OFFICE LEASE
between
BROOKWOOD MERIDIAN PARTNERS LTD.
LANDLORD
and
INTERNATIONAL COSMETICS MARKETING CO., A FLORIDA CORPORATION
d/b/a XXXXXXX XXXXXXX WORLDWIDE
TENANT
Date:_____________
TABLE OF CONTENTS
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Page
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ARTICLE 1. BASIC LEASE INFORMATION......................................................................1
1.1 Basic Lease Information................................................................1
1.2 Definitions............................................................................3
1.3 Exhibits...............................................................................3
ARTICLE 2. AGREEMENT....................................................................................5
ARTICLE 3. TERM, DELIVERY, AND ACCEPTANCE OF PREMISES...................................................5
3.1 Delivery of Possession.................................................................5
3.2 Early Entry............................................................................5
ARTICLE 4. MONTHLY RENT.................................................................................5
ARTICLE 5. .............................................................................................6
5.1 General................................................................................6
5.2 Definitions............................................................................6
5.3 Share of Taxes.........................................................................8
5.4 Final Determinations..................................................................10
5.5 Operating Expenses....................................................................10
5.6 Disputes..............................................................................11
5.7 Audit.................................................................................12
5.8 Survival After Termination............................................................12
ARTICLE 6. INSURANCE...................................................................................12
6.1 Landlord's Insurance..................................................................12
6.2 Tenant's Insurance....................................................................13
6.3 Forms of Policies.....................................................................13
6.4 Waiver of Subrogation.................................................................14
6.5 Adequacy of Coverage..................................................................14
ARTICLE 8. REQUIREMENTS OF LAW; FIRE INSURANCE.........................................................14
8.1 General...............................................................................14
8.2 Hazardous Materials...................................................................14
8.3 Certain Insurance Risks...............................................................15
ARTICLE 9. ASSIGNMENT AND SUBLETTING..................................................................16
9.1 General...............................................................................16
9.2 Submission of Information.............................................................16
9.3 Payments to Landlord..................................................................16
9.4 Prohibited Transfers..................................................................17
9.5 Landlord's Options....................................................................17
9.6 Permitted Transfer....................................................................17
ARTICLE 10. RULES AND REGULATIONS......................................................................17
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ARTICLE 11. COMMON AREAS...............................................................................18
ARTICLE 12. LANDLORD'S SERVICES........................................................................18
12.1 Landlord's Repair and Maintenance.....................................................18
12.2 Landlord's Other Services.............................................................19
12.3 Tenant's Costs........................................................................19
12.4 Limitation on Liability...............................................................19
ARTICLE 13. TENANT'S CARE OF THE PREMISES..............................................................20
ARTICLE 14. ALTERATIONS................................................................................20
14.1 General...............................................................................20
14.2 Free-Standing Partitions..............................................................21
14.3 Removal...............................................................................21
ARTICLE 15. MECHANICS' LIENS...........................................................................21
ARTICLE 16. END OF TERM................................................................................22
ARTICLE 17. EMINENT DOMAIN.............................................................................22
ARTICLE 18. DAMAGE AND DESTRUCTION.....................................................................23
ARTICLE 19. SUBORDINATION.............................................................................24
19.1 General...............................................................................24
19.2 Attornment............................................................................24
ARTICLE 20. ENTRY BY LANDLORD..........................................................................25
ARTICLE 21. INDEMNIFICATION, WAIVER, AND RELEASE.......................................................26
21.1 Indemnification.......................................................................26
21.2 Waiver and Release....................................................................26
ARTICLE 22. SECURITY DEPOSIT...........................................................................26
ARTICLE 23. QUIET ENJOYMENT............................................................................27
ARTICLE 24. EFFECT OF SALE.............................................................................27
ARTICLE 25. DEFAULT....................................................................................27
25.1 Event of Default......................................................................27
25.2 Landlord's Remedies...................................................................28
25.3 Certain Damages.......................................................................29
25.4 Continuing Liability After Termination................................................30
25.5 Cumulative Remedies...................................................................30
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25.6 Waiver of Redemption..................................................................31
ARTICLE 26. PARKING.....................................................................................31
ARTICLE 27. MISCELLANEOUS..............................................................................32
27.1 No Offer..............................................................................32
27.2 Joint and Several Liability...........................................................32
27.3 No Construction Against Drafting Party................................................32
27.4 Time of the Essence...................................................................32
27.5 No Recordation........................................................................32
27.6 No Waiver.............................................................................32
27.7 Limitation on Recourse................................................................32
27.8 Estoppel Certificates.................................................................32
27.9 Attorneys' Fees.......................................................................33
27.10 No Merger.............................................................................33
27.11 Holding Over..........................................................................33
27.12 Notices...............................................................................33
27.13 Severability..........................................................................34
27.14 Written Amendment Required............................................................34
27.15 Entire Agreement......................................................................34
27.16 Captions..............................................................................34
27.17 Notice of Landlord's Default..........................................................34
27.18 Authority.............................................................................34
27.19 Brokers...............................................................................34
27.20 Governing Law.........................................................................34
27.21 Late Payments.........................................................................34
27.22 No Easements for Air or Light.........................................................35
27.23 Tax Credits...........................................................................35
27.24 Relocation of the Premises............................................................35
27.25 Financial Reports.....................................................................35
27.27 Binding Effect........................................................................35
27.28 Terms.................................................................................35
27.29 Definition of Landlord................................................................35
27.30 Rights Cumulative.....................................................................36
27.31 Change of Building Name...............................................................36
27.32 Force Majeure.........................................................................36
27.33 Third Party Beneficiary...............................................................36
27.34 No Joint Venture......................................................................36
27.35 Remedies..............................................................................36
27.36 Waiver of Jury Trial..................................................................36
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OFFICE LEASE
THIS OFFICE LEASE ("Lease") is entered into by Landlord and Tenant as
described in the following basic lease information on the date that is set forth
for reference only in the following basic lease information. Landlord and Tenant
agree:
ARTICLE 1. BASIC LEASE INFORMATION
1.1 Basic Lease Information. In addition to the terms that are defined
elsewhere in this Lease, these terms are used in this Lease:
(a) LEASE DATE: NOVEMBER 1, 1999.
(b) LANDLORD: BROOKWOOD MERIDIAN PARTNERS LTD.
(c) LANDLORD'S ADDRESS:
XXXXXXXX XXXX COMPANY, AS AGENT
0000 XXXXX XXXXXXX XXXXXXX XXXXX 000
XXXX XXXXX, XXXXXXX 00000
with a copy at the same time to: N/A
(d) TENANT: INTERNATIONAL COSMETICS MARKETING CO., A
FLORIDA CORPORATION d/b/a XXXXXXX XXXXXXX
WORLDWIDE
(e) TENANT'S ADDRESS: The
Premises as defined in this
Lease with a copy at the
same time to:
0000 XXXX XX XXXXXXXX XXXX., XXXXX 000
XXXX XXXXX, XXXXXXX 00000
(f) BUILDING ADDRESS: 0000 XXXX XX XXXXXXXX XXXX.
XXXX XXXXX, XXXXXXX 00000
(g) PREMISES: The premises shown on Exhibit A to this
Lease, known as Suite 205
(h) RENTABLE AREA OF THE PREMISES:. For purposes of this
Lease the rentable square footage of the Premises
shall be deemed to be approximately 4,251 square
feet.
(i) RENTABLE AREA OF THE BUILDING: For purposes of this
lease the rentable square footage of the building
shall be deemed to be 51,006 square feet.
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(j) TERM: 60 months beginning on the Commencement Date
and expiring on the Expiration Date.
(k) COMMENCEMENT DATE: November 1, 1999.
(l) EXPIRATION DATE: October 31, 2004.
(m) SECURITY DEPOSIT: $ 50,000.00. To be paid $10,000.00
at lease execution and $40,000 prior to occupancy.
(n) YEARLY & MONTHLY RENT:
Amount Per Year Amount Per Month Commencing On Ending On
--------------- ---------------- ------------- ---------
Year 1 - $63,765.00 $5,313.75 NOVEMBER 1, 1999 OCTOBER 31, 2000
Year 2 - $63,765.00 $5,313.75 NOVEMBER 1, 2000 OCTOBER 31, 2001
Year 3 - $66,315.60 $5,526.30 NOVEMBER 1, 2001 OCTOBER 31, 2002
Year 4 - $68,968.22 $5,747.35 NOVEMBER 1, 2002 OCTOBER 31, 2003
Year 5 - $71,726.95 $5,977.25 NOVEMBER 1, 2003 OCTOBER 31, 2004
*plus sales tax and additional rent.
FIRST MONTH'S AND LAST MONTH'S RENT SHALL BE DUE UPON EXECUTION OF THE LEASE
(o) BASE YEAR: 1999
(p) TENANT'S SHARE: 8.33% percent (determined by dividing
the Rentable Area of the Premises by the Rentable
Area of the Building, multiplying the resulting
quotient by 100, and rounding to the 3rd decimal
place).
(q) PARKING SPACES: 15 spaces according to Article 26.
(r) PARKING CHARGE: $N/A per parking space per month,
subject to adjustments specified in Article 26.
(s) BROKER: XXXXXXXX XXXX COMPANY, XXXXXX X. XXXXX, AGENT
(to be paid by landlord)
(t) BUSINESS HOURS: N/A a.m. to _______ p.m. on
Monday through Friday.
N/A a.m. to _______ p.m. on
Saturday.
(u) USE: TENANT SHALL USE THE PREMISES AS OFFICE SPACE
ONLY IN PURSUIT OF THEIR BUSINESS.
(v) SIGNAGE: TENANT SHALL HAVE THE RIGHT
TO HAVE ITS NAME ON THE TENANT
DIRECTORY AND ENTRYWAY TO ITS
PREMISES AT TENANT'S EXPENSE.
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(w) OPERATING EXPENSE STOP: BUDGETED 1999 OPERATING
EXPENSES ARE PROJECTED AT $4.36/S.F. AND ARE INCLUDED
IN THE ANNUAL BASE RENT QUOTED ABOVE. TENANT SHALL BE
RESPONSIBLE FOR ANY INCREASE IN THE OPERATING
EXPENSES OVER AND ABOVE THIS AMOUNT. TENANT SHALL
ALSO BE RESPONSIBLE FOR ELECTRICITY AND JANITORIAL
SERVICE.
(x) TENANT IMPROVEMENTS: Landlord is not responsible to
perform any improvements to the premises. Tenant may
make improvements to the premises and/or lobby area
at their own expense and provided that Landlord has
approved in writing plans and specifications of said
improvements.
(y) GUARANTY: N/A
1.2 Definitions.
(a) ADDITIONAL RENT: Any amounts that this Lease requires
Tenant to pay in addition to Monthly Rent.
(b) BUILDING: The building located on the Land and of
which the Premises are a part.
(c) LAND: The land on which the Project is located and
which is described on Exhibit B. 4.
(d) PRIME RATE: The rate of interest from time to time
announced by The Wall Street Journal as the "prime
rate." If The Wall Street Journal or any reasonable
successor to it ceases to announce the prime rate,
the Prime Rate will be a comparable interest rate
designated by Landlord to replace the Prime Rate.
(e) PROJECT: The development consisting of the Land and
all improvements built on the Land, including without
limitation the Building, parking lot, parking
structure, if any, walkways, driveways, fences, and
landscaping.
(f) RENT: The Monthly Rent and Additional Rent.
(g) WORKLETTER: The workletter attached to this Lease as
Exhibit C (if any).
If any other provision of this Lease contradicts any definition of this Article
1, the other provision will prevail.
1.3 Exhibits. The following exhibits and addenda are attached to this
Lease and are made a part of this Lease:
EXHIBIT A - The Premises EXHIBIT B - Legal Description of the Land
EXHIBIT C - Intentionally Omitted EXHIBIT D - Rules and Regulations
EXHIBIT E - Commencement Date and Estoppel Certificate
EXHIBIT F - Intentionally Omitted
EXHIBIT G - Intentionally Omitted
EXHIBIT H - Intentionally Omitted
EXHIBIT I - Intentionally Omitted
EXHIBIT J - Florida Provisions
* * * [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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ARTICLE 2. AGREEMENT
In consideration for the Rent and other covenants and agreements made
by Tenant, Landlord leases the Premises to Tenant, and Tenant leases the
Premises from Landlord, according to this Lease. The duration of this Lease will
be the Term. The Term will commence on the Commencement Date and will expire on
the Expiration Date unless terminated earlier pursuant to the terms of this
Lease.
ARTICLE 3. TERM, DELIVERY, AND ACCEPTANCE OF PREMISES
3.1 Delivery of Possession. Landlord will be deemed to have delivered
possession of the Premises to Tenant on the Commencement Date, as it may be
adjusted pursuant to the Workletter. Landlord will construct or install in the
Premises the Improvements as defined in the Workletter to be constructed or
installed by Landlord according to the Workletter. Except as expressly set forth
in the Workletter, Landlord shall deliver to Tenant possession of the Premises
AS IS in its present condition on the Commencement Date. Tenant acknowledges
that neither Landlord nor its agents or employees have made any representations
or warranties as to the suitability or fitness of the Premises for the conduct
of Tenant's business or for any other purpose, nor has Landlord or its agents or
employees agreed to undertake any alterations or construct any Tenant
improvements to the Premises except as expressly provided in this Lease and the
Workletter. If for any reason Landlord cannot deliver possession of the Premises
to Tenant on the Commencement Date, this Lease will not be void or voidable, and
Landlord will not be liable to Tenant for any resultant loss or damage. Tenant
will execute and deliver to Landlord the Commencement Date and Estoppel
Certificate attached to this Lease as Exhibit E within 3 days of Landlord's
request.
3.2 Early Entry. If Tenant is permitted entry to the Premises prior to
the Commencement Date for the purpose of installing fixtures or any other
purpose permitted by Landlord, the early entry will be at Tenant's sole risk and
subject to all the terms and provisions of this Lease as though the Commencement
Date had occurred, except for the payment of Rent, which will commence on the
Commencement Date. Tenant, its agents, or employees will not interfere with or
delay Landlord's completion of construction of the improvements. Tenant hereby
agrees to indemnify Landlord against any injury, and loss or damage which may
occur to any person or to any of the Tenant's work or installations made in such
Premises, Building or Project, or to any personal property placed therein, the
same being at Tenant's sole risk, and, prior to any early entry by Tenant,
provide Landlord with proof of insurance coverages described in this Lease.
