Exhibit 10.34
THIS OFFICE LEASE ("Lease") is made and entered into effective as of the
1st day of February, 2005, by and between 0000 XXXXXXX XXXXX VENTURE (the
"Landlord"), and RICOCHET NETWORKS, INC., a Delaware corporation (the "Tenant").
ARTICLE 1: BASIC PROVISIONS
This Article contains the basic lease provisions between Landlord and
Tenant.
A. Building: 0000 Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx (the "Property", as
further described in Article 30).
B. Premises: Suite 100 located on the 1st floor of the Building as
cross hatched on Exhibit A hereto, together with the
existing walled office fixtures.
C. Commencement
Date: February 1, 2005, subject to Articles 2 and 4.
D. Expiration Date: January 31, 2008, subject to Articles 2 and 4.
E. Rentable Area: The rentable area of the Premises shall be deemed to be
4,723 square feet, and the rentable area of the Property
shall be deemed to be 38,500 square feet, for purposes
of this Lease, subject to Article 30.
F. Tenant's Share: Twelve and 27/100 percent (12.27%), subject to Articles
3 and 30.
G. Base Rent: Tenant shall pay monthly Base Rent pursuant to the
following schedule and as described in Article 3:
Period Monthly Base Rent
2/1/05 - 1/31/06: $5,805.35
2/1/06 - 1/31/07: $6,002.15
2/1/07 - 1/31/08: $6,198.94
H. Additional Rent: Tenant shall pay Tenant's Share of Taxes and Expenses in
excess of the amount for the Base Tax Year and Base
Expense Year of 2005, as further described in Article 3.
I. Permitted Use: General offices, subject to Article 7.
J. Security Deposit: $6,002.15, subject to Article 16.
K. Broker (if any): Xxxxxxxxx Xxxx Company and Cresa Partners subject to
Article 26.
L. Guarantor(s): YDI Wireless, Inc.
M. Landlord's Notice Address (subject to Article 25):
x/x Xxxxxx-Xxxxxxxx Realty Company, 0000 Xxxxxxx Xxxxx,
Xxxxx 000, Xxxxxx, Xxxxxxxx 00000.
N. Tenant's Notice Address (subject to Article 25):
Ricochet Networks, Inc., 0000 Xxxxxxx Xxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000.
0. Rent Payments: Rent shall be paid to Landlord, x/x Xxxxxx-Xxxxxxxx
Realty Company, 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000, or such other parties and addresses as
to which Landlord shall provide advance notice.
P. Exhibits: This Lease includes, and incorporates by this reference:
Exhibit A: Premises
Exhibit B: Rules
Exhibit C: Guaranty
The foregoing provisions shall be interpreted and applied in accordance
with the other provisions of this Lease. The terms of this Article, and the
terms defined in Article 30 and other Articles, shall have the meanings
specified therefor when used as capitalized terms in other provisions of this
Lease or related documentation (except as expressly provided to the contrary
therein).
ARTICLE 2: TERM AND COMMENCEMENT
A. Term. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Premises for the Term, subject to the other provisions of this
Lease. The term ("Term") of this Lease shall commence on the Commencement Date
and end on the Expiration Date set forth in Article 1, unless sooner terminated
as provided in this Lease, subject to adjustment as provided below and the other
provisions of this Lease.
B. Early Commencement. The Commencement Date, Rent and Tenant's other
obligations shall be advanced to such earlier date as Tenant, with Landlord's
written permission, commences occupying the Premises for business purposes. If
such event occurs with respect to a portion of the Premises, the Commencement
Date, Rent and Tenant's other obligations shall be so advanced with respect to
such portion (and fairly prorated based on the rentable square footage
involved). During any period that Tenant shall be permitted to enter the
Premises prior to the Commencement Date other than to occupy the same for
business purposes (e.g., to perform alterations or improvements),
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Tenant shall comply with all terms and provisions of this Lease, except those
provisions requiring the payment of Rent. Landlord shall permit early entry, so
long as the Premises are legally available, Landlord has completed any work
required to be performed by Landlord under this Lease (or can reasonably
accommodate the scheduling of minor work Tenant desires to perform, such as
cabling, without delaying any such Landlord work), and Tenant is in compliance
with the other provisions of the Lease, including the insurance requirements.
C. Commencement Delays. Subject to Article 4.C, the Commencement Date,
Rent and Tenant's other obligations shall be postponed to the extent Tenant is
not reasonably able to occupy the Premises because Landlord fails, by the
Commencement Date set forth in Article 1, to: (i) deliver possession of the
Premises, and (ii) substantially complete any improvements to the Premises
required to be performed by Landlord under this Lease, except to the extent that
Tenant, its space planners, architects, contractors, agents or employees in any
way contribute to such failure. If such failure occurs with respect to a portion
of the Premises, the Commencement Date, Rent and Tenant's other obligations
shall be so postponed with respect to such portion (and fairly prorated based on
the rentable square footage involved). If the Commencement Date is postponed
pursuant to the foregoing provisions for a ninety (90) day initial grace period,
Tenant shall have the right to terminate this Lease by notice to Landlord given
within ten (10) days thereafter, subject to Landlord's right to cure as provided
in Article 21. Any such delay in the Commencement Date shall not subject
Landlord to liability for loss or damage resulting therefrom, and Tenant's sole
recourse with respect thereto shall be the postponement of Rent and other
obligations and right to terminate this Lease described herein.
D. Adjustments and Confirmation. If the Commencement Date is advanced to
an earlier date as provided above, the Expiration Date shall not be changed. If
the Commencement Date is postponed as provided above, the Expiration Date shall
be extended by the same length of time if Landlord so elects by notice to
Tenant. If the Commencement Date occurs other than on the first day of a
calendar month, Landlord may further elect by such notice to: (i) extend the
Term so that the Expiration Date is the last day of the calendar month in which
it would otherwise occur, and/or (ii) adjust the dates for any fixed increases
in the Base Rent so that they occur on the first day of the calendar month
following the month in which they would otherwise occur. Tenant shall execute a
confirmation of any dates as adjusted herein in such form as Landlord may
reasonably request; any failure to respond within thirty (30) days after
requested shall be deemed an acceptance of the matters set forth in Landlord's
confirmation. If Tenant disagrees with Landlord's adjustment of such dates,
Tenant shall pay Rent and perform all other obligations commencing and ending on
the dates determined by Landlord, subject to refund or credit when the matter is
resolved.
ARTICLE 3: BASE RENT AND ADDITIONAL RENT
A. Base Rent. Tenant shall pay Landlord the monthly Base Rent set forth in
Article 1 in advance on or before the first day of each calendar month during
the Term; provided, Tenant shall pay Base Rent for the first full calendar month
for which Base Rent
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shall be due (and any initial partial month) when Tenant executes this Lease.
B. Taxes and Expenses. Tenant shall pay Landlord Tenant's Share of Taxes
and Expenses in excess of the amounts of Taxes and Expenses respectively for the
Base Tax Year and Base Expense Year in the manner described below. The foregoing
capitalized terms shall have the meanings specified therefor in Articles 1 and
30.
C. Payments.
(i) Landlord may reasonably estimate in advance the amounts Tenant shall
owe for Taxes and Expenses for any full or partial calendar year of the Term. In
such event, Tenant shall pay such estimated amounts, on a monthly basis, on or
before the first day of each calendar month, together with Tenant's payment of
Base Rent. Such estimate may be reasonably adjusted from time to time by
Landlord.
(ii) Within 120 days after the end of each calendar year, or as soon
thereafter as practicable, Landlord shall provide a statement (the "Statement")
to Tenant showing: (a) the amount of actual Taxes and Expenses for such calendar
year, with a listing of amounts for major categories of Expenses, (b) any amount
paid by Tenant towards Taxes and Expenses during such calendar year on an
estimated basis, and (c) any further revised estimate of Tenant's obligations
for Taxes and Expenses for the current calendar year.
(iii) If the Statement shows that Tenant's estimated payments were less
than Tenant's actual obligations for Taxes and Expenses for such year, Tenant
shall pay the difference within fifteen (15) days after Landlord sends the
Statement. If the Statement shows that Tenant's estimated payments exceeded
Tenant's actual obligations for Taxes and Expenses, Landlord shall credit the
difference against the payment of Rent next due. If the Term shall have expired
and no further Rent shall be due, Landlord shall provide a refund of such
difference at the time Landlord sends the Statement.
(iv) If the Statement shows a further increase in Tenant's estimated
payments for the current calendar year, Tenant shall: (a) thereafter pay the new
estimated amount until Landlord further revises such estimated amount, and (b)
pay the difference between the new and former estimates for the period from
January 1 of the current calendar year through the month in which the Statement
is sent within fifteen (15) days after Landlord sends the Statement.
(v) In lieu of providing one Statement covering all such items, Landlord
may provide separate statements, at the same or different times. So long as
Tenant's obligations hereunder are not materially adversely affected thereby,
Landlord reserves the right to reasonably change, from time to time, the manner
or timing of Tenant's payments for Taxes and Expenses.
D. Tax Refunds, Protest Costs, Fiscal Years and Special Assessments.
Landlord shall each year: (i) credit against Taxes any refunds received during
such year, whether or not for a prior year, (ii) include in Taxes any additional
amount paid during such
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year involving an adjustment to Taxes for a prior year due to error by the
taxing authority, supplemental assessment, or other reason, (iii) for Taxes
payable in installments over more than one year, include only the minimum
amounts payable each year and any interest thereon, and (iv) include, in either
Taxes or Expenses, any fees for attorneys, consultants and experts, and other
costs paid during such year in attempting to protest, appeal or otherwise seek
to reduce or minimize Taxes, whether or not successful. Notwithstanding anything
to the contrary contained in this Lease, if any taxing authority, at any time,
uses a fiscal year other than a current calendar year, Landlord may elect to
require payments by Tenant based on: (a) amounts paid or payable during each
calendar year without regard to such fiscal years, or (b) amounts paid or
payable for or during each fiscal tax year.
E. Grossing Up and Tenant's Share Adjustments. In order to allocate
variable Expenses (i.e. those items that vary based on occupancy levels, such as
cleaning and utilities) among those parties who are leasing space at the
Property when it is not fully occupied during all or a portion of any calendar
year, Landlord may reasonably determine the amount of such variable Expenses
that would have been paid had the Property been 95% occupied, in which case the
amount so determined shall be deemed to have been the amount of Expenses for
such year (rather than adjusting Tenant's Share by subtracting vacant space from
the denominator). Similarly, if Landlord is not furnishing any particular
utility or service to a tenant during any period (the cost of which, if
performed by Landlord, would be included in Expenses), Landlord may for such
period: (i) adjust such items to reflect the additional amount that would
reasonably have been incurred during such period had Landlord furnished such
utility or service to such tenant, or (ii) exclude the rentable area of such
tenant from the rentable area of the Property in computing Tenant's Share of
such items. "Tenant's Share" shall be subject to such other adjustments as are
provided in the definition thereof in Article 30 below.
F. Prorations; Payments After Term Ends. If the Term commences on a day
other than the first day of a calendar month or ends on a day other than the
last day of a calendar month, the Base Rent and any other amounts payable on a
monthly basis shall be prorated on a per diem basis for such partial calendar
months. If the Base Rent is scheduled to increase under Article 1 other than on
the first day of a calendar month, the amount for such month shall be prorated
on a per diem basis to reflect the number of days of such month at the then
current and increased rates, respectively. If the Term commences other than on
January 1, or ends other than on December 31, Tenant's obligations to pay
amounts towards Taxes and Expenses for such first or final calendar years shall
be prorated on a per diem basis to reflect the portion of such years included in
the Term. Tenant's obligations to pay Taxes and Expenses (or any other amounts)
accruing during, or relating to, the period prior to expiration or earlier
termination of this Lease, shall survive such expiration or termination.
G. Landlord's Accounting Practices and Records. Landlord shall maintain
records respecting Taxes and Expenses and determine the same in accordance with
sound accounting and management practices consistently applied in accordance
with this Lease. Although this Lease contemplates the general computation of
Taxes and Expenses
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on a cash basis, Landlord shall make reasonable and appropriate accrual
adjustments to ensure that each calendar year includes substantially the same
recurring items. Landlord reserves the right to apply a full accrual system of
accounting so long as the same is consistently applied and Tenant's obligations
are not materially adversely affected. Tenant or its representative (acting on a
non-contingent fee basis) shall have the right to review such records by sending
notice to Landlord no later than thirty (30) days following the furnishing of
the Statement specifying such records as Tenant reasonably desires to review.
Such review shall be subject to the continuing condition that Tenant not be in
Default, and subject to reasonable scheduling by Landlord during normal business
hours at the place or places where such records are normally kept. No later than
thirty (30) days after Landlord makes such records available for review, Tenant
shall send Landlord notice specifying any exceptions that Tenant takes to
matters included in such Statement, Tenant's detailed reasons for each exception
which support a conclusion that such exception properly identifies an error in
such Statement, and a complete copy of the review report. Such Statement shall
be considered final and binding on Tenant, except as to matters to which
exception is taken after review of Landlord's records in the foregoing manner
and within the foregoing times. The foregoing times for sending Tenant's notices
hereunder are critical to Landlord's budgeting process, and are therefore of the
essence of this Paragraph. If Tenant takes timely exception as provided herein,
Landlord may seek certification from an independent certified public accountant
or financial consultant (who shall be subject to Tenant's reasonable approval)
as to the proper amount of Taxes and Expenses or the items as to which Tenant
has taken exception. In such case: (i) such certification shall be considered
final and binding on both parties (except as to additional amounts not then
known or omitted by error), and (ii) Tenant shall pay Landlord for the cost of
such certification, unless it shows that Taxes and Expenses were overstated by a
net amount of five percent (5%) or more. Pending review of such records and
resolution of any exceptions, Tenant shall pay Tenant's Share of Taxes and
Expenses in the amounts shown on such Statement, subject to credit, refund or
additional payment after any such exceptions are resolved
H. General Payment Matters. Base Rent, Taxes, Expenses and any other
amounts which Tenant is or becomes obligated to pay Landlord under this Lease or
other agreement entered in connection herewith are sometimes herein referred to
collectively as "Rent," and all remedies applicable to the non-payment of rent
shall be applicable thereto. Tenant shall pay Rent in good funds and legal
tender of the United States of America, together with any applicable sales tax
or other taxes on Rent as further described in Article 14. Tenant shall pay Rent
without any deduction, recoupment, set-off or counterclaim, and without relief
from any valuation or appraisement laws, except as may be expressly provided in
this Lease. No delay by Landlord in providing the Statement (or separate
statements) shall be deemed a default by Landlord or a waiver of Landlord's
right to require payment of Tenant's obligations for actual or estimated Taxes
or Expenses. In no event shall a decrease in Taxes or Expenses serve to decrease
Base Rent. Landlord may apply payments received from Tenant to any obligations
of Tenant then accrued, without regard to such obligations as may be designated
by Tenant.
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ARTICLE 4: CONDITION OF PREMISES
A. General Condition of Premises. Tenant has inspected, or had an
opportunity to inspect, the Premises (and portions of the Property, Systems and
Equipment providing access to or serving the Premises), and agrees to accept the
same "as is" without any agreements, representations, understandings or
obligations on the part of Landlord to perform any alterations, repairs or
improvements, except as may be expressly provided under this Lease (which term
includes any Exhibit hereto). To the extent that Landlord has expressly agreed
to perform any improvements to the Premises under this Lease, the following
provisions shall apply.
B. Tenant Not Occupying Premises During Improvements. If Tenant is not
currently occupying the Premises, then to the extent that Landlord is required
to perform any improvements to the Premises under this Lease: (i) Landlord shall
use diligent, good faith efforts to substantially complete any such improvements
to an extent that Tenant can reasonably occupy the Premises by the Commencement
Date set forth in Article 1, subject to Article 2 and the other provisions of
this Lease, (ii) Tenant shall use diligent, good faith efforts to cooperate, and
to cause its space planners, architects, contractors, agents and employees to
cooperate, diligently and in good faith with Landlord and any space planners,
architects, contractors or other parties designated by Landlord, such that any
such improvements to the Premises can be planned, permits can be obtained, and
the work can be substantially completed by the Commencement Date set forth in
Article 1, and (iii) the Commencement Date, Rent and Tenant's other obligations
shall be subject to postponement as further described in Article 2. In the event
of any dispute as to whether any such improvements have been substantially
completed, Landlord may refer the matter to Landlord's independent architect,
whose good faith decision shall be final and binding on the parties.
