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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: _____________________
(b) LANDLORD: MBL Life Assurance Corporation
(c) LANDLORD'S ADDRESS:
Property Management Xxxxxx
Xxxx Xxxxxx Xxxxxxxx
00 Xx. Xxxxx Xxx.
Xxxxxx, XX 00000
with a copy at the same time to: MBL Life Assurance Corporation,
Vice President - Real Estate Investment Division, 000 Xxxxx Xx,
Xxxxxx, XX 00000-0000.
(d) TENANT: IGG International, Inc.
(e) TENANT'S ADDRESS:
The Premises as defined in this Lease.
(f) BUILDING ADDRESS:
00 Xx. Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
(g) PREMISES: The premises shown on Exhibit A to this Lease
on the fifth (5th) floor of the Building.
(h) RENTABLE AREA OF THE PREMISES: For purposes of this
Lease, the rentable square footage of the Premisses shall be
deemed to be 2,968 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 445,765 square feet.
(j) TERM: Beginning on the Commencement Date and expiring on
the Expiration Date.
(k) COMMENCEMENT DATE: October 1, 1997, or as extended
pursuant to Paragraph 2 of the Addendum hereto.
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(l) EXPIRATION DATE: May 31, 2002
(m) SECURITY DEPOSIT: $ N/A
Amount Per Month: $6,383.67
Commencing On:
Ending On:
Commencement Date
Expiration Date
(o) BASE YEAR: 1997.
(p) TENANT'S SHARE: .666 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: N/A spaces according to Article 26.
(r) PARKING CHARGE: $ N/A per parking space per month,
subject to adjustments specified in Article 26.
(s) BROKER:
Xxxxxxxxx & Xxxx Xxxxxxx & Xxxxxxxxx
000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
(t) BUSINESS HOURS: 8:00 a.m. to 6:00 p.m. on Monday through
Friday, except holidays (as that term is defined below), and 9:00
a.m. to 1:00 p.m. on Saturdays, except holidays. The term
"holidays" means New Year's Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day, and Christmas Day.
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.
(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.
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(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 part of this Lease:
EXHIBIT A - The Premises
EXHIBIT B - Legal Description of the Land
EXHIBIT C - Plans (if any) and specifications
EXHIBIT D - Rules and Regulations
EXHIBIT E - Commencement Date and Estoppel Certificate
EXHIBIT F - Form of Letter of Credit
ADDENDUM: An Addendum containing additional paragraphs numbered 1
through ___ is attached hereto and incorporated herein.
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
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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 Term commences on a day other than the first
day of a calendar month or ends on a day other than the last day
of a calendar month, then Monthly Rent will be appropriately
prorated by Landlord based on the actual number of calendar days
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
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 ant
any additional term hereof (pro-rated for any period less than a
year) tenant shall pay to Landlord as additional rent, "Tenant's
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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 improvement 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; (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; (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
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excluding any charge for increased premiums due to acts
or omissions of other occupants of the Building because
of extra risk 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, janitorial
services, security services, landscaping, snow and ice
removal and painting; (H) sales or use taxes on
supplies and services; (I) consulting, accounting fees,
legal, tax appeal, engineering and other professional
fees and expenses; (J) commercially reasonable
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 other any duly constituted public
authorities having jurisdiction over the Premises
(hereinafter a Governmental Requirement); and (L)
without limiting any of the foregoing, any other
expense or charge which, in accordance with sound
accounting and management principal 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; (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 otherwise
provided in Section (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 fee for the negotiation or
enforcement of lease. 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
worn 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
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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 analyzed 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% 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 improvements, as determined by the
Landlord), together with interest at the greater of the
Prime Rate prevailing or Landlord's actual borrowing
rate for such Essential Capital Improvement, shell be
deemed an Operating Expense 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 Requirement 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).
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5.3 Share of Taxes
(a) Increases 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 by
Landlord of a Statement of Taxes (defined
below) containing the amount due from Tenant
on 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 tune 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;
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(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 due 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 S.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
contemporaneously with the furnishing of the
next Statement of Taxes (provided, if the
credit exceeds one (1) months rent, Tenant
shall be entitled to receive the amount due
Tenant by check).
(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
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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 in contest of same, 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
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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. 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.
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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 nationally recognized 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 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 teens 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.
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5.9 Other Taxes.
