Exhibit 10.7
LEASE AGREEMENT
PROJECT: CARDINAL TECHNOLOGY CENTER
1. DEFINITIONS AND BASIC PROVISIONS.
A. Date of Lease: 4-1-98
B. "Landlord": Cardinal Xxxxxxx Tech Center, Inc., a Texas corporation
C. Address: c/x Xxxxxxx Associates Real Estate Counsel, Inc.
0000 0xx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
D. "Tenant": Macro-Vision Communications, Inc.
E. Address: 0000 X. Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx 00000
F. "Building": The structure commonly known as Building Three - 0000 X. Xxxxxxx
Xxxxxxxxx and which is located on the tract of land (the "Land") described by on
Exhibit "B" attached hereto and made a part hereof for all purposes.
G. "Premises": That certain 20,200 square feet of rentable area contained
within the Building (the "Rentable Area in the Premises"), and as outlined and
hatched on the plan attached hereto as Exhibit "A" and made a part hereof for
all purposes.
H. "Project": The Building, the parking facilities, and other structures,
improvements, landscaping, fixtures, appurtenances and other common areas now or
hereafter, constructed or erected on the Land.
I. "Rentable Area in the Project" shall be 45,880 square feet of rentable area
unless modified as provided herein.
J. "Tenant's Proportionate Share" shall be forty-four percent (44%), which is
the ratio between the Rentable Area in the Premises and the Rentable Area in the
Project. If the Rentable Area in the Premises and/or the Rentable Area in the
Project changes, Tenant's Proportionate Share shall be adjusted effective as of
the date of such change.
K. "Commencement Date": April 1, 1998 , or the date upon which Tenant occupies
the Premises with the prior written consent of Landlord, whichever shall first
occur (subject to the provisions of the "Exhibit D" attached hereto). Upon
request of either party hereto, Landlord and Tenant agree to execute and deliver
a written declaration in recordable form expressing the Commencement Date
hereof.
L. "Term": Commencing on the Commencement Date and ending sixty-two (62) months
after the Commencement Date, plus any partial calendar month following the
Commencement Date, unless sooner terminated as provided herein.
M. "Base Rental": $0.00 per month for the first two (2) months of the Term of
this Lease; $15,991.67 per month for the next (12) months of the Term of this
Lease; then $19,779.17 per month for the remainder of the Term of this Lease;
each such monthly installment shall be due and payable on the first day of each
calendar month, in advance, without demand, deduction or setoff whatsoever.
N. "Prepaid Rental": $15,991.67 to be applied to the first accruing monthly
installments of rental.
O. "Security Deposit": $19,779.17
P. "Permitted Use": The Premises shall be used only for laboratory,
manufacturing and general office purposes in connection with Tenant's business
operation and for such other lawful purposes as may be incidental thereto.
Q. "Common Area": That part of the Project designated by Landlord from time to
time for the common use of all tenants, including among other facilities,
sidewalks, service corridors, curbs, truckways, loading areas, private streets
and alleys, lighting facilities, delivery passages, parking areas, decks and
other parking facilities, landscaping and other common facilities.
R. "Broker": Xxxxx Xxxxxx and Xxxxx Xxxxx of The Xxxxx Company
Each of the foregoing definitions and basic provisions shall be construed in
conjunction with the references thereto contained In the other provisions of
this Lease and shall be limited by such other provisions. Each reference in this
Lease to any of the foregoing definitions and basic provisions shall be
construed to incorporate each term set forth above under such definition or
provision.
2. GRANTING CLAUSE. In consideration of the obligations of Tenant to pay rent
as herein provided and in consideration of the other terms, covenants and
conditions hereof, Landlord hereby demises and leases to Tenant, and Tenant
hereby leases from Landlord, the Premises as described above, to have and to
hold such premises for the Term of the Lease, all upon the terms and conditions
set forth in this Lease.
3. BASE RENTAL. As rental for the lease and use of the Premises, Tenant will
pay Landlord or Landlord's assigns, without demand and without deduction,
abatement or setoff (except as otherwise expressly provided for herein in
Paragraph 17 hereof and Paragraph 19 hereof), the Base Rental in the manner
specified in Paragraph 1.M hereof in lawful money of the United States. If the
Term of this Lease does not commence on the first day of a calendar month,
Tenant shall pay to Landlord in advance a pro rata part of such sum as rental
for such first partial month. Tenant shall not pay any installment of rental
more than one (1) month in advance. All past due installments of rental or other
payment specified in this Lease shall bear interest at the
highest lawful rate per annum from the date due until paid. In addition, Tenant
shall pay Landlord upon demand a late charge in an amount equal to five percent
(5%) of any installments of rental or other payments specified herein if not
paid within five (5) days of the date when due and payable.
If Tenant fails to timely pay two (2) consecutive installments of Base Rental,
or other payment specified herein, or any combination thereof, Landlord may
require Tenant to pay (in addition to any interest) Base Rental and other
payments specified herein (as estimated by Landlord, if necessary) quarterly in
advance, and, in such event, all future payments shall be made on or before the
due date in cash or by cashier's check or money order, and the delivery of
Tenant's personal or corporate check shall no longer constitute payment thereof.
Any acceptance of Tenant's personal or corporate check thereafter by Landlord
shall not be construed as a waiver of the requirement that such payments be made
in cash or by cashier's check or money order. Any amount so estimated by
Landlord and paid by Tenant shall be adjusted promptly after actual figures
become available and paid or credited to Landlord or Tenant, as the case may be.
4. ADDITIONAL RENTAL AND OPERATING EXPENSES.
4.1 The term "Operating Expenses" shall mean all reasonable and necessary
expenses, costs and disbursements of every kind and nature which Landlord shall
pay or become obligated to pay because of or in connection with the ownership,
operation, maintenance, repair, replacement, protection and security of the
Project, determined on an accrual basis or cash method (at Landlord's option),
including, without limitation the following:
(a) Salaries and wages of all employees engaged in the operation, maintenance
and security of the Project, including taxes, insurance and benefits (including
pension, retirement and fringe benefits) relating thereto;
(b) Cost of supplies and materials used in the operation, maintenance and
security of the Project;
(c) Cost of all utility service (including water, power and sewage service)
supplied to the Project, with the sole exception of utility services supplied to
tenants of the Project at their respective premises and directly paid for by
such tenants;
(d) Cost of all maintenance, repair and replacement of, and any service
agreements for the Project and the equipment therein, including, without
limitation, any of the following (if provided): parking facilities, landscaping,
fire protection, sprinklers, trash removal, window cleaning, and elevator
maintenance;
(e) Cost of all insurance relating to the Project, including the cost of
casualty, rental and liability insurance applicable to the Project and
Landlord's personal property used in connection therewith;
(f) All taxes, assessments and governmental charges (foreseen or unforeseen,
general or special, ordinary or extraordinary) whether federal, state, county or
municipal and whether they
be levied by taxing districts or authorities presently taxing the Project or by
others subsequently created or otherwise, and any other taxes and assessments
attributable to the Project or its operation, and all taxes of whatsoever nature
that are imposed in substitution for or in lieu of any of the taxes, assessments
or other charges herein defined (collectively, the "Taxes"); provided, however,
that Operating Expenses shall not include taxes paid by tenants of the Project
as a separate charge on the value of their leasehold improvements, death taxes,
excess profits taxes, transfer taxes, franchise taxes and state and federal
income taxes;
(g) Cost of repairs and general maintenance applicable to all equipment used in
repairing and maintaining the Project, but specifically excluding repairs and
general maintenance paid by proceeds of insurance or by Tenant or by other third
parties;
(h) Cost of improvement items, including installation thereof, which are
acquired primarily for the purpose of reducing Operating Expenses and/or
complying with laws, ordinances or regulations of governmental authorities or
agencies having jurisdiction over the Project, the amount of all such costs to
be amortized over the useful life of the improvement together with interest at
the lower of Landlord's then current cost of unsecured financing or the maximum
rate allowed by law on the unamortized balance;
(i) Cost of repair and maintenance of the landscape and parking areas and
periodic painting of the building exterior, and
(j) Reasonable management fees paid by Landlord to third parties or to
management companies owned by, or management divisions of, Landlord such fees
not to exceed 4% of the Base Rental and Additional Rental.
To the extent that any Operating Expenses are attributable to the Project and
other projects of Landlord, a fair and reasonable allocation of such Operating
Expenses shall be made between the Project and such other projects.
Notwithstanding anything seemingly to the contrary contained herein, Operating
Expenses shall not include the following:
(i) Depreciation;
(ii) Interest and principal payments on mortgage and other non-operating debts
of Landlord;
(iii) Allowances or other costs (including the cost of plans, permits and
licenses) incurred with respect to the installation of tenant improvements made
for other tenants in the Project or in renovating or otherwise improving,
decorating, painting or redecorating vacant space for tenants or other occupants
of the Project;
(iv) Real estate commissions, legal fees, tenant incentives, marketing and
advertising expenses and other costs incurred by Landlord in leasing or
attempting to lease the Project; and
(v) Executive salaries or the salaries of non-management employees, except to
the extent of actual time expended at or on behalf of the Project by such non-
management employees.
4.2 For purposes hereof, "Tenant's Share of Operating Expenses" shall mean
Tenant's Proportionate Share of Operating Expenses. Landlord shall have the
right to estimate the amount of Tenant's Share of Operating Expenses which will
be incurred with respect to each calendar year during the Term of this Lease,
Tenant shall pay to Landlord monthly on the first day of each calendar month
during such calendar year in question, as additional rental, an amount equal to
one-twelfth (1/12th) of the estimated amount of Tenant's Share of Operating
Expenses. Until such time as an estimate of Operating Expenses with respect to
any particular calendar year is delivered to Tenant, Tenant shall pay to
Landlord, on the first day of January and the first day of each calendar month
thereafter during such calendar year in question the amount of such additional
rental which shall have been payable by Tenant under this paragraph with respect
to the month of December immediately preceding such calendar year. Thereafter,
at such time as the estimate of Operating Expenses with respect to such calendar
year is delivered to Tenant, Tenant shall pay to Landlord within thirty (30)
days following receipt of such estimate the amount by which (i) the product of
one-twelfth (1/12th) of the amount of such estimate multiplied by the number of
calendar months in such calendar year which shall have wholly or partially
expired exceeds (ii) the amount of such additional rental which shall have been
theretofore paid under this paragraph with respect to such calendar months.
Landlord agrees to provide to Tenant a statement of the Operating Expenses
incurred with respect to each calendar year on or about ninety (90) days (or as
soon thereafter as reasonably possible) following the end of such respective
calendar year. If Tenant's Share of Operating Expenses actually incurred with
respect to any calendar year exceeds the estimate of Tenant's Share of Operating
Expenses theretofore paid by Tenant for such calendar year, then Tenant shall
pay to Landlord the amount of such excess within thirty (30) days following
receipt of notice from Landlord setting forth Tenant's Share of Operating
Expenses for the calendar year in question. If Tenant's Share of Operating
Expenses with respect to any calendar year is less than the estimate of Tenant's
Share of Operating Expenses theretofore paid by Tenant for such calendar year,
then Landlord shall credit the difference to Tenant against the next due
installments of the estimated amount of Tenant's Share of Operating Expenses or,
if at the expiration of the Lease, shall refund to Tenant. In no event shall
Tenant ever be entitled to a credit with respect to any calendar year in excess
of the additional rental payments made under this paragraph with respect to such
calendar year. If the Commencement Date of this Lease is not the first day of a
calendar year or the expiration or termination date of this Lease is not the
last day of a calendar year, then Tenant's Share of Operating Expenses with
respect to such calendar year shall be prorated. The provisions of this
paragraph shall survive the expiration or earlier termination of this Lease.
