BUSINESS CENTER LEASE
000 XXXXXXXXX XXXXXXXXX LLC
AND
ION NETWORKS, INC.
July 21, 2003
TABLE OF CONTENTS
ARTICLE 1.00 BASIC LEASE INFORMATION........................................1
ARTICLE 2.00 AGREEMENT......................................................2
ARTICLE 3.00 TERM, DELIVERY AND ACCEPTANCE OF PREMISES......................2
3.01 GENERAL..........................................................2
3.02 FAILURE TO DELIVER POSSESSION....................................2
3.03 EARLY ACCESS.....................................................2
3.04 CONDITION OF THE PREMISES........................................3
ARTICLE 4.00 MONTHLY BASE RENT..............................................3
4.01 GENERAL..........................................................3
4.02 ANNUAL MONTHLY BASE RENT ADJUSTMENT..............................3
ARTICLE 5.00 COMMON AREA MAINTENANCE, OPERATING EXPENSES....................3
5.01 GENERAL..........................................................3
5.02 ESTIMATED PAYMENTS...............................................4
5.03 ANNUAL SETTLEMENT................................................4
5.04 PRORATION UPON TERMINATION.......................................5
5.05 OTHER TAXES......................................................5
5.06 ADDITIONAL RENT..................................................5
ARTICLE 6.00 INSURANCE......................................................5
6.01 LANDLORD'S INSURANCE.............................................5
6.02 TENANT'S INSURANCE...............................................5
6.03 FORMS OF THE POLICIES............................................6
6.04 ADEQUACY OF COVERAGE.............................................6
6.05 INADEQUATE INSURANCE.............................................6
ARTICLE 7.00 UTILITIES AND SERVICES.........................................6
ARTICLE 8.00 PROPERTY USE; .................................................6
8.01 USE - GENERAL....................................................6
8.02 OPERATION OF TENANT'S BUSINESS...................................7
8.03 MANNER OF CONDUCTING BUSINESS....................................7
8.04 TENANT PARKING...................................................7
8.05 EXCLUSIVE USE....................................................7
ARTICLE 9.00 REQUIREMENTS OF LAW; FIRE INSURANCE............................7
9.01 GENERAL..........................................................7
9.02 TOXIC MATERIALS..................................................7
9.03 CERTAIN INSURANCE RISKS..........................................8
9.04 TENANT'S INSURANCE PAYMENTS......................................8
ARTICLE 10.00 ASSIGNMENT AND SUBLETTING.....................................8
10.01 GENERAL.........................................................8
10.02 LIMITATION ON REMEDIES..........................................8
ARTICLE 11.00 COMMON AREAS..................................................9
ARTICLE 12.00 LANDLORD'S SERVICES...........................................9
12.01 LANDLORD'S REPAIR AND MAINTENANCE...............................9
12.02 LANDLORD'S SERVICES............................................10
12.03 LIMITATION ON LIABILITY........................................10
ARTICLE 13.00 TENANT'S REPAIRS.............................................10
ARTICLE 14.00 ALTERATIONS..................................................11
ARTICLE 15.00 MECHANICS' LIENS.............................................12
ARTICLE 16.00 END OF TERM..................................................12
ARTICLE 17.00 EMINENT DOMAIN...............................................12
ARTICLE 18.00 DAMAGE AND DESTRUCTION.......................................13
ARTICLE 19.00 SUBORDINATION................................................14
19.01 GENERAL........................................................14
19.02 ATTORNMENT.....................................................14
ARTICLE 20.00 ENTRY BY LANDLORD............................................15
ARTICLE 21.00 INDEMNIFICATION, WAIVER AND RELEASE..........................15
21.01 INDEMNIFICATION................................................15
21.02 WAIVER AND RELEASE.............................................15
ARTICLE 22.00 SECURITY DEPOSIT.............................................16
ARTICLE 23.00 QUIET ENJOYMENT..............................................16
ARTICLE 24.00 EFFECT OF SALE...............................................16
ARTICLE 25.00 DEFAULT......................................................16
25.01 EVENTS OF DEFAULT..............................................16
25.02 LANDLORD'S REMEDIES............................................17
25.03 CERTAIN DAMAGES................................................18
25.04 CONTINUING LIABILITY AFTER TERMINATION.........................18
25.05 CUMULATIVE REMEDIES............................................18
ARTICLE 26.00 RULES AND REGULATIONS........................................18
ARTICLE 27.00 SIGNS........................................................19
ARTICLE 28.00 MISCELLANEOUS................................................19
28.01 NO OFFER.......................................................19
28.02 JOINT AND SEVERAL LIABILITY....................................19
28.03 NO CONSTRUCTION AGAINST DRAFTING PARTY.........................19
28.04 TIME OF THE ESSENCE............................................19
28.05 NO RECORDATION.................................................19
28.06 NO WAIVER......................................................20
28.07 LIMITATION ON RECOURSE.........................................20
28.08 ESTOPPEL CERTIFICATES..........................................20
28.09 WAIVER OF JURY TRIAL...........................................20
28.10 NO MERGER......................................................20
28.11 HOLDING OVER...................................................20
28.12 NOTICES........................................................20
28.13 SEVERABILITY...................................................21
28.14 WRITTEN AMENDMENT REQUIRED.....................................21
28.15 ENTIRE AGREEMENT...............................................21
28.16 CAPTIONS.......................................................21
28.17 NOTICE OF LANDLORD'S DEFAULT...................................21
28.18 AUTHORITY......................................................21
28.19 BROKERS........................................................21
28.20 GOVERNING LAW..................................................21
28.21 FORCE MAJEURE..................................................21
28.22 LATE PAYMENTS..................................................22
28.23 NO EASEMENTS FOR AIR OR LIGHT..................................22
28.24 TAX CREDITS....................................................22
28.25 RELOCATION OF PREMISES........................................22
28.26 LANDLORD'S FEES................................................22
28.27 BINDING EFFECT.................................................22
BUSINESS CENTER LEASE
THIS BUSINESS CENTER LEASE is entered into by Landlord and Tenant
described in the following Basic Lease Information on the Date which is set
forth for reference only in the following Basic Lease Information.
Landlord and Tenant agree:
ARTICLE 1.00 BASIC LEASE INFORMATION
In addition to the terms which are defined elsewhere in this Lease,
the following defined terms are used in this Lease:
(a) DATE: July 21, 2003
(b) TENANT: ION Networks, Inc.
(c) TENANT'S ADDRESS: 0000 X. Xxxxxxxxxx Xxx
Xxxxxxxxxx, XX 00000
Phone # (000) 000-0000
Federal I.D. No. or SSN: ______________________
(d) LANDLORD: 000 XXXXXXXXX XXXXXXXXX LLC
(e) LANDLORD'S ADDRESS: 000 X. Xxxxxxxx Xxxxxxxx
X.X. Xxx 000
Xxxxxx, Xxx Xxxxxx 00000
with a copy at the
same time to: None
(f) BUSINESS CENTER ADDRESS: 000 Xxxxxxxxx Xxxx.
Xxxxx Xxxxxxxxxx, XX
(g) LEASE COMMENCEMENT DATE: August 1, 2003 or Landlord
Delivery in accordance with Workletter Exhibit C, whichever first occurs. Rent
to commence 60 days from Lease Commencement Date.
(h) EXPIRATION DATE: July 31, 2006
(i) SECURITY DEPOSIT: $12,836.00
(j) FIRST MONTH'S MONTHLY BASE RENT: $4,505.00
(k) MONTHLY BASE RENT: $4,505.00
(l) LEASABLE AREA OF THE PREMISES: 7,000 s.f.
(m) LEASABLE AREA OF THE BUSINESS CENTER: 84,884 s.f.
(n) TENANT'S PRO RATA SHARE (of (n) above): 8.32%
(o) FIRST CALENDAR YEAR ESTIMATED MONTHLY PAYMENT FOR
OPERATING EXPENSES: $1,913.00
(p) USE PERMITTED: The Tenant covenants and agrees to use the
Leased Premises for Office, Light Manufacturing/Assembly, and Warehouse purposes
only. Also, Tenant's use of the Leased Premises is and shall be expressly
subject to all applicable zoning ordinances, rules and regulations of any
governmental instrumentalities, boards or bureaus having jurisdiction thereof.
Tenant agrees not to use or permit the Leased Premises to be used for any other
purpose without the prior written consent of the Landlord.
(q) BROKER: None
(r) GUARANTOR: None
(s) ADDITIONAL RENT: In addition to monthly base rent, Tenant
shall pay during the Lease term additional rent consisting of all other sums of
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money, costs, expenses, fees or charges of any kind or amount whatsoever which
Tenant assumes or agrees to pay, or which becomes due and payable by Tenant to
Landlord pursuant to this Lease. Tenant shall pay Fixed Rent and Additional Rent
when same becomes due and payable without any demand and without any abatement,
deduction or set-off whatsoever. Fixed Rent and Additional Rent due and payable
for any partial month of Tenant's occupancy shall be prorated and paid together
with the fixed rent due and payable on the first day of the month subsequent to
the commencement date of the lease term. If tenant fails to pay any Fixed Rent
or Additional Rent, Landlord shall have available to it the remedies listed in
Article 25.02 in addition to any other remedies provided by law or equity. For
purposes of this Lease, Additional Rent includes any and all sums as shall
become due to the Landlord under this Lease that do not constitute Fixed Rent.
Unless otherwise provided herein, any and all costs incurred in connection with
this tenancy shall be Tenant's responsibilities and shall be considered
Additional Rent. Any amounts, including without limitation Operating Expenses,
which this Lease requires Tenant to pay in addition to Monthly Base Rent.
(t) LAND: The land on which the Business Center is located and
which is more particularly described on Exhibit A to this Lease.
(u) PREMISES and LEASABLE AREA: The Premises shown on Exhibit
B to this Lease and known as Unit 104. The Premises do not include, and Landlord
reserves, the exterior walls and roof of the Premises, the land beneath the
Premises, the pipes and ducts, conduits, wires, fixtures and equipment above the
suspended ceiling or structural elements which serve the Premises or the
Business Center; however, Landlord has the right to enter the Premises in order
to install, inspect, maintain, use, repair and replace those areas and items
described in the preceding sentence. Notwithstanding this paragraph, "Leasable
Area of Premises" is defined as the area measured from the outside of the
exterior wall to outside of the exterior wall. In the event that a wall is an
interior, then the measurement is made to the center of the interior wall.
(v) BUSINESS CENTER: The Business Center consisting of the
Land and all improvements built on the Land, including without limitation the
parking lot, parking structure (if any), walkways, driveways, fences, and
landscaping.
(w) RENT: The Monthly Base Rent and Additional Rent.
These exhibits are attached to this Lease and are made parts
of this Lease:
EXHIBIT A - Legal Description of the Business Center
EXHIBIT B - The Premises
EXHIBIT C - Workletter
EXHIBIT D - Rules and Regulations
EXHIBIT E - Sign Criteria
EXHIBIT F - Environmental Specification
EXHIBIT G - Option to Renew
ARTICLE 2.00 AGREEMENT
Landlord leases the Premises to Tenant, and Tenant leases the Premises from
Landlord, according to this Lease.
ARTICLE 3.00 TERM, DELIVERY AND ACCEPTANCE OF PREMISES
3.01 GENERAL. The duration of this Lease will be the "Term". The Term will
commence on the Commencement Date, and will expire on the Expiration Date.
3.02 FAILURE TO DELIVER POSSESSION. If for any reason Landlord cannot
deliver possession of the Premises to Tenant on the Commencement Date, (a) this
Lease will not be void or voidable, (b) Landlord will not be liable to Tenant
for any resultant loss or damage, and (c) unless Landlord is unable to deliver
possession of the Premises to Tenant on the Commencement Date because of
Tenant's delays, Rent will be waived for the period between the Commencement
Date and the date on which Landlord delivers possession of the Premises to
Tenant. If delivery of possession of the Premises is delayed beyond the
Commencement Date and Tenant is not responsible for delays in completion of the
Premises, (i) the Commencement Date will be extended automatically, one day for
each day after the Commencement Date and before delivery of possession; and (ii)
Landlord and Tenant will execute a certificate of the Commencement Date.
Landlord will construct or install in the Premises the improvements to be
constructed or installed by Landlord according to Exhibit C. Landlord will be
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deemed to have delivered possession of the Premises to Tenant on the tenth
(10th) day after Landlord gives Tenant written notice either that Landlord has
substantially completed the improvements or that Landlord will have
substantially completed the improvements within ten (10) days after such notice,
in either case subject only to the completion of Landlord's "punch-list" items
which do not materially interfere with Tenant's use and enjoyment of the
Premises.
