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EXHIBIT 10.6
LEASE BETWEEN
ALLSTATE LIFE INSURANCE COMPANY
AND
ICARUS INTERNATIONAL, INC.
FOR SPACE AT
000 XXXXXXXXX XXXXX
XXXXXXXXX, XXXXXXXX
DECEMBER 31, 1997
DATE
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TABLE OF CONTENTS
PARAGRAPH
1.1 DEFINITION..........................................................
1.2 SCHEDULES AND ADDENDA...............................................
2.1 LEASE OF PREMISES...................................................
2.2 PRIOR OCCUPANCY.....................................................
3.1 RENT................................................................
3.2 DEPOSIT; PREPAID RENT...............................................
3.3 OPERATING COST......................................................
3.4 TAXES...............................................................
4.1 CONSTRUCTION CONDITIONS.............................................
4.2 COMMENCEMENT OF POSSESSION..........................................
5.1 PROJECT SERVICES....................................................
5.2 INTERRUPTION OF SERVICES............................................
6.1 USE OF LEASED PREMISES..............................................
6.2 INSURANCE...........................................................
6.3 REPAIRS.............................................................
6.4 ASSIGNMENT OF SUBLETTING............................................
6.5 ESTOPPEL CERTIFICATE................................................
7.1 SUBSTITUTE PREMISES.................................................
7.2 ADDITIONAL RIGHTS RESERVED TO LANDLORD..............................
8.1 CASUALTY AND UNTENANTABILITY........................................
9.1 CONDEMNATION........................................................
10.1 WAIVER AND INDEMNITY................................................
10.2 WAIVER AND SUBROGATION..............................................
10.3 LIMITATION OF LANDLORD'S LIABILITY..................................
11.1 TENANT'S DEFAULT....................................................
11.2 REMEDIES OF LANDLORD................................................
12.1 SURRENDER OF LEASED PREMISES........................................
12.2 HOLD OVER TENANCY...................................................
13.1 QUIET ENJOYMENT.....................................................
13.2 ACCORD AND SATISFACTION.............................................
13.3 SEVERABILITY........................................................
13.4 SUBORDINATION AND ATTORNMENT........................................
13.5 ATTORNEY'S FEES.....................................................
13.6 APPLICABLE LAW......................................................
13.7 BINDING EFFECT; GENDER..............................................
13.8 TIME................................................................
13.9 ENTIRE AGREEMENT....................................................
13.10 NOTICES.............................................................
13.11 HEADINGS............................................................
13.12 BROKERAGE COMMISSIONS...............................................
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LIST OF SCHEDULES
1. Description of Leased Premises
2. Rules and Regulations
3. Utility Services
4. Maintenance Services
5. Parking
6. Work Letter
7. Certificate of Acceptance
8. Addendum
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LEASE
This Lease is made December 31, 1997 between Allstate Life Insurance Company
("Landlord") and ICARUS INTERNATIONAL Inc. ("Tenant").
ARTICLE ONE
DEFINITIONS, SCHEDULES AND ADDENDA
1.1 DEFINITIONS:
a Leased Premises shall mean the entire 5th floor, as described in
Schedule 1.
b. Building shall mean Jefferson Plaza located at 000 Xxxxxxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxx 00000.
c. Project shall mean Jefferson Plaza located at 000 Xxxxxxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxx and 20852.
d. Tenant's Square Footage shall mean 28,922 rentable square feet;
Total Square Footage of the Building shall mean 115,215 rentable square feet.
e. Lease Commencement Date shall mean April 1, 1998, which may be
adjusted pursuant to paragraph 4.2 of this Lease; Lease Expiration Date shall
mean March 31, 2008; Lease Term shall mean the period between Lease Commencement
Date and Lease Expiration Date.
f. Base Rent shall mean $571,209.50 ($19.75 per square foot of Tenant's
Square Footage) per year, payable in monthly installments of $47,600.79 plus
applicable sales tax, if any; Commencing with the second lease year, the Base
Rent shall be increased annually by an amount equal to three percent (3%) of the
Base Rent in effect for the previous lease year. In addition to the annual
increase specified above, the Base Rent for the sixth lease year shall also be
increased by $1.00 per rentable square foot of space comprising the Leased
Premises.
g. Tenant's Pro Rata Share shall mean 25.1 %. Base Year shall mean the
calendar year during which the Lease Commencement occurs.
h. Deposit shall mean $300,000.00.
i. Permitted Purpose shall mean general office space and all related
and ancillary uses.
J. Authorized Number of Parking Spaces shall mean 3.23 spaces per 1,000
sq. spaces at a rate of $50.00 per space per month for unreserved spaces and $75
per month for reserved spaces. Tenant shall be entitled to up to seven reserved
parking spaces.
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k. Managing Agent shall mean LaSalle Partners Management Limited whose
address is 000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000.
l. Broker of Record shall mean LaSalle Partners Management Limited.
m. Cooperating Broker shall mean Xxxxxxxx Xxxx Company.
n. Landlord's Mailing Address: Allstate Plaza G5B Xxxxxxxxxx Xxxxxxxx
00000 Attention: Real Estate Equity Investment Division.
o. Tenant's Mailing Address: One Central Plaza, 00000 Xxxxxxxxx Xxxx,
Xxxxx 000, Xxxxxxxxx Xxxxxxxx 00000 and after occupancy, the Leased Premises.
1.2 SCHEDULES AND ADDENDA: The schedules and addenda listed below are
incorporated into this Lease by reference unless lined out. The terms of
schedules, exhibits and typewritten addenda, if any, attached or added hereto
shall control over any inconsistent provisions in the paragraphs of this Lease.
a. Schedule 1: Description of Leased Premises and/or Floor Plan
b. Schedule 2: Rules and Regulations
c. Schedule 3: Utility Services
d. Schedule 4: Maintenance Services
e. Schedule 5: Parking
f. Schedule 6: Work Letter
g. Schedule 7: Certificate of Acceptance
h. Schedule 8: Addendum
ARTICLE TWO
PREMISES
2.1 LEASE OF PREMISES: In consideration of the Rent and the provisions
of this Lease, Landlord leases to Tenant and Tenant accepts from Landlord the
Leased Premises. Tenant's Square Footage is a stipulated amount based on
Landlord's method of determining Total Square Footage for rental purposes and
may not reflect the actual amount of floor space available for Tenant's use.
2.2 PRIOR OCCUPANCY: Tenant shall not occupy the Leased Premises prior
to Lease Commencement Date except with the express prior written consent of
Landlord and in accordance with the provisions of Schedule 6. If with Landlord's
consent, Tenant occupies the Leased Premises prior to the Lease Commencement
Date, Tenant shall pay Landlord Base Rent in the amounts specified in paragraph
1.1 (f), and Tenant's Pro Rata Share of Excess Operating Costs, as defined in
paragraph 3.3(b), from the first day of such occupancy. These amounts will be
payable on the first day of such occupancy and thereafter on the first day of
every calendar month until the first day of the Lease Term. A prorated monthly
installment shall be paid for the fraction of the month if Tenant's occupancy of
the Leased Premises commences on any day other than the first day of the month.
If Tenant shall occupy the Leased Premises prior to Lease
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Commencement Date, all covenants and conditions of this Lease shall be binding
on the parties commencing at such prior occupancy.
ARTICLE THREE
PAYMENT OF RENT
3.1 RENT: Tenant shall pay each monthly installment of Base Rent in
advance on the first calendar day of each month. During the Base Year, no Excess
Operating Costs shall be paid by Tenant. For each calendar year following the
Base Year, Tenant shall pay each monthly installment of Tenant's Pro Rata Share
of Excess Operating Costs in advance together with each monthly installment of
Base Rent. Monthly installments for any fractional calendar month, at the
beginning or end of the Lease Term, shall be prorated based on the number of
days in such month Base Rent, together with all other amounts payable by Tenant
to Landlord under this Lease, including, without limitation, any late charges
and interest due Landlord for Rent not paid when due, shall be sometimes
referred to collectively as Rent. Tenant shall pay all Rent, without deduction
or set-off, to Landlord or Managing Agent at a place specified by Landlord. Rent
not paid when due shall bear interest until paid, at the rate of 2% per month,
or at the maximum rate allowed by law, whichever is less, from the date when
due. Tenant shall also pay a processing charge of $50 with each late payment of
"Rent". Landlord agrees to waive the processing and interest charge for late
payments of Rent twice during any twelve month period during the Lease Term,
provided any such late Rent payment is paid in full within 10 days of the date
when due.
3.2 DEPOSIT; PREPAID RENT: Tenant has paid to Landlord the Deposit as
security for performance of Tenant's obligations under this Lease. In the event
Tenant fully complies with all the terms and conditions of this Lease, the
Deposit shall be refunded (or the letter of credit appropriately reduced) to
Tenant, without interest unless otherwise required by law, One Hundred Thousand
Dollars ($100,000.00) upon the expiration of the third lease year, One Hundred
Thousand Dollars ($100,000.00) upon the expiration of the fourth lease year and
the balance upon expiration of this Lease. Landlord may, but is not obligated
to, apply a portion of the Deposit to cure any default hereunder and Tenant
shall pay on demand the amount necessary to restore the Deposit-in full within
10 days after notice by Landlord.
3.3 OPERATING COSTS: Tenant shall pay Tenant's Pro Rata Share of any
Excess Operating Costs as follows:
a. Operating Costs' shall mean all reasonable and actual expenses
relating to the operation, management, maintenance and repair of Leased
Premises, the Building or the Project, including but not limited to: real estate
taxes and assessments; gross rents, sales, use, business, corporation, franchise
or other taxes (except income taxes); utilities not separately chargeable to
other events; insurance premiums and (to the extent used) deductibles;
maintenance, repairs and replacements; refurbishing and repainting; cleaning,
janitorial and other services; equipment, tools, materials and supplies; air
conditioning, heating and elevator service; property management including
management fees; security; employees and contractors; resurfacing and restriping
of walks, drives and parking areas; signs, directories and markers; landscaping;
and snow and rubbish removal and, to the extent not offset by garage income, the
costs and expenses associated with the operation, maintenance, repair, and/or
replacement of the parking garage and/or areas.