4.3 Landlord agrees to keep books and records reflecting the Operating
Expenses. Tenant, at its expense, shall have the right, within six (6) months
after receiving Landlord's statement of Operating Expenses for a particular
calendar year, to audit Landlord's books and records respectively relating to
Operating Expenses for such calendar year; or, at Landlord's sole option,
Landlord may provide such audit prepared by a certified public accountant
selected by Landlord. If within such six (6) month period Tenant does not give
Landlord written notice stating in reasonable detail any objection to the
statement of Operating Expenses, Tenant shall be deemed to have approved such
statement in all respects.
4.4 Should Tenant desire any additional services beyond those which Landlord
is expressly obligated to provide pursuant to this Lease or should Tenant desire
rendition of any of such services outside the normal times of Landlord for
providing such service, Landlord may (at Landlord's option), upon reasonable
advance notice from Tenant to Landlord, furnish such services, and Tenant agrees
to pay Landlord such charges as may be agreed on between Landlord and Tenant,
but in no event at a charge less than Landlord's actual cost plus overhead for
the additional services provided.
5. TAXES.
5.1 Tenant shall be liable for the timely payment of all taxes levied or
assessed against personal property, furniture or fixtures or equipment placed by
Tenant in the Premises. If any such taxes for which Tenant is liable are levied
or assessed against Landlord or Landlord's property and if Landlord elects to
pay the same, or if the assessed value of Landlord's property is increased by
inclusion of personal property, furniture or fixtures or equipment placed by
Tenant in the Premises, and Landlord elects to pay the taxes based on such
increase, Tenant shall pay to Landlord upon demand that part of such taxes for
which Tenant is liable hereunder.
5.2 If at any time during the Term of this Lease, a tax or excise on rental, a
sales tax or other tax however described (except any inheritance, estate, gift,
income or excess profit tax imposed upon Landlord) is levied or assessed against
Landlord by any taxing authority having jurisdiction on account of Landlord's
interest in this Lease, or the rentals or other charges payable hereunder, as a
substitute in whole or in part for, or in addition to, the taxes described
elsewhere in this paragraph, Tenant shall pay to Landlord as additional rental
upon demand the amount of such tax or excise. In the event that any such tax or
excise is levied or assessed directly against Tenant, Tenant shall pay the same
at such times and in such manner as such taxing authority shall require.
6. PREPAID RENTAL AND SECURITY DEPOSIT. Landlord acknowledges receipt from
Tenant of the sum stated in Paragraph 1.N hereof to be applied to the first
accruing monthly installments of rental, Landlord further acknowledges receipt
from Tenant of a Security Deposit in the amount stated in Paragraph 1.O hereof
to be held by Landlord, without obligation for interest, as security for
Tenant's performance hereunder, it being expressly understood that the Security
Deposit is not an advance rental deposit or measure of Landlord's damages in
case of Tenant's default. Upon the occurrence of any default hereunder by
Tenant, Landlord may, without prejudice to any other remedy provided herein or
by law, use the Security Deposit to pay any arrears in rent and any other
damage, injury, expense (including legal expenses) or liability caused by such
default. If any or all of such Security Deposit is so used, Tenant agrees
promptly following demand by Landlord to restore such Security Deposit. If
Tenant is not then in default hereunder, any remaining balance of such Security
Deposit shall be returned by Landlord to Tenant upon termination of this Lease
less the cost of restoring the Premises to its original condition, normal wear
and tear excluded. If Landlord sells or transfers the Premises, or a substantial
part thereof, Landlord shall have the right to transfer such Security Deposit to
the transferee, and Landlord shall be thereupon released from all liability for
return of such Security Deposit, and Tenant shall look solely to such transferee
for the return and thereof.
7. ACCEPTANCE OF PREMISES. Taking possession of the Premises by Tenant shall be
conclusive evidence that Tenant: (a) accepts the Premises as suitable for the
purposes for which they are leased; (b) accepts the Building and every part and
appurtenance thereof as being in a good and satisfactory condition; and (c)
waives any defects (other than latent defects in equipment servicing or directly
affecting the occupancy of the Premises, except such equipment which is
installed by Tenant or by others at Tenant's direction or request) in the
Premises or the Building, except for the completion of those items, if any, on
Landlord's punch list. By taking possession of the Premises, Tenant, to the full
extent permitted by law, waives any and all warranties, express or implied,
currently existing or hereinafter created, relating to the condition of the
Premises, including, without limitation, any warranty of suitability or fitness
for a particular purpose. Landlord shall not be liable, except for gross
negligence or willful misconduct, to Tenant or any of its agents, employees,
licensees, servants, or invitees for any injury or damage to person or property
due to the condition or design of or any defect in the Project or its mechanical
system and equipment which may exist or occur, and Tenant, for itself and its
agents, employees, licensees, servants, and invitees, expressly assumes all
risks of injury or damage to person or property, either proximate or remote,
resulting from the condition of the Premises or the Project.
8. USE OF PREMISES. The Premises shall be used and occupied only for the
Permitted Use stated In Paragraph 1.P hereof and not otherwise. Notwithstanding
the foregoing. without Landlord's prior written consent, Tenant shall not
receive, store or otherwise handle any product, material or merchandise which is
explosive, or highly inflammable or hazardous. Tenant will conduct its business
and control its agents in such a manner that such use of the Premises will not
create any nuisance or interfere with, annoy or disturb other tenants of the
Project, if any there are. Tenant shall, at its own expense, obtain any and all
governmental licenses and permits necessary for its use.
9. REPAIR AND MAINTENANCE.
9.1 Landlord shall, at it sole lost and expense, maintain and make necessary
repairs of damage to the roof, foundation, and the structural soundness of the
exterior walls (excluding all windows, window glass, plate glass, and all
doors). Subject to the provisions of Paragraph 4 of the Lease, Landlord shall
further maintain the Common Areas. Tenant shall give immediate written notice to
Landlord of the need for maintenance, repairs or corrections. Landlord shall not
be required to make any improvements, replacements or repairs of any kind or
character to the Premises except as expressly set forth in this section. In
addition to the provisions of Paragraph 4 above, it is expressly understood that
Tenant shall pay for any damage to the roof, foundation or to the structural
soundness of exterior walls, which is caused by the act of Tenant, or of
Tenant's employees, agents or invitees, or which is caused by Tenant's default
hereunder.
9.2 Tenant shall, at its own risk and expense, maintain all other parts of the
Premises in good repair and condition (including all necessary replacements),
including, but not limited to, all fixtures installed by Tenant, walls,
carpeting and other floor covering, plumbing, windows, window glass, plate
glass, doors, heating, ventilation and air conditioning systems (the "HVAC
Systems"), fire protection sprinkler system, downspouts, dock bumpers and other
electrical,
mechanical, and electromotive installation, equipment, and fixtures and also
including trash removal, all utility repairs in ducts, conduits, pipes and
wiring, and any sewer stoppage located in, under, and above the Premises. Tenant
shall take good care of all leasehold improvements and its fixtures, and suffer
no waste. Tenant shall be responsible for all pest control and extermination.
Should Tenant neglect to keep and maintain the Premises, then Landlord shall
have the right, but not the obligation, to have the work done and any reasonable
costs therefor shall be charged to Tenant as additional rental and shall become
payable by Tenant with the payment of the rental next due and shall bear
interest thereon at the maximum rate allowable from the date of demand until
paid. At the termination of this Lease, Tenant shall deliver the Premises "broom
clean" in the same good order and condition as existed at the Commencement Date
ordinary wear and tear excepted.
Throughout the Term of the Lease, Tenant shall contract with a qualified and
properly insured contractor to service and maintain the HVAC Systems on a
regularly scheduled basis, but not less than once every three (3) months. Such
service shall include, but not be limited to, cleaning of the coil and condenser
units on each unit; checking the electrical connections, the oil and refrigerant
for leaks, the safety device, the blower belt for wear, tension and alignment,
the expansion valve, coil temperature, and condensate drain; and maintaining the
lubrication and addition of Freon. Tenant shall secure, at its sole cost and
expense, and shall provide Landlord with a copy of the service contract,
providing for the maintenance as described in above, within sixty (60) days
following the Commencement Date of this Lease, and thereafter, Tenant shall
renew such service contract to Landlord prior to expiration of the then existing
service contract. Landlord acknowledges that Tenant may use its maintenance
staff to perform the services required herein, provided that a verifiable record
of such service is kept by Tenant.
9.3 Tenant agrees it shall not locate or install or cause to be located or
installed in the Common Area any bike racks, newspaper holder stands, vending
machines of any kind, mailboxes, telephone booths, mobile homes, fences, or any
other device of a similar nature which would impede or obstruct the Common Area.
Tenant further agrees to keep said sidewalk and service area swept and free from
trash, rubbish, garbage and other refuse, and additionally to maintain in a neat
and clean condition that area to the rear of the Premises designated as the
garbage or refuse collection area for the use of Tenant.
10. ALTERATIONS, ADDITIONS, AND IMPROVEMENTS.
10.1 Tenant shall not create any openings in the roof or exterior walls, or
make any alterations, additions, or improvements to the Premises or install any
structures or equipment on the roof of the Building or any portion of the Common
Area without the prior written consent of Landlord. Tenant may, however, but at
its own cost and expense and in a good and workmanlike manner, make such
alterations of a nonstructural nature to the Premises provided (i) Tenant
complies with all applicable governmental laws, ordinances and regulations, (ii)
such alterations do not affect the mechanical or the structural integrity of the
Building, alter the character or the storefront of the Building, or adversely
affect the utility systems, and (iii) the cost of any such alterations does not
exceed $10,000.00. Tenant expressly agrees to indemnify landlord for any and all
damages resulting from or caused by Tenant penetrating the roof or exterior
walls of the Premises. Tenant shall have the right to erect or install shelves,
bins and machinery and clean rooms, provided that
Tenant complies with all applicable governmental laws, ordinances, and
regulations. Tenant shall have the right to remove at the termination of this
Lease, such items so installed by Tenant, provided Tenant is not then in
default; however, Tenant shall, prior to the termination of this Lease, repair
any damage caused by such removal and, if requested by Landlord, offer Landlord
(prior to such removal) sufficient security to insure Landlord that the proper
repairs will be made.
All alterations, additions or improvements made by Tenant (including, without
limitation, HVAC Systems, offices and improvements in and pertaining to such
offices, partitions, floor coverings, etc.), together with such other property
as Tenant leaves in or on the Premises at the termination of this Lease, shall
become the property of Landlord at the termination of this Lease; however,
Tenant shall promptly remove, if Landlord so elects, any or all alterations,
additions, and improvements specified by Landlord provided Landlord notifies
Tenant in writing that such improvements will require future removal at the time
of Landlord's approval of such alterations and improvements, and any other
property placed in the Premises by Tenant, and Tenant shall repair any damage
caused by such removal. The provisions of this paragraph shall survive the
expiration or earlier termination of this Lease.