Landlord has the right to impose additional conditions on Tenant's early entry
that Landlord, in its reasonable discretion, deems appropriate and Landlord will
further have the right to require that Tenant execute an early entry agreement
containing those conditions prior to Tenant's early entry.
ARTICLE 4. MONTHLY RENT
Throughout the Term of this Lease, Tenant will pay Monthly Rent to
Landlord as rent for the Premises. Monthly Rent will be paid in advance on or
before the first day of each calendar month of the Term. If the Tenn commences
on a day other than the first day of a calendar month or ends on a day other
than the last day of a calendar month, then Monthly Rent will be appropriately
prorated by Landlord based on the actual number of calendar in such month. If
the Term commences on a day other than the first day of a calendar month, then
the prorated Monthly Rent for such month will be paid on or before the first day
of the Term. Monthly Rent will be paid to Landlord, without written notice or
demand, and without deduction or offset, in lawful money of the
4
United States of America at landlord's address, or to such other address as
Landlord may from time to time designate in writing.
ARTICLE 5. INCREASES IN TAXES AND OPERATING EXPENSES
5.1 General. During each calendar year of the original and any
additional term hereof (pro-rated for any period less than a year) Tenant shall
pay to Landlord as addition rent, "Tenant's Share of Taxes" (as hereinafter
defined) and "Tenant's Share of Operating Expenses" (as hereinafter defined) for
each such calendar year which is in excess of Tenant's Share of Taxes or
Tenant's Share of Operating Expenses (either or both, as the case may be) for
the Base Year as more fully described in this Article 5.
5.2 Definitions. As used in this Article 5, or elsewhere in this Lease,
the following terms shall be defined as hereinafter set forth:
(a) "Taxes" shall mean all real estate taxes and
assessments, general or special, ordinary or
extraordinary, foreseen or unforeseen, imposed upon
the Project, and any existing or future improvements
of whatever kind thereto or thereon. Taxes shall
include, without limitation, any assessment imposed
by any public or private entity by reason of the
Project being located in a special services district
or similar designation. If, due to a future change in
the method of taxation, any franchise, income, profit
or other tax, however designated, shall be levied or
imposed in substitution, in whole or in part, for (or
in lieu of) any tax which would otherwise be included
within the definition of Taxes, such other tax shall
be deemed to be included within Taxes as defined
herein.
(b) (1) "Operating Expenses" shall mean the actual
expenses paid or incurred by Landlord in the
operation, maintenance and management of the
Project (after deducting any reimbursement,
discount, credit, insurance proceeds,
reduction or other allowance received by
Landlord) and shall include, without
limitation: (A) service, repair, replacement
and other maintenance to the Building and
components thereof (excluding the leasehold
premises, said expenses other than HVAC
shall be borne separately by the Tenant) ;
(B) wages and salaries (and taxes and other
charges imposed upon employers with respect
to such wages and salaries) and fringe
benefits paid to persons employed by
Landlord for rendering service in the
operation, maintenance, and repair of the
Building and related facilities and
amenities; (C) costs of independent
contractors hired for the operation,
maintenance and repair of the Building and
related facilities and amenities; (D) costs
of electricity, steam, water, fuel, heating,
lighting, air conditioning, sewer and other
utilities chargeable to the operation and
maintenance of the Building; (but excluding
the interior of the leasehold premises - see
Article 12.3) (E) cost of insurance for and
relating to the Project, including fire and
extended coverage (or such greater coverages
as Landlord may elect to carry), elevator,
boiler, sprinkler leakage, water damage,
public liability and property damage, plate
glass, and rent protection, but excluding
any charge for increased premiums due to
acts or omissions of other occupants of the
Building because of extra risk
5
which are reimbursed to Landlord by such
other occupants (or if Landlord self insures
the Project or any part thereof, a sum in
lieu thereof which is not in excess of the
then prevailing rates for such insurance for
comparable projects; (F) costs of supplies;
(G) costs of window cleaning, security
services, landscaping, snow and ice removal
and painting; (H) sales or use taxes on
supplies and services; (1) consulting,
accounting fees, legal, tax appeal,
engineering and other professional fees and
expenses; (J) management fees, or if no
managing agent is employed by Landlord a sum
in lieu thereof which is not in excess of
the then prevailing rates for management
fees for comparable projects; (K)
alterations and improvements to the Project
which are not capital in nature made by
reason of any requirement of any insurance
underwriters or any federal, state, or local
statutes, regulations, ordinances, or any
other duly constituted public authorities
having jurisdiction over the Premises
(hereinafter Governmental Requirement); and
(L) without limiting any of the foregoing,
any other expense or charge which, in
accordance with sound accounting and
management principles generally accepted,
would be construed as an operating expense.
The term "Operating Expenses" shall not
include: (A) the cost of redecorating or
repairing, or special cleaning or other
services, not provided on a regular basis to
office tenants of the Building including but
not limited to the air conditioning and
heating unit within the leasehold premises;
(B) wages, salaries or fees paid to
executive personnel of Landlord; (C) the
cost of any replacement item which, by
standard accounting practice, should be
capitalized (except as other provided in
subsection (3) below; (D) any charge for
depreciation or interest paid or incurred by
Landlord; (E) any charge for Landlord's
income tax, excess profit taxes; franchise
taxes or similar taxes on Landlord's
business; (F) leasing commissions; (G) real
estate taxes; or (H) legal fees for the
negotiation or enforcement of leases. If
Landlord is not furnishing any particular
work or service (the cost of which, if
performed by Landlord, would constitute an
Operating Expense) to a tenant who has
undertaken to perform such work or service
in lieu of performance by Landlord,
Operating Expenses shall nevertheless be
deemed to include the amount Landlord would
reasonably have incurred if Landlord had in
fact performed the work or service at its
expense.
(2) Tenant's Expense Share is a fixed percentage
and does not vary with changing occupancy
levels of the Building. Operating Expenses
are computed for the Building as a whole.
Accordingly, in order to stabilize the
calculation of increase in Operating
Expenses on a square foot basis for the
Demised Premises, a further adjustment is to
be made as follows: In determining Operating
Expenses for any year, if the Building was
less than 95% occupied during such entire
year, or was not in operation during such
entire year, then Operating Expenses shall
be annualized by Landlord (taking into
account seasonal variations) and adjusted to
reflect the amount that such expenses would
normally be expected to have been, in the
reasonable estimate of Landlord, had the
Building been 95%
6
occupied and operational throughout such
year, except that in no event shall such
adjustment result in an amount less than the
actual Operating Expenses.
(3) In the event Landlord shall make a capital
expenditure for an "Essential Capital
Improvement", as hereinafter defined in this
subsection (3), during any year, the annual
amortization of such expenditure (determined
by dividing the amount of the expenditure by
the useful life of the improvement, as
determined by the Landlord), together with
interest at the greater of the Prime Rate
prevailing plus 2% or Landlord's actual
borrowing rate for such Essential Capital
Improvement, shall be deemed in Operating
Expenses for each year of such useful life.
As used herein, an "Essential Capital
Improvement" means any of the following:
(A) a labor saving device, energy saving
device or other installation,
improvement or replacement which
reduces Operating Expenses as
referred to above, whether or not
voluntary or required by
governmental mandate; or
(B) an installation, change,
improvement, addition, alteration or
removal of any architectural
barriers, whether or not the
foregoing are structural in nature,
made by reason of any Governmental
Requirements whether or not such
Governmental Requirements existed on
the date of execution of this Lease
if such Governmental Requirement is
or will be applicable generally to
similar office buildings; or
(C) an installation or improvement which
directly enhances the health or
safety of tenants in the Building
generally, whether or not voluntary
or required by governmental mandate
(as, for example, but without
limitation, for fire safety or
security).
5.3 Share of Taxes.
(a) Increase in Taxes. For and with respect to each
calendar year within which the term of this Lease
(and any renewal or extension thereof) falls, there
shall accrue, as additional rent, the amount, if any,
by which Tenant's Share of Taxes for such calendar
year (annualized for any partial year) exceeds the
Tenant's Share of Taxes for the Base Year. Such
additional rent shall be prorated on a per-diem basis
for any partial calendar year included within the
term. Such additional rent for any calendar year is
hereinafter referred to as an "Increase in Taxes",
and one-twelfth (1/12) of such amount is hereinafter
referred to as a "Monthly Tax Increase."
(b) Payment of Increase in Taxes. At Landlord's option,
each Increase in Taxes shall be paid with respect to
each calendar year in either or both of the following
manners:
(1) Within thirty (30) days after receipt from
Landlord of a Statement of Taxes (defined
below) containing the amount due from Tenant
on
7
account of the Increase in Taxes, but in any
event at least thirty (30) days prior to the
last date the tax in question is payable by
Landlord to the taxing authority with
discount; or
(2) At any time during the term of this Lease,
or any extension or renewal hereof, Landlord
may decide that in lieu of a one time
payment of the Increase in Taxes provided in
Subparagraph (5.3)(1) above, Landlord may
require Tenant to pay any Increase in Taxes
in accordance with Subparagraph (5.3)(d)
below.
(c) Statement of Tax Increases. On or before sixty (60)
days after Landlord receives any Statement of Taxes
due from the applicable governmental agency (or as
soon thereafter as practicable), Landlord shall
furnish to Tenant a "Statement of Taxes" setting
forth, in reasonable detail:
(1) The Amount of Taxes for the calendar Year
for which Taxes are payable to the taxing
authority;
(2) The Increase in Taxes for such calendar
Year;
(3) The amount, if any, previously paid by
Tenant to Landlord on account of any
Increase in Taxes for such calendar year;
(4) The amount due from Tenant on account of any
Increase in Taxes; and
(5) If applicable, the Monthly Tax Increase
payable during the calendar year.
(d) Payment of Increase in Taxes on a Monthly Basis. At
Landlord's option, payment of additional rent on
account of an increase in Taxes for any given
calendar year shall be made in advance as follows:
(1) On the first day of the first month
following either receipt by Tenant of the
Statement of Taxes or, if later, notice of
Landlord's election to have an Increase in
Taxes paid on a monthly basis, Tenant shall
pay to Landlord an amount equal to the
Monthly Tax Increase multiplied by the
number of months fully or partially elapsed
in the calendar year (including the month in
which the payment is made); and
(2) Commencing on the first day of the second
month following either receipt by Tenant of
the Statement of Taxes or, if later, notice
of Landlord's election, and continuing until
the receipt by Tenant of the next Statement
of Taxes, the minimum monthly installments
of rent due hereunder shall be increased by
an amount equal to the Monthly Tax Increase,
subject to the provisions set forth in
Subparagraph 5.3(e) below; and
(3) Any overpayment by Tenant of additional rent
due on account of the Increase in Taxes
shall be adjusted by a credit to Tenant
given
8
contemporaneously with the furnishings of
the next Statement of Taxes.
(e) Optional Billing for Taxes. At Landlord's option,
exercisable with respect to any one or more calendar
years during the term of this Lease, Landlord may
include, within the Statement of Taxes furnished to
Tenant pursuant to Subparagraphs 5.3(c) and 5.3(d)
above, Landlord's good faith estimate of Taxes for
the following calendar year, and the estimated annual
Increase in Taxes based thereon. In such case, the
"Monthly Tax Increase" as used in Subparagraph 5.3(d)
above, for the computation of Tenant's payments to
Landlord during the calendar year on account of the
Increase in Taxes payable to the taxing authority for
the following calendar year shall be equal to
one-twelfth (1/12) of the aforesaid estimated
Increase in Taxes.
5.4 Final Determinations. For purposes of Section 5.3 above, any
assessment upon which Tenant's Share of Taxes is based shall be deemed to be the
amount initially assessed until such time as an abatement, refund, rebate or
increase, if any (retroactive or otherwise), shall be finally determined to be
due, and upon such final determination, Landlord shall promptly notify Tenant of
the amount if any due to Tenant or Landlord, as the case may be, as a result of
the adjustment, and appropriate payment to Landlord or Tenant, as the case may
be, shall thereafter be promptly made. Landlord shall have no duty to Tenant to
contest, appeal or otherwise challenge any Taxes. In the event of any reduction
in Taxes by reason of legal or other action taken by Landlord, there shall be
added to and be deemed a part of the Taxes in question the amount of Landlord's
legal and other costs and expenses in obtaining the reduction (but not an amount
in excess of the tax savings).
5.5 Operating Expenses.
(a) Share of Operating Expenses. For and with respect to
each calendar year of the term of this Lease (and any
renewals or extensions thereof) there shall accrue,
as additional rent, the amount, if any, by which
Tenant's Share of Operating Expenses for such
calendar year exceeds Tenant's Share of Operating
Expenses for the Base Year. Such additional rent
shall be prorated on a per-diem basis for any partial
calendar year. Such additional rent for any calendar
year is hereinafter referred to as the "Operating
Expense Increase", and one-twelfth of such amount is
hereinafter referred to as the "Monthly Increase."
(b) Comparative Statements. Payments. On or before April
30 (or as soon thereafter as practicable) of each
calendar year during the term hereof, and any
renewals and extensions thereof, Landlord shall
furnish to Tenant a statement of Operating Expenses
prepared by Landlord setting forth, in reasonable
detail: (1) Operating Expenses for the preceding
calendar year, (2) the Operating Expense Increase for
the preceding calendar year, (3) the amount, if any,
paid by Tenant to Landlord during the preceding
calendar year on account of said Operating Expense
Increase, (4) the amount due by Tenant on account of
the Operating Expense Increase, and (5) the Monthly
Increase. Payment of the additional rent due on
account of the Operating Expense Increase for the
preceding calendar year shall be made by Tenant
within fifteen (15) days after receipt by Tenant of
such statement.
9
Tenant shall also make payments to Landlord, on
account of the Operating Expense Increase for the
then current calendar year, as follows:
(1) On the first day of the first month
following receipt by Tenant of the annual
statement, Tenant shall pay to Landlord an
amount equal to the Monthly Increase
multiplied by the number of months fully or
partially elapsed in the current calendar
year (including the month in which the
payment is made), less any payments which
may have been made for such elapsed months
pursuant to Subparagraph 5.5(c) below;
(2) Commencing on the first day of the second
month following receipt by Tenant of the
annual comparative statement, and continuing
until the receipt by Tenant of the next
annual statement, the minimum monthly
installments of rent due hereunder shall be
increased by an amount equal to the Monthly
Increase, subject to the provisions set
forth in Subparagraph 5.5(c) below. Any
overpayment by Tenant of additional rent due
on account of the Operating Expense Increase
shall be adjusted by a credit to Tenant
given contemporaneously with the furnishing
of the next comparative statement.