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Operating Costs shall not include expenses for legal services, real estate
brokerage and leasing commissions, Landlord's income taxes, income tax
accounting, interest, depreciation, general corporate overhead, or capital
improvements to the building or Project except for capital improvements
installed for the purpose of reducing or controlling expenses, or required by
any governmental or other authority having or asserting jurisdiction over the
Building or Project provided, however, only the amortized portion of such cost
applicable to such lease year shall be included in the Operating Costs for such
lease year, based upon a straight-line basis of amortization in accordance with
generally accepted accounting principle. (GAAP). In addition, the following
additional items "shall not be included in "Operating Costs": expenses for which
Landlord is reimbursed or indemnified; all expenses incurred in procuring new
tenants including advertising expenses, rent concessions, renovation or
alteration costs; interest or amortization payments of any mortgage or loan; any
rental under any ground or underlying leases; wages, salaries or other
compensation of any executive above one (1) direct building manager and, with
respect to any other building employee or personnel not devoting full time to
the operation or maintenance of the Building, an allocable portion of such
expense attributable to other properties; the cost of correcting any defects to
the Building; charitable contributions; continuing education, trade association
fees or dues and other costs of Building staff; other cost not customarily or
reasonably included in Operating Costs. If any expense, though paid in one year,
relates to more than one calendar year, at option of Landlord, such expense may
be proportionately allocated among such related calendar years. In the event
that the Building is not fully leased during any calendar year, Landlord may
make appropriate adjustments to the Operating Costs, using reasonable
projections, to adjust such costs to an amount that would normally be expected
to be incurred if the Building were 95% leased, and such adjusted costs shall be
used for purposes of this paragraph 3.3. 'Excess Operating Costs' shall mean any
excess of (i) Landlord's Operating Costs for any calendar year following the
Base Year over (ii) the actual Operating Costs of the Base Year.
b. Tenant shall pay, in equal monthly installments, Tenant's Pro Rata
Share of any estimated Excess Operating Costs for each calendar year which falls
(in whole or in part) during the Lease Term (prorated for any partial calendar
year at the beginning or end of the Lease Term). Annually, or from time to time,
based on actual and projected Operating Cost data, Landlord may adjust it
estimate of Operating Costs upward or downward. Within 15 days after notice to
Tenant of a revised estimate of Operating Costs, Tenant shall remit to Landlord
a sum equal to any shortage of the amount which should have been paid to date
for the then current calendar year based on the revised estimate, and all
subsequent monthly estimated payments shall be based on the revised estimate.
c. As soon as possible, after the first day of each year Landlord shall
compute the actual Operating Costs for the prior calendar year, and shall give
notice thereof to Tenant. Within 30 days after receipt of such notice, Tenant
shall pay any deficiency between estimated and actual in Tenant's Pro Rata Share
of any Excess Operating Costs for the prior calendar year (prorated for any
partial calendar year at the beginning or end of the Lease Term). In the event
of overpayment by Tenant, Landlord shall apply the excess to the next payment of
Rent when due, until such excess is exhausted or until no further payments of
Rent are due, in which case, Landlord shall pay to Tenant the balance of such
excess within 30 days thereafter. Tenant or its representatives shall have the
right, upon reasonable notice, to examine Landlord's books and
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records with respect to the Operating Costs at the management office during
normal business hours at any time within one (1) year of the date Tenant
receives the annual statement of Operating Costs for any particular year. In the
event the review or audit reveals an overpayment by Tenant of its share of
Operating Costs in excess of ten percent, Landlord shall promptly reimburse
Tenant the reasonable costs and expenses incurred to conduct such review or
audit. In the event the audit reflects an underpayment by Tenant, Tenant shall
promptly pay any additional amount(s) due to Landlord for Tenant's Pro Rata
Share of Operating Costs.
3.4 TAXES: In addition to Base Rent and other sums to be paid by Tenant
hereunder, Tenant shall reimburse Landlord as additional Rent, on demand, any
taxes payable by Landlord (a) upon, measured by or reasonably attributable to
the cost or value of Tenant's equipment, fixtures and other personal property
located in the Leased Premises (b) upon or measured by the monthly rental
payable hereunder, including, without limitation, any gross receipts tax or
excise tax; (c) upon or with respect to the possession, leasing, operation,
management, maintenance, alteration. repair, use or occupancy by Tenant of the
Leased Premises or any portion thereof; (d) upon this Lease or any document to
which Tenant is a party creating or transferring an interest or an estate in the
Leased Premises.
ARTICLE FOUR
IMPROVEMENTS
4.1 CONSTRUCTION CONDITIONS: The improvements shall be constructed as
described in the work letter attached hereto as Schedule 6 (the "Improvements").
The expenses to be incurred as between Landlord and Tenant for construction of
the Improvements are specified in Schedule 6. Landlord's approval of Tenant's
plans for improvements shall create no responsibility or liability on the part
of Landlord for their completeness, design sufficiency, or compliance with laws,
rules and regulations of governmental agencies or authorities.
4.2 COMMENCEMENT OF POSSESSION: If the Leased Premises are not
substantially completed by the scheduled Lease Commencement Date then the Lease
Commencement Date shall be extended to a date 5 days after Landlord shall notify
Tenant that the Leased Premises are ready for occupancy and the Lease Expiration
Date shall be adjusted accordingly. If Landlord fails to cause the Leased
Premises to be ready for occupancy at the time of the scheduled Lease
Commencement Date, Landlord and Landlord's agents, officers, employees, or
contractors shall not be liable for any damage, loss, liability or expense
caused thereby, and this Lease shall not become void or voidable unless such
failure continues for more than 120 days, in which case Tenant may terminate
this Lease upon 20 days written notice to Landlord. Prior to occupying the
Leased Premises, Tenant shall execute and deliver to Landlord a letter in the
form attached as Schedule 7, acknowledging the Lease Commencement Date and
certifying that the improvements have been substantially completed and that
Tenant has examined and accepted the Leased Premises.
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ARTICLE FIVE
PROJECT SERVICES
5.1 PROJECT SERVICES: Landlord shall furnish:
a. Utility Services: The utility services listed on Schedule 3
("Utility Services ). Should Tenant, in Landlord's sole judgment, use
additional, unusual or excessive Utility Services, Landlord reserves the right
to charge for such services as determined either by a separate submeter,
installed at Tenant's expense, or by methods specified by an engineer selected
by Landlord.
b. Maintenance Services: of all interior and exterior common areas of
the Building areas including lighting landscaping, cleaning, painting,
maintenance and repair of the exterior of the Building and its structural
portions and roof, including all of the services listed on SCHEDULE 4
("Maintenance Services").
c. Parking: Parking under the terms and conditions described in
Schedule 5 ("Parking"). Utility Services, Maintenance Services and Parking
described above shall be collectively referred to as Project Services . The
costs of Project Services shall be a part of Operating Costs.
5.2 INTERRUPTION OF SERVICES: Landlord does not warrant that any of the
Project Services will be free from interruption. Any Project Service may be
suspended by reason of accident or of necessary repairs, alterations or
improvements, or by strikes or lockouts, or by reason of operation of law, or
causes beyond the reasonable contra of Landlord. Subject to possible rent
abatement as may be provided pursuant to the conditions described in paragraph
8.1, any such interruption or discontinuance of such Project Services shall
never be deemed a disturbance of Tenant's use and possession of the Leased
Premises, or render Landlord liable to Tenant for damage by abatement of rent or
otherwise, or relieve Tenant from performance of Tenant's obligations under this
Lease; provided, however, that should such interruption or discontinuance of
Project Services which materially impairs Tenant's ability to conduct its
business continue for 4 consecutive business days, then beginning on the fifth
business day, Landlord shall xxxxx Base Rent and Tenant's Pro Rata Share of
Excess Operating Costs, for that portion of the Leased Premises rendered
untenantable, from the fifth business day after said interruption or
discontinuance until the Project Services are restored. Landlord shall use its
best efforts to cause the Project Services to be promptly restored.
ARTICLE SIX
TENANT'S COVENANTS
6.1 USE OF LEASED PREMISES: Tenant agrees to:
a. Permitted Usage: Use the Leased Premises for the Permitted Purpose
only and for no other purpose.
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b. Compliance with Laws: At Tenant's expense, comply with the
provisions of all recorded covenants, conditions and restrictions and all
building, zoning, fire and other governmental laws, ordinances, regulations or
rules now in force or which may hereafter be in force relating to Tenant's use
and occupancy of the Leased Premises, the Building, or the Project and all
requirements of the carriers of insurance covering the Project.
c. Nuisances or Waste: Not do or permit anything to be done in or about
the Leased Premises, or bring or keep anything in the Leased Premises that may
increase Landlord's fire and extended coverage insurance premium, damage the
Building or the Project, constitute waste, constitute an immoral purpose, or be
a nuisance, public or private, or menace or other disturbance to tenants of
adjoining premises or anyone else.
d. Hazardous Substances: (i) comply with all Environmental Laws; (ii)
not cause or permit any Hazardous Materials to be treated, stored, disposed of,
generated, or used in the Leased Premises or the Project, provided, however,
that Tenant may store, use or dispose of products customarily found in offices
and used in connection with the operation and maintenance of property if Tenant
complies with all Environmental Laws and does not contaminate the Leased
Premises, Project or environment; (iii) promptly after receipt, deliver to
Landlord any communication concerning any past or present, actual or potential
violation of Environmental Laws, or liability of either party for Environmental
Damages. Environmental Laws mean all applicable present and future statutes,
regulations, rules, ordinances, codes, permits or orders of all governmental
agencies, departments, commissions, boards, bureaus, or instrumentalities of the
United States, states and their political subdivisions and all applicable
judicial, administrative and regulatory decrees and judgments relating to the
protection of public health or safety or of the environment. Hazardous Materials
include substances (i) which require remediation under any Environmental Laws;
or (ii) which are or become defined as a "hazardous waste", "hazardous
substance", pollutant or contaminant under any Environmental Laws; or (iii)
which are toxic, explosive, corrosive, flammable, infectious, radioactive,
carcinogenic or mutagenic; or (iv) which contain petroleum hydrocarbons,
polychlorinated biphenyls asbestos, asbestos containing materials or urea
formaldehyde.
e. Alterations and improvements: Make no alterations or improvements to
the Leased Premises without the prior written approval of Landlord and
Landlord's mortgagee, if any, which consent shall not be unreasonably withheld;
provided, however, Tenant may make non-structural alterations which in any one
instance do not exceed One Thousand Dollars ($1,000.00) without the consent of
Landlord as long as Tenant provides Landlord with a description of the work or
any plans and specifications prepared by Tenant, if any. Any such alterations or
improvements by Tenant shall be done in a good and workmanlike manner, at
Tenant's expense, by a licensed contractor approved by Landlord in conformity
with plans and specifications approved by Landlord. If requested by Landlord,
Tenant will post a bond or other security reasonably satisfactory to Landlord to
protect Landlord against liens arising from work performed for Tenant.
