those
installments payable on any other date (each such deferral is referred to as a
"DEFERRAL" and collectively they are referred to as the "DEFERRALS"); provided
that Tenant has fully and timely paid and performed each and every term,
covenant, obligation and condition of this Lease required to be performed by
Tenant from and after the date hereof through and including the date on which
the payment of that installment of Base Rent is due. If at any time between the
date hereof and the date on which this Lease or the lease with respect to the
Expansion Premises, whichever ends later, ends Tenant has not fully and timely
paid and performed each and every term, covenant,
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obligation and condition of this Lease required to be performed by Tenant, all
prior Deferrals, if any, shall be and become immediately due and payable and,
notwithstanding the preceding sentence of this Section 47, there shall be no
further Deferrals under this Section 47. If at the time of the termination of
this Lease or the lease with respect to the Expansion Premises, whichever ends
later, tenant shall have fully and timely paid and performed all of the terms,
covenants, obligations and conditions of this Lease required to be performed by
Tenant, all Deferrals shall be abated and Tenant's obligations to pay the
amounts thereof to Landlord shall expire.
SECTION 48 BASE RENT ABATEMENT PROVISION. Except to the extent provided in
Section 9 of this Lease regarding damage and/or destruction and as provided in
this Section 48, Tenant shall be entitled to no abatement or offset of Base
Rent, Additional Rent, Operating Costs or other amounts that Tenant is required
to pay pursuant to this Lease.
Tenant shall be entitled to an abatement pursuant to this Section 48 of
Base Rent payable pursuant to Section 3.2.2 of the Lease if and only if (a) the
entire Premises are rendered unsuitable for the conduct of Tenant's business for
a period in excess of five (5) business days, which unsuitability is directly
and solely caused by Landlord's failure to provide electricity to the Premises
during that entire period of time in breach of Landlord's obligations under this
Lease, and (b) Tenant gives Landlord written notice of the commencement of such
unsuitability within two (2) business days after the commencement thereof, which
notice specifically references this Section 48 and specifies that (x) Landlord
is in breach of its obligations to provide electricity to the Premises, (y) the
Premises are rendered unsuitable for the conduct of Tenant's business directly
and solely as a result of that breach by Landlord, and (z) as a result of that
breach by Landlord, Tenant shall be entitled to an abatement of Base Rent
pursuant to the provisions of Section 48 of the Lease. Landlord and Tenant shall
thereafter consult in good faith to determine if there are temporary measures
which can be taken which will eliminate the need for any such abatement of Base
Rent. The provisions of this Section 48 are personal to the tenant named in
Section 1.1 of this Lease, and shall not apply to any successor or assign of
such named Tenant.
SECTION 49 INSTALLATION OF SATELLITE DISH. Tenant shall be permitted to install
one satellite dish, not exceeding 28 inches in diameter, on the roof of the
Building in a location designated by Landlord, but only if all of the
requirements and conditions set forth in this Section 49 are met. Tenant shall
give Landlord not less than 60 days' prior written notice of its intention to
install such satellite dish, which notice must contain all specifications
related to such dish and its installation, including detailed drawings related
thereto. Prior to such installation, Tenant shall have obtained all building and
other permits and licenses that are, or that the Landlord shall determined to
be, necessary or appropriate for the installation and use of such satellite
dish. Tenant shall cause such installation to be made (a) by contractors
approved by Landlord and in a manner that eliminates any possibility of a
mechanics lien being imposed on Landlord with respect to any work or materials
related to such satellite dish or the installation thereof, (b) in a manner that
has no effect on any installations of any other tenant on the roof of the
Building or any structural aspects of the Project and (c) in a manner that will
not weaken or impair the structural strength of the Project. Tenant shall cause
the installation, use and operation of such satellite dish to not adversely
affect or increase demands on any of the mechanical, electrical, sanitary, or
other Systems and Equipment. The provisions of Section 4 of this Lease shall
apply to the installation of a satellite dish by or on behalf of Tenant.
Subsequent to Tenant's installation of a satellite dish, Tenant promptly shall
obtain all permits and licenses that are, or that the Landlord shall determine
to be, necessary or appropriate for the use and operation of such satellite
dish. Upon installation of such satellite dish by or on behalf of Tenant, it
shall be deemed to be a Tenant Alteration for all purposes of this Lease. For
the period of time from and including the day on which Tenant commences the
installation of a satellite dish on the roof of the Building through the end of
the term of this Lease, the Base Rent payable under this Lease, the Base Rent
payable under this Lease shall increase by $300 per calendar month, prorated for
any partial calendar month.
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