C. Tenant Occupying Premises During Improvements. If Tenant is currently
occupying the Premises, whether pursuant to a prior lease or otherwise, and
Landlord is required to perform any improvements to the Premises under this
Lease, then notwithstanding any other provision of this Lease to the contrary:
(i) Landlord shall use commercially reasonable efforts to minimize any
disruption to Tenant's occupancy of the Premises in connection therewith, (ii)
Landlord shall seek to substantially complete the same by the Commencement Date
set forth in Article 1, or within a reasonable time thereafter, but shall not be
required to incur overtime or pay premiums to perform such work before or after
the Building Hours, and may require that Tenant cooperate in scheduling and
staging the work within the Premises (including cooperation in moving personnel,
furniture and equipment or permitting Landlord to do so), and (iii) there shall
be no postponement of the Commencement Date or abatement of Rent as a result of
any such improvements, or delays in substantially completing the same, under any
circumstances (Tenant hereby acknowledging that it could have arranged for such
improvements through an independent contractor, subject to Landlord's approval,
the other provisions of this Lease and such other documentation as Landlord may
have required).
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ARTICLE 5: QUIET ENJOYMENT
Landlord agrees that, if Tenant timely pays the Rent and performs the
terms and provisions hereunder, Tenant shall hold the Premises during the Term
free of lawful claims by any party acting by or through Landlord, subject to all
other terms and provisions of this Lease.
ARTICLE 6: UTILITIES AND SERVICES
A. Standard Landlord Utilities and Services. Landlord shall provide the
following utilities and services (the cost of which shall be included in
Expenses):
(i) Heat and air-conditioning to provide a temperature required, in
Landlord's reasonable opinion and in accordance with applicable Law, for
occupancy of the Premises as offices during Building Hours (as defined in
Article 30).
(ii) Water from city mains for drinking, lavatory and toilet purposes
only, at those points of supply provided for nonexclusive general use of tenants
at the Property, or points of supply in the Premises installed by or with
Landlord's written consent for such purposes.
(iii) Cleaning and trash removal in and about the Premises comparable to
that provided as a standard service by landlords for office space in comparable
office buildings in the vicinity.
(iv) Passenger elevator service at all times (if the Property has such
equipment serving the Premises, and subject to changes in the number of
elevators in service after Building Hours or at other times), and freight
elevator service (if the Property has such equipment serving the Premises, and
subject to scheduling by Landlord), in common with Landlord and other parties.
(v) Electricity for building-standard overhead office lighting fixtures,
and equipment and accessories customary for offices, where: (a) Tenant uses an
amount of electricity that is generally consistent with average office use at
the Property, as reasonably determined by Landlord, (b) the Systems and
Equipment are suitable, and the safe and lawful capacity thereof is not
exceeded, and (c) sufficient capacity remains at all times for other existing
and future tenants, as reasonably determined by Landlord (who shall be subject
to similar restriction).
B. Additional Utilities and Services. Landlord shall seek to provide such
extra utilities or services as Tenant may from time to time request, if the same
are reasonable and feasible for Landlord to provide and do not involve
modifications or additions to the Property or existing Systems and Equipment,
and if Landlord shall receive Tenant's request within a reasonable period prior
to the time such extra utilities or services are required. Landlord may comply
with written or oral requests by any officer or employee of Tenant, unless
Tenant shall notify Landlord of, or Landlord shall request, the names of
authorized individuals (up to 3 for each floor on which the Premises are
located) and
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procedures for written requests. Tenant shall pay, for any extra utilities or
services, such standard charges as Landlord shall from time to time establish,
Landlord's out-of-pocket costs for architects, engineers, consultants and other
parties relating to such extra utilities or services, and a fee equal to fifteen
percent (15%) of such costs (provided, Landlord's standard overtime HVAC charges
shall not require an additional such percentage thereon). All payments for such
extra utilities or services shall be due at the same time as the installment of
Base Rent with which the same are billed, or if billed separately, shall be due
within fifteen (15) days after such billing. Landlord shall not be responsible
for inadequate air-conditioning or ventilation whenever the use or occupancy of
the Premises exceeds the normal capacity or design loads of, affects the
temperature or humidity otherwise maintained by, or otherwise adversely affects
the operation of, the Systems and Equipment for the Property, whether due to
items of equipment or machinery generating heat, above-normal concentrations of
personnel or equipment, or alterations to the Premises made by or through Tenant
without balancing the air or installing supplemental HVAC equipment. In any such
case, with at least fifteen (15) days advance notice to Tenant, Landlord may:
(i) elect to balance the air and/or install, operate, maintain and replace such
supplemental HVAC equipment during the Term, at Tenant's reasonable expense, as
an extra utility or service, or (ii) require that Tenant arrange for the same as
Work under Article 9. Notwithstanding the foregoing to the contrary, in lieu of
charging separately for additional utilities and services, Landlord may
reasonably elect from time to time to expand the amounts of utilities or
services available without separate charge, in which case the costs thereof
shall be included respectively in Utility Costs or Expenses.
C. Monitoring. Landlord may install and operate meters, submeters or any
other reasonable system for monitoring or estimating any services or utilities
used by Tenant in excess of those required to be provided by Landlord under this
Article (including a system for Landlord's engineer to reasonably estimate any
such excess usage). If such system indicates such excess services or utilities,
Tenant shall pay Landlord's charges and fees as described in Paragraph B above
for installing and operating such system and any supplementary air-conditioning,
ventilation, heat, electrical or other systems or equipment (or adjustments or
modifications to the existing Systems and Equipment) which Landlord may make,
and Landlord's charges for such amount of excess services or utilities used by
Tenant.
D. Interruptions and Changes. Landlord shall have no liability for
interruptions, variations, shortages, failures, changes in quality, quantity,
character or availability of any utilities or services caused by repairs,
maintenance, replacements, alterations (including any freon retrofit work),
labor controversies, accidents, inability to obtain services, utilities or
supplies, governmental or utility company acts or omissions, requirements,
guidelines or requests, or other causes beyond Landlord's reasonable control (or
under any circumstances with respect to utilities or services not required to be
provided by Landlord hereunder). Under no circumstances whatsoever shall any of
the foregoing be deemed an eviction or disturbance of Tenant's use and
possession of the Premises or any part thereof, serve to xxxxx Rent, or relieve
Tenant from performance of Tenant's obligations under this Lease. However, in
any such event after receiving notice, Landlord shall use commercially
reasonable efforts to restore such utilities or services required to be provided
hereunder to
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reasonable levels.
ARTICLE 7: USE, COMPLIANCE WITH LAWS, AND RULES
A. Use of Premises. Tenant shall use the Premises only for the permitted
use identified in Article 1, and no other purpose whatsoever, subject to the
other provisions of this Article and this Lease. Unless expressly permitted in
Article 1, Tenant shall not use or permit the Premises to be used as a: (i)
medical, dental, psychology, psychiatry or science office or laboratory, (ii)
telemarketing "boiler-room" sales operation, (iii) "executive suite" or "legal
suite" multi-party shared offices operation, (iv) travel agency or reservation
center, (v) retail real estate brokerage, retail stock brokerage, or retail bank
or financial institution, (vi) computerized vehicle sales, loan or "finder"
service, (vii) social-welfare office or governmental, quasi-governmental, trade
association or union office or activities, (ix) employment, placement,
recruiting or clerical support agency, (x) radio or television studio or
broadcasting or recording facility, or (xi) school, educational facility or
training center (except for training that is minor and ancillary to general
office use and does not require parking in excess of code requirements for
general office use).
B. Compliance With Laws. Tenant shall comply with all Laws relating to the
Premises and Tenant's use of the Premises and Property, and shall promptly
reimburse Landlord for any expenses Landlord incurs for work or other matters
relating to areas outside of the Premises in order to comply with Laws as a
result of Tenant's particular use of the Premises (as opposed to a Law that
applies to office tenants in general); provided, Tenant shall not be required by
this provision to perform structural improvements to the Premises that will
result in a benefit to Landlord extending beyond the Term, as it may be
extended, unless required by a Law pertaining to: (i) Tenant's particular use of
the Premises (as opposed to a Law that applies to office tenants in general),
(ii) Work performed by or for Tenant or any Transferee (i.e. excluding any
improvements or work that Landlord is required to perform under this Lease), or
(iii) other acts or omissions of Tenant or any Transferee.
C. Rules. Tenant shall comply with the Rules set forth in Exhibit B
attached hereto (the "Rules"). Landlord shall have the right, by notice to
Tenant, to reasonably amend such Rules and supplement the same with other
reasonable Rules relating to the Property, or the promotion of safety, care,
efficiency, cleanliness or good order therein. Although Landlord shall not
discriminate against Tenant in the enforcement of the Rules, nothing herein
shall be construed to give Tenant or any other Person any claim, demand or cause
of action against Landlord arising out of the violation of Laws or the Rules by
any other tenant or visitor of the Property, or out of the enforcement,
modification or waiver of the Rules by Landlord in any particular instance.
D. Other Requirements. So long as Tenant receives written notification of
the applicable requirements, Tenant shall not use or permit the Premises or
Property to be used in a way that will: (i) violate the requirements of
Landlord's insurers, the American Insurance Association, or any board of
underwriters, (ii) cause a cancellation of Landlord's policies, impair the
insurability of the Property, or increase Landlord's premiums (any such
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increase shall be paid by Tenant without such payment being deemed permission to
continue such activity or a waiver of any other remedies of Landlord), or (iii)
violate the requirements of any Lenders, the certificates of occupancy issued
for the Premises or the Property, or any other requirements, covenants,
conditions or restrictions affecting the Property at any time (provided none of
the foregoing shall prohibit normal office use of the Premises in compliance
with the other provisions of this Lease).
ARTICLE 8: MAINTENANCE AND REPAIRS
Except for customary cleaning and trash removal provided by Landlord under
Article 6, or casualty damage to be repaired by Landlord under Article 11,
Tenant shall keep and maintain (or cause to be kept and maintained) the Premises
in good and sanitary condition, working order and repair, in compliance with all
applicable Laws as described in Article 7, and as required under other
provisions of this Lease, including the Rules (including any carpet and other
flooring material, paint and wall-coverings, doors, windows, ceilings, interior
surfaces of walls, lighting, plumbing and other fixtures, alterations,
improvements, and systems and equipment in or exclusively serving the Premises
whether installed by Landlord or Tenant). In the event that any repairs,
maintenance or replacements are required, Tenant shall promptly notify Landlord
and arrange for the same either: (i) through Landlord for such reasonable
charges as Landlord may establish from time to time, payable within fifteen (15)
days after billing, or (ii) at Landlord's option, by engaging such contractors
as Landlord shall first designate or approve in writing to perform such work,
all in a first class, workmanlike manner approved by Landlord in advance in
writing and otherwise in compliance with Article 9 respecting "Work". Tenant
shall promptly notify Landlord concerning the necessity for any repairs or other
work hereunder and upon completion thereof. Tenant shall pay Landlord for any
repairs, maintenance and replacements to areas of the Property outside the
Premises caused, in whole or in part, as a result of moving any furniture,
fixtures, or other property to or from the Premises, or otherwise by Tenant or
its employees, agents, contractors, or visitors (notwithstanding anything to the
contrary contained in this Lease). Except as provided in the preceding sentence,
or for damage covered under Article 11, Landlord shall keep the exterior walls,
roof, structure, Systems and Equipment, and common areas of the Property in good
and sanitary condition, working order and repair (the cost of which shall be
included in Expenses to the extent permitted in the definition thereof in
Article 30) and in compliance with all applicable Laws.
ARTICLE 9: ALTERATIONS AND LIENS
A. Alterations and Approval. Tenant shall not attach any fixtures,
equipment or other items to the Premises, or paint or make any other additions,
changes, alterations or improvements to the Premises or the Systems and
Equipment serving the Premises (all such work is referred to collectively herein
as the "Work"), without the prior written consent of Landlord. Landlord shall
not unreasonably withhold consent, except that Landlord reserves the right to
withhold consent in Landlord's sole discretion for Work affecting the structure,
safety, efficiency or security of the Property or Premises, the Systems and
Equipment, or the appearance of the Premises from any common or public areas.
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Landlord may only require removal of Work installed by or for Tenant as provided
under Article 23.
B. Approval Conditions. Landlord reserves the right to impose reasonable
requirements as a condition of such consent or otherwise in connection with the
Work, including requirements that Tenant: (i) use parties contained on
Landlord's approved list (if reputable and available on commercially reasonable
terms) or submit for Landlord's prior written approval the names, addresses and
background information concerning all architects, engineers, contractors,
subcontractors and suppliers Tenant proposes to use, (ii) submit for Landlord's
written approval detailed plans and specifications prepared by licensed and
competent architects and engineers, (iii) obtain and post permits, (iv) provide
additional insurance, bonds and/or other reasonable security and/or
documentation protecting against damages, liability and liens, (v) use union
labor (if Landlord uses union labor), (vi) permit Landlord or its
representatives to inspect the Work at reasonable times, and (vii) comply with
such other reasonable requirements as Landlord may impose concerning the manner
and times in which such Work shall be done. Landlord may require that all Work
be performed under Landlord's supervision. If Landlord consents, inspects,
supervises, recommends or designates any architects, engineers, contractors,
subcontractors or suppliers, the same shall not be deemed a warranty as to the
adequacy of the design, workmanship or quality of materials, or compliance of
the Work with the plans and specifications or any Laws.
C. Performance of Work. All Work shall be performed: (i) in a thoroughly
first class, professional and workmanlike manner, (ii) only with materials that
are new, high quality, and free of material defects, (iii) only by parties, and
strictly in accordance with plans, specifications, and other matters, approved
or designated by Landlord in advance in writing, (iv) so as not to adversely
affect the Systems and Equipment or the structure of the Property, (v)
diligently to completion and so as to avoid any disturbance, disruption or
inconvenience to other tenants and the operation of the Property, and (vi) in
compliance with all Laws, the Rules and other provisions of this Lease, and such
other reasonable requirements as Landlord may impose concerning the manner and
times in which such Work shall be done. Any floor, wall or ceiling coring work
or penetrations or use of noisy or heavy equipment which may interfere with the
conduct of business by other tenants at the Property shall, at Landlord's
option, be performed at times other than Building Hours (at Tenant's sole cost).
If Tenant fails to perform the Work as required herein or the materials supplied
fail to comply herewith or with the specifications approved by Landlord, and
Tenant fails to cure such failure within 48 hours after written or oral notice
by Landlord (except notice shall not be required in emergencies), Landlord shall
have the right to stop the Work until such failure is cured (which shall not
limit Landlord's other remedies and shall not serve to xxxxx the Rent or
Tenant's other obligations under this Lease). Upon completion of any Work
hereunder, Tenant shall provide Landlord with "as built" plans, copies of all
construction contracts, and proof of payment for all labor and materials.
D. Liens. Tenant shall pay all costs for the Work when due. Tenant shall
keep the Property, Premises and this Lease free from any mechanic's,
materialman's, architect's, engineer's or similar liens or encumbrances, and any
claims therefor, or stop or
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violation notices, in connection with any Work. If contemplated under applicable
statutory procedures, Tenant shall post and record appropriate notices of
non-responsibility on behalf of Landlord, and shall give Landlord notice at
least ten (10) days prior to the commencement of any Work (or such additional
time as may be necessary under applicable Laws), to afford Landlord the
opportunity of posting and recording any other notices of non-responsibility.
Tenant shall remove any such claim, lien or encumbrance, or stop or violation
notices of record, by bond or otherwise within thirty (30) days after notice by
Landlord. If Tenant fails to do so, Landlord may pay the amount (or any portion
thereof) or take such other action as Landlord deems necessary to remove such
claim, lien or encumbrance, or stop or violation notices, without being
responsible for investigating the validity thereof. The amount so paid and costs
incurred by Landlord shall be deemed additional Rent under this Lease payable
upon demand, without limitation as to other remedies available to Landlord.
Nothing contained in this Lease shall authorize Tenant to do any act which shall
subject Landlord's title to, or any Lender's interest in, the Property or
Premises to any such claims, liens or encumbrances, or stop or violation
notices, whether claimed pursuant to statute or other Law or express or implied
contract.
E. Landlord's Fees and Costs. Tenant shall pay Landlord a fee for
reviewing, scheduling, monitoring, supervising, and providing access for or in
connection with the Work, if Tenant elects to contract Landlord for any Work
performed, in an amount equal to three percent (3%) of the total cost of the
Work (including costs of plans and permits therefor), and Landlord's
out-of-pocket costs, including any costs for security, utilities, trash removal,
temporary barricades, janitorial, engineering, architectural or consulting
services, and other matters in connection with the Work, payable within fifteen
(15) days after billing.
