INDUSTRIAL LEASE
THIS LEASE is dated for reference purposes only the 28th day of August,
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2000, and is between Xxxx Xxxx Properties, LLC, having a place of business at
0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxx 00000 (the "Landlord"),
and Xxxxxxxxx.xxx, Inc., having a place of business at the Premises and whose
mailing address 000 Xxxxxxxx #000, Xxxxxx, XX 00000 (the "Tenant").
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Definitions
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Section 1.1 - Building Location: 00000 X. 00xx Xxxxxx, Xxxxx Xxxxx,
Xxxxxxxx 00000
Unit Number of Premises: Xxxx 0
Xxxxxx xx Xxxxxx Feet in Premises: 2,750
Unless expressly stated to the contrary, all references to
square feet in this Lease Shall refer to rentable square
feet.
Section 1.2 - Lease Term: 39 Months
Commencement: October 1, 2000
Expiration: December 31, 2003.
Section 1.3 - Base Rent: (Including Tenant's Expense Stop defined in
Section 2.1)
Period Monthly Base Rent
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October 1, 2000 - December 31, 2000 $ None
January 1, 2001 - December 31, 2001 $2,183.96
January 1, 2002 - December 31, 2002 $2,409.64
January 1, 2003 - December 31, 2003 $2,272.19
Section 1.4 - Use of Premises: office/warehouse
Section 2.1 - Tenant's Pro Rata Share (of Building Operating Costs,
payable as Additional Rent): 12.65%
Tenant's Expense Stop:
As Defined in Operating Costs: Any increase in Operating
Costs above such actual costs for the year 2000.
Section 24.1 - Brokerage: None.
No brokers for Tenant are involved in this lease transaction.
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Section 25.1 - Security Deposit: $2,183.96
Special Provisions:
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(a) Tenant is taking the Premises "as is". However, Landlord will repaint and
clean and replace carpet as necessary, cause locks to be re-keyed, and provide
Tenant with five sets of keys, prior to Tenant taking occupancy.
(b) Renewal Option. Provided that Tenant at all times is and has been in full
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compliance with the terms and conditions of this Lease, Tenant shall have the
right to renew and extend this Lease for one (1) three (3) year term. Tenant
shall give Landlord written notice of such election to renew and extend the term
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hereof not later than six (6) months prior to the expiration of the original
term. Such renewal and extension period shall be upon the same terms and
conditions as during the original term hereof, except that:
i) Tenant shall have no further election to extend the term of the Lease
beyond the renewal, and
ii) Tenant shall be entitled to the return of the security deposit
referenced herein, and
iii) Tenant shall pay base rental to Landlord in the amount of $10.12 per
rentable square foot for the first year of the option period, $10.33 per
rentable square foot for the second year of the option period, and $10.53 per
rentable square foot for the final year of the option period.
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WITNESSETH:
ARTICLE 1
DESCRIPTION - TERM - RENT- USE
Section 1.1 The Landlord, in consideration of the rents, covenants
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and agreements does lease unto the Tenant, and the Tenant does hereby take the
space (the "premises") described on Exhibit A attached hereto in the building
located at the place specified in the Definitions section of this Lease (the
"Building"). So long as this Lease remains in effect and Tenant is not in
default of any of its obligations under the Lease, Tenant shall have the license
to non-exclusively use space in any parking area designated for use by tenants
of the Building, subject to such parking control program as Landlord, in its
sole discretion, may implement from time to time.
Section 1.2 The term of this Lease shall be as specified in the
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Definition section of this Lease (unless sooner terminated as herein provided).
Section 1.3 Tenant agrees and covenants to pay Landlord during the term
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of this Lease, at the place specified by Landlord, the Base Rent specified and
Additional Rent without deduction or setoff. All amounts owing by Tenant to
Landlord under this Lease, other than Base Rent, shall be Additional Rent, and
upon Tenant's failure to timely pay, Landlord shall have the same remedies as
for Tenant's failure to pay Base Rent. (Base Rent and Additional Rent may
collectively be referred to as Rent). Base Rent shall be paid in advance on the
first day of each calendar month during the term of this Lease, except that the
first month's rent shall be due and payable when this Lease is executed by
Tenant. If the term does not commence on the first day of a month, Base Rent
shall be prorated and paid on the date of such commencement. Interest at the
rate of one and one half (1.5%) percent per month will be charged retroactive to
the first day of the month for rents not paid by the fifth (5th) day of the
month until all monies are paid.
Section 1.4 The Tenant agrees that it will use and occupy the Premise
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only for the purposes set forth in the Definitions section of this Lease.
ARTICLE II
OPERATING COSTS
Section 2.1 In addition to Base Rent, Tenant shall pay Tenant's Pro
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Rata share of Building Operating Costs in excess of Tenant's Expense Stop as
defined in Section 2.1 (Definitions section of this Lease.) Building Operating
Costs shall mean all expenses, costs and disbursements (in excess of Tenant's
Expense Stop defined in the Definition section of this Lease) which Landlord
shall pay or become obligated to pay because of, or in connection with, the
maintenance, repair and operation of the Building, including, but not limited
to: real estate taxes and assessments, use sales, or any other taxes (except
income taxes) based on rents, personal property taxes on personal property used
in the operation of the Building; Landlord's insurance; maintenance; janitorial
services for any common areas of the Building; operating supplies; property
management; Building services; snow removal; landscaping; costs of rubbish
removal for any common area of the Building; tools and equipment used for the
daily operation of the Building; air conditioning, ventilation and heating;
resurfacing and restriping of parking areas, repairs and replacement of signage;
security; and wages, payroll taxes, and benefits reasonably incurred in the
operation of the Building. Notwithstanding the foregoing, Building Costs shall
not include monies spent for income tax, interest, depreciation, or expenditures
of a capital nature (except to the extent that such expenditures are required
due to a change in a law or are reasonably anticipated to cause a reduction in
the cost of services, in such case, that part of the capital expense attributes
to the lease year under good accounting practices shall be included in the
Building Operation Costs.)