(c) Optional Billing for Operating Expenses. At
Landlord's option, exercisable with respect to any
one or more calendar years during the term of this
Lease, Landlord may include, within the comparative
statement furnished to Tenant pursuant to
Subparagraph 5.5(b) above, Landlord's good faith
estimate of Operating Expenses for the then current
calendar year, and the estimated annual Operating
Expense Increase based thereon. In such case, the
"Monthly Increase" as used in Subparagraph 5.5(b)
above for the computation of Tenant's payments on
account of the Operating Expense Increase for the
current year, shall be equal to one-twelfth of the
aforesaid estimated Operating Expense Increase.
5.6 Disputes. The information set forth on each Comparative Statement
of Operating Expenses and on each Statement of Taxes furnished to Tenant as
provided hereinabove shall be deemed approved by Tenant unless, within thirty
(30) days after submission to Tenant, Tenant shall notify Landlord that it
disputes the correctness thereof, specifying in detail the basis for such
assertion. Pending the resolution of any dispute, however, Tenant shall continue
to make payments in accordance with the information contained in the comparative
statement. Landlord agrees to promptly provide to Tenant, upon request, extracts
from Landlord's books and records which are relevant to any items in dispute.
5.7 Audit. In the event Tenant elects to audit Landlord's Comparative
Statement of Operating Expenses or Statement of Taxes in accordance with this
clause, such audit must be (i) conducted by an independent reputable mutually
agreeable accounting firm that is not being compensated by Tenant on a
contingency fee basis. and (ii) completed within sixty (60) days following
Tenant's notice disputing the correctness of the Comparative Statement of
Operating Expenses pursuant to Section 5.6 above. Furthermore, all of the
information obtained through the Tenant's audit with respect to financial
matters (including, without limitation, costs, expenses, income) and any other
matters pertaining to the Landlord and/or the Project as well as any compromise,
settlement, or adjustment reached between Landlord and Tenant relative to the
results of the audit shall be held in strict confidence by the Tenant and its
officers, agents, and
10
employees; and Tenant shall cause its auditor and any of its officers, agents,
and employees to be similarly bound. As a condition precedent to Tenant's
exercise of its right to audit, Tenant must deliver to Landlord a signed
confidentiality agreement from the auditor (in form acceptable to Landlord)
acknowledging that all of the results of such audit as well as any compromise,
settlement, or adjustment reached between Landlord and Tenant shall be held in
strict confidence and shall not be revealed in any manner to any person except
upon the prior written consent of the Landlord. Tenant understands and agrees
that this provision is of material importance to the Landlord and that any
violation of the terms of this provision shall result in immediate and
irreparable harm to the Landlord. Landlord shall have all rights allowed by law
or equity if Tenant, its officers, agents, or employees and/or the auditor
violate the terms of this provision, including, without limitation, the right to
terminate this Lease or the right to terminate Tenant's right to audit.
5.8 Survival After Termination. If upon termination of this Lease for
any cause, the amount of any additional rent due pursuant to Article 5 has not
yet been determined, an appropriate payment from Tenant to Landlord, or refund
from Landlord to Tenant, shall be made within thirty (30) days after Tenant's
receipt of such determination from Landlord.
ARTICLE 6. INSURANCE
6.1 Landlord's Insurance. At all times during the Term, Landlord will
carry and maintain:
(a) Fire and extended coverage insurance covering the
Project, its equipment, common area furnishings, and
leasehold improvements in the Premises to the extent
of the Tenant Finish Allowance (as that term is
defined in the Workletter);
(b) Bodily injury and property damage liability
insurance; and
(c) Such other insurance as Landlord reasonably
determines from time to time.
The insurance coverages and amounts in this Section 6.1 will
be reasonably determined by Landlord.
6.2 Tenant's Insurance. At all times during the Term, Tenant will carry
and maintain, at Tenant's expense, the following insurance, in the amounts
specified below or such other amounts as Landlord may from time to time
reasonably request, with insurance companies and on forms satisfactory to
Landlord:
(a) Bodily injury and property damage liability
insurance, with a combined single occurrence limit of
not less than $3,000,000 per occurrence. All such
insurance will be equivalent to coverage offered by a
commercial comprehensive general liability form,
including without limitation personal injury,
products and completed operations, broad form
property damage, and contractual liability coverage
for the performance by Tenant of the indemnity
agreements set forth in Article 21 of this Lease;
(b) Insurance covering all of Tenant's furniture and
fixtures, machinery, equipment, stock, and any other
personal property owned and used in Tenant's business
and found in, on or about the Project, and any
leasehold improvements to the Premises other than
those provided by Landlord at the
11
beginning of the Term, if any, provided pursuant to
the Workletter in an amount not less than the full
replacement cost. Property forms will provide
coverage on a broad form basis insuring against "all
risks of direct physical loss." All policy proceeds
will be used for the repair or replacement of the
property damaged or destroyed; however, if this Lease
ceases under the provisions of Article 18, Tenant
will be entitled to any proceeds resulting from
damage to Tenant's furniture and fixtures, machinery,
equipment, stock, and any other personal property;
(c) Worker's compensation insurance insuring against and
satisfying Tenant's obligations and liabilities under
the worker's compensation laws of the state in which
the Project is located, including employer's
liability insurance in the limits required by the
laws of the state in which the Project is located;
and
(d) Owned, hired, or non-owned comprehensive automobile
liability at a limit of liability not less than
$3,000,000 combined bodily injury and property damage
per occurrence.
If Tenant fails to obtain or maintain any insurance required
hereunder, Landlord shall have the option, without assuming
any obligation in connection therewith, to effect such
insurance at the sole cost of the Tenant and all outlays by
Landlord shall be reimbursed by Tenant to Landlord as
Additional Rent.
6.3 Forms of Policies. Certificates of insurance, together with copies
of the endorsements, when applicable, naming Landlord and any others specified
by Landlord as additional insurers, will be delivered to Landlord prior to
Tenant's occupancy of the Premises and from time to time at least 10 days prior
to the expiration of the term of each such policy. All commercial general
liability or comparable policies maintained by Tenant will name Landlord and
such other persons or firms as Landlord specifies from time to time as
additional insurers, entitling them to recover under such policies for any loss
sustained by them, their agents, and employees, including those losses sustained
as a result of the negligent acts or omissions of Tenant. All such policies
maintained by Tenant will provide that they may not be terminated nor may
coverage be reduced except after 30 days prior written notice to Landlord. All
commercial general liability, automobile, and property policies maintained by
Tenant will be written as primary policies, not contributing with and not
supplemental to the coverage that Landlord may carry.
6.4 Waiver of Subrogation. Landlord and Tenant each waive any and all
rights to recover against the other or against any other tenant or occupant of
the Project, or against the officers, directors, shareholders, partners, joint
venturers, employees, agents, customers, invitees, or business visitors of such
other party or of such other tenant or occupant of the Project, for any loss or
damage to such waiving party arising from any cause covered by any property
insurance required to be carried by such party pursuant to this Article 6 or any
other property insurance actually carried by such party to the extent of the
limits of such policy. Landlord and Tenant from time to time will cause their
respective insurers to issue appropriate waiver of subrogation rights
endorsements to all property insurance policies carried in connection with the
Project or the Premises or the contents of the Project or the Premises. Tenant
agrees to cause all other occupants of the Premises claiming by, under, or
through Tenant to execute and deliver to Landlord such a waiver of claims and to
obtain such waiver of subrogation rights endorsements.
6.5 Adequacy of Coverage. Landlord, its agents and employees make no
representation that the limits of liability specified to be carried by Tenant
pursuant to this Article 6
12
are adequate to protect Tenant. If Tenant believes that any of such insurance
coverage is inadequate, Tenant shall obtain such additional insurance coverage
as Tenant deems adequate, at Tenant's sole expense. Tenant covenants that the
Premises will be used only for general business office purposes and purposes
incidental to that use, and for no other purpose. Tenant will use the Premises
in a careful, safe, and proper manner. Tenant will not use or permit the
Premises to be used or occupied for any purpose or in any manner prohibited by
any applicable laws. Tenant will not commit waste or suffer or permit waste to
be committed in, on, or about the Premises. Tenant will conduct its business and
control its employees, agents, and invitees in such a manner as not to create
any nuisance or interfere with, annoy, or disturb any other Tenant or occupant
of the Project or Landlord in its operation of the Project. Tenant agrees to
take possession of and occupy the entire Premises no later than 60 days after
the Commencement Date, and Tenant further agrees to continue to occupy the
Premises throughout the remainder of the Tenn of this Lease until 90 days prior
to the Expiration Date.
ARTICLE 8. REQUIREMENTS OF LAW; FIRE INSURANCE
8.1 General. At its sole cost and expense, Tenant will promptly comply
with all laws, statutes, ordinances, codes, and governmental rules, regulations,
or requirements of federal, state, county, and local governmental authorities
now in force or in force at any given time after the Lease Date, with the
requirements of any board of fire underwriters or other similar body constituted
now or after the Lease Date, with any direction or occupancy certificate issued
pursuant to any law by any public officer or officers, as well as with the
provisions of all recorded documents affecting the Premises, insofar as they
relate to the condition, use, or occupancy of the Premises, excluding
requirements of structural changes to the Building, unless required by the
unique nature of Tenant's use or occupancy of the Premises.
8.2 Hazardous Materials.
(a) For purposes of this Lease, "hazardous materials"
means any explosives, radioactive materials,
hazardous wastes, or hazardous substances, including
without limitation asbestos containing materials,
PCB's, CFC's, or substances defined as "hazardous
substances" in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Section 6901-6987; or any other
federal, state, or local statute, law, ordinance,
code, rule, regulation, order, or decree regulating,
relating to, or imposing liability or standards of
conduct concerning hazardous materials, waste, or
substances now or at any time hereafter in effect
(collectively, "hazardous materials laws").
(b) Tenant will not cause or permit the storage, use,
generation, release, or disposition of any hazardous
materials in, on, or about the Premises or the
Project by Tenant, its agents, employees, or
contractors. Tenant will not permit the Premises to
be used or operated in a manner that may cause the
Premises or the Project to be contaminated by any
hazardous materials in violation of any hazardous
materials laws. Tenant will immediately advise
Landlord in writing of (1) any and all enforcement,
cleanup, remedial, removal, or other governmental or
regulatory actions instituted, completed, or
threatened pursuant to any hazardous materials laws
relating to any hazardous materials affecting the
Premises; and (2) all claims made or threatened by
any third party against Tenant, Landlord, the
Premises or the Project relating to damage,
contribution, cost recovery, compensation, loss,
13
or injury resulting from any hazardous materials on
or about the Premises. Without Landlord's prior
written consent, Tenant will not take any remedial
action or enter into any agreements or settlements in
response to the presence of any hazardous materials
in, on, or about the Premises.
(c) Tenant will be solely responsible for and will
defend, indemnify and hold Landlord, its agents, and
employees harmless from and against all claims,
costs, expenses, damages, and liabilities, including
attorneys' fees and costs, arising out of or in
connection with Tenant's breach of its obligations in
this Article 8. Tenant will be solely responsible for
and will defend, indemnify, and hold Landlord, its
agents, and employees harmless from and against any
and all claims, costs, and liabilities, including
attorneys' fees and costs, arising out of or in
connection with the removal, cleanup, and restoration
work and materials necessary to return the Premises
and any other property of whatever nature located on
the Project to their condition existing prior to the
appearance of Tenant's hazardous materials on the
Premises. Tenant's obligations under this Article 8
will survive the expiration or other termination of
this Lease.
8.3 Certain Insurance Risks. Tenant will not do or permit to be done
any act or thing upon the Premises or the Project which would (a) jeopardize or
be in conflict with fire insurance policies covering the Project and fixtures
and property in the Project; (b) increase the rate of fire insurance applicable
to the Project to an amount higher than it otherwise would be for general office
use of the Project; or (c) subject Landlord to any liability or responsibility
for injury to any person or persons or to property by reason of any business or
operation being carried on upon the Premises. If the conduct of the Tenant, or
any acts or omissions of the Tenant shall cause or result in any increase in
premiums for insurance carried by the Landlord, whether or not Landlord allows
such act or omission to continue, Tenant shall pay any increase in premium as
Additional Rent.
ARTICLE 9. ASSIGNMENT AND SUBLETTING
9.1 General. Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors, and assigns, covenants and
agrees that it will not assign, mortgage, or encumber this Lease, or sublease,
nor otherwise permit the Premises or any part of the Premises to be used or
occupied by others, without the prior written consent of Landlord in each
instance, which consent may not be unreasonably withheld. Landlord may condition
its consent upon, among other things, execution by the subtenant or assignee, as
the case may be, of an instrument confirming the restrictions on further
subleasing or assignment contained herein and joining in the waivers and
indemnities made by Tenant hereunder. Any assignment or sublease in violation of
this Article 9 will be void. If this Lease is assigned, or if the Premises or
any part of the Premises are subleased or occupied by anyone other than Tenant,
Landlord may, after any default by Tenant, collect rent from assignee,
subtenant, or occupant, and apply the net amount collected to Rent. No
assignment, sublease, occupancy, or collection will be deemed (a) a waiver of
the provisions of this Section 9.1; (b) the acceptance of the assignee,
subtenant, or occupant as Tenant; or (c) a release of Tenant from the further
performance by Tenant of covenants on the part of Tenant contained in this
Lease. The consent by Landlord to an assignment or sublease will not be
construed to relieve Tenant from obtaining Landlord's prior written consent to
any further assignment or sublease. No permitted subtenant may assign or
encumber its sublease or further sublease all or any portion of its subleased
space, or otherwise permit the subleased space or any part of its subleased
space to be used or occupied by others, without Landlord's prior written
14
consent in each instance. Any assignee approved by Landlord must assume all of
the obligations and duties of Tenant under this Lease pursuant to an assumption
agreement satisfactory to Landlord of which Landlord is the beneficiary.
9.2 Submission of Information. If Tenant requests Landlord's consent to
a specific assignment or subletting, Tenant will submit in writing to Landlord
(a) the name and address of the proposed assignee or subtenant; (b) the business
terms of the proposed assignment or sublease; (c) reasonably satisfactory
information as to the nature and character of the business of the proposed
assignee or subtenant, and as to the nature of its proposed use of the space;
(d) banking, financial, or other credit information sufficient to enable
Landlord to determine the financial responsibility and character of the proposed
assignee or subtenant; (e) the proposed form of assignment (including lease
assumption provisions) or sublease for Landlord's approval; and (f) any other
information reasonably required by Landlord.