Landlord's approval of the plans and specifications for Tenant's alterations or
improvements shall create no responsibility or liability on the part of Landlord
for their completeness, design sufficiency, or compliance with all laws, rules
and regulations of governmental agencies or authorities.
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f. Liens: Keep the Leased Premises, the Building and the Project free
from liens arising out of any work performed, materials furnished or obligations
incurred by or for Tenant other than the initial Leasehold improvements to be
constructed by Landlord hereunder within the Allowance. If, at any time, a lien
or encumbrance is filed against the Leased Premises, the Building or the Project
as a result of Tenant's work, materials or obligations, Tenant shall promptly
discharge such lien or encumbrance. If such lien or encumbrance has not been
removed within 30 days from the date it is made, Tenant agrees to deposit with
Landlord cash or a bond, which shall be in a form and be issued by a company
acceptable to Landlord in its sole discretion, in an amount equal to 150% of the
amount of the lien, to be held by Landlord as security for the lien being
discharged.
g. Rules and Regulations: Observe, perform and abide by all the rules
and regulations promulgated by Landlord from time to time. Schedule 2 sets forth
Landlord's rules and regulations in effect on the date hereof.
h. Signage: Obtain the prior approval of the Landlord before placing
any sign or symbol in doors or windows or elsewhere in or about the Leased
Premises, or upon any other pan of the Building, or Project including building
directories. Any signs or symbols which have been placed without Landlord's
approval may be removed by Landlord. Upon expiration or termination of this
Lease, all signs installed by Tenant shall be removed and any damage resulting
therefrom shall be promptly repaired, or such removal and repair may be done by
Landlord and the cost charged to Tenant as Rent. Tenant shall be entitled to a
proportionate amount of the listings in each Building directory (based upon
Tenant's Pro Rata Share) in which tenants shall be listed.
6.2 INSURANCE: Tenant shall, at its own expense procure and maintain
during the Lease Term: (i) fire and extended casualty insurance covering Tenant
s trade fixtures, merchandise and other personal property located in the Leased
Premises, in an amount not less than 100% of their actual replacement cost, and
(ii) worker's compensation insurance in at least the statutory amounts, and
(iii) commercial general liability insurance with respect to the Leased Premises
and Tenant's activities in the Leased Premises and in the Building and the
Project, providing bodily injury and broad form property damage coverage with a
maximum $5,000 deductible, or such other amount approved by Landlord in writing,
and minimum coverage as follows:
a. $1,000,000 with respect to bodily injury or death to any one person;
b. $5,000,000 with respect to bodily injury or death arising out of any
one occurrence;
c. $1,000,000 with respect to property damage or other loss arising out
of any one occurrence.
Landlord shall provide the Tenant with a declaration of self insurance
or Landlord shall maintain during the term comparable fire and extended casualty
insurance on the Building and commercial liability insurance for liability
arising in the common areas of the Building and Project.
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Nothing in this paragraph 6.2 shall prevent Tenant from obtaining
insurance of the kind and in the amounts provided for under this paragraph under
a blanket insurance policy covering other properties as well as the Leased
Premises, provided, however, that any such policy of blanket insurance (i) shall
specify the amounts of the total insurance allocated to the Leased Premises,
which amounts shall not be less than the amounts required by subparagraphs a.
through c. above, and (ii) such amounts so specified shall be sufficient to
prevent any one of the assureds from becoming a coinsurer within the terms of
the applicable policy, and (iii) shall, as to the Leased Premises, otherwise
comply as to endorsements and coverage with the provisions of this paragraph.
Tenant's insurance shall be with a company which has a rating equal to
or greater than Best's insurance Reports classification of A, Class X or its
equivalent, as such classification is determined as of the Lease Commencement
Date. Landlord and Landlord's mortgagee, if any, shall be named as additional
insureds under Tenant's insurance, and such Tenant's insurance shall be primary
and non-contributing with Landlord's insurance. Tenant's insurance policies
shall contain endorsements requiring 30 days notice to Landlord and Landlord's
mortgagee, if any, prior to any cancellation, lapse or nonrenewal or any
reduction in amount of coverage.
Tenant shall deliver to Landlord as a condition precedent to its taking
occupancy of the Leased Premises certificates of insurance (with respect to the
liability policy) and evidence of insurance (ACCORD Number 27) or equivalent
(with respect to the property policy), or certified copies of either of the
policies.
6.3 REPAIRS: Tenant, at its sole expense, agrees to maintain the
interior of the Leased Premises in a neat, clean and sanitary condition. If
Tenant fails to maintain or keep the Leased Premises in good repair and such
failure continues for 5 days after written notice from Landlord or if such
failure results in a nuisance or health or safety risk, Landlord may perform any
such required maintenance and repairs provided Landlord has first given Tenant
written notice and five (5) business days opportunity to cure as aforesaid, and
the cost thereof shall be payable by Tenant as Rent within 10 days of receipt of
an invoice from Landlord. Tenant shall also pay to Landlord the costs of any
repair to the Building or Project necessitated by any act or neglect of Tenant.
6.4 ASSIGNMENT AND SUBLETTING: Tenant shall not assign, mortgage,
pledge, or incumber this Lease, or permit all or any part of the Leased Premises
to be subleased without the prior written consent of Landlord and Landlord's
mortgagee, if any, which consent shall not be unreasonably withheld or delayed.
Any transfer of this Lease by merger, consolidation, reorganization or
liquidation of Tenant, or by operation of law, or change in ownership of or
power to vote the majority of the outstanding voting stock of a corporate
Tenant, or by change in ownership of a controlling partnership interest in a
partnership Tenant, shall constitute an assignment for the purposes of this
paragraph. Notwithstanding the foregoing, Tenant shall have the right to assign
or sublease pan or all of the Leased Premises to any of its subsidiaries,
affiliates or any parent corporation of Tenant with prior written notice to
Landlord provided that (i) Tenant continues to be primarily liable on its
obligations as set forth herein; (ii) any such assignee or subleases shall
assume and be bound by all covenants and obligations of Tenant herewith; (iii)
the proposed assignee or subleases is, in Landlord's reasonable judgment,
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compatible with other tenants in the Building and seeks to use the Leased
Premises only for the Permitted Purpose and for a use that is not prohibited
under the terms of a lease with another tenant in the Building; and (iv) such
use would not result in a material change in the number of personnel working in,
or members of the general public visiting, the Leased Premises. Nothing herein
shall prohibit any subsidiary or affiliate of Tenant from using any portion of
the Leased Premises.
In addition to other reasonable bases, Tenant hereby agrees that
Landlord shall be deemed to be reasonable in withholding its consent, if (b)
such proposed assignment or sublease is to any party who is then a tenant of the
Building or the Project if Landlord has comparable area; or (c) Tenant is in
default under any of the terms, covenants, conditions, provisions and agreements
of this Lease at the time of request for consent or (d) the proposed subtenant
or assignee is in Landlord's good faith Judgment, incompatible with other
tenants in the Building, or seeks to use any portion of the Leased Premises for
a use not consistent with other uses in the Building, or is financially
incapable of assuming the obligations of this Lease; or (e) the proposed
assignee of sublessee or its business is subject to compliance with additional
requirements of the law (including related regulation) commonly known as the
Americans with "Disabilities Act" beyond those requirements which are applicable
to the Tenant, unless the proposed assignee or sublessee shall: (i) first
deliver plans and specifications for complying with such additional requirements
and obtain Landlord's consent thereto, and (in comply with all Landlord's
conditions for or contained in such consent, including without limitation,
requirements for security to assure the lien-free completion of such
improvements. Tenant shall submit to Landlord the name of a proposed assignee or
subtenant, the terms of the proposed assignment or subletting, the nature of the
proposed subtenant's business and such information as to the assignee's or
subtenant's financial responsibility and general reputation as Landlord may
reasonably require.
No subletting or assignment, even with the consent of Landlord, shall
relieve Tenant of its primary obligation to pay the Rent and to perform all of
the other obligations to be performed by Tenant hereunder. The acceptance of
Rent by Landlord from any other person or entity shall not be deemed to be
waiver by Landlord of any provision of this Lease or to be a consent to any
assignment, subletting or other transfer. Consent to one assignment, subletting
or other transfer shall not be deemed to constitute consent to any subsequent
assignment, subletting or transfer.
In lieu of giving any consent to a sublet or an assignment of all the
Leased Premises, Landlord may, at Landlord's option, elect to terminate this
Lease. in the case of a proposed subletting of a portion of the Leased Premise
in excess of twenty-five percent of the original Leased Premises Landlord may,
at Landlord's option, elect to terminate the Lease with respect to that portion
of the Leased Premises being proposed for subletting. The effective date of any
such termination shall be 30 days after the proposed effective date of any
proposed assignment or subletting.
Nothing herein shall permit the Landlord to terminate this Lease in
those instances where Tenant sublets or assigns all or any portion of the Lease
Premises to a subsidiary or affiliate of Tenant or a person or entity acquiring
Tenant, whether structured as an asset or stock purchase.
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One-half of any proceeds in excess of Base Rent and Tenant's Pro Rata
Share of Excess Operating Costs which is received by Tenant pursuant to an
assignment or subletting consented to by Landlord, less reasonable brokerage
commissions actually paid by Tenant, and less other costs incurred by Tenant in
connection with making the space available for lease, shall be remitted to
Landlord as extra Rent within 10 days of receipt by Tenant. For purposes of this
paragraph, all money or value in whatever form receded by tenant from or on
account of any party as consideration for an assignment or subletting shall be
deemed to be proceeds received by Tenant pursuant to an assignment or
subletting.