ARTICLE 10: INSURANCE, SUBROGATION, AND WAIVER OF CLAIMS
A. Required Insurance. Tenant shall maintain during the Term: (i)
commercial general liability ("CGL") insurance, with limits of not less than
$1,000,000 for personal injury, bodily injury or death, and property damage or
destruction (including loss of use thereon, combined single limit, for any one
occurrence, and $2,000,000 in the aggregate per policy year, with endorsements:
(a) for contractual liability covering Tenant's indemnity obligations under this
Lease, and (b) adding Landlord, the management company for the Property, and
other parties reasonably designated by Landlord, as additional insureds, and
(ii) primary, noncontributory, extended coverage or "all-risk" property damage
insurance (including installation floater insurance during any alterations or
improvements that Tenant makes to the Premises) covering any alterations or
improvements beyond any work or allowance provided by Landlord under this Lease,
and Tenant's personal property, business records, fixtures and equipment, for
damage or other loss caused by fire or other casualty or cause including, but
not limited to, vandalism and malicious mischief, theft, water damage of any
type, including sprinkler leakage, bursting or stoppage of pipes, explosion,
business interruption (for at least nine (9) months), and other insurable risks
in amounts not less than the full insurable replacement value of such property
and full insurable value of such other interests of Tenant (subject to
reasonable deductible amounts).
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B. Certificates and Other Matters. Tenant shall provide Landlord with
certificates evidencing the coverage required hereunder prior to the
Commencement Date, or Tenant's entry to the Premises for delivery of materials
or construction of improvements or any other purpose (whichever first occurs).
Such certificates shall state that such insurance coverage may not be reduced,
canceled or allowed to expire without at least thirty (30) days' prior written
notice to Landlord, and shall include, as attachments, originals of the
additional insured endorsements to Tenant's CGL policy required above. Tenant
shall provide renewal certificates to Landlord at least thirty (30) days prior
to expiration of such policies. Except as provided to the contrary herein, any
insurance carried by Landlord or Tenant shall be for the sole benefit of the
party carrying such insurance. Tenant's insurance policies shall be primary to
all policies of Landlord and any other additional insureds (whose policies shall
be deemed excess and noncontributory). All insurance required hereunder shall be
provided by responsible insurers licensed in the State in which the Property is
located, and shall have a general policy holder's rating of at least A- and a
financial rating of at least X in the then current edition of Best's Insurance
Reports. Landlord disclaims any representation as to whether the foregoing
overages will be adequate to protect Tenant.
C. Mutual Waiver of Claims and Subrogation. The parties hereby mutually
waive all claims against each other for all losses covered or required to be
covered hereunder by their respective insurance policies, and waive all rights
of subrogation of their respective insurers; for purposes hereof, any deductible
amount shall be treated as though it were recoverable under such policies. SUCH
MUTUAL WAIVER OF CLAIMS SHALL APPLY REGARDLESS OF THE NEGLIGENCE OR GROSS
NEGLIGENCE OF THE OTHER PARTY OR ITS AFFILIATES, AGENTS OR EMPLOYEES. The
parties agree that their respective insurance policies are now, or shall be,
endorsed such that said waiver of subrogation shall not affect the right of the
insured to recover thereunder.
ARTICLE 11: CASUALTY DAMAGE
A. Restoration. Tenant shall promptly notify Landlord of any damage to the
Premises by fire or other casualty. If the Premises or any common areas of the
Property providing access thereto shall be damaged by fire or other casualty,
Landlord shall use available insurance proceeds to restore the same. Such
restoration shall be to substantially the same condition as prior to the
casualty, except for modifications required by zoning and building codes and
other Laws or by any Lender, any other modifications to the common areas deemed
desirable by Landlord (provided access to the Premises is not materially
impaired), and except that Landlord shall not be required to repair or replace
any of Tenant's furniture, furnishings, fixtures, systems or equipment, or any
alterations or improvements in excess of any work or allowance provided by
Landlord under this Lease. Tenant shall reasonably cooperate in approving any
plans for repairs to the Premises hereunder, and in vacating the Premises to the
extent reasonably required to avoid any interference or delay in Landlord's
repair work. Promptly following completion of Landlord's work, Tenant shall
repair and replace Tenant's furniture, furnishings, fixtures, systems or
equipment, and any alterations or improvements made by Tenant in excess of those
provided by Landlord, subject to and in compliance with the other provisions of
this Lease.
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B. Abatement of Rent. Landlord shall not be liable for any inconvenience
or annoyance to Tenant or its visitors, or injury to Tenant's business resulting
in any way from such damage or the repair thereof. However, Landlord shall use
available rent loss proceeds to allow Tenant a proportionate abatement of Rent
from the date of the casualty through the date that Landlord substantially
completes Landlord's repair obligations hereunder (or the date that Landlord
would have substantially completed such repairs, but for delays by Tenant or any
other occupant of the Premises, or any of their agents, employees, invitees,
Transferees and contractors), provided such abatement: (i) shall apply only to
the extent the Premises are untenantable for the purposes permitted under this
Lease and not used by Tenant as a result thereof, based proportionately on the
square footage of the Premises so affected and not used, and (ii) shall not
apply if Tenant or any other occupant of the Premises, or any of their agents,
employees, invitees, Transferees or contractors caused the damage.
C. Termination of Lease. Notwithstanding the foregoing to the contrary, in
lieu of performing the restoration work, Landlord may elect to terminate this
Lease by notifying Tenant in writing of such termination within ninety (90) days
after the date of damage (such termination notice to include a termination date
providing at least thirty (30) days for Tenant to vacate the Premises), if the
Property shall be materially damaged by Tenant or any other occupant of the
Premises, or any of their agents, employees, invitees, Transferees or
contractors, or if the Property shall be damaged by fire or other casualty or
cause such that: (i) repairs to the Premises and access thereto cannot
reasonably be completed within 120 days after the casualty without the payment
of overtime or other premiums, (ii) more than twenty-five percent (25%) of the
Premises is affected by the damage and fewer than twenty-four (24) months remain
in the Term, or any material damage occurs to the Premises during the last
twelve (12) months of the Term, (iii) any Lender shall require that the
insurance proceeds or any material portion thereof be used to retire the
Mortgage debt (or shall terminate the ground lease, as the case may be), or the
damage is not fully covered, except for reasonable deductible amounts, by
Landlord's insurance policies, or (iv) the cost of the repairs, alterations,
restoration or improvement work would exceed thirty-five percent (35%) of the
replacement value of the Building (whether or not the Premises are affected by
the damage). Tenant agrees that the abatement of Rent provided herein shall be
Tenant's sole recourse in the event of such damage, and waives any other rights
Tenant may have under any applicable Law to perform repairs or terminate the
Lease by reason of damage to the Premises or Property.
ARTICLE 12: CONDEMNATION
If at least fifty percent (50%) of the rentable area of the Premises shall
be taken by power of eminent domain or condemned by a competent authority or by
conveyance in lieu thereof for public or quasi-public use ("Condemnation"),
including any temporary taking for a period of one year or longer, this Lease
shall terminate on the date possession for such use is so taken. If: (i) less
than fifty percent (50%) of the Premises is taken, but the taking includes or
affects a material portion of the Building or Property, or the economical
operation thereof, or (ii) the taking is temporary and will be in effect for
less than one year
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but more than thirty (30) days, then in either such event, Landlord may elect to
terminate this Lease upon at least thirty (30) days' prior notice to Tenant. The
parties further agree that: (a) if this Lease is terminated, all Rent shall be
apportioned as of the date of such termination or the date of such taking,
whichever shall first occur, (b) if the taking is temporary, Rent shall not be
abated for the period of the taking, but Tenant may seek a condemnation award
therefor (and the Term shall not be extended thereby), and (c) if this Lease is
not terminated but any part of the Premises is permanently taken, the Rent shall
be proportionately abated based on the square footage of the Premises so taken.
Landlord shall be entitled to receive the entire award or payment in connection
with such Condemnation and Tenant hereby assigns to Landlord any interest
therein for the value of Tenant's unexpired leasehold estate or any other claim
and waives any right to participate therein, except that Tenant shall have the
right to file any separate claim available to Tenant for a temporary taking of
the leasehold as described above, and for moving expenses and any taking of
Tenant's personal property, provided such award is separately payable to Tenant
and does not diminish the award available to Landlord or any Lender.
ARTICLE 13: ASSIGNMENT AND SUBLETTING
A. Transfers. Tenant shall not, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld as further described
below: (i) assign, mortgage, pledge, hypothecate, encumber, or permit any lien
to attach to, or otherwise transfer, this Lease or any interest hereunder, by
operation of Law or otherwise, (ii) sublet the Premises or any part thereof,
(iii) permit the use of the Premises by any Persons other than Tenant and its
employees (all of the foregoing are hereinafter sometimes referred to
collectively as "Transfers" and any Person to whom any Transfer is made or
sought to be made is hereinafter sometimes referred to as a "Transferee"). If
Tenant shall desire Landlord's consent to any Transfer, Tenant shall notify
Landlord in writing, which notice shall include: (a) the proposed effective date
(which shall not be less than thirty (30) nor more than 180 days after Tenant's
notice), (b) the portion of the Premises to be Transferred (herein called the
"Subject Space"), (c) the terms of the proposed Transfer and the consideration
therefor, the name, address and background information concerning the proposed
Transferee, and a true and complete copy of all proposed Transfer documentation,
(d) financial statements (balance sheets and income/expense statements for the
current and prior year) of the proposed Transferee, in form and detail
reasonably satisfactory to Landlord, certified by an officer, partner or owner
of the Transferee, (e) at least one favorable financial and business reference,
and (f) any other reasonable information to enable Landlord to determine the
financial responsibility, character, and reputation of the proposed Transferee,
nature of such Transferee's business and proposed use of the Subject Space or as
Landlord may reasonably request. Any Transfer made without complying with this
Article shall, at Landlord's option, be null, void and of no effect, or shall
constitute a Default under this Lease. Whether or not Landlord shall grant
consent, Tenant shall pay $500 towards Landlord's review and processing
expenses, as well as any reasonable legal fees incurred by Landlord, within
fifteen (15) days after Landlord's written request.
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B. Approval. Landlord will not unreasonably withhold its consent to any
proposed Transfer of the Subject Space to the Transferee on the terms specified
in Tenant's notice. The parties hereby agree that it shall be reasonable under
this Lease and under any applicable Law for Landlord to withhold consent to any
proposed Transfer where one or more of the following applies (without limitation
as to other reasonable grounds for withholding consent): (i) the Transferee is
of a character or reputation or engaged in a business which is not consistent
with the quality or nature of the Property or other tenants of the Property,
(ii) the Transferee intends to use the Subject Space for purposes which are not
permitted under this Lease, (iii) the Subject Space is not regular in shape with
appropriate means of ingress and egress suitable for normal renting purposes,
would result in more than a reasonable number of occupants, or would require
increased services by Landlord, (iv) the Transferee is a government (or agency
or instrumentality thereof), (v) the proposed Transferee or any affiliate
thereof is an occupant of the Property (or of any complex in which the Property
is located) or has negotiated to lease space in the Property (or in such
complex) from Landlord during the prior six (6) months, (vi) the proposed
Transferee does not have, in Landlord's good faith determination, satisfactory
references or a reasonable financial condition in relation to the obligations to
be assumed in connection with the Transfer, (vii) the Transfer involves a
partial or collateral assignment, a mortgage, or other encumbrance on this
Lease, (viii) the proposed Transfer involves conversion, merger or consolidation
of Tenant into a limited liability company or limited liability partnership
which would have the legal effect of releasing Tenant from any obligations under
this Lease, (ix) the proposed Transfer would cause Landlord to be in violation
of any Laws or any other lease, Mortgage or agreement to which Landlord is a
party, or would give a tenant of the Property a right to cancel its lease, or
(x) Tenant has committed and failed to cure a Default. If Tenant disagrees with
Landlord's decision to deny approval, Tenant's sole remedy shall be to seek
immediate declaratory and injunctive relief, and to recover attorneys' fees and
costs as a prevailing party under Article 17.
C. Transfer Premiums. If Landlord consents to a Transfer, and as a
condition thereto which the parties hereby agree is reasonable, Tenant shall
retain fifty percent (50%) of any Transfer Premium, and shall pay Landlord fifty
percent (50%) of any Transfer Premium, derived by Tenant from such Transfer.
"Transfer Premium" shall mean: (i) for a lease assignment, all consideration
paid or payable therefor, and (ii) for a sublease, all rent, additional rent or
other consideration paid by such Transferee in excess of the Rent payable by
Tenant under this Lease (on a monthly basis during the Term, and on a per
rentable square foot basis, if less than all of the Premises is transferred). In
any such computation, Tenant: (a) may subtract any reasonable direct
out-of-pocket costs incurred in connection with such Transfer, such as
advertising costs, brokerage commissions, attorneys' fees and leasehold
improvements for the Subject Space, and (b) shall include in the "Transfer
Premium" any so-called "key money" or other bonus amount paid by Transferee to
Tenant, and any payments in excess of fair market value for services rendered by
Tenant to Transferee or in excess of fair market value for assets, fixtures,
inventory, equipment or furniture transferred by Tenant to Transferee. If part
of the consideration for such Transfer shall be payable other than in cash,
Landlord's share of such non-cash consideration shall be in such form as is
reasonably satisfactory to Landlord. Tenant shall pay the percentage of the
Transfer Premium due Landlord
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hereunder within fifteen (15) days after Tenant receives any Transfer Premium
from the Transferee.
D. Recapture. Notwithstanding anything to the contrary contained in this
Article, Landlord shall have the option, by giving notice to Tenant within
thirty (30) days after receipt of Tenant's notice of any proposed Transfer, to
recapture the Premises or Subject Space. Such recapture notice shall cancel and
terminate this Lease with respect to the Premises or Subject Space, as the case
may be, as of the date stated in Tenant's notice as the effective date of the
proposed Transfer (or at Landlord's option, such notice shall cause the Transfer
to be made to Landlord or its agent or nominee, in which case the parties shall
execute reasonable Transfer documentation promptly thereafter). If this Lease
shall be canceled with respect to less than the entire Premises, the Rent herein
shall be prorated on the basis of the number of rentable square feet retained by
Tenant in proportion to the number of rentable square feet contained in the
Premises, this Lease as so amended shall continue thereafter in full force and
effect, and upon request of either party the parties shall execute written
confirmation of the same. Tenant shall surrender and vacate the Premises or
Subject Space, as the case may be, when required hereunder in accordance with
Article 23, and any failure to do so shall be subject to Article 24.
E. Terms of Consent. If Landlord consents to a Transfer: (i) the terms and
conditions of this Lease, including Tenant's liability for the Subject Space,
shall in no way be deemed to have been waived or modified, (ii) such consent
shall not be deemed consent to any further Transfer by either Tenant or a
Transferee, (iii) no Transferee shall succeed to any rights provided in this
Lease or any amendment hereto to extend the Term of this Lease, expand the
Premises, or lease other space, any such rights being deemed personal to the
initial Tenant, (iv) Tenant shall deliver to Landlord, promptly after execution,
an original executed copy of all documentation pertaining to the Transfer in
form reasonably acceptable to Landlord, and (v) Tenant shall furnish a complete
statement, certified by an independent certified public accountant or Tenant's
financial officer, setting forth in detail the computation of any Transfer
Premium that Tenant has derived and shall derive from such Transfer. Landlord or
its authorized representatives shall have the right at all reasonable times to
audit the books, records and papers of Tenant and any Transferee relating to any
Transfer, and shall have the right to make copies thereof. If the Transfer
Premium respecting any Transfer shall be found to have been understated, Tenant
shall pay the deficiency within fifteen (15) days after demand (and if
understated by more than five percent (5%), Tenant shall include with such
payment Landlord's costs of such audit). Any sublease hereunder shall be
subordinate and subject to the provisions of this Lease, and if this Lease shall
be terminated during the term of any sublease, whether based on Default or
mutual agreement, Landlord shall have the right to: (a) deem such sublease as
merged and canceled and repossess the Subject Space by any lawful means, or (b)
require that such subtenant attorn to and recognize Landlord as its landlord
under such sublease with respect to obligations arising thereafter, subject to
the terms of Landlord's standard form of attornment documentation. If Tenant
shall commit a Default under this Lease, Landlord is hereby irrevocably
authorized to direct any Transferee to make all payments under or in connection
with the Transfer directly to Landlord (which Landlord shall apply toward
Tenant's obligations under this Lease).