Section 2.2 Landlord's reasonable best estimate as to the amount of
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Tenant's Pro-Rata Share of Building Operating Costs shall be payable monthly,
together with the monthly installment of Base Rent and any other Additional Rent
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due and payable to Landlord. Within one hundred twenty (120) days after the
beginning of each calendar year, commencing with the year immediately following
the date of this Lease, Landlord shall give Tenant a statement of Landlord's
reasonable estimate of Building Operating Costs for the calendar year just
started ("Building Operating Costs Estimate"), which shall be based upon a
determination of past and estimated future operating cost data, together with a
statement setting forth the Building Operating Costs incurred by the Landlord
during the calendar year ended ("Actual Cost Statement"). Landlord's failure to
give the Building Operating Costs Estimate or Actual Cost Statement within said
one hundred twenty (120) day period shall not release in any manner Tenant's
obligations under this Lease, and Landlord may render said Estimate or Statement
at any time thereafter. In the event that the date of this Lease is not January
1, then the Base Operating Costs and the Building Operating Costs shown in the
first Actual Cost Statement shall both be multiplied by a fraction (the
numerator of which is the number of days that this Lease was in effect during
its first calendar year and the denominator of which is 365) to determine if
Tenant owes Building Operating Costs for the first partial calendar year. The
obligation of Tenant for its Pro Rata Share of Operating Expenses for the last
partial calendar year of the Lease shall be similarly calculated. Landlord may
revise the monthly operating cost payment provided for herein upward or downward
to reflect more accurately the newly estimated Building Operating Costs, which
revision shall be separately set forth in Landlord's Building Operating Costs
Estimate. All payments due at least thirty (30) days after Landlord gives
Building Operating Costs Estimates or Actual Cost Statement shall be made at the
monthly rate set forth therein. In addition, if the Actual Cost Statement
reveals that Tenant made under payments or overpayments of Building Operating
Costs during the calendar year just ended, Tenant shall pay Landlord the amount
of any underpaying with thirty (30) days of Landlord's giving the Actual Cost
Statement and any overpayment shall be credited against the next payments by the
Tenant of its Pro Rata Share of Operating Expenses coming due.
Section 2.3 The obligations of Tenant to pay Building Operating Costs
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and any other Additional Rent for the term or any extended term of this Lease,
and to maintain and repair the Premises as required by this Lease, shall survive
any termination or expiration of this Lease.
ARTICLE III
INSURANCE
Section 3.1 The Tenant, at its sole cost and expense, shall maintain
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for the mutual benefit of Landlord and Tenant general public liability insurance
against claims for personal injury, death or property damage occurring upon, in
or about the Premises or any elevators or escalators therein and on, in or about
the adjoining streets and passageways if any, such insurance to afford
protection to the limits of not less than the following amount: two million
dollars ($2,000,000.00) in respect of injury or death of a single person, two
million dollars ($2,000,000.00) in respect of any one occurrence, and two
million dollars ($2,000,000.00) in respect to property damage.
Section 3.2 All policies of insurance shall be in a form and substance
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satisfactory to the Landlord, shall be written with companies having a rating of
not less that A- in Best's Guide, and shall provide that they shall not be
cancelable on less than thirty (30) day's notice to the Landlord or holder of
any mortgage. Certificates of insurance shall be furnished to the Landlord prior
to Tenant's commencing occupancy and at least thirty (30) days prior to the
expiration of any policy. Tenant's policies shall name Landlord and its
designees as an additional insureds. Nothing herein shall preclude Landlord from
obtaining such insurance as it deems advisable with respect to the Building, and
the cost thereof shall be included in the Operating Costs.
ARTICLE IV
LANDLORD'S RIGHT TO PREFORM TENANT'S COVENANTS
Section 4.1 If there shall be an Event of Default under this Lease, the
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Landlord may, but shall not be obligated to, and without further notice or
demand and without waiving or releasing the Tenant from any obligation of the
Tenant under this Lease, make any payment or perform such other act to the
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extent the Landlord may deem desirable. All sums so paid by the Landlord and all
expenses including reasonable attorney's fees and costs, together with interest
thereon at the rate of one and one half percent (1.5%) per month, shall be
Additional Rent and be payable by Tenant to the Landlord on demand.
ARTICLE V
REPAIRS AND MAINTENANCE OF PREMISES-SURRENDER OF PREMISES-WASTE
Section 5.1 Except for obligations of Landlord expressly imposed upon
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it in this paragraph, Tenant covenants at the Tenant's sole expense to keep the
Premises in a clean, orderly condition and free of debris, material and rubbish,
and to maintain in good order and condition and to promptly repair the Premises
including, but not limited to, light fixtures, ballasts, light bulbs, locks,
ceilings, floors, walls, woodwork, counter tops, cabinets, paint, doors and
glass. Unless maintenance or repair is required as the result of the conduct of
tenant, its agents, representatives, employees or contractors, Landlord shall
maintain the plumbing, plumbing fixtures, heating/air conditioning, hot water
system, electrical system, mechanical system, Building equipment located in or
serving the Premises, and structural elements of the Building and Premises.
Landlord shall also be obligated at its expense to maintain and repair (or
improve) the portions of the Building not occupied by Tenant in good order and
condition. All costs incurred by Landlord in performing its obligations
hereunder shall be included in Operating Costs.
Section 5.2 Tenant covenants that upon expiration or termination of
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this Lease for any reason whatsoever the Tenant will surrender the Premises to
the Landlord together with all improvements, alterations and replacement thereto
in good order, condition and repair, except for reasonable wear and tear,
provided that if Landlord requests Tenant to remove any such improvements,
alterations or replacements, then Tenant shall remove same and restore the
Premises to their prior condition at Tenant's expense. Upon expiration or
termination, Tenant shall remove, to Landlord satisfaction, all petroleum,
hazardous wastes and substances generated or stored at the Premises by Tenant.
Section 5.3 Tenant covenants not to or suffer any waste, damage or
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injury to the Premises, or overloading of the Premises' floors.