3.03 EARLY ACCESS. If Tenant is permitted access (and Landlord will not
unreasonably withhold or delay consent for Tenant to have early access) to the
Premises prior to the Commencement Date for the purpose of installing fixtures
or any other purpose permitted by Landlord, such early entry will be at Tenant's
sole risk and subject to all the terms and provisions of this Lease as though
the Commencement Date had occurred, except for the payment of Monthly Base Rent
which will commence on the Commencement Date. Tenant, its agents or employees
will not interfere with or delay Landlord's completion of construction of the
improvements and all rights of Tenant under this Section 3.03 will be subject to
the requirements of all applicable building codes and zoning requirements so as
not to interfere with Landlord's obtaining of a certificate of occupancy for the
Premises. Landlord has the right to impose such additional conditions on
Tenant's early entry as Landlord, in its sole discretion, deems appropriate, and
will further have the right to require that Tenant execute an early entry
agreement containing such conditions prior to Tenant's early entry.
3.04 CONDITION OF THE PREMISES. Prior to the Commencement Date, Tenant
will conduct a walk-through inspection of the Premises with Landlord and prepare
a punch-list of items needing additional work by Landlord. Other than the items
specified in the punch-list, by taking possession of the Premises Tenant will be
deemed to have accepted the Premises in their condition on the date of delivery
of possession. The punch-list will not include any damage to the Premises caused
by Tenant's move-in or early access, if permitted. Damage caused by Tenant will
be repaired or corrected by Landlord, at Tenant's expense. Tenant acknowledges
that neither Landlord nor its agents or employees have made any representations
or warranties as to the suitability or fitness of the Premises for the conduct
of Tenant's business or for any other purpose, nor has Landlord or its agents or
employees agreed to undertake any alterations or construct any improvements to
the Premises except as expressly provided in this Lease and Exhibit C to this
Lease. If Tenant fails to submit a punch-list to Landlord prior to the
Commencement Date, it will be deemed that there are no items needing additional
work or repair. Landlord's contractor will complete all reasonable punch-list
items within thirty (30) days after the walk-through inspection or as soon as
practicable after such walk-through.
ARTICLE 4.00 MONTHLY BASE RENT
4.01 GENERAL. Throughout the Term of this Lease, Tenant will pay Monthly
Base Rent to Landlord as rent for the Premises. Monthly Base Rent will be paid
in advance on or before the first day of each calendar month of the Term. If the
Term commences on a day other than the first day of a calendar month or ends on
a day other than the last day of a calendar month, then Monthly Base Rent will
be appropriately prorated by Landlord for such month. If the Term commences on a
day other than the first day of a calendar month, then the prorated Monthly Base
Rent for such month will be paid on or before the first day of the Term. Monthly
Base Rent will be paid to Landlord, without notice or demand, and without
deduction or offset, in lawful money of the United States of America at
Landlord's address, or to such other person or at such other place as Landlord
may from time to time designate in writing. In the event of the existence of any
rent, additional rent or other charges and expenses contemplated this Lease
which are in arrears, Landlord shall credit any payments first to such arrears
and then to Tenant's current obligations.
4.02 ANNUAL MONTHLY BASE RENT ADJUSTMENT.
YEAR BASE RENT ANNUALLY BASE RENT MONTHLY
---- ------------------ -----------------
08/01/03-09/30/03 $0 $0
10/01/03-07/31/04 $54,060.00 $4,505.00
08/01/04-07/31/05 $54,060.00 $4,505.00
08/01/05-07/31/06 $54,060.00 $4,505.00
ARTICLE 5.00 COMMON AREA MAINTENANCE, OPERATING EXPENSES
5.01 GENERAL. In addition to Monthly Base Rent, Tenant will pay Tenant's
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Pro Rata Share of the Operating Expenses paid, payable or incurred by Landlord
in each calendar year or partial calendar year during the Term.
As used in this Lease, the term "Operating Expenses" means:
(a) all costs of management, operation and maintenance of the
Business Center (any of which may be furnished by an affiliate of Landlord),
including without limitation: cleaning, landscaping, lighting, maintaining,
painting, repairing, and replacing (except to the extent proceeds of insurance
or condemnation awards are available) any common areas; maintaining, repairing
and replacing, cleaning, lighting, removing snow and ice, painting, and
landscaping of all vehicle parking areas and other outdoor common areas,
including any Business Center signage (other than Tenant's signs); repairing or
replacing roof; providing security (Landlord not incurring or assuming any
obligation to provide such protection or security or any liability for the
failure of the same); seasonal holiday decorations; removing trash from the
common areas; the charges for rubbish containers and removal (except that at
Landlord's option Tenant shall be directly responsible for contracting for
providing for rubbish containers and removal subject to Landlord's approval of
the provisions and conditions of the agreement therefore providing public
liability, property damage, fire, and extended coverage and such other insurance
as Landlord deems appropriate; total compensation and benefits (including
premiums for workmen's compensation and other insurance) paid to or on behalf of
employees for work at the Business Center; supplies; fire protection and fire
hydrant charges; steam, water and sewer charges; gas, electricity, and telephone
utility charges; licenses and permit fees; depreciation of equipment used in
operating and maintaining the common areas and rent paid for leasing such
equipment; real property taxes, assessments, impositions, (and any tax levied in
whole or in part in lieu of real property taxes); and any other costs, charges,
and expenses which under generally accepted accounting principles would be
regarded as maintenance and operating expenses
(b) the cost (amortized over such reasonable period as Landlord will
determine) of any capital improvements (i) cost (amortized over such reasonable
period as Landlord will determine) which are made to the Business Center by
Landlord during the Term and which are intended to reduce other Operating
Expenses, or (ii) which are made to the Business Center by Landlord after the
Date and which are required under any governmental law or regulation that was
not applicable to the Business Center at the time it was constructed and are not
a result of Tenant's unique use of the Premises. The cost of any capital
improvements which are required to be made to the Business Center after the Date
as a result of Tenant's unique use of the Premises will be made by Landlord at
Tenant's sole cost and expense.
Operating Expenses will not include depreciation on the Business Center
(other than depreciation on personal property, equipment, window coverings on
exterior windows provided by Landlord and carpeting in public corridors and
common areas), costs of improvements made for other tenants of the Business
Center, real estate broker's commissions, mortgage interest and capital items
other than those referred to in clause (b).
5.02 ESTIMATED PAYMENTS. In addition to Monthly Base Rent, Tenant will pay
to Landlord in advance on the first day of each month during the Term
one-twelfth (l/12) of Tenant's Pro Rata Share of estimated Operating Expenses
paid, payable or incurred during the subject calendar year or partial calendar
year (the "Estimated Operating Expenses"). The Estimated Operating Expenses are
subject to revision according to the further provisions of this Section 5.02 and
Section 5.03. During December of each calendar year or as soon after December as
practicable, Landlord will give Tenant written notice of Landlord's reasonable
estimate of the amounts payable under Section 5.01 for the ensuing calendar
year. On or before the first day of each month during the ensuing calendar year,
Tenant will pay to Landlord in advance one-twelfth (1/12) of such reasonable
estimated amount; however, if such notice is not given in December, Tenant will
continue to pay on the basis of the prior year's estimate until the month after
such notice is given; provided that in the month Tenant first pays Landlord's
new estimate Tenant will pay to Landlord the difference between the new estimate
and the amount payable under the prior year's estimate for each month which has
elapsed since December. If at any time or times it reasonably appears to
Landlord that the amount payable under Section 5.01 for the current calendar
year will vary from Landlord's estimate, Landlord may, by written notice to
Tenant, revise Landlord's estimate for such year, and subsequent payments by
Tenant for such year will be based upon Landlord's reasonably revised estimate.
5.03 ANNUAL SETTLEMENT. Within ninety (90) days after the close of each
calendar year or as soon after such ninety (90) day period as practicable,
Landlord will deliver to Tenant a statement of amounts payable under Section
5.01 for such calendar year. The Tenant shall have the right to receive from
Landlord documentation of all chargeable items billed, including copies of
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invoices and payments. The Tenant shall have the right to audit Landlord's
statement for a period within ninety (90) days from the rendering of the
statement by the Landlord. If such statement shows an amount owing by Tenant
that is less than the estimated payments previously made by Tenant for such
calendar year, the excess will be held by Landlord and credited against the next
payment of Rent; however, if the Term has ended and Tenant was not in default at
its end, Landlord will refund the excess to Tenant. If such statement shows an
amount owing by Tenant that is more than the estimated payments previously made
by Tenant for such calendar year Tenant will pay the deficiency to Landlord
within thirty (30) days after the delivery of such statement.
5.04 PRORATION UPON TERMINATION. If, for any reason other than the default
of Tenant, this Lease ends on a day other than the last day of a calendar year,
the amount of increase (if any) in Operating Expenses payable by Tenant
applicable to the calendar year in which this Lease ends will be calculated on
the basis of actual expenses for the period up to the Lease termination date.
5.05 OTHER TAXES. Tenant will reimburse Landlord upon demand for any and
all taxes payable by Landlord (other than net income taxes) whether or not now
customary or within the contemplation of Landlord and Tenant: (a) upon, measured
by or reasonably attributable to the cost or value of Tenant's merchandise,
equipment, furniture, fixtures and other personal property located in the
Premises or by the cost or value of any leasehold improvements made in or to the
Premises by or for Tenant, regardless of whether title to such improvements is
in Tenant or Landlord; (b) upon or measured by Rent, including, without
limitation, any gross income tax or excise tax levied by the federal government
or any other governmental body with respect to the receipt of Rent; (c) upon or
with respect to the possession, leasing, operation, management, maintenance,
alteration, repair, use or occupancy by Tenant of the Premises or any portion of
the Premises; (d) upon this transaction or any document to which Tenant is a
party creating or transferring an interest or an estate in the Premises. If it
is not lawful for Tenant to reimburse Landlord, the Rent payable to Landlord
under this Lease will be revised to yield to Landlord the same net rental after
the imposition of any such tax upon Landlord as would have been payable to
Landlord prior to the imposition of any such tax.
Tenant will pay promptly when due all sales, merchandise or personal
property taxes on Tenant's personal property in the Premises and any other taxes
payable by Tenant, the nonpayment of which might give rise to a lien on the
Premises or the Tenant's interest in the Premises.
5.06 ADDITIONAL RENT. Amounts payable by Tenant according to this Article
5.00 will be payable as Rent, without deduction or offset. If Tenant fails to
pay any amounts due according to this Article 5.00, Landlord will have all the
rights and remedies available to it on account of Tenant's failure to pay Rent.
ARTICLE 6.00 INSURANCE
6.01 LANDLORD'S INSURANCE. At all times during the term of this Lease,
Landlord will carry and maintain (a) fire and extended coverage insurance
covering full replacement cost agreed value of the Business Center, parking
structure (if any) and the Business Center's equipment and common area
furnishings, and (b) public liability and property damage insurance in such
amounts as Landlord determines from time to time in its reasonable discretion.
Tenant will reimburse Landlord, as an Operating Expense, for the costs of all
such insurance in accordance with Article 5.00 and in particular Article 5.06,
as Additional Rent.
6.02 TENANT'S INSURANCE. At all times during the term of this Lease,
Tenant will carry and maintain, at Tenant's expense, the following insurance, in
the amounts specified below or such other amounts as Landlord may from time to
time reasonably request, with insurance companies and on forms satisfactory to
Landlord:
(a) Public liability and property damage liability insurance, with a
combined single occurrence limit of not less than $l,000,000.00. All such
insurance will specifically include, without limitation, contractual liability
coverage for the performance by Tenant of the indemnity agreements set forth in
Article 21.00 of this Lease.
(b) Fire and extended coverage insurance covering all leasehold
improvements in the Premises and all of Tenant's merchandise, equipment, trade
fixtures, appliances, furniture, furnishings and personal property, from time to
time in, on, or upon the Premises, in an amount not less than the full
replacement cost without deduction for depreciation from time to time during the
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term of this Lease, providing protection against all perils included within the
classification of fire, extended coverage, vandalism, malicious mischief,
special extended peril (all risk), boiler, glass breakage and sprinkler leakage.
All policy proceeds will be used for the repair or replacement of the property
damaged or destroyed; however, if this Lease ceases under the provisions of
Article 18.00, Tenant will be entitled to any proceeds resulting from damage to
Tenant's merchandise, equipment, trade fixtures, appliances, furniture, Tenant's
supplied improvements, personal property and Tenant's business interruption
insurance, and Landlord will be entitled to all other proceeds.
(c) Workmen's compensation insurance insuring against and satisfying
Tenant's obligations and liabilities under the workmen's compensation laws of
the state in which the Premises are located.
6.03 FORMS OF THE POLICIES. All policies of liability insurance which
Tenant is obligated to maintain according to this Lease (other than any policy
of workmen's compensation insurance) will name Landlord and such other persons
or firms as Landlord specifies from time to time as additional insureds.