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F. Certain Transfers. For purposes of this Lease, the term "Transfer"
shall also include, and all of the foregoing provisions shall apply to: (i) the
conversion, merger or consolidation of Tenant into a limited liability company
or limited liability partnership, (ii) if Tenant is a partnership or limited
liability company, the withdrawal or change, voluntary, involuntary or by
operation of law, of a majority of the partners or members, or a transfer of a
majority of partnership or membership interests, within a twelve month period,
or the dissolution of the partnership or company, and (iii) if Tenant is a
closely held corporation (i.e., whose stock is not publicly held and not traded
through an exchange or over the counter), the dissolution, merger, consolidation
or other reorganization of Tenant, or within a twelve month period: (a) the sale
or other transfer of more than an aggregate of 50% of the voting shares of
Tenant (other than to immediate family members by reason of gift or death), or
(b) the sale, mortgage, hypothecation or pledge of more than an aggregate of 50%
of Tenant's net assets. Notwithstanding the foregoing provisions of this Article
13(F), the term "Transfer" shall not include, and none of the foregoing
provisions shall apply to, any transfer or assignment of this Lease, by
operation of law or otherwise, to a successor in interest to Tenant by means of
merger, sale, acquisition, change of control, or sale of all or substantially
all of the assets of Tenant; provided, however, that the provisions of this
sentence are personal to Ricochet Networks, Inc. and its parent company,
subsidiaries, and affiliates.
ARTICLE 14: PERSONAL PROPERTY, RENT AND OTHER TAXES
Tenant shall pay, prior to delinquency, all taxes, charges or other
governmental impositions assessed against or levied upon all fixtures,
furnishings, personal property, built-in and modular furniture, and systems and
equipment located in or exclusively serving the Premises, notwithstanding that
certain such items may become Landlord's property under Article 23 upon
termination of the Lease. Whenever possible, Tenant shall cause all such items
to be assessed and billed separately from the other property of Landlord. In the
event any such items shall be assessed and billed with the other property of
Landlord, Tenant shall pay Landlord Tenant's share of such taxes, charges or
other governmental impositions within fifteen (15) days after Landlord delivers
a statement and a copy of the assessment or other documentation showing the
amount of impositions applicable to Tenant's property. Tenant shall pay any rent
tax, sales tax, service tax, transfer tax, value added tax, or any other
applicable tax on the Rent, utilities or services herein, the privilege of
renting, using or occupying the Premises or collecting Rent therefrom, or
otherwise respecting this Lease or any other document entered in connection
herewith. Notwithstanding the foregoing, Tenant shall have no obligation to pay
any excess profits taxes, franchise taxes, gift taxes, capital stock taxes,
inheritance and succession taxes, estate taxes, federal and state income taxes,
or other taxes to the extent applicable to Landlord's general or net income.
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ARTICLE 15: LANDLORD'S REMEDIES
A. Default. The occurrence of any one or more of the following events
shall constitute a "Default" by Tenant and shall give rise to Landlord's
remedies set forth in Paragraph B below: (i) failure to make when due any
payment of Rent, unless such failure is cured within five (5) business days
after notice (for the first default in a twelve month period, and thereafter
three (3) days for any subsequent failure to make when due any payment of Rent
in the same twelve month period); (ii) failure to observe or perform any term or
condition of this Lease other than the payment of Rent (or the other matters
expressly described herein), unless such failure is cured within any period of
time following notice expressly provided with respect thereto in other Articles
hereof, or otherwise within a reasonable time (but not less than fifteen (15)
days), but in no event more than thirty (30) days following notice (provided, if
the nature of Tenant's failure is such that more time is reasonably required in
order to cure, Tenant shall not be in Default if Tenant commences to cure
promptly within such period, diligently seeks and keeps Landlord reasonably
advised of efforts to cure such failure to completion, and completes such cure
within sixty (60) days following Landlord's notice); (iii) failure to cure
immediately upon notice thereof any condition which is hazardous, interferes
with another tenant or the operation or leasing of the Property, or may cause
the imposition of a fine, penalty or other remedy on Landlord or its agents or
affiliates, (iv) violating Article 13 respecting Transfers, or abandoning the
Premises ("abandonment" under this Lease shall mean vacating or failing to
occupy the Premises for more than thirty (30) days while Tenant is delinquent in
paying Rent), or (v) (a) making by Tenant or any guarantor of this Lease
("Guarantor") of any general assignment for the benefit of creditors, (b) filing
by or for reorganization or arrangement under any Law relating to bankruptcy or
insolvency (unless, in the case of a petition filed against Tenant or such
Guarantor, the same is dismissed within thirty (30) days), (c) appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets
located in the Premises or of Tenant's interest in this Lease, where possession
is not restored to Tenant within thirty (30) days, (d) attachment, execution or
other judicial seizure of substantially all of Tenant's assets located in the
Premises or of Tenant's interest in this Lease, (e) Tenant's or any Guarantor's
convening of a meeting of its creditors or any class thereof for the purpose of
effecting a moratorium upon or composition of its debts, (f) Tenant's or any
Guarantor's insolvency or failure, or admission of an inability, to pay debts as
they mature, or (g) a violation by Tenant or any affiliate of Tenant under any
other lease or agreement with Landlord or any affiliate thereof which is not
cured within the time permitted for cure thereunder. The notice and cure periods
herein are intended to satisfy and run concurrently with any notice and cure
periods provided by Law, and shall not be in addition thereto.
B. Remedies. If a Default occurs, Landlord shall have the rights and
remedies hereinafter set forth to the extent permitted by Law, which shall be
distinct, separate and cumulative with and in addition to any other right or
remedy allowed under any Law or other provision of this Lease:
(1) Landlord may terminate Tenant's right of possession, reenter and
repossess the Premises by detainer suit, summary proceedings or other lawful
means, with or without
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terminating this Lease (except as required by Law), and recover from Tenant: (i)
any unpaid Rent as of the termination date, (ii) the amount by which: (a) any
unpaid Rent which would have accrued after the termination date during the
balance of the Term exceeds (b) the reasonable rental value of the Premises
under a lease substantially similar to this Lease, taking into account, among
other things, the condition of the Premises, market conditions, the period of
time the Premises may reasonably remain vacant before Landlord is able to
re-lease the same to a suitable replacement tenant, and Costs of Reletting (as
defined in Paragraph H below) that Landlord may incur in order to enter such
replacement lease, and (iii) any other amounts necessary to compensate Landlord
for all damages proximately caused by Tenant's failure to perform its
obligations under this Lease. For purposes of computing the amount of Rent
herein that would have accrued after the termination date, Tenant's obligations
for Taxes and Expenses shall be projected based upon the average rate of
increase in such items from the Commencement Date through the termination date
(or if such period shall be less than three years, then based on Landlord's
reasonable estimates). The amounts computed in accordance with the foregoing
subclauses (a) and (b) shall both be discounted in accordance with accepted
financial practice at the rate of five percent (5%) per annum to the then
present value.
(2) Landlord may terminate Tenant's right of possession, reenter and
repossess the Premises by detainer suit, summary proceedings or other lawful
means, with or without terminating this Lease (except as required by Law), and
recover from Tenant: (i) any unpaid Rent as of the date possession is
terminated, (ii) any unpaid Rent which thereafter accrues during the Term from
the date possession is terminated through the time of judgment (or which may
have accrued from the time of any earlier judgment obtained by Landlord), less
any consideration received from replacement tenants as further described and
applied pursuant to Paragraph H, below, and (iii) any other amounts necessary to
compensate Landlord for all damages proximately caused by Tenant's failure to
perform its obligations under this Lease, including all Costs of Reletting (as
defined in Paragraph H below). Tenant shall pay any such amounts to Landlord as
the same accrue or after the same have accrued from time to time upon demand. At
any time after terminating Tenant's right to possession as provided herein,
Landlord may terminate this Lease as provided in clause (1) above by notice to
Tenant and may pursue such other remedies as may be available to Landlord under
this Lease or Law.
C. Mitigation of Damages. If Landlord terminates this Lease or Tenant's
right to possession, Landlord shall be obligated to mitigate Landlord's damages
if and to the extent required by applicable Law, subject to the following: (i)
Landlord shall be required only to use reasonable efforts to mitigate, which
shall not exceed such efforts as Landlord generally uses to lease other space at
the Property, (ii) Landlord will not be deemed to have failed to mitigate if
Landlord or its affiliates lease any other portions of the Property or other
projects owned by Landlord or its affiliates in the same geographic area, before
reletting all or any portion of the Premises, and (iii) any failure to mitigate
as described herein with respect to any period of time shall only reduce the
Rent and other amounts to which Landlord is entitled hereunder by the reasonable
rental value of the Premises during such period, taking into account the factors
described in clause B(1) above. Tenant may seek to mitigate damages by
attempting to sublease the Premises or assign this Lease
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pursuant to Article 13.
D. Reletting. If this Lease or Tenant's right to possession is terminated,
or Tenant abandons the Premises, Landlord may: (i) enter and secure the
Premises, change the locks, install barricades, remove any improvements,
fixtures or other property of Tenant therein, perform any decorating,
remodeling, repairs, alterations, improvements or additions and take such other
actions as Landlord shall determine in Landlord's sole discretion to prevent
damage or deterioration to the Premises or prepare the same for reletting, and
(ii) relet all or any portion of the Premises (separately or as part of a larger
space), for any rent, use or period of time (which may extend beyond the Term
hereto, and upon any other terms as Landlord shall determine in Landlord's sole
discretion, directly or as Tenant's agent (if permitted or required by
applicable Law). The consideration received from such reletting shall be applied
pursuant to the terms of Paragraph H hereof, and if such consideration, as so
applied, is not sufficient to cover all Rent and damages to which Landlord may
be entitled hereunder, Tenant shall pay any deficiency to Landlord as the same
accrues or after the same has accrued from time to time upon demand, subject to
Paragraph C and the other provisions hereof.
E. Specific Performance, Collection of Rent and Acceleration. Landlord
shall at all times have the right without prior demand or notice except as
required by applicable Law to (i) seek any declaratory, injunctive or other
equitable relief, and specifically enforce this Lease or restrain or enjoin a
violation of any provision hereof, and Tenant hereby waives any right to require
that Landlord post a bond or other security in connection therewith, and (ii)
xxx for and collect any unpaid Rent which has accrued. Notwithstanding anything
to the contrary contained in this Lease, to the extent not expressly prohibited
by applicable Law, in the event of any Default by Tenant, Landlord may terminate
this Lease or Tenant's right to possession and accelerate and declare all Rent
reserved for the remainder of the Term to be immediately due and payable;
provided the Rent so accelerated shall be discounted in accordance with accepted
financial practice at the rate of five percent (5%) per annum to the then
present value, and Landlord shall, after receiving payment of the same from
Tenant, be obligated to turn over to Tenant any actual net reletting proceeds
(net of all Costs of Reletting) thereafter received during the remainder of the
Term, up to the amount so received from Tenant pursuant to this provision.
F. Late Charges, Interest, and Returned Checks. Tenant shall pay, as
additional Rent, a service charge of Two Hundred Fifty Dollars ($250.00) or five
percent (5%) of the delinquent amount, whichever is greater, if any portion of
Rent is not received when due. In addition, any Rent not paid when due shall
accrue interest from the due date at the Default Rate until payment is received
by Landlord. Such service charges and interest payments shall not be deemed
consent by Landlord to late payments, nor a waiver of Landlord's right to insist
upon timely payments at any time, nor a waiver of any remedies to which Landlord
is entitled as a result of the late payment of Rent. If Landlord receives two
(2) or more checks from Tenant which are returned by Tenant's bank for
insufficient funds, Landlord may require that all checks thereafter be bank
certified or cashier's checks (without limiting Landlord's other remedies). All
bank service charges resulting from any
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returned checks shall be borne by Tenant.
G. Landlord's Cure of Tenant Violations. If Tenant fails to perform any
obligation under this Lease for ten (10) days after notice thereof by Landlord
(except that no notice shall be required in emergencies), Landlord shall have
the right (but not the duty), to perform such obligation on behalf and for the
account of Tenant. In such event, Tenant shall reimburse Landlord upon demand,
as additional Rent, for all expenses incurred by Landlord in performing such
obligation together with an amount equal to fifteen percent (15%) thereof for
Landlord's overhead, and interest thereon at the Default Rate from the date such
expenses were incurred. Landlord's performance of Tenant's obligations hereunder
shall not be deemed a waiver or release of Tenant therefrom.
H. Other Matters. No re-entry or repossession, repairs, changes,
alterations and additions, reletting, or any other action or omission by
Landlord shall be construed as an election by Landlord to terminate this Lease
or Tenant's right to possession, nor shall the same operate to release Tenant in
whole or in part from any of Tenant's obligations hereunder, unless express
notice of such intention is sent by Landlord to Tenant (and if applicable Law
permits, and Landlord shall not have expressly terminated this Lease in writing,
then any termination shall be deemed a termination of Tenant's right of
possession only). Landlord may bring suits for amounts owed by Tenant hereunder
or any portions thereof, as the same accrue or after the same have accrued, and
no suit or recovery of any portion due hereunder shall be deemed a waiver of
Landlord's right to collect all amounts to which Landlord is entitled hereunder,
nor shall the same serve as any defense to any subsequent suit brought for any
amount not theretofore reduced to judgment. Landlord may pursue one or more
remedies against Tenant and need not make an election of remedies until findings
of fact are made by a court of competent jurisdiction. All rent and other
consideration paid by any replacement tenants shall be applied at Landlord's
option: (i) first, to the Costs of Reletting, (ii) second, to the payment of all
costs of enforcing this Lease against Tenant or any Guarantor, (iii) third, to
the payment of all interest and service charges accruing hereunder, (iv) fourth,
to the payment of Rent theretofore accrued, and (v) with the residue, if any, to
be held by Landlord and applied to the payment of Rent and other obligations of
Tenant as the same become due (and with any remaining residue to be retained by
Landlord). "Costs of Reletting" shall include all costs and expenses incurred by
Landlord for any repairs or other matters described in Paragraph D above,
brokerage commissions, advertising costs, attorneys' fees, and any other costs
and incentives incurred in order to enter into leases with replacement tenants.
Landlord shall be under no obligation to observe or perform any provision of
this Lease on its part to be observed or performed which accrues while Tenant is
in Default hereunder. The times set forth herein for the curing of Defaults by
Tenant are of the essence of this Lease. Tenant agrees that the notice and cure
rights set forth herein contain the entire agreement of the parties respecting
such matters, and hereby waives any right otherwise available under any Law to
redeem or reinstate this Lease or Tenant's right to possession after this Lease
or Tenant's right to possession is properly terminated hereunder.
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ARTICLE 16: SECURITY DEPOSIT
Tenant shall deposit with Landlord the amount set forth in Article 1
("Security Deposit"), upon Tenant's execution and submission of this Lease. The
Security Deposit shall serve as security for the prompt, full and faithful
performance by Tenant of the terms and provisions of this Lease. If Tenant
commits a Default, or owes any amounts to Landlord upon the expiration or
earlier termination of this Lease, Landlord may use or apply the whole or any
part of the Security Deposit for the payment of Tenant's obligations hereunder.
The use or application of the Security Deposit or any portion thereof shall not
prevent Landlord from exercising any other right or remedy provided hereunder or
under any Law and shall not be construed as liquidated damages. In the event the
Security Deposit is reduced by such use or application, Tenant shall deposit
with Landlord within ten (10) days after notice, an amount sufficient to restore
the full amount of the Security Deposit. Landlord shall not be required to keep
the Security Deposit separate from Landlord's general funds or pay interest on
the Security Deposit. Any remaining portion of the Security Deposit shall be
returned to Tenant (or, at Landlord's option, to the last assignee of Tenant's
interest in this Lease) within sixty (60) days after Tenant (or such assignee)
has vacated the Premises in accordance with Article 23. If the Premises shall be
expanded at any time, or if the Term shall be extended at an increased rate of
Rent, the Security Deposit shall thereupon be proportionately increased. Tenant
shall not assign, pledge or otherwise transfer any interest in the Security
Deposit except as part of an assignment of this Lease approved by Landlord under
Article 13, and any attempt to do so shall be null and void.