10.3 Landlord retains the exclusive right to make additions, changes or
improvements, whether structural or otherwise, in and about the Building, or any
part thereof, and for such purposes to enter upon the Premises, and, during the
continuance of any of said work, to temporarily close doors, entryways, public
space and corridors in the Building, to interrupt or temporarily suspend
Building services and facilities, and to change the arrangement and location of
entrances or passageways, doors and doorways, corridors, elevators, stairs,
toilets, or other public parts of the Building, all without abatement of rent or
affecting any of Tenant's obligations hereunder, so long as the Premises are
reasonably accessible and that Tenant is not deprived of substantial use and
enjoyment of the Premises.
11. SIGNS. Tenant shall not, without Landlord's prior written consent, which
consent shall not be unreasonably withheld, (a) install, alter or replace any
exterior lighting, decorations, paintings, awnings, canopies or the like, or (b)
erect, install, alter or replace any signs, window or door lettering, placards,
decorations or advertising media of any type which can be viewed from the
exterior of the Premises. All signs, lettering, placards, decorations and
advertising media shall conform in all respects to the sign criteria established
by Landlord for the Project from time to time in the exercise of its sole
discretion, and shall be subject to the prior written approval of Landlord as to
construction, method of attachment, size, shape, height, lighting, color and
general appearance. Tenant shall be solely responsible for all costs associated
with the installation and maintenance of such signs. All signs are subject to
applicable laws and deed restrictions and shall conform to any national, local
or municipal ordinance or regulation. All signs shall be kept in good condition
and in proper operating order at all times. At Landlord's option and request,
Tenant shall remove all signs at the termination of this Lease, and shall repair
any damage and close any holes caused by such removal, with such repairs to be
made in good workmanlike manner. Tenant shall not erect any signs on the roof or
paint or otherwise deface the exterior walls of the Building. Notwithstanding
anything contained herein to the contrary, Tenant may install, at it sole cost
and expense, such building mounted signage and monument signage to be in
reasonable accordance with the specifications as described in the attached
Exhibit "E". as may be modified upon the reasonable consent of Landlord, and
provided such signage shall conform to any national, local or municipal
ordinance or regulation.
12. INSURANCE.
12.1 Tenant shall not permit the Premises to be used in any way which would, in
the opinion of Landlord, be extra hazardous (on account of fire or otherwise) or
in any way increase the cost of or render void any insurance coverage in place
with respect to the Building or any contents in the Building belonging to other
tenants in the Building. Tenant warrants to Landlord that the Permitted Use as
defined in Paragraph 1.P herein accurately reflects Tenant's original intended
use of the Premises, and that the minimum insurance coverage shall be obtained
by Tenant and in force as of the Commencement Date. If, at any time during the
Term of this Lease, the State Board of Insurance or other insurance authority,
or any insurer disallows any of Landlord's sprinkler credits or imposes an
additional penalty or surcharge in Landlord's sprinkler credits or imposes an
additional penalty or surcharge in Landlord's insurance premiums because of
Tenant's original or subsequent placement or use of storage racks or bins,
method of storage or nature of Tenant's inventory or any other act of Tenant,
Tenant agrees to pay as additional rental the increase in Landlord's insurance
premiums. If an increase in the fire and extended coverage premium paid by
Landlord for the Building is caused by Tenant's use or occupancy of the
Premises, or if Tenant wrongfully vacates the Premises and causes an increase,
then Tenant shall pay as additional rental the amount of such increase to
Landlord.
12.2 Landlord shall maintain fire and extended coverage insurance on the
Building and the Premises in such amounts as Landlord's mortgagees shall
require. Payments for losses thereunder shall be made solely to Landlord or the
mortgagees of Landlord as their respective interests shall appear. Tenant shall
maintain at its expense, in an amount equal to full replacement cost, fire and
extended coverage insurance, issued by and binding upon a company approved by
Landlord, on all of its personal property, including removable trade fixtures,
located within the Premises. Tenant shall provide Landlord with current
certificates of insurance evidencing Tenant's compliance with this Subsection
12.2 and Subsection 12.3, and Tenant shall obtain the agreement of Tenant's
insurers to notify Landlord of any change in coverage or that a policy is due to
expire at least thirty (30) days prior to such expiration.
12.3 Tenant shall maintain, at its expense, a policy or policies of commercial
general liability insurance with respect to the respective activities of each in
the Building with the premiums thereon fully paid on or before the due date,
issued by and binding upon an insurance company approved by Landlord, and
providing minimum protection of not less than $1,000,000 combined single limit
coverage of bodily injury, property damage or combination thereof. Tenant's
liability insurance shall name Landlord as an additional insured. Landlord shall
not be required to maintain insurance against thefts within the Premises,
Building or Project.
12.4 Except as otherwise provided herein, any insurance which may be carried by
Landlord or Tenant against any loss or damage to the Building and other
improvements situated on the Project or in the Premises shall be for the sole
benefit of the party carrying such insurance and under its sole control.
13. WAIVER OF SUBROGATION. Notwithstanding any provision in this Lease to the
contrary, Landlord and Tenant each hereby waives any and all rights of recovery,
claim, action, or cause of action, against the other, its agents, officers, or
employees, for any loss or damage that may occur to the Premises, or any
improvements thereto, or the Building of which the Premises are a part, or any
improvements thereto, or any personal property of such party therein, by reason
of fire, the elements, or any other cause which is or would be insured against
under the terms of the property insurance policies carried or required to be
carried under the terms of this Lease by the respective parties hereto,
regardless of cause or origin, including negligence of the other party hereto,
its agents, officers, or employees, and Landlord and Tenant each covenants that
no insurer shall hold any right of subrogation against such other party (and all
such insurance policies shall be amended or endorsed to reflect such waiver of
subrogation). This waiver of subrogation provision shall be effective to the
full extent, but only to the extent, that it does not impair the effectiveness
of insurance policies of Landlord and Tenant.
14. LANDLORD'S RIGHT OF ENTRY.
14.1 Landlord and its authorized agents shall have the right to enter the
Premises during normal working hours for the following purposes: (a) inspecting
the general condition and state of repair of the Premises, (b) making of repairs
required or authorized herein, (c) showing the Premises to any current or
prospective purchaser, tenant, mortgagee or any other party, (d) or for any
other reasonable purpose. During the final 180-day period of the Term of this
Lease, Landlord and its authorized agents shall have the right to erect on or
about the Premises a customary sign advertising the property for lease or for
sale. Furthermore, in the event of any emergency (defined to be any situation in
which Landlord reasonably perceives imminent danger or injury to person and/or
damage or loss of property), Landlord and its authorized agents shall have the
right to enter the Premises at any time without notice.
14.2 In any circumstance where Landlord is permitted to enter upon the
Premises, whether for the purpose of curing any default of Tenant, repairing
damage resulting from fire or other casualty or an eminent domain taking or is
otherwise permitted hereunder or by law to go upon the Premises, no such entry
shall constitute an eviction or disturbance of Tenant's use and possession of
the Premises or a breach by Landlord of any of Landlord's obligations hereunder
or render Landlord liable for damages for loss of business or otherwise or
entitle Tenant to be relieved from any of Tenant's obligations hereunder or
grant Tenant any right of setoff or recoupment or other remedy; and in
connection with any such entry incident to performance of repairs, replacements,
maintenance or construction; all of the aforesaid provisions shall be applicable
notwithstanding that Landlord may elect to take building materials in, to or
upon the Premises that may be required or utilized in connection with-such entry
by Landlord.
15. UTILITY SERVICES.
15.1 Landlord shall provide, at the beginning of this Lease, tile normal and
customary utility connections into the Premises. Tenant shall pay the cost of
all initial utility connection charges and all utility usage charges for
utilities that are separately metered with respect to the Premises, including,
but not limited to, all charges for telephone, gas, water and electricity used
on the Premises. Tenant shall also pay for replacement of all electric light
lamps, bulbs or tubes.
Landlord shall have the right at any time and from time to time during the Term
of this Lease to install equipment within the Premises for the purpose of
measuring Tenant's electrical usage therein.
15.2 No interruption or malfunction of any of such services shall constitute
an eviction or disturbance of Tenant's use and possession of the Premises or the
Building or a breach by Landlord of any of Landlord's obligations hereunder or
render Landlord liable for damages or entitle Tenant to be relieved from any of
Tenant's obligations hereunder (including the obligation to pay rental) or grant
Tenant any right of setoff or recoupment. In the event of any such interruption,
however, Landlord shall use reasonable diligence during normal business hours to
restore such service or cause same to be restored in any circumstances in which
such restoration is within the reasonable control of Landlord and the
interruption was not caused in whole or in part by Tenant's fault.
Notwithstanding the foregoing, if Tenant is not in default under this Lease and
Tenant shall be without electricity or water to the Premises and such
interruption in service is directly caused by Landlord's gross negligence or
willful misconduct, then in such event Tenant shall be entitled to a rental
abatement for each day that service is interrupted. Tenant expressly agrees to
notify any utility service requesting or requiring such notice of Tenants
intention to vacate the Premises. This notice requirement shall be in addition
to any other notice requirement specified herein.
16. ASSIGNMENT AND SUBLEASING. Tenant may not, without the prior written
consent of the Landlord, which consent shall not unreasonably withheld or
delayed, assign this Lease (or permit any assignment of this Lease by operation
of law) or sublet the Premises or any portion thereof or mortgage, pledge or
hypothecate its leasehold interest or grant any license within the Premises, and
any attempt to do any of the foregoing without the prior written consent of
Landlord shall be void and no effect. In any case where Landlord consents to an
assignment, sublease, mortgage, pledge or hypothecation of the leasehold, the
undersigned Tenant will nevertheless remain directly and primarily liable for
the performance of all covenants, duties and obligations of Tenant and Landlord
shall be permitted to enforce the provisions of this Lease against the
undersigned Tenant and/or any assignee, subtenant or other transferee without
demand upon or proceeding in any way against any other person The acceptance of
an assignment or subletting of the Premises by any assignee or subtenant shall
be construed as a promise on the part of such assignee or subtenant to be bound
by and perform all of the terms, conditions and covenants by which Tenant herein
is bound. No such assignment or subletting shall be construed to constitute a
novation or to waive the requirement for obtaining consent to any subsequent
assignment or subletting. In the event of default by Tenant after this Lease has
been assigned or while the Premises are sublet, Landlord, in addition to any
other remedies provided herein (or provided by law), may at Landlord's option,
collect directly from such assignee or subtenant all rents becoming due to
Tenant under such assignment or subletting, and Landlord may apply such rent
against any sums due to Landlord by Tenant hereunder. No direct collection by
Landlord from any such assignee or subtenant shall release Tenant from Tenant's
primary responsibility under the Lease (as aforesaid) and from the further
performance of Tenant's obligations hereunder. If Landlord consents to any
subletting or assignment by Tenant as hereinabove provided, and subsequently any
rental or other sums received by Tenant under any such sublease are in excess of
the rent and other sums payable by Tenant under this Lease, or any additional
consideration is paid to Tenant by the assignee under any such assignment, then
Landlord may, at its sole option, declare such excess rental under any sublease
or such additional consideration for an assignment (after deducting the
reasonable expenses incurred by Tenant of such sublease) to be due and payable
by Tenant to Landlord as additional rent hereunder. Landlord shall have the
right to transfer, assign, mortgage, convey and sublease all or any part of the
Premises and this Lease, and nothing contained in this Lease shall be construed
as a restriction upon Landlord's right to do any of the foregoing. If Landlord
transfers this Lease, either specifically or by virtue of a transfer of all or
any part of the Premises, then Landlord shall thereby be released from all
obligations arising hereunder after such transfer, and Tenant agrees to look
solely to such assignee for performance of such obligations.