9.3 Payments to Landlord. If Landlord consents to a proposed assignment
or sublease, then Landlord will have the right to require Tenant to pay to
Landlord a sum equal to (a) any rent or other consideration paid to Tenant by
any proposed transferee that (after deducting the costs of Tenant, if any, in
effecting the assignment or sublease, including reasonable alterations costs,
commissions and legal fees) is in excess of the Rent allocable to the
transferred space then being paid by Tenant to Landlord pursuant to this Lease;
(b) any other profit or gain (after deducting any necessary expenses incurred)
realized by Tenant from any such sublease. or assignment; and (c) Landlord's
reasonable attorneys' fees and costs incurred in connection with negotiation,
review, and processing of the transfer. All such sums owed to Landlord under
93(c), above, will be payable to Landlord at the time the next payment of
Monthly Rent is due.
9.4 Prohibited Transfers. The transfer of a majority of the issued and
outstanding capital stock of any corporate Tenant or subtenant of this Lease, or
a majority of the total interest in any partnership Tenant or subtenant, however
accomplished, and whether in a sin-le transaction or in a series of related or
unrelated transactions, will be deemed an assignment of this Lease or of such
sublease requiring Landlord's consent in each instance. For purposes of this
Article 9, the transfer of outstanding capital stock of any corporate Tenant
will not include any sale of such stock by persons other than those deemed
"insiders" within the meaning of the Securities Exchange Act of 1934, as
amended, effected through the "over-the-counter market" or through any
recognized stock exchange.
9.5 Landlord's Options. In the event Tenant proposes to transfer this
Lease or all or any part of the Premises, Landlord in addition to any rights
contained herein, shall have the following options at its discretion:
(a) to give Tenant written notice of Landlord's intention
to terminate this Lease as to all or any portion of
the Premises on the date such notice is given or on
any later date specified therein, whereupon, on the
date specified in such notice, Tenant's right to
possession of the Premises or such portion of the
Premises shall cease and this Lease shall thereupon
be terminated, except as to any incompleted
obligations of Tenant; or
(b) to re-enter and take possession of the Premises or
the part thereof subject to such transfer, and to
enforce all rights of Tenant, in accordance with such
sublet or assignment of the Premises; or any part
thereof, as if Landlord was
15
the sublessor or assignor, and to do whatever Tenant
is permitted to do pursuant to the terms of such
sublease or assignment.
9.6 Permitted Transfer. Landlord consents to an assignment of this
Lease or sublease of all or part of the Premises to a wholly-owned subsidiary of
Tenant or the parent of Tenant or to any corporation into or with which Tenant
may be merged or consolidated; provided that (a) Tenant promptly provides
Landlord with a fully executed copy of such assignment or sublease; (b) Tenant
is not released from liability under this Lease and (c) the assignee assumes in
writing all of the obligations of Tenant under this Lease.
ARTICLE 10. RULES AND REGULATIONS
Tenant and its employees, agents, licensees, and visitors will at all
times observe faithfully, and comply strictly with, the rules and regulations
set forth in Exhibit D. Landlord may from time to time reasonably amend, delete,
or modify existing rules and regulations, or adopt reasonable new rules and
regulations for the use, safety, cleanliness, and care of the Premises, the
Building, and the Project, and the comfort, quiet, and convenience of occupants
of the Project. Modifications or additions to the rules and regulations will be
effective upon 30 days' prior written notice to Tenant from Landlord. In the
event of any breach of any rules or regulations or any amendments or additions
to such rules and regulations, Landlord will have all remedies that this Lease
provides for default by Tenant, and will in addition have any remedies available
at law or in equity, including the right to enjoin any breach of such rules and
regulations. Landlord will not be liable to Tenant for violation of such rules
and regulations by any other tenant, its employees, agents, visitors, or
licensees or any other person. In the event of any conflict between the
provisions of this Lease and the rules and regulations, the provisions of this
Lease will govern.
ARTICLE 11. COMMON AREAS
As used in this Lease, the term "common areas" means, without
limitation, the hallways, entryways, stairs, elevators, driveways, roadways,
parking areas, walkways, terraces, docks, loading areas, restrooms, trash
facilities, and all other areas and facilities in the Project that are provided
and designated from time to time by Landlord for the general nonexclusive use
and convenience of Tenant with Landlord and other tenants of the Project and
their respective employees, invitees, licensees, or other visitors. Landlord
grants Tenant, its employees, invitees, licensees, and other visitors a
nonexclusive license for the Tenn to use the common areas in common with others
entitled to use the common areas, subject to the terms and conditions of this
Lease. Without advance written notice to Tenant, except with respect to matters
covered by subsection (a) below, and without any liability to Tenant in any
respect, Landlord will have the right to:
(a) Close off any of the common areas to whatever extent required
in the opinion of Landlord and its counsel to prevent a
dedication of any of the common areas or the accrual of any
rights by any person or the public to the common areas;
(b) Temporarily close any of the common areas for maintenance,
alteration, or improvement purposes; and
(c) Change the size, use, shape, or nature of any such common
areas, including erecting additional buildings on the common
areas, expanding the existing Building or other buildings to
cover a portion of the common areas, converting common areas
to a portion of the Building or other buildings, or converting
any portion of the
16
Building (excluding the Premises) or other buildings to common
areas. Upon erection of any additional buildings or change in
common areas, the portion of the Project upon which buildings
or structures have been erected will no longer be deemed to be
a part of the common areas. In the event of any such changes
in the size or use of the Building or common areas of the
Building or Project, Landlord will make an appropriate
adjustment in the Rentable Area of the Building or the
Building's pro rata share of exterior common areas of the
Project, as appropriate, and a corresponding adjustment to
Tenant's Share of the operating expenses payable pursuant to
Article 5 of this Lease.
ARTICLE 12. LANDLORD'S SERVICES
12.1 Landlord's Repair and Maintenance. Subject to the condemnation and
casualty provisions contained in this Lease and except as otherwise expressly
provided herein, Landlord will maintain and repair the common areas of the
Project, including lobbies, stairs, elevators, corridors, and restrooms, the
windows in the Building, the mechanical, plumbing and electrical equipment
serving the Building, and the structure and the roof of the Building in
reasonably good order and condition.
12.2 Landlord's Other Services.
(a) Landlord will furnish the Premises with services,
including without limitation, (1) electricity for
lighting and the operation of low-wattage office
machines (such as desktop micro-computers, desktop
calculators, and typewriters) reasonably required
during Business Hours; (2) heat and air conditioning
reasonably required for the comfortable occupation of
the Premises during business hours; and (3) access
and elevator service . Landlord will not be obligated
to furnish more power to the Premises than is
proportionally allocated to the Premises under the
Building design. The Tenant shall be responsible for
the payment of all electrical services and repairs.
(b) Tenant will have the right to purchase for use during
business and non-business hours the services
described in clauses (a)(1) and (2) in excess of the
amounts Landlord has agreed to furnish so long as (1)
Tenant gives Landlord reasonable prior notice of its
desire to do so; (2) the excess services are
reasonably available to Landlord and to the Premises;
and (3) Tenant pays as additional rent (at the time
the next monthly rent is due) the cost of such excess
service from time to time charged by Landlord;
subject to the procedures established by the Landlord
from time to time for providing such additional or
excess services.
12.3 Tenant's Costs. Landlord shall be solely responsible for all
repairs, maintenance and improvements to air conditioning and heating equipment,
lighting within the leasehold premises. Tenants shall be responsible for
electrical utilities payment, janitorial and maintenance services rendered to
the leasehold premises, and all other maintenance-related services related to
the leasehold premises.
12.4 Limitation on Liability. Landlord will not be in default under
this Lease or be liable to Tenant or any other person for direct or
consequential damage, or otherwise, for any failure to supply any heat, air
conditioning, elevator, cleaning, lighting, or security; for surges or
interruptions of electricity; or for interruptions to other services Landlord
has agreed to supply. Landlord will use
17
reasonable efforts to diligently remedy any interruption in the furnishing of
such services. Landlord reserves the right temporarily to discontinue such
services at such times as may be necessary by reason of accident; repairs,
alterations or improvements; strikes; lockouts; riots; acts of God; governmental
preemption in connection with a national or local emergency; any rule, order, or
regulation of any governmental agency; conditions of supply and demand that make
any product unavailable; Landlord's compliance with any mandatory governmental
energy conservation or environmental protection program, or any voluntary energy
conservation program at the request of or with consent or acquiescence of
Tenant; or any other happening beyond the control of Landlord. Landlord will not
be liable to Tenant or any other person or entity for direct or consequential
damages resulting from the admission to or exclusion from the Building or
Project of any person. In the event of invasion, mob, riot, public excitement,
strikes, lockouts, or other circumstances rendering such action advisable in
Landlord's sole opinion, Landlord will have the right to prevent access to the
Building or Project during the continuance of the same by such means as
Landlord, in its sole discretion, may deem appropriate, including without
limitation locking doors and closing parking areas and other common areas.
Landlord will not be liable for damages to person or property or for injury to,
or interruption of, business for any discontinuance permitted under this Article
12, nor will such discontinuance in any way be construed as an eviction of
Tenant or cause an abatement of Rent or operate to release Tenant from any of
Tenant's obligations under this Lease.
ARTICLE 13. TENANT'S CARE OF THE PREMISES
Tenant will maintain the Premises (including Tenant's equipment,
personal property, and trade fixtures located in the Premises) in their
condition at the time they were delivered to Tenant, reasonable wear and tear
excluded. Tenant will immediately advise Landlord of any damage to the Premises
or the Project. All damage or injury to the Premises, the Project, or the
fixtures, appurtenances, and equipment in the Premises of the Project that is
caused by Tenant, its agents, employees, or invitees may be repaired, restored,
or replaced by Landlord, at the expense of Tenant. Such expense (plus 15% of
such expense for Landlord's overhead) will be collectible as Additional Rent and
will be paid by Tenant within 10 days after delivery of a statement for such
expense.
ARTICLE 14. ALTERATIONS
14.1 General.
(a) Tenant will not make or allow to be made any
alterations, additions, or improvements to or of the
Premises or any part of the Premises, or attach any
fixtures or equipment to the Premises, without first
obtaining Landlord's written consent. In no event
shall the work of Tenant affect or impair the
structure, the elevators, or utility systems of the
Building. Landlord's approval of the plans,
specifications, and working drawings for Tenant's
alterations shall create no responsibility or
liability on the part of the Landlord for their
completeness, design sufficiency, or compliance with
all laws, ordinances, rules, requirements, and
regulations of governmental agencies or authorities,
or the use and occupancy permit for the Building. All
such alterations, additions, and improvements
consented to by Landlord, and capital improvements
that are required to be made to the Project as a
result of the nature of Tenant's use of the Premises:
18
(1) Will be performed by contractors approved by
Landlord and subject to conditions specified
by Landlord (which may include requiring the
posting of performance and payment bonds);
(2) At Landlord's option, will be made by
Landlord for Tenant's account, and Tenant
will reimburse Landlord for their cost
(including 15% for Landlord's overhead)
within 10 days after receipt of a statement
of such cost;
(3) Will be done in a good and workmanlike
manner and shall be completed promptly;
(4) Shall not cause a loss or diminution of
electric power or other utilities or
services to tenants of the Building;
(5) Will be performed according to plans,
specifications, and working drawings
approved by Landlord; and
(6) Will be in accordance with all applicable
federal, state, county and local laws,
rules, regulations, ordinances and codes.
At all times between the start and completion of the
work, in addition to the other policies of insurance
required by this Lease, Tenant shall maintain a
policy of "All Risk" Builder's Risk Insurance
covering the full replacement value of all work done
and fixtures and equipment installed or to be
installed at the Premises pursuant to this Article
14. Tenant herewith agrees to be responsible for all
damages to persons or property, including loss of
life, as a result of occurrences connected with
activities undertaken by Tenant, its agents,
contractors, and employees pursuant hereto, and
hereby indemnifies Landlord and shall defend and hold
Landlord harmless from and against any and all loss,
cost or expense in connection with its
responsibilities hereunder.
(b) Subject to Tenant's rights in Article 16, all
alterations, additions, fixtures, and improvements,
whether temporary or permanent in character, made in
or upon the Premises either by Tenant or Landlord,
will immediately become Landlord's property and at
the end of the Term will remain on the Premises
without compensation to Tenant, unless Landlord at
anytime advises Tenant in writing that such
alterations, additions, fixtures, or improvements
must be removed at the expiration or other
termination of this Lease.
14.2 Free-Standing Partitions. Tenant will have the right to install
free-standing work station partitions, without Landlord's prior written consent,
so long as no building or other governmental permit is required for their
installation or relocation; however, if a permit is required, Landlord will not
unreasonably withhold its consent to such relocation or installation. The
free-standing work station partitions for which Tenant pays will be part of
Tenant's trade fixtures for all purposes under this Lease. All other partitions
installed in the Premises are and will be Landlord's property for all purposes
under this Lease.
14.3 Removal. If Landlord has required Tenant to remove any or all
alterations, additions, fixtures, and improvements that are made in or upon the
Premises pursuant to this
19
Article 14 prior to the Expiration Date, Tenant will remove such alterations,
additions, fixtures, and improvements at Tenant's sole cost and will restore the
Premises to the condition in which they were before such alterations, additions,
fixtures, improvements, and additions were made.