Section 5.4 Notwithstanding any provision of this Lease to the
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contrary, Tenant shall be solely responsible for obtaining and paying the costs
of janitorial services for the Premises, trash removal services concerning trash
generated at the Premises, and all utilities and telephone services other than
water. Landlord shall not be obligated to Tenant in any manner whatsoever if any
of the utilities and other services to the Premises are disrupted, it being
understood and agreed upon by the parties that Tenant shall obtain at its own
expense such business interruption insurance as it deems advisable to protect it
against all such risks. Nothing in this paragraph shall be constructed to permit
Tenant to make any change or alteration to the Premises without complying with
the provisions of Article VII of this Lease.
Section 5.5 Tenant acknowledges that it may be doing business with
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various business entities which may deliver, or cause to be delivered, various
materials to Tenant. Tenant covenants and agrees that it shall, without
forty-five (45) days after occurrence, repair damages to foundation, roof,
overhead doors, door jambs, entryways, and exterior walls of the Building where
the Premises is located, which were caused by the act or omission of Tenant,
Tenant's agents, employees, customers, invitees and suppliers, their agents,
employees or delivery services.
Section 5.6 Prior to the expiration or termination of the Lease, Tenant
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shall remove stains or deposits of grease, oil, tar, paint, or any other
material used by Tenant such as to restore the Premises to its original
condition. Tenant shall not store any motor vehicles on, at, or in the Premises.
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ARTICLE VI
COMPLIANCE WITH LAW AND INSURANCE REQUIREMENTS
Section 6.1 Tenant covenants, at the Tenant's sole expense, to comply
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with all laws, ordinances and requirements of governmental agencies, legislative
bodies and courts of competent jurisdiction, of whatever kind and nature,
whether now existing or hereafter enacted, amended or modified (including, but
not limited to, any laws, ordinances and requirements as related to protection
of the environment policy) which may be applicable to the Premises.
Section 6.2 Tenant shall not permit Premises to be used or operated in
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any manner such that the Premises may or do become contaminated by any hazardous
substance or environmental pollutant in violation of any federal, state or local
environmental statute or ordinance, including without limitation, violation of
the Comprehensive Environmental Response, Compensation and Liability Act, as
amended from time to time ("CERCLA").
Section 6.3 If the presence of hazardous substances on the Premises
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caused or permitted by Tenant results in contamination of the Premises, or if
contamination of the Premises by hazardous material otherwise occurs to the
extent caused by any act or omission of Tenant, then Tenant shall indemnify,
defend and hold Landlord harmless from any and all claims, judgments, damages,
penalties, fines, costs, liabilities or losses (including, without limitation,
diminution in value of the Premises, damages for the loss or restriction on use
of rentable or usable space or of any amenity of the Premises, damages, arising
from any adverse impact on marketing of space, and sums paid in settlement of
claims, court costs, attorney's fees, consultant fees, investigation costs and
expert fees) which arise during or after the Lease term as a result of such
contamination or unacceptable condition in violation of any federal, state, or
location environmental statutes or ordinances, including, but not limited to,
violations of CERCLA. This indemnification of Landlord by Tenant includes,
without limitation, costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal, or restoration work required by
any federal, state or local governmental agency or political subdivision because
of hazardous material present in the soil or ground water on or under the
Premises. Without limiting the foregoing, if the presence of any hazardous
material on the Premises caused or permitted by Tenant results in any
contamination or unacceptable condition of the Premises, Tenant shall promptly
take all actions, at its sole expense, as are necessary to return the Premises
to the condition existing prior to the introduction of any such hazardous
material to the Premises, provided that Landlord's approval of such actions
shall first be obtained, which approval shall not be unreasonably withheld so
long as such actions would not potentially have any material adverse effect on
the Premises.
ARTICLE VII
CHANGES AND ALTERATIONS BY TENANT
Section 7.1 Tenant shall not make any changes or alterations,
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structural or otherwise, to the Premises without the Landlord's prior written
consent. Structural changes to the Premises may be disapproved by Landlord for
any reason or for no reason in the sole and absolute discretion of Landlord.
Landlord's consent to nonstructural changes or alterations shall not be
unreasonably withheld, but Tenant acknowledges and agrees that among other
reasons, Landlord may withhold its consent to such nonstructural changes or
alterations if such changes or alterations would adversely affect any insurance
policy. In addition, and among other things, Landlord may condition any such
consent to Landlord obtaining adequate assurance from the Tenant that the costs
of removing the changes or alterations prior to the expiration of the Lease are
secured to Landlord's reasonable satisfaction, and that Landlord is protected
against liens being filed against the Building.
Section 7.2 Subject to the provisions of Section 5.2, all repairs,
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improvements, fixtures, changes or alterations made or installed by the Tenant
shall become the property of the Landlord immediately upon completion of
installation without any payment by or consideration from the Landlord.
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ARTICLE VIII
DAMAGE OR DESTRUCTION
Section 8.1 Tenant covenants and agrees that in case of damage to or
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destruction of the Premises by fire or other casualty, Tenant shall promptly
give written notice thereof to Landlord, and the Landlord, to the extent of any
insurance proceeds actually received, shall repair and rebuild the same as
nearly as possible to the condition the Premises were in immediately prior to
such damage or destruction, except that Landlord shall not be required to
rebuild, repair or replace any part of the partitions, fixtures, additions or
other improvements which may have been placed in, on or about the Premises by
Tenant over and above any Tenant finish provided at the inception of this Lease.
Provided however, that in the event the damage or destruction is due to Tenant's
act omission or negligence, Tenant shall pay the cost of such repairing and
rebuilding. Tenant may repair or rebuild at its expense to the extent not
required to be done by Landlord under paragraph, but subject to Tenant's
complying with the provisions of Article VII.
Section 8.2 Rent shall xxxxx proportionately on such part of the
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Premises as may have been rendered wholly untenantable until such time as such
part shall be fit for occupancy, after which time the full amount of Rent shall
be payable. Tenant hereby waives the provisions of any law now or hereafter on
effect which would relieve the Tenant from any obligation to pay Base Rent or
Additional Rent under this Lease, except to the extent provided by this Section.
Tenant acknowledges that it may obtain business interruption insurance to insure
itself in the event of damage or destruction, which insurance shall be the sole
expense of Tenant.