Original or true copies of original policies (together with copies of the
endorsements naming Landlord and any others specified by Landlord as additional
insureds) and evidence of the payment of all premiums of such policies will be
delivered to Landlord prior to Tenant's occupancy of the Premises and from time
to time at least thirty (30) days prior to the expiration of the term of each
such policy. All public liability and property damage liability policies
maintained by Tenant will contain a provision that Landlord and any other
additional insureds, although named as an insured, will nevertheless be entitled
to recover under such policies for any loss sustained by Landlord and such other
additional insureds, its agents and employees as a result of the acts or
omissions of Tenant. All such policies maintained by Tenant will provide that
they may not be terminated or amended except after thirty (30) days' prior
written notice to Landlord. All public liability, property damage liability and
casualty policies maintained by Tenant will be written as primary policies, not
contributing with and not supplemental to the coverage that Landlord may carry.
No insurance required to be maintained by Tenant by this Article 6.00 will be
subject to more than a $250 deductible limit without Landlord's prior written
consent. All Tenant's policies required to be maintained under this Lease shall
contain "severability of interests" and "cross liability" endorsements, and such
policies shall be written by an insurance company having a Best Rating of A (VI)
or better.
6.04 ADEQUACY OF COVERAGE. Landlord, its agents and employees make no
representation that the limits of liability specified to be carried by Tenant
pursuant to this Article 6.00 are adequate to protect Tenant. If Tenant believes
that any of such insurance coverage is inadequate, Tenant will obtain, at
Tenant's sole expense, such additional insurance coverage as Tenant deems
adequate.
6.05 INADEQUATE INSURANCE. Upon failure of Tenant to comply with the
provisions of Article 6.00, in addition to any other rights and remedies of the
Landlord, Landlord shall have a right to obtain such insurance, to pay the
premiums for the same, and to recover the cost of such insurance at once as
additional rent due from Tenant to Landlord under this Lease.
ARTICLE 7.00 UTILITIES AND SERVICES
Tenant will make application for all services and pay all initial utility
deposits and fees, and all monthly service charges for water, electricity,
sewage, gas, telephone, and any other utility services furnished to the Premises
and the improvements on the Premises during the term of this Lease. If any such
services are not separately metered or billed to Tenant but rather are billed to
and paid by Landlord, Tenant will pay to Landlord Tenant's Pro Rata Share of the
cost of such services in accordance with Article 5.00 and in particular, Article
5.06, as Additional Rent.
Tenant shall be responsible to keep the store windows and frames clean at
all times and shall contract with a professional window cleaner at its own cost
and expense to wash the interior and exterior of the windows on a weekly basis.
ARTICLE 8.00 USE OF PROPERTY
(a) The Property may only be used for the use set forth in section
l(p) and all uses incidental thereto.
(b) Notwithstanding the foregoing, Tenant shall not use or permit
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the Property to be used for (i) any unlawful purpose; (ii) in violation of any
certificate of occupancy covering the Property; (iii) any use which may
constitute a public or private nuisance or make voidable any insurance in force
relating to the Property; (iv) any purpose which creates or produces noxious
odors, smoke, fumes, emissions, noise or vibrations; or (v) any use which
involves or results in the generation, manufacture, refining, transportation,
treatment, storage, handling or disposal of petroleum products or hazardous
substances or wastes. However, the Tenant may store and handle substances which
are classified as hazardous provided they are essential to the normal operation
of Tenant's business, a list of all such products are provided to Landlord, and
further provided that such substances are stored, handled and disposed of in
accordance with applicable State and Federal statutes and regulations.
(c) Tenant shall not cause or permit any overloading of the floors
of the Building. Tenant shall not install any equipment or other items upon or
through the roof, or cause openings to be made in the roof, without Landlord's
prior written consent. Tenant shall not install any underground storage tanks or
facilities at the Property.
(d) No storage of any goods, equipment or materials shall be
permitted outside the Building on the Property.
(e) The tenant shall furnish to the Leased Premises and shall
maintain in good operating condition throughout the term hereof, fire
extinguishers, in such quantities and of such type as may be required from
time-to-time by Landlord's fire or casualty insurance carrier in order to
achieve the lowest possible fire insurance rating for said Leased Premises and
the buildings or buildings wherein the same are situate.
(f) Lessee's occupancy of the Demised Premised shall include the use
of parking spaces in the building parking area in accordance with its
proportionate share. Lessee shall, upon request, promptly furnish to Lessor the
license numbers of the cars operated by Lessee and its subtenants, licensees,
invitees, concessionaires, officers and employees
ARTICLE 9.00 REQUIREMENTS OF LAW; FIRE INSURANCE
9.01 GENERAL. Tenant, at its expense, shall obtain all permits, approvals,
and certificates required by any governmental body and will comply with all
applicable governmental laws, orders and regulations, and with any direction of
any public officer or officers, according to law, which will impose any
violation, order or duty upon Landlord or Tenant with respect to the Premises,
or their use or occupancy.
9.02 TOXIC MATERIALS. Tenant will not store, use or dispose of any
hazardous, toxic or radioactive matter in, on, or about the Premises or the
Business Center.
9.03 CERTAIN INSURANCE RISKS. Tenant will not do or permit to be done any
act or thing upon the Premises which would (a) jeopardize or be in conflict with
fire insurance policies covering the Business Center and fixtures and property
in the Business Center, or (b) increase the rate of fire insurance applicable to
the Business Center to an amount higher than it otherwise would be for the
general use as a Business Center, or (c) subject Landlord to any liability or
responsibility for injury to any person or persons or to property by reason of
any business or operation being carried on upon the Premises; however, this
Section 9.03 will not prevent Tenant's use of the Premises for the purposes
stated in Article 1.00.
9.04 TENANT'S INSURANCE PAYMENTS. If, as a result of any act or omission,
other than the permitted use, by Tenant or violation of this Lease, the rate of
fire insurance applicable to the Business Center or any other insurance carried
by Landlord is increased to an amount higher than it otherwise would have been,
Tenant will reimburse Landlord for the increased cost of Landlord's insurance
premiums. Such reimbursement will be Rent payable upon the first day of the
month following Landlord's delivery to Tenant of a statement showing payment by
Landlord for such increased insurance premiums. In any action or proceeding in
which Landlord and Tenant are parties, a schedule or "make up" of rates for the
Business Center or Premises issued by the body making fire insurance rates for
the Premises or a notice from Landlord's insurer will be presumptive evidence of
the facts stated and of the several items and charges in the fire insurance rate
then applicable to the Premises.
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ARTICLE 10.00 ASSIGNMENT AND SUBLETTING
10.01 GENERAL. Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns, covenants that it
will not assign, mortgage or encumber this Lease, nor sublease, or permit the
Premises or any part of the Premises to be used or occupied by others, without
the prior written consent of Landlord in each instance, which consent may not be
unreasonably withheld or delayed. The transfer of control or of a majority of
the issued and outstanding capital stock of any corporate tenant or subtenant of
this Lease or a majority interest in any partnership tenant (excluding transfer
of said partnership interest to the remaining partner in the event of the death
of the other partner) or subtenant, however accomplished, and whether in a
single transaction or in a series of transactions, will be an assignment of this
Lease or of such sublease requiring Landlord's prior written consent in each
instance. The transfer of outstanding capital stock of any corporate tenant, for
purposes of this Article 10.00, will not include any sale of such stock by
persons other than those deemed "insiders" within the meaning of the Securities
Exchange Act of 1934 as amended, and which sale is effected through
"over-the-counter-market" or through any recognized stock exchange.
Any assignment or sublease in violation of this Section 10.01 will
be void. If this Lease is assigned, or if the Premises or any part of the
Premises are subleased or occupied by anyone other than Tenant, Landlord may,
after default by Tenant, collect rent from the assignee, subtenant or occupant,
and apply the net amount collected to Rent. No assignment, sublease, occupancy
or collection will be deemed (a) a waiver of the provisions of this Section
10.01; or (b) the acceptance of the assignee, subtenant or occupant as Tenant;
or (c) release Tenant from the further performance by Tenant of covenants on the
part of Tenant contained in this Lease. The consent by Landlord to an assignment
or sublease will not be construed to relieve Tenant from obtaining Landlord's
prior written consent in writing to any further assignment or sublease. No
permitted subtenant will assign or encumber its sublease or further sublease all
or any portion of its subleased space, or otherwise permit the subleased space
or any part of its subleased space to be used or occupied by others, without
Landlord's prior written consent in each instance. In the event of such default,
at the Landlord's option, any future extensions of this Lease may be declared
null and void.
10.02 LIMITATION ON REMEDIES. Tenant will not be entitled to make, nor
will Tenant make, any claim, and Tenant by this Section waives any claim, for
money damages (nor will Tenant claim any money damages by way of set-off,
counterclaim or defense) based upon any claim or assertion by Tenant that
Landlord has unreasonably withheld or unreasonably delayed its consent or
approval to a proposed assignment or subletting as provided for in this Article
10.00. Tenant's sole remedy will be an action or proceeding to enforce any such
provision, or for specific performance, injunction, or declaratory judgment.
ARTICLE 11.00 COMMON AREAS
As used in this Lease, the term "common areas" means, without limitation,
any hallways, entryways, stairs, elevators, driveways, walkways, terraces,
docks, loading areas, trash facilities and all other areas and facilities in the
Business Center which are provided and designated from time to time by Landlord
for the general nonexclusive use and convenience of Tenant with other tenants of
the Business Center and their respective employees, customers, invitees,
licensees or other visitors. Landlord grants Tenant, its employees, invitees,
licensees and other visitors a nonexclusive license for the Term to use the
common areas in common with others entitled to use the common areas including,
without limitation, Landlord and other tenants of the Business Center, and their
respective employees, customers, invitees, licensees and visitors, and other
persons authorized by Landlord, subject to the terms and conditions of this
Lease. Without advance notice to Tenant (except with respect to matters covered
by subsection (a) below) and without any liability to Tenant in any respect,
Landlord will have the right to:
(a) establish and enforce reasonable rules and regulations
concerning the maintenance, management, use and operation of the common areas;
(b) close off any of the common areas to whatever extent required in
the opinion of Landlord and its counsel to prevent a dedication of any of the
common areas or the accrual of any rights by any person or the public to the
common areas, provided such closure does not deprive Tenant of the substantial
benefit and enjoyment of the Premises;
(c) temporarily close any of the common areas for maintenance,
alteration or improvement purposes;
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(d) select, appoint or contract with any person for the purpose of
operating and maintaining the common areas, subject to such terms and at such
rates as Landlord deems reasonable and proper;
(e) change the size, use, shape or nature of any such common areas,
provided such change does not deprive Tenant of the substantial benefit and
enjoyment of the Premises. So long as Tenant is not thus deprived of the
substantial use and benefit of the Premises, Landlord will also have the right
at any time to change the arrangement or location of, or both, or to regulate or
eliminate the use of, any concourse, parking spaces, garage, or any elevators,
stairs, toilets or other public conveniences in the Business Center, without
incurring any liability to Tenant or entitling Tenant to any abatement of rent
and such action will not constitute an actual or constructive eviction of
Tenant; and
(f) erect one or more additional buildings on the common areas,
expand the existing Business Center to cover a portion of the common areas,
convert common areas to a portion of the Business Center, or convert any portion
of the Business Center to common areas. Upon erection or change of location of
the buildings, the portion of the Business Center upon which buildings or
structures have been erected will no longer be deemed to be a part of the common
areas. In the event of any such changes in the size or use of the Business
Center or common areas, Landlord will make an appropriate adjustment in the
Leasable Area of the Business Center and in Tenant's Pro Rata Share payable
pursuant to Article 5.00 of this Lease.
ARTICLE 12.00 LANDLORD'S SERVICES
12.01 LANDLORD'S REPAIR AND MAINTENANCE. Landlord will maintain, repair,
restore, repaint and replace the common areas of the Business Center, including,
without limitation, landscaping, asphalt, and the mechanical, plumbing and
electrical equipment serving the common areas, in reasonably good order and
condition, except for (a) any damage occasioned by the negligent or willful acts
or omissions of Tenant, Tenant's agents, employees or invitees, (b) any damage
occasioned by the failure of Tenant to perform or comply with any terms,
conditions or covenants in this Lease; (c) ordinary wear and tear; and (d) any
structural alterations or improvements required by Tenant's use and occupancy of
the Premises, which damage will be repaired by Landlord at Tenant's expense. As
a condition precedent to all obligations of Landlord to repair, restore and
maintain under this Section 12.01, Tenant must notify Landlord in writing of the
need for such repairs, restoration or maintenance. Landlord shall provide all
existing mechanical systems in working order and will warranty the mechanical
systems for one (1) year (parts and labor) from Lease Commencement Date. Tenant
is responsible for all normal, scheduled maintenance for mechanical systems from
Lease Commencement Date.