(a) Tenant will reimburse Landlord upon demand for any and
all taxes payable by Landlord (other than as set forth
in sub-paragraph (b) below), whether or not now
customary or within the contemplation of Landlord and
Tenant:
(1) upon or measured by rent, including without
limitation, any gross revenue tax, sales tax
use tax, excuse tax, or value added tax
levied by the federal government or any other
governmental body with respect to the receipt
of rent; and
(2) upon this transaction or any document to
which Tenant is a party creating or
transferring an interest or an estate in the
Premises.
(b) Tenant will not be obligated to pay any inheritance
tax, gift tax, franchise tax, income tax (based on net
income), profit tax, or capital levy imposed upon
Landlord.
(c) Tenant will pay promptly when due all personal property
taxes of Tenant's personal property in the Premises and
any other taxes payable by Tenant that if not paid
might give rise to a lien on the Premises or Tenant's
interest in the Premises.
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 taking into account the
class, type, size and location of the Building.
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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 limit of not less than
$1,000,000 per occupance. 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 beginning of the Term, if
any, provided pursuant to the Workletter 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; and
(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.
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 delays by
Landlord shall be reimbursed by Tenant to Landlord as
Additional Rent.
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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 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
company or of such other tenant or occupant of the Project, for
any loss or damage to such waiving company arising from any cause
covered by any property insurance required to be carried by such
company pursuant to this Article 6 or any other property
insurance actually carried by such company 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 policy
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 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.
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ARTICLE 7. USE.
Tenant covenants that the Premises will be used only for
general business office purpose and purposes incidental to each
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 Term 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. subsection
9601-9657; the Hazardous Materials Transportation Act of
1975, 49 U.S.C. subsection 1801-1812; the Resource Conservation
and Recovery Act of 1976, 42 U.S.C. subsection 6901-6987; or
any other applicable federal, state, or local stature,
law, ordinance, code, rule, regulation, order, or
decree regulating, relating to, or imposing liability
or standards of conduct concerning hazardous materials,
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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
material 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 government or regulatory actions instituted,
contemplated, or threatened pursuant to any hazardous
material laws relating to any hazardous materials
affecting the Premises; and (2) all claims made or
threatened by any third company against Tenant,
Landlord, the Premises or the Project relating to
damage, contribution, cost recovery, compensation,
loss, 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 attorney's 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
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(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 confined 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 the assignee,
subtenant or occupant, and apply the net amount collected to
Rent. No assignment' sublease, occupancy, or collection will be
deemed (a) a waiver of the provisions of this Section 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 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 name of its proposed
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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 9.3(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 single 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 requests
Landlord's consent to a proposed transfer of this Lease or all
more than 50% 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 uncompleted obligations of Tenant; or
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(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 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
(following applicable notice provisions, if any), 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,
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licensees, and other visitors a nonexclusive license for the Term
to use the common areas in common with others entitled to use the
common areas, subject to the teens 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
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.
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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 microcomputers, desktop
calculators, and typewriters) during Business Hours,
although Landlord will not be obligated to furnish more
power to the Premises than is proportionally allocated
to the Premises under the Building design; (2) heat and
air conditioning seasonably required for the comfortable
occupation of the Premises during Business Hours; (3)
access and elevator service; (4) lighting replacement
during Business Hours (for building standard lights, but
not for any special Tenant lights, which will be
replaced at Tenant's sole cost and expense); (5)
restroom supplies; (6) window washing with reasonable
frequency, as determined by Landlord; and (7) daily
cleaning service on weekdays. Landlord may provide, but
will not be obligated to provide, any such services
(except access and elevator service) on holidays or
weekends.
(b) Tenant will have the right to purchase for use during
Business Hours 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 written notice of
its desire to do so; (2) the excess Services are
reasonably available to Landlord and to the Premises;
(3) Tenant pays as Additional Rent (at the time the next
payment of Monthly Rent is due) the cost of such excess
service from time to time charged by Landlord; subject
to the procedures established by Landlord from time to
time for providing such additional or excess services.