Section 8.3 Notwithstanding Section 8.1, if the Premises or Building
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shall be substantially damaged (substantially is defined as thirty percent (30%)
or more of the usable square feet in the Premises or in the Building) or
destroyed by fire or otherwise, Landlord shall have the option of terminating
this Lease as of the date of such damage or destruction by giving Tenant at
lease thirty (30) days' written notice.
Section 8.4 Waiver of Subrogation. Tenant and Landlord each hereby
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release and relieve the other and waive their entire right of recovery against
the their for loss or damage arising out of or incident to the perils insured
against which perils occur in, on or about Premises, whether due to the
negligence of Landlord or Tenant or their agents, employees, contractors and/or
invitees. Tenant and Landlord shall, upon obtaining the policies of insurance
required give notice to the insurance carrier or carriers that the foregoing
mutual waiver of subrogation is contained in this Lease.
ARTICLE IX
CONDEMNATION
Section 9.1 If the whole or part of the Premises shall be taken under
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the power of eminent domain, or shall be sold by the Landlord under threat of
condemnation proceedings (which shall be deemed to exist upon formal or informal
notification from any condemning authority), then this Lease shall terminate as
part so taken or sold on the day when Tenant is required to yield possession
thereof. Landlord shall make such repairs and alterations as may be necessary in
order to restore the part not taken or sold to useful condition, and Base Rent
and Tenant's Pro Rata Share shall be abated as to the portions of the Premises
so taken or sold. Provided however, that Landlord shall not be required to
expend more on repair of the Premises than it receives on condemnation
proceedings. If more than thirty (30%) of the Premises is so taken or sold so as
to impair substantially the usefulness of the premises, then Tenant shall have
the option to terminate this Lease as of the date when Tenant is required to
yield possession. All compensation awarded or paid for any such taking or sale
shall belong to and be the property of the Landlord. In the event of any such
taking, however, Tenant will have the right to that portion of any award
specifically pertaining to Tenant's moving expenses and leasehold improvement
owned by Tenant.
Section 9.2 Notwithstanding Section 9.1, if all or any portion of the
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Premises shall be taken or sold on any proceeding or upon threat of any
proceeding, Landlord shall have the option of terminating this Lease upon at
least thirty (30) day's written notice to Tenant.
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ARTICLE X
CONDITIONS OF WORK FOR REPAIRS-ALTERATIONS
Section 10.1 All work for repairs as required by Section 5.1, compliance
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with laws, ordinances, regulations or requirements as required by Section 6.1,
and for changes or alterations permitted by Section 7.1, shall be done in all
cases subject to reasonable conditions which the Landlord may impose, and in a
good and workmanlike manner.
ARTICLE XI
MECHANIC'S LIENS
Section 11.1 Tenant shall not suffer nor permit any mechanics' or other
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liens to be filed against the Building, the Premises, or against Tenant's
leasehold interest in the Premises by reason of work, labor, services or
materials supplied or claimed to have been supplied to the Tenant or anyone
holding the Premises or any part thereof through or under the Tenant. The
Landlord shall have the right at all times to post any notice which the Landlord
may deem to be necessary or advisable for the protection of the Landlord and the
Building from mechanics' liens. If a mechanics' lien shall be filed against the
Premises, Tenant shall discharge it within twenty (20) days after the filing
date, except that if Tenant desires to contest such lien, it will comply with
such statutory procedures as may be available to release the lien within twenty
(20) days after filing date. If a final judgment establishing the validity or
existence of a lien for any amount is entered, Tenant will pay and satisfy the
same at once. If Tenant fails to pay and charge for which a mechanics' lien has
been filed, or has not complied with such statutory procedures as may be
available to release the lien, then, in addition to any other rights or remedies
available, Landlord may, but shall not be obligated to, discharge the amount
claimed to be due or cause the lien to be released in any other manner. Any
amount paid by Landlord with respect thereto, and all attorneys' fees and costs
of the Landlord, with interest at the rate of one and one half percent (1.5%)
per month, shall upon demand be paid by the Tenant to the Landlord.
ARTICLE XII
LANDLORD'S RIGHT TO ENTER PREMISES
Section 12.1 Tenant agrees to permit the Landlord and its
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representatives, upon reasonable notice, to enter the Premises at all times
during usual business hours or at any other time in case of emergency, to
inspect the same and the Landlord may, but shall not be obligated to, make
repairs deemed necessary or desirable by the Landlord and to perform any work in
the premises deemed necessary by the Landlord to comply with any laws,
ordinances, regulations or requirements of any governmental authority or the
recommendations of any insurer. During the progress of any such work, the
Landlord may keep and store upon the Premises all necessary materials, tools and
equipment. The Landlord shall not in any event be liable for inconvenience,
annoyance, disturbance, loss of business or other damage to Tenant.
Section 12.2 Tenant agrees to permit the Landlord and its
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representatives, upon reasonable notice, to enter the Premises during usual
business hours to exhibit the same for the purposes of sale, mortgage or lease.
During the final six (6) months of the term of this Lease, or in the case of
default, Landlord may display "For Sale" or "For Lease" signs.
ARTICLE XIII
ASSIGNMENT AND SUBLETTING
Section 13.1 Tenant shall not, without Landlord's prior written consent,
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which will not be unreasonably withheld: (a) assign, convey, mortgage, pledge,
encumber or otherwise transfer (whether voluntarily or otherwise) this Lease or
any interest under it (in the event Tenant is a corporation, any transfer, sale,
pledge, or other disposition cumulatively of more than fifty (50%) of the
corporate stock or voting securities of Tenant shall be deemed as assignment);
(b) allow any transfer thereof or any lien upon the Tenant's interest by
operation of law; (c) sublet the Premises or any part thereof, or (d) permit the
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use of occupancy of the Premises or any part thereof by anyone other than the
Tenant. In no event shall Landlord be held responsible for monetary damages for
the withholding of consent. Notwithstanding any provision of this Lease on the
contrary, Tenant shall not be released from any of its obligations hereunder as
a result of any assignment or subletting, the acceptance of rent from any
unapproved assignee or subtenant shall not constitute Landlord's consent to any
such assignment or subletting, the consent to any assignment or subletting shall
not be deemed a consent to any subsequent assignment or subletting, and no
option to renew or extend this Lease or any other option that may be granted to
Tenant in this Lease shall be exercisable by any assignee or subtenant, as
Tenant agrees that all of such options to Tenant are personal to Tenant and may
not be exercised by any other party. Landlord's consent to any assignment or
subletting may be conditioned upon, among other things, the financial
capabilities of the proposed assignee or subtenant. Under no circumstances shall
Landlord be required to consent to the assignment or subletting to any party
whose business Landlord determined is more likely to utilize hazardous
substances or is more likely to adversely effect any insurance policy respecting
the property.