6.5 ESTOPPEL CERTIFICATE: From time to time and with 10 days of such
party's receipt of a request from the other, each party shall execute and
deliver a certificate certifying with any appropriate exceptions, (i) that this
Lease is in full force and effect without modification or amendment, (ii) the
amount of Rent payable by Tenant and the amount, if any, of Prepaid Rent and
Deposit paid by Tenant to Landlord, or (iii) otherwise, if any, which Tenant has
received or is entitled to receive (iv) that Tenant has not assigned its rights
under this Lease or sublet any portion of the Leased Premises, (v) that such
party has performed all of its obligations due to be performed under this Lease
and that there are no defenses, counterclaims, deductions or offsets outstanding
or other excuses for performance under this Lease, (vi) that such party (and/or
their proposed lender, purchaser or other party to whom the requesting party
directs the certificate to be sent) may rely on the information contained in the
certificate, and (vii) such other fact reasonably requested by such party
(and/or their proposed lender, purchaser or other party to whom the requesting
party directs the certificate to be sent).
ARTICLE SEVEN
LANDLORD'S RESERVED RIGHTS
7.1 SUBSTITUTE PREMISES: Landlord shall have the right at any time,
upon giving Tenant 60 days written notice, to relocate at Landlord's expense the
Leased Premises on any floor of the Building or elsewhere in the Project,
provided that Tenant's Square Footage shall be approximately the same. Should
Landlord give Tenant written notice of the relocation of the Leased Premises
after Tenant has commenced or completed the approved installation of partitions
or other improvements, Landlord shall furnish Tenant with similar partitions or
other improvements of equal quality. Landlord hereby agrees to pay expenses
resulting from relocating the Tenant including moving expenses, telephone
installation, computer wires, wiring and installation, and the cost of
stationery to replace that made obsolete as a result of the move. The relocation
of the Leased Premises shall not affect any of the clauses or conditions of this
Lease, including the Rent. Notwithstanding anything in this Section 7.1 to the
contrary, the provisions of this Section 7.1 shall not apply and Landlord shall
not have the right to relocate Tenant if Tenant (its parent, affiliates,
subsidiaries, successor. or assigns) is/are in full occupancy of the entire
fifth floor of the Building.
7.2 ADDITIONAL RIGHTS RESERVED TO LANDLORD: Without notice and without
liability to Tenant or without effecting an eviction or disturbance of Tenant's
use or possession, Landlord shall have the right to (i) grant utility easements
or other easements in, or replat, subdivide or make other changes in the legal
status of the land underlying the Building or the Project as Landlord shall deem
appropriate in its sole discretion, provided such changes
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do not substantially interfere with Tenant's use of the Leased Premises for the
Permitted Purpose; (ii) enter the Leased Premises at reasonable times and at any
time in the event of an emergency to inspect, alter or repair the Leased
Premises or the Building and to perform any acts related to the safety,
protection, reletting, sale or improvement of the Leased Premises or the
Building, any portion of the Leased Premises with restricted access shall only
be accessed by Landlord in coordination with Tenant so as to preserve the
secrecy or confidentiality of any work being performed therein. Rent shall be
prorated on a per diem basis and apportioned in accordance with the part of the
Leased Premises which is usable by Tenant until the damaged part is ready for
Tenant's occupancy. Notwithstanding the foregoing, If any damage was proximately
caused by an act or omission of Tenant, its employees, agents, contractors,
licensees or invitees, then, in such event, Tenant agrees that Rent shall not
xxxxx or be diminished during the term of this Lease (iii) change the name or
street address of the Building or the Project; (iv) install and maintain signs
on and in the Building and the Project; and (v) make such rules and regulations
as, in the sole judgment of Landlord, may be needed from time to time for the
safety of the tenants, the care and cleanliness of the Leased Premises, the
Building and the Project and the preservation of good order therein.
ARTICLE EIGHT
CASUALTY AND UNTENANTABILITY
8.1 CASUALTY AND UNTENANTABIUTY: If the Building is made substantially
untenantable or if Tenant's use and occupancy of the Leased Premises are
substantially interfered with due to damage to the common areas of the Building
or if the Leased Premises are made wholly or partially untenantable by fire or
other casualty, Landlord may, by notice to Tenant within 45 days after the
damage, terminate this Lease. Such termination shall become effective as of the
date of such casualty.
If the Leased Premises are made partially or wholly untenantable by
fire or other casualty and this Lease is not terminated as provided above,
Landlord shall restore the Leased Premises to the condition they were in on the
Lease Commencement Date, not including any personal property of Tenant or
alterations performed by Tenant.
If the Landlord does not terminate this Lease as provided above, and if
Landlord fails within 120 days from the date of such casualty to restore the
damaged common areas thereby eliminating substantial interference with Tenant's
use and occupancy of the Leased Premises, or fails to restore the Leased
Premises to the condition they were in on the Lease Commencement Date, not
including any personal property or alterations performed by Tenant, Tenant may
terminate this Lease as of the end of such 120 day period.
In the event of termination of this Lease pursuant to this paragraph,
Rent shall be prorated on a per diem basis and paid to the date of the casualty,
unless the Leased Premises shall be tenantable, in which case Rent shall be
payable to the date of the lease termination. If the Leased Premises are
untenantable and this Lease is not terminated, Rent shall xxxxx on a per diem
bests from the date of the casualty until the Leased Premises are ready for
occupancy by Tenant. If part of the Leased Premises are untenantable,
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ARTICLE NINE
CONDEMNATION
9.1 CONDEMNATION: If all or any part of the Leased Premises shall be
taken under power of eminent domain or sold under imminent threat to any public
authority or private entity having such power, this Lease shall terminate as to
the part of the Leased Premises so taken or sold, effective as of the date
possession is required to be delivered to such authority. In such event, Base
Rent shall xxxxx in the ratio that the portion of Tenant's Square Footage taken
or sold bears to Tenant's Square Footage. If a partial taking or sale of the
Leased Premises, the Building or the Project (i) substantially reduces Tenant's
Square Footage resulting in a substantial inability of Tenant to use the Leased
Premises for the Permitted Purpose, or (ii) renders the Building or the Project
not commercially viable to Landlord in Landlord's sole opinion, either Tenant in
the case of (i), or Landlord in the case of (ii), may terminate this Lease by
notice to the other party within 30 days after the terminating party receives
written notice of the portion to be taken or sold. Such termination shall be
effective 180 days after notice thereof, or when the portion is taken or sold,
whichever is sooner. All condemnation awards and similar payments shall be paid
and belong to Landlord, except any amounts awarded or paid specifically to
Tenant for removal and reinstallation of Tenant's trade fixtures, personal
property or Tenant's moving costs.
ARTICLE TEN
WAIVER AND INDEMNITY
10.1 WAIVER AND INDEMNITY: Except for those claims arising from
Landlord's breach of this Lease, negligence or willful misconduct, Tenant, to
the extent permitted by law, waives all claims it may have against Landlord, and
against Landlord's agents and employees for any damages sustained by Tenant or
by any occupant of the Leased Premises, or by any other person, resulting from
any cause arising at any time. Tenant agrees to hold Landlord harmless and
indemnified against calms and liability for injuries to all persons and for
damage to or loss of property occurring in or about the Leased Premises or the
Bandit due to Tenant's breach of this Lease or any act of negligence or default
under this Lease by Tenant, its contractors, agents, employees, licensees and
invitees. Tenant agrees to Indemnify, defend, reimburse and had Landlord
harmless against any Environmental Damages incurred by Landlord arising from
Tenant's breach of paragraph 6.1 (d) of this Lease. Environmental Damages means
all claims, Judgments, losses, penalties, fines, liabilities, encumbrances,
liens, costs and reasonable expenses of investigation, defense or good faith
settlement resulting from violations of Environmental Laws, and including,
without limitation: (i) damages for personal injury and injury to property or
natural resources; (ii) reasonable fees and disbursement of attorneys,
consultants, contractors, experts and laboratones; and flip costs of any
cleanup, remediation, removal, response, abatement, containment, closure,
restoration or monitoring work required by any Environmental Law and other costs
reasonably necessary to restore full economic use of the Leased Premises or
Project
10.2 WAIVER OF SUBROGATION: Tenant and Landlord release each other and
waive any right of recovery against each other for loss or damage to the waiving
party or its respective property, which occurs in or about the Leased Premises
or Building, whether due to the negligence of either party, their agents,
employees, officers, contractors, licensees, invitees or otherwise, to the
extent that such loss or damage is insurable against under the terms of
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standard fire and extended coverage insurance policies. Tenant and Landlord
agree that all policies of insurance obtained by either of them in connection
with the Leased Premises shall contain appropriate waiver of subrogation
clauses.
10.3 LIMITATION LANDLORD'S LIABILITY: The obligations of Landlord under
this Lease do not constitute personae obligations of the individual partners,
shareholders, directors, officers, employees or agents of Landlord, and Tenant
shall look solely to Landlord's interest in the Building and land and to no
other assets of Landlord for satisfaction of any liability in respect of this
Lease. Tenant will not seek recourse against the individual pawners,
shareholders, directors, officers, employees or agents of Landlord or any of
their personal assets for such satisfaction. Notwithstanding any other
provisions contained herein, Landlord shall not be liable to Tenant, its
contractors, agents or employees for any consequential damages or damages for
loss of profits.
ARTICLE ELEVEN
TENANT'S DEFAULT AND LANDLORD'S REMEDIES
11.1 TENANT'S DEFAULT: It shall be an "Event of Default" if Tenant
shall (i) fail to pay any monthly installment of Base Rent or Tenant's Pro Rata
Share of Excess Operating Costs, or any other sum payable hereunder within 10
days after such payment is due and payable; (ii) violate or fail to perform any
conditions, covenants, or agreements herein made by Tenant respecting Tenant's
insurance requirements as specified in paragraph 6.2, and such violation or
failure shall continue for 5 business days after written notice thereof to
Tenant by Landlord; (iii) violate or fat to perform any of the other conditions,
covenants or agreements herein made by Tenant, and such violation or failure
shall continue for 15 days after written notice thereof to Tenant by Landlord;
provided, however, of such default is of a nature that it cannot reasonably be
cured within 15 days, it shall not be an Event of Default of Tenant commences to
cure within such 15 day period and diligently prosecunes such cure to completion
within the time reasonably required for such cure, not to exceed 60 days; (iv)
make a general assignment for the benefit of its creditors or file a petition
for bankruptcy or other reorganization, liquidation, dissolution or similar
relief; (v) have a proceeding filed against Tenant seeking any relief mentioned
in (v) above; (vi) have a trustee, receiver or liquidator appointed for Tenant
or a substantial part of as property; (vii) abandon or vacate the Leased
Premises and any portion of Rent is delinquent; (viii) default under any other
lease, of any, within the Building or the Project; or (ix) if Tenant is a
partnership, of any partner of the partnership is involved in any of the acts or
events described in subparagraphs (i) through (viii) above.