12.3 Tenant's Costs. Whenever equipment or lighting (other
than building standard lighting) is used in the Premises by
Tenant and such equipment or lighting affects the temperature
otherwise normally maintained by the design of the Building's air
conditioning system, Landlord will have the right, after prior
written notice to Tenant, to install supplementary air
conditioning facilities in the Premises or otherwise modify the
ventilating and air conditioning system serving the Premises; and
the cost of such facilities, modifications, and additional
service will be paid by Tenant as Additional Rent. If Landlord
reasonably believes that Tenant is using more power than Landlord
furnishes pursuant to Section 12.2, Landlord may install separate
meters of Tenant's power usage, and Tenant will pay for the cost
of such excess power as Additional Rent, together with the cost
of installing any risers, meters, or other facilities that may be
necessary to furnish or measure such excess power to the
Premises.
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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 reasonable efforts to
diligently remedy any interruptions 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 fixture located in the
Premises) in their condition at the time they were delivered to
Tenant, normal wear and tear excluded. Tenant will immediately
advise Landlord of any damage to the Premises or the Project. Any
damage or injury to the Premises, the Project, or the fixtures,
appurtenances, and equipment in the Premises or 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.
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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:
(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, in the event the alteration,
addition or improvement exceeds $5,000, 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 other 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"
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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 improvement,
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 the time of
the installation, 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 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 material 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
118
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 Premises, 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 125% 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 establishes the validity or existence of a Lien for any
amount is entered, Tenant will pay and satisfy the same at once.
If Tenant fails to pay any charge for which a mechanics' lien has
been filed, and has not given Landlord security as described
above, 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 due to the Project
has been commenced on account of work done by or for or materials
furnished to or for Tenant it will immediately give Landlord
written notice of such notice. At least 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
name and address of the persons supplying labor and material 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
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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
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 than 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 proportionally 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 deemed by Landlord in its
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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 180 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 180 days after the notice date, as
reasonably determined by Landlord, then (1) Landlord may
cancel this Lease as of the case 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 10 days after Landlord's delivery of a written
notice that the repairs cannot be made within such 180-
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 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
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damage to the Premises, the Building, or the Project,
except as set forth in this Lease.
(f) For purposes of this Article 18 and subjects to
subsections (a) thru (e) hereof, Landlord shall repair
or restore any portion of the alterations, additions or
improvements in the Premises or the decorations thereto
to the extent that such alterations, additions,
improvements and decorations thereto 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 enticed 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 and attorn to such successor
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in interest without change in the terms or provisions of this
Lease. Such successor in interest will not be bound by:
(a) Any payment of Rent for more than one month in advance,
except prepayments in the name of security for the
performance by Tenant of its obligations under this
Lease that are actually received by such successor in
interest; or
(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 upon reasonable notice to Tenant to:
(a) Inspect the Premises;
(b) Exhibit the Premises to prospective purchasers and
lenders, and, during the last eight (8) months of the
term, prospective 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
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(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 quite enjoyment of the Premises, or any
other loss occasioned by any entry in accordance with this
Article 20 provided same is not caused by the gross negligence or
wilful misconduct of Landlord. Landlord will at all times have
and retain a key with which to unlock all of the doors in, on, or
about the Premises (excluding Tenant's vaults, safes, and similar
areas designated in writing by Tenant in advance). Landlord will
have the right to use any and all means 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 forces entry. Any entry
on 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 entitled 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. Unless caused by the gross negligence
or wilful misconduct of Landlord, to the extent not 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;
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(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.
21.1 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.
INTENTIONALLY OMITTED
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 Tenants 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 labilities that arose prior to
such effective date, and, after the effective date of such sale,
conveyance, or assignment Tenant will look solely to Landlord's
successor in interest in and to this Lease. This Lease will not
be affected by any such sale, conveyance, or assignment, and
Tenant will attorn to Landlord's successor in interest to this
Lease from and after such effective date.
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ARTICLE 25. DEFAULT.
25.1 Events 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 constitutes for 5
business days after written notice from Landlord
however, Tenant will not be entitled to more than 1
written notice for monetary defaults during any 12-month
period, and if after such written notice any Rent is not
paid 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 or subject to
any attachment by any creditor of Tenant or offset
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 of 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 preceding is not dismissed or such
receivership or trusteeship vacated within 60 days after
such institution or appointment;
(f) INTENTIONALLY OMITTED;
(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;
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(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 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 27.21, 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 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
127
otherwise have constituted the balance of the Term) and on such
conditions and upon such other term or 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 far 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 an 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 will constitute an election by Landlord to
terminate this Lease unless such Notice specifically so states.