Section 13.2 Tenant agrees to pay Landlord, on demand, reasonable fees
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incurred by Landlord in connection with any request by Tenant for Landlord to
consent to any assignment or subletting by Tenant.
Section 13.3 If this Lease is assigned, or if the Premises or any part
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thereof by sublet to otherwise is occupied by anyone other than Tenant, Landlord
may collect Rent from any such assignee, subtenant or occupant and apply net
amount collected to the Rent herein reserved, but such assignment, subletting,
occupancy or collection of Rent shall be deemed a waiver of any of Tenant's
covenants contained in this Lease, or a release of Tenant from further
performance of Tenant's covenants including, but not limited to, Tenant's
covenants to pay Rent.
Section 13.4 Upon assignment, subletting or other occupancy of the
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Premises, Tenant shall pay to Landlord monthly as Additional Rent, the excess of
consideration received or to be received during such month over Rental reserved
for such month in this Lease which is applicable to such portion of the Premises
so assigned, sublet or occupied.
Section 13.5 In the event Tenant, with Landlord's prior written consent,
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subleases to a third party, the subtenant shall be subject to and comply with
all requirements of this Lease.
ARTICLE XIV
RIGHTS OF MORTGAGEE
Section 14.1 The rights of Tenant hereunder are and shall be, at the
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election of any mortgages, subject and subordinate to the lien of any deeds of
trust, mortgages, the encumbrance of any leasehold financing, or the lien
resulting from any other method of financing or refinancing, now or hereafter in
force against the Building, and to all advances made or hereafter to be made
upon the security thereof (the "Superior Instruments"). With respect to any
Superior Instrument filed of record after the execution of this Lease, Landlord
will request in writing that the holder thereof give a nondisturbance agreement
to the Tenant. Tenant acknowledges and agrees that any such nondisturbance
agreement may be on a standard form utilized by the holder. Tenant shall be
solely responsible for seeking to negotiate satisfactory terms of such
nondisturbance agreement. However, if the holder refuses to propose any
nondisturbance agreement or a proposed nondisturbance agreement contains terms
and conditions not satisfactory to Tenant, such circumstances shall not
constitute a default by Landlord under this Lease. Rather, Landlord's sole
obligation with respect to any such nondisturbance agreement shall be to request
the same in writing as described above.
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ARTICLE XV
INDEMNIFICATION OF LANDLORD-NO REPRESENTATION BY LANDLORD
Section 15.1 Landlord shall not be liable to Tenant or to Tenant's
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employees, agents or visitors, or to any other person or entity, for any injury
to person or damage to or loss of property in or about the Premises or the
Building caused by the act, omission or negligence of Tenant, its employees,
subtenants, licensees or concessionaires, or of any other person entering the
Building under the express or implied invitation of tenant, or arising out of
the use of the Premises by Tenant and the conduct of it business therein, or
arising out of any breach or default by Tenant in the performance of its
obligation hereunder or resulting from any other cause except Landlord's gross
negligence, and Tenant hereby agrees to indemnify Landlord and hold it harmless
from any loss, expenses (including attorney's fees) or claims arising out of
such damage or injury.
Section 15.2 Landlord has made no representations in connection with the
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condition of the Premises, and Tenant's commencement of occupancy of the
Premises shall constitute Tenant's agreement that the Premises are in good
condition.
ARTICLE XVI
DEFAULT PROVISIONS-REMEDIES OF LANDLORD-WAIVER OF JURY TRIAL
Section 16.1 The following events shall be deemed to be Events of
------------
Default by Tenant under this Lease:
(a) Tenant shall fail to pay any installment of Base Rent
or amount of Additional Rent when due.
(b) Tenant shall (i) apply for or consent to the
appointment of a receiver, trustee or liquidator of the
Tenant or of all or a substantial part of its assets,
(ii) becomes insolvent or admit in writing its
inability to pay its debts as they come due, (iii) make
a general assignment for the benefit of creditors, (iv)
file a petition or answer seeking reorganization or
arrangement with creditors or to take advantage of any
insolvency law, or otherwise become the subject of any
proceeding under any such law, or (v) make a transfer
in fraud of creditors.
(c) Tenant shall abandon or vacate for more than thirty
(30) days any substantial portion of the Premises.
(d) Tenant shall fail to comply with any term, provision or
covenant of this Lease (other than the forgoing
provisions of this Section 16.1) and shall not cure
such failure within twenty (20) days after written
notice thereof to Tenant.
(e) Tenant shall fail to comply with the requirements of
Section 11.1 of this Lease.
Section 16.2 If an Event of Default occurs, then Landlord may either:
(a) Give Tenant written notice of Landlord's intention to
terminate Tenant's right of possession under this
Lease, in which event Landlord may proceed to recover
possession of the Premises by any lawful means. The
obligation of Tenant to pay and the right of Landlord
to recover all Rent, including accrued rent and all
future rent and other charges owed for what would have
been the remaining the term of the Lease, together with
the costs of collection, including attorneys' fees,
shall survive termination of Tenant's right of
possession.
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(b) Unless required by law, without further notice, reenter
and take possession of the Premises, or any part
thereof, and repossess the same as Landlord's former
estate, and expel Tenant and those claiming through or
under tenant and remove the effects of either or both
without being deemed guilty of any manner of trespass,
without being deemed to have elected to terminate this
Lease, and without prejudice to any remedies for
arrears of Rent and preceding breaches of covenants.
After reentering and repossessing the Premises without
terminating this Lease, Landlord may, from time to
time, without terminating this Lease relet the Premises
or any part thereof on behalf of Tenant for such term
or terms and at such rent or rents, and upon such other
terms and conditions as Landlord may deem advisable in
its sole discretion (including concessions, free rent
and payment of commissions), with the right to make
alterations and repairs to the Premises.