ARTICLE 15. MECHANICS' LIENS
Tenant will pay or cause to be paid all costs and charges for work (a)
done by Tenant or caused to be done by Tenant, in or to the Premises, and (b)
for all materials furnished for or in connection with such work. Tenant will
indemnify Landlord against and defend and hold Landlord, the Premises, and the
Project free, clear and harmless of and from all mechanics' liens and claims of
liens, and all other liabilities, liens, claims, and demands on account of such
work by or on behalf of Tenant, other than work performed by Landlord pursuant
to the Workletter. If any such lien, at any time, is filed against the Premises
or any part of the Project, Tenant will cause such lien to be discharged of
record within 10 days after the filing of such lien, except that if Tenant
desires to contest such lien, it will furnish Landlord, within such 10-day
period, security reasonably satisfactory to Landlord of at least 150% of the
amount of the claim, plus estimated costs and interest, or comply with such
statutory procedures as may be available to release the lien. If a final
judgment establishing the validity or existence of a lien for any amount is
entered, Tenant will pay and satisfy the same at one. If Tenant fails to pay any
charge for which a mechanics' lien has been filed, and has not given Landlord
security as described above, or has not complied with such statutory procedures
as may be available to release the lien, Landlord may, at its option, pay such
charge and related costs and interest, and the amount so paid, together with
reasonable attorneys' fees incurred in connection with such lien, will be
immediately due from Tenant to Landlord as Additional Rent. Nothing contained in
this Lease will be deemed the consent or agreement of Landlord to subject
Landlord's interest in the Project to liability under any mechanics' or other
lien law. If Tenant receives written notice that a lien has been or is about to
be filed against the Premises or the Project, or that any action affecting title
to the Project has been commenced on account of work done by or for or materials
furnished or for Tenant, it will immediately give Landlord written notice of
such notice. At least 15 days prior to the commencement of any work (including
but not limited to any maintenance, repairs, alterations, additions,
improvements, or installations) in or to the Premises, by or for Tenant, Tenant
will give Landlord written notice of the proposed work and the names and
addresses of the persons supplying labor and materials for the proposed work.
Landlord will have the right to post notices of non-responsibility or similar
written notices on the Premises in order to protect the Premises against any
such liens.
ARTICLE 16. END OF TERM
At the end of this Lease, Tenant will promptly quit and surrender the
Premises broom-clean, in good order and repair, ordinary wear and tear excepted
and deliver all keys to the Premises and the Building to Landlord. If Tenant is
not then in default Tenant may remove from the Premises any trade fixtures,
equipment, and movable furniture placed in the Premises by Tenant, whether or
not such trade fixtures or equipment are fastened to the Building; Tenant will
not remove any trade fixtures or equipment without Landlord's prior written
consent if such fixtures or equipment are used in the operation of the Building,
or if the removal of such fixtures or equipment will result in impairing the
structural strength of the Building. Whether or not Tenant is in default, Tenant
will remove such alterations, additions, improvements, trade fixtures,
equipment, and furniture as Landlord has requested in accordance with Article
14. Tenant will fully repair any damage occasioned by the removal of any trade
fixtures, equipment, furniture, alterations, additions, and improvements. All
trade fixtures, equipment, furniture, inventory, effects, alterations,
additions, and improvements on the Premises after the end of the Term will be
deemed conclusively to have been abandoned and may be appropriated, sold,
stored, destroyed, or otherwise disposed of by Landlord
20
without notice to Tenant or any other person and without obligation to account
for them. Tenant will pay Landlord for all expenses incurred in connection with
the removal of such property, including but not limited to the cost of storage,
and the cost of repairing any damage to the Building or Premises caused by the
removal of such property. Tenant's obligation to observe and perform this
covenant will survive the expiration or other termination of this Lease.
ARTICLE 17. EMINENT DOMAIN
If all of the Premises are taken by exercise of the power of eminent
domain (or conveyed by Landlord in lieu of such exercise) this Lease will
terminate on a date (the "termination date") which is the earlier of the date
upon which the condemning authority takes possession of the Premises or the date
on which title to the Premises is vested in the condemning authority. If more
that 25% of the Rentable Area of the Premises is so taken, Tenant will have the
right to cancel this Lease by written notice to Landlord given within 20 days
after the termination date. If less than 25% of the Rentable Area of the
Premises is so taken, or if the Tenant does not cancel this Lease according to
the preceding sentence, the Monthly Rent will be abated in the proportion of the
Rentable Area of the Premises so taken to the Rentable Area of the Premises
immediately before such taking, and Tenant's Share will be appropriately
recalculated. If 25% or more of the Building or the Project is so taken,
Landlord may cancel this Lease by written notice to Tenant given within 30 days
after the termination date. In the event of any such taking, the entire award
will be paid to Landlord, and Tenant will have no right or claim to any part of
such award; however, Tenant will have the right to assert a claim against the
condemning authority in a separate action, so long as Landlord's award is not
reduced as a consequence of such claim, for Tenant's moving expenses and trade
fixtures owned by Tenant.
ARTICLE 18. DAMAGE AND DESTRUCTION
(a) If the Premises or the Building is damaged by fire or other
insured casualty, Landlord will give Tenant written notice of
the time which will be needed to repair such damage, as
determined by Landlord in its reasonable discretion, and the
election (if any) which Landlord has made according to this
Article 18. Such notice will be given before the 60th day (the
"notice date") after the fire or other insured casualty.
(b) If the Premises or the Building is damaged by fire or other
insured casualty to an extent which may be repaired within 270
days after the notice date, as reasonably determined by
Landlord, Landlord will promptly begin to repair the damage
after the notice date and will diligently pursue the
completion of such repair. In that event this Lease will
continue in full force and effect except that Monthly Rent
will be abated on a pro rata basis from the date of the damage
until the date of the completion of such repairs (the "repair
period") based on the proportion of the Rentable Area of the
Premises Tenant is unable to use during the repair period.
(c) If the Premises or the Building is damaged by fire or other
insured casualty to an extent that may not be repaired within
270 days after the notice date, as reasonably determined by
Landlord, then (1) Landlord may cancel this Lease as of the
date of such damage by written notice given to Tenant on or
before the notice date or (2) Tenant may cancel this Lease as
of the date of such damage by written notice given to Landlord
within such 270-day period. If neither Landlord nor Tenant so
elects to cancel this Lease, Landlord will diligently proceed
to repair the Building and Premises and Monthly Rent will be
abated on a pro rata basis during the repair
21
period based on the proportion of the Rentable Area of the
Premises Tenant is unable to use during the repair period.
(d) Notwithstanding the provisions of subparagraphs (a), (b), and
(c) above, if the Premises or the Building or the Project are
damaged by uninsured casualty, or if the proceeds of insurance
are insufficient to pay for the repair of any damage to the
Premises or the Building or the Project, Landlord will have
the option to repair such damage or cancel this Lease as of
the date of such casualty by written notice to Tenant on or
before the notice date.
(e) If any such damage by fire or other casualty is the result of
the willful conduct or negligence or failure to act of Tenant,
its agents, contractors, employees, or invitees, there will be
no abatement of Monthly Rent as otherwise provided for in this
Article 18. Tenant will have no rights to terminate this Lease
on account of any damage to the Premises, the Building, or the
Project, except as set forth in this Lease.
(f) For purposes of this Article 18 and subject to subsections (a)
through (e) hereof, Landlord shall repair or restore any
portion of the alterations, additions, improvements in the
Premises or the decorations thereto to the extent that such
alterations, additions, improvements and decorations were
provided by Landlord at the beginning of the Term. Landlord
shall have no further obligations pursuant to this Lease to
repair or restore any alterations, additions or improvements
in the Premises or the decorations thereto. If Tenant desires
any other or additional repairs or restoration and if Landlord
consents thereto, the same shall be done at Tenant's sole cost
and expense. Tenant acknowledges that Landlord shall be
entitled to the full proceeds of any insurance coverage,
carried by Landlord for damage to alterations, additions,
improvements or decorations.
ARTICLE 19. SUBORDINATION
19.1 General. This Lease and Tenant's rights under this Lease are
subject and subordinate to any ground or underlying lease, mortgage, indenture,
deed of trust, or other lien encumbrance (each a "superior lien"), together with
any renewals, extensions, modifications, consolidations, and replacements of
such superior lien, now or in the future affecting or placed, charged, or
enforced against the Land, the Building, or all or any portion of the Project or
any interest of Landlord in them or Landlord's interest in this Lease and the
leasehold estate created by this Lease (except to the extent any such instrument
expressly provides that this Lease is superior to such instrument). This
provision will be self-operative and no further instrument of subordination will
be required in order to effect it. Notwithstanding the foregoing, Tenant will
execute, acknowledge, and deliver to Landlord, within 20 days after written
demand by Landlord, such documents as may be reasonably requested by Landlord or
the holder of any superior lien to confirm or effect any such subordination or
superiority, as applicable.
19.2 Attornment. Tenant agrees that in the event that any holder of a
superior lien succeeds to Landlord's interest in the Premises, Tenant will pay
to such holder all Rent subsequently payable under this Lease. Further, Tenant
agrees that in the event of the enforcement by the holder of a superior lien of
the remedies provided for by law or by such superior lien, Tenant will, upon
request of any person or party succeeding to the interest of Landlord as a
result of such enforcement, automatically become the Tenant of an attorn to such
successor in
22
interest without change in the terms or provisions of this Lease. Such successor
interest will not be bound by:
(a) Any payment of Rent for more than one month in
advance, except prepayments in the nature of security
for the performance by Tenant of its obligations
under this Lease that are actually received by such
successor in interest;
(b) Any amendment or modification of this Lease made
without the written consent of such successor in
interest (if such consent was required under the
terms of such superior lien);
(c) Any claim against Landlord arising prior to the date
on which such successor in interest succeeded to
Landlord's interest; or
(d) Any claim or offset of Rent against the Landlord.
Upon request by such successor in interest and
without cost to Landlord or such successor in
interest, Tenant will, within 20 days after written
demand, execute, acknowledge, and deliver an
instrument or instruments confirming the attornment.
If Tenant shall fail to execute and deliver any such
documents provided for in this Article 19, then
Tenant hereby appoints Landlord its attorney-in-fact
for the purpose of executing, acknowledging, and
delivering such documents on behalf of Tenant.
ARTICLE 20. ENTRY BY LANDLORD
Landlord, its agents, employees, and contractors may enter the Premises
at any time in response to an emergency and at any other reasonable time to:
(a) Inspect the Premises;
(b) Exhibit the Premises to prospective purchasers, lenders, or
tenants;
(c) Determine whether Tenant is complying with all its obligations
in this Lease;
(d) Supply cleaning service and any other service to be provided
by Landlord to Tenant according to this Lease;
(e) Post written notices of non-responsibility or similar notices;
or
(f) Make repairs required of Landlord under the terms of this
Lease or make repairs to any adjoining space or utility
services or make repairs, alterations, or improvements to any
other portion of the Building.
Tenant, by this Article 20, waives any claim against Landlord, its
agents, employees, or contractors for damages for any injury or
inconvenience to or interference with Tenant's business, any loss of
occupancy or quiet enjoyment of the Premises, or any other loss
occasioned by any entry in accordance with this Article 20. Landlord
will at all times have
23
and retain a key with which to unlock all of the doors in, on, or about
the Premises (excluding Tenant's vaults, safes, and similar areas
designated in writing by Tenant in advance). Landlord will have the
right to use any and all means Landlord may deem proper to open doors
in and to the Premises in an emergency in order to obtain entry to the
Premises, provided that Landlord will promptly repair any damages
caused by any forced entry. Any entry to the Premises by Landlord in
accordance with this Article 20 will not be construed or deemed to be a
forcible or unlawful entry into or a detainer of the Premises or an
eviction, actual or constructive, of Tenant from the Premises or any
portion of the Premises, nor will any such entry entitle Tenant to
damages or an abatement of Monthly Rent, Additional Rent, or other
charges that this Lease requires Tenant to pay.
ARTICLE 21. INDEMNIFICATION, WAIVER, AND RELEASE
21.1 Indemnification. To the extent no prohibited by law, Landlord, its
employees and agents shall not be liable for damage to person, property or
business or resulting from the loss of use thereof sustained by Tenant or other
persons due to the Building or any part thereof becoming out of repair or due to
an accident or due to any act or neglect of any tenant, occupant or other
person. Tenant further agrees that all personal property upon the Premises,
loading dock, holding areas, and freight elevators shall be at the sole risk of
Tenant.
Tenant will neither hold nor attempt to hold Landlord, its employees,
or agents liable for, and Tenant will indemnify and defend and hold harmless
Landlord, its employees, and agents from and against, any and all demands,
claims, causes of action, fines, penalties, damages (including consequential
damages), liabilities, judgments, and expenses (including without limitation
reasonable attorneys' fees) incurred in connection with or arising from:
(a) the use or occupancy or manner of use or occupancy of
the Premises or any common areas by Tenant or any
person claiming under Tenant;
(b) any activity, work, or thing done or permitted by
Tenant in or about the Premises, the Building, or the
Project;
(c) any breach by Tenant or its employees, agents
contractors, or invitees of this Lease; and
(d) any injury or damage to the person, property, or
business of Tenant, its employees, agents,
contractors, or invitees entering upon the Premises
under the express or implied invitation of Tenant.
If any action or proceeding is brought against Landlord, its employees,
or agents by reason of any such claim for which Tenant has indemnified
Landlord, Tenant, upon written notice from Landlord, will defend the
same at Tenant's expense, with counsel reasonably satisfactory to
Landlord.
21.2 Waiver and Release. Tenant, as a material part of the
consideration to Landlord for this Lease, by this Section 21.2 waives and
releases all claims against Landlord, its employees, and agents with respect to
all matters for which Landlord has disclaimed liability pursuant to the
provisions of this Lease.
ARTICLE 22. SECURITY DEPOSIT
24
Tenant shall deposit $10,000 upon lease execution, and shall deposit
$40,000 prior to occupancy for a total of $50,000.00 as the security deposit
with Landlord as security for the full, faithful, and timely performance of
every provision of this Lease to be performed by Tenant. If Tenant defaults with
respect to any provision of this Lease, including but not limited to the
provisions relating to the payment of Rent, Landlord may use, apply, or retain
all or any part of the security deposit for the payment of any Rent, or any
other sum in default, or for the payment of any other amount Landlord may spend
or become obligated to spend by reason of Tenant's default, or to compensate
Landlord for any other loss or damage Landlord may suffer by reason of Tenant's
default. If any portion of the security deposit is so used, applied, or
retained, Tenant will within 5 days after written demand deposit cash with
Landlord in an amount sufficient to restore the security deposit to its original
amount. Landlord will be required to keep the security deposit separate from its
general funds, and Tenant will be entitled to actual interest earned on the
security deposit. The security deposit will not be deemed a limitation on
Landlord's damages or a payment of liquidated damages or a payment of the
Monthly Rent due for the last month of the Term. If Tenant fully, faithfully,
and timely performs every provision of this Lease to be performed by it, the
$40,000.00 of the security deposit will be returned to Tenant within 60 days
after the end of the second lease year. If Tenant fully, faithfully, and timely
performs every provision of this Lease to be performed by it, the remaining
$10,000 of the security deposit or any balance of the security deposit will be
returned to Tenant within 60 days after the expiration of the Tenn. Landlord may
deliver the balance of the security deposit then held by Landlord to the
purchaser of the Building in the event the Building is sold or to any transferee
or assignee from Landlord, and after such time Landlord will have no further
liability to Tenant with respect to the security deposit.