ARTICLE 17: ATTORNEYS' FEES, JURY TRIAL AND VENUE
In the event of any litigation or arbitration between the parties relating
to this Lease, the Premises or Property (including pretrial, trial, appellate,
administrative, bankruptcy or insolvency proceedings), the prevailing party
shall be entitled to recover its attorneys' fees and costs as part of the
judgment, award or settlement therein. In the event of a breach of this Lease by
either party which does not result in litigation but which causes the
non-breaching party to incur attorneys' fees or costs, the breaching party shall
reimburse such fees and costs to the non-breaching party upon demand. If either
party or any of its officers, directors, trustees, beneficiaries, partners,
agents, affiliates or employees shall be made a party to any litigation or
arbitration commenced by or against the other party and is not at fault, the
other party shall pay all costs, expenses and attorneys' fees incurred by such
parties in connection with such litigation. IN THE INTEREST OF OBTAINING A
SPEEDIER AND LESS COSTLY HEARING OF ANY DISPUTE, LANDLORD AND TENANT HEREBY
WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER
PARTY AGAINST THE OTHER ARISING OUT OF OR RELATING TO THIS LEASE, THE PREMISES
OR THE PROPERTY. Although such jury waiver is intended to be self-operative and
irrevocable, Landlord and Tenant each further agree, if requested, to confirm
such waivers in writing at the time of commencement of any such action,
proceeding or counterclaim. Any action or proceeding brought by either party
against the other for any matter arising out of or in any way relating to this
Lease, the Premises or the Property, shall be heard, at Landlord's option, in
the
24
court having jurisdiction located closest to the Property.
ARTICLE 18: SUBORDINATION, ATTORNMENT AND LENDER PROTECTION
This Lease is subject and subordinate to all Mortgages now or hereafter
placed upon the Property, and all other encumbrances and matters of public
record applicable to the Property. Whether before or after any foreclosure or
power of sale proceedings are initiated or completed by any Lender or a deed in
lieu is granted (or any ground lease is terminated), Tenant agrees, upon written
request of any such Lender or any purchaser at such sale, to attorn and pay Rent
to such party, and recognize such party as Landlord (provided such Lender or
purchaser shall agree not to disturb Tenant's occupancy so long as Tenant does
not Default hereunder, on a form of agreement customarily used by, or otherwise
reasonably acceptable to, such party). However, in the event of attornment, no
Lender shall be: (i) liable for any act or omission of Landlord, or subject to
any offsets or defenses which Tenant might have against Landlord (arising prior
to such Lender becoming Landlord under such attornment), (ii) liable for any
security deposit or bound by any prepaid Rent not actually received by such
Lender, or (iii) bound by any modification of this Lease not consented to by
such Lender. Any Lender may elect to make this Lease prior to the lien of its
Mortgage by written notice to Tenant, and if the Lender of any prior Mortgage
shall require, this Lease shall be prior to any subordinate Mortgage; such
elections shall be effective upon written notice to Tenant, or shall be
effective as of such earlier or later date set forth in such notice. Tenant
agrees to give any Lender by certified mail, return receipt requested, a copy of
any notice of default served by Tenant upon Landlord, provided that prior to
such notice Tenant has been notified in writing (by way of service on Tenant of
a copy of an assignment of leases, or otherwise) of the address of such Lender.
Tenant further agrees that if Landlord shall have failed to cure such default
within the time permitted Landlord for cure under this Lease, any such Lender
whose address has been provided to Tenant shall have an additional period of
thirty (30) days in which to cure (or such additional time as may be required
due to causes beyond such Lender's reasonable control, including time to obtain
possession of the Property by appointment of receiver, power of sale or judicial
action). Except as expressly provided to the contrary herein, the provisions of
this Article shall be self-operative; however Tenant shall execute and deliver,
within ten (10) days after request therefor, such documentation as Landlord or
any Lender may reasonably request from time to time, whether prior to or after a
foreclosure or power of sale proceeding is initiated or completed, a deed in
lieu is delivered, or a ground lease is terminated, in order to further confirm
or effectuate the matters set forth in this Article in recordable form.
ARTICLE 19: ESTOPPEL CERTIFICATES
Tenant shall from time to time, within ten (10) days after written request
from Landlord, execute, acknowledge and deliver a statement certifying: (i) that
this Lease is unmodified and in full force and effect or, if modified, stating
the nature of such modification and certifying that this Lease as so modified,
is in full force and effect (or specifying the ground for claiming that this
Lease is not in force and effect), (ii) the dates to which the Rent has been
paid, and the amount of any Security Deposit, (iii) that Tenant is
25
in possession of the Premises, and paying Rent on a current basis with no
offsets, defenses or claims, or specifying the same if any are claimed, (iv)
that there are not, to Tenant's knowledge, any uncured defaults on the part of
Landlord or Tenant, or specifying the same if any are claimed, and (v)
certifying such other matters, and including such current financial statements,
as Landlord may reasonably request, or as may be requested by Landlord's current
or prospective Lenders, insurance carriers, auditors, and prospective purchasers
(and including a comparable certification statement from any subtenant
respecting its sublease). Any such statement may be relied upon by any such
parties. If Tenant shall fail to execute and return such statement within the
time required herein, Tenant shall be in Default, and shall be deemed to have
agreed with the matters set forth therein (which shall not be in limitation of
Landlord's other remedies).
ARTICLE 20: RIGHTS RESERVED BY LANDLORD
Except to the extent expressly limited herein, Landlord reserves full
rights to control the Property (which rights may be exercised without subjecting
Landlord to claims for constructive eviction, abatement of Rent, damages or
other claims of any kind), including more particularly, but without limitation,
the following rights:
A. General Matters. To: (i) change the name or street address of the
Property or designation of the Premises, (ii) install and maintain signs on and
about the Property, and grant any other Person the right to do so, (iii) retain
at all times, and use in appropriate instances, keys to all doors within and
into the Premises, (iv) grant to any Person the right to conduct any business or
render any service at the Property, whether or not the same are similar to the
use permitted Tenant by this Lease, (v) have access for Landlord and other
tenants of the Property to any mail chutes located on the Premises according to
the rules of the United States Postal Service (and to install or remove such
chutes), and (vi) in case of fire, invasion, insurrection, riot, civil disorder,
public excitement or other dangerous condition, or threat thereof: (a) limit or
prevent access to the Property, (b) shut down elevator service, (c) activate
elevator emergency controls, and (d) otherwise take such action or preventative
measures deemed necessary by Landlord for the safety of tenants of the Property
or the protection of the Property and other property located thereon or therein
(but this provision shall impose no duty on Landlord to take such actions, and
no liability for actions taken in good faith).
B. Access To Premises. Subject to the following provisions, to enter the
Premises in order to: (i) inspect, (ii) supply cleaning service or other
services to be provided Tenant hereunder, (iii) show the Premises to current and
prospective Lenders, insurers, purchasers, governmental authorities, and their
representatives, and during the last twelve (12) months of Tenant's occupancy,
show the Premises to prospective tenants and leasing brokers, and (iv) decorate,
remodel or alter the Premises if Tenant abandons the Premises at any time or
vacates the same during the last 120 days of the Term (without thereby
terminating this Lease), and (v) perform any work or take any other actions
under Paragraph C below, or exercise other rights of Landlord under this Lease
or applicable Laws. If Tenant requests that any such access occur before or
after Building Hours, and
26
Landlord schedules the work accordingly, Tenant shall pay all overtime and other
additional costs in connection therewith. In connection with any such access to
the Premises, except in emergencies or for cleaning or other routine services to
be provided to Tenant under this Lease, Landlord shall: (a) provide reasonable
advance written or oral notice to Tenant's on-site manager or other appropriate
person, and (b) take reasonable steps to minimize any disruption to Tenant's
business.
C. Changes To The Property. Subject to the last sentence of this
Paragraph, to: (i) paint and decorate, (ii) perform repairs or maintenance, and
(iii) make replacements, restorations, renovations, alterations, additions and
improvements, structural or otherwise (including freon retrofit work), in and to
the Property or any part thereof, including any adjacent building, structure,
facility, land, street or alley, or change the uses thereof (other than Tenant's
permitted use under this Lease), including changes, reductions or additions of
corridors, entrances, doors, lobbies, parking facilities and other areas,
structural support columns and shear walls, elevators, stairs, escalators,
mezzanines, solar tint windows or film, kiosks, planters, sculptures, displays,
and other amenities and features therein, and changes relating to the connection
with or entrance into or use of the Property or any other adjoining or adjacent
building or buildings, now existing or hereafter constructed. In connection with
such matters, Landlord may erect scaffolding, barricades and other structures,
open ceilings, close entry ways, restrooms, elevators, stairways, corridors,
parking and other areas and facilities, and take such other actions as Landlord
deems appropriate. However, Landlord shall: (a) maintain reasonable access to
the Premises, and (b) in connection with entering the Premises, comply with the
last sentence of Paragraph B above.
ARTICLE 21: LANDLORD'S RIGHT TO CURE
If Landlord shall fail to perform any obligation under this Lease required
to be performed by Landlord, Landlord shall not be deemed to be in default
hereunder nor subject to any claims for damages of any kind, unless such failure
shall have continued for more than a reasonable time (but not less than fifteen
(15) days), but in no event more than thirty (30) days following notice
(provided, if the nature of Landlord's failure is such that more time is
reasonably required in order to cure, Landlord shall not be in default if
Landlord commences to cure promptly within such period, diligently seeks and
keeps Tenant reasonably advised of efforts to cure such failure to completion,
and completes such cure within sixty (60) days following Tenant's notice). If
Landlord shall default and fail to cure as provided herein, Tenant shall have
the right to perform repairs and any other obligation of Landlord (at Landlord's
cost); provided, however, (i) Tenant shall have no right to withhold, set off,
or xxxxx Rent, (ii) Tenant shall have such other rights and remedies as may be
available to Tenant under this Lease or under applicable Laws, and (iii) Tenant
shall have the right to terminate this Lease only as may be provided for
elsewhere in this Lease or under applicable Laws.
27
ARTICLE 22: INDEMNIFICATION
Subject to the provisions of Articles 10 and 11, Tenant shall defend,
indemnify and hold Landlord harmless from and against any and all claims,
demands, losses, penalties, fines, fees, charges, assessments, liabilities,
damages, judgments, orders, decrees, actions, administrative or other
proceedings, costs and expenses (including reasonable attorneys' and expert
witness fees, and court costs), arising or alleged to arise from: (i) any
violation or breach of this Lease or applicable Law by any Tenant Parties (as
defined below), (ii) damage, loss or injury to persons, property or business
directly or indirectly arising out of any Tenant Party's use of the Premises or
Property, or out of any other act or omission of any Tenant Parties, and (iii)
any other damage, loss or injury to persons, property or business occurring in,
about or from the Premises, except to the extent that such other damage, loss or
injury to persons, property or business is caused by the negligence or
intentional misconduct of Landlord. For purposes of this provision, "Tenant
Parties" shall mean Tenant, any other occupant of the Premises and any of their
respective agents, employees, invitees, Transferees and contractors.
Subject to the provisions of Articles 10 and 11, Landlord shall defend,
indemnify and hold Tenant harmless from and against any and all claims, demands,
losses, penalties, fines, fees, charges, assessments, liabilities, damages,
judgments, orders, decrees, actions, administrative or other proceedings, costs
and expenses (including reasonable attorneys' and expert witness fees, and court
costs), arising or alleged to arise from: (i) any violation or breach of this
Lease or applicable Law by any Landlord Parties (as defined below), (ii) damage,
loss or injury to persons, property or business directly or indirectly arising
out of any Landlord Party's use of the Premises or Property, or out of any other
act or omission of any Landlord Parties, and (iii) any other damage, loss or
injury to persons, property or business occurring in, about or from the Building
or the Premises, except to the extent that such other damage, loss or injury to
persons, property or business is caused by the negligence or intentional
misconduct of Tenant. For purposes of this provision, "Landlord Parties" shall
mean Landlord, and any of its respective agents, employees and contractors.
ARTICLE 23: RETURN OF POSSESSION
A. General Provisions. At the expiration or earlier termination of this
Lease or Tenant's right of possession, Tenant shall vacate and surrender
possession of the entire Premises in the condition required under Article 8 and
the Rules, ordinary wear and tear excepted, shall surrender all keys and key
cards, and any parking transmitters, stickers or cards to Landlord, and shall
remove all personal property and office trade fixtures that may be readily
removed without damage to the Premises or Property, subject to the following
provisions.
B. Landlord's Property. All improvements, fixtures and other items,
including ceiling light fixtures, HVAC equipment, plumbing fixtures, hot water
heaters, fire suppression and sprinkler systems, built-in shelves and cabinets,
interior partitioning, interior stairs, wall coverings, carpeting and other
flooring, blinds, drapes and window
28
treatments, in or serving the Premises, whether installed by Tenant or Landlord,
and any other items installed or provided by Landlord or at Landlord's expense
(including any modular furniture provided or paid for by Landlord), shall be
Landlord's property and shall remain upon the Premises, all without
compensation, allowance or credit to Tenant, unless Landlord elects otherwise as
provided in Paragraph C below.
C. Removal of Items by Tenant. Notwithstanding the foregoing to the
contrary, if prior to expiration or earlier termination of this Lease or within
thirty (30) days thereafter Landlord so directs by notice, Tenant shall promptly
remove such of the items described in Paragraph B above as are designated in
such notice and restore the Premises to the condition prior to the installation
of such items in a good and workmanlike manner; provided, Landlord shall not
require removal of any such items that: (i) already existed in the Premises
before this Lease and Tenant's occupancy of the Premises, or (ii) involve
customary office improvements that are installed by or for Tenant pursuant to
the provisions of this Lease (including any Exhibit hereto) to the extent that
Tenant seeks, and Landlord grants, a written waiver of such removal requirement
in connection with Landlord's approval of the plans for such improvements.
D. Tenant's Failure to Remove Items. If Tenant shall fail to remove any
items from the Premises as required hereunder, Landlord may do so and Tenant
shall pay Landlord's charges therefor upon demand. All such property removed
from the Premises by Landlord pursuant to any provisions of this Lease or any
Law may be handled or stored by Landlord at Tenant's expense, and Landlord shall
in no event be responsible for the value, preservation or safekeeping thereof.
All such property not removed from the Premises or retaken from storage by
Tenant within thirty (30) days after expiration or earlier termination of this
Lease or Tenant's right to possession shall, at Landlord's option, be
conclusively deemed to have been conveyed by Tenant to Landlord as if by xxxx of
sale without payment by Landlord. Unless prohibited by applicable Law, Landlord
shall have a lien against such property for the costs incurred in removing and
storing the same.
ARTICLE 24: HOLDING OVER
Unless Landlord expressly agrees otherwise in writing, Tenant shall pay
Landlord 150% of the amount of Rent then applicable prorated on a per diem basis
for each day that Tenant shall fail to vacate or surrender possession of the
Premises or any part thereof after expiration or earlier termination of this
Lease as required under Article 23, together with all damages (direct and
consequential) sustained by Landlord on account thereof. Tenant shall pay such
amount of Rent monthly in advance (subject to refund of any partial month
occupancy prorated on a per diem basis), and such other amounts on demand. The
foregoing provisions, and Landlord's acceptance of any such amounts, shall not
serve as permission for Tenant to hold-over, nor serve to extend the Term
(although Tenant shall remain a tenant-at-sufferance bound to comply with all
other provisions of this Lease until Tenant properly vacates the Premises,
including Article 23), and Landlord shall have such other remedies to recover
possession of the Premises as may be available to Landlord under applicable
Laws.
29
ARTICLE 25: NOTICES
Except as expressly provided to the contrary in this Lease, every notice
or other communication to be given by either party to the other with respect
hereto or to the Premises or Property, shall be in writing and shall not be
effective for any purpose unless the same shall be served personally or by
national air courier service, or United States certified mail, return receipt
requested, postage prepaid, to the parties at the addresses set forth in Article
1, or such other address or addresses as Tenant or Landlord may from time to
time designate by notice given as above provided. Every notice or other
communication hereunder shall be deemed to have been given as of the third
business day following the date of such mailing (or as of any earlier date
evidenced by a receipt from such national air courier service or the United
States Postal Service) or immediately if personally delivered. Notices not sent
in accordance with the foregoing shall be effective when received by the parties
at the addresses required herein.
ARTICLE 26: REAL ESTATE BROKERS
Landlord and Tenant hereby mutually: (i) represent and warrant to each
other that they have dealt only with the broker, if any, designated in Article 1
(whose commission, if any, shall be paid pursuant to separate written agreement
by the party signing such agreement) as broker, agent or finder in connection
with this Lease, and (ii) agree to defend, indemnify and hold each other
harmless from and against any and all claims, demands, losses, liabilities,
damages, judgments, costs and expenses (including reasonable attorneys' and
expert witness fees, and court costs), arising or alleged to arise from any
breach of their respective foregoing representation and warranty under this
Article.