In the event Landlord does not elect to terminate this Lease, but on the
contrary elects to take possession, then such repossession shall not relieve
Tenant of its obligations and liability under this Lease, all of which shall
survive such repossession. In the event of such repossession, Tenant shall pay
Landlord as Rent all Rent which would be payable hereunder if such repossession
had not occurred, less the net proceed, if any, of any reletting of the Premises
after deducting all of Landlord's expenses in connection with reletting,
including, but not limited to, all repossession costs, brokerage commissions,
legal expenses, expenses of employees, costs of alteration, expenses of
preparation for reletting, rental concessions and free rent. Tenant shall pay
such Rent to Landlord on the days on which the Rent would have been payable
hereunder if possession had not been retaken.
Any damage or loss sustained by Landlord following Landlord's election to
reenter and repossess the Premises without terminating this Lease may be
recovered by Landlord, at such time and from time to time as Landlord
determines.
In the event this Lease is terminated, Tenant shall in all events remain liable
to Landlord for damages in an amount equal to the Rent and other sums which
would have been owing by Tenant hereunder for the balance of the Term had this
Lease not been terminated, plus all amounts incurred by Landlord in order to
obtain possession of the Premises and relet the same, including attorney's fees,
reletting expenses, alterations and repair costs, brokerage commissions, and all
other like amounts. Landlord shall be entitled to collect such damages from
Tenant monthly on the days on which the Rent and other amounts would have been
payable hereunder if this Lease had not been terminated, and Landlord shall be
entitled to receive the same from Tenant on each such day. Alternatively, at the
option of Landlord, in the event this Lease is terminated, Landlord shall be
entitled to recover forthwith against Tenant in addition to damages owing to
Landlord for any period prior to the termination date, as damages for loss of
the bargain and not as a penalty, an amount equal to the worth, at the time of
award by the court having jurisdiction thereof, of the amount by which the
unpaid Rent for the balance of the Term after the time of such award exceeds the
amount of such Rental loss of the same period that Tenant proves could be
reasonably avoided, plus all amounts incurred by Landlord in order to obtain
possession of the Premises and relet the same, including attorneys' fees,
reletting expenses, alterations and repair costs, brokerage commissions and all
other like amounts.
All rights and remedies of Landlord under this Lease shall be cumulative and
shall not be exclusive of any other rights and remedies provided to Landlord
under applicable law.
Section 16.3 Landlord and Tenant hereby waive trial by jury in any
------------
action, proceeding or counterclaim brought by either party against the other on
any matters arising out of or in connection with this Lease, the relationship of
Landlord and Tenant thereunder, the Premises or Tenant's use or occupancy
thereof. The terms "enter" or "entry" as used in this Lease are not restricted
to their technical legal meaning. In the event of litigation under this Lease,
the prevailing party shall be awarded its costs incurred therewith, including
reasonable attorney's fees. Notwithstanding any provision of this Lease to the
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contrary, in no event shall Landlord be deemed to terminate this Lease unless
Landlord expressly declares such termination in writing. Specifically, but not
by way of limitation, Landlord's service of any paper under the applicable
forcible entry and detainer statute shall not constitute a termination of the
Lease unless Landlord expressly states therein that it is terminating the Lease.
ARTICLE XVII
HOLDING OVER
Section 17.1 Tenant covenants that it shall vacate the Premises
------------
immediately upon the expiration or sooner termination of this Lease. If the
Tenant retains possession of the Premises or any part thereof after the
termination of the term, the Tenant shall pay the Landlord rent at 200% monthly
rate specified in Section 1 for the time the Tenant thus remains in possession
and, in addition thereto, shall pay the Landlord for all damages, consequential
as well as direct, sustained by reason of the Tenant's retention of possession.
The provisions of this Section do not exclude the Landlord's right of re-entry
or any other right hereunder, including without limitation, the right to refuse
double the monthly rent and instead to remove Tenant through proceeding pursuant
to Colorado statutes for holding over beyond the expiration of the term of this
Lease.
ARTICLE XVIII
INVALIDITY OF PARTICULAR PROVISIONS
Section 18.1 If any covenant, agreement or condition of this Lease shall
------------
to any extent be invalid or unenforceable, the remainder of this Lease shall not
be affected thereby. Each covenant, agreement or condition of this Lease shall
be valid and enforceable to the fullest extent permitted by law.
ARTICLE XIX
NOTICES
Section 19.1 Notices, demands and requests which may or are required to
------------
be given by either party to the other shall be in writing and shall be deemed
given when hand delivered, or one business day after delivery to an overnight
delivery carrier that gives receipts for delivery, or two business days after
being deposited with the United States Postal Service for delivery by United
States Certified Mail, return receipt requested, postage prepaid, (a) if for the
Tenant, addressed to the Tenant at the Premises or at such other place as the
Tenant may from time to time designate by written notice to the Landlord, or (b)
if for the Landlord, addressed to the Landlord at 0000 Xxxxxxxx Xxxxx, Xxxxx
000, Xxxxxxxxxxx, Xxxxxxxx 00000, or at such other place as the Landlord may
from time to time designate by written notice to the Tenant. "Business day"
means Monday through Friday, excluding days on which national banks are closed
in Colorado.
Section 19.2 Tenant shall promptly deliver to the Landlord, (i) copies
------------
of any documents received from the United States Environmental Protection Agency
and/or any state, county or municipal environmental or health agency concerning
the Tenant's operations upon the Premises; and (ii) copies of any documents
submitted by the Tenant to the United States Environmental Protection Agency
and/or any state, county or municipal environmental or health agency concerning
its operations of the Premises.
ARTICLE XX
QUIET ENJOYMENT
Section 20.1 The Landlord covenants and agrees that the Tenant, upon
------------
paying the Base Rent and Additional Rent required under this Lease and
performing the covenants, agreements and conditions of this Lease on the
Tenant's part to be performed and fulfilled, shall lawfully and quietly hold,
occupy and enjoy the premises during the term of this Lease, subject, however,
to the provisions of this Lease.