ARTICLE 23. QUIET ENJOYMENT
Landlord covenants and agrees with Tenant that so long as Tenant pays
the Rent and observes and performs all the terms, covenants, and conditions of
this Lease on Tenant's part to be observed and performed, Tenant may peaceably
and quietly enjoy the Premises subject, nevertheless, to the terms and
conditions of this Lease, and Tenant's possession will not be disturbed by
anyone claiming by, through, or under Landlord.
ARTICLE 24. EFFECT OF SALE
A sale, conveyance, or assignment of the Building or the Project will
operate to release Landlord from liability from and after the effective date of
such sale, conveyance, or assignment upon all of the covenants, terms, and
conditions of this Lease, express or implied, except those liabilities that
arose prior to such effective, and, after the effective date of such sale,
conveyance, or assignment, Tenant will look solely to Landlord's successor in
interest in and to this Lease. This Lease will not be affected by any such sale,
conveyance, or assignment, and Tenant will attorn to Landlord's successor in
interest to this Lease from and after such effective date.
ARTICLE 25. DEFAULT
25.1 Event of Default. The following events are referred to,
collectively, as "events of default" or, individually, as an "event of default":
(a) Tenant fails to pay any Rent or other monetary
obligation when due, and such failure continues for 5
days after written notice from Landlord; Tenant will
not be entitled to more than I written notice for
monetary default during any 12-month period, and if
after such written notice any Rent is not paid
25
when due, an event of default will be considered to
have occurred without further notice;
(b) Tenant vacates or abandons the Premises;
(c) This Lease or the Premises or any part of the
Premises is taken upon execution or by other process
of law directed against Tenant, or is taken upon
subject to any attachment by any creditor of Tenant
or claimant against Tenant, and said attachment is
not discharged or disposed of within 15 days after
its levy;
(d) Tenant or any guarantor of Tenant's obligations under
this Lease ("Guarantor") files a petition in
bankruptcy or insolvency or for reorganization or
arrangement under the bankruptcy laws of the United
States or under any insolvency act or any state, or
admits the material allegations of any such petition
by answer or otherwise, or admits in writing its
inability to meet its debts as they mature, or is
dissolved or makes an assignment for the benefit of
creditors;
(e) Involuntary proceedings under any such bankruptcy law
or insolvency act or for the dissolution of Tenant or
any Guarantor are instituted against Tenant or any
Guarantor, or a receiver or trustee is appointed for
all or substantially all of the property of Tenant or
any Guarantor, and such proceeding is not dismissed
or such receivership or trusteeship vacated within 60
days after such institution or appointment;
(f) Tenant fails to take possession of the Premises on
the Commencement Date of the Term;
(g) Tenant violates the terms of Article 9 "Assignment\
and Subletting";
(h) Tenant breaches any of the agreements, terms,
covenants, or conditions of this Lease and such
breach involves a hazardous condition and is not
cured immediately upon written notice to Tenant;
(i) Tenant breaches any of the other agreements, terms,
covenants, or conditions that this Lease requires
Tenant to perform, and such breach continues for a
period of 30 days after written notice from Landlord
to Tenant or, if such breach cannot be cured
reasonably within such 30-day period, if Tenant fails
to diligently commence to cure such breach within 30
days after written notice from Landlord and to
complete such cure within a reasonable time
thereafter; or
(j) Any guaranty of the Lease obligations becomes
unenforceable in whole or in part for any reason.
25.2 Landlord's Remedies. If any one or more events of default set
forth in Section 25.1 occurs then Landlord has the right, at its election:
(a) To give Tenant written notice of Landlord's intention
to terminate this Lease on the earliest date
permitted by law or on any later date specified in
such
26
notice, in which case Tenant's right to possession of
the Premises will cease and this Lease will be
terminated, except as to Tenant's liability, as if
the expiration of the term fixed in such notice were
the end of the Term;
(b) Without further demand or notice, and without
terminating this Lease to reenter and take possession
of the Premises or any part of the Premises,
repossess the same, expel Tenant and those claiming
through or under Tenant, and remove the effects of
both or either, using such force for such purposes as
may be necessary, without being liable for
prosecution, without being deemed guilty of any
manner of trespass, and without prejudice to any
remedies for arrears of Monthly Rent or other amounts
payable under this Lease or as a result of any
preceding breach of covenants or conditions; or
(c) Without further demand or notice to cure any event of
default and to charge Tenant for the cost of
effecting such cure, including without limitation
reasonable attorneys' fees and interest on the amount
so advanced at the rate set forth in Section 27.2 1,
provided that Landlord will have no obligation to
cure any such event of default of Tenant.
Should Landlord elect to reenter as provided in
subsection (b), or should Landlord take possession
pursuant to legal proceedings or pursuant to any
notice provided by law, Landlord may, from time to
time, without terminating this Lease, relet the
Premises or any part of the Premises in Landlord's or
Tenant's name, but for the account of Tenant, for
such term or terms (which may be greater or less than
the period which would otherwise have constituted the
balance of the Term) and on such conditions and upon
such other terms (which may include concessions of
free rent and alteration and repair of the Premises)
as Landlord, in its reasonable discretion, may
determine, and Landlord may collect and receive the
rents from such reletting. Landlord will in no way be
responsible or liable for any failure to relet the
Premises, or any part of the Premises, or for any
failure to collect any rent due upon such reletting.
No such reentry or taking possession of the Premises
by Landlord will be construed as an election on
Landlord's part to terminate this Lease unless a
written notice of such intention is given to Tenant.
No written notice from Landlord under this Section or
under a forcible or unlawful entry and detainer
statute or similar law sill constitute an election by
Landlord to terminate this Lease unless such notice
specifically so states. Landlord reserves the right
following any such reentry or reletting to exercise
its right to terminate this Lease by giving Tenant
such written notice, in which event this Lease will
terminate as specified in such notice.
25.3 Certain Damages. In the event that Landlord does not elect to
terminate this Lease as permitted in Section 25.2(a), but on the contrary elects
to take possession as provided in Section 25.2(b), Tenant will pay to Landlord
Monthly Rent and other sums as provided in this Lease that would be payable
under this Lease if such repossession had not occurred, less the net proceeds,
if any, or reletting of the Premises after deducting all of Landlord's
reasonable expenses in connection with such reletting, including without
limitation all repossession costs, brokerage commissions, attorneys' fees,
expenses of employees, alteration and repair costs, and expenses of preparation
for such reletting. Tenant will pay such Rent and other sums to Landlord monthly
on the day on which the Monthly Rent would have been payable under this Lease if
possession had
27
not been retaken, and Landlord will be entitled to receive such Rent and other
sums from Tenant on each such day.
25.4 Continuing Liability After Termination. If this Lease is
terminated on account of the occurrence of an event of default, Tenant will
remain liable to Landlord for damages in an amount equal to the Rent and other
amounts that would have been owing by Tenant for the balance of the Term, had
this Lease not been terminated, less the net proceeds, if any, of any reletting
of the Premises by Landlord subsequent to such termination, after deducting all
of landlord's expenses in connection with such reletting, including without
limitation the expenses enumerated in Section 25.3. Landlord will be entitled to
collect such damages from Tenant monthly on the day on which Monthly Rent and
other amounts would have been payable under this Lease if this Lease had not
been terminated, and Landlord will be entitled to receive such Monthly Rent and
other amounts from Tenant on each such day. Alternatively, at the option of
Landlord, in the event this Lease is so terminated, Landlord will be entitled to
recover against Tenant as damages for loss of the bargain and not as a penalty:
(a) The worth at the time of award of the unpaid Rent
that had been earned at the time of termination;
(b) The worth at the time of award of the amount by which
the unpaid Rent that would have been earned after
termination until the time of award exceeds the
amount of such rental loss that Tenant proves could
have been reasonably avoided;
(c) The worth at the time of award of the amount by which
the unpaid Rent for the balance of the Term of this
Lease (had the same not been so terminated by
Landlord) after the time of award exceeds the amount
of such rental loss that Tenant proves could be
reasonably avoided;
(d) Any other amount necessary to compensate Landlord for
all the detriment proximately caused by Tenant's
failure to perform its obligations under this Lease
or which in the ordinary course of things would be
likely to result therefrom.
The "worth at the time of award" of the amounts
referred to in clauses (a) and (b) above is computed
by adding interest at the per annum interest rate
described in Section 27.21 on the date on which this
Lease is terminated from the date of termination
until the time of the award. The "worth at the time
of award" of the amount referred to in clause (c)
above is computed by discounting such amount at the
discount rate of the Federal Reserve Bank of New
York, New York, at the time of award plus 1%.
25.5 Cumulative Remedies. Any suit or suits for the recovery of the
amounts and damages set forth in Section 25.3 and 25.4 may be brought by
Landlord, from time to time, at Landlord's election, and nothing in this Lease
will be deemed to require Landlord to await the date upon which this Lease or
the Term would have expired had there occurred no event of default. Each right
and remedy provided for in this Lease is cumulative and is in addition to every
other right or remedy provided for in this Lease or now or after the Lease Date
existing at law or in equity or by statute or otherwise, and the exercise or
beginning of the exercise by Landlord or any one or more of the rights or
remedies provided for in this Lease now or after the Lease Date existing at law
or in equity or by statute or otherwise will not preclude the simultaneous or
later exercise by
28
Landlord of any or all other rights or remedies provided for in this Lease or
now or after the Lease Date existing at law or in equity or by statute or
otherwise. All costs incurred by Landlord in collecting any amounts and damages
owing by Tenant pursuant to the provisions of this Lease or to enforce any
provision of this Lease, including reasonable attorneys' fees from the date any
such matter is turned over to any attorney, whether or not one or more actions
are commenced by Landlord, will also be recoverable by Landlord from Tenant.
25.6 Waiver of Redemption. Tenant waives any right of redemption
arising as a result of Landlord's exercise of its remedies under this Article
25.
ARTICLE 26. PARKING
Tenant will be entitled to use only the parking spaces set forth in
Section 1.1(q) during the Term subject to the rules and regulations set forth in
Exhibit D, and any amendments or additions to them. The parking charges set
forth in Section 1. 1 (r), if any, will be due and payable in advance at the
same time and place as Monthly Rent. Tenant's parking spaces will be unassigned,
non-reserved, and non-designated. Landlord reserves the right to adjust the
parking charges in Landlord's sole discretion at any time after 30 days' prior
written notice.
Neither Landlord nor any operator of the parking areas within the
Project, as the same are designated and modified by Landlord, in its sole
discretion, from time to time (the "parking areas") will be liable for loss of
or damage to any vehicle or any contents of such vehicle or accessories to any
such vehicle, or any property left in any of the parking areas, resulting from
fire, theft, vandalism, accident, conduct of other users of the parking areas
and other persons, or any other casualty or cause. Further, Tenant understands
and agrees that: (a) Landlord will not be obligated to provide any traffic
control, security protection or operator for the parking areas; (b) Tenant uses
the parking areas at its own risk; and (c) Landlord will not be liable for
personal injury or death, or theft, loss of, or damage to property. Tenant
waives and releases Landlord from any and all liability arising out of the use
of the parking areas by Tenant, its employees, agents, invitees, and visitors,
whether brought by any of such persons or any other person.
Tenant's right to use the parking areas will be in common with other
tenants of the Project and with other parties permitted by Landlord to use the
parking areas. Landlord reserves the right to assign and reassign, from time to
time, particular parking spaces for use by persons selected by Landlord,
provided that Tenant's rights under the Lease are preserved. Landlord will not
be liable to Tenant for any unavailability of Tenant's designated spaces, if
any, nor will any unavailability entitle Tenant to any refund, deduction, or
allowance. Tenant will not park in any numbered space or any space designated
as: RESERVED, HANDICAPPED, VISITORS ONLY, or LIMITED TIME PARKING (or similar
designation).
If the parking areas are damaged or destroyed, or if the use of the
parking areas is limited or prohibited by any governmental authority, or the use
or operation of the parking areas is limited or prevented by strikes or other
labor difficulties or other causes beyond Landlord's control, Tenant's inability
to use the parking spaces will not subject Landlord or any operator of the
parking areas to any liability to Tenant and will not relieve Tenant of any of
its obligations under the Lease and the Lease will remain in full force and
effect.
Tenant has no right to assign or sublicense any of its rights in the
parking spaces, except as part of a permitted assignment or sublease of the
Lease.
ARTICLE 27. MISCELLANEOUS
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27.1 No Offer. Submission of the Lease to Tenant is for examination and
shall not bind Landlord in any manner. No lease or obligations of Landlord shall
arise until this instrument is signed by both Landlord and Tenant and delivery
is made to each; provided, however, the execution and delivery by Tenant of this
Lease to Landlord or Landlord's agent shall constitute an irrevocable offer by
Tenant to lease the Premises on the terms and conditions herein contained, which
offer may not be withdrawn or revoked for 15 days after such execution and
delivery.
27.2 Joint and Several Liability. If Tenant is composed of more than
one signatory to this Lease, each signatory will be jointly and severally liable
with each other signatory for payment and performance according to this Lease.
The act of, written notice to, written notice from, refund to, or signature of
any signatory to this Lease (including without limitation modifications of this
Lease made by fewer than all such signatories) will bind every other signatory
as though every other signatory had so acted, or received or given the written
notice or refund, or signed.
27.3 No Construction Against Drafting Party. Landlord and Tenant
acknowledge that each of them and their counsel have had an opportunity to
review this Lease and that this Lease will not be construed against Landlord
merely because Landlord has prepared it.
27.4 Time of the Essence. Time is of the essence of each and every
provision of this Lease.
27.5 No Recordation. Tenant's recordation of this Lease or any
memorandum or short form of it will be void and an event of default under this
Lease. Tenant shall, at the request of Landlord, execute a short-form lease and
have it properly acknowledged for the purpose of recording. The cost of
recording such short-form lease shall be borne by Landlord.