Landlord reserves the right following any such reentry or
reletting to exercise is 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, of any 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
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 occurrences 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 in Section
25.3. Landlord will be enticed 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
128
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
bad 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 rent 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 Sections 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 of any one or more of the right 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 will not
preclude the simultaneous or later exercise by Landlord of any or
all other rights or remedies provided for in this Lease or now or
after the 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
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this Lease or to enforce any provision of this Lease, including
reasonable attorneys' fees from the date any such matter is
turned over to an attorney, whether or not one or more actions
are commenced by Landlord, will also be recoverable by Landlord
from Tenant.
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, nonreserved, and nondesignated. 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).
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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.
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 ant have it properly
acknowledged for the purpose of recording. The cost of recording
such short-form lease shall be borne by Landlord.
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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 and
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 Landlords. 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 business 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 supplied to Tenant 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 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 Projects. 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.
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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
subtenancies or (b) operate as an assignment to Landlord of all
or any subleases or subtenancies. Landlord's option under this
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 of 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 150% 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
133
is intended at its address(a) set forth in Section 1.1. Either
Landlord or Tenant may add additional address or change its
address for purpose 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
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 to such illegal, invalid, or
unenforceable provision 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 provisions or representations, except as contained
in this Lease, have been made to Tenant respecting the condition
or the 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 and do not necessarily
define, limit, describe, or construe the contests 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.
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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. Landlord and the party executing this Lease on behalf of
the Landlord represent to Tenant that such party is authorized to
do so by requisite action of the board of directors.
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, attorney's 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 under 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.
27.22 No Easements for Air or Light. Any diminution or
shutting off of lights, 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 credit 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.
INTENTIONALLY OMITTED
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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 these) as they 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.
Landlord will not disclose any aspect of Tenant's financial
statement 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 Landlord's Fees. Whenever Tenant requests Landlord
to take any action or give any consent required or permitted
under this Lease, Tenant will reimburse Landlord for all of
Landlord's reasonable costs incurred in reviewing the proposed
action or consent, including without limitation reasonable
attorneys', engineers' or architects' fees, within 10 days after
Landlord's delivery to Tenant of a statement of such costs.
Tenant will be obligated to make such reimbursement without
regard to whether Landlord consents to any such proposed action.
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,
distubutees, 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.
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.
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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 instances in connection
with this Lease, Tenants'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 damage 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:
IGG International, Inc. MBL Life Assurance Corporation
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxxx
President Senior Vice President
Attest/Witness: Attest/Witness:
/s/ B. Xxxxx Xxxxxxxx /s/ Xxxxxx Xxxxxx
Attorney Senior Assistant Manager
137
CLERK'S CERTIFICATE
The undersigned, being the Clerk (or Assistant Clerk) of IGG
International Inc., a Nevada Corporation, does hereby certify
that a meeting of the Board of Directors of said corporation,
duly called and held for the purpose and at which meeting a
quorum of the Directors was present and voting throughout, the
execution and delivery of the foregoing Lease by the party
signing the same was authorized and directed.
I further certify that at the time of the execution of the
foregoing Lease, the party signatory thereto held the office set
forth above adjacent to such party's signature.
Date as of the execution date of the foregoing Lease.
/s/ illegible signature
Clerk (or Assistant Clerk)
EXHIBIT A
The Premises
map omitted for transmission on XXXXX
EXHIBIT B
Legal Description of the Land
EXHIBIT B
All that certain lot, piece or parcel of land situated,
lying and being in the City of Boston, Suffolk County,
Massachusetts, with the buildings thereon, bounded and described
as follows:
NORTHERLY: by Providence Street, six hundred seven
and 40/100 (607.40) feet,
EASTERLY: by Arlington Street, seventy-five and
06/100 (75.06) feet,
SOUTHERLY: by St. Xxxxx Avenue, six hundred four
and 31/100 (604.31) feet and
WESTERLY: by Berkeley Street, seventy-five (75)
feet.
containing 45,439 square feet, more or less and being the same
premises conveyed by deed dated April 30, 1981 and recorded with
Suffolk County Registry of Deeds, Book 9741, Page 184.
138
EXHIBIT C
PLANS AND SPECIFICATIONS
Map omitted for transmission on XXXXX.