Tenant will reimburse Landlord for Tenant's Pro Rata Share of the costs
which Landlord incurs in performing its repair and maintenance obligations with
respect to the Business Center, except for structural wall and structural roof
repairs, if any. Reimbursement by Tenant to Landlord for Tenant's share of such
costs will be made within thirty (30) days of receipt of a statement for such
changes. These amounts due and payable shall be paid as Additional Rent in
accordance with Article 5.06. If Landlord fails to commence the making of
repairs within thirty (30) days after such notice, so long as such repairs could
have been accomplished within the time period based on a commercially reasonable
standard, and the failure to repair has materially interfered with Tenant's use
of the Premises, Tenant's sole right and remedy for such failure on the part of
the Landlord will be to cause such repairs to be made and to charge Landlord the
reasonable cost of such repairs. If the repair is necessary to end or avert an
emergency and if Landlord after receiving notice from Tenant of such necessity
fails to commence repair as soon as reasonably possible, Tenant may do so at
Landlord's cost, without waiting thirty (30) days.
12.02 LANDLORD'S SERVICES. Landlord will keep the common areas (a) in a
clean and orderly condition and free of snow, ice and debris (steps, walkways,
approaches and entrances adjacent to the demised Premises excepted); and (b)
properly lighted and landscaped. Landlord will not be in default under this
Lease or be liable for any damages directly or indirectly resulting from, nor
will the Rent be abated by reason of, (i) the installation, use, or interruption
of use of any equipment in connection with the furnishing of any of such
services, (2) failure to furnish, or delay in furnishing, any such services when
such failure or delay is caused by accident or any condition beyond the
reasonable control of Landlord or by the making of necessary repairs or
improvements to the Premises or to the Business Center, or (3) the limitation,
curtailment, rationing or restriction on use of water, electricity, gas or any
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other form of energy serving the Premises or the Business Center. Landlord will
use reasonable efforts to remedy diligently any interruption in the furnishing
of such services.
12.03 LIMITATION ON LIABILITY. Landlord will not be liable to Tenant or
any other person, for direct or consequential damage or otherwise, for any
failure to supply any heat, air conditioning, elevator, cleaning, lighting,
security or other service Landlord has agreed to supply during any period when
Landlord used reasonable diligence to supply such services. Landlord reserves
the right to discontinue temporarily such services, or any of them, at such
times as may be necessary by reason of accident; unavailability of employees;
repairs, alterations or improvements; strikes; lockouts; riots; acts of God;
governmental preemption in connection with a national or local emergency; and
rule, order or regulation of any governmental agency; conditions of supply and
demand which make any product unavailable; Landlord's compliance with any
mandatory governmental energy conservation or environmental protection program,
or any voluntary governmental energy conservation program at the request of or
with consent or acquiescence of Tenant; or any other happening beyond the
control of Landlord. Landlord will not be liable to Tenant or any other person
or entity for direct or consequential damages resulting from the admission to or
exclusion from the Business Center of any person. In the event of invasion, mob,
riot, public excitement or other circumstances rendering such action advisable
in Landlord's sole opinion, Landlord will have the right to prevent access to or
from the Business Center during the continuance of the same by such means as
Landlord, in its sole discretion, may deem appropriate, including, without
limitation, locking doors and closing parking areas and other common areas.
Landlord will not be liable for damages to person or property or for injury to,
or interruption of, business for any discontinuance permitted under this Article
12.00, nor will such discontinuance in any way be construed as an eviction of
Tenant or cause an abatement of rent or operate to release Tenant from any of
Tenant's obligations under this Lease.
ARTICLE 13.00 TENANT'S REPAIRS
(a) Tenant will at all times during the Term of this Lease keep and
maintain at its own cost and expense, in good order, condition, and repair, the
Premises (including, without limitation, all improvements, fixtures, and
equipment on the Premises), and will make all repairs and replacements, interior
and exterior, above or below ground, and ordinary or extraordinary as caused by
Tenant. Landlord shall provide all existing mechanical systems in working order
and will warranty the mechanical systems for one (1) year (parts and labor) from
Lease Commencement Date. Tenant is responsible for all normal, scheduled
maintenance for mechanical systems from Lease Commencement Date.
(b) Tenant's obligation to keep and maintain, at its own cost and
expense, the Premises in good order, condition, and repair includes, without
limitation, all plumbing and sewage facilities in the Premises, floors
(including floor coverings); doors, locks, and closing devices; window easements
and frames; glass and plate glass; grilles; all electrical facilities and
equipment; HVAC systems and equipment and all other appliances and equipment of
every kind and nature; and all landscaping upon, within, or attached to the
Premises. Xxxxxxx shall make all necessary replacements with parts or items
equal in quality and condition to the originals. If the tenant fails to make
such required repairs and/or replacements, Landlord may complete same for Tenant
and be reimbursed by Tenant for expenses incurred by the Landlord in connection
therewith as Additional Rent. In addition, Tenant will at its sole cost and
expense install or construct any improvements, equipment, or fixtures required
by any governmental authority or agency as a consequence of Tenant's use and
occupancy of the Premises. Tenant will replace any damaged plate glass within
two (2) business days of the occurrence of such damage.
(c) Landlord will assign to Tenant, and Tenant will have the benefit
of, any guarantee of warranty to which Landlord is entitled under any purchase,
construction, or installation contract relating to a component of the Premises
which Tenant is obligated to repair and maintain. Tenant will have the right to
call upon the contractor to make such adjustments, replacements, or repairs
which are required to be made by the contractor under such contract.
(d) Landlord may at Landlord's option employ and pay a firm
satisfactory to Landlord, engaged in the business of maintaining systems, to
perform periodic inspections of the HVAC systems serving the Premises, and to
perform any necessary work, maintenance, or repair of them. In that event,
Tenant will reimburse Landlord on demand for all reasonable amounts paid by
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Landlord in connection with such employment.
(e) Any work to be done on the roof to accommodate Tenant
improvements, including holes, patches, etc., or anything that would alter the
roof, shall be done by Landlord's roofer at Tenant's expense.
(f) Upon the expiration or termination of this Lease, Tenant will
surrender the Premises to Landlord in good order, condition, and repair,
ordinary wear and tear excepted. To the extent allowed by law, Tenant waives the
right to make repairs at Landlord's expense under the provisions of any laws
permitting repairs by a tenant at the expense of a landlord.
ARTICLE 14.00 ALTERATIONS
Tenant will not make or cause to be made any alterations, additions, or
improvements t
o or of the Premises or any part of the Premises, or attach any fixture of
equipment to the Premises, without first obtaining Landlord's written consent.
Any alterations, additions, or improvements to the Premises consented to by
Landlord will be made by Tenant at Tenant's sole cost and expense according to
plans and specifications approved by Landlord, and any contractor or person
selected by Tenant to make them must first be approved by Landlord. Landlord may
require, at its option, that Tenant provide Landlord at Tenant's sole cost and
expense a lien and completion bond, or payment and performance bond, in an
amount equal to twice the estimated cost of any contemplated alterations,
fixtures, and improvements, to insure Landlord against any liability for
mechanics' or materialmen's liens and to ensure the completion of such work. All
alterations, additions, fixtures, and improvements, whether temporary or
permanent in character, made in or upon the Premises either by Tenant or
Landlord (other than furnishings, trade fixtures, and equipment installed by
Tenant), will be Landlord's property and, at the end of the Term of this Lease,
will remain on the Premises without compensation to Tenant. If Landlord
requests, Tenant will remove all such alterations, fixtures, and improvements
from the Premises and return the Premises to the condition in which they were
delivered to Tenant. Upon such removal Tenant will immediately and fully repair
any damage to the Premises occasioned by the removal.
ARTICLE 15.00 MECHANICS' LIENS
Tenant will pay or cause to be paid all costs and charges for work done by
it or caused to be done by it in or to the Premises, and for all materials
furnished for or in connection with such work. Tenant will indemnify Landlord
against, and hold Landlord, the Premises and the Business Center free, clear and
harmless of and from, all mechanics' liens and claims of liens, and all other
liabilities, liens, claims, and demands, on account of such work. If any such
lien, at any time, is filed against the Premises or any part of the Business
Center, Tenant will cause such lien to be discharged of record within ten (10)
days after the filing of such lien, except that if Tenant desires to contest
such lien, it will furnish Landlord, within such ten (10) day period, security
reasonably satisfactory to Landlord of at least one hundred fifty percent (150%)
of the amount of the claim, plus estimated costs and interest. If a final
judgment establishing the validity or existence of a lien for any amount is
entered, Tenant will pay and satisfy the same at once. If Tenant fails to pay
any charge for which a mechanics' lien has been filed, and has not given
Landlord security as described above, Landlord may, at its option, pay such
charge and related costs and interest, and the amount so paid, together with
reasonable attorneys' fees incurred in connection with such lien, will be
immediately due from Tenant to Landlord. Nothing contained in this Lease will be
deemed the consent or agreement of Landlord to subject Landlord's interest in
the Business Center to liability under any mechanics' or other lien law. If
Tenant receives notice that a lien has been or is about to be filed against the
Premises or the Business Center or any action affecting title to the Business
Center has been commenced on account of work done by or for or materials
furnished to or for Tenant, it will immediately give Landlord written notice of
such notice. At least fifteen (15) days prior to the commencement of any work
(including, but not limited to, any alterations, additions, improvements or
installations) in or to the Premises, by or for Tenant, Tenant will give
Landlord written notice of the proposed work and the names and addresses of the
persons supplying labor and materials for the proposed work, however, this is
not required on initial Tenant fit-up. Landlord will have the right to post
notices of non-responsibility or similar notices on the Premises in order to
protect the Premises against any such liens.
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ARTICLE 16.00 END OF TERM
At the end of this Lease, Tenant will promptly quit and surrender the
Premises in good order, condition, and repair, ordinary wear and tear excepted.
If Tenant is not then in default, Tenant may remove from the Premises any trade
fixtures, equipment and movable furniture placed in the Premises by Tenant,
whether or not such trade fixtures or equipment are fastened to the Business
Center; Tenant will not remove any trade fixtures or equipment without
Landlord's written consent if such fixtures or equipment are used in the
operation of the Business Center or improvements or the removal of such fixtures
or equipment will result in impairing the structural strength of the Business
Center or improvements. Whether or not Tenant is in default, Tenant will remove
such alterations, additions, improvements, trade fixtures, equipment and
furniture as Landlord has requested in accordance with Article 14.00. Tenant
will fully repair any damage occasioned by the removal of any trade fixtures,
equipment, furniture, alterations, additions and improvements. All trade
fixtures, equipment, furniture, inventory, effects, alterations, additions and
improvements not so removed will be deemed conclusively to have been abandoned
and may be appropriated, sold, stored, destroyed or otherwise disposed of by
Landlord without notice to Tenant or any other person and without obligation to
account for them; and Tenant will pay Landlord for all expenses incurred in
connection with such property, including, but not limited to, the cost of
repairing any damage to the Business Center or Premises caused by the removal of
such property. Tenant's obligation to observe and perform this covenant will
survive the expiration or other termination of this Lease.
ARTICLE 17.00 EMINENT DOMAIN
(a) The term "total taking" means the taking of the fee title or
Landlord's master leasehold estate by right of eminent domain or other authority
of law, or a voluntary transfer under the threat of the exercise of the right of
eminent domain or other authority, to so much of the Premises or a portion of
the Business Center as is necessary for Tenant's occupancy, that the Premises
are not suitable for Tenant's intended use in Tenant's reasonable judgment. The
term "partial taking" means the taking of only a portion of the Premises or the
Business Center, which does not constitute a total taking.
(b) If a total taking occurs during the Term of this Lease, this
Lease will terminate as of the date of the taking. The phrase "date of the
taking" means the date of taking actual physical possession by the condemning
authority or such earlier date as the condemning authority gives notice that it
is deemed to have taken possession.
(c) If a partial taking occurs during the Term of this Lease, either
Landlord or Tenant may cancel this Lease by written notice given within thirty
(30) days after the date of the taking, and this Lease will terminate as to the
portion of the Premises taken on the date of the taking. If the Lease is not so
terminated, this Lease will continue in full force and effect as to the
remainder of the Premises. The Monthly Base Rent payable by Tenant for the
balance of the Term will be abated in the proportion that the leasable area of
the Premises taken bears to the Leasable Area of the Premises immediately prior
to such taking, and Landlord will make all necessary repairs or alterations to
make the remaining Premises a complete architectural unit.