11.2 REMEDIES OF LANDLORD: If an Event of Default occurs, Landlord,
may, at its option, within 5 days after written notice to Tenant, reenter the
Leased Premises, to the extent provided by law remove all persons therefrom,
take possession of the Leased Premises, and remove ail of Tenant's personal
property at Tenant's risk and expense and, either (i) terminate this Lease and
Tenant's right of possession of the Leased Premises or (ii) maintain this Lease
in full force and effect and endeavor to relet all or part of the Leased
Premises. In the event Landlord elects to maintain this Lease, Landlord shall
have the right to relet the Leased Premises for such rent and upon such terms as
Landlord deems reasonable and necessary, and Tenant shall be liable for all
damages sustained by Landlord, including but not limited to, any deficiency in
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Rent for the period of time which would have remained in the Lease Term in the
absence of any termination, leasing fees, attorneys' fees, other marketing and
collection costs, the cash value of any concessions granted to Tenant and all
expenses of placing the Leased Premises in first class rentable condition.
Landlord retains the right to terminate this Lease, at any time, notwithstanding
that Landlord fails to terminate this Lease initially. If Landlord is unable
after diligent efforts to relet the Leased Premises within 60 days after
termination of this Lease, Landlord may elect at any time thereafter to have
Tenant immediately pay, as liquidated damages and not as a penalty. all Rent
then due and the present value (discounted at 10%) of all Rent which would have
become due (based on Base Rent and Tenant's Pro Rata Share of Excess Operating
Costs payable at the time of such election and the cash value of any concessions
granted to Tenant) for the period of time which would have remained in the Lease
Term in the absence of any termination. Landlord agrees to use reasonable
efforts to relet the Leased Premises.
The remedies granted to Landlord herein shall be cumulative and shall
not exclude any other remedy allowed by law, and shall not prevent the
enforcement of any claim Landlord may have against Tenant for anticipatory
breach of the unexpired term of this Lease, including without limitation, a
claim for attorney's fees incurred by Landlord.
ARTICLE TWELVE
TERMINATION
12.1 SURRENDER OF LEASED PREMISES: On expiration of this Lease, if no
Event of Default exists, Tenant shall surrender the Leased Premises in the same
condition as when the Lease Term commenced, ordinary wear and tear or damage
from casualty excepted. Except for furnishings, trade fixtures and other
personal property installed at Tenant's expense, all alterations, additions or
improvements, whether temporary or permanent in character, made in or upon the
Leased Premises, either by Landlord or Tenant, shall be Landlord's property and
at the expiration or earlier termination of the Lease Term shall remain on the
Leased Premises without compensation to Tenant, except if requested by Landlord
at the time Tenant seeks approval for such alteration (but exclusive of the
Leasehold Improvements) or Tenant as its expense an and without delay shall
remove any alterations, additions or improvements made to the Leased Premises by
Tenant designated by Landlord to be removed, and repair any damage to the Leased
Premises or the Building caused by such removal. If Tenant fails to repair the
Leased Premises, Landlord may complete such repairs and Tenant shall reimburse
Landlord for such repair and restoration. Landlord shall have the option to
require Tenant to remove all its property. If Tenant fails to remove such
property as required under this Lease, Landlord may dispose of such property in
its sole discretion without any liability to Tenant, and further may charge the
cost of any such disposition to Tenant.
12.2 HOLD OVER TENANCY: If Tenant shall hold over after the Lease
Expiration Date, Tenant may be deemed, at Landlord's option, to occupy the
Leased Premises as a tenant from month to month, which tenancy may be terminated
by one month's written notice. During such tenancy, Tenant agrees to pay to
Landlord, monthly in advance, an amount equal to double the Base Rent which
would become due (based on Base Rent and Tenant's Pro Rata Share of Excess
Operating Costs payable for the last month of the Lease Term, together with all
other amounts payable by Tenant to Landlord under this Lease), and to be bound
by all of the terms,
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covenants and conditions herein specified. If Landlord relets the Leased
Premises or any portion thereof to a new tenant and the term of such new lease
commences during the period for which Tenant holds over, Landlord shall also be
entitled to recover from Tenant all costs and expenses, attorneys fees, damages
or loss of profits incurred by Landlord as a result of Tenant's failure to
deliver possession of the Leased Premises to Landlord when required under this
Lease.
ARTICLE THIRTEEN
MISCELLANEOUS
13.1 QUIET ENJOYMENT: If and so long as Tenant pays all Rent and keeps
and performs each and every term, covenant and condition herein contained on the
part of Tenant to be kept and performed, Tenant shall quietly enjoy the Leased
Premises without hindrance by Landlord.
13.2 ACCORD AND SATISFACTION: No receipt and retention by Landlord of
any payment tendered by Tenant in connection with this Lease shall constitute an
accord and satisfaction, or a compromise or other settlement, notwithstanding
any accompanying statement, instruction or other assertion to the contrary
unless Landlord expressly agrees to an accord and satisfaction, or a compromise
or other settlement, in a separate writing duly executed by Landlord. Landlord
will be entitled to treat any such payments as being received on account of any
item or items of Rent, interest, expense or damage due in connection herewith,
in such amounts and in such order as Landlord may determine at its sole option.
13.3 SEVERABILITY: The parties intend this Lease to be legally valid
and enforceable in accordance with all of its terms' to the fullest extent
permitted by law. If any term hereof shall be invalid or unenforceable, the
parties agree that such term shall be stricken from this Lease to the extent
unenforceable, the same as of it never had been contained herein. Such
invalidity or unenforceability shall not extend to any other term of this Lease,
and the remaining terms hereof shall continue in effect to the fullest extent
permitted by law, the same as if such stricken term never had been contained
herein.
13.4 SUBORDINATION AND ATTORNMENT: Tenant acknowledges that this Lease
is subordinate to all leases in which Landlord is lessee and to any mortgage or
deed of trust now in force against the Building and to all advances made or
hereafter to be made thereunder, provided the holder thereof agrees in writing
for Tenant's benefit not to disturb Tenant's rights under this Lease so long as
there is no Event of Default under this Lease, Tenant agrees that this Lease
shall be subordinate to any future leases in which Landlord is lessee and to any
future first mortgage or deed of trust hereafter in force against the Building
and to all advances made or hereafter to be made thereunder (all such existing
and future leases, mortgages and deeds of trust referred to collectively as
"Superior Instruments.") Landlord shall use its best efforts obtain a written
nondisturbance agreement from all current and future mortgagees, ground lessors,
and lessors under any superior leases, in form and substance reasonably
acceptable to the parties. Tenant also agrees that if the holder of any Superior
instrument elects to have this Lease superior to its Superior instrument and
gives notice of its election to Tenant, then this Lease shall be superior to the
lien of any such lease, mortgage or deed of trust and all renewals, replacements
and extensions thereof, whether this Lease is dated before or after such lease,
mortgage or deed
20
of trust. If requested in writing by Landlord or any first mortgagee or ground
lessor of Landlord, Tenant agrees to execute a subordination agreement required
to further effect the provisions of this paragraph.
In the event of any transfer in lieu of foreclosure or termination of a
lease in which Landlord is lessee or the foreclosure of any Superior instrument,
or sale of the Property pursuant to any Superior instrument, Tenant shall attorn
to such purchaser, transferee or lessor and recognize such party as landlord
under this Lease, provided such party acquires and accepts the Leased Premises
and assumes Landlord's obligations under the Lease to be performed from and
after the date such party acquires the Leased Premises, subject to this Lease.
The agreement of Tenant to attorn contained in the immediately preceding
sentence shall survive any such foreclosure sale or transfer.
13.5 ATTORNEY'S FEES: If the services of an attorney are required by
any party to secure the performance under this Lease or otherwise upon the
breach or default of the other party to the Lease, or if any judicial remedy is
necessary to enforce or interpret any provision of the Lease, the prevailing
party shall be entitled to reasonable attorney's fees, costs and other expenses,
in addition to any other relief to which such prevailing party may be entitled.
13.6 APPLICABLE LAW: This Lease shall be construed according to the
laws of the state in which the Leased Premises are located.
13.7 BINDING EFFECT; GENDER: This Lease shall be binding upon and inure
to the benefit of the parties and their successors and assigns. It is understood
and agreed that the terms 'Landlord' and 'Tenant' and verbs and pronouns in the
singular number are uniformly used throughout this Lease regardless of gender,
number or fact of incorporation of the parties hereto.
13.8 TIME: Time is of the essence of this Lease.
13.9 ENTIRE AGREEMENT: This Lease and the schedules and addenda
attached set forth all the covenants, promises, agreements, representations,
conditions, statements and understandings between Landlord and Tenant concerning
the Leased Premises and the Building and the Project, and there are no
representations, either oral or written between them other than those in this
Lease. This Lease shall not be amended or modified except in writing signed by
both parties. Failure to exercise any right in one or more instances shall not
be construed as a waiver of the right to strict performance or as an amendment
to this Lease.
13.10 NOTICES: Any notice or demand provided for or given pursuant to
this Lease shall be in writing and served on the parties at the addresses listed
in paragraph 1.1(n) and paragraph 1.1(o). Any notice shall be either (i)
personally delivered to the addressee set forth above, in which case it shall be
deemed delivered on the date of delivery to said addressee; or (ii) sent by
registered or certified mall receipt requested, in which case it shall be deemed
delivered 3 business days after being deposited in the U.S. Mail; (iii) sent by
a nationally recognized overnight courier, in which case it shall be deemed
delivered 1 business day after deposit with such courier; or (iv) sent by
telecommunication (Fax) during normal business hours in which case it shall be
deemed delivered on the day sent, provided an original is received by
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the addressee after being sent by a nationally recognized overnight courier
within 1 business day of the Fax The addresses and Fax numbers listed in
paragraphs 1.1 (n) and 1.1 (o) may be changed by written notice to the other
parties, provided, however, that no notice of a change of address or Fax number
shall be effective until the date of delivery of such notice. Copies of notices
are for informational purposes only and a failure to give or receive copies of
any notice shall not be deemed a failure to give notice.
