1
EXHIBIT 10.15
OFFICE LEASE AGREEMENT
This Office Lease Agreement is made and entered into as of the
Effective Date by and between OPUS WEST CORPORATION, a Minnesota corporation, as
landlord, and SalesLogix CORPORATION, a Delaware corporation, as Tenant.
DEFINITIONS
Capitalized terms used in this Lease have the meanings ascribed to them
on the attached EXHIBIT "A".
BASIC TERMS
The following Basic Terms are applied under and governed by the
particular section(s) in this Lease pertaining to the following information:
1. PREMISES: Suite 200, consisting of 16,g18 rentable square feet
located on the second floor of the Building. The Premises is depicted on EXHIBIT
"C". The Building contains 140,756 rentable square feet.
2. LEASE TERM: Five years (60 months)
EXTENSION OPTIONS: One, five-year option
3. DELIVERY DATE: November 1, 1999
4. BASIC RENT:
Annual Basic Rent per rentable
Months square foot of the Premises Monthly Installments
--------------------------------------------------------------------
1-60 $27.00 $38,065.00
5. TENANT'S SHARE OF EXCESS EXPENSES PERCENTAGE: 12.02%
6. EXPENSE STOP: $7.50
7. IMPROVEMENT ALLOWANCE: 523.00 per usable square foot of the
Premises.
8. SECURITY DEPOSIT: 5190,327.50
1
2
9. PROPERTY MANAGER Opus West Management Corporation
RENT PAYMENT ADDRESS: 0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xx. Xxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
10. ADDRESS OF LANDLORD Opus West Corporation
FOR NOTICES: 0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn. President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Opus West Corporation
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attn. Legal Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxxxxxx & Xxxxxxx, P.A.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Property manager at the address set forth
above
11. ADDRESS OF TENANT SalesLogix Corporation
FOR NOTICES: 0000 Xxxxx Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxx Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
12. BROKER(S): CB Xxxxxxx Xxxxx
Xxx & Associates
13. GUARANTOR(S): None
2
3
ARTICLE 1.
LEASE OF PREMISES AND LEASE TERM
1.1. Premises. In consideration of the covenants and agreements set
forth In this Lease and Other good and valuable consideration, Landlord leases
the Premises to Tenant and Tenant leases the Premises from Landlord, upon and
subject to the terms, covenants and conditions set forth in this Lease. Landlord
and Tenant stipulate and agree that the Premises contains the amount of rentable
square feet specified in the basic Terms. If for any reason it is subsequently
determined by Landlord or Tenant (to Landlord's satisfaction) that the actual
rentable square footage of the Premises differs from that set forth in the Basic
Terms, the Basic Terms (including Basic Rent and the Tenant's Share of Excess
Expenses Percentage) will be promptly adjusted accordingly by an amendment to
this Lease; provided that any such adjustment will apply only prospectively and
no retroactive adjustments or payments (in favor of either Landlord or Tenant)
on account of any prior excess or shortfall in area will be required.
1.2. Term, Delivery and Commencement.
1.2.1. Commencement and Expiration of Term The Term of this
Lease is the period stated in the Basic Terms. The Term commences on the
Commencement Date and expires on the last day of the last Calendar month of the
Term.
1.2.2. Tender of Possession. Landlord will use commercially
reasonable efforts to tender possession of the Premises to Tenant on or before
the Delivery Date, subject to Force Majeure and Tenant Delay. If Landlord is
unable to tender possession of the Premises to Tenant on or before the Delivery
Date for any reason, this Lease remains in full force and effect and Landlord is
not liable to Tenant for any resulting loss or damage; provided, however, that
unless the delay is Caused by Tenant Delay, Landlord will appropriately adjust
the Commencement Date and Rent Commencement Date.
1.2.3. Commencement Date Memorandum. Promptly after the
Commencement Date, Landlord will deliver to Tenant the Commencement Date
Memorandum with all blanks completed. Tenant will, within 10 days after
receiving it, execute and deliver to Landlord the Commencement Date Memorandum.
Tenant's failure to execute and deliver to Landlord the Commencement Date
Memorandum does not affect any obligation of Tenant under this Lease. If Tenant
does not timely execute and deliver to Landlord the Commencement Date
Memorandum, Landlord and any prospective purchaser or encumbrances may
conclusively rely on the information Contained in the unexecuted Commencement
Date Memorandum which Landlord delivered to Tenant.
1.2.4. Early Occupancy. Tenant will not occupy the Premises
before Substantial Completion without Landlord's prior written consent, which
consent Landlord may grant, withhold or condition in its sole and absolute
discretion. If Landlord consents, during the early occupancy period Tenant may
only install Tenant's furniture, fixtures and equipment in the Premises and must
comply with and observe all terms and conditions of this Lease (other than
Tenant's obligation to pay Basic Rent)
1
4
1.2.5. Extension of Term. Provided that no Event of Default
exists at the time of exercise, Tenant may extend the Term of this Lease for one
(1) additional period of five (5) years. Tenant must exercise such right of
extension by delivering written notice of Tenant's exercise at least nine (9),
but not more than fifteen (15), months prior to the expiration of the Term. Such
extension of the Term will be on the same terms, covenants and Conditions as in
this Lease, other than basic Rent. Basic Rent will be the fair market basic rent
rate of the Premises for the extension period, as reasonably determined by
Landlord in relation to comparable (in quality, location and size) space
allocated in the Building and/or in the City. Landlord's determination of such
fair market basic rent rate will be delivered to Tenant not later than thirty
(30) days after Landlord receives Tenant's exercise notice. In no event will
Basic Rent for such extension of the Term be less than the Basic Rent (exclusive
of temporary abatements) payable by Tenant immediately prior to commencement of
such extension period.
1.3. Effect of Occupancy. Subject to the Warranty Terms, Tenant's
occupancy of the Premises conclusively establishes that Landlord completed the
Improvements as required by this Lease in a manner satisfactory to Tenant.
Tenant's failure to strictly comply with the Warranty Terms with respect to any
item included as part of the Improvements constitutes Tenant's waiver and
release of any and all rights, benefits, claims or warranties available to
Tenant under this Lease, at law or in equity in connection with each such item.
ARTICLE 2.
RENTAL AND OTHER PAYMENTS
2.1. Basic Rent. Tenant will pay Basic Rent in monthly installments to
Landlord, in advance, without offset or deduction, commencing on the Rent
Commencement Date and continuing on the first day of each and every calendar
month after the Rent Commencement Date during the Term. Tenant will make all
Basic Rent payments to Property Manager at the address specified in the basic
Terms or at such other place or in such other manner as Landlord may from time
to time designate in writing. Tenant will make all basic Rent payments without
Landlord's previous demand, invoice or notice for payment. Landlord and Tenant
will prorate, on a per diem basis, Basic Rent for any partial month within the
Term. An amount equal to one full month of basic Rent at the initial rate
specified in the Basic Terms will be paid to Landlord by Tenant upon execution
of this Lease by Tenant, to be applied against the first installment of Basic
Rent by Landlord when due.
2.2. Additional Rent. Article 3 of this tease requires Tenant to pay
certain Additional Rent pursuant to estimates Landlord delivers to Tenant.
Tenant will make all payments of estimated Additional Rent in accordance with
Sections 3.3 and 3.4 without deduction or offset and without Landlord's previous
demand, invoice or notice for payment. Tenant will pay all other Additional Rent
described in this Lease that is not estimated under Sections 3.3 and 3.4 within
10 days after receiving Landlord's invoice for such Additional Rent. Tenant will
make all Additional Rent payments to the same location and, except as described
in the previous sentence, in the same manner as Tenant's Basic Rent payments.
2.3. Delinquent Rental Payments. If Tenant does not pay any installment
of Basic Rent or any Additional Rent within five days after the date the payment
is due, Tenant will pay
2
5
Landlord a late payment charge equal to 5% of the amount of the delinquent
payment. Further, if Tenant does not pay any installment of Basic Rent or any
Additional Rent within 30 days after the date the payment is due, Tenant will
pay Landlord interest on the delinquent payment calculated at the Maximum Rate
from the date when the payment is due through the date the payment is made.
Landlord's right to such compensation for the delinquency is in addition to all
of Landlord's rights and remedies under this Lease, at law or in equity.
2.4. Independent Obligations. Notwithstanding any contrary term or
provision of this Lease, Tenant's covenant and obligation to pay Rent is
independent from any of Landlord's covenants, obligations, warranties or
representations in this Lease. Tenant will pay Rent without any right of offset
or deduction.
ARTICLE 3.
PROPERTY TAXES AND OPERATING EXPENSES
3.1. Payment of Excess Expenses. Tenant will pay, as Additional Rent
and in the manner this Article 3 describes, Tenant's Share of Excess Expenses
due and payable during any calendar year of the Term. Landlord will prorate
Tenant's Share of Excess Expenses due and payable during the calendar year in
which the Lease commences or terminates as of the Commencement Date or
termination date, as applicable, on a per diem basis based on the number of days
of the Term within such calendar year.
3.2. Estimation of Tenant's Share of Excess Expenses, Landlord will
deliver to Tenant a written estimate of the following for each calendar year of
the Term: (a) Property Taxes, (b) Operating Expenses, (c) Excess Expenses, (d)
Tenant's Share of Excess Expenses, and (e) the annual and monthly Additional
Rent attributable to Tenant's Share of Excess Expenses.
3.3. Payment of Estimated Tenant's Shares of Excess expenses. Tenant
will pay the amount Landlord estimates as Tenant's Share of Excess Expenses
under Section 3.2 for each calendar year of the Term in equal monthly
installments, in advance, commencing on the Rent Commencement Date and
thereafter on the first day of each and every calendar month during the Term. If
Landlord has not delivered the estimates to Tenant by the first day of January
of the applicable calendar year, Tenant will continue paying Tenant's Share of
Excess Expenses based on Landlord's estimates for the previous calendar year.
when Tenant receives Landlord's estimates for the current calendar year, Tenant
will pay the estimated amount (less amounts Tenant paid to Landlord in
accordance with the immediately preceding sentence) in equal monthly
installments over the balance of such calendar year, with the number of
installments being equal to the number of full calendar months remaining in such
calendar year. Notwithstanding anything contained herein to the contrary, Tenant
is not obligated to pay Tenant's Share of Excess Expenses during the first 12
months of the Term.
3.4. Re-Estimation of Excess Expenses. Landlord may re-estimate Excess
Expenses from time to time during the Term. In such event, Landlord will
re-estimate the monthly Additional Rent attributable to Tenant's Share of Excess
Expenses to an amount sufficient for Tenant to pay the re- estimated monthly
amount over the balance of the calendar year. Landlord
3
6
will notify Tenant of the re- estimate and Tenant will pay the re-estimated
amount in the manner provided in the last sentence of Section 3.3.
3.5. Confirmation of Tenant's Share of Excess Expenses. After the end
of each calendar year within the Term, Landlord will determine the actual amount
of Excess Expenses and Tenant's Share of Excess Expenses for the expired
calendar year and deliver to Tenant a written statement of such amounts. If
Tenant paid less than the amount of Tenant's Share of Excess Expenses specified
in the statement, Tenant will pay the difference to Landlord as Additional! Rent
in the manner described in Section 2.2. If Tenant paid mom than the amount of
Tenant's Share of Excess Expenses specified In the statement, Landlord will, at
Landlord's option, either (a) refund the excess amount to Tenant, or (b) credit
the excess amount against Tenant's next due monthly installment or installments
of estimated Additional Rent If Landlord is delayed in delivering such statement
to Tenant, such delay does not constitute Landlord's waiver of Landlord's rights
under this Section.
3.6. Tenant's Inspection and Audit Rights. If Tenant disputes
Landlord's determination of the actual amount of Excess Expenses or Tenant's
Share of Excess Expenses for any calendar year, and provided that (a) no Event
of Default exists under this Lease, and (b) Tenant delivers to Landlord written
notice of the dispute within 30 days after Landlord's deliver of the statement
of such amount under Section 3.5, then Tenant (but not any subtenant or
assignee) may, at its sole cost and expense, upon prior written notice and
during regular business hours at ~ time and place reasonably acceptable to
landlord (which may be the location where Landlord or Property Manager maintains
the applicable records), cause a certified public accountant reasonably
acceptable to landlord to audit Landlord's records relating to the disputed
amounts Tenant's objection to Landlord's determination of Excess Expenses or
Tenant's Share of Excess Expenses is deemed withdrawn unless Tenant completes
and delivers the audit to Landlord within 60 days after the date Tenant delivers
its dispute notice to Landlord under this Section, If the audit shows that the
amount Landlord charged Tenant for Tenant's Share of Excess Expenses was greater
than the amount this Article 3 obligates Tenant to pay, unless Landlord
reasonably contests the audit, Landlord will refund the excess amount to Tenant,
together with interest on the excess amount at the Maximum Rate (computed from
the date Tenant delivers its dispute notice to landlord) within 10 days after
landlord receives a copy of the audit report. If the audit shows that the amount
Landlord charged Tenant for Tenant's Share of Excess Expenses was less than the
amount this Article 3 obligates Tenant to pay, Tenant will pay to Landlord, as
Additional Rent, the difference between the amount Tenant paid and the amount
determined in the audit, together with interest on the difference at the Maximum
Rate (computed from the date Tenant delivers its dispute notice to Landlord)
Pending resolution of any audit under this Section, Tenant will continue to pay
to Landlord the estimated amounts of Tenant's Share of Excess Expenses in
accordance with Sections 3 and 3.4. Tenant must keep all information it obtains
in any audit strictly confidential and may only use such information for the
limited purpose this Section describes and for Tenant's own account.
3.7. Annual Amendment to Tenant's Share of Excess Expenses Percentage.
Notwithstanding any contrary language in this Lease, Landlord may change
Tenant's Share of Excess Expenses Percentage each calendar year to the
percentage Landlord calculates by dividing the rentable area of the Premises by
the greater of (a) 95% of the rentable area of the Building for such calendar
year; or (b) the rentable area of the Building actually leased pursuant
4
7
to leases under which the terms have commenced for such calendar year. In no
event will Landlord include basement storage space or garage space in Landlord's
calculation of the rentable area of the Building.
3.8. Personal Property Taxes. Tenant will pay, prior to delinquency,
all taxes charged against Tenant's trade fixtures and other personal property.
Tenant will use all reasonable efforts to have such trade fixtures and other
personal property taxed separately from the Property, If any of Tenant's trade
fixtures and other personal property are taxed with the Property, Tenant will
pay the taxes attributable to Tenant's trade fixtures and other personal
property to Landlord as Additional Rent
3.9. Landlord's Right to Contest Property Taxes, landlord may, but is
not obligated to, contest the amount or validity, in whole or in part, of any
Property Taxes, landlord's contest will be at landlord's sole cost and expense
except that if Property Taxes are reduced (or if a proposed increase is avoided
or reduced) because of Landlord's contest, Landlord may include in its
computation of Property Taxes the costs and expenses landlord incurred in
connection with contesting the Property Taxes, including without limitation
reasonable attorney's fees, up to the amount of any Property Tax reduction
landlord realized from the contest or any Property Tax increase avoided or
reduced in connection with the contest, as the case may be. Tenant may not
contest Property Taxes.
3.10. Adjustment for Variable Operating Expenses. Notwithstanding any
contrary language in this Article 3, if 95% or more of the rentable area of the
Building is not occupied at all times during any calendar year pursuant to
leases under which the terms have commenced for such calendar year, Landlord
will reasonably and equitably adjust Its computation of Operating Expenses for
that calendar year to obligate Tenant to pay all components of Operating
Expenses that vary based on occupancy in an amount equal to the amount Tenant
would have paid for such components of Operating Expenses had 95% of the
rentable area of the Building been occupied at all times during such calendar
year pursuant to leases under which the terms have commenced for such calendar
year. Landlord will also equitably adjust Operating Expenses to account for any
Operating Expense any tenant of the Building pays directly to a service
provider.
3.11. Rent Tax. Tenant shall pay to Landlord all Rent Tax due in
connection with this Lease or the payment of Rent hereunder, which Rent Tax
shall be paid by Tenant to Landlord concurrently with each payment of Rent made
by Tenant to Landlord under this Lease.
ARTICLE 4.
USE
4.1. Permitted Use. Tenant will occupy and operate the Premises at all
times during the Term and will not vacate the Premises prior to the expiration
of the Term without Landlord's prior written consent, which consent Landlord may
grant or withhold in its sole and absolute discretion. Tenant will not use the
Premises for any purpose" other than general office purposes. Tenant will not
use the Property or knowingly permit the Premises to be used in violation of any
Laws or in any manner that would (a) violate any certificate of occupancy
affecting the Property; (b) make void or voidable any insurance now or after the
Effective Date in force with respect to
5
8
the Property; (c) cause injury or damage to the Property or to the person or
property of any other tenant on the Property; (d) cause substantial diminution
in the value or usefulness of all or any part of the Property (reasonable wear
and tear excepted); or (e) constitute a public or private nuisance or waste.
Tenant will obtain and maintain, at Tenant's sole cost and expense, all permits
and approvals required under the Laws for Tenant's use of the Premises.