(d) If more than forty percent (40%) of the common areas in the
Business Center dedicated to customer parking are acquired or condemned under
power of eminent domain or other authority of law, or a voluntary transfer under
the threat of an exercise of the right of eminent domain or other authority,
then the Term of this Lease will terminate as of the date of the taking unless
Landlord takes reasonable steps to provide other parking facilities
substantially equal to the previously existing ratio between the common parking
areas and the leasable area of the Business Center, and such parking facilities
are provided by Landlord within ninety (90) days from the date of the taking. If
Landlord provides such other parking facilities, then this Lease will continue
in full force.
(e) All compensation and damages awarded for the taking of the
Premises, and portion of the Premises, or the whole or any portion of the common
areas or Business Center will belong to Landlord. Tenant will not have any claim
or be entitled to any award for diminution in value of its rights under this
Lease or for the value of any unexpired term of this Lease; however, Tenant may
make its own claim for any separate award that may be made by the condemnor for
Tenant's loss of business or for the taking of or injury to Tenant's
improvements, or on account of any cost or loss Tenant may sustain in the
removal of Tenant's trade fixtures, equipment, and furnishing, or as a result of
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any alterations, modifications, or repairs which may be reasonably required by
Tenant in order to place the remaining portion of the Premises not so condemned
in a suitable condition for the continuance of Tenant's occupancy.
(f) If this Lease is terminated pursuant to the provisions of this
Article 17.00, then all rentals and other charges payable by Tenant to Landlord
under this Lease will be paid up to the date of the taking, and any rentals and
other charges paid in advance and allocable to the period after the date of the
taking will be repaid to Tenant by Landlord. Landlord and Tenant will then be
released from all further liability under this Lease.
ARTICLE 18.00 DAMAGE AND DESTRUCTION
(a) If the Premises or the portion of the Business Center necessary
for Tenant's occupancy is damaged or destroyed during the Term of this Lease by
any casualty insurable under standard fire and extended coverage insurance
policies, Landlord will repair or rebuild the Premises to substantially the
condition in which the Premises were immediately prior to such destruction.
(b) Landlord's obligation under this Article 18.00 will not exceed
the lesser of: (i) with respect to the Premises, the scope of building-standard
improvements installed by Landlord in the original construction of the Premises,
or (ii) the extent of proceeds received by Landlord of any insurance policy
maintained by Landlord.
(c) The Monthly Base Rent will be abated proportionately during any
period in which, by reason of any damage or destruction not occasioned by the
negligence or willful misconduct of Tenant or Tenant's employees or invitees,
there is a substantial interference with the operation of the business of
Tenant. Such abatement will be proportional to the measure of business in the
Premises which Tenant may be required to discontinue. The abatement will
continue for the period commencing with such destruction or damage and ending
with the completion by the Landlord of such work, repair, or reconstruction as
Landlord is obligated to do.
(d) If the Premises, or the portion of the Business Center necessary
for Tenant's occupancy, is damaged or destroyed (i) to the extent of ten percent
(10%) or more of the then-replacement value of either, (ii) in the last three
(3) years of the Term of this Lease, (iii) by a cause or casualty other than
those covered by fire and extended coverage insurance, or (iv) to the extent
that it would take, in Landlord's opinion, in excess of ninety (90) days to
complete the requisite repairs, then Landlord may either terminate this Lease or
elect to repair or restore the damage or destruction. If this Lease is not
terminated pursuant to the preceding sentence, this Lease will remain in full
force and effect. Landlord and Tenant waive the provisions of any law that would
dictate automatic termination or grant either of them an option to terminate in
the event of damage or destruction. Landlord's election to terminate under this
paragraph will be exercised by written notice to Tenant given within sixty (60)
days after the damage or destruction. Such notice will set forth the effective
date of the termination of this Lease.
(e) Upon the completion of any such work, repair, or restoration by
Landlord, Tenant will repair and restore all other parts of the Premises
including without limitation nonbuilding-standard leasehold improvements and all
trade fixtures, equipment, furnishings, signs, and other improvements originally
installed by Tenant. Tenant's work will be subject to the requirements of
Article 14.00.
(f) During any period of reconstruction or repair of the Premises,
Tenant will continue the operation of its business in the Premises to the extent
reasonably practicable.
ARTICLE 19.00 SUBORDINATION
19.01 GENERAL. This Lease and Tenant's rights under this Lease are subject
and subordinate to any ground or underlying lease, first mortgage, indenture,
first deed of trust or other first lien encumbrance, together with any renewals,
extensions, modifications, consolidations and replacements of such first lien
encumbrance, now or after the Commencement Date, affecting or placed, charged or
enforced against the Land or all or any portion of the Business Center or any
interest of Landlord in them or Landlord's interest in this Lease and the
leasehold estate created by this Lease (except to the extent any such instrument
will expressly provide that this Lease is superior to such instrument). This
provision will be self-operative and no further instrument of subordination will
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be required in order to effect it. Nevertheless, Tenant will execute,
acknowledge and deliver to Landlord, at any time and from time to time, upon
demand by Landlord, such documents as may be requested by Landlord, any ground
or underlying lessor, or any mortgagee, to confirm or effect any such
subordination. If Tenant fails or refuses to execute, acknowledge and deliver
any such document within fourteen (14) days after written demand, Landlord, it
successors and assigns will be entitled to execute, acknowledge and deliver any
and all such documents for and behalf of Tenant as attorney-in-fact to execute,
acknowledge and deliver any and all documents described in this Section 19.01
for and on behalf of Tenant, as provided in this Section 19.01.
19.02 ATTORNMENT. Tenant agrees that in the event that any holder of any
ground or underlying lease, mortgage, deed of trust, or other encumbrance
encumbering any part of the Business Center succeeds to Landlord's interest in
the Premises, Tenant will pay to such holder all rents subsequently payable
under this Lease. Further, Tenant agrees that in the event of the enforcement by
the trustee or the beneficiary under or holder or owner of any such mortgage,
deed of trust, or land or ground lease of the remedies provided for by law or by
such mortgage, deed of trust, or land or ground lease, Tenant will, upon request
of any person or party succeeding to the interest of Landlord as a result of
such enforcement, automatically become the Tenant of and attorn to such
successor in interest without change in the terms or provisions of this Lease.
Such successor in interest will not be bound by (a) any payment of Monthly Base
Rent or Rent for more than one month in advance except prepayments in the nature
of security for the performance by Tenant of its obligations under this Lease,
or (b) any amendment or modification of this Lease made without the written
consent of such trustee, beneficiary, holder or owner or such successor in
interest. Upon request by such successor in interest and without cost to
Landlord or such successor in interest, Tenant will execute, acknowledge and
deliver an instrument or instruments confirming the attornment.
ARTICLE 20.00 ENTRY BY LANDLORD
Landlord, its agents, employees, and contractors may enter the Premises at
any time in response to an emergency and at reasonable hours, with notice, to
(a) inspect the same, (b) exhibit the same to prospective purchasers, lenders or
tenants, except Premises may be shown to prospective tenants only during the
last six (6) months of the Lease so long as Tenant is not in default of this
Lease, (c) determine whether Tenant is complying with all its obligations in
this Lease, (d) supply any service which this Lease obligates Landlord to
provide to Tenant, (e) post notices of non-responsibility or similar notices, or
(f) make repairs required of Landlord under the terms of this Lease or repairs
to any adjoining space or utility services or make repairs, alterations or
improvements to any other portion of the Business Center; however, all such work
will be done as promptly as reasonably possible and so as to cause as little
interference to Tenant as reasonably possible. Tenant by this Article 20.00
waives any claim against Landlord, its agents, employees or contractors for
damages for: any injury or inconvenience to or interference with Tenant's
business, any loss of occupancy or quiet enjoyment of the Premises, except as
caused by Landlord's negligence or acts. Landlord will at all times have and
retain a key with which to unlock all of the doors in, on, or about the Premises
(excluding Tenant's vaults, safes and similar areas designated in writing by
Tenant in advance). Landlord will have the right to use any and all means which
Landlord may deem proper to open doors in and to the Premises in an emergency in
order to obtain entry to the Premises. Any entry to the Premises obtained by
Landlord by any means permitted under this Article will not under any
circumstances be construed or deemed to be a forcible or unlawful entry into or
a detainer of the Premises or an eviction, actual or constructive, of Tenant
from the Premises, or any portion of the Premises, nor will any such entry
entitle Tenant to damages or an abatement of Monthly Base Rent, Additional Rent,
or other charges which this Lease requires Tenant to pay.
ARTICLE 21.00 INDEMNIFICATION, WAIVER AND RELEASE
21.01 INDEMNIFICATION. Tenant will neither hold nor attempt to hold
Landlord or its employees or agents liable for, and Tenant will indemnify and
hold harmless Landlord, its employees and agents from and against, all demands,
claims, suits, causes of action, fines, penalties, damages (including
consequential damages), liabilities, judgments, and expenses (including, without
limitation, attorney's fees) incurred in connection with or arising from:
(a) the use or occupancy or manner of use or occupancy of the
Premises by Tenant or any person claiming under Tenant;
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(b) any activity, work or thing, done, permitted or suffered, by
Tenant in or about the Premises or the Business Center;
(c) any acts, omissions or negligence, of Tenant or any person
claiming under Tenant, or the contractors, agents, employees, invitees or
visitors of Tenant or any such person;
(d) any breach, violation or nonperformance, by Tenant or any person
claiming under Tenant, or the employees, agents, contractors, invitees or
visitors of Tenant or any such person of any term, covenant or provision of this
Lease or any law, ordinance or governmental requirement of any kind;
(e) any injury including claims for death or damage to the person,
property or business of Tenant, its employees, agents, contractors, invitees,
visitors or any other person entering upon the Premises or the Business Center
under the express or implied invitation of Tenant, unless due to Landlord's
negligence or willful misconduct.
If any action or proceeding is brought against Landlord or its employees by
reason of any such claim, Tenant, upon notice from Landlord, will defend the
same at Tenant's expense.
21.02 WAIVER AND RELEASE. Tenant, as a material part of the consideration
to Landlord for this Lease, by this Section 21.02 waives and releases all claims
against Landlord, its employees and agents with respect to all matters for which
Landlord has disclaimed liability pursuant to the provisions of this Lease.
Tenant agrees that Landlord, its agents and its employees will not be liable for
any loss, injury, death or damage (including consequential damages) to persons,
property or Tenant's business occasioned by theft; act of God; public enemy;
injunction; riot; strike; insurrection; war; court order; requisition; order of
governmental body or authority; fire; explosion; falling objects; steam, water,
rain or snow; leak or flow of water (including fluid from the elevator system),
rain or snow from or into part of the Business Center or from the roof, street,
subsurface or from any other place, or by dampness, or from the breakage,
leakage, obstruction or other defects of the pipes, sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures of the Business
Center; or from construction, repair or alteration of any other premises in the
Business Center or the Premises; or from any acts or omissions of any other
tenant, occupant or visitor of the Business Center; or from any cause beyond
Landlord's control. The negligence or willful misconduct of Landlord is
specifically excluded.
ARTICLE 22.00 SECURITY DEPOSIT
Tenant has deposited the Security Deposit with Landlord as security for
the full, faithful and timely performance of every provision of this Lease to be
performed by Tenant. If Tenant defaults with respect to any provision of this
Lease, including but not limited to the provisions relating to the payment of
Rent Landlord may use, apply or retain all or any part of the Security Deposit
for the payment of any Rent, or any other sum in default, or for the payment of
any other amount which Landlord may spend or become obligated to spend by reason
of Tenant's default, or to compensate Landlord for any other loss or damage
which Landlord may suffer by reason of Tenant's default. If any portion of the
Security Deposit is so used, applied or retained Tenant will within ten (10)
days after written demand deposit cash with Landlord in an amount sufficient to
restore the Security Deposit to its original amount. Landlord will not be
required to keep the Security Deposit separate from its general funds and Tenant
will not be entitled to interest on the Security Deposit. The Security Deposit
will not be deemed a limitation on Landlord's damages or a payment of liquidated
damages or a payment of the Monthly Base Rent due for the last month of the
Term. If Tenant fully, faithfully and in a timely manner performs every
provision of this Lease to be performed by it, the Security Deposit or any
balance of the Security Deposit will be returned to Tenant within thirty (30)
days after the expiration of the Term. Landlord may deliver the funds deposited
under this Lease by Tenant to the purchaser of the Business Center in the event
the Business Center is sold, and after such time, Landlord will have no further
liability to Tenant with respect to the Security Deposit.
ARTICLE 23.00 QUIET ENJOYMENT
Landlord covenants and agrees with Tenant that so long as Tenant pays the
Rent and observes and performs all the terms, covenants and conditions of this
Lease on Tenant's part to be observed and performed, Tenant may peaceably and
quietly enjoy the Premises subject, nevertheless, to the terms and conditions of
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this Lease, and Tenant's possession will not be disturbed by anyone claiming by,
through or under Landlord.