27.6 No Waiver. No waiver by Landlord of any agreement, condition or
provision contained in this Lease will be valid or binding unless expressed in
writing and signed by Landlord. The waiver by Landlord of any agreement,
condition, or provision contained in this Lease will not be deemed to be a
waiver of any subsequent breach of the same or any other agreement, condition,
or provision contained in this Lease, nor will any custom or practice that may
grow up between the parties in the administration of the terms of this Lease be
construed to waive or to lessen the right of Landlord to insist upon the
performance by Tenant in strict accordance with the terms of this Lease. The
subsequent acceptance of Rent by Landlord will not be deemed to be a waiver of
any preceding breach by Tenant of any agreement, condition, or provision of this
Lease, other than the failure of Tenant to pay the particular Rent so accepted,
regardless of Landlord's knowledge of such preceding breach at the time of
acceptance of such Rent.
27.7 Limitation on Recourse. Tenant specifically agrees to look solely
to Landlord's interest in the Project for the recovery of any judgments from
Landlord. It is agreed that Landlord (and its agents, shareholders, venturers,
and partners, and their shareholders, venturers, and partners and all of their
officers, directors, and employees) will not be personally liable for any such
judgments.
27.8 Estoppel Certificates. At any time and from time to time but
within 5 days after prior written request by Landlord, Tenant will execute,
acknowledge, and deliver to Landlord or such other person as Landlord shall
direct, promptly upon request, a certificate certifying (a) that this Lease is
unmodified and in full force and effect or, if there have been modifications,
that this Lease is in full force and effect, as modified, and stating the date
and nature of each modification; (b) the date, if any, to which Rent and other
sums payable under this Lease have been paid; (c) that no written notice of any
default has been delivered to Landlord which default has not been
30
cured, except as to defaults specified in said certificate; (d) that the Tenant
has no knowledge of and that there is no event of default under this Lease or an
event which, with notice or the passage of time, or both, would result in an
event of default under this Lease, except for defaults specified in said
certificate; and (e) such other matters as may be reasonably requested by
Landlord. Any such certificate may be relied upon by any prospective purchaser
or existing or prospective mortgagee or beneficiary under any deed of trust of
the Building or any part of the Project. Tenant's failure to deliver such a
certificate within such time will be conclusive evidence of the matters set
forth in it, and such failure shall be an event of default.
27.9 Attorneys' Fees. If Landlord and Tenant litigate any provision of
this Lease or the subject matter of this Lease, the unsuccessful litigant will
pay to the successful litigant all costs and expenses, including reasonable
attorneys' fees and court costs, incurred by the successful litigant at trial
and on any appeal. If, without fault, either Landlord or Tenant is made a party
to any litigation instituted by or against the other, the other will indemnify
the faultless one against all loss, liability, and expense, including reasonable
attorneys' fees and court costs, incurred by it in connection with such
litigation.
27.10 No Merger. The voluntary or other surrender of this Lease by
Tenant or the cancellation of this Lease by mutual agreement of Tenant and
Landlord or the termination of this Lease on account of Tenant's default will
not work a merger, and will, at Landlord's option (a) terminate all or any
subleases and sub-tenancies or (b) operate as an assignment to Landlord of all
or any subleases or sub-tenancies. Landlord's option under Section 27.10 will be
exercised by written notice to Tenant and all known subleases or subtenants in
the Premises or any part of the Premises.
27.11 Holding Over. Tenant will have no right to remain in possession
of all or any part of the Premises after the expiration of the Term and Landlord
may, at its option, re-enter and take possession of the Premises, reserving its
rights to collect damages sustained by reason of Tenant's unlawful retention of
possession of the Premises or any part thereof. If Tenant remains in possession
of all or any part of the Premises after the expiration o the Term, with the
express written consent of Landlord: (a) such tenancy will be deemed to be a
periodic tenancy from month-to-month only; (b) such tenancy will not constitute
a renewal or extension of this Lease for any further term; and (c) such tenancy
may be terminated by Landlord upon the earlier of 30 days' prior written notice
or the earliest date permitted by law. In such event, Monthly Rent will be
increased to an amount equal to 200% of the Monthly Rent payable during the last
month of the Term, and any other sums due under this Lease will be payable in
the amount and at the times specified in this Lease. During such month-to-month
tenancy, Tenant will observe every other term, condition, and covenant contained
in this Lease.
27.12 Notices. Any notice, request, demand, consent, approval, or other
communication required or permitted under this Lease must be in writing and will
be deemed to have been given when personally delivered, sent by facsimile with
delivery acknowledged by the sending machine, deposited with any nationally
recognized overnight carrier that routinely issues receipts, or deposited in any
depository regularly maintained by the United States Postal Service, postage
prepaid, certified mail, return receipt requested, addressed to the party for
whom it is intended at its address(es) set forth in Section 1. 1. Either
Landlord or Tenant may add additional addresses or change its address for
purposes of receipt of any such communication by giving 10 days' prior written
notice of such change to the other party in the manner prescribed in this
Section 27.12.
27.13 Severability. If any provision of this Lease proves to be
illegal, invalid, or unenforceable, the remainder of this Lease will not be
affected by such finding, and in lieu of each
31
provision of this Lease that is illegal, invalid, or unenforceable a provision'
shall be deemed added as a part of this Lease as similar in terms two such
illegal, invalid, or unenforceable provisions as may be possible and be legal,
valid, and enforceable.
27.14 Written Amendment Required. No amendment, alteration,
modification of, or addition to the Lease will be valid or binding unless
expressed in writing and signed by Landlord and Tenant. Tenant agrees to make
any modifications of the terms and provisions of this Lease required or
requested by any lending institution providing financing for the Building, or
Project, as the case may be, provided that no such modifications will materially
adversely affect Tenant's rights and obligations under this Lease.
27.15 Entire Agreement. This Lease, the exhibits and addenda, if any,
contain the entire agreement between Landlord and Tenant. No promises or
representations, except as contained in this Lease, have been made to Tenant
respecting the condition or manner of operating the Premises, the Building, or
the Project.
27.16 Captions. The captions of the various articles and sections of
this Lease are for convenience only and do not necessarily define, limit,
describe, or construe the contents of such articles or sections.
27.17 Notice of Landlord's Default. In the event of any alleged default
in the obligation of Landlord under this Lease, Tenant will deliver to Landlord
written notice listing the reasons for Landlord's default and Landlord will have
30 days following receipt of such notice to cure such alleged default or, in the
event the alleged default cannot reasonably be cured within a 30-day period, to
commence action and proceed diligently to cure such alleged default. A copy of
such notice to Landlord will be sent to any holder of a mortgage or other
encumbrance on the Building or Project of which Tenant has been notified in
writing, and any such holder will also have an additional like period to cure
such alleged default.
27.18 Authority. Tenant and the party executing this Lease on behalf of
Tenant represent to Landlord that such party is authorized to do so by requisite
action of the board of directors or partners, as the case may be, and agree upon
request to deliver to Landlord a resolution or similar document to that effect.
27.19 Brokers. Tenant represents and warrants that it has not consulted
or negotiated with any broker, finder or agent with regard to the Premises
except the broker, named in Section 1.1, if any. Tenant agrees to hold Landlord
harmless and indemnify Landlord against all costs, expenses, attorneys' fees, or
other liability for commissions or other compensation or charges claimed by any
broker, finder or agent claiming the same by, through or under Tenant and such
indemnity shall survive the expiration or earlier termination of this Lease.
27.20 Governing Law. This Lease will be governed by and construed
pursuant to the laws of the state in which the Project is located.
27.21 Late Payments. Any Rent or other monetary obligation due Landlord
that is not paid when due will accrue interest at a rate of the Prime Rate plus
5% per annum (but in no event in an amount in excess of the maximum rate allowed
by applicable law) from the date on which it was due until the date on which it
is paid in full with accrued interest. In addition to the foregoing, Tenant
shall pay to Landlord a late charge of 5% of the amount due.
32
27.22 No Easements for Air or Light. Any diminution or shutting off of
light, air, or view by any structure that may be erected on lands adjacent to
the Building will in no way affect this Lease or impose any liability on
Landlord.
27.23 Tax Credits. Landlord is entitled to claim all tax credits and
depreciation attributable to leasehold improvements in the Premises. Promptly
after Landlord's demand, Landlord and Tenant will prepare a detailed list of the
leasehold improvements and fixtures and their respective costs for which
Landlord or Tenant has paid. Landlord will be entitled to all credits and
depreciation for those items for which Landlord has paid by means of any Tenant
finish allowance or otherwise. Tenant will be entitled to any tax credits and
depreciation for all items for which Tenant has paid with funds not provided by
Landlord.
27.24 Relocation of the Premises. Landlord reserves the right to
relocate the Premises to substantially comparable space within the Project,
pursuant to this Section 27.24. Landlord will give Tenant a written notice of
its intention to relocate the Premises, and Tenant will complete such relocation
within 60 days after receipt of such written notice. If Tenant does relocate
within the Project, then effective on the date of such relocation this Lease
will be amended by deleting the description of the original Premises and
substituting for it a description of such comparable space. Landlord agrees to
reimburse Tenant for its actual reasonable moving costs to such other space
within the Project, the reasonable costs of reprinting stationery, and the costs
of rewiring the new Premises for telephone and computers comparably to the
original Premises.
27.25 Financial Reports. Within 15 days after Landlord's request,
Tenant will furnish Tenant's most recent audited financial statements (including
any notes to them) to Landlord, or, if no such audited statements have been
prepared, such other financial statements (and notes to them) as may have been
prepared by an independent certified public accountant or, failing those,
Tenant's internally prepared financial statements. Tenant will discuss its
financial statements with Landlord and will give Landlord access to Tenant's
books and records in order to enable Landlord to verify the financial
statements. Landlord will not disclose any aspect of Tenant's financial
statements that Tenant designates to Landlord as confidential except (a) to
Landlord's lenders or prospective purchasers of the Project, (b) in litigation
between Landlord and Tenant, and (c) if required by court order or subpoena.
27.26 INTENTIONALLY DELETED.
27.27 Binding Effect. The covenants, conditions, and agreements
contained in this Lease will bind and inure to the benefit of Landlord and
Tenant and their respective heirs, distributees, executors, administrators,
successors, and, except as otherwise provided in this Lease, their assigns.
27.28 Terms. The necessary grammatical changes required to make the
provisions hereof apply either to corporations, partnerships, or individuals,
men or women, as the case may be, shall in all cases be assumed as though in
each case fully expressed.
27.29 Definition of Landlord. All indemnities, covenants, and
agreements of Tenant contained herein which inure to the benefit of Landlord
shall be construed to also inure to the benefit of Landlord's beneficiaries and
their partners, agents and employees and employees of their agents.
27.30 Rights Cumulative. All rights and remedies of Landlord under this
Lease shall be cumulative and none shall exclude any other rights and remedies
allowed by law.
33
27.31 Change of Building Name. Landlord reserves the right at any time
and without liability to any tenant to change the name by which the Building or
Project is designated.
27.32 Force Majeure. When a period of time is herein prescribed for any
action to be taken by Landlord, Landlord shall not be liable or responsible for,
and there shall be excluded from the computation for any such period of time,
any delays due to strikes, riots, acts of God, shortages of labor or materials,
war, regulations or restrictions or any other causes of any kind whatsoever
which are beyond the control of Landlord.
27.33 Third Party Beneficiary. It is specifically understood and agreed
that no person shall be a third party beneficiary hereunder and that none of the
provisions of this Lease shall be for the benefit of or be enforceable by anyone
other than the parties hereto, and that only the parties hereto and their
permitted assignees shall have rights hereunder.
27.34 No Joint Venture. Landlord and Tenant are not and shall not be
deemed to be, for any purpose, partners or joint venturers with each other.
27.35 Remedies. If Tenant believes that Landlord has unreasonably
withheld its consent in any instance in connection with this Lease, Tenant's
sole remedy will be to seek a declaratory judgment that Landlord has
unreasonably withheld its consent or an order of specific performance or
mandatory injunction in connection with Landlord's agreement to give its
consent, and Tenant shall not be entitled to make claim for, and hereby
expressly waives, any claim for damages by reason of Landlord withholding its
consent.
27.36 WAIVER OF JURY TRIAL. LANDLORD AND TENANT BY THIS SECTION 27.36
WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER
OF THE PARTIES TO THIS LEASE AGAINST THE OTHER ON ANY MATTERS WHATSOEVER ARISING
OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND
TENANT, TENANT'S USE OR OCCUPANCY OF THE PREMISES, OR ANY OTHER CLAIMS (EXCEPT
CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE), AND ANY EMERGENCY STATUTORY OR
ANY OTHER STATUTORY REMEDY.
Landlord and Tenant have executed this Lease as of the day and year
first above written.
Tenant: Landlord:
INTERNATIONAL COSMETICS MARKETING BROOKWOOD MERIDIAN PARTNERS,
LTD.
CO., d/b/a XXXXXXX XXXXXXX WORLDWIDE
By: /s/ Xxxxx Xxxxxx By:________________________
Name: Xxxxx Xxxxxx Name:______________________
Title: Chief Financial Officer Title:_____________________
34
Attest/Witness: Attest/Witness:
By: /s/ Xxxxx Xxxxx By:________________________
Name: Xxxxx Xxxxx Name:______________________
Its:___________________________________ Its:_______________________
* * * * * [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] * * * * *
35
EXHIBIT "B"
LEGAL DESCRIPTION
THOSE CERTAIN TWO PIECES, PARCELS, OR TRACTS OF LAND, LYING SITUATE AND
BEING IN PALM BEACH COUNTY, FLORIDA, AND BEING MORE PARTICULARLY DESCRIBED
AS FOLLOWS:
A parcel of land being a portion of Parcel "A" of the plat "ARVIDA PARK OF
COMMERCE PLAT NO. 9," as recorded in Plat Book 50, Page 148 of the current
public records of Palm Beach County, Florida being more particularly described
as follows:
BEGINNING at the Southwest xxxxx of said Parcel "A"; thence N. 00 degrees 31
minutes 13 seconds W., along the West line of said "ARVIDA PARK OF COMMERCE PLAT
NO. 9", a distance of 367.50 feet; thence S. 89 degrees 33 minutes 05 seconds
E., a distance of 187.00 feet; thence N. 61 degrees 23 minutes 38 seconds E. a
distance of 20.59 feet; thence S. 89 degrees 33 minutes 05 seconds E., a
distance of 306.40 feet to a point of intersection with the East line of said
"ARVIDA PARK OF COMMERCE PLAT NO. 9"; THENCE S. 00 degrees26 minutes 55 seconds
W., along said East line a distance of 377.45 feet to the Southeast xxxxx of
said Parcel "A"; thence N. 89 degrees 33 minutes 05 seconds W. along the South
line of said Parcel "A", a distance of 505.18 feet to the POINT OF BEGINNING.