3.11 HEADINGS: The headings on this Lease are included for convenience
only and shall not be taken into consideration in any construction or
interpretation of this Lease or any of its provisions.
13.12 BROKERAGE COMMISSIONS: Tenant and Landlord each represents to the
other that no broker or agent was instrumental in procuring or negotiating or
consummating this Lease other than Broker of Record whose compensation shall be
paid by Landlord, and Cooperating Broker, if any, whose compensation shall be
paid by Broker of Record, and Tenant and Landlord each agree to defend,
indemnity and hold harmless the other party against any loss, cost, expense or
liability for any compensation, commission, fee or charge, including reasonable
attorney's fees, resulting from any claim of any other broker, agent or
financier claiming under or through the indemnifying party in connection with
this Lease or its negotiation.
SUBMISSION OF THIS INSTRUMENT FOR EXAMINATION OR SIGNATURE BY TENANT
DOES NOT CONSTITUTE-JTE A RESERVATION OF OR OPTION FOR LEASE, AND IT IS NOT
EFFECTIVE AS A LEASE OR OTHERWISE UNTIL EXECUTION AND DELIVERY BY BOTH LANDLORD
AND TENANT.
This Lease is executed as of the date first written above.
TENANT: LANDLORD:
ICARUS International, Inc. Allstate Life Insurance Company
By__________________________
Its Xxxxxxx X. Xxxxxxx, President By_________________________________
Authorized Signatories
By__________________________
Its Xxxxxx X. Xxxxxxx, Secretary
Where Tenant is a corporation, this Lease shall be signed by a President or Vice
President and Secretary or Assistant Secretary of Tenant. Any other signatories
shall require a certified corporate resolution.
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SCHEDULE 2
RULES AND REGULATIONS
1. The sidewalks, entrances, halls, corridors, elevators and stairways of the
Building and Project shall not be obstructed or used as a waiting or lounging
place by tenants, and their agents, servants, employees, invitees, licensees and
visitors. All entrance doors leading from any Leased Premises to the hallways
are to be kept closed at all times.
2. Landlord reserves the right to refuse admittance to the Building after
reasonable business hours, as established from time to time, to any person not
producing both a key to the Leased Premises and/or a pass Issued by Landlord. In
case of invasion, riot, public excitement or other commotion, Landlord also
reserves the right to prevent access to the Building during the continuance of
same. Landlord shall in no case be liable for damages for the admission or
exclusion of any person to or from the Building.
3. Landlord will furnish each tenant with two keys to each door lock on the
Leased Premises and access cards to initially satisfy Tenant's requirements so
as to provide same to each of Tenant's employees at no cost or expense to
Tenant, provided, however, Tenant shall be responsible for the reasonable cost
of any replacement keys and access cards. Nothing herein shall preclude the
Tenant from changing any or all of the locks to or within the Leased Premises at
any time provided same is coordinated with Landlord and Landlord is provided
with a set of keys thereto. Landlord and Tenant shall mutually agree upon the
cost of any additional access cards or keys requested by Tenant. No tenant shall
have any keys made for the Leased Premises; nor shall any tenant alter any lock,
or install new or additional locks or bolts, on any door without the prior
written approval of Landlord, which consent shall not be unreasonably withheld.
If Landlord approves any lock alteration or addition, the tenant making such
alteration shall supply Landlord with a key for any such lock or bolt. Each
tenant, upon the expiration or termination of its tenancy, shall deliver to
Landlord all keys and access cards in any such tenant's possession for all locks
and bolts in the Building.
4. No tenant shall cause any unnecessary labor by reason of such tenant's
carelessness or indifference in the preservation of good order and cleanliness
of the Leased Premises. Tenants will see that (i) the windows are closed, (ii)
the doors securely locked, and (iii) all water faucets and other utilities are
shut off (so as to prevent waste or damage) each day before leaving the Leased
Premises. In the event tenant must dispose of crates, boxes, etc. which will not
fit into office waste paper baskets, it will be the responsibility of tenant to
dispose of same. In no event shall tenant set such items in the public hallways
or other areas of the Building or garage facility, excepting tenant's owned
Leased Premises, for disposal.
5. Landlord reserves the right to prescribe the date, time, method and
conditions that any personal property, equipment, trade fixtures, merchandise
and other similar items shall be delivered to or removed from the Building. No
iron safe or other heavy or bulky object shall be delivered to or removed from
the Building, except by experienced safe men, movers or riggers approved in
writing by Landlord. All damage done to the Building by the delivery or removal
of such items, or by reason of their presence in the Building, shall be paid to
Landlord,
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immediately upon demand, by the tenant by, through, or under whom such damage
was done. There shall not be used in any space, or in the public halls of the
Building, either by tenant or by jobbers or others, in the delivery or receipt
of merchandise, any hand trucks, except those equipped with rubber tires.
6. Tenant shall not cover or obstruct any skylights, windows, doors and transoms
that reflect or admit light into passageways or into any other part of the
Building.
7. The toilet rooms, toilets, urinals, wash bowls and water apparatus shall not
be used for any purpose other than for those for which they were constructed or
installed, and no sweepings, rubbish, chemicals, or other unsuitable substances
shall be thrown or placed therein. The expense of any breakage, stoppage or
damage resulting from violation(s) of this rule shall be borne by the tenant by
whom, or by whose agents, employees, invitees, licensees or visitors, such
breakage, stoppage or damage shall have been caused.
8. No sign, name, placard, advertisement or notice visible from the exterior of
any Leased Premises, shall be inscribed, painted or affixed by any tenant on any
part of the Building or Project without the prior written approval of Landlord.
All signs or letterings on doors, or otherwise, approved by Landlord shall be
inscribed, painted or affixed at the sole cost and expense of the tenant, by a
person approved by Landlord. A directory containing the names of all tenants in
the Building shall be provided by Landlord at an appropriate place on the first
floor of the Building.
9. No signalling, telegraphic or telephonic instruments or devices, or other
wires, instruments or devices, shall be installed by Tenant in connection with
any Leased Premises without the prior written approval of Landlord or
specifically identified and located on Construction Documents as defined in
Schedule 6. Such installations, and the boring or cutting for wires, shall be
made at the sole cost and expense of the tenant and under control and direction
of Landlord. Landlord retains, in all cases, the right to require (i) the
installation and use of such electrical protecting devices that prevent the
transmission of excessive currents of electricity into or through the Building,
(ii) the changing of wires and of their installation and arrangement underground
or otherwise as Landlord may direct, and (iii) compliance on the part of all
using or seeking access to such wires with such rules as Landlord may establish
relating thereto. All such wires used by tenants must be clearly tagged at the
distribution boards and Junction boxes and elsewhere in the Building, with (i)
the number of the Leased Premises to which said wires lead, (ii) the purpose for
which said wires are used, and (iii) the name of the company operating same.
10. Tenant, their agents, servants or employees, shall not (a) go on the roof of
the Building, (b) use any additional method of heating or air conditioning the
Leased Premises, (c) sweep or throw any dirt or other substance from the Leased
Premises into any of the halls, corridors, elevators, or stairways of the
Building, (d) bring in or keep in or about the Leased Premises any vehicles or
animals of any kind, (e) install any radio or television antennae or any other
device or item on the roof, exterior walls, windows or windowsills of the
Building, (f) place objects against glass partitions, doors or windows which
would be unsightly from the interior or exterior of the Building, (g) use any
Leased Premises (i) for lodging or sleeping, (ii) for cooking (except that the
use by any tenant of Underwriter's Laboratory-approved equipment for
microwaving,
24
brewing coffee, tea and similar beverages shall be permitted, provided that such
use is in compliance with law), (iii) for any manufacturing, storage or sale of
merchandise or property of any kind, (h) cause or permit unusual or
objectionable odor to be produced or permeate from the Leased Premises,
including, without limitation, duplicating or printing equipment fumes, and (i)
install or operate any vending machines in the Leased Premises unless
specifically identified and located on Construction Documents as defined in
Schedule 6. Tenant, its agents, servants and employees, invitees, licensees, or
visitors shall not permit the operation of any musical or sound producing
instruments or device which may be heard outside Leased Premises, Building or
garage facility, or which may emit electrical waves which will impair radio or
television broadcast or reception from or into the Building.
11. No canvassing, soliciting, distribution of hand bills or other written
material, or peddling by Tenant shall be permitted in the Building or the
Project, and tenants shall cooperate with Landlord in prevention and elimination
of same.
12. Tenant shall give Landlord prompt notice of all accidents to or defects in
air conditioning equipment, plumbing, electrical facilities or any part or
appurtenances of Leased Premises.
13. If any Leased Premises becomes infested with vermin by acts of Tenant, the
Tenant, at its sole cost and expense, shall cause its premises to be
exterminated from time to time to the satisfaction of the Landlord and shall
employ such exterminators as shall be approved by Landlord.
14. No curtains, blinds, shades, screens, awnings or other coverings or
projections of any nature shall be attached to or hung in, or used in connection
with any door, window or wall of the premises of the Building by Tenant without
the prior written consent of Landlord.
15. Landlord shall have the right to prohibit any advertising by tenant which,
in Landlord's opinion, tends to impair the reputation of Landlord or of the
Building, or its desirability as an office building for existing or prospective
tenants who require the highest standards of integrity and respectability, and
upon written notice from Landlord, tenant shall refrain from or discontinue such
advertising.
16. Wherever the word "tenant" occurs, it is understood and agreed that it shall
also mean tenant's employees and agents. Tenant shall cooperate with Landlord to
assure compliance by all such parties with rules and regulations.
17. Landlord will not be responsible for lost or stolen personal property,
equipment, money or any article taken from Leased Premises, Building or garage
facilities regardless of how or when loss occurs.
18. All contractors and or technicians performing work for Tenant within the
Leased Premises, Building or garage facilities shall be referred to Landlord for
reasonable approval before performing such work. This shall apply to all work
including, but not limited to, installation of telephones, electrical devises
and attachments, and all installations affecting floors, walls,
25
windows, doors, ceilings, equipment of any other physical feature of the
Building, Leased Premises or garage facilities.
19. Showcases and any other articles shall not be placed in front of or affixed
to any part of the exterior of the Building, nor placed in the halls, corridors
or vestibules by Tenant without the prior written consent of Landlord.