ARTICLE 24.00 EFFECT OF SALE
A sale, conveyance or assignment of the Business Center will operate to
release Landlord from liability from and after the effective date of such sale,
conveyance or assignment upon all of the covenants, terms and conditions of this
Lease, express or implied, except those which arose prior to such effective
date, and, after the effective date of such sale, conveyance or assignment,
Tenant will look solely to Landlord's successor in interest in and to this
Lease. This lease will not be affected by any such sale, conveyance or
assignment, and Tenant will attorn to Landlord's successor in interest to this
Lease.
ARTICLE 25.00 DEFAULT
25.01 EVENTS OF DEFAULT. The following events are referred to
collectively as "Events of Default," or individually as an "Event of Default:"
(a) Tenant defaults in the due and punctual payment of Rent or
additional rent, and such default continues for five (5) days after notice from
Landlord; however, Tenant will not be entitled to more than one (1) notice for
monetary defaults during any twelve (12) month period, and if after such notice
and Rent is not paid when due, an Event of Default will be considered to have
occurred without further notice;
(b) This Lease or the Premises or any part of the Premises are taken
upon execution or by other process of law directed against Tenant, or are taken
upon or subject to any attachment at the instance of any creditor or claimant
against Tenant, and the attachment is not discharged or disposed of within
fifteen (15) days after its levy;
(c) Tenant files a petition in bankruptcy or insolvency or for
reorganization or arrangement under the bankruptcy laws of the United States or
under any insolvency act of any state, or admits the material allegations of any
such petition by answer or otherwise, or it's dissolved or makes an assignment
for the benefit of creditors;
(d) Involuntary proceedings under any such bankruptcy law or
insolvency act or for the dissolution of Tenant are instituted against Tenant,
or a receiver or trustee is appointed for all or substantially all of the
property of Tenant, and such proceeding is not dismissed or such receivership or
trusteeship vacated within sixty (60) days after such institution or
appointment;
(e) Tenant fails to take possession of the Premises on the
Commencement Date of the Term;
(f) Tenant breaches any of the other agreements, terms, covenants or
conditions which this Lease requires Tenant to perform, and such breach
continues for a period of thirty (30) days after notice from Landlord to Tenant;
or if such breach cannot be cured reasonably within such thirty (30) day period
and Tenant fails to commence and proceed diligently to cure such breach within a
reasonable time period.
25.02 LANDLORD'S REMEDIES. If any one or more Events of Default set forth
in Section 25.01 occurs then Landlord has the right, at its election:
(a) to give Tenant written notice of Landlord's intention to
terminate this Lease on the earliest date permitted by law or on any later date
specified in such notice, in which case Tenant's right to possession of the
Premises will cease and this Lease will be terminated, except as to Tenant's
liability, as if the expiration of the term fixed in such notice were the end of
the Term; or
(b) without further demand or notice, to reenter and take possession
of the Premises or any part of the Premises, repossess the same, expel Tenant
and those claiming through or under Tenant, and remove the effects of both or
either, using such force for such purposes as may be necessary, without being
liable for prosecution, without being deemed guilty of any manner of trespass,
and without prejudice to any remedies for arrears of Monthly Base Rent or other
amounts payable under this Lease or as a result of any preceding breach of
covenants or conditions; all actions to occur through legal process; or
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(c) without further demand or notice, to cure any Event of Default
and to charge Tenant for the cost of effecting such cure, including, without
limitation, attorneys' fees and interest on the amount so advanced at the rate
set forth in Section 28.22 provided that Landlord will have no obligation to
cure any such Event of Default of Tenant.
Should Landlord elect to reenter as provided in subsection (b), or should
Landlord take possession pursuant to legal proceedings or pursuant to any notice
provided by law, Landlord may, from time to time, without terminating this
Lease, relet the Premises or any part of the Premises in Landlord's or Tenant's
name, but for the account of Tenant, for such term or terms (which may be
greater or less than the period which would otherwise have constituted the
balance of the Term) and on such conditions and upon such other terms (which may
include concessions of free rent and alteration and repair of the Premises) as
Landlord, in its sole discretion, may determine, and Landlord may collect and
receive the rent. Landlord will in no way be responsible or liable for any
failure to relet the Premises or any part of the Premises, or for any failure to
collect any rent due upon such reletting. No such reentry or taking possession
of the Premises by Landlord will be construed as an election on Landlord's part
to terminate this Lease unless a written notice of such intention is given to
Tenant. No notice from Landlord under this Section or under a forcible or
unlawful entry and detainer statute or similar law will constitute an election
by Landlord to terminate this Lease unless such notice specifically so states.
Landlord reserves the right following any such reentry or reletting to exercise
its right to terminate this Lease by giving Tenant such written notice, in which
event this Lease will terminate as specified in such notice.
25.03 CERTAIN DAMAGES. If Landlord does not elect to terminate this Lease
as permitted in subsection (a) of Section 25.02, but on the contrary elects to
take possession as provided in subsection (b) of Section 25.02, Tenant will pay
to Landlord: (a) Monthly Base Rent and other sums as provided in this Lease,
which would be payable under this Lease if such repossession had not occurred,
less (b) the net proceeds, if any, of any reletting of the Premises after
deducting all Landlord's expenses in connection with such reletting, including,
without limitation, all repossession costs, brokerage commissions, attorneys'
fees, expenses of employees, alteration and repair costs and expenses of
preparation for such reletting. If, in connection with any reletting, the new
lease term extends beyond the existing Term, or the premises covered by such new
lease include other premises not part of the Premises, a fair apportionment of
the rent received from such reletting and the expenses incurred in connection
with such reletting as provided in this Section will be made in determining the
net proceeds from such reletting, and any rent concessions will be equally
apportioned over the term of the new lease. Tenant will pay such rent and other
sums to Landlord monthly on the day on which the Monthly Base Rent would have
been payable under this Lease if possession had not been retaken, and Landlord
will be entitled to receive such rent and other sums from Tenant on each such
day.
25.04 CONTINUING LIABILITY AFTER TERMINATION. If this Lease is terminated
on account of the occurrence of an Event of Default, Tenant will remain liable
to Landlord for damages in an amount equal to Monthly Base Rent and other
amounts which would have been owing by Tenant for the balance of the Term, had
this Lease not been terminated, less the net proceeds, if any, of any reletting
of the Premises by Landlord subsequent to such termination, after deducting all
Landlord's expenses in connection with such reletting, including, but without
limitation, the expenses enumerated in Section 25.03. Landlord will be entitled
to collect such damages from Tenant monthly on the day on which Monthly Base
Rent and other amounts would have been payable under this Lease if this Lease
had not been terminated, and Landlord will be entitled to receive such Monthly
Base Rent and other amounts from Tenant on each such day. Alternatively, at the
option of Landlord, in the event this Lease is so terminated, Landlord will be
entitled to recover against Tenant, as damages for loss of the bargain and not
as a penalty, an aggregate Rent which, at the time of such termination of this
Lease, represents the excess of the aggregate of Monthly Base Rent and all other
Rent payable by Tenant that would have accrued for the balance of the Term over
the aggregate rental value of the Premises (such rental value to be computed on
the basis of a tenant paying not only a rent to Landlord for the use and
occupation of the Premises, but also such other charges as are required to be
paid by Tenant under the terms of this Lease) for the balance of such term, both
discounted to present value at six (6%) percent."
25.05 CUMULATIVE REMEDIES. Any suit or suits for the recovery of the
amounts and damages set forth in Sections 25.03 and 25.04 may be brought by
Landlord, from time to time, at Landlord's election, and nothing in this Lease
will be deemed to require Landlord to await the date upon which this Lease or
the Term would have expired had there occurred no Event of Default. Each right
and remedy provided for in this Lease is cumulative and is in addition to every
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other right or remedy provided for in this Lease or now or after the Date
existing at law or in equity or by statute or otherwise, and the exercise or
beginning of the exercise by Landlord of any one or more of the rights or
remedies provided for in this Lease or now or after the Date existing at law or
in equity or by statute or otherwise will not preclude the simultaneous or later
exercise by Landlord of any or all other rights or remedies provided for in this
Lease or now or after the Date existing at law or in equity or by statute or
otherwise. All costs incurred by Landlord in collecting any amounts and damages
owing by Tenant pursuant to the provisions of this Lease or to enforce any
provision of this Lease, including reasonable attorneys' fees from the date any
such matter is turned over to an attorney, whether or not one or more actions
are commenced by Landlord, will also be recoverable by Landlord from Tenant.
Such attorney's fees will be due and payable upon tendering of a statement.
Failure to pay such fees will constitute a breach of the terms and conditions of
the within Lease. Landlord may treat the failure to make such payment as a
default in the payment of rent and as more particularly set forth in Article
5.06.
ARTICLE 26.00 RULES AND REGULATIONS
Tenant and its employees, agents, licensees and visitors will at all times
observe faithfully, and comply strictly with, the rules and regulations set
forth on Exhibit D. Landlord may from time to time amend, delete or modify
existing rules and regulations, or adopt new rules and regulations for the use,
safety, cleanliness and care of the Premises and the Business Center, and the
comfort, quiet and convenience of occupants of the Business Center.
Modifications or additions to the rules and regulations will be effective upon
notice to Tenant from Landlord. In the event of any breach of any rules or
regulations or any amendments or additions to such rules and regulations,
Landlord will have all remedies which this Lease provides for default by Tenant,
and will, in addition, have any remedies available at law or in equity,
including the right to enjoin any breach of such rules and regulations. Landlord
will not be liable to Tenant for violation of such rules and regulations by any
other tenant, its employees, agents, visitors or licensees or any other person.
In the event of any conflict between the provisions of this Lease and the rules
and regulations, the provisions of this Lease will govern.
ARTICLE 27.00 SIGNS
(a) No sign, advertisement or notice shall be affixed to or placed upon any part
of the leased premises by the Tenant, except in such a manner, and of such a
size, design, uniformity, and color as shall be approved in advance in writing
by the Landlord. Tenant shall be obligated to make his own application for a
sign, obtain permits, and to comply with the local authority having
jurisdiction.
(b) No roof signs shall be permitted; nor shall there be any attachments or
openings permitted of any kind to or through the roof.
(c) Tenant will purchase and install one sign in the location designated by
Landlord on the front of the Premises. Installation will be completed on the
earlier of the date on which Tenant opens for business. The sign will conform to
Landlord's sign criteria attached to this Lease as Exhibit E. Tenant will
maintain, repair, and replace the sign as required by Landlord during this
Lease.
ARTICLE 28.00 MISCELLANEOUS
28.01 NO OFFER. This Lease is submitted to Tenant on the understanding
that it will not be considered an offer and will not bind Landlord in any way
until (a) Tenant has duly executed and delivered duplicate originals to Landlord
and (b) Landlord has executed and delivered one of such originals to Tenant.
28.02 JOINT AND SEVERAL LIABILITY. If Tenant is composed of more than one
signatory to this Lease, each signatory will be jointly and severally liable
with each other signatory for payment and performance according to this Lease.
28.03 NO CONSTRUCTION AGAINST DRAFTING PARTY. Landlord and Tenant
acknowledge that each of them and their counsel have had an opportunity to
review this Lease and that this Lease will not be construed against Landlord
merely because Landlord's counsel has prepared it.
28.04 TIME OF THE ESSENCE. Time is of the essence on each and every
provision of this Lease.
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28.05 NO RECORDATION. Tenant's recordation of this Lease or any memorandum
or short form of it will be void and a default under this Lease.
28.06 NO WAIVER. The waiver by Landlord of any agreement, condition or
provision contained in this Lease will not be deemed to be a waiver of any
subsequent breach of the same or any other agreement, condition or provision
contained in this Lease, nor will any custom or practice which may grow up
between the parties in the administration of the terms of this Lease be
construed to waive or to lessen the right of Landlord to insist upon the
performance by Tenant in strict accordance with the terms of this Lease. The
subsequent acceptance of Rent by Landlord will not be deemed to be a waiver of
any preceding breach by Tenant of any agreement, condition or provision of this
Lease, other than the failure of Tenant to pay the particular Rent so accepted,
regardless of Landlord's knowledge of such preceding breach at the time of
acceptance of such Rent.
28.07 LIMITATION ON RECOURSE. Tenant specifically agrees to look solely to
Landlord's interest in the Business Center for the recovery of any judgments
from Landlord, it being agreed that Landlord (and its shareholders, venturers,
and partners, and their shareholders, venturers and partners and all of their
officers, directors and employees) will never be personally liable for any such
judgments. The provision contained in the preceding sentence is not intended to,
and will not, limit any right that Tenant might otherwise have to obtain
injunctive relief against Landlord or any suit or action in connection with
enforcement or collection of amounts which may become owing or payable under or
on account of insurance maintained by Landlord.