4.2. Acceptance of Premises. Except for the Warranty Terms, Tenant
acknowledges that neither Landlord nor any agent, contractor or employee of
Landlord has made any representation or warrant of any kind with respect to the
Premises, the Building or the Property, specifically including, but not limited
to, any representation or warranty of suitability of fitness of the Premises,
Building or the Property for any particular purpose. Subject to the Warranty
Terms, Tenant accepts the Premises, the Building and the Property in an "AS IS -
WHERE IS" condition.
4.3. Increased Insurance. Tenant will not do on the Property or permit
to be done on the Premises anything that will (a) increase the premium of any
insurance policy Landlord carries covering the Premises or the Property; (b)
cause a cancellation of or be in conflict with any such insurance policy; (c)
result in any insurance company's refusal to issue or continue any such
insurance in amounts satisfactory to Landlord; or (d) subject Landlord to any
liability or responsibility for injury to any person or property by reason of
Tenant's operations in the Premises or use of the Property. Tenant will, at
Tenant's sole cost and expense, comply with all rules, orders, regulations and
requirements of insurers and of the American Insurance Association or any other
organization performing a similar function. Tenant will reimburse Landlord, as
Additional Rent, for any additional premium charges for such policy or policies
resulting from Tenant's failure to comply with the provisions of this Section.
4.4. Laws/Building Rules. This lease is subject and subordinate to all
Laws. A copy of the current building Rules is attached to this Lease as EXHIBIT
"E". Landlord may amend the Building Rules from time to time in Landlord's sole
and absolute discretion.
4.5. Common Area. Landlord grants Tenant the non-exclusive right,
together with all other occupants of the Building and their agents, employees
and invitees, to use the Common Area during the Term, subject to all laws.
Landlord may, at landlord's sole and exclusive discretion, make changes to the
Common Area. Landlord's rights regarding the Common Area include, but are not
limited to, the right to (a) restrain unauthorized persons from using the Common
Area; (b) place permanent or temporary kiosks, displays, carts or stands in the
Common Area and to lease the same to tenants; (c) temporarily close any portion
of the Common Area (i) (or repairs, improvements or Alterations, (ii) to
discourage unauthorized use, (iii) to prevent dedication or prescriptive rights,
or (iv) for any other reason landlord deems sufficient in Landlord's judgment;
(d) change the shape and size of the Common Area; (e) add, eliminate or change
the location of any improvements located in the Common Area and construct
buildings or other structures in the Common Area; and (f) impose and revise
Building Rules concerning use of the Common Area, including any parking
facilities comprising a portion of the Common Area.
4.6. Signs. Landlord will initially provide to Tenant (a) one building
standard tenant identification sign adjacent to the entry door of the Premises
and (b) one standard building directory listing. The signs will conform to
Landlord's sign criteria. Tenant will not install or
6
9
permit to be installed In the Premises any other sign, decoration or advertising
material of any kind that is visible from the exterior of the Premises. Landlord
may immediately remove, at Tenant's sole cost and expense, any sign, decoration
or advertising material that violates this Section.
ARTICLE 5.
HAZARDOUS MATERIALS
5.1. Compliance with Hazardous. Materials Laws. Tenant will not cause
any Hazardous Material to be brought upon, kept or used on the Property in a
manner or for a purpose prohibited by or that could result in liability under
any Hazardous Materials Law. Tenant, at its sole cost and expense, will comply
with all Hazardous Materials Laws and prudent industry practice relating to the
presence, treatment, storage, transportation, disposal, release or management of
Hazardous Materials in, on, under or about the Property required for Tenant's
use of the Premises and will notify Landlord of any and all Hazardous Materials
Tenant brings upon, keeps or uses on the Property (other than small quantities
of office cleaning or other once supplies as are customarily used by a tenant in
the ordinary course in a general office facility). On or before the expiration
or earlier termination of this Lease, Tenant, at its sole cost and expense, will
completely remove from the Property (regardless whether any Hazardous Materials
Law requires removal), in compliance with all Hazardous Materials Laws, all
Hazardous Materials Tenant causes to be present in, on, under or about the
Property. Tenant will not take any remedial action in response to the presence
of any Hazardous Materials in on, under or about the Property, nor enter into
any settlement agreement, consent decree or other compromise with respect to any
Claims relating to or in any way connected with Hazardous Materials in, on,
under or about the Property, without first notifying Landlord of Tenant's
intention to do so and affording Landlord reasonable opportunity to investigate,
appear, intervene and otherwise assert and protect Landlord's interest in the
Property.
5.2. Notice of Actions. Tenant will notify Landlord of any of the
following actions affecting Landlord, Tenant or the Property that result from or
in any way relate to Tenant's use of the Property immediately after receiving
notice of the same: (a) any enforcement, clean-up, renewal or other governmental
or regulatory action instituted, completed or threatened under any Hazardous
Materials Law; (b) any Claim made or threatened by any person relating to
damage, contribution, liability, cost recovery, compensation, loss or injury
resulting from or claimed to result from any Hazardous Material; and (c) any
reports made by any person, including Tenant, to any environmental agency
relating to any Hazardous Material, including any complaints, notices, warnings
or asserted violations. Tenant will also deliver to Landlord, as promptly as
possible and in any event within five Business Days after Tenant first receives
or sends the same, copies of all Claims, reports, complaints, notices, warnings
or asserted violations relating in any way to the Premises or Tenant's use of
the Premises. Upon Landlord's written request, Tenant will promptly deliver to
Landlord documentation acceptable to Landlord reflecting the legal and proper
disposal of all Hazardous Materials removed or to be removed from the Premises.
All such documentation will list Tenant or its agent as a responsible party and
will not attribute responsibility for any such Hazardous Materials to Landlord
or Property Manager.
7
10
5.3. Disclosure and Warning Obligations. Tenant acknowledges and agrees
that all reporting and warning obligations required under Hazardous Materials
Laws resulting from or in any way relating to Tenant's use of the Premises or
Property are Tenant's sole responsibility, regardless whether the Hazardous
Materials Laws permit or require Landlord to report or warn.
5.4. Indemnification. Tenant will indemnify, defend (with counsel
reasonably acceptable to Landlord), protect and hold harmless the Landlord
Parties from and against any and all Claims whatsoever arising or resulting, in
whole or in part, directly or indirectly, from the presence, treatment, storage,
transportation, disposal, release or management of Hazardous Materials in, on,
under, upon or from the Property (including water tables and atmosphere)
resulting from or in any way related to Tenant's use of the Premises or
Property, Tenant's obligations under this Section include, without limitation
and whether foreseeable or unforeseeable, (a) the costs of any required or
necessary repair, clean-up, detoxification or decontamination of the Property;
(b) the costs of implementing any closure, remediation or other required action
in connection therewith as stated above; (c) the value of any loss of use and
any diminution in value of the Property; and (d) consultants' fees, experts'
fees and response costs The obligations of Tenant under this Section survive the
expiration or earlier termination of this Lease
ARTICLE 6.
SERVICES
6.1. Landlord's Obligations. Landlord will provide the following
services, the costs of which are Operating Expenses.
6.1.1. Janitorial Service. Janitorial service in the Premises,
five times per week, including cleaning, trash removal, vacuuming, maintaining
towels, tissue and other restroom supplies and such other work as is Customarily
performed in connection with nightly janitorial services in office complexes
similar in construction, location, use and occupancy to the Property. Landlord
will also provide periodic interior and exterior window washing and cleaning and
waxing of uncarpeted floors in accordance with Landlord's schedule for the
Building.
6.1.2. Electrical Energy. Electrical energy to the Premises
for lighting and for operating office machines for general office use.
Electrical Energy will be sufficient for Tenant to operate personal computers
and other equipment of similar low electrical consumption, but will not be
sufficient for lighting in excess of 2.2 xxxxx per square foot installed or for
electrical convenience outlets in excess of 3.5 xxxxx per square foot installed.
Tenant will not use any equipment requiring electrical energy in excess of the
above standards without receiving Landlord's prior written consent, which
consent Landlord will not unreasonably withhold but may condition on Tenant
paying all costs of installing the equipment and facilities necessary to furnish
such excess energy and an amount equal to the average cost per unit of
electricity for the Building applied to the excess use as reasonably determined
either by an engineer selected by Landlord or by submeter installed at Tenant's
expense. Landlord will replace all lighting bulbs, tubes, ballasts and starters
within the Premises at Tenant's sole cost and expense unless the costs of such
replacement are included in Operating Expenses. If such costs are not included
in Operating Expenses, Tenant will pay such costs as Additional Rent.
8
11
6.1.3. Heating, Ventilation and Air Conditioning. During
Business Hours, heating, ventilation and air conditioning to the Premises
sufficient to maintain, in Landlord's reasonable judgment, comfortable
temperatures In the Premises. During other times, Landlord will provide heat and
air conditioning upon Tenant's reasonable advance notice (not less than one
hour). Tenant will pay Landlord, as Additional Rent, for such extended service
on an hourly basis at the prevailing rates Landlord reasonably establishes. If
extended service is not a continuation of the service Landlord furnished during
Business Hours, Landlord may inquire Tenant to pay for a minimum of one hour of
such service. Landlord will provide air conditioning to the Premises based on
standard lighting and general office use only.
6.1.4. Water. Hot and cold water from standard building
outlets for lavatory, restroom and drinking purposes.
6.1.5. Elevator Service. Elevator service to be used by Tenant
in common with other tenants. Landlord may restrict Tenant's use of elevators
for freight purposes to the freight elevator and to hours landlord reasonably
determines. Landlord may limit the number of elevators in operation at times
other than Business Hours.
6.2. Tenant's Obligations. Tenant is solely responsible for paying
directly to the applicable utility companies, prior to delinquency, all
separately metered or separately charged utilities, if any, to the Premises or
to Tenant. Such separately metered or charged amounts are not Operating
Expenses. Except as provided in Sections 6.1 and 17.1, Tenant will also obtain
and pay for all other utilities and services Tenant requires with respect to the
Premises (including, but not limited to, hook-up and connection charges).
6.3. Other Provisions Relating of Services. No interruption in, or
temporary stoppage of, any of the services this Article 6 describes is to be
deemed an eviction or disturbance of Tenant's use and possession of the
Premises, nor does any interruption or stoppage relieve Tenant from any
obligation this Lease describes, render Landlord liable for damages or entitle
Tenant to any Rent abatement, Landlord is not required to provide any heat, air
conditioning, electricity or other senvice in excess of that permitted by
voluntary or involuntary governmental guidelines or other Laws. Landlord has the
exclusive right and discretion to select the provider of any utility or service
to the Property and to determine whether the Premises or any other portion of
the Property may or will be separately metered or separately supplied. Landlord
reserves the right, from time to time, to make reasonable and non-discriminatory
modifications to the above standards for utilities and services.
6.4. Tenant Devices. Tenant will not, without Landlord's prior written
consent, use any apparatus or device in or about the Premises that causes
substantial noise, odor or vibration. Tenant will not connect any apparatus or
device to electrical current or water except through the electrical and water
outlets Landlord installs in the Premises.
ARTICLE 7.
MAINTENANCE AND REPAIR
7.1. Landlord's Obligations. except as otherwise provided in this
Lease, Landlord will repair and maintain the following in good order, condition
and repair: (B) the foundations,
9
12
exterior walls and roof of the Building; and (b) the electrical, mechanical,
plumbing, heating and air Conditioning systems, facilities and components
located in the Building and used in common by all tenants of the Building
Landlord will also maintain and repair Common Area and the windows, doors, plate
glass and the exterior surfaces of walls that are adjacent to Common Area.
Landlord's repair and maintenance costs under this Section 7.1 are Operating
Expenses. Neither basic Rent nor Additional Rent will be reduced, nor will
Landlord be liable, for loss or injury to or interference with Tenant's
property, profits or business arising from or in connection with Landlord's
performance of its Obligations under this Section.
7.2. Tenant's Obligations.
7.2.1. Maintenance of Premises. Except as otherwise
specifically provided in this Lease, Landlord is not required to furnish any
services or facilities, or to make any repairs or Alterations, in, about or to
the Premises or the Property. Except as specifically described in Section 7.1,
Tenant assumes the full and sole responsibility for the condition, operation,
repair, replacement, maintenance and management of the Premises. Except as
specifically described in section 7.1, Tenant, at Tenant's sole cost and
expense, will keep and maintain the Premises (including, but not limited to, all
non- structural interior portions, systems and equipment; interior surfaces of
exterior walls; interior moldings, partitions and ceilings; and interior
electrical, Lighting and plumbing fixtures) in good order, condition and repair,
reasonable wear and tear and damage from insured casualties excepted. Tenant
will keep the Premises in B neat and sanitary condition and will not commit any
nuisance or waste in, on or about the Premises or the Property. If Tenant
damages or injures the Common Area or any part of the Property other than the
Premises, Landlord will repair the damage and Tenant will pay Landlord for all
uninsured costs and expenses of Landlord in connection with the repair as
Additional Rent. Tenant will maintain the Premises in a first-class and fully
operative condition. Tenant's repairs will be at least equal In quality and
workmanship to the original work and Tenant will make the repairs in accordance
with all Laws.
7.2.2. Alterations Required by Laws. If any governmental
authority requires any Alteration to the Building or the Premises as a result of
Tenant's particular use of the Premises or as a result of any Alteration to the
Premises made by or on behalf of Tenant or if Tenant's particular use of the
Premises subjects Landlord or the Property to any obligation under any Laws,
Tenant will pay the cost of all such Alterations or the cost of compliance, as
the case may be. If any such Alterations are Structural Alterations, Landlord
will make the Structural Alterations, provided that Landlord may first require
Tenant to deposit with Landlord an amount sufficient to pay the cost of the
Structural Alterations (including, without limitation- reasonable overhead and
administrative costs), If the Alterations are not Structural Alterations, Tenant
will make the Alterations at Tenant-s sole cost and expense in accordance with
ARTICLE 8.
ARTICLE 8.
CHANGES AND ALTERATIONS
8.1. Landlord Approval. Tenant will not make any Structural
Alterations. Tenant will not make any other Alterations without landlord's prior
written Consent, which consent Landlord may grant, withhold or condition in its
sole and absolute discretion. Along with any request for
10
13
Landlord's consent- Tenant will deliver to Landlord plans and specifications for
the Alterations and names and addresses of all prospective contractors for the
Alterations. If Landlord approves the proposed Alterations- Tenant will, before
commencing the Alterations or delivering (or accepting delivery of any materials
to be used in connection with the Alterations, deliver to Landlord copies of all
contracts, proof of insurance required by Section 8,2, copies of any contractor
safety programs, copies of all necessary permits and licenses and such other
information relating to the Alterations as Landlord reasonably requests. Tenant
will not commence the Alterations before Landlord has, in Landlord's reasonable
discretion, provided Landlord's written approval of the foregoing deliveries.
Tenant will construct all approved Alterations or cause all approved Alterations
to be constructed (a) promptly by a contractor Landlord approves in writing in
Landlord-s sole and absolute discretion, (b) in a good and workmanlike manner,
(c) in Compliance with all Laws, (d) in accordance with all orders, rules and
regulations of the Board of Fire Underwriters having jurisdiction over the
Premises and any other body exercising similar functions, (e) during times
reasonably determined by Landlord to minimize interference with other tenants'
use and enjoyment of the Property, and (f) in full compliance with all of
Landlord's rules and regulations applicable to third party contractors,
subcontractors and suppliers performing work at the Property,
8.2. Tenant's Responsibility for Cost and Insurance Tenant will pay the
cost and expense of all Alterations, including, without limitation, a reasonable
charge for Landlord's review, inspection and engineering time, and for any
painting, restoring or repairing of the Premises or the Building the Alterations
occasion. Prior to commencing the Alterations, Tenant will deliver the following
to Landlord in form and amount reasonably satisfactory to Landlord: (a)
demolition (if applicable) and payment and performance bonds, (b) builder's "all
risk" insurance in an amount at least equal to the replacement value of the
Alterations, and (c) evidence that Tenant and each of Tenant's contractors have
in force liability insurance insuring against construction related risks in at
least the form, amounts and coverages required of Tenant under Article 10, The
insurance policies described in clauses (b) and (c) of this Section must name
Landlord, Landlord's lender (if any) and Property Manager as additional
insureds.
8.3. Construction Obligations and Ownership, Landlord may inspect
construction of the Alterations Immediately after Completing the Alterations,
Tenant will furnish Landlord with contractor affidavits, full and final lien
waivers and receipted bills covering all labor and materials expended and used
in Connection with the Alterations, Tenant will remove any Alterations Tenant
constructs in violation of this Article 8 within 10 days after Landlord's
written request and in any event prior to the expiration or earlier termination
of this Lease. All Alterations Tenant makes or installs (including all
telephone, computer and other wiring and cabling located within the walls of and
outside the Premises, but excluding Tenant's movable trade fixtures, furniture
and equipment) become the property of Landlord and a part of the Building
immediately upon installation and, unless Landlord requires Tenant to remove the
Alterations, Tenant will surrender the Alterations to Landlord upon the
expiration or earlier termination of this Lease at no cost to Landlord.