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ARTICLE XXI
LIMITATION OF LANDLORD'S LIABILITY
Section 21.1 The term "Landlord" as used in this Lease shall be limited
------------
to the owner or owners of the Landlord's interest in this Lease at the time in
question, and in the event of any transfer or transfers of such interest, the
Landlord herein named (and in case of any subsequent transfer, the then
transferor) shall be automatically relieved from and after the date of such
transfer of all liability on the part of Landlord contained in this Lease
thereafter to be preformed, provided that any funds in the hands of such
Landlord then transferor at the time of such transfer, including but not limited
to the security deposit, in which the Tenant had an interest shall be turned
over to the transferee and upon any such transfer, the Landlord shall be
released from any liability for such fund. The transferee shall be deemed to
have assumed, subject to the limitations of this Section, all of the covenants,
agreements and conditions on this Lease contained to be preformed on the part of
the Landlord, it being intended hereby that the covenants and agreements
contained in this Lease on the part of the Landlord to be preformed shall be
binding on the Landlord, its successors and assigns, only during and in respect
of their respective periods of ownership. Notwithstanding any provisions of this
Lease to the contrary, the liability of Landlord for Landlord's obligations
under this Lease shall not exceed and shall be limited to Landlords interest in
the Building and Tenant shall not look to any other property or assets of
Landlord either to enforce Landlord's obligations under this Lease or to satisfy
a judgment for Landlord's failure to perform such obligations. Neither the
shareholder, directors, officers, partners, or any other individuals
representatives of the Landlord or any individual owing an interest in the
Landlord shall be liable for the performance of any obligation of Landlord under
this Lease.
ARTICLE XXII
ESTOPPEL CERTIFICATE BY TENANT
Section 22.1 At any time and from time to time upon not less than
------------
ten (10) days' prior request by the Landlord, Tenant agrees to execute,
acknowledge and deliver to Landlord a statement on writing certifying (a) that
this Lease is unmodified and in full force and effect or if there have been
modification, that the same is in full force and effect as modified and
identifying the modifications, (b) the dates to which the Base Rent and
Additional Rent have been paid, and (c) that the Landlord is not in default
under any provisions of this Lease, or if Tenant claims a default by Landlord,
then Tenant shall so state and specify the claimed default. If Tenant fails to
provide an estoppel certificate in a timely manner, then Tenant shall be deemed
to have admitted all of the matters specified above as may be stated in an
estoppel certificate prepared by Landlord on behalf of Tenant. It is intended
that any such statement may be relied upon by any person proposing to acquire
the Landlord's interest in this Lease or any prospective mortgagee of, or
assignee of any mortgage upon, such interest.
ARTICLE XXIII
CUMULATIVE REMEDIES-NO WAIVER-NO ORAL CHANGE
Section 23.1 The specified remedies to which the Landlord may resort
------------
under the terms of this Lease are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which the Landlord may be
entitled, either at law or in equity, in case of any Event or Default. The
failure of the Landlord to insist in any one or more cases upon the strict
performance or observance of any covenants, agreements or conditions of this
Lease or to exercise any option herein contained shall be construed as a future
waiver of such covenant, agreement, condition or option. A receipt by the
Landlord of Rent with knowledge of the breach of any covenant, agreement or
condition hereof shall not be deemed a waiver of such breach, and no waiver by
the Landlord of any covenant, agreement or condition of this Lease shall be
deemed to have been made unless expressed in writing and signed by the Landlord.
In addition to the other remedies in this Lease, the Landlord shall be entitled
to the restraint by injunction of the violation, or attempted or threatened
violation, of any of the covenants, agreements or conditions of this Lease. No
receipt of monies by Landlord from Tenant after the termination or cancellation
of this Lease shall reinstate, continue or extend the term hereof, or affect any
notice given to Tenant, or operate as a waiver of the right of Landlord to
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enforce the payment of Rent then due or thereafter falling due, or operate as a
waiver of the right of Landlord to recover possession of the Premises by proper
suit, action, proceedings or other remedy. It is agreed that after the service
of notice to terminate or cancel this Lease, or after the commencement of suit,
action or summary proceedings or of any other remedy, or after final order or
judgment for the possession of the Premises, Landlord may demand, receive and
collect any monies then due, or thereafter becoming due, without in any manner
affecting such notice, proceeding, suit, action, order or judgment, and any and
all such monies so collected shall be deemed to be payments on account for the
use and occupancy of the Premises, or at the election of Landlord, on account of
Tenant's liability hereunder. Acceptance of the keys of the premises or any
similar act by Landlord or any agent or employee of Landlord shall not be deemed
to be an acceptance of a surrender of the Premises unless Landlord has expressly
consented on Writing.
Section 23.2 This Lease constitutes the entire agreement between the
------------
parties. This Lease shall not be amended or modified except in writing signed by
the party against whom enforcement of the amendment or modification is sought.
ARTICLE XXIV
BROKERAGE
Section 24.1 Tenant represents and warrants that it has dealt with no
------------
broker, agent or other person concerning this transaction, other than the broker
specified in the Definitions section of this Lease, and Tenant agrees to
indemnify and hold Landlord harmless from and against any claims, (including
attorneys' fees incurred by Landlord in defending such claims) by any other
broker, agent or person claiming a commission or other form of compensation by
virtue of having dealt with Tenant with regard to this leasing transaction. The
provisions of this Article shall survive the termination or expiration of this
Lease.
ARTICLE XXV
SECURITY DEPOSIT
Section 25.1 Tenant has deposited with Landlord the sum specified in the
------------
Definition section of this Lease as security for the return of the Premises in
good order and condition and the full performance of every provision of this
Lease to be performed by Tenant. The security deposit shall not be applied to
the payment of Rent, provided however, that if Tenant defaults with respect to
any provision of this Lease, Landlord may use, apply or retain all or any part
of this security deposit for the payment of any Base Rent and Additional Rent in
default, or for the payment of any other amount which Landlord may spend or
become obligated to spend by reason of Tenant's default, or to compensate
Landlord for any other less, cost or damage which Landlord may suffer by reason
of Tenant's default. If any portion of said deposit is so used or applied,
Tenant shall, with ten (10) days after written demand, deposit cash with
Landlord in an amount sufficient to restore the security deposit to its original
amount. For full security deposit reimbursement the following conditions must be
met:
a) All walls must be clean and free of holes.
b) Any overhead door must be free of any broken panels,
cracked lumber or dented panels. The overhead door
springs, rollers, tracks, motorized door operator, and
all other items pertaining to the overhead door must
also be in good working condition.
c) All floors must be clean and free of excessive dust,
dirt, grease, oil and stains.
d) No ceiling tiles shall be missing or damaged.
e) All trash must be removed from both inside and outside
of the Building.