17. FIRE AND CASUALTY DAMAGE.
17.1 Tenant shall immediately give notice to Landlord (the "Casualty Notice")
if the Building or the Premises are damaged or destroyed.
17.2 If the Premises or any portion of the Building shall be totally damaged or
destroyed by an insured peril and in Landlord's estimation, rebuilding or
repairs cannot be completed within one hundred eighty (180) days after
Landlord's receipt of the Casualty Notice, then either Landlord or Tenant
(provided Tenant or its employees, agents or invitees did not cause such damage)
may terminate this Lease by delivering to the other written notice thereof
within twenty (20) days after Landlord's receipt of the Casualty Notice, in
which case, the rent shall be abated during the unexpired portion of this Lease,
effective upon the date Landlord received the Casualty Notice. Time is of the
essence with respect to the delivery of such notices.
17.3 If this Lease is not terminated as provided under Paragraph 17.2, then
Landlord shall repair and reconstruct the Premises and/or the Building to
substantially the same condition in which they existed 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 and other improvements or
personal property which may have been installed by Tenant or is required to be
covered by Tenant's insurance pursuant to Paragraph 12 of this Lease.
17.4 If the Premises are untenantable, in whole or in part, during the period
beginning on the date of Landlord's receipt of the Casualty Notice and ending on
the date of substantial completion of Landlord's repair or restoration work (the
"Repair Period"), then the rent for such period shall be reduced to such extent
as may be fair and reasonable under the circumstances and the Term shall be
extended by the number of days in the Repair Period and this Lease shall
continue in full force and effect. Any insurance which may be carried by
Landlord or Tenant against loss or damage to the Building or to the Premises
shall be for the sole benefit of the party carrying such insurance under its
control, and it is understood that Landlord shall in no event be obligated to
carry insurance on Tenant's contents.
18. HOLD HARMLESS. Landlord shall not be liable to Tenant or Tenant's
employees, agents or invitees or to any other person whomsoever, for any injury
to person or damage to property on or about the Building and/or Premises caused
by the negligence or misconduct of Tenant, its employees, invitees, licensees or
agents and Tenant agrees to defend and indemnify Landlord and hold Landlord
harmless from any loss, expense or claims arising out of any such
damage or injury, including but not limited to, court costs and reasonable
attorneys' fees. Landlord shall not be liable or responsible for any injury or
damage which may be caused by the Building or the Premises becoming out of
repair unless caused by Landlord's gross negligence or willful misconduct. The
provisions of this paragraph shall survive the expiration or earlier termination
of this Lease.
19. CONDEMNATION.
19.1 If, during the Term of this Lease or any extension or renewal thereof,
all or substantially all of the Premises should be taken for any public or
quasi-public use under any governmental law, ordinance or regulation or by right
of eminent domain, or should be sold to the condemning authority under threat of
condemnation (the "Taking"), this Lease shall terminate and the rent shall be
abated during the unexpired term of this Lease, effective as of the date of such
Taking.
19.2 If less than substantially all of the Premises shall be subject to the
Taking, this Lease shall not terminate but Landlord may, at Landlord's sole
option and at its sole cost and expense, repair or modify the Building and the
Premises and the rent payable hereunder during the unexpired portion of the Term
shall be adjusted to such extent as may be fair and reasonable under the
circumstances. In the event that (a) Landlord chooses not to make such repairs
or modifications or (b) any such repairs or modifications cannot, within ninety
(90) days, render the Premises reasonably tenantable or suitable for Tenant's
Permitted Use, this Lease shall terminate, the rent shall be abated for the
unexpired term of this Lease and all rights and obligations relating to the
unexpired term of this Lease shall cease. Tenant shall have no claim to any
portion of the condemnation award. Notwithstanding anything contained herein to
the contrary, Tenant shall be entitled to make a separate claim for damages
suffered by Tenant on account of a taking of personal property, moving expenses,
severance expenses and/or business interruption expenses.
20. HOLDING OVER. If Tenant should remain in possession of the Premises after
the expiration of the Term of this Lease. without the execution by Landlord and
Tenant of a new lease or an extension of this Lease, then Tenant shall be deemed
to be occupying the Premises as a tenant-at-sufferance, subject to all the
covenants and obligations of this Lease and at a daily rental of one hundred and
twenty five percent (125%) of the per day rental provided for the last month of
the Term of this Lease, computed on the basis of a thirty (30) day month. The
inclusion of the preceding sentence shall not be construed as Landlord's consent
for Tenant to hold over. If any property not belonging to Landlord remains at
the Premises after the expiration of the Term of this Lease, Tenant hereby
authorizes Landlord to make such disposition of such property as Landlord may
desire without liability for compensation or damages to Tenant in the event that
such property is the property of Tenant; and in the event that such property is
the property of someone other than Tenant. Tenant agrees to indemnify and hold
Landlord harmless from all suits, actions, liability, loss, damages and expenses
in connection with or incident to any removal, exercise or dominion over and/or
disposition of such property by Landlord.
21. DEFAULTS.
21.1 Each of the following acts or omissions of Tenant or occurrences shall
constitute an "Event of Default":
(a) Failure or refusal by Tenant to timely pay rental or other payments
hereunder.
(b) Failure to perform or observe any covenant or condition of this Lease by
Tenant to be performed or observed, other than the payment of rental or other
payments hereunder, and such failure shall continue for a period of thirty (30)
days following written notice to Tenant of such failure.
(c) Abandonment or vacating of the Premises or any significant portion.
(d) The filing or execution or occurrence of any one of the following: (i) a
petition in bankruptcy or other insolvency proceeding by or against Tenant, (ii)
petition or answer seeking relief under any provision of the Bankruptcy Act,
(iii) an assignment for the benefit of creditors or composition, (iv) a petition
or other proceeding by or against Tenant for the appointment of a trustee,
receiver or liquidator of Tenant or any of Tenant's property, or (v) a
proceeding by any governmental authority for the dissolution or liquidation of
Tenant.
21.2 This Lease and the Term and estate hereby granted and the demise hereby
made are subject to the limitation that if and whenever any Event of Default
shall occur, Landlord may, at Landlord's option, in addition to all other rights
and remedies given hereunder or by law or equity, do any one (1) or more of the
following:
(a) Terminate this Lease, in which event Tenant shall immediately surrender
possession of the Premises to landlord.
(b) Enter upon and take possession of the Premises and expel or remove Tenant
and any other occupant therefrom, with or without having terminated the Lease.
(c) Alter locks and other security devices at the Premises.
21.3 Exercise by Landlord of any one (1) or more remedies hereunder granted or
otherwise available shall not be deemed to be an acceptance of surrender of the
Premises by Tenant, whether by agreement or by operation of law, it being
understood that such surrender can be effected only by the written agreement of
Landlord and Tenant. No such alteration of security devices and no removal or
other exercise of dominion by Landlord over the property of Tenant or others at
the Premises shall be deemed unauthorized or constitute a conversion, Tenant
hereby consenting, after any Event of Default, to the aforesaid exercise of
dominion over Tenant's property within the Building. All claims for damages by
reason of such re-entry and/or possession and/or alteration of locks or other
security devices are hereby waived, as are all claims for damages by reason of
any distress warrant, forcible detainer proceedings, sequestration proceedings
or other legal process. Tenant agrees that any re-entry by Landlord may be
pursuant to judgment obtained in forcible detainer proceedings or other legal
proceedings or without the necessity for any legal proceedings, as Landlord may
elect, and Landlord shall not be liable in trespass or otherwise.
21.4 In the event that Landlord elects to terminate this Lease by reason of an
Event of Default, then, notwithstanding such termination, Tenant shall be liable
for and shall pay to Landlord the sum of all rental and other indebtedness
accrued to the date of such termination, plus, as damages, an amount equal to
the then present value of the rental reserved hereunder for the remaining
portion of the Term of this Lease (had such Term not been terminated by Landlord
prior to the expiration of the Term of this Lease), less the then present value
of the fair rental value of the Premises for such period, the undersigned
parties hereby stipulating that such fair rental value shall in no event be
deemed to exceed the then present value of the rental reserved for such period.
In the event that Landlord elects to terminate the Lease by reason of an Event
of Default, in lieu of exercising the rights of Landlord under the preceding
paragraph of this Xxxxxxxxx 00.0, Xxxxxxxx may instead hold Tenant liable for
all rental and other indebtedness accrued to the date of such termination, plus
such rental and other indebtedness as would otherwise have been required to be
paid by Tenant to Landlord during the period following termination of the Term
of this Lease measured from the date of such termination by Landlord until the
expiration of the Term of this Lease (had Landlord not elected to terminate the
Lease on account of such Event of Default) diminished by any net sums thereafter
received by Landlord through reletting the Premises during said period (after
deducting expenses incurred by Landlord as provided in Paragraph 21.6 hereof).
Actions to collect amounts due by Tenant provided for in this paragraph of this
Paragraph 21.4 may be brought from time to time by Landlord during the aforesaid
period, on one (1) or more occasions, without the necessity of Landlord's
waiting until the expiration of such period, and in no event shall Tenant be
entitled to any excess of rental (or rental plus other sums) obtained by
reletting over and above the rental provided for in this Lease.
21.5 In the event that Landlord elects to repossess the Premises without
terminating this Lease, then Tenant shall be liable for and shall pay to
Landlord all rental and other indebtedness accrued to the date of such
repossession, plus rental required to be paid by Tenant to Landlord during the
remainder of the Term of this Lease until the expiration of the Term of this
Lease, diminished by any net sums thereafter received by Landlord through
reletting the Premises during said period (after deducting expenses incurred by
Landlord as provided in Paragraph 21.6 hereof). In no event shall Tenant be
entitled to any excess of any rental obtained by reletting over and above the
rental herein reserved. Actions to collect amounts due by Tenant as provided in
this Paragraph 21.5 may be brought from time to time, on one (1) or more
occasions, without the necessity of Landlord's waiting until the expiration of
the Term of this Lease.
21.6 In case of an Event of Default, Tenant shall also be liable for and shall
pay to Landlord in addition to any sum provided to be paid above: (i) broker's
fees incurred by Landlord in connection with reletting the whole or in part of
the Premises, (ii) the cost of removing and storing Tenant's or other occupant's
property, (iii) the cost of repairing, altering, remodeling or otherwise putting
the Premises into condition acceptable to a new tenant or tenants, and (iv) all
reasonable expenses incurred by Landlord in enforcing Landlord's remedies,
including reasonable attorneys' fees. Past due rental and other past due
payments shall bear interest from maturity at the highest lawful rate per annum
until paid.