ARTICLE 27: NO WAIVER
No provision of this Lease will be deemed waived by either party unless
expressly waived in writing and signed by the waiving party. No waiver shall be
implied by delay or any other act or omission of either party. No waiver by
either party of any provision of this Lease shall be deemed a waiver of such
provision with respect to any subsequent matter relating to such provision, and
Landlord's consent or approval respecting any action by Tenant shall not
constitute a waiver of the requirement for obtaining Landlord's consent or
approval respecting any subsequent action. Acceptance of Rent by Landlord
directly or through any agent or lockbox arrangement shall not constitute a
waiver of any breach by Tenant of any term or provision of this Lease (and
Landlord reserves the right to return or refund any untimely payments if
necessary to preserve Landlord's remedies). No acceptance of a lesser amount of
Rent shall be deemed a waiver of Landlord's right to receive the full amount
due, nor shall any endorsement or statement on any check or payment or any
letter accompanying such check or payment be deemed an accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the full amount due. The acceptance of Rent or of the
performance of any other term or provision from, or providing directory listings
or services for, any Person other than Tenant shall not constitute a waiver of
Landlord's right to
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approve any Transfer. No delivery to, or acceptance by, Landlord or its agents
or employees of keys, nor any other act or omission of Tenant or Landlord or
their agents or employees, shall be deemed a surrender, or acceptance of a
surrender, of the Premises or a termination of this Lease, unless stated
expressly in writing by Landlord.
ARTICLE 28: TELECOMMUNICATION LINES
A. Telecommunication Lines. Subject to Landlord's continuing right of
supervision and approval, and the other provisions hereof, Tenant may: (i)
install telecommunication lines ("Lines") connecting the Premises to any
Property terminal block already serving or available to serve the Premises, or
(ii) use such Lines as may currently exist and already connect the Premises to
such terminal block. Such terminal block may comprise, or be connected through
riser or other Lines with, a main distribution frame ("MDF") for the Property.
Landlord disclaims any representations, warranties or understandings concerning
the capacity, design or suitability of any such terminal or MDF, Property riser
Lines, or related equipment. If there is, or will be, more than one tenant in
the Property, at any time, Landlord may allocate, and periodically reallocate,
connections to the terminal blocks and MDF based on the proportion of rentable
area each tenant leases, or the type of business operations or requirements of
such tenants, in Landlord's reasonable discretion. Landlord may arrange for an
independent contractor to review Tenant's requests for approval hereunder,
monitor or supervise Tenant's installation, connection and disconnection of
Lines, and provide other such services, or Landlord may provide the same, and
Tenant shall pay Landlord's charges therefor as provided in Article 9.
B. Installation. Tenant may install and use Tenant's Lines and make
connections and disconnections at the terminal blocks as described above,
provided Tenant shall: (i) obtain Landlord's prior written approval of all
aspects thereof, (ii) use an experienced and qualified contractor reasonably
designated or approved in writing in advance by Landlord (whom Landlord may
require to enter an access and indemnity agreement on Landlord's then-standard
form of agreement therefor, (iii) comply with such reasonable inside wire
standards as Landlord may adopt from time to time, and all other provisions of
this Lease, including Article 9 respecting Work, and the Rules respecting access
to the wire closets, (iv) not install Lines in the same sleeve, chaseway or
other enclosure in close proximity with electrical wire, and not install PVC
coated Lines under any circumstances, (v) thoroughly test any riser Lines to
which Tenant intends to connect any Lines to ensure that such riser Lines are
available and are not then connected to or used for telephone, data transmission
or any other purpose by any other party (whether or not Landlord has previously
approved such connections), and not connect to any such unavailable or connected
riser Lines, and (vi) not connect any equipment to the Lines which may create an
electromagnetic field exceeding the normal insulation ratings of ordinary
twisted pair riser cable or cause radiation higher than normal background
radiation, unless the Lines therefor (including riser Lines) are appropriately
insulated to prevent such excessive electromagnetic fields or radiation (and
such insulation shall not be provided by the use of additional unused twisted
pair Lines). As a condition to permitting installation of new Lines, Landlord
may require that Tenant remove any existing
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Lines located in or serving the Premises.
C. Limitation of Liability. Except to the extent due to Landlord's
intentional misconduct or grossly negligent acts, Landlord shall have no
liability for damages arising, and Landlord does not warrant that the Tenant's
use of the Lines will be free, from the following (collectively called "Line
Problems"): (i) any eavesdropping, wire-tapping or theft of long distance access
codes by unauthorized parties, (ii) any failure of the Lines to satisfy Tenant's
requirements, or (iii) any capacitance, attenuation, cross-talk or other
problems with the Lines, any misdesignation of the Lines in the MDF room or wire
closets, or any shortages, failures, variations, interruptions, disconnections,
loss or damage caused by or in connection with the installation, maintenance,
replacement, use or removal of any other Lines or equipment at the Property by
or for other tenants at the Property, by any failure of the environmental
conditions at or the power supply for the Property to conform to any
requirements of the Lines or any other problems associated with any Lines or by
any other cause. Under no circumstances shall any Line Problems be deemed an
actual or constructive eviction of Tenant, render Landlord liable to Tenant for
abatement of any Rent or other charges under the Lease, or relieve Tenant from
performance of Tenant's obligations under the Lease as amended herein. Landlord
in no event shall be liable for damages by reason of loss of profits, business
interruption or other consequential damage arising from any Line Problems
ARTICLE 29: HAZARDOUS MATERIALS
A. Hazardous Materials Generally Prohibited. Except as provided herein,
Tenant shall not transport, use, store, maintain, generate, manufacture, handle,
dispose, release, discharge, spill or leak any "Hazardous Material" (as defined
in Article 30), or permit Tenant's employees, agents, contractors, or other
occupants of the Premises to engage in such activities on or about the Property.
However, the foregoing provisions shall not prohibit the transportation to and
from, and use, storage, maintenance and handling within, the Premises of
substances customarily and lawfully used in the business which Tenant is
permitted to conduct in the Premises under this Lease, as an incidental and
minor part of such business, and provided: (i) such substances shall be properly
labeled, contained, used and stored only in small quantities reasonably
necessary for such permitted use of the Premises and the ordinary course of
Tenant's business therein, strictly in accordance with applicable Laws, highest
prevailing standards, and the manufacturers' instructions therefor, and as
Landlord shall reasonably require, (ii) such substances shall not be disposed
of, released, discharged or permitted to spill or leak in or about the Premises
or the Property (and under no circumstances shall any Hazardous Material be
disposed of within the drains or plumbing facilities in or serving the Premises
or Property or in any other public or private drain or sewer, regardless of
quantity or concentration), (iii) if any applicable Law or Landlord's trash
removal contractor requires that any such substances be disposed of separately
from ordinary trash, Tenant shall make arrangements at Tenant's expense for such
disposal in approved containers directly with a qualified and licensed disposal
company at a lawful disposal site, (iv) any remaining such substances shall be
completely, properly and lawfully removed from the Property upon expiration or
earlier termination of this Lease, and (v) for purposes of removal and disposal
32
of any such substances, Tenant shall be named as the owner, operator and
generator, shall obtain a waste generator identification number, and shall
execute all permit applications, manifests, waste characterization documents and
any other required forms.
B. Clean Up Responsibility. If any Hazardous Material is released,
discharged or disposed of, or permitted to spill or leak, in violation of the
foregoing provisions, Tenant shall immediately and properly clean up and remove
the Hazardous Materials from the Premises, Property and any other affected
property and clean or replace any affected personal property (whether or not
owned by Landlord) in compliance with applicable Laws and then prevailing
industry practices and standards, at Tenant's expense (without limiting
Landlord's other remedies therefor). Such clean up and removal work ("Tenant
Remedial Work") shall be considered Work under Article 9 and subject to the
provisions thereof, including Landlord's prior written approval (except in
emergencies), and any testing, investigation, feasibility and impact studies,
and the preparation and implementation of any remedial action plan required by
any court or regulatory authority having jurisdiction or reasonably required by
Landlord. In connection therewith, Tenant shall provide documentation evidencing
that all Tenant Remedial Work or other action required hereunder has been
properly and lawfully completed (including a certificate addressed to Landlord
from an environmental consultant reasonably acceptable to Landlord, in such
detail and form as Landlord may reasonably require). If any Hazardous Material
is released, discharged, disposed of, or permitted to spill or leak on or about
the Property and is not caused by Tenant or other occupants of the Premises, or
their agents, employees, Transferees, or contractors, such release, discharge,
disposal, spill or leak shall be deemed casualty damage under Article 11 to the
extent that the Premises and Tenant's use thereof is affected thereby; in such
case, Landlord and Tenant shall have the obligations and rights respecting such
casualty damage provided under this Lease.
C. Miscellaneous. Tenant shall immediately upon written request from time
to time provide Landlord with copies of all material safety data sheets,
permits, approvals, memos, reports, correspondence, complaints, demands, claims,
subpoenas, requests, remediation and cleanup plans, and all papers of any kind
filed with or by any regulatory authority and any other books, records or items
pertaining to Hazardous Materials that are subject to this Article (collectively
referred to herein as "Tenant's Hazardous Materials Records"). Tenant shall pay,
prior to delinquency, any and all fees, taxes (including excise taxes),
penalties and fines arising from or based on Tenant's activities involving
Hazardous Material on or about the Premises or Property, and shall not allow
such obligations to become a lien or charge against the Property or Landlord. If
Tenant violates any provision of this Article with respect to any Hazardous
Materials, Landlord may: (i) require that Tenant immediately remove all
Hazardous Materials from the Premises and discontinue using, storing and
handling Hazardous Materials in the Premises, and/or (ii) pursue such other
remedies as may be available to Landlord under this Lease or applicable Law.
ARTICLE 30: DEFINITIONS
(A) "Building" shall mean the structure (or the portion thereof owned by
Landlord) identified in Article 1.
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(B) "Building Hours" shall mean 7:00 A.M. to 6:00 P.M. Monday through
Friday, and 8:00 A.M. to 12:00 P.M. on Saturday (if comparable buildings in the
area have standard Saturday hours), except Holidays. "Holidays" means all
federal and state holidays, including New Year's Day, Memorial Day, Independence
Day, Labor Day, Thanksgiving Day and Christmas Day. Landlord reserves the right
to increase the Building Hours beyond that which is set forth in this Paragraph.
(C) "Default Rate" shall mean one and one half percent (1.5%) per month,
or the highest rate permitted by applicable Law, whichever shall be less.
(D) "Expenses" shall mean all expenses, costs and amounts (other than
Taxes) of every kind and nature relating to the ownership, management, repair,
maintenance, replacement, insurance and operation of the Property, including,
without limitation (except as expressly set forth herein), any amounts paid for:
(i) Utility Costs, (ii) complying with Laws (but subject to the exclusions set
forth below), (iii) insurance, not limited to that required under this Lease,
and which may include flood, earthquake, boiler, rent loss, workers'
compensation and employers' liability, builders' risk, automobile and other
coverages, including a reasonable allocation of costs under any blanket
policies, (iv) supplies, materials, tools, equipment, uniforms, and vehicles
used in the operation, repair, maintenance, security, and other services for the
Property, including rental, installment purchase and financing agreements
therefor and interest thereunder, (v) accounting, alarm monitoring, security,
janitorial, trash removal, snow and ice removal, and other services, (vi)
customary management fees, (vii) compensation and benefits for any personnel
engaged in the operation, repair, maintenance, security or other services for
the Property at or below the level of property manager, and employer's FICA
contributions, unemployment taxes or insurance, any other taxes which may be
levied on such compensation and benefits, and data or payroll processing
expenses relating thereto (if personnel handle other properties or functions,
the foregoing expenses shall be allocated appropriately between the Property and
such other properties or functions), (viii) payments under any easement, cross
or reciprocal easement, operating agreement, declaration, covenant, or other
agreement or instrument pertaining to the sharing of costs for common areas or
other matters in a development or complex of which the Property is a part, (ix)
sales, use, value-added or other taxes on supplies or services for the Property,
(x) the costs of operating and maintaining a property management office (such
costs to be appropriately allocated between the Property and any other property
served by such office), including the fair rental value thereof, (xi) operation,
maintenance, repair, installation, replacement, inspection, testing, painting,
decorating and cleaning of the Property, and any items located off-site but
installed for the benefit of the Property, including Property identification and
pylon signs, directional signs, traffic signals and markers, flagpoles and
canopies, sidewalks, curbs, stairways, parking structures, lots, loading and
service areas and driveways, storm and sanitary drainage systems, irrigation
systems, elevators, escalators, trash compactors, and Systems and Equipment,
landscaping, and all other aspects of the Property, including common area
fixtures, equipment and other items therein or thereon, doors, locks and
hardware, windows, gutters, downspouts, roof flashings and roofs. The foregoing
provision is for definitional
34
purposes only and shall not be construed to impose any obligation upon Landlord
to incur such expenses, nor as a limitation as to other Expenses that Landlord
may incur with respect to the Property. Landlord may retain independent
contractors (or affiliated contractors at market rates) to provide any services
or perform any work, in which case the costs thereof shall be deemed Expenses.
Expenses shall, however, exclude:
(1) the following items: (a) interest and amortization on Mortgages,
and other debt costs or ground lease payments, if any, except as provided
herein, (b) depreciation of buildings and other improvements (except permitted
amortization of certain capital expenditures as provided below), (c) legal fees
in connection with leasing, tenant disputes or enforcement of leases, (d) real
estate brokers' commissions or marketing costs, (e) improvements or alterations
to tenant spaces, (f) the cost of providing any service directly to, and paid
directly by, any tenant, (g) costs of any items to the extent Landlord receives
reimbursement from insurance proceeds or from a warranty or other such third
party (such proceeds to be deducted from Expenses in the year in which
received); and
(2) capital expenditures, except those: (a) made primarily to reduce
Expenses or increases therein, or to comply with Laws or insurance requirements
(excluding capital expenditures to cure violations of Laws or insurance
requirements that existed prior to the date of this Lease), or (b) for
replacements (as opposed to additions or new improvements) of roofs, and
nonstructural items located in the common areas of the Property required to keep
such areas in good condition; provided, any such permitted capital expenditure
shall be amortized (with interest at the prevailing loan rate available to
Landlord when the cost was incurred) over: (x) the period during which the
reasonably estimated savings in Expenses equals the expenditure, if applicable,
or (y) the useful life of the item as determined by Generally Accepted
Accounting Principles (GAAP), but in no event less than five (5) years nor more
than thirty (30) years.
(E) "Hazardous Material" shall include, but not be limited to: (i) any
flammable, explosive, toxic, radioactive, biological, corrosive or otherwise
hazardous chemical, substance, liquid, gas, device, form of energy, material or
waste or component thereof, (ii) petroleum-based products, diesel fuel, paints,
solvents, lead, radioactive materials, cyanide, biohazards, infectious or
medical waste and "sharps", printing inks, acids, DDT, pesticides, ammonia
compounds, and any other items which now or subsequently are found to have an
adverse effect on the environment or the health and safety of persons or animals
or the presence of which require investigation or remediation under any Law or
governmental policy, and (iii) any item defined as a "hazardous substance",
"hazardous material", "hazardous waste", "regulated substance" or "toxic
substance" under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. ss. 9601, et seq., Hazardous
Materials Transportation Act, 49 U.S.C. ss. 1801, et seq., Resource Conservation
and Recovery Act of 1976, 42 U.S.C. ss. 6901 et seq., Clean Water Act, 33 U.S.C.
ss. l 251, et seq., Safe Drinking Water Act, 14 U.S.C. ss. 300f, et seq., Toxic
Substances Control Act, 15 U.S.C. ss. 2601, et seq., Atomic Energy Act of 1954,
42 U.S.C. ss. 2014 et seq., and any similar federal, state or local Laws, and
all regulations, guidelines, directives and other requirements thereunder, all
as may be amended or supplemented from time to time.
35
(F) "Landlord" shall mean only the landlord from time to time, except that
for purposes of any provisions defending, indemnifying and holding Landlord
harmless hereunder. "Landlord" shall include past, present and future landlords
and their respective partners, beneficiaries, trustees, officers, directors,
employees, shareholders, principals, agents, affiliates, successors and assigns.
(G) "Law" or "Laws" shall mean all federal, state, county and local
governmental and municipal laws, statutes, ordinances, rules, regulations,
codes, decrees, orders and other such requirements, applicable equitable
remedies and decisions by courts in cases where such decisions are considered
binding precedents in the State in which the Property is located, and decisions
of federal courts applying the Laws of such State, at the time in question. This
Lease shall be interpreted and governed by the Laws of the State in which the
Property is located.
(H) "Lender" shall mean the holder of any Mortgage at the time in
question, and where such Mortgage is a ground lease, such term shall refer to
the ground lessor (and the term "ground lease" although not capitalized is
intended throughout this Lease to include any superior or master lease).
(I) "Mortgage" shall mean all mortgages, deeds of trust, ground leases and
other such encumbrances now or hereafter placed upon the Property or Building,
or any part thereof, and all renewals, modifications, consolidations,
replacements or extensions thereof, and all indebtedness now or hereafter
secured thereby and all interest thereon.