20. The Tenant shall not do anything in the Leased Premises, or bring or keep
anything herein, which will in any way increase or tend to increase the risk of
fire or rate of insurance, or which shall conflict with the Regulations of the
Fire Department, any fire laws, with any insurance policy on the Building or any
part thereof, or with any rules or ordinances established by any governmental
authority.
21. The requirements of Tenant will be attended to only upon application to the
Managing Agent. Employees of Landlord shall not perform any work or do anything
outside of their regular dates unless under special instructions from Landlord,
and no employee will admit any person (Tenant or otherwise) to any office
without specific instructions from Landlord.
22. No Tenant shall obtain for use upon the Leased Premises or accept barbering
or other personal services on the Leased Premises, except for persons authorized
by Landlord and at the hours and under regulations fixed by Landlord.
23. Landlord reserves the right to make reasonable amendments, modifications and
additions to the rules and regulations heretofore set forth, and to make
additional reasonable rules and regulations, as in Landlord's sole Judgment may
from time to time be needed for the safety, care, cleanliness and preservation
of good order of the Building.
SCHEDULE 3
UTILITY SERVICES
The Landlord shall provide, as part of Operating Costs, except as
otherwise provided, the following services:
(1) Air Conditioning and heat for normal purposes only, to provide in
Landlord's judgment, comfortable occupancy Monday through Friday from __ am. to
__ p.m., and Saturday from __ a.m. to __ p.m., Sundays and holidays excepted.
Tenant agrees not to use any apparatus or device, in or upon or about the Leased
Premises, and Tenant further agrees not to connect any apparatus or device math
the conduits or pipes, or other means by which such services are supplied, for
the purpose of using additional or unusual amounts of such services, without
written consent of Landlord.
(2) Electric power for lighting and operating of office machines is
generally provided twenty-four hours a day, seven days a week. Electric power
furnished by Landlord is intended
26
to be that consumed in normal office use for lighting and small office machines
including desktop computers, copiers and fax machines.
(3) Water for drinking, lavatory and toilet purposes from the regular
Building supply (at the prevailing temperature) through fixtures installed by
Landlord, (or by Tenant with Landlord's written consent).
SCHEDULE 4
MAINTENANCE SERVICES
(1) In order that the Building may be kept in a state of cleanliness,
each tenant shall during the term of each respective lease, permit Landlord's
employees (or Landlord's agent's employees) to take care of and clean the Leased
Premises and tenants shall not employ any person(s) other than Landlord's
employees (or Landlord's agent employees) for such purpose.
(2) Landlord shall supply public restroom supplies, public area lamp
replacement, window washing with reasonable frequency, and janitorial services
to the common areas of the Building and Leased Premises during the time and in
the manner that such janitorial services are customarily furnished in suburban
office buildings in Rockville, Maryland.
(3) Landlord agrees to maintain the exterior and common areas of
Building to include maintenance of the structure, roof, mechanical, electrical
and HVAC equipment, architectural finish, laws and shrub care, snow removal and
so on, excluding only those items specifically excepted elsewhere in this Lease.
SCHEDULE 5
PARKING
Landlord hereby grants to Tenant a license to the use during the term
of this Lease the spaces described in Article 1.1(j). Said parking spaces shall
be made available to Tenant on an allocated basis and Tenant agrees to comply
with such reasonable rules and regulations as may be made by Landlord from time
to time in order to insure the proper operation of the parking facilities. In
consideration of the right to use said parking spaces, Tenant shall pay to
Landlord on the first day of each calendar month, the amount specified in
Article 1.1(j), in addition to the Rent and other charges payable by Tenant
under this Lease. Tenant agrees not to overburden the parking facilities and
agrees to cooperate with Landlord and other tenants in the use of parking
facilities. Landlord reserves the right in its reasonable discretion to
determine whether parking facilities are becoming crowded, and in such event, to
allocate specific parking spaces among Tenant and other tenants or to take such
other steps necessary to correct such condition, including but not limited to
policing and towing, and if Tenant, its agents, officers, employees,
contractors, licensees or invitees are deemed by Landlord to be contributing to
such condition, to charge to Tenant as Rent that portion of the cost thereof
which Landlord reasonably determines to be caused thereby. Landlord may, in its
reasonable discretion, change the location and nature of the parking spaces
available to Tenant, provided that after such change, there shall be available
to
27
Tenant the same number of spaces as available before such change. The provisions
of this Section 5 are subject to the provisions of Section 1.1(j) of this Lease.
SCHEDULE 6
1. Definitions The terms defined in this paragraph, for purposes of
this Schedule, shall have the meanings specified below, and, in addition to the
terms defined below, terms defined in the Lease shall, for purposes of this
Schedule, have the meanings specified in the Lease.
1.01 "Leasehold Improvements" means those items which are supplied,
installed and finished by Landlord, according to and described in the
Construction Documents (as hereinafter defined) and which shall be paid for by
Landlord (subject to the Allowance) as provided for in paragraph 2.03 below.
Landlord acknowledges and agrees that the Leasehold Improvements shall include,
incorporate and re-use to the extent possible, at no charge or cost to Tenant,
all materials comprising the existing tenant improvements in the Leased
Premises. The Construction Documents shall include as part of the Leasehold
Improvements to be provided by Landlord hereunder, any additional, supplemental
heating, ventilating and air conditioning equipment necessary to exclusively
serve the Leased Premises (or any portion thereof), to service the Leased
Premises (or any portion thereof) on a seven day, twenty-four hour basis. Tenant
shall reimburse Landlord any additional out-of-pocket electrical cost incurred
by Landlord to operate such supplemental unit(s) and the parties will agree upon
an appropriate metering device to be installed as part of the Leasehold
Improvements and at Tenant's cost to the extent such cost is not covered by the
Allowance.
1.02 "Construction Documents" means the approved construction drawings,
plans and specifications referred to in paragraph 2.03.
1.03 "Substantial Completion" means that the Leasehold Improvements
have been substantially completed according to the Construction Documents and
that all necessary permits authorizations, approvals and/or certificates of
occupancy have been obtained by Landlord to permit Tenant to occupy the entire
Leased Premises for the Permitted Purpose except for items which will not
materially affect the use of the Leased Premises and which customarily are
deemed to be "punchlist work."
2. Construction Documents; Payments
2.01 An outline of the Leased Premises is attached hereto and made a
part hereof as Schedule 1. A preliminary floor plan of the Leased Premises will
be approved by the parties as soon as possible and when initialled by the
parties will be incorporated by reference and made a part of this Lease as
Schedule 1A. (the "Preliminary Plan")
2.02 Landlord shall cause to be prepared and submitted to Tenant for
approval all drawings, plans and specifications necessary to construct the
Leasehold Improvements. Within five (5) business days from the date the
documents are submitted to Tenant ("Document Approval Period"), Tenant shall
approve or disapprove the documents. If the Tenant disapproves the
28
documents within the Document Approval Period, then the Landlord and Tenant
shall attempt to resolve the objections of Tenant; and if a resolution cannot be
reached within ten (10) days of Tenant's notice of disapproval, then either
Tenant or Landlord shall have the right to terminate the Lease by written notice
to the other.
The fees and expenses for preparing the drawings, plans and specifications shall
be included in the Final Cost (defined in paragraph 2.03 below).
2.03 Upon Tenant's approval of the final form of the drawings, pans and
specifications, which shall constitute the Construction Documents, Landlord
shall prepare an analysis of the cost of constructing the Leasehold improvements
according to the Construction Documents (the "Final Cost") and submit such
analysis to Tenant for its approval. Within five (5) business days from the date
the Final Cost has been submitted to Tenant ("Cost Approval Period"), Tenant
shall approve or disapprove the Final Cost. If Tenant fails to respond within
the Cost Approval Period, it shall be conclusively presumed that Tenant has
approved the Final Costs. If Tenant does not approve the Final Cost, It shall
promptly notify Landlord; in which case Tenant and Landlord shall use their best
efforts to amend the Construction Documents in a manner satisfactory to each. If
they are unable to do so within 10 days after Tenant notifies Landlord as
provided in the preceding sentence, either party may terminate the Lease by
delivering written notice to the other. Tenant acknowledges that Landlord's sole
monetary obligation is to pay the costs attributable to the construction of the
Leasehold Improvements, up to an aggregate maximum limit of $20.00 per square
foot of Tenant's Square Footage (the "Allowance"), and Tenant shall pay all
other costs of the construction of the Leasehold improvements in excess of the
Allowance ("Tenant's Share"). Landlord acknowledges and agrees that the
Allowance shall be used toward the construction of the Leasehold Improvements,
including all architectural services, engineering fees, preparation of working
drawings, permit fees and other related services (including overtime and other
expenses incurred to expedite the construction of the Leasehold Improvements to
meet the Lease Commencement Date), the installation of additional heating,
ventilating and air conditioning units and other special installations, and that
a portion of the Allowance (up to $2.00 per square foot of Tenant's Square
Footage) may be used to fund the installation of telephone and computer wiring,
moving and other related expenses incurred by Tenant in relocating its offices
to the Leased Premises, all as reasonably agreed upon by Tenant and Landlord. In
addition, all costs attributable to changes and variations from the Construction
Documents in excess of the Allowance (including, without limitation, any fees
and expenses of the Consultants and any increased costs of construction) shall
be paid by Tenant.
3. Leasehold Improvements
3.01 The following provisions shall apply to the construction of the
Leasehold Improvements:
(a) All work involved in the completion of the Leasehold Improvements
shall be carried out by Landlord and its agents and contractors under
the sole direction of Landlord without the imposition of a fee for
Landlord's supervision or management of the construction process within
the scope of the work originally specified in the Construction
Documents. Tenant shall cooperate with Landlord and its agents and
29
contractors to promote the efficient and expeditious completion of the
Leasehold Improvements; and
(b) Landlord agrees to construct the Leasehold Improvements in
accordance with the Construction Documents, provided Tenant has
complied with all the applicable provisions of this Schedule and the
Lease.
3.02 If there are any changes in the Leasehold Improvements requested
by, or on behalf of, Tenant from the work as reflected in the Construction
Documents, each such change must receive the prior written approval of Landlord,
and Tenant shall bear the cost of all such changes in excess of the Allowance.
3.03 Landlord shall have no obligation to commence construction of any
work in the Leased Premises until (a) Tenant has approved the Construction
Documents and the Final Cost for the construction of the Leasehold Improvements
as required by the provisions hereof, and (b) Landlord shall have received
Tenant's advance payment in an amount equal to the Tenant's Share, if any.