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f) All lights bulbs and ballast's must be working.
g) The Premises must otherwise be in good conditions,
reasonable wear and tear excepted.
In the event Tenant has complied with the above conditions, Landlord shall
return the security deposit (without interest) to Tenant within sixty (60) days
after either the termination or expiration of this Lease, or the surrender and
acceptance by Landlord of the Premises. Notwithstanding the foregoing, Landlord
may retain the security deposit for non-payment of Base Rent or Additional Rent,
utility charges, costs incurred relating to abandonment of the Premises,
repairs, work contracted for by the Tenant or any other charge due under this
Lease by Tenant to Landlord.
ARTICLE XXVI
MISCELLANEOUS PROVISIONS
Section 26.1 Tenant shall not place on the outside of the Building any
------------
sign, advertisement, illumination or projection without Landlord's prior written
consent. In multi-tenant buildings, Tenant shall pay for and comply with
Landlord's uniform signage requirements.
Section 26.2 This Lease shall be constructed and enforced in accordance
------------
with the laws of the State of Colorado. Time is of the essence with respect to
Tenant's performance of its obligations under this Lease.
Section 26.3 The parties hereto agree that the covenants and agreement
------------
herein contained shall bind and inure to the benefit of the Landlord, the
Tenant, and their respective successors and assigns.
Section 26.4 If any of Tenant's checks fail to clear the bank, Landlord
------------
may demand all future Rent payments to be either in the form of cash, certified
check, money order, wire transfer or cash equivalent fund. Additionally, a
$150.00 return check fee shall be paid by Tenant for each check or other payment
returned to Landlord unpaid.
Section 26.5 "Reasonable wear and tear" is hereby defined as that degree
------------
of wear and tear which would normally occur in the permitted use of the
Premises, but notwithstanding the foregoing or any other provision of this
Lease, it shall not include any physical damage to the floors, floor coverings,
walls, or ceiling of the Premises, nor any damage caused thereto through
operation of machinery, office equipment or other equipment or furniture used in
the operation of Tenant's business. Additionally, if Tenant's use, by reason of
fumes discharged or liquids used by Tenant, should cause damage to the Premises,
either interior or exterior, said damages shall not be deemed "reasonable wear
and tear", and Tenant shall be liable for the complete restoration of the
Premises to the condition existing at Tenant's Lease commencement. Damage which
does not come within the scope of "reasonable wear and tear" shall include, but
---
not be limited to damaged, rusting or corroded walls, floors, floor coverings,
ceilings, doors, windows, metal bar joists, steel decks, or roof vents or
stacks.
Section 26.6 Any form of smoking of any substance in the Premises and in
------------
any common areas in the building in which the Premises is situate by Tenant,
Tenant's employees, agents, customers, contractors and any other person or
persons whatsoever in or about the Premises and common areas at the request,
invitation, or sufferance of the Tenant, or any of the foregoing, is strictly
prohibited.
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In Witness Whereof, the Landlord and the Tenant have executed this Lease on the
dates specified below.
Landlord:
/s/ Xxxx Xxxx Properties
------------------------------------
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Title: /s/ Co-Manager
------------------------------
Date: /s/ 8/28/00
-------------------------------
TENANT:
/s/ Nicklebys
------------------------------------
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Title: /s/ C.E.O
------------------------------
Date: /s/ 8/28/2000
-------------------------------
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RULES AND REGULATIONS
1. The sidewalks and driveways will not be obstructed by any of the Tenants or
used by then for any purpose other than for the ingress and egress to and
from their respective premises.
2. All Tenants shall adhere to and obey all such parking control measures as
may be placed onto effect by the Landlord through the use of signs,
identifying decals or other instructions.
3. Any electric wiring that the Tenant desires to introduce into his premises
must be connected as directed by the Landlord. No boring or cutting for
wires will be allowed except with a specific consent of the Landlord. The
location of telephones, electrical appliances, call boxes, intercoms and so
forth shall be prescribed by the Landlord.
4. The Tenant shall not change locks or install other locks on doors without
the written consent of the Landlord. Tenant shall provide Landlord with two
keys for each lock set so changed.
5. The Tenant shall give prompt notice to the building of any accidents to or
defects in plumbing, electrical fixtures or heating apparatus so that the
same may be attended to properly.
6. The Tenant shall not permit or suffer the demised premises to be occupied
or used in a manner offensive or objectionable to the Landlord or other
occupants of the building by reason of noise, odors, or vibrations or
interfere in any way with other Tenants or those having business therein,
nor shall any animals or birds be kept in or about the building.
7. No cooking shall be done or permitted by Tenant on the demised premise nor
shall offices of the building be used, nor any part thereof permitted to be
used for lodging.
8. Each Tenant upon the termination of the tenancy shall deliver to the
Landlord all keys of the offices, rooms and toilet rooms which shall have
been furnished to the Tenant.
9. Tenant shall see that doors of the premises are closed and securely locked
before leaving the building and must observe strict care not to leave such
doors and so forth open and exposed to the weather or other elements, and
each Tenant shall exercise extraordinary care and caution that all water
faucets or water apparatus are entirely shut off before Tenant of Tenant's
employees leave the building, and that all electricity, gas and air
conditioning shall likewise be carefully shut off, so as to prevent waste
or damage, where controlled by Tenant.
10. The Landlord reserves the right, at any time, to rescind any one or more of
these rules and regulations as in the Landlord's judgment may from time to
time be necessary for the safety, care, and cleanliness of the premises,
and for the preservation of order therein.
ACCEPTED, this 28th of August, 2000
---- ------
By:
/s/Xxxxx X Xxxxx
-----------------------------------
Tenant
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