28.08 ESTOPPEL CERTIFICATES. At any time and from time to time but within
ten (10) days after written request by Landlord, Tenant will execute,
acknowledge and deliver to Landlord a certificate certifying (a) that this Lease
is unmodified and in full force and effect or, if there have been modifications,
that this Lease is in full force and effect, as modified, and stating the date
and nature of each modification, (b) the date, if any, to which rent and other
sums payable under this Lease have been paid, (c) that no notice has been
received by Landlord of any default which has not been cured, except as to
defaults specified in the certificate, and (d) such other matters as may be
reasonably requested by Landlord. Any such certificate may be relied upon by any
prospective purchaser or existing or prospective mortgagee or beneficiary under
any deed of trust of the Business Center or any part of the Business Center.
28.09 WAIVER OF JURY TRIAL. Landlord and Tenant by this Section 28.09
waive trial by jury in any action, proceeding or counterclaim brought by either
of the parties to this Lease against the other on any matters whatsoever arising
out of or in any way connected with this Lease, the relationship of Landlord and
Tenant, Tenant's use or occupancy of the Premises, or any other claims
(including without limitation claims for personal injury or property damage),
and any emergency statutory or any other statutory remedy.
28.10 NO MERGER. The voluntary or other surrender of this Lease by Tenant
or the cancellation of this Lease by mutual agreement of Tenant and Landlord or
the termination of this Lease on account of Tenant's default will not work a
merger, and will, at Landlord's option, (a) terminate all or any subleases and
subtenancies, or (b) operate as an assignment to Landlord of all or any
subleases or subtenancies. Landlord's option under this Section 28.10 will be
exercised by notice to Tenant and all known sublessees or subtenants in the
Premises or any part of the Premises.
28.11 HOLDING OVER. Tenant will have no right to remain in possession of
all or any part of the Premises after the expiration of the Term. If Tenant
remains in possession of all or any part of the Premises after the expiration of
the Term, with the express or implied consent of Landlord: (a) such tenancy will
be deemed to be a periodic tenancy from month-to-month only; (b) such tenancy
will not constitute a renewal or extension of this Lease for any further term;
and (c) such tenancy may be terminated by Landlord upon the earlier of (i)
thirty (30) days prior written notice or (ii) the earliest date permitted by
law. In such event, Monthly Base Rent will be increased to an amount equal to
one hundred fifty percent (150%) of the Monthly Base Rent payable during the
last month of the Term, and any other sums due under this Lease will be payable
in the amount and at the times specified in this Lease. Such month-to-month
tenancy will be subject to every other term, condition, and covenant contained
in this Lease.
28.12 NOTICES. Any notice, request, demand, consent, approval or other
communication required or permitted under this Lease must be in writing and will
be deemed to have been given when personally delivered or deposited in any
depository regularly maintained by the United States Postal Service, postage
prepaid, certified mail, return receipt requested, addressed to the party for
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whom it is intended at its address set forth in Article l.00. Either Landlord or
Tenant may add additional addresses or change its address for purposes of
receipt of any such communication by giving ten (10) days prior written notice
of such change to the other party in the manner prescribed in this Section
28.12.
28.13 SEVERABILITY. If any provision of this Lease proves to be illegal,
invalid or unenforceable, the remainder of this Lease will not be affected by
such finding, and in lieu of each provision of this Lease that is illegal,
invalid or unenforceable, a provision will be added as a part of this Lease as
similar in terms to such illegal, invalid or unenforceable provision as may be
possible and be legal, valid and enforceable.
28.14 WRITTEN AMENDMENT REQUIRED. No amendment, alteration, modification
of or addition to the Lease will be valid or binding unless expressed in writing
and signed by the party or parties to be bound by such change. Tenant agrees to
make any modifications of the terms and provisions of this Lease required or
requested by a lending institution providing financing for the Business Center,
provided that no such modifications will materially adversely affect Tenant's
rights and obligations under this Lease.
28.15 ENTIRE AGREEMENT. This Lease, the Exhibits and Addenda, if any,
contain the entire agreement between Landlord and Tenant and may be amended only
by subsequent written agreement. No promises or representations, except as
contained in this Lease, have been made to Tenant respecting the condition of
the Premises or the manner of operating the Business Center.
28.16 CAPTIONS. The captions of the various Articles and Sections of this
Lease are for convenience only and do not necessarily define, limit, describe or
construe the contents of such Articles or Sections.
28.17 NOTICE OF LANDLORD'S DEFAULT. In the event of any alleged default in
the obligation of Landlord under this Lease, Tenant will deliver to Landlord
written notice and Landlord will have thirty (30) days following receipt of such
notice to cure such alleged default or, in the event the alleged default cannot
reasonably be cured within a thirty (30) day period, to commence action to cure
such alleged default. A copy of such notice will be sent to any holder of a
mortgage or other encumbrance on the Business Center or the Premises of which
Tenant has been notified in writing, and such holder will also have the same
time periods to cure such alleged default.
28.18 AUTHORITY. Tenant and the party executing this Lease on behalf of
Tenant represent to Landlord that such party is authorized to do so by requisite
action of the board of directors, or partners, as the case may be, and agree
upon request to deliver to Landlord a resolution or similar document to that
effect.
28.19 BROKERS. Landlord and Tenant respectively represent and warrant to
each other that neither of them has consulted or negotiated with any broker or
finder with regard to the Premises except the Broker named in Article l.00(s),
if any. Each of them will indemnify the other against and hold the other
harmless from any claims for fees or commissions from anyone with who either of
them has consulted or negotiated with regard to the Premises except the Broker.
Landlord will pay any fees or commissions due the Broker as may be provided for
in a separate written agreement between the Landlord and Broker.
28.20 GOVERNING LAW. This Lease will be governed by and construed pursuant
to the laws of the state in which the Business Center is located.
28.21 FORCE MAJEURE. Landlord will have no liability to Tenant, nor will
Tenant have any right to terminate this Lease or xxxxx Rent or assert a claim of
partial or total actual or constructive eviction, because of Landlord's failure
to perform any of its obligations in the Lease if the failure is due to reasons
beyond Landlord's reasonable control, including, without limitation, strikes or
other labor difficulties; inability to obtain necessary governmental permits and
approvals (including building permits or certificates of occupancy);
unavailability or scarcity of materials; war; riot; civil insurrection;
accidents; acts of God; and governmental preemption in connection with a
national emergency. If Landlord fails to perform its obligations because of any
reasons beyond Landlord's reasonable control (including those enumerated above),
the period for Tenant's performance will be extended day for day for the
duration of the cause of Landlord's failure.
28.22 LATE PAYMENTS. Any payment of Rent, including Monthly Base Rent and
Additional Rent, which is not received within five (5) days after it is due will
be subject to a late charge equal to five percent (5%) of the unpaid payment.
This amount is in compensation of Landlord's additional cost of processing late
payments.
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28.23 NO EASEMENTS FOR AIR OR LIGHT. Any diminution or shutting off of
light, air or view by any structure which may be erected on lands adjacent to
the Business Center will in no way affect this Lease or impose any liability on
Landlord.
28.24 TAX CREDITS. Landlord is entitled to all local, state and federal
income tax benefits (including, without limitation, investment tax credits,
energy credits and rehabilitation credits) available as a result of leasehold
improvements for which Landlord has paid, or lent money, or guaranteed payment.
Promptly after Landlord's demand, Tenant will give Landlord a detailed list of
the leasehold improvements and fixtures and their respective costs for which
Tenant has paid without a loan or guarantee by Landlord, and Tenant will be
entitled to tax benefits attributable to such listed improvements. Landlord will
be entitled to all other such tax benefits for all other leasehold improvements.
28.25 RELOCATION OF THE PREMISES. Landlord reserves the unrestricted and
unconditional right to relocate the Premises to substantially comparable space
within the Business Center. Landlord will give Tenant a written notice of its
intention to relocate the Premises, and Tenant will complete such relocation
within thirty (30) days after receipt of such written notice. If the furnishings
of the space to which Landlord proposes to relocate Tenant are not substantially
the same as those of the Premises, or if the Monthly Base Rent of the new space
is not substantially the same as the prior Monthly Base Rent, Tenant may so
notify Landlord, and if Landlord fails to offer space satisfactory to Tenant,
Tenant may terminate this Lease effective as of the thirtieth (30th) day after
Landlord's initial notice. Upon Tenant's peaceable vacation and abandonment of
the premises, Landlord will pay to Tenant a sum equal to one monthly installment
of the Monthly Base Rent payable under this Lease. If Tenant does relocate
within the Business Center, then effective on the date of such relocation this
Lease will be amended by deleting the description of the original Premises and
substituting for it a description of such comparable space. Landlord agrees to
reimburse Tenant for its actual moving costs to such other space within the
Business Center, to the extent such costs are reasonable.
28.26 LANDLORD'S FEES. Whenever Tenant requests Landlord to take any
action or give any consent required or permitted under this Lease, same will not
be unreasonably withheld. Tenant will reimburse Landlord for all of Landlord's
costs incurred in reviewing the proposed action or consent, including, without
limitation, reasonable attorneys', engineers', architects', accountants' and
other professional fees, within ten (10) days after Landlord's delivery to
Tenant of a statement of such costs. Tenant will be obligated to make such
reimbursement without regard to whether Landlord consents to any such proposed
action.
28.27 BINDING EFFECT. The covenants, conditions and agreements contained
in this Lease will bind and inure to the benefit of Landlord and Tenant and
their respective heirs, distributees, executors, administrators, successors,
and, except as otherwise provided in this Lease, their assigns.
Landlord and Tenant have executed this Lease as of the day and year first above
written.
WITNESS: LANDLORD:
000 XXXXXXXXX XXXXXXXXX LLC
By:
------------------------------ ---------------------------------------
ATTEST: TENANT:
ION NETWORKS, INC.
By:
------------------------------ ---------------------------------------
Its Secretary
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[Corporate Seal if applicable]
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EXHIBIT A
---------
LEGAL DESCRIPTION OF THE BUSINESS CENTER
The land referred to in this commitment is described as follows:
All that certain Lot, piece or parcel of land, with the buildings and
improvements thereon erected, situate, lying and being in the Borough of South
Plainfield, County of Middlesex, State of New Jersey.
The following description is described in accordance with the survey made by Xx
Xxxx Associates dated January 10, 2000 and Revised October 16, 2000.
BEGINNING at a point of intersection of the southwesterly line of Corporate
Boulevard with the northeasterly line of New Durham Road formerly Perth Amboy
Turnpike and from thence running;
(1) Along the said northeasterly line of New Durham Road North 79 degrees 47
minutes 28 seconds West, 320.27 feet to a point;
THENCE(2) North 27 degrees 15 minutes 22 seconds West, 915.22 feet to a point;
THENCE (3) North 62 degrees 44 minutes 38 seconds East, 356.00 feet to a point
in the southwesterly line of Corporate Boulevard;
THENCE (4) Along the southwesterly line of Corporate Boulevard, South 27 degrees
15 minutes 22 East, 830.09 feet to a point of curve;
THENCE (5) Still along the southwesterly line of Corporate Boulevard on a curve
to the right having a radius of 444.00 feet, a distance of 293.59 feet to
another point of curve;
THENCE (6) Still along the said line of Corporate Boulevard on a curve to the
right having a radius of 30 feet, a distance of 11.04 feet to the point and
place BEGINNING.
NOTE: Being Lot(s) 47.04, 47.03 & 47.02, Block 528, Tax Map of the Borough of
South Plainfield, County of Middlesex.
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EXHIBIT B
---------
THE PREMISES
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EXHIBIT C
---------
WORKLETTER
Landlord and Tenant agree that Tenant will accept the demised premises in "as
is" condition.
Tenant is responsible for obtaining its own Building Permits and Certificate of
Occupancy.
OTHER COMMENTS:
Landlord agrees to do the following work:
1) Clean existing carpet
2) Repair and re-paint existing damaged walls
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EXHIBIT D
---------
RULES AND REGULATIONS
1. Tenant shall not conduct or permit to be conducted within the demised
premises or any portion of the Business Center any political gathering or
meeting or distribution of any political information and will not install or
permit to be installed anywhere in the Business Center any poster or sign of any
political nature.
2. All deliveries or shipments of any kind to and from the Leased Premises,
including loading and unloading of goods, shall be made only at such times, in
the areas and through the entrances reasonably designated for such purpose by
Landlord. Trailers and/or trucks servicing the Leased Premises shall remain
parked in the Business Center only during those periods necessary to service
Tenant's operations, but in no event shall such trailers or trucks remain parked
in the Business Center overnight.