4. Lease Commencement Date
4.01 Landlord shall notify Tenant when Substantial Completion has been
achieved and the Lease Commencement Date shall be established as set forth in
the Lease. Notwithstanding anything to the contrary contained in the Lease or
this Schedule, the Lease Commencement Date shall not be extended for any delay
in Substantial Completion to the extent that such delay is caused in whole or in
part by any act or omission attributable to Tenant, including without
limitation:
(a) Tenant's request for any Leasehold Improvements which require
materials which need to be ordered and are not immediately available;
(b) Tenant's failure to furnish promptly information concerning
Tenant's requirements pertaining to construction of the Leasehold
Improvements or any other information requested by the Landlord as
necessary or useful to prepare the Construction Documents;
(c) Tenant's failure to approve promptly the Construction Documents and
Final Cost; and
(d) Tenant's request for any changes in the Leasehold Improvements from
the work as reflected in the Construction Documents.
Landlord agrees to use its best efforts to substantially complete the
Leasehold Improvements so as to permit Tenant to occupy the Leased Premises on
or before March 31, 1998.
4.02 In any event, Rent payable under the Lease shall not xxxxx by
reason of any delay, expense or other burden arising out of or incurred in
connection with the design or construction of the Leasehold Improvements to the
extent that such delay, expense or other burden is caused
30
in whole or in part by any act or omission attributable to Tenant (including,
without limitation, the acts and omissions referred to in subparagraphs (a)
through (d) of paragraph 4.01 above).
5. Tenant's Access To Leased Premises
5.01 Landlord, in its sole discretion, may permit Tenant and Tenant's
agents or independent contractors to enter the Leased Premises prior to the
scheduled Lease Commencement Date in order that Tenant may do other work as may
be required by Tenant to make the Leased Premises ready for Tenant's use and
occupancy; provided, however, subject to the coordination of its activities with
Landlord and provided such activities do not materially interfere with
Landlord's work to be performed hereunder, Landlord agrees that Tenant (and its
representatives or contractors) shall be permitted access to the Leased Premises
while the walls and interior partitions are exposed to install any cable, wire
or conduit. Such permission must be in writing prior to entry. If Landlord
permits such prior entry, then such license shall be subject to the condition
that Tenant and Tenant's agents, contractors, workmen, mechanics, suppliers, and
invitees shall work in harmony with and not interfere with Landlord and its
agents and contractors in doing its work in the Leased Premises or the Building
or with other tenants and occupants of the Building or the Project. If at any
time such entry shall cause or threaten to cause disharmony or interference,
Landlord, in its sole discretion, shall have the right to withdraw and cancel
such license upon notice to Tenant. Tenant agrees that any such entry into the
Leased Premises shall be deemed to be under ail of the terms, covenants,
conditions and provisions of the Lease, except as to the covenant to pay
periodic Rent. Tenant further agrees that, to the extent permitted by law and
consistent with the terms of this Lease, Landlord and its principals shall not
be liable in any way for any injury or death to any person or persons, loss or
damage to any of the Leasehold Improvements or installations made in the Leased
Premises or loss or damage to property placed therein or there about, the same
being at Tenant's sole risk.
5.02 In addition to any other conditions or limitations on such license
to enter the Leased Premises prior to the Lease Commencement Date, Tenant
expressly agrees that none of its agents, contractors, workmen, mechanics,
suppliers or invitees shall enter the Leased Premises prior to the Lease
Commencement Date unless and until each of them shall furnish Landlord with
satisfactory evidence of insurance coverage, financial responsibility and
appropriate written releases of mechanics' or materialmen's lien claims.
6. Miscellaneous Provisions Landlord and Tenant further agree as
follows:
6.01 Except as herein expressly set forth with respect to the Leasehold
Improvements, Landlord has no agreement with Tenant and has no obligation to do
any work with respect to the Leased Premises. Any other work in the Leased
Premises which may be permitted by Landlord pursuant to the terms and conditions
of the Lease shall be done at Tenant's sole cost and expense and in accordance
with the terms and conditions of the Lease.
6.02 This Schedule shall not be deemed applicable to: (a) any
additional space added to the original Leased Premises at any time, whether by
the exercise of any options under the
31
Lease or otherwise, or (b) any portion of the original Leased Premises or any
additions thereto in the event of a renewal or extension of the original Lease
Term, whether by the exercise of any options under the Lease or any amendment or
supplement thereto. The construction of any additions or improvements to the
Leased Premises not contemplated by this Schedule shall be effected pursuant to
a separate work letter agreement or other document, in the form then being used
by Landlord and specifically address the allocation of costs relating to such
construction.
32
SCHEDULE 7
CERTIFICATE OF ACCEPTANCE
TENANT _________________________
LEASED PREMISES ________________________
LOCATED AT ________________________
This letter is to certify that:
1. The above referenced Leased Premises have been accepted by the Tenant
for possession.
2. The Leased Premises are substantially complete in accordance with the
plans and specifications used in constructing the demised premises.
3. The Leased Premises can now be used for intended purposes.
The execution of this certificate shall not relieve the Landlord of its
obligation to expeditiously complete all work to which the Tenant is entitled
under the terms of its lease with the Landlord. Neither this certificate, nor
Tenant's occupancy of the Leased Premises, shall be construed to relieve the
Landlord of its responsibility to remedy, correct, replace, reconstruct or
repair any deviation, deficiency or defect in the work or in the materials or
equipment furnished by the Landlord, without cost to Tenant, if a claim with
respect thereto is made by Tenant.
Commencement Date ___________, 19__.
Expiration Date ____________, 19__.
Executed this __ day of ________, 19_.
TENANT
By:_______________________
Authorized Signatory
33
SCHEDULE 8
ADDENDUM
ADDITIONAL PROVISIONS
2. Option to Renew
Tenant shall have one option to renew ("Option to Renew") this Lease for five
(5) years (the "Renewal Period"). If Tenant desires to exercise its Option to
Renew, Tenant shall give Landlord written notice ("Renewal Notice") thereof on
or before *. During the thirty (30) day period following Landlord's receipt of
the Renewal Notice, Landlord and Tenant shall use reasonable efforts to
negotiate a mutually agreeable base rent ("Market Base Rent") for the Renewal
Period. The Market Base Rent shall be negotiated in light of then current terms
for renewing tenants for comparable space, including market rents, term of
renewal, and operating expense pass throughs. Within fifteen (15) business days
of agreement by the parties on the Market Base Rent and other terms of the
renewal, Landlord shall deliver to Tenant an amendment to this Lease extending
this Lease on such terms. Such amendment shall not contain any further option to
renew. Tenant shall execute and deliver the amendment to Landlord within ten
(10) business days following receipt of such amendment. The foregoing option and
rights are subject to there existing no Event of Default of which Tenant has
been notified and no prior Event of default which Tenant failed to cure within
any applicable cure period, are personal to the original Tenant executing the
Lease, may not be assigned; provided, however such right to extend the term of
this Lease may also be exercised by any parent, affiliate or subsidiary of
Tenant or any entity acquiring Tenant, to which the Lease may be assigned
pursuant to Section 6.04. Time is of the essence in the exercise of Tenant's
Option to Renew. Should Tenant fail to exercise such option, execute and deliver
any required documents, or perform any of its required obligations under this
section, or should the parties be unable to agree on Market Base Rent for the
Renewal Period, within the time periods set forth above, then this Option to
Renew and any other rights of Tenant under the Lease in the nature of options,
shall be null and void, and the Lease shall terminate at the end of the Lease
Term.
*(9) months prior to the expiration of the initial lease term.
ADDITIONAL PROVISIONS
3. Right of First Opportunity
Provided no Event of Default then exists, Tenant will have the right of first
opportunity ("Right of First Opportunity") to lease space that becomes available
on the fourth (4th) floor of the Building. Landlord shall notify Tenant in
writing when said space becomes available. Tenant will then have ten (10)
business days to respond in writing of Tenant's intent to exercise this Right of
First Opportunity. If Tenant fails to respond in said (10) day period, then
Tenant will have waived this Right of First Opportunity for said space. Upon
Landlord's receipt of Tenant's written acknowledgment to exercise said Right of
First Opportunity, Landlord shall have ten (10) days to provide Tenant with the
terms and conditions under which the Landlord would propose
34
to lease the space to Tenant, which terms and condition shall reflect what
Landlord reasonably believes to be a market proposal for such space. Landlord
and Tenant shall then have thirty (30) days to negotiate and agree to the terms
and conditions. If Landlord and Tenant have not agreed to terms and conditions
during said thirty (30) day period, then Landlord shall be allowed to lease said
space to a third party.
ADDITIONAL PROVISIONS
4. Option to Terminate
Tenant shall have a one time right to terminate the Lease on *1 ("Early
Termination Date"). In order to exercise such option, Tenant shall give Landlord
prior written notice ("Termination Notice") on *2 of its election to terminate
this Lease. The Termination Notice shall be valid only if accompanied by a
cashier's check in an amount equal to $*3 ("Termination Fee"). If all of the
foregoing conditions are timely satisfied by Tenant, this Lease shall terminate
on the Early Termination Date as if such date were the Lease Expiration Date.
The foregoing option and rights are subject to there existing no Event of
Default of which Tenant has been notified and no prior Event of Default which
Tenant failed to cure within any applicable cure period, are personal to the
original Tenant executing the Lease, may not be assigned; provided, however,
such right to terminate may also be exercised by any parent, affiliate or
subsidiary of Tenant, or any entity acquiring Tenant, to which this Lease may
have been assigned. Time is of the essence in the exercise of Tenant's Option to
Terminate. Should Tenant fail to exercise such option and deliver notice thereof
to Landlord, or fail to perform any of its required obligations under this
section within the time periods set forth above (including, without limitation,
paying the Termination Fee at the same time as the Termination Notice), then
this Option to Expand shall terminate and be null and void. Within ten (10) days
of Tenant's receipt of an invoice for same, Tenant shall promptly pay to
Landlord the unamortized amount (factored with a ten percent annual interest
rate) of the Allowance utilized by Tenant in the construction of the Leasehold
Improvements and any brokerage fees and commissions paid by Landlord in
conjunction with this Lease.
*1 the last day of the seventh (7th) lease year
*2 no less than nine (9) months prior to the Early Termination Date
*3 three (3) monthly installments of Base Rent