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, finishings 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, exits, entrances, elevators, and stairways of
all persons whose presence in the judgment of Landlord would be
prejudicial to the safety, character, reputation, and interests
of 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 continuous 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 Premise without the
prior written consent of Landlord. Landlord will adopt and
furnish to Tenant general guidelines relating to signs inside the
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
139
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 specially
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 than
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 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 other 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 rekey 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 rekeyed 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.
140
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 to the
start of any moving operations. Insurance must be sufficient, in
Landlord's sole 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 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 wood
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, 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 hard solvents required in
141
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 difficulties, 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 cause 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 or
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
142
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.
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 entry 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 rule and regulation 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
143
Tenant after default by Tenant under the Lease, Landlord, in
addition to any other rights otherwise 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 sublessee or permitted
assigns, nor any agents or employees of Tenant or its sublessee
or permitted assigns, nor other person or entity will under any
circumstances allow entry onto the Premises by (i) any inmates of
any prison or other correctional facility, (ii) any in-patients
of any psychiatric facilities, (iii) any person who is physically
restrained (e.g., by handcuffs, shackles straight jackets or
under guard) at the time he or she enters the Premises, of (iv)
any other person who is in the custody of any government
authority.
24. In the 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 the 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.
EXHIBIT E
COMMENCEMENT DATE AND ESTOPPEL CERTIFICATE
This Commencement Date and Estoppel Certificate is entered
into by Landlord and Tenant pursuant to Section 3.1 of the Lease.
144
1. DEFINITIONS. In this Certificate the following terms
have the meanings given to them:
(a) Landlord: MBL Life Assurance Corporation
(b) Tenant: IGG International, Inc.
(c) Lease: Office lease dated _______________ between
Landlord and Tenant.
(d) Premises: Suite ____________.
(e) Building Address: Park Square Building
00 Xx. Xxxxx Xxxxxx
Xxxxxx, XX 00000
2. Landlord and Tenant confirm that the Commencement Date
of the Lease is ____________ and the Expiration Date is
____________________ and Section 1.1(k) and (l) are accordingly
amended.
3. The Rentable Area of the Premises is deemed to by 2,968
square feet.
4. The Rentable Area of the Building is deemed to be
445,765 square feet.
5. Tenant's Share is .666 percent.
6. Tenant has accepted possession of the Premises as
provided in the Lease.
7. The Improvements required to be furnished by the
Landlord in accordance with the Workletter (if any) have been
furnished to the satisfaction of Tenant (subject to any
corrective work or punch-list items submitted previously to
Landlord.
8. All terms and conditions to be performed by Landlord
under the Lease have been satisfied and on this date there are no
existing defenses or offsets which Tenant has against the full
enforcement of the Lease by Landlord.
9. The Lease is in full force and effect and has not been
modified, altered, or amended, except as follows: ______________
_________________________________________________________________
10. There are no setoffs or credits against Rent, and no
Security Deposit or prepaid Rent has been paid except as provided
by the Lease.
145
Landlord and Tenant have executed this Commencement Date and
Estoppel Certificate as of the dates set forth below.
Tenant: Landlord:
IGG International, Inc. MBL Life Assurance Corporation
By:_____________________ By:________________________
Name:___________________ Name:______________________
Title:__________________ Title:_____________________
Date:___________________ Date:______________________
EXHIBIT F
CLEAN IRREVOCABLE UNCONDITIONAL LETTER OF CREDIT NO. DATE:
MBL Life Assurance Corporation
000 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
By Order of our Client, ________________________________________,
we hereby open our clean, irrevocable, unconditional, Letter of
Credit No.________ in your favor, for an amount not to exceed the
aggregate of $_____________ effective immediately.
Funds under this Letter of Credit are available to you against
your signs draft on us mentioning thereon our Credit
No._____________.
This Letter of Credit shall expire on ____________; provided,
however, that it is a condition of this Letter of Credit that it
shall be deemed automatically extended, from time to time,
without amendment for one year from the expiry date hereof and
from each and every future expiry date, unless at lease thirty
(30) days prior to any expiry date we shall notify you, by
certified mail, return receipt requested, that we elect not to
consider this Letter of Credit renewed for any such additional
period.
This Letter of Credit is transferable and may be transferred one
or more times upon receipt of your written instruction. (Insert
standard provision for the right to transfer the letter of credit
in accordance with the Uniform Customs and Practice for
Documentary Credits.)