21.7 In the event of termination or repossession of the Promises for an Event
of Default, Landlord shall not have any obligation to relet or attempt to relet
the Premises, or any portion thereof, or to collect rental after reletting; but
Landlord shall have the option to relet or attempt to relet; and in the event of
reletting, Landlord may relet the whole or any portion of the Premises for any
period to any tenant and fee any use and purpose.
21.8 If Tenant should fail to make any payment or cure any default hereunder
within the time herein permitted, Landlord, without being under any obligation
to do so and without thereby waiving such default, may make such payment and/or
remedy such other default for the account of Tenant (and enter the Premises for
such purpose), and thereupon Tenant shall be obligated to, and hereby agrees to,
pay Landlord, upon demand, all costs, expenses and disbursements (including
reasonable attorneys' fees) incurred by Landlord in taking such remedial action.
21.9 In the event of any default by Landlord, Tenant's exclusive remedy shall
be an action for damages (Tenant hereby waiving the benefit of any laws granting
Tenant a lien upon the property of Landlord and/or upon rental due Landlord),
but prior to any such action Tenant will give Landlord written notice specifying
such default with particularity, and Landlord shall thereupon have thirty (30)
days (plus such additional reasonable period as may be required in the exercise
by Landlord of due diligence) in which to cure any such default. Unless and
until Landlord fails to so cure any default. Tenant shall not have any remedy or
cause of action by reason thereof. All obligations of Landlord hereunder will be
construed as covenants, not conditions; and all such obligations will be binding
upon Landlord only during the period of Landlord's possession of the Building
and not thereafter. Under no circumstances whatsoever shall Landlord ever be
liable hereunder for consequential damages or special damages.
21.10 The liability of Landlord to Tenant for any default by Landlord under
the terms of this Lease shall be limited to the proceeds of sale on execution of
the interest of Landlord in the Building and in the Land, and neither Landlord,
nor any party comprising Landlord, shall be personally liable for any
deficiency. This clause shall not be deemed to limit or deny any remedies which
Tenant may have in the event of default by Landlord hereunder which do not
involve the personal liability of Landlord.
21.11 No waiver by the parties hereto of any default or breach of any term,
condition, or covenant of this Lease shall be deemed to be a waiver of any
subsequent default or breach of the same or of any other term condition, or
covenant contained herein. No receipt of money by Landlord from Tenant after the
expiration of the Term of this Lease, or after the service of any notice, or
after the commencement of any suit, or after final judgment for possession of
the Premises, shall reinstate, continue or extend the Term of this Lease or
affect any such notice, demand or suit or imply consent for any action for which
Landlord's consent is required.
21.12 The term "Landlord" shall mean only the owner, for the time being, of the
Building, and in the event of the transfer by such owner of its interest in the
Building, such owner shall thereupon be released and discharged from all
covenants and obligations of the Landlord thereafter accruing, but such
covenants and obligations shall be binding during the Term of this Lease upon
each new owner for the duration of such owner's ownership.
22. LANDLORD'S LIEN. (INTENTIONALLY OMITTED)
23. SUBORDINATION. Tenant accepts this Lease subject and subordinate to any
ground lease, mortgage, deed of trust or other lien presently existing or
hereafter placed upon the Premises or upon the Building or any part thereof, and
to any renewals, modifications, extensions and refinancing thereof, which might
now or hereafter constitute a lien upon the Building or any part thereof, and to
zoning ordinances and other building and fire ordinances and governmental
regulations relating to the use of the Premises; but Tenant agrees that any such
ground lessor, mortgagee and/or beneficiary of any deed of trust or other lien
("Landlord's Mortgagee") and/or Landlord shall have the right at any time to
subordinate such ground lease, mortgage, deed of trust or other lien to this
Lease on such terms and subject to such conditions as such Landlord's Mortgagee
may deem appropriate in its discretion. Upon demand, Tenant agrees to execute
such further instruments subordinating this Lease, as Landlord may request, and
such nondisturbance and attornment agreements, as any such Landlord's Mortgagee
shall request, in form reasonably satisfactory to Landlord's Mortgagee. Upon
foreclosure of the Building or upon acceptance of a deed in lieu of such
foreclosure, Tenant hereby agrees to attorn to the new owner of such property
after such foreclosure or acceptance of a deed in lieu of foreclosure, if so
requested by such new owner of the Building.
24. COMPLIANCE WITH LAWS, RULES AND REGULATIONS.
24.1 Tenant, at Tenant's own expense, (a) shall comply with all federal,
state, municipal, fire underwriting and other laws, ordinances, orders, rules
and regulations applicable to the Premises and the business conducted therein by
Tenant, (b) shall not engage in any activity which would cause Landlord's fire
and extended coverage insurance to be cancelled or the rate therefor to be
increased (or, at Landlord's option, Tenant shall pay any such increase to
Landlord immediately upon demand as additional rental in the event of such rate
increase by reason of such activity), (c) shall not commit, and shall cause
Tenant's agents, employees and invitees not to commit, any act which is a
nuisance or annoyance to Landlord or to other tenants, or which might, in the
exclusive judgment of Landlord, damage Landlord's goodwill or reputation, or
tend to injure or depreciate the Building, (d) shall not commit or permit waste
in the Premises or the Building, (e) shall not paint, erect or display any sign,
advertisement, placard or lettering which is visible in the corridors or lobby
of the Building or from the exterior of the Building without Landlord's prior
written approval, and (f) shall not occupy or use, or permit any portion of the
Premises to be occupied or used, for any business or purpose other than the
Permitted Use specified in Paragraph 1.P. hereof. If a controversy arises
concerning Tenant's compliance with any federal, state, municipal or other laws,
ordinances, orders, rules or regulations applicable to the Premises and the
business conducted therein by Tenant, Landlord may retain consultants of
recognized standing to investigate Tenant's compliance. If it is determined that
Tenant has not complied as required, Tenant shall reimburse Landlord on demand
for all consulting and other costs incurred by Landlord in such investigation.
24.2 Tenant, and Tenant's agents, employees and invitees shall comply fully
with all requirements of the rules and regulations of the Building which are
attached hereto as Exhibit "C" and made a part hereof. Landlord shall at all
times have the right to change such rules and regulations or to amend or
supplement them in such manner as may be deemed advisable for the
safety, care and cleanliness of the Premises and the Building and for
preservation of good order therein, all of which rules and regulations, changes
and amendments shall be forwarded to Tenant and shall be carried out and
observed by Tenant. Tenant shall further be responsible for the compliance with
such rules and regulations by the employees, agents and invitees of Tenant.
Landlord hereby reserves the right to designate, or otherwise control the
allocation of, parking spaces for the Premises. Notwithstanding any provisions
herein to the contrary, throughout the Lease Term, Landlord shall provide Tenant
with one (1) undesignated parking space for every two hundred seventy-five (275)
square feet of Rentable Area in the Premises, such parking spaces to include
those obtained by restriping the loading area as depicted in the attached
Exhibit "F". All changes and amendments in the rules and regulations of the
Building will be sent by Landlord to Tenant in writing and shall thereafter be
carried out and observed by Tenant. No outside storage or accumulation of
supplies, inventory, building materials or debris shall be permitted without
prior written consent from the Landlord. Tenant expressly agrees to comply with
and conform to all restrictive covenants of record or subsequently filed of
record affecting the Premises.
25. NOTICES. Any notice which may or shall be given under the terms of this
Lease shall be in writing and shall be either delivered by hand (including
commercially recognized messenger and express mail service) or sent by United
States Mail, registered or certified, return receipt requested, postage prepaid,
addressed to the parties herein at their respective addresses set out below, or
at such other addresses as either party may have theretofore specified by
written notice delivered in accordance herewith. Such address may be changed
from time to time by either party by giving notice as provided herein.
LANDLORD: Cardinal Xxxxxxx Tech Center. Inc.
C/x Xxxxxxx Associates Real Estate Counsel, Inc.
0000 0xx Xxxxxx, 2400 Financial Center
Xxxxxxx, Xxxxxxxxxx 00000
ATTN: Vice President of Asset Management
WITH COPIES TO: Xxxxxx & Xxxxx, LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
ATTN: Xx. Xxxxxxx X. Xxxxxx
TENANT: Macro-Vision Communications, Inc.
0000 X. Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx 00000
ATTN: __________________________
Notice shall be deemed given when delivered (if delivered by hand) or, whether
actually received or not, three (3) days from when postmarked (if sent by mail).
If the term "Tenant" as used in this Lease refers to more than one (1) person
and/or entity, any notice given as aforesaid to any one of such persons and/or
entities shall be deemed to have been duly given to Tenant.
26. FINANCIAL STATEMENTS. Tenant shall, upon request by Landlord (but not more
often than twice per annum), provide current certified by an officer of Tenant
financial statements to Landlord during the Term of this Lease. Such financial
statements shall be compiled using generally accepted accounting principles.
27. SPRINKLERS. If there now is or shall be installed in the Building a
sprinkler system, and such system or any of its components shall be damaged or
injured or not in proper working order by reason of any act or omission of
Tenant, Tenant's agents servants, employees, licensees or visitors. Tenant shall
forthwith restore the same to good working condition at Tenant's own expense;
and if the Board of Fire Underwriters or any bureau, department or official of
the state or local government require or recommend that any changes,
modifications, alterations or additional sprinkler heads or other equipment be
made or supplied by reason of Tenant's business, or the location of partitions,
trade fixtures or other contents of the Premises, or for any other reason, or if
any such changes, modifications alterations, additional sprinkler heads or other
equipment become necessary to prevent the imposition of a penalty or charge
against the full allowance for a sprinkler system in the fire insurance rate as
fixed by the Board of Fire Underwriters, or by any fire insurance company,
Tenant shall, at Tenant's expense, promptly make and supply such changes,
modifications, alterations, additional sprinkler heads or other equipment.
28. RELOCATION OF PREMISES. [INTENTIONALLY OMITTED)
29. COMMON AREA. The Common Area, as defined in Xxxxxxxxx 0.X hereof, shall be
subject to Landlord's sole management and control and shall be operated and
maintained in such manner as Landlord in Landlord's discretion shall determine.
Landlord reserves the right to change from time to time the dimensions and
location of the Common Areas and to place, construct or erect other improvements
on any part of the Land without the consent of Tenant. Tenant, and Tenant's
employees and invitees shall have the nonexclusive right to use the Common Area
as constituted from time to time, such use to be in common with Landlord, other
tenants of the Building and other persons entitled to use the same, and subject
to such reasonable and non-discriminatory rules and regulations governing use as
Landlord may from time to time prescribe. Tenant shall not solicit business or
display merchandise within the Common Area, or distribute handbills therein, or
take any action which would interfere with the rights of other persons to use
the Common Area. Landlord may temporarily close any part of the Common Area for
such periods of time as may be necessary to prevent the public from obtaining
prescriptive rights or to make repairs or alterations.
30. BROKERAGE. Tenant represents and warrants that it has dealt with no other
broker, agent or other person in connection with this transaction and that no
broker, agent or other person brought about this transaction, other than Broker
specified in Paragraph 1.R hereof, and Tenant agrees to indemnify and hold
Landlord harmless from and against any claims by any other broker, agent or
other 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 Paragraph 30 shall survive the termination of this Lease.