8.4. Liens. Tenant will keep the Property free from any mechanics',
materialmens', designers' or other liens arising out of any work performed,
materials furnished or obligations incurred by or for Tenant or any person or
entity claiming by, through or under Tenant. Tenant will notify Landlord in
writing 30 days prior to Commencing any Alterations in order to provide
11
14
Landlord the opportunity to record and post notices of non-responsibility or
such other protective notices available to Landlord under the Laws. If any such
liens are filed and Tenant, within 15 days after such filing, does not release
the same of record or provide Landlord with a bond or other surety satisfactory
to Landlord protecting Landlord and the Property against such liens, Landlord
may, without waiving its rights and remedies based upon such breach by Tenant
and without releasing Tenant from any obligation under this Lease, cause such
liens to be released by any means Landlord deems proper, including, but not
limited to, paying the claim giving rise to the lien or posting security to
cause the discharge of the lien. In such event, Tenant will reimburse Landlord,
as Additional Rent, for all amounts Landlord pays (including, without
limitation, reasonable attorneys' fees and costs).
8.5. Indemnification. To the fullest extent allowable under the Laws,
Tenant will indemnity, protect, defend (with Counsel reasonably acceptable to
Landlord) and hold harmless the Landlord Parties and the Property from and
against any Claims in any manner relating to or arising out of any Alterations
or any other work performed, materials furnished or obligations incurred by or
for Tenant or any person or entity claiming by, through or under Tenant.
ARTICLE 9.
RIGHTS RESERVED BY LANDLORD
9.1. Landlord's Entry. subject to the Building Rules, and paragraph 25
thereof in particular, Landlord and its authorized representatives may at all
reasonable times and upon reasonable notice to Tenant enter the Premises to; (a)
inspect the Premises; (b) show the Premises to prospective purchasers,
mortgagees and tenants; (c) post notices of non-responsibility or Other
protective notices available under the Laws; or (d) exercise and perform
Landlord's rights and obligations under this Lease. Landlord may in the event of
any emergency enter the Premises without notice to Tenant. Landlord's entry into
the Premises is not to be construed as a forcible or unlawful entry into, or
detainer of, the Premises or as an eviction of Tenant from all or any part of
the Premises. Tenant will also permit Landlord (or its designees) to erect,
install, use, maintain, replace and repair pipes, cables, conduits, plumbing and
vents, and telephone, electric and other wires or Other items, in, to and
through the Premises if Landlord determines that such activities are necessary
or appropriate for properly operating and maintaining the Building.
9.2. Control of Property. Landlord reserves all rights respecting the
Property and Premises not specifically granted to Tenant under this Lease,
including, without limitation, the right to: (a) change the name or street
address of the Building; (b) designate and approve all types of signs, window
coverings, internal lighting and other aspects of the Premises and its contents
that may be visible from the exterior of the Premises; (c) grant any party the
exclusive right to conduct any business or render any service in the Building,
provided such exclusive right to conduct any business or render any service in
the Building does not prohibit Tenant from any permitted use for which Tenant is
then using the Premises; (d) prohibit Tenant from installing vending or
dispensing machines of any kind in or about the Premises other than those Tenant
installs in the Premises solely for use by Tenant's employees; (e) close the
Building after Business Hours, except that Tenant and its employees and invitees
may access the Premises after Business Hours in accordance with such rules and
regulations as Landlord may prescribe from
12
15
time to time for security purposes; (f) install, operate and maintain security
systems that monitor, by Closed circuit television or otherwise, all persons
entering or leaving the Building; (g) install and maintain pipes, ducts,
conduits, wires and structural elements in the Premises that serve other parts
or other tenants of the Building; and (h) retain and receive master keys or pass
keys to the Premises and all doors in the Premises. Notwithstanding the
foregoing, or the provision of any security-related services by Landlord,
Landlord is not responsible for the security of persons or property on the
Property and Landlord is not and will not be liable in any way whatsoever for
any breach of security not solely and directly caused by the gross negligence or
willful misconduct of Landlord, its agents or employees,
9.3. Right to Cute. If Tenant defaults in the performance of any
obligation under this Lease, Landlord may, but is not obligated to, perform any
such obligation on Tenant's part without waiving any rights based upon such
default and without releasing Tenant from any obligations hereunder. Tenant must
pay to Landlord, within 10 days after delivery by Landlord to Tenant of
statements therefor, sums equal to expenditures reasonably made and obligations
incurred by Landlord in connection with the remedying by Landlord of Tenant's
defaults. Such obligations survive the termination or expiration of this Lease.
9.4. Space Planning Substitution. Upon not less than 45 days prior
written notice to Tenant, Landlord may relocate Tenant to other space of
comparable size (and comparable quality improvements) within the Building.
Landlord will move or pay for moving Tenant's personal property and equipment
from the original Premises to the new space and will reimburse Tenant for
reasonable, documented out-of-pocket costs Tenant incurs (not exceeding two
months' Basic Rent) as a result of the relocation. Prior to or concurrently with
the relocation, Landlord will prepare, and the parties will execute, an
amendment to this Lease to evidence the relocation and make any necessary
changes to the Basic Terms resulting from the relocation.
ARTICLE 10.
INSURANCE
10.1. Tenant's Insurance Obligations. Tenant will at all times during
the Term and during any early occupancy period, at Tenant's sole cost and
expense, maintain the insurance this Section 10.1 describes.
10.1.1. Liability Insurance. Commercial general liability
insurance (providing coverage at least as broad as the current ISO form) with
respect to the Premises and Tenant's activities in the Premises and upon and
about the Property, on an "occurrence" basis, with minimum limits of $1,000,000
each occurrence and $3,000,000 general aggregate. Such insurance must include
specific coverage provisions or endorsements (a) for broad form contractual
liability insurance insuring Tenant's obligations under this Lease; (b) naming
Landlord and Property Manager as additional insureds by an "Additional Insured -
Managers or Lessors of Premises" endorsement (or equivalent coverage or
endorsement); (c) waiving the insurers subrogation rights against all Landlord
Parties; (d) providing Landlord with at least 30 days prior notice of
modification, cancellation or expiration; (e) expressly stating that Tenants
insurance will be provided on a primary basis and will not contribute with any
insurance Landlord maintains; and (f) providing that the insurer has a duty to
defend all insureds under the
13
16
policy (including additional insureds), and that defense costs are paid in
addition to, and do not deplete, the policy limits. If Tenant provides such
liability insurance under a blanket policy, the insurance must be made
specifically applicable to the Premises and this Lease on a "per location"
basis.
10.1.2. Property Insurance. Property insurance providing
coverage at least as broad as the current ISO Special Form ("all-risks") policy
in an amount not less than the full insurable replacement cost of all of
Tenant's trade fixtures and other personal property within the Premises and
including business income insurance covering at Least nine months loss of income
from Tenant's business in the Premises. Such property insurance must include
"agreed amount, no coinsurance" provisions.
10.1.3. Other Insurance. Such other insurance as may be
required by any Laws from time" to time. If insurance obligations generally
required of tenants in similar space in similar office buildings in the area in
which the Premises is located increase or otherwise change, Landlord may
likewise increase or otherwise change Tenant's insurance obligations under this
Lease.
10.1.4. Miscellaneous Insurance" Provisions. All of Tenant's
insurance will be written by companies rated at least "Best A-Vll" and otherwise
reasonably satisfactory to Landlord. Tenant will deliver a certified copy of
each policy, or other evidence of insurance satisfactory to Landlord, (a) on or
before the Commencement Date (and prior to any earlier occupancy by Tenant), (b)
not later than 30 days prior to the expiration of any current policy or
certificate, and (c) at such other times as Landlord may reasonably request (but
not more than two additional times in any calendar year). If Landlord allows
Tenant to provide evidence of insurance by certificate, Tenant will deliver an
XXXXX Form 27 (or equivalent) certificate and will attach or cause to be
attached to the certificate copies of the endorsements this Section 10.1
requires (including specifically, but without limitation, the "additional
insured" endorsement). Tenant's insurance must permit releases of liability and
provide for waiver of subrogation as provided in Section 10.1.5.
10.1.5. Tenant's Waiver and Release of Claims and Subrogation.
To the" extent not prohibited by the Laws, Tenant, on behalf of Tenant and its
insurers, waives, releases and discharges the Landlord Parties from all Claims
arising out of damage to or destruction of the Premises, Property or Tenant's
trade fixtures, other personal property or business, and any loss of us" or
business interruption, occasioned by any fir" or other casualty or occurrence
whatsoever (whether similar or dissimilar), regardless whether any such Claim
results from the negligence or fault of any Landlord Party or otherwise, but
only to the extent that the damage, destruction or loss is covered by the
insurance required to be carried by Tenant pursuant to Section 10,1,2
(regardless of whether Tenant maintains such coverage)~ Tenant is solely
responsible for obtaining such insurance as Tenant may desire to cover loss of
Tenant's business or profits as a result of any casual; and, provided that such
casualty is not the result of Landlord's, its agents or employees gross
negligence or willful misconduct, Landlord shall have no liability to Tenant for
loss of business or profits as a result of any such casualty, Except as
otherwise expressly provided herein, Tenant's trade fixtures, other personal
property and all other property in Tenant's care, custody or control, is located
at the Property at Tenant's sole risk, and Landlord is not liable for any damage
to such property or for any theft, misappropriation or loss of such
14
17
property, Tenant is solely responsible for providing such insurance as may be
required to protect Tenant, its employees and invitees against any injury, loss,
or damage to persons or property occurring in the Premises or at the Property,
including, without limitation, any loss of business or profits from any casualty
or other occurrence at the Property.
10.1.6. No Limitation. Landlord's establishment of minimum
insurance requirements is not a representation by Landlord that such limits are
sufficient and does not limit Tenant's liability under this Lease in any manner.
10.2. Landlord's Insurance Obligations. Landlord will (except for the
optional coverages and endorsements Section 10.2.1 describes) at all times
during the Term maintain the insurance this Section 10.2 describes. All premiums
and other costs and expenses Landlord incurs in connection with maintaining such
insurance (except for optional endorsements that are not commercially
reasonable) are Operating Expenses.
10.2.1. Property Insurance. Property insurance on the Building
providing coverage at least as broad as the current ISO Special Form
("all-risks") policy in an amount not less than the full insurable replacement
Cost of the Building (less foundation, grading and excavation costs), insuring
against (at a minimum) loss or damage by such risks as are covered by the
current ISO Special Form policy. Landlord may, at its option, obtain such
additional coverages or endorsements as Landlord deems appropriate or necessary,
including, without limitation, insurance covering foundation, grading,
excavation and debris removal costs; business income and rent loss insurance;
boiler and machinery insurance; ordinance or laws coverage; earthquake
insurance; flood insurance; and other coverages. Landlord may maintain such
insurance in whole or in part under blanket policies. Such insurance will not
cover or be applicable to any property of Tenant within the Premises or
otherwise located at the Property. Landlord's policy or policies of property
insurance will permit waiver of subrogation as provided in Section 10.2.3.
10.2.2. Liability Insurance. Commercial general liability
insurance against claims for bodily injury, personal injury, and property damage
occurring at the Property in such amounts as Landlord deems necessary or
appropriate. Such liability insurance will protect only Landlord and, at
landlord's option, Landlord's lender and some or all of the Landlord Parties,
and does not replace or supplement the liability insurance this Lease obligates
Tenant to carry.
10.2.3. Landlord's Waiver and Release of Claims and
Subrogation. To the extent not expressly prohibited by the Laws, Landlord, on
behalf of Landlord and its insurers, waives, releases and discharges Tenant and
its officers, directors, members, partner, agents and employees from all Claims
arising out of damage to or destruction of the Premises or Property, or loss of
use of the Property or any personal property of Landlord located at the
Property, occasioned by fire or other casualty, regardless of whether any such
Claim results from the negligence or fault of Tenant or its officers, directors,
members, partners, agents or employees or otherwise, but only to the extent the
damage, destruction or loss is covered by the insurance required to be carried
by Landlord pursuant to Section 10.2.1 (regardless of whether Landlord maintains
such coverage). Landlord's policy or policies of property insurance will permit
waiver of subrogation as provided in this Section 10,2.3.
15
18
10.3. Tenant's Indemnification of Landlord. In addition to Tenant's
other indemnification obligations in this Lease but subject to Landlord's
agreements in Section 10.2, Tenant releases and will, to the fullest extent
allowable under the Laws, indemnify, protect, defend (with counsel reasonably
acceptable to Landlord) and hold harmless the Landlord Parties from and against
all Claims arising from (a) any breach or default by Tenant in the performance
of any of Tenant's covenants or agreements in this Lease, (b) any act, omission,
negligence or misconduct of Tenant, (c) any accident, injury, occurrence or
damage in, about or to the Premises, and (d) to the extent caused by Tenant, any
accident, injury, occurrence or damage in, about or to the Property.
10.4. Tenant's Waiver. In addition to the other waivers of Tenant
described in this Lease and to the extent not expressly prohibited by the Laws,
Landlord and the other Landlord Parties are not liable for, and Tenant waives,
any and all Claims against Landlord and the other Landlord Parties for any
damage to Tenant's trade fixtures, other personal property or business, and any
loss of use or business interruption, resulting directly or indirectly from (a)
any existing or future condition, defect, matter or thing in the Premises or on
the Property, (b) any equipment or appurtenance becoming out of repair, (c) any
occurrence, act or omission of any Landlord Party, any other tenant or occupant
of the Building or any other person. This Section applies especially, but not
exclusively, to damage caused by the flooding of basements or other Subsurface
areas and by refrigerators, sprinkling devices, air conditioning apparatus,
water, snow, frost, steam, excessive heat or cold, falling plaster, broken
glass, sewage, gas, odors, noise or the bursting or leaking of pipes or plumbing
fixtures. The waiver this Section describes applies regardless whether any such
damage results from an act of God, an act or omission of other tenants or
Occupants of the Property or an act or omission of any other person. The waiver
in this Section excludes Claims caused solely by the gross negligence or willful
misconduct of Landlord. If Landlord fails to perform a maintenance or repair
obligation of Landlord expressly set forth in this Lease and such failure is not
cured within the applicable cure period available to Landlord under this Lease,
then the waiver set forth in this Section will not be applicable to any Claims
Tenant may have against Landlord arising as a result of the failure of Landlord
to perform such maintenance or repair obligation,
10.5. Tenant's Failure to Insure. Notwithstanding any contrary language
in this Lease and any notice and cure rights this Lease provides Tenant, if
Tenant fails to provide Landlord with evidence of insurance as required under
Section 10,1.4, Landlord may assume that Tenant is not maintaining the insurance
Section 10.1 requires Tenant to maintain and Landlord may, but is not obligated
to, without further demand upon Tenant or notice to Tenant and without giving
Tenant any cure right or waiving or releasing Tenant from any obligation
contained in this Lease, obtain such insurance for Landlord's benefit. In such
event, Tenant will pay to Landlord, as Additional Rent, all costs and expenses
Landlord incurs obtaining such insurance. Landlord's exercise of its rights
under this Section does not relieve Tenant from any default under this Lease.
ARTICLE 11.
DAMAGE OR DESTRUCTION
16
19
11.1. Tenantable Within 180 Days. Except as provided in Section 11.3,
if fire or other casualty renders the whole or any material part of the Premises
untenantable and Landlord determines (in Landlord's reasonable discretion) that
Landlord can make the Premises tenantable within 180 days after the date of the
casualty, then Landlord will notify Tenant that Landlord will repair and restore
the Building and the Premises to as near their condition prior to the casualty
as is reasonably possible within the 180 day period (subject to Tenant Delay and
Force Majeure). Landlord will provide the notice within 30 days after the date
of the casualty.
11.2. Not Tenantable Within 180 Days. If fire or other casualty renders
the whole or any material part of the Premises untenantable and Landlord
determines (in Landlord's reasonable discretion) that Landlord cannot make the
Premises tenantable within 180 days after the date of the casualty, then
Landlord will so notify Tenant within 30 days after the date of the casualty and
may, in such notice, terminate this Lease effective on the date 30 days after
the date of Landlord's notice. If Landlord does not terminate this Lease as
provided in this Section, Tenant may terminate this Lease by notifying Landlord
within 30 days after the date of Landlord's notice, which termination will be
effective 30 days after the date of Tenant's notice.
11.3. Building Substantially Damaged. If the Building is damaged or
destroyed by fire or other casualty (regardless whether the Premises is
affected) and either (a) less than 15 months remain in the Term, or (b) the
damage reduces the value of the improvements on the Property by more than 50%
(as Landlord reasonably determines value before and after the casualty), then
regardless whether Landlord determines (in Landlord's reasonable discretion)
that Landlord can make the Building tenantable within 180 days after the date of
the casualty, Landlord may, at Landlord's option, by notifying Tenant within 30
days after the casualty, terminate this Lease effective on the date 30 days
after the date of Landlord's termination notice.
11.4. Insufficient Proceeds. Notwithstanding any contrary language in
this Article 11, if Landlord does not receive sufficient Insurance proceeds
(excluding the amount of any policy deductible) to repair all damage to the
Premises or the Building caused by fire or other casualty, or if Landlord's
lender does not allow Landlord to use sufficient proceeds to repair all such
damage, then Landlord may, at Landlord's option, by notifying Tenant within 30
days after the casualty, terminate this Lease effective on the date 30 days
after the date of Landlord's notice.