We hereby agree with you that all drafts drawn with the terms of
the Letter of Credit will be duly honored upon presentment and
delivery to our office at _________________________________
_______________________________________ on or prior to the
expiry date, or as the same may from time to time be extended.
146
Except as otherwise specified herein, this Letter of Credit is
subject to the Uniform Customs and Practice for Documentary
Credits, International Chamber of Commerce Publication No 500 or
the most recent version thereof.
Very truly yours,
(NAME OF BANK)
By:____________________________________
Title:___________________________________
F-1
ADDENDUM TO LEASE BETWEEN
IGG INTERNATIONAL, INC.
AS TENANT,
AND
MBL LIFE ASSURANCE CORPORATION,
AS LANDLORD.
DATED AS OF 9/12/97
The lease referred to above (herein, the "Lease") is hereby
amended as follows:
1. Paragraph l.l(t) is hereby amended to provide that the term
"holidays" shall also include President's Day, Patriot's Day,
Bunker Hill Day, Columbus Day, Veterans' Day and the
following when any holiday occurs on a Sunday, as well as
such other days that generally may be recognized as business
holidays in the Commonwealth of Massachusetts from time to
time.
2. Paragraph 3.1, exclusive of the last sentence thereof, is
hereby deleted and the following is inserted in lieu thereof.
Reference is hereby made to the plans and specifications
attached hereto as Exhibit C. The construction work called
for thereunder is hereinafter called the "Buildout
Construction." Upon the execution hereof by both parties
hereto, Landlord will prepare all necessary architectural,
engineering and other construction drawings and will then
commence, and thereafter diligently pursue the installation
of the Buildout Construction in the Premises, the same to be
performed at Landlord's sole cost and expenses (except to the
extent hereinafter set forth). Tenant acknowledges that if
the Buildout Construction includes any items of a standard or
quality other than "Building Standard" (a substantial
147
description of which is included within the specifications
included within said Exhibit C), any cost thereof in excess
of Building Standard shall be borne by Tenant and paid to
Landlord on the Commencement Date (hereinafter defined).
Tenant further acknowledges that if the Buildout Construction
exceeds $28.00 per rentable square foot, any cost in excess
thereof shall be borne by Tenant and paid to Landlord on the
Commencement Date. However, if the Buildout Construction is
less than $28.00 per rentable square foot, Tenant shall be
entitled credit towards the Monthly Rent first coming due
hereunder in an amount equal to the lesser of (i) the
difference between $28.00 per rentable square foot and the
actual cost of the Building Construction, or (ii) $12,767.34.
Tenant shall have the right, acting timely, to require
additional items of construction to be installed in the
Premises (subject to Landlord's approval which shall not be
unreasonably withheld or delayed); but in such event, the
entire cost of the installation of the same also shall be
born by Tenant and paid by Tenant to Landlord on the
Commencement Date. Landlord shall exercise reasonable
efforts to install the Buildout Construction by _________,
199_, and the same shall be deemed ready for Tenant's
occupancy when completed except for items of the Buildout
Construction (and, if applicable, adjustment of equipment and
fixtures) which can be completed after occupancy has been
taken without causing undue interference with Tenant's use of
the Premises (i.e., so call "punch list" items). The date on
which the same occurs is hereinafter called the "Commencement
Date", and such degree of completion is hereinafter called
"Substantial Completion". Landlord shall complete as soon as
conditions reasonably permit all "Punch list" items and
Tenant shall afford Landlord access to the Premises for such
purposes; in all such cases, however, Landlord shall use
reasonable efforts to avoid interfering with Tenant's conduct
of its business. Notwithstanding the foregoing, in the event
that through Tenant's action or inaction (which term shall be
deemed to include, without limitation, delay caused by
changes to the Buildout Construction elected by Tenant and
which are not called for under said plans and specifications)
the Landlord is delayed in the timely completion of the
Buildout Construction, then the same will be deemed ready for
occupancy on the day as of which the Buildout Construction
would have been substantially completed, save for such Tenant
caused delays; further and apart from the foregoing, the
Completion Date shall also be extended for such period as may
be necessitated by acts of God, casualty, labor difficulties,
shortages of materials and other "force majeure" matters not
reasonably within the control of Landlord. Upon the
occurrence of the Commencement Date, Landlord and Tenant
shall join in executing and exchanging a recordable form of
agreement setting forth the Commencement Date. Except to the
extent of Landlord's construction obligations set forth
148
above, Tenant accepts the Premises and the Building in their
present "as-is" condition.