[BASIC PARCEL]
TOGETHER WITH that certain irrevocable non-exclusive common easement for
pedestrian, vehicular, and utility ingress, egress, and access upon, over,
across, through, and under the following described parcel as granted by and
subject to the terms and conditions of that certain Declaration of Reciprocal
Easements dated December 7, 1988 and recorded among the current public records
of Palm Beach County, Florida under Clerk's No. 88-338688:
A portion of Parcel "A" of Arvida Park of Commerce Plat No. 9, according to the
Plat thereof as recorded in Plat Book 50, Page 148 of the Public Records of Palm
Beach County, Florida, being more particularly described as follows:
COMMENCING at the Southeast xxxxx of said Parcel "A", thence N. 0 degrees 26
minutes 55 seconds E. along the East line of said Parcel "A" a distance of
377.45 feet to the POINT OF BEGINNING of this description; thence continue N. 0
degrees 26 minutes 55 seconds E., a distance of 20.0 feet; thence N. 89 degrees
33 minutes 05 seconds W., a distance of 70.0 feet; thence N. 0 degrees 26
minutes 55 seconds East, a distance of 25.0 feet; thence N.89 degrees 33 minutes
05 seconds W., a distance of 45.0 feet; thence S. 0 degrees 26 minutes 55
seconds W., a distance of 27.50 feet; thence S. 72 degrees 47 minutes 55 seconds
W., a distance of 57.72 feet; thence S. 89 degrees 33 minutes 05 seconds E., a
distance of 170.0 feet to the POINT OF BEGINNING. [ACCESS EASEMENT PARCEL]
36
EXHIBIT D
RULES AND REGULATIONS
1. Landlord may from time to time adopt appropriate systems and procedures
for the security or safety of the Building, any persons occupying,
using, or entering the Building, or any equipment, furnishings, or
contents of the Building, and Tenant will comply with Landlord's
reasonable requirements relative to such systems and procedures.
2. The sidewalks, halls, passages, exits, entrances, elevators, and
stairways of the Building will not be obstructed by any tenants or used
by any of them for any purpose other than for ingress to and egress
from their respective Premises. The halls, passages, exits, entrances,
elevators, escalators, and stairways are not for the general public,
and Landlord will in all cases retain the right to control and prevent
access to such halls, passages, exists, entrances, elevators, and
stairways of all persons whose presence in the judgment of Landlord and
would be prejudicial to the safety, character, reputation, and
interests or the Building and its tenants, provided that nothing
contained in these rules and regulations will be construed to prevent
such access to persons with whom any tenant normally deals in the
ordinary course of its business, unless such persons are engaged in
illegal activities. No tenant and no employee or invitee of any tenant
will go upon the roof of the Building except such roof or portion of
such roof as may be contiguous to the Premises of a particular tenant
and may be designated in writing by Landlord as a roof deck or roof
garden area. No tenant will be permitted to place or install any object
(including without limitation radio and television antennas,
loudspeakers, sound amplifiers, microwave dishes, solar devices, or
similar devices) on the exterior of the Building or on the roof of the
Building.
3. No sign, placard, picture, name, advertisement, or written notice
visible from the exterior of Tenant's Premises will be inscribed,
painted, affixed, or otherwise displayed by Tenant on any part of the
Building or the Premises without the prior written consent of Landlord.
Landlord will adopt and furnish to Tenant general guidelines relating
to signs inside Building on the office floors. Tenant agrees to conform
to such guidelines. All approved signs or lettering on doors will be
printed, painted, affixed, or inscribed at the expense of the Tenant by
a person approved by Landlord. Other than draperies expressly permitted
by Landlord and building standard window treatments, material visible
from outside the Building will not be permitted. In the event of the
violation of this rule by Tenant, Landlord may remove the violating
items without any liability, and may charge the expense incurred by
such removal to the tenant or tenants violating this rule.
4. No cooking will be done or permitted by any tenant on the Premises,
except in areas of the Premises which are specifically constructed for
cooking and except that use by the tenant of microwave ovens and
Underwriters' Laboratory approved equipment for brewing coffee, tea,
hot chocolate, and similar beverages will be permitted, provided that
such use is in accordance with all applicable federal, state, and city
laws, codes, ordinances, rules, and regulations.
5. No tenant will employ any person or persons other that the cleaning
service of Landlord for the purpose of cleaning the Premises, unless
otherwise agreed to by Landlord in writing. Except with the written
consent of Landlord, no person or persons other than those approved by
Landlord will be permitted to enter the Building for the purpose of
cleaning it. No tenant will cause any unnecessary labor by reason of
such tenant's carelessness or indifference in the preservation of good
order and cleanliness. Should Tenant's actions
37
result in any increased expense for any required cleaning, Landlord
reserves the right to assess Tenant for such expenses.
6. The toilet rooms, toilets, urinals, wash bowls and other plumbing
fixtures will not be used for any purposes other than those for which
they were constructed, and no sweepings, rubbish, rags, or any foreign
substances will be thrown in such plumbing fixtures. All damages
resulting from any misuse of the fixtures will be borne by the tenant
who, or whose servants, employees, agents, visitors, or licensees,
caused the same.
7. No tenant, or tenant's invitees or licensees, will in any way deface
any part of the Premises or the Building of which they form a part. in
those portions of the Premises where carpet has been provided directly
or indirectly by Landlord, Tenant will at its own expense install and
maintain pads to protect the carpet under all furniture having casters
other than carpet casters.
8. No tenant will alter, change, replace, or re-key any lock or install a
new lock or a knocker on any door of the Premises. Landlord, its
agents, or employees will retain a pass (master) key to all door locks
on the Premises. Any new door locks required by Tenant or any change in
keying of existing locks will be installed or changed by Landlord
following tenant's written request to Landlord and will be at Tenant's
expense. All new locks and re-keyed locks will remain operable by
Landlord's pass (master) key. Landlord will furnish each tenant, free
of charge, with two (2) keys to each suite entry door lock on the
Premises. Landlord will have the right to collect a reasonable charge
for additional keys and cards requested by any tenant. Each tenant,
upon termination of its tenancy, will deliver to Landlord all keys and
access cards for the Premises and Building that have been furnished to
such tenant.
9. The elevator designated for freight by Landlord will be available for
use by all tenants in the Building during the hours and pursuant to
such procedures as Landlord may determine from time to time. The
persons employed to move Tenant's equipment, material, furniture, or
other property in or out of the Building must be acceptable to
Landlord. The moving company must be a locally recognized professional
mover, whose primary business is the performing of relocation services,
and must be bonded and fully insured. A certificate or other
verification of such insurance must be received and approved by
Landlord prior tot he start of any moving operations. Insurance must be
sufficient, in Landlord's sold opinion, to cover all personal
liability, theft or damage to the Project, including but not limited to
floor coverings, doors, walls, elevators, stairs, foliage, and
landscaping. Special care must be taken to prevent damage to foliage
and landscaping during adverse weather. All moving operations will be
conducted at such times and in such a manner as Landlord will direct,
and all moving will take place during non-Business Hours unless
Landlord agrees in writing otherwise. Tenant will be responsible for
the provision of building security during all moving operations, and
will be liable for all losses and damages sustained by any party as a
result of the failure to supply adequate security. Landlord will have
the right to prescribe the weight, size, and position of all equipment,
materials, furniture, or other property brought into the Building.
Heavy objects will, if considered necessary by Landlord, stand on weed
strips of such thickness as is necessary to properly distribute the
weight. Landlord will not be responsible for loss of or damage to any
such property from any cause, and all damage done to the Building by
moving or maintaining such property will be repaired at the expense of
Tenant. Landlord reserves the right to inspect all such property to be
brought into the Building and to exclude from the Building all such
property which violates any of these rules and regulations or the Lease
of which these rules and regulations are a part. Supplies,
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goods, materials, packages, furniture, and all other items of every
kind delivered to or taken from the Premises will be delivered or
removed through the entrance and route designated by Landlord, and
Landlord will not be responsible for the loss or damage of any such
property.
10. No tenant will use or keep in the Premises or the Building any
kerosene, gasoline, or inflammable or combustible or explosive fluid or
material or chemical substance other than limited quantities of such
materials or substances reasonably necessary for the operation or
maintenance of office equipment or limited quantities of cleaning
fluids and solvents required in tenant's normal operations in the
Premises, which shall be stored in accordance with applicable law.
Without Landlord's prior written approval, no tenant will use any
method of heating or air conditioning other than that supplied by
Landlord. No tenant will use or keep or permit to be used or kept any
foul or noxious gas or substance in the Premises.
11. Tenants shall not, prior to or during the Term, either directly or
indirectly, employ or permit the employment of any contractor, mover,
mechanic or laborer, or permit any materials in the Premises, if the
use of such contractor, mover, mechanic or laborer or such materials
would, in Landlord's opinion, create any difficulty, strike or
jurisdictional dispute with other contractors, movers, mechanics or
laborers engaged by Landlord, tenants, or others, or would in any way
disturb the construction, maintenance, cleaning, repair, management,
security or operation of the Building, Project or any part thereof Any
tenant, upon demand by Landlord, shall c all contractors, movers,
mechanics, laborers or materials causing such interference, difficulty
or conflict to leave or be removed from the Project immediately.
12. Landlord will have the right to prohibit any advertising by Tenant
mentioning the Building that, in Landlord's reasonable opinion, tends
to impair the reputation of the Building or its desirability as a
building for offices, and upon written notice from Landlord, tenant
will refrain from or discontinue such advertising.
13. Tenant will not bring any animals (except "Seeing Eye" dogs) or birds
into the Building, and will not permit bicycles or other vehicles
inside or on the sidewalks outside the Building except in areas
designated from time to time by Landlord for such purposes.
14. All persons, entering or leaving the Building between the hours of 6
p.m. and 7 a.m. Monday through Friday, and at all hours on Saturdays,
Sundays, and holidays will comply with such off-hour regulations as
Landlord may establish and modify from time to time. Landlord reserves
the right to limit reasonably or restrict access to the Building during
such time periods.
15. Each tenant will store all its trash and garbage within its Premises.
No material will be placed in the trash boxes of receptacles if such
material is of such nature that it may not be disposed of in the
ordinary and customary manner of removing and disposing of trash and
garbage without being in violation of any law or ordinance governing
such disposal. All garbage and refuse disposal will be made only
through entryways and elevators provided for such purposes and at such
times as Landlord designates. Removal of any furniture or furnishings,
large equipment, packing crates, packing materials, and boxes will be
the responsibility of each tenant and such items may not be disposed of
in the Building trash receptacles nor will they be removed by the
Building's janitorial service, except at Landlord's sole option and at
the tenant's expense. No furniture, appliances, equipment, or flammable
products of any type may be disposed of in the Building trash
receptacles.
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16. Canvassing, peddling, soliciting, and distributing handbills or any
other written materials in the Building are prohibited, and each tenant
will cooperate to prevent the same.
17. The requirements of the tenants will be attended to only upon
application by written, personal, or telephone notice at the office of
the Building. Employees of Landlord or Landlord's agent will not
perform any work or do anything outside of their regular duties unless
under special instructions from Landlord.
18. A directory of the Building will be provided for the display of the
name and location of tenants only. All entries on the Building
directory display will conform to standards and style set by Landlord
in its sole discretion. Space on any exterior signage will be provided
in Landlord's sole discretion. No tenant will have any right to the use
of any exterior sign.
19. Tenant will see that the doors of the Premises are closed and locked
and that all water faucets, water apparatus, and utilities are shut off
before Tenant or Tenant's employees leave the Premises, so as to
prevent waste or damage, and for any failure to comply or carelessness
in this regard Tenant will make good all injuries sustained by other
tenants or occupants of the Building or Landlord. On multiple-tenancy
floors, all tenants will keep the doors to the Building corridors
closed at all times except for ingress and egress.
20. Tenant will not conduct itself in any manner that is inconsistent with
the character of the Building as a first quality building or that will
impair the comfort and convenience of other tenants in the Building.
21. Tenant (including tenant's employees, agents, invitees, and visitors)
will use the parking spaces solely for the purpose of parking passenger
model cars, small vans, and small trucks and will comply in all
respects with any rules and regulations that may be promulgated by
Landlord from time to time with respect to the parking areas. The
parking areas will not be used by Tenant, its agents, or employees, for
overnight parking of vehicles, except with Landlord's prior consent.
Tenant will ensure that any vehicle parked in any of the parking spaces
will be kept in proper repair and will not leak oil, grease, gasoline,
or any other fluids. if any of the parking spaces are at any time used
(a) for any purpose other than parking as provided above; (b) in any
way or manner reasonably objectionable to Landlord; or (c) by Tenant
after default by Tenant under the Lease, Landlord, in addition to any
other rights available to Landlord, may consider such default an event
of default under the Lease.
22. No act or thing done or omitted to be done by Landlord or Landlord's
agent during the term of the Lease in connection with the enforcement
of these rules and regulations will constitute an eviction by Landlord
of any tenant nor will it be deemed an acceptance of surrender of the
Premises by any tenant, and no agreement to accept such termination or
surrender will be valid unless in a writing signed by Landlord. The
delivery of keys to any employee or agent of Landlord will not operate
as a termination of the Lease or a surrender of the Premises unless
such delivery of keys is done in connection with a written instrument
executed by Landlord approving the termination or surrender.
23. Neither Tenant, nor any of its sub-lessees or permitted assigns, nor
any agents or employees of Tenant or its sub-lessess or permitted
assigns, nor other person or entity will under any circumstances all
entry onto the Premises by (i) any inmates of any prison or other
correctional facility, (ii) any in-patients of any psychiatric
facility, (iii) any person who is physically restrained (e.g., by
handcuffs, shackles, strait jackets or under guard) at the
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time he or she enters the Premises, or (iv) any other person who is in
the custody of any governmental authority.
24. In these rules and regulations, the term "tenant" includes the
employees, agents, invitees, and licensees of Tenant and others
permitted by Tenant to use or occupy the Premises.
25. Landlord may waive any one or more of these rules and regulations for
the benefit of any particular tenant or tenants, but no such waiver by
Landlord will be construed as a waiver of such rules and regulations in
favor of any other tenant or tenants, nor prevent Landlord from
enforcing any such rules and regulations against any or all of the
tenants of the Building after such waiver.
26. These rules and regulations are in addition to, and will not be
construed to modify or amend, in whole or in part, the terms,
covenants, agreements, and conditions of the Lease.
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