11.5. Landlord's Repair; Rent Abatement, If this Lease is not
terminated under Sections 11.1 through 11.4 following a fire or other casualty,
then Landlord will repair and restore the Premises and the Building to as near
their condition prior to the fire or other casualty as is reasonably possible
with all commercially reasonable diligence and speed (subject to Tenant Delay
and Force Majeure) and Basic Rent and Tenant's Share of Excess Expenses for the
period during which the Premises are untenantable will xxxxx pro rata (based
upon the rentable area of the untenantable portion of the Premises as compared
with the rentable are" of the entire Premises). In no event is Landlord
Obligated to repair or restore any Alterations or Tenant'6 Improvements that are
not covered by Landlord's insurance, any special equipment or improvements
installed by Tenant, any personal property, or any other property of Tenant
Landlord will, if necessary, equitably adjust Tenant's Share of Excess Expenses
Percentage to account for any reduction in the rentable area of the Premises or
Building resulting from a casualty.
17
20
11.6. Rent Apportionment Upon Termination. If either Landlord or Tenant
terminates this Lease under this Article 11, Landlord will apportion Basic Rent
and Tenant's Share of Excess Expenses on a per diem basis and Tenant will pay
the Basic Rent and Tenant's Share of Excess Expenses to (a) the date of the fire
or other casualty if the event renders the Premises Completely untenantable or
(b) if the event does not render the Premises completely untenantable, the
effective date of such termination (provided that if a portion of the Premises
is rendered untenantable, but the remaining portion is tenantable, then, except
as provided in Section 11.5, Tenant's obligation to pay Basic Rent and Tenant's
Share of Excess Expenses abates pro rata [based upon the rentable area of the
untenantable portion of the Premises divided by the rentable area of the entire
Premises from the date of the casualty and Tenant will pay the unabated portion
of the Rent to the date of such termination on the portion terminated).
11.7. Exclusive Casualty Remedy. The provisions of this Article 11 are
Tenant's sole and exclusive rights and remedies in the event of a casualty. To
the extent permitted by the Laws, Tenant waives the benefits of any Law that
provides Tenant any abatement or termination rights (by virtue of a casualty)
not specifically described in this Article 11.
ARTICLE 12.
EMINENT DOMAIN
12.1. Termination of Lease, If the Condemning Authority desires to
effect a Taking of all or any material part of the Property, Landlord will
notify Tenant and Landlord and Tenant will reasonably determine whether the
Taking will render the Premises unsuitable for Tenant's intended purposes. If
Landlord and Tenant conclude that the Taking will render the Premises unsuitable
for Tenant's intended purposes, Landlord and Tenant will document such
determination and this Lease will terminate as of the date the Condemning
Authority takes possession of the portion of the Property taken. Tenant will pay
Rent to the date of termination. If a Condemning Authority takes all or any
material part of the Building or if a Taking reduces the value of the Property
by 50% or more (as reasonably determined by Landlord), regardless whether the
Premises is affected, then Landlord, at Landlord's option, by notifying Tenant
prior to the date the Condemning Authority takes possession of the portion of
the Property taken, may terminate this Lease effective on the date the
Condemning Authority takes possession of the portion of the Property taken.
12.2. Landlord's Repair Obligations. If this Lease does not terminate
with respect to the entire Premises under Section 12.1 and the Taking includes a
portion of the Premises, this Lease automatically terminates as to the portion
of the Premises taken as of the date the Condemning Authority takes possession
of the portion taken and Landlord will, at its sole cost and expense, restore
the remaining portion of the Premises to a complete architectural unit with all
Commercially reasonable diligence and speed and will reduce the Basic Rent for
the period after the date the Condemning Authority takes possession of the
portion of the Premises taken to a sum equal to the product of the Basic Rent
provided for in this Lease multiplied by a fraction, the numerator of which is
the rentable area of the Premises after the Taking and after Landlord restores
the Premises to a complete architectural unit, and the denominator of which is
the rentable area of the Premises prior to the Taking. Landlord will also
equitably adjust Tenant's Share of Excess Expenses Percentage for the same
period to account for the reduction in the
18
21
rentable area of the Premises or the Building resulting from the Taking.
Tenant's obligation to pay Basic Rent and Tenant's Share of Excess Expenses will
xxxxx on a proportionate basis with respect to that portion of the Premises
remaining after the Taking that Tenant is unable to use during Landlord's
restoration for the period of time that Tenant is unable to use such portion of
the Premises.
12.3. Tenant's Participation. Landlord is entitled to receive and keep
all damages, awards or payments resulting from or paid on account of the Taking.
Accordingly, Tenant waives and assigns to Landlord any interest of Tenant in any
such damages, awards or payments. Tenant may prove in any condemnation
proceedings and may receive any separate award for damages to or condemnation of
Tenant's movable trade fixtures and equipment and for moving expenses; provided
however, that Tenant has no right to receive any award for its interest in this
Lease or for loss of leasehold.
12.4. Exclusive Taking Remedy. The provisions of this Article 12 are
Tenant's sole and exclusive rights and remedies in the event of a Taking. To the
extent permitted by the Laws, Tenant waives the benefits of any Law that
provides Tenant any abatement or termination rights or any right to receive any
payment or award (by virtue of a Taking), provided that Tenant does not waive
the right to receive any award to which Tenant is entitled pursuant to Section
12.3 of this Lease.
ARTICLE 13.
TRANSFERS
13.1. Restriction on Transfers. Tenant will not cause or suffer a
Transfer without obtaining Landlord's prior written consent. Landlord may grant
or withhold consent in Landlord's sole and absolute discretion. Landlord may
also, at Landlord's option by notifying Tenant, recapture" any portion of the
Premises that would be affected by such Transfer. Tenant's request for consent
to a Transfer must describe in detail the parties, terms, portion of the
Premises, and other circumstances involved in the proposed Transfer. Landlord
will notify Tenant of Landlord's election to consent, withhold consent and/or
recapture within 30 days of Landlord's receipt of such a written request for
consent to the Transfer from Tenant. Tenant will provide Landlord with any
additional information Landlord reasonably requests regarding the proposed
Transfer or the proposed Transferee. If Landlord consents to the Transfer,
Landlord may impose on Tenant or the transferee such conditions as Landlord, in
its sole and absolute discretion, deems appropriate. No Transfer releases Tenant
from any liability of obligation under this Lease and Tenant remains liable to
Landlord after such a Transfer as a principal and not as a surety_ If Landlord
consents to any transfer, Tenant will pay to Landlord, as Additional Rent, 50%
of any amount Tenant receives on account of the Transfer in excess of the
amounts this Lease otherwise requires Tenant to pay. In no event may Tenant
cause or permit a Transfer to another tenant of the Building. Any attempted
Transfer in violation of this Lease is null and void and constitutes an Event of
Default under this Lease.
13.2. Costs. Tenant will pay to Landlord, as Additional Rent, all costs
and expenses Landlord incurs in connection with any Transfer, including, without
limitation, reasonable attorneys' fees and costs, regardless whether Landlord
consents to the Transfer.
19
22
ARTICLE 14.
DEFAULTS; REMEDIES
14.1. Events of Default. The occurrence of any of the following
constitutes an "Event of Default" by Tenant under this lease_ Landlord and
Tenant agree that the notices required by this Section 14.1 are intended to
satisfy any and all notice requirements imposed by the Laws and are not in
addition to any such requirements.
14.1.1. Failure to Pay Rent. Tenant fails to pay Basic Rent,
any monthly installment of Tenant's Share of Excess Expenses or any other
Additional Rent amount as and when due and such failure continues for five days
after Landlord notifies Tenant_
14.1.2. Failure to Perform. Tenant breaches or fails to
perform any of Tenant's nonmonetary obligations under this Lease and the breach
or failure continues for a period of 30 days after Landlord notifies Tenant of
Tenant's breach or failure; provided that if Tenant cannot cure its breach or
failure within a 30 day period, Tenant's breach or failure is not an Event of
Default if Tenant commences to cure its breach or failure within the 30 day
period and thereafter diligently pursues the cure and effects the cure within a
period of time that does not exceed an additional 15 days after the expiration
of the initial 30 day period. Notwithstanding any contrary language contained in
this Section 14.1,2. Tenant is not entitled to any notice or cure period before
an uncurable breach or failure of this Lease becomes an Event of Default.
14.1.3. Misrepresentation. The existence of any material
misrepresentation or omission in any financial statements, correspondence or
other information provided to Landlord by or on behalf of Tenant or any
Guarantor in connection with (a) Tenant's negotiation or execution of this
Lease; (b) Landlord's evaluation of Tenant as a prospective tenant at the
Property; (c) any proposed or attempted Transfer; or (d) any consent or approval
Tenant requests under this Lease.
14.1.4. Guaranty Default. Guarantor's default (beyond any
applicable notice and grace periods) under any guaranty now or after the
Effective Date securing all or any part of Tenant's obligations under this
Lease.
14.1.5. Other Defaults. (a) Tenant makes a general assignment
or general arrangement for the benefit of creditors; (b) a petition for
adjudication of bankruptcy or for reorganization or rearrangement is filed by
Tenant; (c) a petition for adjudication of bankruptcy or for reorganization or
rearrangement is filed against Tenant and is not dismissed within 30 days; (d) a
trustee or receiver is appointed to take possession of substantially all of
Tenant's assets located at the Premises or of Tenant's interest in this Lease
and possession is not restored to Tenant within 30 days; or (e) substantially
all of Tenant's assets, substantially all of Tenant's assets located at the
Premises, or Tenant's interest in this Lease is subjected to attachment,
execution or other judicial seizure not discharged within 30 days. If a court of
competent jurisdiction determines that any act described in this Section does
not constitute an Event of Default, and the court appoints a trustee to take
possession of the Premises (or if Tenant remains a debtor in possession of the
Premises) and such trustee or Tenant Transfers Tenant's interest hereunder, then
Landlord is entitled to receive, as Additional Rent, the amount by which the
Rent
20
23
(or any other consideration) paid in Connection with the Transfer exceeds the
Rent otherwise payable by Tenant under this Lease.
14.2. Remedies. Upon the occurrence of any Event of Default, Landlord
may at any time and from time to time, and without preventing Landlord from
exercising any other right or remedy, exercise any one or more of the following
remedies:
14.2.1. Termination of Tenant's Possession/Re-entry and
Reletting Right. Terminate Tenant's right to possess the Premises by any lawful
means with or without terminating this Lease, in which event Tenant will
immediately surrender possession of the Premises to Landlord. In such event,
this Lease continues in full force and effect (except for Tenant's right to
possess the Premises) and Tenant continues to be obligated for and must pay all
Rent as and when due under this Lease. Unless Landlord specifically states that
it is terminating this Lease, Landlord's termination of Tenant's right to
possess the Premises is not to be construed as an election by Landlord to
terminate this Lease or Tenant's obligations and liabilities under this Lease.
If Landlord terminates Tenant's right to possess the Premises, Landlord is not
obligated to, but may re-enter the Premises and remove all persons and property
from the Premises. Landlord may store any property Landlord removes from the
Premises in a public warehouse or elsewhere at the cost and for the account of
Tenant. Upon such re-entry, Landlord is not obligated to, but may relet all or
any part of the Premises to a third party or parties for Tenant's account.
Tenant is immediately liable to Landlord for all Re-entry Costs and must pay
Landlord the same within five days after Landlord's notice to Tenant. Landlord
may relet the Premises for a period shorter or longer than the remaining Term.
If Landlord relets all or any part of the Premises, Tenant will Continue to pay
Rent when due under this Lease and Landlord will refund to Tenant the Net Rent
Landlord actually receives from the reletting up to a maximum amount equal to
the Rent Tenant paid that came due after Landlord's reletting. If the Net Rent
Landlord actually receives from reletting exceeds such Rent, Landlord will apply
the excess sum to future Rent due under this Lease. Landlord may retain any
surplus Net Rent remaining at the expiration o(the Term.
14.2.2. Termination of Lease. Terminate this lease effective
on the date Landlord specifies in Landlord's notice to Tenant. Upon termination,
Tenant will immediately surrender possession of the Premises to Landlord If
Landlord terminates this Lease, Landlord may recover from Tenant and Tenant will
pay to landlord on demand all damages Landlord incurs by reason of Tenant's
default, including, without limitation, (a) all Rent due and payable under this
Lease as of the effective date of the termination; (b) any amount necessary to
compensate Landlord for any detriment proximately caused Landlord by Tenant's
failure to perform its obligations under this Lease or which in the ordinary
course would likely result from Tenant's failure to perform, including, but not
limited to, any Re-entry Costs; (c) an amount equal to the difference between
the present worth, as of the effective date of the termination, of the Basic
Rent for the balance of the Term remaining after the effective date of the
termination (assuming no termination) and the present worth, as of the effective
date of the termination, of a fair market basic rent for the Premises for the
same period (as Landlord reasonably determines the fair market basic rent); and
(d) Tenant's Share of Excess Expenses to the extent Landlord is not otherwise
reimbursed for such Excess Expenses. For purposes of this Section, Landlord will
compute present worth by utilizing a discount rate of 8% per annum. Nothing in
this Section limits or prejudices Landlord's right to prove and obtain damages
in an amount equal to the maximum amount
21
24
allowed by the Laws, regardless whether such damages are greater than the
amounts set forth in this Section.
14.2.3. Present Worth of Rent. Recover from Tenant, and Tenant
will pay to Landlord on demand, an amount equal to the then present worth, as of
the effective date of termination, of the aggregate of the Rent and any other
charges payable by Tenant under this Lease for the unexpired portion of the Term
Landlord will employ a discount rate of 8% per annum to compute present worth.
14.2.4. Other Remedies. Exercise any other right or remedy
available to Landlord under this Lease, or otherwise at law or in equity.
14.3. Costs. Tenant will reimburse and compensate Landlord on demand
and as Additional Rent for any actual loss Landlord incurs in connection with,
resulting from or related to any breach or default of Tenant under this Lease,
regardless whether the breach or default constitutes an Event of Default, and
regardless whether suit is commenced or judgment is entered. Such loss includes
all reasonable legal fees, costs and expenses (including paralegal fees and
other professional fees and expenses) Landlord incurs investigating,
negotiating, settling or enforcing any of Landlord's rights or remedies or
otherwise protecting Landlord's interests under this Lease. Tenant will also
indemnify, defend (with counsel reasonably acceptable to Landlord), protect and
hold harmless the Landlord Parties from and against all Claims Landlord or any
of the other Landlord Parties incurs if Landlord or any of the other Landlord
Parties becomes or is made a party to any claim or action (a) instituted by
Tenant or by or against any person holding any interest in the Premises by,
under or through Tenant; (b) for foreclosure of any lien for labor or material
furnished to or for Tenant or such other person; or (c) otherwise arising out of
or resulting from any act or omission of Tenant or such other person. In
addition to the foregoing, Landlord is entitled to reimbursement of all of
Landlord's fees, expenses and damages, including, but not limited to, reasonable
attorneys' fees and paralegal and other professional fees and expenses, Landlord
incurs In connection with protecting its interests in any bankruptcy or
insolvency proceeding involving Tenant, including, without limitation, any
proceeding under any chapter of the Bankruptcy Code; by exercising and
advocating rights under Section 365 of the Bankruptcy Code; by proposing a plan
of reorganization and objecting to competing plans; and by filing motions for
relief from stay. Such fees and expenses are payable on demand, or, in any
event, upon assumption or rejection of this Lease in bankruptcy.
14.4. Waiver and Release by Tenant. Tenant waives and releases all
Claims Tenant may have resulting from Landlord's re-entry and taking possession
of the Premises by any lawful means and removing and storing Tenant's property
as permitted under this Lease, regardless whether this Lease is terminated and,
to the fullest extent allowable under the Laws, Tenant releases and will
indemnity, defend (with counsel reasonably acceptable to Landlord), protect and
hold harmless the Landlord Parties from and against any and all Claims
occasioned thereby. No such reentry is to be considered or construed as a
forcible entry by Landlord.
14.5. Landlord's Default. If Landlord defaults in the performance of
any of its obligations under this Lease, Tenant will notify Landlord of the
default and landlord will have 30 days after receiving such notice to cure the
default. If Landlord is not reasonably able to cure the default within a 30 day
period, Landlord will have an additional reasonable period of time to
22
25
cure the default as long as Landlord commences the cure within the 30 day period
and thereafter diligently pursues the cure. If Landlord fails to cure the
default within the cure period stated above, Tenant may provide a second notice
of the default to Landlord (which notice must specifically state that it is a
second notice) and if Landlord fails to cure such default within fifteen (15)
days after receiving such second notice, then Tenant may exercise or pursue such
rights or remedies as are available to Tenant under the law; provided, however,
that in no event is Landlord liable to Tenant or any other person for
consequential, special or punitive damages, including, without limitation, lost
profits.