(J) "Person" shall mean an individual, trust, partnership, limited
liability company, joint venture, association, corporation and any other entity.
(K) "Premises" shall mean the area within the Building identified in
Article 1 and Exhibit A. Possession of areas necessary for utilities, services,
safety and operation of the Property, including the Systems and Equipment, fire
stairways, perimeter walls, space between the finished ceiling of the Premises
and the slab of the floor or roof of the Property thereabove, and the use
thereof together with the right to install, maintain, operate, repair and
replace the Systems and Equipment, including any of the same in, through, under
or above the Premises in locations that will not materially interfere with
Tenant's use of the Premises, are hereby excepted and reserved by Landlord, and
not demised to Tenant.
(L) "Property" shall mean the Building, and any common or public areas or
facilities, easements, corridors, lobbies, sidewalks, loading areas, driveways,
landscaped areas, skywalks, parking rights, garages and lots, and any and all
other rights, structures or facilities operated or maintained in connection with
or for the benefit of the Building, and all parcels or tracts of land on which
all or any portion of the Building or any of the other foregoing items are
located, and any fixtures, machinery, apparatus, Systems and Equipment,
furniture and other personal property located thereon or therein and used in
connection with the operation thereof. Landlord reserves the right to add land,
buildings, easements or other interests to, or sell or eliminate the same from,
the Property, and grant
36
interests and rights in the Property to other parties. If the Building shall now
or hereafter be part of a development or complex of buildings or structures
collectively owned by Landlord or its affiliates, the Property shall, at
Landlord's option, also be deemed to include such other of those buildings or
structures as Landlord shall from time to time designate, and shall initially
include such buildings and structures (and related facilities and parcels on
which the same are located) as Landlord shall have incorporated by reference to
the total rentable area of the Property in Article 1.
(M) "Rent" shall have the meaning specified therefor in Article 3.
(N) "Systems and Equipment" shall mean any plant, machinery, transformers,
duct work, cable, wires, and other equipment, facilities, and systems designed
to supply light, heat, ventilation, air conditioning and humidity or any other
services or utilities, or comprising or serving as any component or portion of
the electrical, gas, steam, plumbing, sprinkler, communications, alarm,
security, or fire/life/safety systems or equipment, or any elevators, escalators
or other mechanical, electrical, electronic, computer or other systems or
equipment for the Property, except to the extent that any of the same serves
particular tenants exclusively (and "systems and equipment" without
capitalization shall refer to such of the foregoing items serving particular
tenants exclusively).
(O) "Taxes" shall mean all amounts (unless required by Landlord to be paid
under Article 14) for federal, state, county, or local governmental, special
district, improvement district, municipal or other political subdivision taxes,
fees, levies, assessments, charges or other impositions of every kind and nature
in connection with the ownership, leasing and operation of the Property, whether
foreseen or unforeseen, general, special, ordinary or extraordinary (including
real estate and ad valorem taxes, general and special assessments, transit
taxes, water and sewer rents, license and business license fees, use or
occupancy taxes, taxes based upon the receipt of rent including gross receipts
or sales taxes applicable to the receipt of rent or service or value added
taxes, personal property taxes, taxes on fees paid by Landlord for property
management services, and taxes or charges for fire protection, streets,
sidewalks, road maintenance, refuse or other services). If the method of
taxation of real estate prevailing at the time of execution hereof shall be, or
has been, altered so as to cause the whole or any part of the Taxes now,
hereafter or heretofore levied, assessed or imposed on real estate to be levied,
assessed or imposed on Landlord, wholly or partially, as a capital stock levy or
otherwise, or on or measured by the rents, income or gross receipts received
therefrom, then such new or altered taxes attributable to the Property shall be
included within the term "Taxes," except that the same shall not include any
portion of such tax attributable to other income of Landlord not relating to the
Property. Taxes shall include taxes which are increased as a result of increases
in the assessment or valuation of the Property (whether based on a sale, change
in ownership or refinancing of the Property or otherwise), increases in tax
rates, reduction or elimination of any rollbacks or other deductions available
under current law, scheduled reductions of any tax abatement, as a result of the
elimination, invalidity or withdrawal of any tax abatement, or for any other
cause whatsoever. Notwithstanding the foregoing, there shall be excluded from
Taxes all excess profits taxes, franchise taxes, gift taxes, capital stock
taxes, inheritance and succession
37
taxes, estate taxes, federal and state income taxes, and other taxes to the
extent applicable to Landlord's general or net income (as opposed to rents,
receipts or income attributable to operations at the Property).
(P) "Tenant" shall be applicable to one or more Persons as the case may
be, the singular shall include the plural, and if there be more than one Tenant,
the obligations thereof shall be joint and several. When used in the lower case,
"tenant" shall mean any other tenant, subtenant or occupant of the Property.
(Q) "Tenant's Share" of Taxes and Expenses shall be the percentage set
forth in Article 1, but if the rentable area of the Premises changes due to the
addition or subtraction of space under this Lease or by amendment, Landlord
shall reasonably adjust Tenant's Share to be based on the rentable area of the
Premises divided by the rentable area of the Property, subject to further
adjustment hereunder and under Article 3. If the Property shall now or hereafter
be part of or shall include a development or complex of two or more buildings or
structures collectively owned by Landlord or its affiliates, Landlord may
allocate Expenses and Taxes (or components thereof) within such complex or
development, and between such buildings and structures and the parcels on which
they are located, in accordance with sound accounting and management practices.
In the alternative, Landlord may determine Tenant's Share of Expenses and Taxes
(or components thereof) for all or any such buildings and structures, and any
common areas and facilities operated or maintained in connection therewith and
all parcels or tracts of land on which all or any portion of any of the other
foregoing items are located, in accordance with sound accounting and management
practices; provided, Landlord shall reasonably reduce Tenant's Share to be based
on the ratio of the rentable area of the Premises to the rentable area of all
such buildings as to which such Expenses and Taxes (or components thereof) are
included. In addition, if the Property, or any development or complex of which
it is a part, shall contain non-office uses during any period, Landlord may
determine, in accordance with sound accounting and management practices,
Tenant's Share of Taxes and Expenses for only the office portion of the Property
or of such development or complex; in such event, Landlord shall reasonably
adjust Tenant's Share to be based on the ratio of the rentable area of the
Premises to the rentable area of such office portion for such period. Tenant
acknowledges that the "rentable area of the Premises" under this Lease includes
the so-called "usable area," without deduction for columns or projections,
multiplied by one or more load or conversion factors to reflect a share of
certain areas, which may include lobbies, corridors, mechanical, utility,
janitorial, boiler and service rooms and closets, restrooms, and other public,
common and service areas. Except as provided expressly to the contrary herein,
the "rentable area of the Property" shall include all rentable area of all space
leased or available for lease at the Property (excluding any parking
facilities). Landlord may reasonably re-determine the rentable area of the
Property from time to time to reflect remeasurements, reconfigurations,
additions or modifications to the Property, and may reasonably adjust Tenant's
Share prospectively based thereon.
(R) "Utility Costs" shall include costs for electricity, power, gas,
steam, oil or other fuel, water, sewer and other such services for the Property,
including sales or other taxes thereon.
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(S) "Base Expense Year" shall mean the twelve-month period ending January
31, 2005.
(T) "Base Tax Year" shall mean the twelve-month period ending January 31,
2005.
ARTICLE 31: OFFER
The submission and negotiation of this Lease shall not be deemed an offer
to enter the same by Landlord (nor an option or reservation for the Premises),
but the solicitation of such an offer by Tenant. Tenant agrees that its
execution of this Lease constitutes a firm offer to enter the same which may not
be withdrawn for a period of twenty (20) business days after delivery to
Landlord. During such period and in reliance on the foregoing, Landlord may, at
Landlord's option, deposit any Security Deposit and Rent, proceed with any
plans, specifications, alterations or improvements, and permit Tenant to enter
the Premises, but such acts shall not be deemed an acceptance of Tenant's offer
to enter this Lease, and such acceptance shall be evidenced only by Landlord
signing and delivering this Lease to Tenant.
ARTICLE 32: MISCELLANEOUS
A. Captions and Interpretation. The captions of the Articles and
Paragraphs of this Lease, and any computer highlighting of changes from earlier
drafts, are for convenience of reference only and shall not be considered or
referred to in resolving questions of interpretation. Tenant acknowledges that
it has read this Lease and that it has had the opportunity to confer with
counsel in negotiating this Lease; accordingly, this Lease shall be construed
neither for nor against Landlord or Tenant, but shall be given a fair and
reasonable interpretation in accordance with the meaning of its terms. The
neuter shall include the masculine and feminine, and the singular shall include
the plural. The term "including" shall be interpreted to mean "including, but
not limited to."
B. Survival of Provisions. All obligations (including indemnity, Rent and
other payment obligations) or rights of either party arising during or
attributable to the period prior to expiration or earlier termination of this
Lease shall survive such expiration or earlier termination.
C. Severability. If any term or provision of this Lease or portion thereof
shall be found invalid, void, illegal, or unenforceable generally, or with
respect to any particular party, by a court of competent jurisdiction, it shall
not affect, impair or invalidate any other terms or provisions or the remaining
portion thereof or enforceability with respect to any other party.
D. Perpetuities. If the Commencement Date is delayed in accordance with
Article 2 for more than nine (9) months, Landlord may declare this Lease
terminated by notice to Tenant, and if the Commencement Date is so delayed for
more than three years,
39
this Lease shall thereupon be deemed terminated without further action by either
party.
E. Short Form Lease. Neither this Lease nor any memorandum of lease or
short form lease shall be recorded by Tenant, but Landlord or any Lender may
elect to record a short form of this Lease, in which case Tenant shall promptly
execute, acknowledge and deliver the same on a form prepared by Landlord or such
Lender.
F. Light, Air and Other Interests. This Lease does not grant any legal
rights to "light and air" outside the Premises nor any particular view visible
from the Premises, nor any easements, licenses or other interests unless
expressly contained in this Lease.
G. Authority. If Tenant is any form of corporation, partnership, limited
liability company or partnership, association or other organization, Tenant and
all Persons signing for Tenant below hereby represent that this Lease has been
fully authorized and no further approvals are required, and Tenant is duly
organized, in good standing and legally qualified to do business in the Premises
(and has any required certificates, licenses, permits and other such items).
H. Partnership Tenant. If Tenant is a partnership, all current and new
general partners shall be jointly and severally liable for all obligations of
Tenant hereunder and as this Lease may hereafter be modified, whether such
obligations accrue before or after admission of future partners or after any
partners die or leave the partnership. Tenant shall cause each new partner to
sign and deliver to Landlord written confirmation of such liability, in form and
content satisfactory to Landlord, but failure to do so shall not avoid such
liability.
I. Successors and Assigns; Transfer of Property and Security Deposit. Each
of the terms and provisions of this Lease shall be binding upon and inure to the
benefit of the parties' respective heirs, executors, administrators, guardians,
custodians, successors and assigns, subject to Article 13 respecting Transfers
and Article 18 respecting rights of Lenders. Subject to Article 18, if Landlord
shall convey or transfer the Property or any portion thereof in which the
Premises are contained to another party, such party shall thereupon be and
become landlord hereunder, shall be deemed to have fully assumed all of
Landlord's obligations under this Lease accruing during such party's ownership,
including the return of any Security Deposit, and Landlord shall be free of all
such obligations accruing from and after the date of conveyance or transfer.
J. Limitation of Liability. Tenant agrees to look solely to Landlord's
interest in the Property for the enforcement of any judgment, award, order or
other remedy under or in connection with this Lease or any related agreement,
instrument or document or for any other matter whatsoever relating thereto or to
the Property or Premises. Under no circumstances shall any present or future,
direct or indirect, principals or investors, general or limited partners,
officers, directors, shareholders, trustees, beneficiaries, participants,
advisors, managers, employees, agents or affiliates of Landlord, or of any of
the other foregoing parties, or any of their heirs, successors or assigns have
any liability for any of the foregoing matters. Under no circumstances shall any
present or future, direct or
40
indirect, principals or investors, general or limited partners, officers,
directors, shareholders, trustees, beneficiaries, participants, advisors,
managers, employees, agents or affiliates of Tenant, or of any of the other
foregoing parties, or any of their heirs, successors or assigns have any
liability for any of Tenant's obligations under this Lease (unless such party
has specifically assumed responsibility for some or all of such obligations in a
written guarantee or similar document). In no event shall either Landlord or
Tenant be liable to the other party for any consequential damages.
K. Confidentiality. Each party shall keep the content and all copies of
this Lease, related documents or amendments now or hereafter entered, and all
proposals, materials, information and matters relating thereto, including the
results of any review of Landlord's records under Article 3, strictly
confidential, and shall not disclose, disseminate or distribute any of the same,
or permit the same to occur, except on an "as needed" basis to the extent
reasonably required for proper business purposes by Tenant's or Landlord's
employees, attorneys, insurers, auditors, lenders, brokers and Transferees (and
each party shall obligate any such parties to whom disclosure is permitted to
honor the confidentiality provisions hereof), and except as may be required by
Law or court proceedings.
ARTICLE 33: OPTION TO RENEW
Provided that Tenant is not in default under this Lease, Tenant is hereby
granted an option to renew this Lease for an additional three (3) year term
under the same terms and conditions of this Lease excepting, however, that there
shall (i) be no further option to renew, and (ii) the Base Rent shall be as
follows:
Period Monthly Base Rent
2/1/08 - 1/31/09: $6,395.73
2/1/09 - 1/31/10: $6,592.52
2/1/10 - 1/31/11: $6,789.31
The Tenant shall exercise this option by delivering written notice to Landlord
no later than May 1, 2007, failing which this option to renew shall
automatically terminate.
ARTICLE 34: ADDITIONAL PROVISIONS
A. Replacement Lease. Tenant is currently in possession of the Premises
pursuant to the Office Lease dated February 1, 2000 entered into by and between
Landlord and Crossbow Acquisition Inc., as amended by the First Amendment to
Office Lease dated December 15, 2000 entered into by and between Landlord and
Aerie Networks, Inc., and the Settlement Agreement and Second Amendment to Lease
dated June 21, 2004 entered into by and between Landlord and Tenant
(collectively, the "Existing Lease"). Effective as of the Commencement Date of
this Lease, this Lease replaces and supersedes the Existing Lease and the
Existing Lease shall remain in full force and effect for any obligations or
matters which first arose prior to the Commencement Date of this Lease.
41
B. As Is. Tenant accepts the Premises in their "as is" condition. As soon
as is reasonably practicable, Landlord shall construct in a good and workmanlike
manner the demising wall necessary to separate the Premises from the remainder
of the first floor which is not being leased to Tenant pursuant to this Lease.
Landlord shall use commercially reasonable efforts to minimize any disruption to
Tenant's occupancy of the Premises in connection therewith and to promptly
complete the construction after commencement.
C. Additional Space. During the term of this Lease, provided that Tenant
has not been in default of this Lease, in the event that any leased space in the
Building located on the first or second floor becomes available due to a tenant
moving out (the "Available Space"), Landlord shall provide Tenant with written
notice of the same and Tenant shall have the first opportunity to lease the
Available Space in its "as is" condition. Tenant shall have two (2) weeks in
which to exercise this option by delivering written notice to Landlord failing
which this option to expand for the Available Space which was offered shall
automatically terminate. In the event that Tenant timely exercises its option to
lease the Available Space, the Base Rent for the Available Space shall be the
base rent on a per square foot basis as will then be due by Tenant for the
Premises and the parties shall execute a lease modification agreement setting
forth the addition of the Available Space to the Premises and the new amount of
Base Rent. Notwithstanding anything herein to the contrary, Tenant shall not be
allowed to exercise the rights contained in this Section if Tenant is in the
last year of the primary term of this Lease unless Tenant exercises its option
to renew; and provided further, if Tenant has exercised its option to renew and
is in the sixth (6th) year of this Lease, Tenant shall be required to extend the
term of this Lease at then prevailing market rates as a condition of exercising
the rights contained in this Section. In the event that Tenant does not exercise
its option to expand for the Available Space which was offered, Landlord shall
thereafter be able to lease the offered Available Space on terms acceptable to
Landlord in Landlord's sole and absolute discretion.
D. Awning Signage. Tenant, at Tenant's sole cost and expense, shall (i)
have the right to keep in place the existing awning signage located on the
exterior of the Building, and (ii) keep the awnings in a good state of repair;
provided, however, that Tenant shall remove one-half of the said signage as
reasonably designated by Landlord promptly upon written request being made by
Landlord.