3. Paragraph 6.1(a) is hereby amended to provide that all
casualty insurance on the Building provided by Landlord may
provide that loss proceeds may be first payable to Landlord's
mortgagees of record as their interest may appear in
accordance with a standard form of mortgagee payment clause.
4. After the word "laws" at the end of the third line of
Paragraph 7, the following language shall be inserted:
", or applicable zoning or other municipal ordinances".
5. Paragraph 8.2(a) is amended by inserting, after section
"6901-6987;" in the sixth line thereof, "or "oil and hazardous
materials", as those terms are defined in the
Massachusetts Oil and Hazardous Material Release
Prevention and Response Act, M.G.L. Ch. 21E".
6. Article 8, Paragraph 8.2(c) is amended by inserting, after
"for" in the fourth line thereof, "removing and properly
disposing of any hazardous materials that are released in,
on, or about the Premises or the Project (except if such
release is caused by an act or omission of the Landlord, its
agents, servants or employees).
7. Article 26 of the Lease is hereby deleted in its entirety.
8. The following provisions shall be inserted at the end of
Paragraph 25.6:
"25.7 "Without limitation of any nature upon the rights,
remedies and damages of Landlord as set forth above, in all
events
a) At any time after termination of this Lease by Landlord
on account of an event of default of Tenant, as
liquidated final damages and in lieu of all other
damages beyond the date of demand, Tenant shall pay to
Landlord an amount equal to the excess, if any, of the
rent and other sums as hereinbefore provided which would
be payable hereunder from the date of such demand
(assuming that, for the purposes of this paragraph,
payments by Tenant on account of Operating Expenses
would be the same as the payments required for the
immediately preceding year) for what would be the then
unexpired term of this Lease if the same remained in
effect, over the then fair net rental value of the
Premises for the same period and will indemnify Landlord
monthly for its further loss thereafter; and
149
b) The specified remedies to which Landlord may resort, and
damages which Landlord may seek as herein provided
hereunder are not intended to be exclusive of any
remedies, means of redress or damages to which Landlord
may at any time entitled lawfully, and Landlord may
invoke any remedy (including the remedy of specific
performance) and seek any damages allowed at law or in
equity as if such specific remedies and damages were
herein provided for."
9. In Paragraph 27.5 the last two sentences together commencing
with the words, "Tenant shall, at" and ending with the words
"borne by Landlord" are hereby deleted and the following is
inserted in lieu thereof: "Tenant may record a standard form
of notice of lease, however, provided the same contains only
the minimum statutory provisions thereof and in no event
discloses any rent or other monetary amount payable
hereunder; provided, however, that such notice of lease shall
not be executed unless the term hereof is such that under the
statute and applicable law the recording of a notice of lease
is necessary to protect Tenant's interest in this Lease."
10 Article 19.1 in its entirety and Article 19.2 through and
including the last full line thereof ending with the words
"in interest will" are hereby delated and the following is
inserted in lieu thereof:
"This Lease shall be subordinate to any mortgage from time
to time encumbering the Premises, whether executed and
delivered prior to or subsequent to the date of this Lease,
if the holder of such mortgage shall so elect. Tenant agrees
to execute such instruments of subordination in confirmation
of me foregoing agreement as counsel for such holder
reasonably may request, and Tenant hereby appoints such
holder as Tenant's attorney-in-fact to execute such
subordination agreement upon default of Tenant in complying
with such holder's request. Not without the foregoing
provisions, the Tenant agrees that any first mortgagee of the
Property shall have the right at any time to subordinate any
rights of such first mortgagee to the rights of the Tenant
under this Lease on such terms and subject to such condition
as such first mortgagee deems appropriate. Additionally,
Tenant shall, in the event of the sale or assignment of
Landlord's interest in the Building or in the event of any
proceeding brought for the foreclosure of, or in the event of
exercise of the power of sale under any mortgage covering the
Premises, attorn to the purchaser, assignee or mortgagee, as
the mortgagee as Landlord under this Lease. The execution of
all such documents of subordination shall be conditioned upon
such mortgagee agreeing with Tenant that upon foreclosure of
its mortgage the mortgagee will accept Tenant and Tenant
will attorn to the mortgagee under this Lease but in any such
case such mortgagee shall."