14.6. No Waiver. No failure by Landlord to insist upon the performance
of any provision of this Lease or to exercise any right or remedy upon a breach
or default thereof, and no acceptance by Landlord of full or partial Rent from
Tenant or any third party during the continuance of any such breach or default,
constitutes Landlord's waiver of any Such breach or of any such default by
Tenant in Tenant's performance of its obligations under this Lease. No waiver of
any default by Tenant in the performance of its obligations under this Lease may
be implied from any omission by Landlord to take any action on account of such
default. None of the terms of this Lease to be kept, Observed or performed by
Tenant, and no breach of default thereof, may be waived, altered or modified
except by a written instrument executed by Landlord. One or more waivers by
Landlord is not to be construed as a waiver of a subsequent breach or default of
the same covenant, term or condition. No statement on a payment check from
Tenant or in a letter accompanying a payment check is binding on Landlord.
Landlord may, with or without notice to Tenant, negotiate such check without
being bound to the conditions of any such statement. If Tenant pays any amount
other than the actual amount due Landlord, receipt or collection of such partial
payment does not constitute an accord and satisfaction Landlord may retain any
such partial payment, whether restrictively endorsed or otherwise, without
prejudice to Landlord's right to Collect the balance properly due. If all or any
portion of any payment is dishonored for any reason, payment will not be deemed
made until the entire amount due is actually collected by Landlord. The
foregoing provisions box agent or other person on Landlord's behalf.
ARTICLE 15.
CREDITORS; ESTOPPEL CERTIFICATES
15.1. Subordination. This Lease, all rights of Tenant in this Lease,
and all interest or estate of Tenant in the Property, is subject and subordinate
to the lien of any Mortgage. Tenant will, on Landlord's demand, execute and
deliver to Landlord or to any other person Landlord designates any instruments,
releases or other documents reasonably required to Confirm the self-effectuating
subordination of this Lease as provided in this Section to the lien of any
Mortgage. The subordination to any future Mortgage provided for in this Section
is expressly conditioned upon the mortgagee's agreement that as long as Tenant
is not in default in the payment of Rent or the performance and observance of
any Covenant, condition, provision, term or agreement to be performed and
observed by Tenant under this Lease, beyond any applicable grace or cure period
this Lease provides Tenant, the holder of the Mortgage will not disturb Tenant's
rights under this Lease. The lien of any existing or future Mortgage will not
cover Tenant's moveable trade fixtures or other personal property of Tenant
located in or on the Premises.
23
26
15.2. Attornment. If any ground lessor, the holder of any Mortgage at a
foreclosure sale or any other transferee acquires Landlord's interest in this
Lease, the Premises or the Property, Tenant will adorn to the transferee of or
successor to Landlord's interest in this lease, the Premises or the Property (as
the case may be) and recognize such transferee or successor as landlord under
this lease. Tenant waives the protection of any statute or rule of law that
gives or purports to give Tenant any right to terminate this lease or surrender
possession of the Premises upon the transfer of Landlord's interest.
15.3. Mortgagee Protection Clause. Tenant will give the holder of any
Mortgage, by registered mail, a copy of any notice of default Tenant serves on
Landlord, provided that Landlord or the holder of the Mortgage previously
notified Tenant (by way of notice of assignment of rents and leases or
otherwise) of the address of such holder. Tenant further agrees that if landlord
fails to cure such default within the time provided for in this Lease, then
Tenant will provide written notice of such failure to such holder and such
holder will have an additional 30 days within which to cure the default. If the
default cannot be cured within the additional 30 day period, then the holder
will have such additional time as may be necessary to effect the cure if, within
the 30 day period, the holder has commenced and is diligently pursuing the cure
(including without limitation commencing foreclosure proceedings if necessary to
effect the cure).
15.4. Estoppel Certificates.
15.4.1. Contents. Upon Landlord's written request, Tenant will
execute, acknowledge and deliver to Landlord a written statement in form
satisfactory to Landlord certifying: (a) that this Lease (and all guaranties, if
any) is unmodified and in full force and effect (or, if there have been any
modifications, that the Lease is in full force and effect, as modified, and
stating the modifications); (b) that this Lease has not been canceled or
terminated; (c) the last date of payment of Rent and the time period covered by
such payment; (d) whether there are then existing any breaches or defaults by
Landlord under this Lease known to Tenant, and, if so, specifying the same; (e)
specifying any existing claims or defenses in favor of Tenant against the
enforcement of this Lease (or of any guaranties); and (f) such other factual
statements as Landlord, any lender, prospective lender, investor or purchaser
may request. Tenant will deliver the statement to Landlord within 10 Business
Days after Landlord's request. Landlord may give any such statement by Tenant to
any lender, prospective lender, investor or purchaser of all or any part of the
Property and any such party may conclusively rely upon such statement as true
and correct.
15.4.2. Failure to Deliver. If Tenant does not timely deliver
the statement referenced in Section 15.4.1 to Landlord, (a) Landlord may execute
and deliver the statement to any third party on behalf of Tenant and (b) such
failure constitutes an Event of Default under this Lease. Further, if Tenant so
fails to timely deliver the statement, Landlord and any lender, prospective
lender, investor or purchaser may conclusively presume and rely that, except as
otherwise represented by Landlord (i) the terms and provisions of this Lease
have not been changed; (ii) this Lease has not been Canceled or terminated;
(iii) not more than one month's Rent has been paid in advance; and (iv) Landlord
is not in default in the performance of any of its obligations under this Lease.
In such event, Tenant is estopped from denying the truth of such facts.
24
27
ARTICLE 16.
TERMINATION OF LEASE
16.1. Surrender of Premises. Tenant will surrender the Premises to
Landlord at (he expiration or earlier termination of this Lease in good order,
condition and repair, reasonable wear and tear, permitted. Alternations and
damage by insured casualty or condemnation" excepted, and will surrender all
keys to the Premises to Property Manager or to Landlord at the place then fixed
for Tenant's payment o( Basic Rent or as Landlord or Property Manager otherwise
direct. Tenant will also inform Landlord of all combinations on locks, safes and
vaults, if any, in the Premises or on the Property. Tenant will at such time
remove all of its property from the Premises and, if Landlord so requests, all
specified Alterations and improvements Tenant placed on the Premises Tenant will
promptly repair any damage to the Premises caused by such removal. Tenant
releases and will indemnify, defend (with counsel reasonably acceptable to
Landlord), protect and hold harmless Landlord from and against any Claim
resulting from Tenant's failure or delay in surrendering the Premises in
accordance with this section, including, without limitation, any Claim made by
any succeeding occupant (rounded on such delay. All property of Tenant( not
removed on or before the last day of the Term is deemed abandoned. Tenant
appoints Landlord as tenants agent to remove, at Tenants sole cost and expense,
all of Tenant's property from the Premises upon termination of (his Lease and to
cause its transportation and storage for Tenant's benefit, all at the sole cost
and risk of Tenant, and Landlord will not be liable for damage, theft,
misappropriation or loss thereof or in any manner in respect hereto.
16.2. Holding Over. If Tenant possesses the Premises after the Term
expires or is otherwise terminated without executing a new lease but with
Landlord's written consent (which consent may be given or withheld by Landlord
in its sole discretion) (such period being hereinafter referred to as (the
"Permitted Holdover Period"), Tenant is deemed to be occupying the Premises
during the Permitted Holdover Period as a tenant from month-to-month, subject to
all provisions, conditions and obligations of this Lease applicable to a
month-to-month tenancy, except that (a) Rent during the Permitted Holdover
Period will equal 125% of the greater of (i) the Rent payable by Tenant in the
last Lease Year of the Term or (ii) the basic rent and additional rent (on a
daily basis) Landlord charges during the Permitted Holdover Period on new leases
in the Property for space similar to the Premises, and (b) either Landlord or
Tenant may terminate the Permitted Holdover Period at any time upon thirty (30)
days prior written notice to the other party. The permitted Holdover Period will
not exceed three months. If Landlord does not give its written consent to such
holding over by Tenant and Tenant nevertheless possesses the Premises after the
Term expires or is otherwise terminated, or if Landlord gives its written
consent as provided above but Tenant remains in possession of the Premises after
the expiration of the Permitted Holdover Period, Tenant is deemed to be
occupying the Premises without claim of right (but subject to all terms and
conditions of this Lease) and, in addition to Tenant's liability for failing to
surrender possession of the Premises as provided in Section 18.1, Tenant will
pay Landlord a charge for each day of occupancy after expiration of the Term (or
after the expiration of the Permitted Holdover Period, if applicable) in an
amount equal to double the greater of Tenant's then-existing Rent or the basic
rent and additional rent (on a daily basis) Landlord charges at the time of the
holdover on new leases in the Property or space similar to the Premises.
25
28
ARTICLE 17.
ADDITIONAL PROVISIONS
17.1. Initial improvements.
17.1.1. Landlord's Improvements. Landlord will provide, at no
cost to Tenant, the Landlord's Improvement(s. Landlord will either stockpile or
install, as applicable, Landlord's Improvements.
17.1.2. Tenant's Improvements. Landlord will cause Opus West
Construction Corporation ("General Contractor') to construct, at Tenant's sole
cost and expense, all tenants Improvements. Tenant's Improvements will be
designed as described in this Section 17.1. Tenant will pay (i) all of General
Contractor(s direct and indirect costs in connection with the design and
construction of Tenant's Improvements, plus (ii) 10% of the sum of all such
direct and indirect costs for General Contractor's overhead and profit. Such
costs of General Contractor may include, without limitation, space planning
costs, construction document preparation costs, design costs, construction
drawing costs, general conditions, construction costs and all costs General
Contractor incurs in connection with obtaining permits for Tenant's
Improvements. Since General Contractor will be charging 10% for overhead and
profit (as stated above), Landlord will not separately charge for overhead or
profit. Upon General Contractor's selection of a subcontractor bid, the
applicable bid amount will be included in the amount set forth in clause (i)
above without any xxxx-up by Landlord or General Contractor (other than the 10%
overhead and profit charged by General Contractor pursuant to clause (ii)
above), Tenant's Improvements become the property of Landlord and a part of the
Building immediately upon installation,
17.1.3. Improvement Allowance. Landlord will credit an amount
not to exceed the Improvement Allowance, against Tenant's obligation to pay for
the design and installation of Tenant's Improvements. Landlord is not obligated
to pay or incur any amounts that exceed the Improvement Allowance. If the cost
of Tenant's Improvements exceeds the Improvement allowance, Tenant will pay the
excess to Landlord in cash as Additional Rent. Tenant will also pay, as
Additional Rent, all of Landlord's costs (including lost rent) resulting from
Tenant Delay. If Landlord reasonably estimates that the cost of Tenant's
Improvements will exceed the Improvement Allowance, Landlord may require Tenant
to deposit with Landlord, within six (60) days of the date this Lease Is
executed, an amount equal to one-half (1/2) of the amount by which the cost of
tenants Improvements exceeds the Improvement Allowance. The remaining one-half
(1/2) of the amount by which the cost of Tenant's Improvements exceeds the
Improvement Allowance will be paid upon the earlier of occupancy of the Premises
or the Rent Commencement Date.
17.1.4. Project Manager Site Superintendent. Contractor is the
general contractor for all Tenant's Improvements. In connection with installing
Tenant's Improvements, Contractor will utilize a project manager and site
superintendent, the fees of which are payable by Tenant on an hourly basis as a
direct cost of the Tenant's Improvements.
26
29
17.1.5. Space Plan. On or before July 1, 1999, Tenant will
provide Landlord with a space plan for Tenant's Improvements. The space plan
must (a) be compatible with the base building and the mechanical components of
the base building (as reasonably determined by Landlord); (b) be adequate, in
Landlord's reasonable discretion, for Landlord to prepare construction drawings
for Tenant's Improvements; (c) show, in reasonable detail, the design and
appearance of the finishing material Landlord will use in connection with
installing Tenant's Improvements; (d) contain such other detail or description
as may be necessary for Landlord to adequately outline the scope of Tenant's
Improvements; (e) conform to all applicable governing codes and ordinances; and
(f) contain all information necessary for construction cost estimating. All
space plan drawings must be not less than 1/8" scale. Without limiting those
general requirements, the space plan must expressly specify and include (without
limitation) all of the following: (1) wall types and heights and insulation, if
needed; (2) door types and hardware groups; (3) door frame types; (4) ceiling
heights; (5) ceiling materials; (6) floor covering materials and locations; (7)
all wall finishes; (8) any appliances, special systems or equipment to be
furnished as e part of the construction; (9) any mechanical requirements beyond
that provided in the base building; (10) any fire protection requirements beyond
that provided in the base building; (11) any plumbing requirements; (12) all
power and data locations; (13) any power required other than building standard
power distribution; (14) any power requirements for modular furniture; (15) any
emergency power requirement; (16) any lighting requirements beyond that provided
in the base building; (17) millwork elevations and details; (18) specific floor
material selections and designations; and (19) specific wall material selections
and designations. Landlord will provide building standard materials, systems and
capacities i( not otherwise noted. The space plan must also include enlarged
sketch layouts for any non-standard rooms, including reflected ceiling plans,
and must state the approximate usable and rentable square footage of the
Premises. If Tenant fails to provide Landlord with a space plan meeting the
foregoing requirements by the date set forth above in this Section, then such
delay is a Tenant Delay until such space plan is delivered to Landlord.
17.1.6. Construction Drawings and Specifications. After
Landlord receives Tenant's space plan, Landlord will provide Tenant with the
Construction Drawings and Specifications. Tenant will approve or disapprove
(specifically describing any reasons for disapproval) the Construction Drawings
and Specifications in writing within three Business Days after receiving them.
Any failure by Tenant to timely deliver such approval or disapproval is a Tenant
Delay until received. If Tenant disapproves the Construction Drawings and
Specifications, Landlord will provide appropriately revised Construction
Drawings and Specifications to Tenant for approval (or disapproval) within three
Business Days on the same basis as set forth above. If the review and approval
process is not concluded (with Tenant having approved the Construction Drawings
and Specifications) on or before August 1, 1999, then such delay is a Tenant
Delay until Tenant's approval is received. After Tenant's approval, Landlord
will submit the Construction Drawings and Specifications for permits and
construction bids. Tenant will not withhold any approval except for reasonable
cause and will not act in an arbitrary or capricious manner in connection with
the review, revision, approval or disapproval of the Construction Drawings and
Specifications. Tenant will not specify long lead time items that would delay
Substantial Completion of Tenant's Improvements.
17.1.7. Changes to Construction Drawings and Specifications.
Tenant will immediately notify Landlord if Tenant desires to make any changes to
Tenant's Improvements
27
30
after Tenant has approved the Construction Drawings and Specifications. If
Landlord approves the revisions, Landlord will notify Tenant of the anticipated
additional cost and delay in completing Tenant's Improvements which would be
caused by such revisions. Tenant will approve or disapprove the increased cost
and delay within three Business Days after such notice. If Tenant approves,
Landlord will prepare, and Landlord and Tenant will execute, a Change owner
describing the revisions and the anticipated additional cost and delay. Any
delay relating to a request for revisions or a Change Order is a Tenant Delay.
If the Change Order causes the cost of Tenant's Improvements to exceed the
Improvement Allowance (or if the cost of Tenant's improvements already exceeds
the Improvement Allowance), Landlord may require Tenant to prepay the added
costs of the Change Order.
17.1.8. Tenant's Representative. Tenant designates Xxx
Xxxxxxxxxx as the representative of Tenant having authority to approve the
Construction Drawings and Specifications, request or approve any Change Order,
and to bind Tenant by signing such documents and all other notices and
directions to Landlord regarding Tenant's Improvements.
17.1.9. Substantial Completion. Landlord will use commercially
reasonable efforts to achieve Substantial Completion of Tenant's Improvements on
or before the Delivery Date, subject to Tenant Delay and delays caused by Force
Majeure. A Tenant Delay automatically extends the Delivery Date for Tenant's
Improvements and the Commencement Date but does not extend the Rent Commencement
Date of this Lease.
17.1.10. Punch List. Within 20 days after Substantial
Completion, Landlord and Tenant will inspect the Premises and develop a Punch
List. Landlord will complete (or repair, as the case may be the items listed on
the Punch List with commercially reasonable diligence and speed, subject to
Tenant Delay and Force Majeure. If Tenant refuses to inspect the Premises with
Landlord within the 20- day period, Tenant is deemed to have accepted the
Premises as delivered, subject to Section 17.1.11.
17.1.11. Construction Warranty. Landlord warrants Tenant's
Improvements against defective workmanship and materials for a period of one
year after Substantial Completion. Landlord's sole obligation under this
warranty is to repair or replace, as necessary, any defective item caused by
poor workmanship or materials if Tenant notices Landlord of the defective item
within such one year period. Landlord has no obligation to repair or replace any
item after such one year period expires, THE WARRANTY TERMS PROVIDE THE SOLE AND
EXCLUSIVE RIGHT AND REMEDY OF TENANT FOR INCOMPLETE OR DEFECTIVE WORKMANSHIP OR
MATERIALS OR OTHER DEFECTS IN THE PREMISES IN LIEU OF ANY CONTRACT, WARRANTY OR
OTHER RIGHTS, WHETHER EXPRESS OR IMPLIED, THAT MIGHT OTHERWISE BE AVAILABLE
UNDER APPLICABLE LAW. ALL OTHER WARRANTIES ARE EXPRESSLY DISCLAIMED.