3. No radio, television, phonograph or other similar device, or aerial attached
thereto (inside or outside the Leased Premises) shall be installed without first
obtaining in each instance, Landlord's written consent. Any aerial installed
without Landlord's consent shall be subject to removal without notice at any
time. No radio, television, phonograph or other similar device shall be used in
a manner so as to be heard or seen outside of the Leased Premises.
4. Tenant shall not burn trash or garbage in or about the Leased Premises or the
Business Center.
5. Tenant shall not place or cause to be placed on any vehicles parked in the
common areas of the Business Center, any handbills, bumper stickers or other
advertising or promotional materials nor shall Tenant use any of the common
areas in the Business Center for business or promotional purposes without the
prior written consent of Landlord.
6. The plumbing facilities within or serving the Leased Premises shall not be
used for any purposes other than for which they were constructed, and no foreign
substances of any kind shall be thrown therein.
7. Tenant shall not obstruct walkways, entrances, passages, courts, corridors,
vestibules, halls or any common areas in the Leased Premises or the Business
Center.
8. Tenant shall not keep on the Leased Premises inflammables, such as gasoline,
kerosene, naphtha, benzine, or explosives, or any other articles of an
intrinsically dangerous nature.
9. Tenant shall be responsible for the observance of these rules and regulations
by Tenant's employees, agents, clients, customers, invitees and guests.
10. Tenant shall not make or permit any noise or odor which Landlord deems
objectionable to emanate from the Leased Premises and no person shall use the
Leased Premises as sleeping quarters, sleeping apartments or lodging rooms.
11. Landlord may after notice to Tenant, amend or add new rules and regulations
for the use and care of the Leased Premises, the building of which the Leased
Premises forms a part and the common areas of the Business Center. Such
amendments or new rules shall be reasonable and shall apply uniformly to all
tenants for the Business Center.
12. No equipment or other fixtures shall be attached to the outside walls or the
windowsills of the building or otherwise affixed so as to project from the
building, without the prior written consent of Lessor.
13. Windows in the premises shall not be covered or obstructed by Lessee. No
bottles, parcels, or other articles be placed on the windowsills, in the halls,
or in any other part of the building other than the leased premises.
14. No additional locks or bolts of any kind shall be placed on any of the doors
by Lessee. Lessee shall, on the termination of Lessee's tenancy, deliver to
Lessor, all keys to any space within the building, either furnished to or
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otherwise procured by Lessee, and in the event of the loss of any keys
furnished, Lessee shall pay to Lessor the cost thereof.
15. Lessor reserves the right to prescribe the weight and position of all safes
and other heavy equipment so as to distribute properly the weight thereof and to
prevent any unsafe condition from arising. Business machines and other equipment
shall be placed and maintained by Lessee at Lessee's expense in settings
sufficient in Lessor's reasonable judgment to absorb and prevent unreasonable
vibration, noise, and annoyance.
16. Lessor shall not be responsible to Lessee for the non-observance or
violation of any of these rules by any other tenant.
17. Lessor hereby reserves to itself any and all rights not granted to Lessee
hereunder, including, but not limited to, the following rights which are
reserved to Lessor for its purposes in operating the Business Center:
(a) The exclusive right to the use of the name of the Business Center for
all purposes, except that Lessee may use the name as its business address and
for no other purpose;
(b) The right to change the name of the Business Center at any time and
from time to time, without incurring any liability to Lessee for so doing;
(c) The right to install and maintain a sign or signs on the exterior of
the Business Center and/or anywhere in the Business Center Area;
(d) The exclusive right to use or dispose of the use of all or any part of
the roof of the Business Center and Business Center Area;
(e) The right to grant anyone the right to conduct any particular business
or undertaking in the Business Center or Business Center Area.
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EXHIBIT E
---------
SIGN CRITERIA
It is understood and agreed that the Tenant shall have the right to signage
similar to signs presently located in the Business Center which the demised
premises is a part or signage which falls under the specifications set forth,
whichever policy is then in effect, Tenant shall present to Landlord prior to
construction and installation of any sign, a professionally drawn rendering
specifying size, material, copy and any other specifications included but not
limited to lighting and electrical load.
All signage must be approved in writing by the Landlord prior to installation,
Landlord's approval shall not be unreasonably withheld or delayed.
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EXHIBIT F
---------
ENVIRONMENTAL SPECIFICATION
Environmental Representations and Compliance.
--------------------------------------------
(a) The Tenant, its officers, partners, employees, agents and
subsidiaries, agree to indemnify, defend and hold the Landlord, its officers,
partners, employees, successors or assigns, harmless from any and all claims,
causes of action, and any and all damages, liabilities, costs and expenses of
any kind whatsoever, including fines, assessments, clean-up costs, shut-down
fees, contractor's costs and actual attorney fees, which arise out of, are
asserted on account of, or traceable to Tenant's use, storage, manufacture,
dumping, leakage or the carrying on of any activities or occurrence upon the
Premises that is the subject of this Lease relating to oil, waste oil, thinners,
spirits, materials all petro-chemical by-products, and any substance, material
or compound classified as toxic or hazardous under any federal, state or local
environmental law, and any other material or compound known to have an adverse
environmental impact.
(b) In addition, Tenant hereby makes the following
representations to Landlord, understanding that
Landlord shall and does in fact rely thereon.
Tenant shall also indemnify, defend and hold
Landlord harmless from any and all claims, costs,
damages, expenses, attorney fees, and causes of
action arising as a result of, or associated with
these representations made by Tenant:
(c) Landlord will indemnify and hold Tenant harmless
for any environmental conditions existing prior to
Tenant's occupancy of leased premises. Landlord is
not aware of any existing environmental
conditions.
(1) Air Quality:
(i) Tenant represents that any and all air emission
permits required by state, local or federal authorities have been properly
obtained and will remain in force.
(ii) Tenant represents that its facility is in
compliance with any conditions attendant to such permits.
(iii) Tenant represents that its facility is and will
remain in compliance with Occupational Safety Health Act requirements governing
exposure of workers to hazardous materials in the work place.
(2) Water Pre-Treatment:
(i) Tenant represents that any present discharge of
industrial waste water into the sewer system has been properly permitted by
local, state or federal authorities.
(ii) Tenant represents that all permits have been
properly complied with and that Tenant is not in violation of any permits,
ordinances, or compliance requirements.
(3) Underground Storage Tanks:
(i) Tenant acknowledges that there are presently no
underground storage tanks upon the property and that none will be installed
without Landlord's specific written consent.
(4) Water Discharge:
(i) Tenant represents that any permits for such water
discharge have been properly obtained and are current and that Tenant is in
compliance therewith.
(c) Tenant further understands and agrees that Landlord shall be
entitled to enter upon the Premises to conduct environmental audit inspections,
tests, borings, samplings and the like which Landlord deems reasonable and
necessary to determine the environmental status of the property.
(d) Tenant agrees that it shall, at its sole cost and expense,
fulfill, observe and comply with all of the terms and provisions of all federal,
state and local environmental laws now in effect or hereinafter enacted, as any
29
of the same may be amended from time to time, and all rules, regulations,
ordinances, opinions, orders and directive issued or promulgated pursuant
thereto or in connection therewith, as and to the extent any of the foregoing
may be applicable to the Property and Tenant's use and occupancy thereof.
(e) Within ten (10) days after written request by the Landlord or
any mortgagee of Landlord, and, in any event, on each anniversary of the
commencement date hereof, Tenant shall deliver to Landlord or Landlord's
mortgagee, as the case may be, a duly executed and acknowledged affidavit of
Tenant or Tenant's chief executive officer, certifying:
(1) The proper four digit Standard Industrial Classification
number ("S.I.C. number") relating to Tenant's then current use of the Property
(said S.I.C. number to be obtained by reference to the then current Standard
Industrial Classification Manual prepared and published by the Executive Office
of the President, Office of Management and Budget or the successors to such
publication). Tenant hereby represents, warrants and covenants that its S.I.C.
number as of the date of this Lease is as set forth in Section 1(i) hereof; and
(2) (a) That Tenant's use of the Property does not involve and
has not involved the generation, manufacture, refining, transportation,
treatment, storage, handling, or disposal of petroleum products or hazardous
substances or wastes (as hazardous substances and hazardous wastes are defined
in any Environmental Laws) on site, above ground or below ground (all of the
foregoing being hereinafter collectively referred to as the Presence of
Hazardous Substances); or (b) that Tenant's use does involve or has involved the
Presence of Hazardous Substances, in which event, such affidavit shall describe
in detail that portion of Tenant's operations which involves or involved the
Presence of Hazardous Substances. Said description shall identify each Hazardous
Substance and describe the manner in which it is or was generated, handled,
manufactured, refined, transported, treated, stored, and/or disposed of. Tenant
shall supply Landlord or Landlord's mortgagee with such additional information
relating to said Presence of Hazardous Substances as Landlord or Landlord's
mortgagee may request.
(f) Tenant shall provide Landlord with copies of all reports,
information and materials filed with or provided to any governmental agency or
authority pursuant to any of the environmental laws.
(g) In the event that, upon the date of termination or expiration of
the term of this Lease, Tenant has not satisfied and complied with all
requirements imposed upon Landlord if said requirements are imposed due to
Tenant or Tenant's actions, or Tenant under any environmental laws or by any
governmental agency or authority pursuant to any environmental laws, Tenant
shall continue to pay Fixed Rent at the annual rent payable immediately prior to
such date of termination or expiration plus an increase for each year until such
obligation terminates, each such annual increase to be determined by the
percentage increase in the Consumer Price Index published by the Bureau of Labor
Statistics of the United States for All Urban Consumers (1982-1984-100). Such
increased portion of rent over the Fixed Rent shall be computed by the increase
in the Index from three (3) months prior to the initial Term of the Lease to the
later of three (3) months prior to the expiration of the Lease or three (3)
months prior to the anniversary of each continuance of the Lease multiplied by
the annual rental during the last year of the Lease. The increased rental when
added to the previous Fixed Rent shall become the new Fixed Rent. In no event
shall Fixed Rent be reduced below the amount payable for the prior year. Such
Fixed Rent shall be payable notwithstanding that Tenant may be barred and
precluded from occupying and using the Property. Such payments of Fixed Rent
shall continue until Tenant has complied in full with the requirements imposed
by environmental laws or by governmental agencies and authorities having
jurisdiction with respect thereto and has provided to Landlord written
confirmation from governmental agency or authority having jurisdiction that such
compliance has in fact occurred. Tenant shall, in addition to payments of Fixed
Rent as aforesaid, promptly pay any fines, penalties, levies or assessments
against the Property or Landlord which are imposed at any time or from time to
time as a result of any action, act or failure to act of the Tenant relating to
environmental laws.
(h) Tenant agrees that each and every provision of this Section
shall survive the expiration or earlier termination of the Term of this Lease.
30
EXHIBIT I
---------
OPTION TO RENEW
OPTION TO RENEW THE LEASE. The Tenant may extend the term of this lease. The
extended term will be on all of the terms, covenants, and conditions of the
lease applicable at the expiration date of the initial lease subject to the
following terms and conditions.
(a) OPTION PERIOD. So long as Tenant is not in default under this Lease,
either at the time of exercise or at the time the extended term commences,
the Tenant will have the option to extend the initial term of this lease
for two (2) additional consecutive periods of three (3) years each
hereinafter referred to as the "first (1st) option period" and the "second
(2nd) option period" and together as the "option period".
(b) NOTICE. The Tenant will exercise its option by giving Landlord written
notice (option notice) at least six (6) months prior to the expiration of
the initial term of the lease for the first option period and at least six
(6) months prior to the expiration of the first (1st) option period for
exercising the option for the second (2nd) option period.
(c) OPTION PERIOD RENT. The rental for each option period shall be 95% of
the CPI increase to be determined as follows:
1) The Consumer Price Index hereinafter referred to as the CPI, shall
be the Consumer Price Index - Average for All Urban Consumers, All
Items, as published by the United States Bureau of Labor Statistics.
In the event of a change in the method of determining the CPI, an
adjustment shall be made in the revised index to produce results
equivalent, as nearly possible, to those which would have been
obtained had the CPI not been changed.
2) "Base Level Index" as used herein shall be the one month period
three months prior to the commencement of the initial term of this
Lease.
3) "Lease Year Index" as used herein shall be the one month period
three months prior to the commencement of each option period.
4) The monthly rental for the option periods shall be calculated using
the following formula:
.95 (Lease Year Index - Base Level Index) x Annual = Option Period
----------------------------------------- Base Rent Min Base Rent
Base Level Index
5) However, the annual rental for each option shall in no event be less
than $54,060.
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