31. HAZARDOUS WASTE.
31.1 The term "Hazardous Substances," as used in this Lease shall mean
pollutants, contaminants, toxic or hazardous wastes, or any other substances,
the use and/or the removal of which is required or the use of which is
restricted, prohibited or penalized by any "Environmental Law," which term shall
mean any federal, state or local law, ordinance or other statute of a
governmental or quasi-governmental authority relating to pollution or protection
of the environment.
31.2 Other than in the ordinary course of Tenant's business or practice, Tenant
hereby agrees that (i) no activity will be conducted on the Premises that will
produce any Hazardous Substance; (ii) the Premises will not be used in any
manner for the storage of any Hazardous Substances; (iii) no portion of the
Premises will be used as a landfill or a dump; (iv) Tenant will not install any
underground tanks of any type; (v) Tenant will not allow any surface or
subsurface conditions to exist or come into existence that constitute, or with
the passage of time may constitute a public or private nuisance; and (vi) Tenant
will not permit any Hazardous Substances to be brought onto the Premises, and if
so brought thereon, then the same shall be immediately removed with proper
disposal, and all required cleanup procedures shall be diligently undertaken
pursuant to all Environmental Laws. To the extent used in the ordinary course of
Tenant's business or practice, Tenant shall manage, handle, and provide
safeguards for the Premises, the remainder of the Project, and all persons
coming to the Premises, or to the Project, in accordance with Environmental Law.
Tenant shall provide Landlord with a written list of any Hazardous Substances
handled by it in its ordinary course of business at the Premises as well as
properly completed Material Safety Data Sheets.
31.3 If Tenant so contaminates the Premises, then Tenant shall diligently
institute proper and thorough cleanup procedures at Tenant's sole cost, and
Tenant agrees to indemnify and hold Landlord harmless from all claims, demands,
actions, liabilities, costs, expenses, damages and obligations of any nature
arising from or as a result of Tenant's failure to comply with this Paragraph 31
and/or the presence of Hazardous Substances in or on the Premises created by
Tenant. The foregoing indemnification and the responsibilities of Tenant shall
survive the termination or expiration of this Lease.
31.4 Landlord or Landlord's representative shall have the right but not the
obligation to enter the Premises for the purpose of determining whether there
exists on the Premises any Hazardous Substances of ensuring compliance with all
Environmental Laws. The right granted to Landlord herein to perform inspections
shall not create a duty on Landlord's part to inspect the Premises, or liability
on the part of Landlord for Tenant's use, storage or disposal of Hazardous
Substances, it being understood that Tenant shall be solely responsible for all
liability is connection therewith.
32. THEFT OR BURGLARY. Landlord shall not be liable to Tenant for losses to
Tenant's property or personal injury caused by criminal acts or entry by
unauthorized persons into the Premises, the Building or the Common Area.
33. ESTOPPEL CERTIFICATE. Tenant agrees that Tenant shall from time to time
upon request by Landlord execute and deliver to Landlord a statement in
recordable forth certifying
(i) that the Lease is unmodified and in full force and effect (or, if there have
been modifications, that the same is in full force and effect as so modified),
(ii) the dates to which rental and other charges payable under this Lease have
been paid, and (iii) that Landlord is not in default hereunder (or, if Landlord
is in default, specifying the nature of such default). Tenant further agrees
that Tenant shall from time to time upon request by Landlord execute and deliver
to Landlord an instrument in recordable form acknowledging Tenant's receipt of
any notice of assignment of this Lease by Landlord.
34. BANKRUPTCY AND INSOLVENCY.
34.1 In the event that Tenant shall became a debtor in a case filed under
Chapter 7 of the Bankruptcy Code end Tenant's trustee or Tenant shall elect to
assume this Lease for the purpose of assigning the same or, otherwise, such
election and assignment may be made only if the provisions of paragraph 34.2 end
34.4 are satisfied as if the election to assume were made in a case filed under
Chapter 11 of the Bankruptcy Code. If Tenant or Tenant's trustee shall fail to
elect to assume this Lease within ninety (90) days after the filing of such
petition or such additional time as provided by the court within such 90-day
period, this Lease shall be deemed to have been rejected. Immediately thereupon,
Landlord shall be entitled to possession of the Premises without further
obligation to Tenant or Tenant's trustee and this Lease upon the election of
Landlord shall terminate, but Landlord's right to be compensated for damages
(including, without limitation, liquidated damages pursuant to any provision
hereof or the exercise of any other remedies in any such proceeding shall
survive, whether or not this Lease shall be terminated.
34.2 In the event that Tenant shall become a debtor in a case filed under
Chapter 1l of the Bankruptcy Code, or in a case filed under Chapter 7 of the
Bankruptcy Code which is transferred to Chapter 11, Tenant's trustee or Tenant,
as debtor-in-possession, must elect to assume this Lease in whole within one
hundred twenty (120) days from the date of the filing of the petition under
Chapter 11 or the transfer thereto or Tenant's trustee or the debtor-in-
possession shall be deemed to have rejected this Lease. In the event that
Tenant, Tenant's trustee or the debtor-in-possession has failed to perform all
of Tenant's obligations under this Lease within the time periods (excluding
grace periods) required for such performance, no election by Tenant's trustee or
the debtor-in-possession to assume this Lease, whether under Chapter 7 or
Chapter 11, shall be permitted or effective unless each of the following
conditions have been satisfied:
(a) Tenant's trustee or the debtor-in-possession has cured all defaults under
this lease, or has provided Landlord with Assurance (as defined below) that it
will cure all defaults susceptible of being cured by the payment of money within
ten (10) days from the date of such assumption and that it will cure all other
defaults under this Lease which are susceptible of being cured by the
performance of any act promptly after the date of such assumption.
(b) Tenant's trustee or the debtor-in-possession has compensated Landlord, or
has provided Landlord with Assurance that within ten (10) days from the date of
such assumption, it will compensate Landlord for any actual pecuniary loss
incurred by Landlord arising from the default of Tenant, Tenant's trustee, or
the debtor-in-possession as indicated in any statement of actual pecuniary loss
sent by Landlord to Tenant's trustee or the debtor-in-possession.
(c) Tenant's trustee or the debtor-in- possession has provided Landlord with
Assurance of the future performance of each of the obligations of Tenant,
Tenant's trustee or the debtor-in-possession under this Lease, and, Tenant's
trustee or the debtor-in-possession shall also (i) deposit with Landlord, as
security for the timely payment of rent hereunder, an amount equal to three (3)
installments of Base Rental (at the rate then payable) which shall be applied to
installments of Base Rental in the inverse order in which such installments
shall become due, provided all the terms and provisions of this Lease shall have
been complied with, and (ii) pay in advance to Landlord on the date each
installment of Base Rental is payable a pro rata share of Tenant's annual
obligations for additional rent and other sums pursuant to this Lease, such that
Landlord shall hold funds sufficient to satisfy all such obligations as they
become due. The obligations imposed upon Tenant's trustee or the debtor-in-
possession by this paragraph shall continue with respect to Tenant or any
assignee of this Lease after completion of bankruptcy proceedings.
(d) The assumption of this Lease will not breach or cause a default under any
provision of any other lease, mortgage, financing arrangement or other agreement
by which Landlord is bound.
For purposes of this Xxxxxxxxx 00, Xxxxxxxx and Tenant acknowledge that
"Assurance" shall mean no less than: Tenant's trustee or the debtor-in-
possession has and will continue to have sufficient unencumbered assets after
the payment of all secured obligations and administrative expenses to assure
Landlord that sufficient funds will be available to fulfill the obligations of
Tenant under this Lease and (x) there shall have been deposited with Landlord,
or the Bankruptcy Court shall have entered an order segregating, sufficient cash
payable to Landlord, and/or (y) Tenant's trustee or the debtor-in-possession
shall have granted a valid and perfected first lien and security interest in,
and/or mortgage on, the property of Tenant, Tenant's trustee or the debtor-in-
possession, acceptable as to value and kind to Landlord, to secure to Landlord
the obligation of Tenant, Tenant's trustee or the debtor-in-possession to cure
the defaults under this Lease, monetary and/or nonmonetary, within the time
periods set forth above.
34.3 In the event that this Lease is assumed in accordance with paragraph 34.2
and thereafter Tenant is liquidated or files or has filed against it a
subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code,
Landlord may, at its option, terminate this Lease and all rights of Tenant
hereunder by giving Tenant notice of election to so terminate within thirty (30)
days after the occurrence of any such event.
34.4 If Tenant's trustee or the debtor-in-possession has assumed this Lease
pursuant to the terms and provisions of paragraphs 34.1 or 34.2 for the purpose
of assigning (or elects to assign) this Lease, this Lease may be so assigned
only if the proposed assignee (the "Assignee") has provided adequate assurance
of future performance of all of the terms, covenants and conditions of this
Lease to be performed by Tenant. Landlord shall be entitled to receive all cash
proceeds of such assignment. As used herein "adequate assurance of future
performance" shall mean no less than that each of the following conditions has
been satisfied:
(a) The Assignee has furnished Landlord with either (i)(A) a copy of a credit
rating of Assignee which Landlord reasonably determines to be sufficient to
assure the future performance by Assignee of Tenant's obligations under this
Lease, and (B) a current financial statement of Assignee audited by a certified
public accountant indicating a net worth and working capital in amounts which
Landlord reasonably determines to be sufficient to assure the future performance
by Assignee of Tenant's obligations under this Lease, or (ii) a guarantee or
guarantees, in form and substance satisfactory to Landlord, from one or more
persons with a credit rating and net worth which Landlord reasonably determines
to be sufficient to assure the future performance by Assignee of Tenant's
obligations under this Lease.
(b) Landlord has obtained all consents or waivers from others required under
any lease, mortgage, financing arrangement or other agreement by which Landlord
is bound to permit Landlord to consent to such assignment.
(c) The proposed assignment will not release or impair any guaranty of the
obligations of Tenant (including the Assignee) under this Lease.
34.5 When, pursuant to the Bankruptcy Code, Tenant's trustee or the debtor-in-
possession shall be obligated to pay reasonable use and occupancy charges for
the use of the Premises, such charges shall not be less than the Base Rental,
additional rent and other sums payable by Tenant under this Lease.
34.6 Neither the whole nor any portion of Tenant's interest in this Lease or
its estate in the Premises shall pass to any Trustee, receiver, assignee for the
benefit creditors, or any other person or entity, by operation of law or
otherwise under the laws of any state having jurisdiction of the person or
property of Tenant unless Landlord shall have consented to such transfer. No
acceptance by Landlord of rent or any other payments from any such trustee,
receiver, assignee, person or other entity shall be deemed to constitute such
consent by Landlord nor shall it be deemed a waiver of Landlord's right to
terminate this Lease for any transfer of Tenant's interest under this Lease
without such consent.
34.7 Tenant expressly waives any right it might have to offset rentals or to
terminate this Lease upon the bankruptcy of Landlord.
35. CANCELLATION OPTION. Notwithstanding the provisions contained herein, If
Tenant is not then in default of any of the terms, conditions, or covenants of
the Lease, Tenant, but not any assignee, transferee or subtenant of Tenant, is
hereby granted a one-time option to cancel this Lease to be effective thirty six
(36) months following Commencement Date (the "Cancellation Date") under the
following terms and conditions.