17.2. Security Deposit: Application to Basic Rent. Concurrently with
Tenant's execution of this Lease, Tenant will deposit with Landlord the Security
Deposit. If Tenant defaults with respect to any of the terms, provisions,
covenants and conditions of this Lease, Landlord may use, apply or retain the
whole or any part of the Security Deposit for the payment of any Rent in default
or any other sum which Landlord expends by reason of Tenant's default, Tenant is
not entitled to any interest on the Security Deposit. It is expressly agreed
that the
28
31
Security Deposit is not an advance rental deposit or a measure of Landlord's
damages in the case of Tenant's default. Upon application of all or any part of
the Security Deposit as provided above, Tenant must upon demand restore the
Security Deposit to its original amount. Any application of the Security Deposit
by Landlord shall not be deemed to have cured Tenant's default. If Tenant is not
in default under this Lease on the first day of the sixth, twelfth, eighteenth,
and sixtieth full calendar months of the Term, then on each of such dates, a
portion of the Security Deposit shall be applied to pay the Basic Rent due for
such month.
17.3. Cap on Controllable Operating Expenses. Landlord agrees that,
during the initial five- year Term of this Lease, in calculating Tenant's Share
of Excess Expenses pursuant to Article 3, that portion of Operating Expenses
which are controllable by Landlord (specifically excluding, without limitation,
insurance premiums, taxes [including Property Taxes and costs of utilities) will
not increase more than six percent (6%) per year, compounded annually, over the
amount of such controllable Operating Expenses for the calendar year in which
the Rent Commencement Date occurs.
17.4. First Right of Offer Subject to the terms and conditions set
forth in this Section, Landlord hereby grants to Tenant the first right ("First
Right") to be offered by Landlord the opportunity to lease the approximately
1,400 rentable square feet of space located on the second floor of the Building
and designated on EXHIBIT "C" attached hereto and incorporated herein by this
reference If, at any time while this First Right is in effect, Landlord should
intend to lease such space to a third party lessee, then Landlord shall first
offer to lease such space to Tenant. If Landlord offers to Lease such space to
Tenant pursuant to this Section and Tenant desires to lease such space, Tenant
will, within five (5) Business Days of its receipt of Landlord's notice, prepare
and provide to Landlord a letter of intent describing the terms on which Tenant
desires to lease such space from Landlord, and Tenant will, within ten (10)
Business Days of its receipt of Landlord's notice, prepare and provide to
Landlord a space plan for such space. If Tenant notices Landlord in writing
within such five-day period that Tenant does not desire to lease such space, or
if Tenant does not provide Landlord with a letter of intent within such five-day
period, then, in either of the above instances, Landlord's obligations under
this Section will automatically terminate and Landlord will thereafter be
entitled to lease such space. If Tenant provides Landlord with a letter of
intent within such five-day period, the parties shall thereafter negotiate for
Tenant's lease of the space from Landlord; provided, however, that if Landlord
and Tenant are unable to mutually agree upon the terms of Tenant's lease of such
space and to execute a written amendment to this Lease within the ten-day period
referenced above (which amendment shall contain the terms mutually agreed to by
the parties for Tenants lease of such space), then Landlord's obligations under
this Section shall automatically terminate at the end of such ten-day period.
Notwithstanding anything to the contrary contained in this Section, if Tenant's
First Right as set forth in this Section is still in effect at the end of the
initial five-year Term, such First Right will automatically terminate on the
last day thereof. The purpose of this Section is to provide notice to Tenant so
that Tenant may be in a position to offer to lease such space on a competitive
basis with others, and, notwithstanding anything to the contrary contained in
this Section, nothing in this Section shall be deemed to be an option or right
of first refusal.
17.5. Parking. For so long as this Lease remains in effect, Landlord
licenses 54 Unreserved Spaces to Tenant. Tenant will pay Landlord $45.00 per
month for each of such Unreserved Spaces, and Landlord will not change the fee
for such Unreserved Spaces during the
29
32
initial five-year Term. Thereafter, Tenant will pay Landlord's then-current fee
for each such space Tenant will also pay Landlord's then- current fee for any
additional spaces licensed hereunder. All parking fees will be paid as
Additional Rent at the same time, place and manner as Basic Rent. landlord may
change its parking fees at any time o" not less than thirty (30) days prior
notice to Tenant Landlord reserves the right to convert parking fees to Basic
Rent, in which event Landlord and Tenant will execute an amendment to this Lease
evidencing same. Parking at the Property by Tenant is subject to the other
provisions of this Lease, including without limitation, the Building Rules. In
no event will Landlord be liable for any loss, damage or theft of, to or from
any vehicle at the Property, and Tenant will indemnify and defend the Landlord
Parties against any claim therefor.
17.6. Landlord's Indemnification of Tenant. Subject to Tenant's waivers
and agreements in Article 10 and elsewhere in this Lease, landlord will, to the
fullest extent allowable under the laws, indemnify, protect, defend (with
counsel reasonably acceptable to Tenant) and hold harmless Tenant from and
against any claims and actions brought against Tenant by third parties which (a)
arise out of any bodily injury, death or property damage occurring to such third
parties at the Property (other than within the Premises), (b) are not caused in
whole or in part by Tenant, and (c) are caused in whole or in part by the gross
negligence or willful misconduct of Landlord.
ARTICLE 18.
MISCELLANEOUS PROVISIONS
18.1. Notices. All Notices must be in writing and must be sent by
personal delivery, United States registered or certified mail (postage prepaid)
or by an independent overnight courier service, addressed to the addresses
specified in the Basic Terms or at such other place as either party may
designate to the other party by written notice given in accordance with this
Section. Notices given by mail are deemed delivered three Business Days after
the party sending the Notice deposits the Notice with the United States Post
Office. Notices delivered by courier are deemed delivered on the next Business
Day after the day the party delivering the Notice timely deposits the Notice
with the courier for overnight (next day) delivery.
18.2. Transfer of landlord's interest. If landlord Transfers (other
than for collateral security purposes) the ownership of Landlord's interest in
the Premises, the transferor is automatically relieved of all obligations on the
part of Landlord accruing under this Lease from and after the date of the
Transfer, provided that the transferor will deliver to the transferee any funds
the" transferor holds in which Tenant has an interest (such as a security
deposit). landlord's covenants and obligations in this Lease bind each
successive Landlord only during and with respect to its respective period of
ownership. However, notwithstanding any such Transfer, the transferor remains
entitled to the benefits of Tenant's releases and indemnity and insurance
obligations (and similar obligations) under this Lease with respect to matters
arising or accruing during the transferor's period of ownership.
18.3. Successors. The covenants and agreements contained in this Lease
bind and inure to the benefit of Landlord, its successors and assigns, bind
Tenant and its successors and assigns and inure to the benefit of Tenant and its
permitted successors and assigns.
30
33
18.4. Captions and interpretation. The captions of the articles and
sections of this Lease are to assist the parties in reading this Lease and are
not a part of the terms or provisions of this Lease. Whenever required by the
context of this Lease, the singular includes the plural and the plural includes
the singular.
18.5. Relationship of Parties. This Lease does not create the
relationship of principal and agent, or of partnership, joint venture, or of any
association or relationship between Landlord and Tenant other than that of
landlord and tenant.
18.6. Entire Agreement; Amendment. The Basic Terms and all exhibits,
addenda and schedules attached to this Lease are incorporated into this Lease as
though fully set forth in this Lease and together with this Lease contain the
entire agreement between the parties with respect to the improvement and leasing
of the Premises. All preliminary and contemporaneous negotiations, including,
without limitation, any letters of intent or other proposals and any drafts and
related correspondence, a% merged into and superseded by this Lease. No
subsequent alteration, amendment, change or addition to this Lease (other than
to the Building Rules) is binding on Landlord or Tenant unless it is in writing
and signed by the party to be charged with performance.
18.7. Severability. If any covenant, condition, provision, term or
agreement of this Lease is, to any extent, held invalid or unenforceable, the
remaining portion thereof and all other covenants, conditions, provisions, terms
and agreements of this Lease will not be affected by such holding, and will
remain valid and in force to the fullest extent permitted by law.
18.8. Landlord's Limited Liability. Tenant will to look solely to
Landlord's interest in the Property for recovering any judgment or collecting
any obligation from Landlord or any other Landlord Party. Tenant agrees that
neither Landlord nor any other Landlord Party will be personally liable for any
judgment or deficiency decree.
18.9. Survival. All of Tenant's obligations under this Lease (together
with interest on payment oblations at the Maximum Rate) accruing prior to
aspiration or other termination of this Lease survive the expiration or other
termination of this Lease. Further, all of Tenant's releases and
indemnification, defense and hold harmless obligations under this Lease survive
the expiration or other termination of this Lease, without limitation.
18.10. Attorneys' Fees. If either Landlord or Tenant commences any
litigation or judicial action to determine or enforce any of the provisions of
this Lease, the prevailing party in any such litigation or judicial action is
entitled to recover all of its costs and expenses (including, but not limited
to, reasonable attorneys' fees, costs and expenditures) from the nonprevailing
party.
18.11. Brokers, Landlord and Tenant each represents and warrants to the
other that it has not had any dealings with any realtors, brokers, xxxxxx or
agents in connection with this Lease (except as may be specifically set forth in
the Basic Terms) and each releases and agrees to indemnify, defend and hold the
other harmless from and against any Claims based on the failure or alleged
failure to pay any realtors, brokers, finders or agents (other than any brokers
specified in the Basic Terms) and from any cost, expense or liability for any
compensation, commission or
31
34
changes claimed by any realtors, brokers, finders or agents (other than any
brokers specified in the Basic Terms) claiming by, through or on behalf of it
with respect to this Lease or (he negotiation of this Lease. Landlord will pay
any brokers named in the Basic Terms in accordance with the applicable listing
agreement for the Property.
18.12. Governing Law. This Lease is governed by, and must be
interpreted under, the internal laws of the State. Any suit arising from or
relating to this Lease must be brought in the County; Landlord and Tenant waive
the right to bring suit elsewhere.
18.13. Time is of the Essence. Time is of the essence with respect to
the performance of every provision of this Lease in which time of performance is
a factor.
18.14. Joint and Several Liability. All parties signing (his Lease as
Tenant and any Guarantor(s) of this Lease are jointly and severally liable for
performing all of Tenant's obligations under this Lease.
18.15. Tenant's Waiver, Any claim Tenant may have against Landlord for
default in performance of any of Landlord's obligations under this Lease is
deemed waived unless Tenant notifies Landlord of the default within 90 days
after Tenant knew or should have known of the default.
18.16. Tenant's Organization Documents; Authority. If Tenant is an
entity, Tenant will, within 10 days after Landlord's written request, deliver to
Landlord: (a) Certificate(s) of Good Standing from the state of formation of
Tenant and, if different, the State, confirming that Tenant is in good standing
under the laws governing formation and qualification to transact business in
such state(s); and (b) a copy of Tenant's organizational documents and any
amendments or modifications thereof, certified as true and correct by an
appropriate official of Tenant. Tenant and each individual signing this Lease on
behalf of Tenant represents and warrants that they are duly authorized to sign
on behalf of and to bind Tenant and that this Lease is a duly authored, binding
and enforceable obligation of Tenant.
18.17. Provisions are Covenants and Conditions. All provisions of this
Lease, whether covenants or conditions, are deemed both covenants and
conditions.
18.18. Force Majeure. If Landlord is delayed or prevented from
performing any obligation under this Lease (excluding, however, the payment of
money) by reason of Force Majeure, Landlord's performance of such obligation is
excused for a period equal to (a) the duration of the Force Majeure event, or
(b) if longer, the period of delay actually caused by the Force Majeure event.
18.19. Management. Property Manager is authorized to manage the
Property. Landlord appointed Property Manager to act as Landlord's agent for
leasing, managing and operating the Property. The Property Manager then serving
is authorized to accept service of process and to receive and give notices and
demands on Landlord's behalf.
18.20. Financial Statements. Tenant will, prior to Tenant's execution
of this Lease and within 10 days after Landlord's request( at any time during
the Term, deliver to Landlord complete, accurate and up-to-date financial
statements with respect to Tenant and any
32
35
Guarantor(s) or other parties obligated upon this Lease, which financial
statements must be (a) prepared according to generally accepted accounting
principles consistently applied, and (b) certified by an independent certified
public accountant or by Tenant's (or Guarantor's, as the case may be) chief
financial officer that the same are a true, complete and correct statement of
Tenant's (or Guarantors) financial condition as of the date of such financial
statements.
18.21. Quiet Enjoyment. Landlord covenants and agrees that Tenant will
quietly hold, occupy and enjoy the Premises during the Term, subject to the
terms and conditions of this Lease free from molestation or hindrance by
Landlord or any person claiming by, through or under Landlord, if Tenant pays
all Rent as and when due and keeps, observes and fully satisfies all other
covenants, obligations and agreements of Tenant under this Lease.
18.22. No Recording. Tenant will not record this Lease or a Memorandum
of this Lease without Landlord's prior written consent, which consent Landlord
may grant or withhold in its sole and absolute discretion.
18.23. Nondisclosure of Lease Terms. The terms and conditions of this
Lease constitute proprietary information of Landlord that Tenant will keep
confidential. Tenant's disclosure of the terms and conditions of this Lease
could adversely affect Landlord's ability to negotiate other leases and impair
Landlord's relationship with other tenants. Accordingly, Tenant will not,
without Landlord's consent, which consent Landlord may grant or withhold in its
sole and absolute discretion, directly or indirectly disclose the terms and
conditions of this Lease to any other tenant or prospective tenant of the
Building or to any other person or entity other than Tenant's employees and
agents who have a legitimate need to know such information (and who will also
keep the same in confidence).
18.24. Construction of Lease and Terms. The terms and provisions of
this Lease represent the results of negotiations between Landlord and Tenant,
each of which and sophisticated parties and each of which has been represented
or been given the opportunity to be represented by counsel of its own choosing,
and neither of which has acted under any duress or compulsion, whether legal,
economic or otherwise. Consequently, the terms and provisions of this lease must
be interpreted and construed in accordance with their usual and customary
meanings, and Landlord and Tenant each waive the application of any rule of law
that ambiguous or conflicting terms or provisions contained in this Lease are to
be interpreted or construed against the party who prepared the executed Lease or
any earlier draft of the same, Landlord's submission of this instrument to
Tenant for examination or signature by Tenant does not constitute a reservation
of or an option to lease and is not effective as a lease or otherwise until
Landlord and Tenant both execute and deliver this Lease. The parties agree that,
regardless of which party provided the initial form of this Lease, drafted or
modified one or more provisions of this Lease, or compiled, printed or copied
this Lease, this Lease is to be construed solely as an offer from Tenant to
lease the Premises, executed by Tenant and provided to Landlord for acceptance
on the terms set forth in this Lease, which acceptance and the existence of a
binding agreement between Tenant and Landlord may then be evidenced only by
Landlord's execution of this Lease.
33
36
Landlord and Tenant caused this Lease to be executed and delivered by
their duly authorized representatives to be effective as of the Effective Date.
LANDLORD:
Date executed by Landlord: OPUS WEST CORPORATION, a Minnesota
corporation
_____________________________
By: ________________________________
Name: ______________________________
Title: _____________________________
TENANT:
SALESLOGIX CORPORATION, a Delaware
corporation
By: ________________________________
Name: ______________________________
Title: _____________________________
34
37
EXHIBIT "A"
DEFINITIONS
"ADDITIONAL RENT" means any charge, fee or expense (other than Basic Rent)
payable by Tenant under this Lease, however denoted.
"ALTERATION" means any change, alteration, addition or improvement to the
Premises or Property.
"BANKRUPTCY CODE" means the United States Bankruptcy Code as the same now exists
and as the same may be amended, including any and all rules and regulations
issued pursuant to or in connection with the United States Bankruptcy Code now
in force or in effect after the Effective Date.
"BASIC RENT" means the basic rent payable by Tenant under this Lease, initially
in the amounts specified in the Basic Terms.
"BASIC TERMS" means the terms of this Lease identified as the "Basic Terms"
before Article 1 of the Lease.
"BUILDING" means that certain office building to be constructed on the Land.
"BUILDING RULES" means those certain rules attached to this Lease as EXHIBIT
"E", as landlord may amend the same from time to time.
"BUSINESS DAYS" means any day other than Saturday, Sunday or a legal holiday in
the State.
"BUSINESS HOURS" means Monday through Friday from 7:00 a.m. to 6:00 p.m. and on
Saturdays from 8:00 a.m. to 1:00 p.m., excluding holidays.
"CERTIFICATE OF OCCUPANCY" means a certificate of occupancy or similar document
or permit (whether conditional, unconditional, temporary or permanent) which
must be obtained from the appropriate governmental authority as a condition to
the lawful occupancy by a tenant of space in the Building.
"CITY" means Scottsdale, Arizona
"CHANGE ORDER" means the documentation for a change to Tenant's Improvements
which is initiated after the Construction Drawings and Specifications have been
approved as provided in Section 17.1.6.