150
11 Without limitation of the provisions of Article 27.7 hereof,
Tenant agrees that in no event shall Landlord ever be liable
hereunder for any indirect or consequential damages in any
respect in connection with any default or breach by Landlord
of any of its obligations, under any provision of this Lease.
12 The provisions of Article 12 and any other provisions of this
Lease to the contrary notwithstanding, Tenant shall be
responsible for, and shall pay when due the cost of all
electricity consumed on, within and from the Premises and all
portions thereof. At Landlord's election either (i) Tenant
will arrange with the utility supplying such electricity to
separately meter the same and xxxx Tenant directly therefor
or (ii) Landlord will install a "check meter" to monitor
Tenant's usage and will xxxx Tenant for Tenant's usage as
shown thereon; or (iii) Landlord will xxxx Tenant monthly for
such electricity at the rate of $1.00 per rentable square
foot per year ($247.33 per month). Xxxxxxxx under (ii) and
(iii) above shall be paid by Tenant at the same time and in
the same manner as Monthly Rent provided above and shall
constitute Additional Rent hereunder.
13 Paragraph 27.26 is deleted in its entirety and the following
is inserted in lieu thereof:
27.26 Landlord's Fees. Whenever Tenant requests Landlord
to take any action or give any consent required or permitted
under this Lease, or takes any action in connection with its
tenancy hereunder as to which Landlord's inspection or
suspension, in Landlord's judgment, is necessary or
appropriate, Tenant will reimburse Landlord for all of
Landlord's reasonable costs incurred in reviewing the
proposed action or consent or inspecting or supervising such
action, including without limitation reasonable attorneys',
engineers' or architects' fees, within 10 days after
Landlord's delivery to Tenant of a statement of such costs.
Tenant will be obligated to make such reimbursement without
regard to whether Landlord consents to any such proposed
action."
14 There being no workletter, all references in the Lease to a
workletter are hereby deleted.
15 Prior to execution of this Lease by Landlord, Tenant shall
deposit with Landlord a clean, irrevocable unconditional
letter of credit issued by a bank acceptable to Landlord (in
Landlord's sole discretion) in the form attached hereto as
Exhibit "F" in the amount equal to $108,128 (the "Initial
LOC"). At any time that Tenant is in default under the lease
beyond applicable notice and grace periods, Landlord shall
have the right to draw down the entire credit and apply the
process to any amounts which are due or which may become due
151
hereunder. Landlord shall also have the right to draw down
the entire amount of the letter of credit in the event that
Landlord receives notice that the date of expiry of the
letter of credit will not be extended by the issuing bank. In
the event Landlord draws down the letter of credit and all
proceeds therefrom are not utilized to cure the default,
Landlord will hold such excess amount in a separate security
deposit account until Tenant obtains a new irrevocable letter
of credit in the original amount issued by a bank acceptable
to Landlord (in Landlord's sole discretion) in the form
attached hereto as Exhibit "F" at which time such excess
amount will be refunded to Tenant.
Notwithstanding the above, on the first anniversary of the
Commencement Date, Tenant may, provided it is not in default,
replace the Initial LOC with a clean irrevocable
unconditional letter of credit issued by the same bank, in
the same form, in an amount equal to 80% of the Initial LOC.
On the second anniversary of the Commencement Date, Tenant
may, provided it is not in default, replace the then current
letter of credit with a clean irrevocable unconditional
letter of credit issued by the same bank, in the same form,
in an amount equal to 60% of the Initial LOC. On the third
anniversary of the Commencement Date, Tenant may, provided it
is not in default, replace the then current letter of credit
with a clean irrevocable unconditional letter of credit
issued by the same bank, in the same form, in an amount equal
to 40% of the Initial LOC. On the fourth anniversary of the
Commencement Date, Tenant may, provided it is not in default,
replace the then current letter of credit with a clean
irrevocable unconditional letter of credit issued by the same
bank, in the same form, in an amount equal to 20% of the
Initial LOC.
Provided Tenant is not in default and Tenant has surrendered
the Premises in accordance with Article 16 of the Lease,
Landlord will return the then current letter of credit to
Tenant on the Expiration Date.
Tenant: Landlord:
IGG INTERNATIONAL, INC. MBL ASSURANCE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx
Date: September 10, 1997 Date: September 15, 1997