(a) Tenant shall notify Landlord of its intention to cancel this Lease no
later than nine (9) months prior to the Cancellation Date;
(b) Tenant shall pay to Landlord (i) on or before the Cancellation Date
"Reimbursable Expenses" equal to the remaining portion of the rent which
represents the not present value as of cite date of such payment of the
amortized Tenant Improvement Allowance and Leasing
Commissions (collectively the "Landlord's Lease Expenses") at an 11% per annum
interest rate (e.g., every $10,000.00 of Landlord's Lease Expense would equal
$4,622.61 in Reimbursable Expenses); and (ii) on or before three (3) months
prior to the Cancellation Date, a 'Termination Payment" in the amount of
$59.337.50:
(c) Tenant's failure to notify Landlord or pay the Reimbursable Expenses and
the Termination Payment within the time period set forth above shall
automatically terminate the Cancellation Option; and
(d) Upon exercise by Tenant of its option to cancel within the period provided
above, and the payment by Tenant to Landlord of the Reimbursable Expenses and
Termination Payment within the period provided above, and effective as of the
Cancellation Date, this Lease shall terminate and the right of Tenant to lease,
use, and occupy the Premises shall terminate and Tenant shall vacate and
surrender possession to Landlord of the Premises. Except as otherwise expressly
provided in this paragraph. the cancellation of this lease shall be subject to
all of the provisions of this Lease relating to the termination of this Lease
and the respective rights, powers, duties, obligations, and liabilities of both
Landlord and Tenant.
36. MISCELLANEOUS,
36.1 QUIET ENJOYMENT. Tenant, upon payment of the rent and performance of the
covenants herein contained, shall quietly have, hold and enjoy the Premises
subject to the terms and provisions of this Lease.
36.7 LIENS BY TENANT. In no event shall Tenant have the right to create or
permit there to be established any lien or encumbrance of any nature against the
Premises or the Building for any improvement or improvements by Tenant, and
Tenant shall fully pay the cost of any improvement or improvements made or
contracted for by Tenant. Any mechanic's lien filed against the Premises or the
Building for work claimed to have been done, or materials claimed to have been
furnished to Tenant, shall be duly discharged by Tenant within ten (10) days
after the filing of the lien.
36.3 ATTORNEYS' FEES. If, on account of any breach or default by Tenant or
Landlord of its obligations to the other party under the terms, conditions and
covenants of this Lease, it shall become necessary for either party to employ an
attorney to enforce or defend any of its rights or remedies hereunder, then the
prevailing party shall be entitled to reasonable attorneys' fees, court costs
and related expenses incurred therein, whether or not legal suit is actually
brought.
36.4 FORCE MAJEURE. Whenever a period of time is herein described for the
taking of action by Landlord, Landlord shall not be liable or responsible for,
and there shall be excluded from the computation of such period of time, any
delays due to strikes, riots, acts of God, shortages of labor or materials, war,
governmental laws, regulations or restrictions; or any other cause not
reasonably within the control of Landlord and which Landlord, by the exercise of
due diligence, is unable, wholly or in pert, to prevent or overcome.
36.5 INDEPENDENT OBLIGATIONS OF TENANT. The obligation of Tenant to pay all
rental and other sums hereunder provided to be paid by Tenant and the obligation
of Tenant to perform Tenant's other covenants and duties hereunder constitute
independent, unconditional obligations to be performed at all times provided for
hereunder, save and except only when an abatement thereof or reduction therein
is hereinabove expressly provided for and not otherwise. Tenant waives and
relinquishes all rights which Tenant might have to claim any nature of lien
against or withhold, or deduct from or offset against any rental and other sums
provided hereunder to be paid Landlord by Tenant. Tenant waives and relinquishes
any right to assort, either as a claim or as a defense, that Landlord is bound
to perform or is liable for the nonperformance of any implied covenant or
implied duty of Landlord not expressly herein set forth.
36.6 TIME IS OF ESSENCE. In all instances where Tenant is required to pay any
sum or do any act at a particular indicated time or within an indicated period,
it is understood that time is of the essence,
36.7 RECORDATION: This Lease shall not be recorded by either party without the
consent of the other.
36.8 APPLICABLE LAW AND VENUE. All monetary obligations of Landlord and Tenant
(including, without limitation, any monetary obligation of Landlord or Tenant
for damages for any breach of the respective covenants, duties or obligations of
Landlord or Tenant hereunder) are performable in the county in which the
Building is located and in the county in which Landlord's principal business
office is located. The laws of the State in which the Building is located shall
govern the interpretation, validity, performance and enforcement of this Lease.
36.9 JOINT AND SEVERAL LIABILITY. If Tenant is composed of more than one (1)
entity, each entity comprising Tenant shall be jointly and "Severally liable for
the performance of the obligations of Tenant under this Lease, including
specifically, without limitation, the payment of rental and all other sums
payable hereunder.
36.10 SUBMISSION OF LEASE NOT AN OFFER. Submission of this Lease for
examination does not constitute an offer, right of first refusal, reservation
of, or option for, the Premises or any other premises in the Building. This
Lease shall become effective only upon execution and delivery by both Landlord
and Tenant.
36.11 AUTHORITY TO DO BUSINESS. Tenant warrants that Tenant is, and shall
remain throughout the Term of this Lease, authorized to do business and in good
standing in the State in which the Building is located. Tenant agrees, upon
request by Landlord, to furnish Landlord satisfactory evidence of Tenant's
authority for entering into this Lease.
36.12 RELATIONSHIP OR PARTIES. Nothing herein contained shall be deemed or
construed by the parties hereto, nor by any third party, as creating the
relationship of principal and agent, or of partnership or of joint venture
between the parties hereto, it being understood and agreed that neither the
method of the computation of rental, nor any other provision contained herein,
nor
any acts of the parties hereto, shall be deemed to create any relationship
between the parties hereto other than the relationship of landlord and tenant.
36.13 USE OF LANGUAGE. Words of any gender used in this Lease shall be held and
construed to include any other gender, and words in the singular shall be held
to include the plural, unless the context otherwise requires. The captions or
headings of paragraphs in this Lease are inserted for convenience only, and
shall not be considered in construing the provisions hereof, if any question of
intent should arise.
36.11 SUCCESSORS. The provisions of this Lease shall be binding upon and inure
to the benefit of the heirs, personal representatives, successors and assigns of
the parties, but this provision shall in no way alter the restriction herein in
connection with assignment, subletting and other transfer by Tenant. All rights,
powers, privileges, immunities and duties of Landlord under this Lease,
including, but not limited to, any notices required or permitted to be delivered
by Landlord to Tenant hereunder, may, at Landlord's option, be exercised or
performed by Landlord's attorney or agent.
36.15 SEVERABILITY. If any term or provision of this Lease shall, to any
extent, be held invalid or unenforceable by a final judgment of a court of
competent jurisdiction, the remainder of this Lease shall not be affected
thereby.
37. ENTIRE AGREEMENT. It is expressly agreed by Tenant, as a material
consideration for the execution of this Lease, that this Lease with the specific
references to written extrinsic documents, is the entire agreement of the
parties; that no prior representations, warranties, understandings,
stipulations, agreements or promises pertaining to this Lease or the Premises
shall be binding on Landlord unless such representations, warranties,
understandings, stipulations, agreements or promises are expressly stated in
this Lease or the documents incorporated herein. All exhibits, attachments,
annexed instruments and addenda referred to herein shall be considered a part
hereof for all purposes with the same force and effect as if copied at full
length herein. It is likewise agreed that this Lease may not be altered, waived,
amended or extended except by an instrument in writing, signed by both Landlord
and Tenant.
EXECUTED as of the day and year first above written.
LANDLORD: CARDINAL XXXXXXX TECH CENTER, INC., a Texas Corporation
By: /s/ Xxxxxxx XxXxxxxxx
------------------------------
Name: Xxxxxxx XxXxxxxxx
----------------------------
Title: Vice President
---------------------------
TENANT: MACRO-VISION COMMUNICATION, INC.
By: /s/ Xxxx-Xx Xxx
-------------------------------
Name: Xxxx-Xx Xxx
-----------------------------
Title: President
----------------------------
EXHIBIT "A"
PREMISES
EXHIBIT "B"
LEGAL DESCRIPTION
BUILDING 3:
Xxx 0. Xxxxx X, Xxxxxxx Xxxxxxxx Xxxx, an addition to the City of Richardson,
Texas according to the plat recorded in Volume 97028, Page 1850 of the Deed
Records of Dallas County, Texas.
EXHIBIT "C"
BUILDING RULES AND REGULATIONS
1. Landlord agrees to furnish Tenant two keys without charge. Additional keys
will be furnished at a fee. Tenant agrees to deposit a reasonable amount fixed
by Landlord from time to time for each key issued by Landlord to Tenant for
Tenant's offices, and upon termination of this Lease, Tenant agrees to return
all keys to Landlord. Landlord shall refund any amount deposited upon return of
all keys.
2. Tenant shall not alter any lock or install any new or additional locks or
any bolts or windows of the Premises, without the prior written consent of
Landlord.
3. No Tenant shall at any time occupy any part of the Premises as sleeping or
lodging quarters.
4. Landlord will not be responsible for lost or stolen personal property,
equipment, money or jewelry from the Premises, the Building or the Common Area
regardless of whether such loss occurs when area is locked against entry or not.
5. No birds, fowl, or animals shall be brought into or kept in or about the
Premises.
6. The water closets and other water fixtures shall not be used for any purpose
other than those for which they were constructed, and any damage resulting to
them from misuse, or the defacing or injury of any part of the Premises shall be
borne by the person who shall occasion it. No person shall waste water by
interfering with the faucets or otherwise.
7. No person shall disturb the other occupants of the Building by the use of
any musical instruments, the making of unseemly noises, causing objectionable
odors, or other unreasonable use.
8. Any action or condition not meeting the highest standard of dignity and good
taste should be reported directly to Landlord.
9. No signs, advertisements or notices shall be allowed in any form on windows
or doors inside or outside the Premises or any other part of the Building, and
no signs except in uniform location and uniform styles fixed by Landlord shall
be permitted on exterior identification pylons, if any, in the public corridors
or on corridor doors or entrances to the Premises. No draperies, shutters, or
other window covering shall be installed on exterior windows or walls or windows
and doors facing public corridors without Landlord's written approval. Landlord
shall have the right to require installation and continued use of uniform window
covering for such windows.
10. Tenant shall not place, install or operate in the Premises or in any other
part of the Building any engine, stove or xxxx thereon or therein, or place or
use in or about the Premises any explosives, gasoline, kerosene, oil, acids,
caustics or any (other than with a microwave oven)
other inflammable, explosive or hazardous materials, fluid or substance without
the prior written consent of Landlord.
11. Employees of Landlord shall not receive or carry messages for or to any
tenant or other person, nor contract with or render free or paid services to any
tenant or tenant's agents, employees or invitees. In the event any of Landlord's
employees perform any such services, such employee shall be deemed to be the
agent of any such tenant regardless of whether or how payment is arranged for
services, and Landlord is expressly relieved from and all liability in
connection with any such services and any associated injury or damage to person
or property.
12. None of the entries, sidewalks, vestibules, elevator shafts, passages,
doorways or hallways and similar areas shall be blocked or obstructed, or any
rubbish, litter, trash or material of any nature placed, emptied or thrown into
such areas, or such areas be used at any time for any purpose except for ingress
or egress by Tenant, Tenant's agents, employees or invitees to and from the
Premises and for going from one to another part of the Building.