"CLAIMS" means all claims, actions, demands, liabilities, damages, costs,
penalties, forfeitures, losses or expenses, including, without limitation,
reasonable attorneys' fees and the costs and expenses of enforcing any
indemnification, defense or hold harmless obligation under the Lease.
A-1
38
"COMMENCEMENT DATE" means the earlier of (a) five days after the date of
Substantial Completion of Tenant's Improvements; or (b) the date Tenant
commences business operations in the Premises.
"COMMENCEMENT DATE MEMORANDUM" means the form of memorandum attached to the
Lease as EXHIBIT "D".
"COMMON AREA" means the parking area, driveways, lobby areas, and other areas of
the Property Landlord may designate from time to time as common area available
to all tenants.
"CONDEMNING AUTHORITY" means any person or entity with a statutory or other
power of eminent domain.
"CONSTRUCTION DRAWINGS AND SPECIFICATIONS" means the construction drawings and
specifications prepared based upon the space plan for the construction of
Tenant's Improvements, as provided in Section 17.1.
"CONTRACTOR" means Opus West Construction Corporation, a Minnesota corporation.
"COUNTY" means Maricopa County, Arizona.
"DELIVERY DATE" means the target date for Landlord's delivery of the Premises to
Tenant, which initially is the delivery date specified in the Basic Terms.
"EFFECTIVE DATE" means the date Landlord executes this Lease, as indicated on
the signature page.
"EVENT OF DEFAULT" means the occurrence of any of the events specified in
Section 14.1 of the Lease, or the occurrence of any other event which this Lease
expressly labels as an "Event of Default".
"EXCESS EXPENSES" means the total amount of Property Taxes and Operating
Expenses due and payable with respect to the Property during any calendar year
of the Term minus the product obtained by multiplying the expense stop specified
in the Basic Terms by the number of rentable square feet in the Building.
"FLOOR PLAN" means the floor plan attached to the Lease as EXHIBIT "C".
"FORCE MAJEURE" means acts of God; strikes; lockouts; labor troubles; inability
to procure materials; inclement weather; governmental laws or regulations;
casualty; orders or directives of any legislative, administrative, or judicial
body or any governmental department; inability to obtain any governmental
licenses, permissions or authorities (despite commercially reasonable pursuit of
such licenses, permissions or authorities); and other similar or dissimilar
causes beyond Landlord's reasonable control.
A-2
39
"GUARANTOR" means any person or entity at any time providing a guaranty of all
or any part of Tenant's obligations under this Lease.
"HAZARDOUS MATERIALS" means any of the following, in any amount: (a) any
petroleum or petroleum product, asbestos in any form, urea formaldehyde and
polychlorinated biphenyls; (b) any radioactive substance; (c) any toxic,
infectious, reactive, corrosive, ignitable or flammable chemical or chemical
compound; and (d) any chemicals, materials or substances, whether solid, liquid
or gas, defined as or included in the definitions of "hazardous substances,"
"hazardous wastes," "Hazardous materials," "extremely hazardous wastes,"
"restricted hazardous wastes," "toxic substances," "toxic pollutants," "solid
waste," or words of similar import in any federal, state or local statute, law,
ordinance or regulation now existing or existing on or after the Effective Date
as the same may be interpreted by government offices and agencies.
"HAZARDOUS MATERIALS LAWS" means any federal, state or local statutes, laws,
ordinances or regulations now existing or existing after the Effective Date that
control, classify, regulate, list or define Hazardous Materials.
"IMPROVEMENT ALLOWANCE" means the amount specified in the Basic Terms to be
applied to the costs of designing and installing Tenant's Improvements.
"IMPROVEMENTS" means, collectively, Landlord's Improvements and Tenant's
Improvements.
"LAND" means that certain real property legally described on the attached
EXHIBIT "B".
"LANDLORD" means only the owner or owners of the Property at the time in
question.
"LANDLORD PARTIES" means Landlord and Property Manager and their respective
officers, directors, partners, shareholders, members and employees.
"LANDLORD'S IMPROVEMENTS" means the base building improvements to the Premises
described on the attached EXHIBIT "F".
"LAWS" means any law, regulation, rule, order, statute or ordinance of any
governmental or private entity in effect on or after the Effective Date and
applicable to the Property or the use or occupancy of the Property, including,
without limitation, Hazardous Materials Laws, Building Rules and Permitted
Encumbrances.
"LEASE" means this Office Lease Agreement, as the same may be amended or
modified after the Effective Date.
"LEASE YEAR" means each consecutive 12 month period during the Term, commencing
on the Commencement Date, except that if the Commencement Date is not the first
day of a calendar month, then the first Lease Year is a period beginning on the
Commencement Date and ending on the last day of the calendar month in which the
Commencement Date occurs plus the following 12 consecutive calendar months.
A-3
40
"MAXIMUM RATE" means interest at a rate equal to the lesser of (a) 18% per
annum, or (b) the maximum interest rate permitted by law.
"MORTGAGE" means any mortgage, deed of trust, security interest or other
security document of like nature that at any time may encumber all or any part
of the Property and any replacements, renewals, amendments, modifications,
extensions or refinancings thereof, and each advance (including future advances)
made under any such instrument.
"NET RENT" means all rental Landlord actually receives from any reletting of all
or any part of the Premises, less any indebtedness from Tenant to Landlord other
than Rent (which indebtedness is paid first to Landlord) end less the Re-entry
Costs (which costs are paid second to Landlord).
"NOTICES" means all notices, demands or requests that may be or a% required to
be given, demanded or requested by either party to the other as provided in the
Lease.
"OPERATING EXPENSES" means all expenses Landlord incurs in connection with
maintaining, repairing and operating the Property, as determined by Landlord's
accountant In accordance with generally accepted accounting principles
consistently followed, including, but not limited to, the following: insurance
premiums and deductible amounts under any insurance policy; maintenance and
repair costs; steam, electricity, water, sewer, gas and other utility charges;
fuel; lighting; window washing; janitorial services; trash and rubbish removal;
property association fees and dues and all payments under any Permitted
Encumbrance (except Mortgages) affecting the Property; wages payable to persons
at the level of manager and below whose duties are connected with maintaining
and operating the Property (but only for the portion of such persons' time
allocable to the Property), together with all payroll taxes, unemployment
insurance, vacation allowances and disability, pension, profit sharing,
hospitalization, retirement and other so-called "fringe benefits" paid in
connection with such persons (allocated in a manner consistent with such
persons' wages); amounts paid to contractors or subcontractors for work or
services performed in connection with maintaining and operating the Property;
all costs of uniforms, supplies and materials used in connection with
maintaining, repairing and operating the Property; any expense imposed upon
landlord, its contractors or subcontractors pursuant to law or pursuant to any
collective bargaining agreement covering such employees; all services, supplies,
repairs, replacements or other expenses for maintaining and operating the
Property; costs of complying with Laws; reasonable management fees and the costs
(including rental) of maintaining a building or management office in the
Building; and such other expenses as may ordinarily be incurred in connection
with maintaining and operating an office complex similar to the Property. The
term "Operating Expenses" also includes expenses Landlord incurs in connection
with public sidewalks adjacent to the Property, any pedestrian walkway system
(either above or below ground) and any other public facility to which Landlord
or the Property is from time to time subject in connection with operating the
Property, The term Operating Expenses" does not include the cost of any capital
improvement to the Property other than replacements required for normal
maintenance and repair; the cost of repairs, restoration or other work
occasioned by fire, windstorm or other insured casualty other than the amount of
any deductible under any insurance policy (regardless whether the deductible is
payable by Landlord in connection with a capital
A-4
41
expenditure); expenses landlord incurs in connection with leasing or procuring
tenants or renovating space for new or existing tenants; legal expenses incident
to Landlord's enforcement of any lease; interest or principal payments on any
mortgage or other indebtedness of Landlord; or allowance or expense for
depreciation or amortization. Notwithstanding the foregoing, if Landlord
installs equipment in, or makes improvements or alterations to, the Property to
reduce energy, maintenance or other costs, or to comply with any Laws, Landlord
may include in Operating Expenses reasonable charges for interest paid on the
investment and reasonable charges for depreciation of the investment so as to
amortize the investment over the reasonable life of the equipment, improvement
or alteration on a straight line basis.
"PERMITTED ENCUMBRANCES" means all Mortgages, liens, easements, declarations,
encumbrances, covenants, conditions, reservations, restrictions and other
manners now or after the Effective Date affecting title to the Property.
"PREMISES" means that certain space situated in the Building shown and
designated on the Floor Plan and described in the Basic Terms.
"PROPERTY" means, collectively, the Land, Building, and all other improvements
on the Land.
"PROPERTY MANAGER" means the property manager named in the Basic Terms or any
other agent Landlord may appoint from time to time to manage the Property.
"PROPERTY TAXES" means any general real property tax, improvement tax,
assessment, special assessment, nonassessment, in lieu tax, levy, charge,
penalty or similar imposition imposed by any authority having the direct or
indirect power to tax, including but not limited to, (a) any city, county, state
or federal entity, (b) any school, agricultural, lighting, drainage or other
improvement or special assessment district, (c) any governmental agency, or (d)
any private entity having the authority to assess the Property under any of the
Permitted Encumbrances. The term "Property Taxes" includes all charges or
burdens of every kind and nature Landlord incurs in connection with using,
occupying, owning, operating, leasing or possessing the Property, without
particularizing by any known name and whether any of the foregoing are general,
special, ordinary, extraordinary, foreseen or unforeseen; any tax or charge for
fire protection, street lighting, streets, sidewalks, road maintenance, refuse,
sewer, water or other services provided to the Property. The term "Property
Taxes" does not include Landlord's state or federal income, franchise, estate or
inheritance taxes. If Landlord is entitled to pay, and elects to pay, any of the
above listed assessments or charges in installments over a period of two or more
calendar years, then only such installments of the assessments or charges
(including interest thereon) as are actually paid in a calendar year will be
included within the term "Property Taxes- for such calendar year.
"PUNCH LIST" means a list of Tenant's Improvements Items which were either not
properly completed or are in need of repair, which list will be prepared and
agreed upon by Landlord and Tenant as provided in Section 17.1.
A-5
42
"RE-ENTRY COST" means all costs and expenses Landlord incurs re-entering or
reletting all or any part of the Premises, including, without limitation, all
costs and expenses Landlord incurs (a) maintaining or preserving the Premises
after an Event of Default; (b) recovering possession of the Premises, recovering
persons and property from the Premises and storing such property (including
court costs and reasonable attorneys' fees); (c) reletting, renovating or
altering the Premises; and (d) real estate commissions, advertising expenses and
similar expenses paid or payable in connection with reletting all or any part of
the Premises. "Re-entry Costs" also includes the value of free rent and other
concessions Landlord gives in connection with re-entering or reletting all or
any part of the Premises.
"RENT" means, collectively, Basic Rent and Additional Rent.
"RENT COMMENCEMENT DATE" means the earlier of (a) the Commencement Date; or (b)
the date Substantial Completion of Tenant's Improvements would have occurred but
for Tenant Delay,
"RENT TAX" means any tax or excise on rents or on other sums or charges required
to be paid by Tenant under this Lease, and gross receipts tax, transaction
privilege tax or other tax, however described, which is levied or assessed by
the United States of America, the state in which the Building is located or any
city, municipality or political subdivision thereof, against Landlord in respect
to the Basic Rent, Additional Rent or other charges payable under this Lease or
as a result of Landlord's receipt of such rents or other charges accruing under
this Lease.
"SECURITY DEPOSIT" means the security deposit to be provided to Landlord in the
amount set forth in the Basic Terms.
"STATE" means the State of Arizona.
"STRUCTURAL ALTERATIONS" means any Alterations involving the structural,
mechanical, electrical, plumbing, fire/life safety or heating, ventilating and
air conditioning systems of the Building.
"SUBSTANTIAL COMPLETION" means either (a) the date a Certificate of Occupancy is
issued for the Premises, or (b) if a Certificate of Occupancy is not required,
the date Tenant is reasonably able to take occupancy of the Premises; provided
that if either (a) or (b) is delayed or prevented because of work Tenant is
responsible for performing in the Premises, "Substantial Completion" means the
date that all of Landlord's work which is necessary for either (a) or (b) to
occur has been performed and Landlord has made the Premises available to Tenant
for the performance of Tenant's work.
"TAKING" means the exercise by a Condemning Authority of its power of eminent
domain on all or any part of the Property, either by accepting a deed in lieu of
condemnation or by any other manner.
"TENANT" means the tenant identified in the Lease and such tenant's permitted
successors and assigns. In any provision relating to the conduct, acts or
omissions of "Tenant," the term "Tenant" includes the tenant identified in the
Lease and such tenant's agents, employees,
A-6
43
contractors, invitees, successors, assigns and others using the Premises or on
the Property with Tenant's expressed or implied permission.
"TENANT DELAY" means any delay caused or contributed to by Tenant, including,
without limitation, with respect to Tenant's Improvements, Tenant's failure to
timely prepare or approve a space plan for Tenant's Improvements, Tenant's
failure to timely prepare or approve the Construction Drawings and
Specifications, and any delay from any revisions Tenant proposes to approved
Construction Drawings and Specifications. A Tenant Delay excuses Landlord's
performance of any obligation related thereto for a period equal to (a) the
duration of the act, occurrence or omission which constitutes the Tenant Delay,
or (b) if longer, the period of delay actually caused by such Tenant Delay.
"TENANT'S IMPROVEMENTS" means the initial improvements to the Premises (other
than Landlord's Improvements) which are designed and installed as provided in
Section 17.1.
"TENANT'S SHARE OF EXCESS EXPENSES" means the product obtained by multiplying
the amount of Excess Expenses for the period in question by the Tenant's Share
of Excess Expenses Percentage.
"TENANT'S SHARE OF EXCESS EXPENSES PERCENTAGE" means the percentage specified in
the Basic Terms, as such percentage may be adjusted in accordance with the terms
and conditions of this Lease.
"TERM" means the initial term of this Lease specified in the Basic Terms and, if
applicable, any renewal term then in effect.
"TRANSFER" means an assignment, mortgage, pledge, transfer, sublease, license or
other encumbrance or conveyance (voluntarily, by operation of law or otherwise)
of this Lease or the Premises or any right, title or interest in or created by
this Lease or the Premises. The term "Transfer also includes any assignment,
mortgage, pledge, transfer or other encumbering or disposal (voluntarily, by
operation of law or otherwise) of any ownership Interest in Tenant or any
Guarantor that results or could result in a change of control of Tenant or any
Guarantor.
"UNRESERVED SPACES" mean vehicular parking spaces located in the parking
facilities provided for the Building which are not designated for the exclusive
use of a specific tenant or for use by visitors to the Property, as the same may
be relocated or redesignated from time to time by Landlord.
"WARRANTY TERMS" means, collectively, the punch list and construction warranty
provisions of Section 17.1 of the Lease.
A-7
44
EXHIBIT "D"
COMMENCEMENT DATE MEMORANDUM
THIS MEMORANDUM is made and entered into as of [_______________, ____]
by and between OPUS WEST CORPORATION, a Minnesota corporation ("Landlord"), and
SALESLOGIX CORPORATION, a Delaware corporation ("Tenant").
RECITALS:
1. Landlord and Tenant are party to a certain Office Lease Agreement
dated as of [_______________, ____] ("Lease"), relating to certain premises
("Premises") located in the building commonly known as "Xxxxxx Center l,"
located at [_____________________] ("Building").
2. Landlord and Tenant desire to confirm the Commencement Date and Rent
Commencement Date (as such terms are defined in the Lease) and the date the
[initial] Term of the Lease expires [and the notice date(s) and expiration
date(s) of any renewal Term(s) provided to Tenant under the Lease].
ACKNOWLEDGMENTS:
Pursuant to Section 1.2.3 of the Lease and in consideration of the
facts set forth in the Recitals, Landlord and Tenant acknowledge and agree as
follows;
1. All capitalized terms not otherwise defined in this Memorandum have
the meanings ascribed to them in the Lease.
2. The Commencement Date under the Lease is [________________________].
3. The Rent Commencement Date under the Lease is [___________________].
4. The initial Term of the Lease expires on [________________________],
unless the Lease is sooner terminated in accordance with the terms and
conditions of the Lease.
5. Tenant must exercise its right to the renewal Term, if at all, by
notifying Landlord no later than ________________________, subject to the
conditions and limitations set forth in the Lease.
6. The renewal Term expires on _______________________________________.
X-0
00
Xxxxxxxx and Tenant caused this Memorandum to be executed by their duly
authorized representatives as of the day and date first written above. This
Memorandum may be executed in counterparts, each of which is an original and all
of which constitute one instrument.
LANDLORD:
OPUS WEST CORPORATION, a Minnesota
corporation
By: ________________________________
Name: ______________________________
Title: _____________________________
TENANT:
SALESLOGIX CORPORATION, a Delaware
corporation
By: ________________________________
Name: ______________________________
Its: _______________________________
D-2
46
EXHIBIT "E"
BUILDING RULES
1. Any sign, lettering, picture, notice or advertisement installed on
or in any part of the Premises and visible from the exterior of the Building, or
visible from the exterior of the Premises, shall be installed at Tenant's sole
cost and expense, and in such manner, character and style as Landlord may
approve in writing. In the event of a violation of the foregoing by Tenant,
Landlord may remove the same without any liability and may charge the expense
incurred by such removal to Tenant.
2. No awning or other projection shall be attached to the outside walls
of the Building. No curtains, blinds, shades or screens visible from the
exterior of the Building or visible from the exterior of the Premises shall be
attached to or hung in, or used in connection with, any window or door of the
Premises without the prior written consent of Landlord. Such curtains, blinds,
shades, screens or other fixtures must be of a quality, type, design and color,
and attached in the manner, approved by Landlord.
3. Tenant and its servants, employees, customers, invitees and guests
shall not obstruct side-walks, entrances, passages, corridors, vestibules,
halls, elevators or stairways in and about the Building which are used in common
with other tenants and their servants, employees, customers, guests and invitees
and which are not a part of the Premises of Tenant. Tenant shall not place
objects against glass partitions or doors or windows which would be unsightly
from the Building corridors or from the exterior of the Building and will
promptly remove any such objects upon notice from Landlord.
4. Tenant shall not make excessive noises, cause disturbances or
vibrations or use or operate any electrical or mechanical devises that emit
excessive sound or other waves or disturbances, and Tenant shall not create
obnoxious odors (including cigarette, cigar and pipe smoke), any of which may be
offensive to the other tenants and occupants of the Building, or that would
interfere with the operation of any device, equipment, radio, television
broadcasting or reception from or within the Building or elsewhere and shall not
place or install any projections, antennas, aerials or similar devices inside or
outside of the Premises or on the Building.
5. Tenant shall not waste electricity, water or air conditioning and
shall cooperate fully with Landlord to insure the most effective operation of
the Building's heating and air conditioning systems and shall refrain from
attempting to adjust any controls other than unlocked room thermostats, if any,
installed for Tenant's use. Tenant shall keep corridor doors closed.
6. Tenant assumes full responsibility for protecting its space from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed and secured after normal business hours.
1
47
7. No person or contractor not employed by Landlord shall be used to
perform janitorial work, window washing, cleaning, maintenance, repair or
similar work in the Premises without the written consent of Landlord.
8. In no event shall Tenant bring into the Building inflammables, such
as gasoline, kerosene, naphtha and benzine, or explosives or any other article
of intrinsically dangerous nature. If, by reason of the failure of Tenant to
comply with the provisions of this subparagraph, any insurance premium for all
or any part of the Building shall at any time be increased, Tenant shall make
immediate payment of the whole of the increased insurance premium, without
waiver of any of Landlord's other rights at law or in equity for Tenant's breach
of this Lease.
9. Tenant shell comply with all applicable federal, state and municipal
laws, ordinances and regulations and building rules and shall not directly or
indirectly make any use of the Premises which may be prohibited by any of the
foregoing or which may be dangerous to persons or property or may increase the
cost of insurance or require additional insurance coverage.
10. Landlord shall have the right to prohibit any advertising by Tenant
which in Landlord's reasonable opinion tends to impair the reputation of the
Building or its desirability as an office complex for office use, and upon
written notice from Landlord, Tenant shall refrain from or discontinue such
advertising.
11. The Premises shall not be used for cooking, lodging, sleeping or
for any immoral or illegal purpose.
12. Tenant and Tenant's servants, employees, agents, visitors and
licensees shall observe faithfully and comply strictly with the Building Rules
and such other and further appropriate rules and regulations as Landlord or
Landlord's agent may from time to time adopt. Reasonable notice of any
additional rules and regulations shall be given in such manner as Landlord may
reasonably elect.
13. Unless expressly permitted by Landlord, no additional locks or
similar devices shall be attached to any door or window and no keys other than
those provided by Landlord shall be made for any door. If more than two keys for
one lock are desired by Tenant, Landlord may provide the same upon payment by
Tenant. Upon termination of this Lease or of Tenant's possession, Tenant shall
surrender all keys of the Premises and shall explain to Landlord all combination
locks on safes, cabinets and vaults.
14. Any carpeting cemented down by Tenant shall be installed with e
releasable adhesive. In the event of a violation of the foregoing by Tenant,
Landlord may charge the expense incurred by such removal to Tenant.
15. The water and wash closets, drinking fountains and other plumbing
fixtures shall not be used for any purpose other than those for which they were
constructed, and no sweepings, rubbish, rags, coffee grounds or other substances
shall be thrown therein. All damages resulting from any misuse of the fixtures
shall be borne by the tenant who, or whose servants, employees,
2
48
agents, visitors or licensees, shall have caused the same. No person shall waste
water by interfering or tampering with the faucets or otherwise.
16. No electrical circuit for any purpose shall be brought into the
Premises without Landlord's written permission specifying the manner in which
same may be done.
17. No bicycle or other vehicle, and no dog or other animal, shall be
allowed in offices, halls, corridors or elsewhere in the Building.
18. Tenant shall not throw anything out of the door or windows or down
any passageways or elevator shafts.
19. All loading, unloading, receiving or delivery of goods, supplies or
disposal of garbage or refuse shall be made only through entryways and freight
elevators provided for such purposes and indicated by Landlord. Tenant shall be
responsible for any damage to the Building or the property of its employees or
others and injuries sustained by any person whomsoever resulting from the use or
moving of such articles in or out of the Premises, and shall make all repairs
and improvements required by Landlord or governmental authorities in connection
with the use of such articles.
20. All safes, equipment or other heavy articles shall be carried in or
out of the Premises only at such time and in such manner as shall be prescribed
in writing by Landlord, and Landlord shall in all cases have the right to
specify the proper position of any such safe, equipment or other heavy article,
which shall only be used by Tenant in a manner which will not interfere with or
cause damage to the Premises or the Building or to the other tenants or
occupants of the Building. Tenant shall be responsible for any damage to the
Building or the property of its employees or others and injuries sustained by
any person whomsoever resulting from the use or moving of such articles in or
out of the Premises, and shall make all repairs and improvements required by
Landlord or governmental authorities in connection with the use or moving of
such articles.
21. Canvassing, soliciting and peddling in the Building is prohibited
and all tenants of the Building shall cooperate to prevent the same.
22. Vending machines shall not be installed without permission of
Landlord; provided, however, Landlord consents to the installation of vending
machines in the pantry or kitchen area of the Premises for the dispensing of
soda and other similar drinks to Tenant's employees and guests.
23. Wherever in these Building Rules the word "Tenant" occurs, it is
understood and agreed that it shall mean Tenant and Tenant's employees,
contractors, agents, servants and visitors. Wherever the word "Landlord" occurs,
it is understood and agreed that it shall mean Landlord and Landlord's assigns,
agents, servants and visitors.
24. Landlord shall have the right to enter upon the Premises at all
reasonable hours for the purpose of inspecting the same.
3
49
25. Landlord shall have the right to enter the Premises at hours
convenient to Tenant for the purpose of exhibiting the same to prospective
tenants within the sixty (60) day period prior to the expiration of this Lease.
26. Tenant and its servants, employees, customers, invitees and guests
shall, when using the common parking facilities, if any, in and around the
Building, observe and obey all signs regarding fire lanes and no parking zones,
and when parking, shall always park between the designated lines. Landlord
reserves the right to tow away, at the expense of the owner, any vehicle which
is improperly parked or parked in a no parking zone. All vehicles shall be
parked at the sole risk of the owner, and Landlord assumes no responsibility for
any damage to or loss of vehicles. No vehicles shall be parked overnight.
27. At all times the Building shall be in charge of Landlord's employee
in charge and (a) persons may enter the Building only in accordance with
Landlord's regulations, (b) persons entering or departing from the Building may
be questioned as to their business in the Building, and the right is reserved to
require the use of an identification card or other access device and the
registering of such persons as to the hour of entry and departure, nature of
visit, and other information deemed necessary for the protection of the
Building, and (c) all entries into and departures from the Building will take
place through one or more entrances as Landlord shall from time to time
designate; provided, however, anything herein to the contrary notwithstanding,
Landlord shall not be liable for any lack of security in respect to the Building
whatsoever Landlord will normally not enforce clauses (a), (b) and (c) above
from 7:00 a.m. to 5:00 p.m., Monday through Friday, and from 7:00 a.m. to 1:00
p.m. on Saturdays, but it reserves the right to do so or not to do so at any
time at its sole discretion. In case of invasion, mob, riot, public excitement
or other commotion, Landlord reserves the right to prevent access to the
Building during the continuance of the same by closing the doors or otherwise,
for the safety of the tenants or the protection of the Building and the property
therein. landlord shall in no case be liable for damages for any error or other
action taken with regard to the admission to or exclusion from the Building of
any person..
28. All entrance doors to the Premises shall be locked when the
Premises are not in use. All corridor doors shall also be closed during times
when the air conditioning equipment in the Building is operating so as not to
dissipate the effectiveness of the system or place an overload thereon.
29. Smoking shall be permitted only in the smoking areas located
outside of the Building, as designated and redesignated from time to time by
Landlord, and Tenant and its servants, employees, customers, invitees and guests
shall not smoke anywhere at the Building (other than the smoking areas
designated by Landlord), including without limitation Tenant's Premises and the
sidewalks, entrances, passages, corridors, halls, elevators and stairways of the
Building.
30. Only vehicles designated by Tenant to Landlord may be parked or
stored in the Reserved Spaces and Unreserved Spaces; provided, however, the
Tenant may change its automobile designations upon written notice to Landlord.
4
50
31. Tenant must, when using the parking areas of the Building, observe
and obey all signs regarding fire lanes and no parking zones, and when parking
must always park between designated lines. Landlord reserves the right to tow
away or otherwise impound, at the expense of the owner or operator, any
improperly parked vehicle.
32. In the event a key or other access device is supplied to Tenant for
accessing the parking areas of the Building, Tenant will surrender such key or
access device to Landlord upon termination of this Lease.
33. Landlord reserves the right at any time and from time to time to
rescind, alter or waive, in whole or in part, any of these Building Rules when
it is deemed necessary, desirable or proper, in Landlord's judgment, for its
best interest or for the best interest of the tenants of the Building.
5
51
EXHIBIT "F"
LANDLORD'S IMPROVEMENTS
1. 2' x 2' acoustical tile stockpiled on floor.
2. 2 x 4' parabolic fluorescent light fixtures stockpiled on the floor at
one (1) fixture per eighty (80) usable square feet.
3. Primary distribution of HVAC system.
4. Primary distribution of fire protection sprinkler system.
5. Mini-blinds stockpiled on the floor.
F-1
52
FIRST AMENDMENT TO OFFICE LEASE AGREEMENT
THIS FIRST AMENDMENT TO OFFICE LEASE AGREEMENT (the "First Amendment")
is made end entered into as of December _, 1999, by and between XXXXXX ONE
TRUST, a Maryland real estate investment trust ("Landlord"), and SALESLOGIX
CORPORATION, a Delaware corporation ("Tenant").
WHEREAS, Opus West Corporation, a Minnesota corporation, as landlord,
and Tenant, as tenant, previously entered into that certain Office Lease
Agreement dated July 30, 1999 (the "Agreement");
WHEREAS, landlord has succeeded to all right, title and interest as the
"Landlord" under the Agreement; and
WHEREAS, the parties desire to increase the size of the Premises and to
amend the Agreement on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. All capitalized terms used in this First Amendment, unless otherwise
defined herein, shall have the same meanings given to them in the Agreement.
2. Tenant desires to expand the Premises to include that certain
additional space containing 17,502 rentable square feet and located on the first
and second floors of the Building as shown on the space plan attached hereto as
Exhibit "A" and incorporated herein by this reference (the "First Expansion
Space"). commencing on the date of Landlord's substantial completion of the
First Expansion Space (the "First Expansion Space Commencement Date"), and
continuing for the remainder of the Term, Tenant will lease from Landlord, in
addition to the space currently being leased by Tenant from Landlord, the First
Expansion Space. For purposes of this First Amendment, "substantial completion"
means either (a) the date a Certificate of Occupancy is issued for the First
Expansion Space, or (b) if a Certificate of Occupancy is not required, the date
Tenant is reasonably able to take occupancy of the First Expansion Space;
provided that if either (a) or (b) is delayed or prevented because of work
Tenant is responsible for performing in the First Expansion Space, "substantial
completion" will mean the date that all of Landlord's work which is necessary
(or either (a) or (b) to occur has been performed and Landlord has made the
First Expansion Space available to Tenant for the performance of Tenant's work.
3. The following provisions will be effective on the First Expansion
Space Commencement Date:
(a) The term "Premises", as defined in the Agreement, will be
deemed to Include, in addition to the space currently leased by Tenant
from Landlord, the First Expansion Space, and all of the terms and
provisions of the Agreement, as specifically
1
53
amended hereby, shall be applicable to the entire Premises (including
the First Expansion Space).
(b) The first sentence of paragraph 1 of the Basic Terms is
hereby deleted and is replaced with the following:
Suite 200 and a suite on the first floor of the
Building, consisting of 34,430 rentable square feet
located on the first and second floors of the
Building.
(c) The reference to "$38,065.00" contained in paragraph 4 of
the Basic Terms (which amount constitutes the monthly installments of
Basic Rent) is hereby changed to $77,445.00".
(d) The reference to "12.02%" contained in paragraph 5 of the
Basic Terms (which amount constitutes Tenant's Share of Excess Expenses
Percentage) is hereby changed to "24.45%".
(e) The reference to "$190,327.50" contained in paragraph 8 of
the Basic Terms (which amount constitutes the Security Deposit) is
hereby changed to $229,707.00".
(f) The reference to "54" contained in Section 17.5 of the
Agreement (which amount constitutes Unreserved Spaces) is hereby
changed to "110".
4. Tenant will deliver the amount of $39,379.50 to Landlord on or
before the First Expansion Space Commencement Date, which amount will constitute
a portion of the Security Deposit.
5. The last sentence of Section 17.2 of the Agreement is hereby deleted
in its entirety and the following is substituted in its place:
If Tenant is not in default under this Lease on the
first day of the sixth, twelfth, and eighteenth full
calendar months of the Term, then on each of such
dates, a portion of the Security Deposit shall be
applied to pay the Basic Rent due for such. month;
provided, however, that the Security Deposit shall
not be reduced below an amount equal to one months'
Basic Rent as a result of any such application of the
Security Deposit.
6. Section 17.4 of the Agreement is hereby deleted in its entirety.
7. Tenant will pay all costs in connection with the design and
construction of Tenant's improvements for the First Expansion Space (the "First
Expansion Space Improvements"). Landlord will credit an amount, not to exceed
$21.47 per Usable Square Foot of the First Expansion Space (the "First Expansion
Space Improvement Allowance"), against
2
54
Tenant's obligation to pay for the design and installation of the First
Expansion Space Improvements; provided, however, that the First Expansion Space
Improvement Allowance must be used by Tenant not later than 270 days after the
First Expansion Space Commencement Date Landlord is not obligated to pay or
incur any amounts that exceed the First Expansion Space Improvement Allowance.
If the cost of the First Expansion Space Improvements exceeds the First
Expansion Space Improvement Allowance, Tenant will pay the excess to Landlord in
cash as Additional Rent. On or before December 20, 1999, Tenant will provide
Landlord with a space plan for the First Expansion Space Improvements, which
space plan must meet the criteria set forth in Section 17.1.5 of the Agreement.
Tenant will also pay, as Additional Rent, all of Landlord's costs (including
lost rent) resulting from Tenant Delay. If Landlord reasonably estimates that
the cost of the First Expansion Space Improvements will exceed the First
Expansion Space Improvement Allowance, Landlord may require Tenant to deposit
with Landlord, within sixty (60) days of the date this First Amendment is
executed, an amount equal to one-half (1/2) of the amount by which the cost of
the First Expansion Space Improvements exceeds the First Expansion Space
Improvement Allowance. The remaining one-half (1/2) of the amount by which the
cost of the First Expansion Space Improvements exceeds the First Expansion Space
Improvement Allowance will be paid upon the First Expansion Space Commencement
Date.
8. Landlord will use commercially reasonable efforts to tender
possession of the First Expansion Space to Tenant on or before March 15, 2000,
subject to Force Majeure and Tenant Delay. If Landlord is unable to tender
possession of the First Expansion Space to Tenant on or before such date for any
reason, the Agreement (as amended hereby) remains in full force and effect and
Landlord is not liable to Tenant for any resulting loss or damage.
9. Except as otherwise expressly modified in this First Amendment, the
terms and conditions of the Agreement are and shall remain in full force and
effect. In the event of any conflict or inconsistency between the terms and
provisions of the Agreement and the terms and provisions of this First
Amendment, the terms and provisions of this First Amendment shall govern and
control.
10. This First Amendment may be executed in any number of counterparts,
all of which together shall be deemed to constitute one instrument, and each of
which shall be deemed an original.
IN WITNESS WHEREOF, the parties have executed this First Amendment to
Office Lease Agreement as of the date first set forth above.
XXXXXX ONE TRUST, a Maryland real estate
investment trust
By ______________________________________
SALESLOGIX CORPORATION, a Delaware
corporation
By ______________________________________
3