13. Tenant and Tenant's employees, agents and invitees shall observe and comply
with the driving and parking signs and markers on the premises or parking
facilities surrounding the Building.
14. Landlord shall have the right to prescribe the weight and position of
safes, computers and other heavy equipment which shall, in all cases, in order
to distribute their weight, stand on supporting devices approved by Landlord.
All damage done to the Premises or to the Building by placing in or taking out
any property of Tenant, or done by Tenants property while in the Premises or the
Building, shall be repaired immediately at the sole expense of Tenant.
EXHIBIT "D"
WORK LETTER
1. TENANT IMPROVEMENTS: Reference herein to "Tenant Improvements" shall include
all work to be done in the Premises pursuant to the Plans and Specifications
(defined in paragraph 2 below) including, without limitation, any modification
to the Building or shell improvements and any structural modifications to the
Building.
PLANS & SPECIFICATIONS: Within four (4) weeks after execution of the Lease by
both Landlord and Tenant, Tenant shall submit to Landlord for Landlord's
approval the final working drawings and specifications for the Tenant
Improvements (the "Plans and Specifications") as prepared by Tenant's architect.
The Plans and Specifications must be consistent with Landlord's standard
specifications (herein referred to as the "Standards" or "Building Standards")
for tenant improvements for the Building, as the same may be changed from time
to time by Landlord and are subject to Landlord's final approval. Within five
(5) business days following the date of Landlord's receipt of the Plans and
Specifications, Landlord will advise Tenant of Landlord's approval or
disapproval of the Plans and Specifications. If Landlord disapproves any aspect
of the Plans and Specifications, Landlord shall so notify Tenant and specify the
reasons for such disapproval. Landlord may also specify how any such disapproved
item may be made reasonably acceptable to Landlord, and Tenant shall, within
five (5) business days thereafter, deliver to Landlord revised Plans and
Specifications incorporating the revisions required by Landlord.
Tenant shall have the sole responsibility for compliance of the Plans and
Specifications with all applicable statutes, codes, ordinances and other
regulations, and the approval of the Plans and Specifications by Landlord shall
not constitute an indication, representation or certification by Landlord that
such Plans and Specifications are in compliance with said statutes, codes,
ordinances and other regulations.
3. LANDLORD'S APPROVALS: Tenant shall secure Landlord's prior written approval
of the Tenant Improvements including architect, architect's designs, Plans and
Specifications, subcontractors, permits, licenses and contracts to be used.
Landlord's approval shall not be required for change orders provided that the
Tenant Improvements are constructed in substantial accordance with the Plans and
Specifications. All approvals by Landlord must be in writing.
4. SELECTION OF CONTRACTOR: Tenant shall enter into a construction contract
(the "Construction Contract") with FACS Facility Services, Inc. (the
"Contractor") for the construction of the Tenant Improvements. The Construction
Contract shall be approved by the Landlord. Except as hereinafter provided, the
Construction Contract shall provide that the Contractor shall obtain competitive
bids from a minimum of three (3) mutually acceptable subcontractors for each of
the principal portions of construction of the Tenant Improvements including
those who furnish materials or equipment fabricated to a special design. Unless
Landlord and Tenant shall mutually agree to the contrary, the subcontractor
which submitted the lowest bid shall be deemed to be the selected subcontractor.
Notwithstanding anything contained herein to the contrary, Contractor shall
perform with the Contractor's own personnel the
electrical portion of the construction of the Tenant Improvements. The cost of
such electrical work shall be the sum of the actual costs incurred for such work
plus a contractors fee equal to six percent (6%) of such cost.
5. CONSTRUCTION OF TENANT IMPROVEMENTS: Tenant shall be responsible for
construction of the Tenant Improvements by Contractor. Such construction shall
be in a good and workmanlike manner and in accordance with the Plans and
Specifications. Construction of the Tenant Improvements shall be deemed
substantially complete (subject to completion of punchlist items) upon receipt
by Landlord of the following:
(a) a certificate of Occupancy from the city and upon certification of such fact
by Tenant's architect;
(b) a certificate from Contractor certifying that the Tenant Improvements have
been completed in substantial accordance with the approved Plans and
Specifications;
(c) evidence reasonably satisfactory to Landlord that no mechanic's or materials
men's lien or other encumbrance has been filed and remains in effect against the
property;
(d) a final affidavit and lien release from Contractor and final lien releases
or waivers by all subcontractors, material men and other parties who have
supplied labor, material or services for the construction of the Tenant
improvements or who otherwise might be entitled to claim a contractual,
statutory or constitutional lien against the property;
(e) Tenant shall have delivered to Landlord a written statement, certified as
correct by Tenant, setting forth in reasonable detail the out-of-pocket
construction costs insured by Tenant with respect to Tenant Improvements
together with all proof, reasonably satisfactory to Landlord that such invoices
have been paid in full and such other information with respect to the
construction of the Tenant Improvements as landlord may reasonably require to
enable Landlord to substantiate the costs set forth in Tenant's written
statement; and
(f) Tenant shall have delivered to Landlord a Certificate of Substantial
Completion (as such term is defined in American Institute of Architects Document
B141, Owner Architect Agreement) with respect to the Tenant Improvements, issued
by the architect, which shall include the architect's certification that the
Tenant Improvements have been substantially completed in accordance with the
approved Plans and Specifications.
6. TENANT IMPROVEMENT ALLOWANCE:
(a) Landlord hereby grants to Tenant a "Tenant Improvement Allowance" in an
amount not to exceed $20.00 per square foot of Rentable Area in the Premises as
provided in Paragraph 1.G of the Lease for construction of the Tenant
Improvements
(b) The Tenant Improvement Allowance shall be used only for:
(i) Payment of the cost of preparing the space plan and the Tenant
Improvement Plans, including mechanical, electrical, plumbing and structural
drawings and of all other aspects necessary to complete the Tenant Improvement
Plans, not to exceed $1.76 per square foot of Rentable Area in the Premises;
(ii) Payment of the cost of plan check, permit and license fees relating to
construction of the Tenant Improvements; and
(iii) Payment for the cost of construction of the Tenant Improvements,
including, but not limited to, the following:
(A) Installation within the Premises of all partitioning, doors, floor
coverings, ceilings, wall coverings and painting, millwork and similar items;
(B) All electrical wiring, lighting fixtures, outlets and switches, and other
electrical work to be installed with the Premises;
(C) The furnishing and installation of all duct work, terminal boxes,
diffusers and accessories required for the completion of the hearing,
ventilation and air conditioning systems within the Premises;
(D) Any additional Tenant requirements including, but not limited to, odor
control, special healing, ventilation and air conditioning, noise or vibration
control or other special systems;
(E) All fire and life safety control systems including, without limitation,
fire walls, halon, fire alarms, piping, wiring and accessories, installed within
the Premises;
(F) All plumbing, fixtures, pipes and accessories to be installed within the
Premises;
(G) Testing and inspection costs; and
(H) Contractors' fees, subject to Landlord's reasonable approval, including
any fees based on general conditions.
(c) In the event that the cost of installing the Tenant Improvements are less
than the Tenant Improvement Allowance, and provided Tenant is not then in
default of any of the terns, conditions, or covenants of the Lease, Tenant, but
not any assignee, transferee or subtenant of Tenant, may elect to use such
unused portion of the Tenant Improvement Allowance for construction of future
tenant improvements (the "Future Improvements") within the Premises upon the
same terms and conditions as provided in the Workletter with the following
exceptions: (i) Construction of the Future Improvements shall be substantially
complete on or before forty-eight (48) months following Commencement Date and
(ii) request for payment from the unused Tenant Improvement Allowance shall be
made no later than thirty (30) days following substantial completion of the
Future Improvements.
If Tenant (i) fails to substantially complete such Future Improvements within
said period, (ii) fails to request payment for the construction of such Future
Improvements from the unused Tenant Finish Allowance or (iii) becomes in default
of this Lease, then such unused Tenant Finish Allowance shall not be refunded to
Tenant or available to Tenant as a credit against any obligations of Tenant
under the Lease but instead shall be the sole property of Landlord.
7. PAYMENT FOR THE TENANT IMPROVEMENTS: Tenant shall be solely responsible for
all related construction costs and expense, subject to reimbursement from the
Tenant Finish Allowance as herein provided. On or before the 20th day of each
month, Tenant shall notify Landlord in writing that a portion of the Tenant
Improvements have been substantially completed in accordance with the Plans &
Specifications, submitting Contractor's request for payment. Landlord shall
inspect the construction and upon verification of substantial completion,
Landlord shall, within (20) business days from receipt of Tenant's notice, issue
payment jointly to Tenant and Contractor for ninety percent (90%) of the actual
cost of the construction completed during that period. Tenant shall provide
Landlord with evidence of payment to and lien releases from the Contractor
and/or any subcontractors. Final payment of the ten percent (10%) of accrued
retainage shall not be made until thirty (30) days after substantial completion
of the Tenant Improvements. Such payments shall be charged against the Tenant
Improvement Allowance and Landlord's total obligation for payment shall not
exceed that amount
As conditioned precedent to each payment, Tenant must satisfy the following
requirements:
(a) There shall be no event of default which has occurred and is continuing
beyond any applicable notice and grace period pursuant to the terms of this
Lease.
(b) Tenant shall procure and deliver to Tenant the lien releases and/or waivers
of mechanic's liens and receipted bills showing that of the date of the
immediately preceding payment all amounts due to parties who furnish materials
or services or performed labor of any kind in connection with the Tenant
Improvements, have been paid in full.
8. WAIVER AND INDEMNIFICATION:
(a) Tenant hereby waives all claims against Landlord for damages to goods,
wares and merchandise in, and upon, or about the Premises from any incident
arising at any time during the period in which Tenant's agents are installing
signs, fixtures, or any other equipment and/or constructing any improvements in
the Demised Premises. Tenant will also hold Landlord exempt and harmless from
any damage or injury to any person arising from the construction of the Tenant
Improvements by Tenant.
(b) In the event of dispute between Tenant and Contractor and/or any
subcontractors regarding any issue related to construction of the Tenant
Improvements, including, but not limited to, completion dates, quality of work,
warranties, etc., Landlord shall not be liable for and Tenant will indemnify and
save harmless Landlord of and from any such claim or dispute.
9. INSURANCE: Prior to commencement of construction of the Tenant
Improvements, Tenant shall provide Landlord with a copy of the Contractor and/or
subcontractors policy of
worker's compensation insurance, in accordance with statutory law, and liability
insurance with a limit of no less than $2,000,000 and such other policies of
insurance as Landlord may require in its reasonable discretion. Such insurance
policy or policies shall name Landlord and Tenant as additional insureds.
10. AS BUILT PLANS AND SPECIFICATIONS: Upon completion of the Tenant
Improvements, Tenant shall deliver to Landlord an "as built" set of the Plans
and Specifications.
EXHIBIT "E"
SIGN SPECIFICATIONS
BUILDING MOUNTED
. To be located on the top band of the building
. Size not to exceed 3' high by 12' wide
. Font style, logo, and color to be consistent with that used in Tenant's
business operation
. Letters may be backlit with white neon
MONUMENT SIGNAGE
EXHIBIT "F"
PARING AREA