E. Closure of Stairway Access to Second Floor. There currently exists a
stairway in the Premises which leads to space on the second floor of the
Building which is not currently being leased by Tenant (the "Second Floor
Space"). In the event that Landlord elects to close the opening or remove the
said stairway to the Second Floor Space after the Commencement Date of this
Lease, Landlord may do so and may enter the Premises to perform such
construction as Landlord deems necessary. Landlord shall use commercially
reasonable efforts to minimize any disruption to Tenant's occupancy of the
Premises in connection therewith and to promptly complete the construction after
commencement. Tenant acknowledges the construction contemplated by this Section,
if performed, will necessarily involve work and access from both the Premises
and the Second Floor Space. Tenant agrees to reasonably cooperate with Landlord
to facilitate the
42
construction, if any. Additionally, Tenant acknowledges that such construction,
if any, may cause some noise or other inconvenience, and Tenant agrees that
Landlord shall have no liability and shall not be required to compensate Tenant
for any such noise or inconvenience. Accordingly, without limitation, Tenant
agrees that such construction, if any, shall be deemed to not be an interference
with, nor constitute a breach of, Tenant's possessory or quiet enjoyment rights.
ARTICLE 35: ENTIRE AGREEMENT
This Lease, together with the Exhibits and other documents listed in
Article 1 (WHICH ARE HEREBY COLLECTIVELY INCORPORATED HEREIN AND MADE A PART
HEREOF AS THOUGH FULLY SET FORTH), contains all the terms and provisions between
Landlord and Tenant relating to the matters set forth herein and no prior or
contemporaneous agreement or understanding pertaining to the same shall be of
any force or effect, except for any such contemporaneous agreement specifically
referring to and modifying this Lease and signed by both parties. Without
limitation as to the generality of the foregoing, Tenant hereby acknowledges and
agrees that Landlord's leasing agents and field personnel are only authorized to
show the Premises and negotiate terms and conditions for leases subject to
Landlord's final approval, and are not authorized to make any agreements,
representations, understandings or obligations binding upon Landlord respecting
the condition of the Premises or Property, suitability of the same for Tenant's
business, the current or future amount of Taxes or Expenses or any component
thereof, the amount of rent or other terms applicable under other leases at the
Property, whether Landlord is furnishing the same utilities or services to other
tenants at all, on the same level or on the same basis, or any other matter, and
no such agreements, representations, understandings or obligations not expressly
contained herein or in such contemporaneous agreement shall be of any force or
effect. TENANT HAS RELIED ON TENANT'S INSPECTIONS AND DUE DILIGENCE IN ENTERING
THIS LEASE, AND NOT ON ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
CONCERNING THE HABITABILITY, CONDITION OR SUITABILITY OF THE PREMISES OR
PROPERTY FOR ANY PARTICULAR PURPOSE OR ANY OTHER MATTER NOT EXPRESSLY CONTAINED
HEREIN. This Lease, including the Exhibits referred to above, may not be
modified, except in writing signed by both parties.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
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IN WITNESS WHEROF, the parties have executed this Lease as of the date
first set forth above.
LANDLORD: 0000 XXXXXXX XXXXX VENTURE
By: Xxxxxx-Xxxxxxxx Realty Company,
Authorized Agent
By: /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
---------------------------------
Its: President
---------------------------------
TENANT: RICOCHET NETWORKS, INC., a Delaware
corporation
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------------
Its: Vice President
---------------------------------
CERTIFICATE
I, Xxxx Xxxxxxx, as Corporate Controller of the aforesaid Tenant, hereby
certify that the individual(s) executing the foregoing Lease on behalf of Tenant
was/were duly authorized to act in his/their capacities as set forth above, and
his/their action(s) are the action of Tenant.
(Corporate Seal) /s/ Xxxx Xxxxxxx
------------------------------------------------
44
EXHIBIT A: PREMISES
-------------------
(Floor Plate Showing Premises Cross-Hatched)
[Drawing Omitted]
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EXHIBIT B: RULES
----------------
(1) Access to Property. Before or after Building Hours, or such other
hours as Landlord shall determine from time to time, access to and within the
Property and/or to the passageways, lobbies, entrances, exits, loading areas,
corridors, elevators or stairways and other areas in the Property may be
restricted and access gained by use of a key to the outside doors of the
Property, or pursuant to such security procedures Landlord may from time to time
impose. Landlord shall in all cases retain the right to control and prevent
access to such areas by Persons engaged in activities which are illegal or
violate these Rules, or whose presence in the judgment of Landlord shall be
prejudicial to the safety, character, reputation and interests of the Property
and its tenants (and Landlord shall have no liability in damages for such
actions taken in good faith). No Tenant and no employee or invitee of Tenant
shall enter areas reserved for the exclusive use of Landlord, its employees or
invitees or other Persons. Tenant shall keep doors to corridors and lobbies
closed except when persons are entering or leaving.
(2) Signs. Landlord shall prescribe the suite number for the Premises and
cause building standard suite identification signage to be placed on or adjacent
to the main entrance door of the Premises, and shall provide directory strips
for any Property directory consistent with Landlord's standard practices at the
Property. Landlord shall bear the expense of initial building standard signage
and directory strips, and Tenant shall pay Landlord's standard charges for
changes requested by Tenant and approved by Landlord thereafter promptly after
billing thereof. Tenant shall not paint, display, inscribe, maintain or affix
any sign, placard, picture, advertisement, name, notice, lettering or direction
on any part of the outside or inside of the Property, or on any part of the
inside of the Premises which can be seen from the outside of the Premises,
without the prior consent of Landlord, and then only such name or names or
matter and in such color, size, style, character and material, and with
professional designers, fabricators and installers as may be first approved or
designated by Landlord in writing. Landlord reserves the right, without notice
to Tenant, to remove at Tenant's expense all matter not so installed or
approved.
(3) Window and Door Treatments. Tenant shall not place anything or allow
anything to be placed in the Premises near the glass of any door, partition,
wall or window which may be unsightly from outside the Premises, and Tenant
shall not place or permit to be placed any article of any kind on any window
ledge or on the exterior walls. Blinds, shades, awnings or other forms of inside
or outside window devices shall not be placed in or about the outside windows or
doors in the Premises except to the extent, if any, that the design, character,
shape, color, material and make thereof is first approved or designated by
Landlord. Tenant shall not install or remove any solar tint film from the
windows.
(4) Balconies and Patios. If the Premises has access to a patio or
balcony, Tenant shall have a license to enter such area, subject to the
following provisions: (i) Tenant's access to such area shall be limited to the
area immediately adjoining the Premises (and bounded by an extension of the
demising lines of the Premises), and Landlord reserves the right to install
materials separating Tenant's area from the area adjoining other tenants'
premises, (ii) Tenant shall use such area only in a manner that is
1
quiet and compatible with the nature of the Building as an office building,
which only involves the use of benches or outdoor furniture approved by Landlord
in writing, and which will not bother, disturb or annoy any other occupants of
the Property, and (iii) Tenant's use thereof shall be subject to the other
provisions of this Lease, including the other Rules.
(5) Lighting and General Appearance of Premises. Landlord reserves the
right to designate and/or approve in writing all internal lighting that may be
visible from the public, common or exterior areas. The design, arrangement,
style, color, character, quality and general appearance of the portion of the
Premises visible from public, common and exterior areas, and contents of such
portion of the Premises, including furniture, fixtures, signs, art work, wall
coverings, carpet and decorations, and all changes, additions and replacements
thereto shall at all times have a neat, professional, attractive, first class
office appearance.
(6) Property Tradename, Likeness, Trademarks. Tenant shall not in any
manner use the name of the Property for any purpose other than as Tenant's
business address, or use any tradenames or trademarks of Landlord, any other
tenant, or their affiliates, or any picture or likeness of the Property, for any
purpose, in any letterheads, circulars, notices, advertisements or other
material whatsoever.
(7) Deliveries and Removals. Furniture, freight and other large or heavy
articles, and all other deliveries may be brought into the Property only at
times and in the manner designated by Landlord, and always at the Tenant's sole
responsibility and risk. Landlord may inspect items brought into the Property or
Premises with respect to weight or dangerous nature or compliance with this
Lease or Laws. Landlord may (but shall have no obligation to) require that all
furniture, equipment, cartons and other articles removed from the Premises or
the Property be listed and a removal permit therefor first be obtained from
Landlord. Tenant shall not take or permit to be taken in or out of other
entrances or elevators of the Property any item normally taken, or which
Landlord otherwise reasonably requires to be taken, in or out through service
doors or on freight elevators. Landlord may impose reasonable charges and
requirements for the use of freight elevators and loading areas, and reserves
the right to alter schedules without notice. Any hand-carts used at the Property
shall have rubber wheels and sideguards, and no other material-handling
equipment may be used without Landlord's prior written approval.
(8) Outside Vendors. Tenant shall not obtain for use upon the Premises
janitor or other services, except from Persons designated or approved by
Landlord. Any Person engaged by Tenant to provide any other services shall be
subject to scheduling and direction by the manager or security personnel of the
Property. Vendors must use freight elevators and service entrances.
(9) Overloading Floors; Vaults. Tenant shall not overload any floor or
part thereof in the Premises or Property, including any public corridors or
elevators therein, by bringing in or removing any large or heavy articles, and
Landlord may prohibit, or direct and control the location and size of, safes and
all other heavy articles and require at Tenant's expense supplementary supports
of such material and dimensions as Landlord
2
may deem necessary to properly distribute the weight.
(10) Locks and Keys. Tenant shall use such standard key system designated
by Landlord on all keyed doors to and within the Premises, excluding any
permitted vaults or safes (but Landlord's designation shall not be deemed a
representation of adequacy to prevent unlawful entry or criminal acts, and
Tenant shall maintain such additional insurance as Tenant deems advisable for
such events). Tenant shall not attach or permit to be attached additional locks
or similar devices to any door or window, change existing locks or the mechanism
thereof, or make or permit to be made any keys for any door other than those
provided by Landlord. If more than two keys for one lock are desired, Landlord
will provide them upon payment of Landlord's charges. In the event of loss of
any keys furnished by Landlord, Tenant shall pay Landlord's reasonable charges
therefor. The term "key" shall include mechanical, electronic or other keys,
cards and passes.
(11) Safety and Security Devices, Services and Programs. Safety and
security devices, services and programs provided by Landlord, if any, while
intended to deter crime and ensure safety, may not in given instances prevent
theft or other criminal acts, or ensure safety of persons or property. The risk
that any safety or security device, service or program may not be effective, or
may malfunction, or be circumvented by a criminal, is assumed by Tenant with
respect to Tenant's property and interests, and Tenant shall obtain insurance
coverage to the extent Tenant desires protection against such criminal acts and
other losses, as further described in Article 10. Tenant agrees to cooperate in
any reasonable safety or security program developed by Landlord or required by
Law.
(12) Utility Closets and Connections. Landlord reserves the right to
control access to and use of, and monitor and supervise any work in or
affecting, the "wire" or telephone, electrical, plumbing or other utility
closets, the Systems and Equipment, and any changes, connections, new
installations, and wiring work relating thereto (or Landlord may engage or
designate an independent contractor to provide such services). Tenant shall
obtain Landlord's prior written reasonable consent for any such access, use and
work in each instance, and shall comply with such requirements as Landlord may
reasonably impose, and the other provisions of Article 6 respecting electric
installations and connections, Article 28 respecting telephone Lines and
connections, and Article 9 respecting Work in general. Tenant shall have no
right to use any broom closets, storage closets, janitorial closets, or other
such closets, rooms and areas.
(13) Plumbing Equipment. The toilet rooms, urinals, wash bowls, drains,
sewers and other plumbing fixtures, equipment and lines shall not be misused for
any purpose other than that for which they were constructed and no foreign
substance of any kind whatsoever shall be thrown therein.
(14) Trash. All garbage, refuse, trash and other waste shall be kept in
the kind of container, placed in the areas, and prepared for collection in the
manner and at the times and places reasonably specified by Landlord, subject to
Article 29 respecting Hazardous Materials. Landlord reserves the right to
require that Tenant participate in any recycling program designed by Landlord.
3
(15) Alcohol, Drugs, Food and Smoking. Landlord reserves the right to
exclude or expel from the Property any person who, in the judgment of Landlord,
is intoxicated or under the influence of liquor or drugs, or who shall in any
manner do any act in violation of any of these Rules. Tenant shall not at any
time manufacture, sell, use or give away, any spirituous, fermented,
intoxicating or alcoholic liquors on the Premises, nor permit any of the same to
occur. Tenant shall not at any time xxxx, sell, purchase or give away, food in
any form by or to any of Tenant's agents or employees or any other parties on
the Premises, nor permit any of the same to occur (other than in microwave ovens
and coffee makers properly maintained in good and safe working order and repair
in lunch rooms or kitchens for employees as may be permitted or installed by
Landlord, and which do not violate any Laws or bother or annoy any other
tenant). Tenant and its employees shall not smoke tobacco on any part of the
Property (including exterior areas) except those areas, if any, that are
designated or approved as smoking areas by Landlord.
(16) Use of Common Areas; No Soliciting. Tenant shall not use the common
areas, including areas adjacent to the Premises, for any purpose other than
ingress and egress, and any such use thereof shall be subject to the other
provisions of this Lease, including these Rules. Without limiting the generality
of the foregoing, Tenant shall not allow anything to remain in any passageway,
sidewalk, court, corridor, stairway, entrance, exit, elevator, parking or
shipping area, or other area outside the Premises. Tenant shall not use the
common area to canvass, solicit business or information from, or distribute any
article or material to, other tenants or invitees of the Property. Tenant shall
not make any room-to-room canvass to solicit business or information or to
distribute any article or material to or from other tenants of the Property and
shall not exhibit, sell or offer to sell, use, rent or exchange any products or
services in or from the Premise unless ordinarily embraced within the Tenant's
use of the Premises expressly permitted in the Lease.
(17) Energy and Utility Conservation. Tenant shall not waste electricity,
water, heat or air conditioning or other utilities or services, and agrees to
cooperate fully with Landlord to assure the most effective and energy efficient
operation of the Property and shall not allow the adjustment (except by
Landlord's authorized Property personnel) of any controls. Tenant shall not
obstruct, alter or impair the efficient operation of the Systems and Equipment,
and shall not place any item so as to interfere with air flow. Tenant shall keep
corridor doors closed and shall not open any windows, except that if the air
circulation shall not be in operation, windows which are openable may be opened
with Landlord's consent (not to be unreasonably withheld). If reasonably
requested by Landlord (and as a condition to claiming any deficiency in the
air-conditioning or ventilation services provided by Landlord), Tenant shall
close any blinds or drapes in the Premises to prevent or minimize direct
sunlight.
(18) Landlord Access to Systems and Equipment. Tenant shall not place
partitions, furniture or other obstructions in the Premises which may prevent or
impair Landlord's access to the Systems and Equipment for the Property or the
systems and equipment for the Premises.
4
(19) Unattended Premises. Before leaving the Premises unattended, Tenant
shall close and securely lock all doors or other means of entry to the Premises
and shut off all lights and water faucets in the Premises (except heat to the
extent necessary to prevent the freezing or bursting of pipes).
(20) Going-Out-Of-Business Sales and Auctions. Tenant shall not use, or
permit any other party to use, the Premises for any distress, fire, bankruptcy,
close-out, "lost our lease" or going-out-of business sale or auction. Tenant
shall not display any signs advertising the foregoing anywhere in or about the
Premises. This prohibition shall also apply to Tenant's creditors.
(21) Labor Harmony. Tenant shall not use (and upon notice from Landlord
shall cease using) contractors, services, workmen, labor, materials or
equipment, or labor and employment practices that, in Landlord's good faith
judgment, may cause strikes, picketing or boycotts or disturb labor harmony with
the workforce or trades engaged in performing other work, labor or services in
or about the Property.
(22) Prohibited Activities. Tenant shall not: (i) use strobe or flashing
lights in or on the Premises, (ii) install or operate any internal combustion
engine, boiler, machinery, refrigerating, heating or air conditioning equipment
in or about the Premises, (iii) use the Premises for housing, lodging or
sleeping purposes or for the washing of clothes, (iv) place any radio or
television antennae other than inside of the Premises, (v) operate or permit to
be operated any musical or sound producing instrument or device which may be
heard outside the Premises, (vi) use any source of power other than electricity,
(vii) operate any electrical or other device from which may emanate electrical,
electromagnetic, x-ray, magnetic resonance, energy, microwave, radiation or
other waves or fields which may interfere with or impair radio, television,
microwave, or other broadcasting or reception from or in the Property or
elsewhere, or impair or interfere with computers, faxes or telecommunication
lines or equipment at the Property or elsewhere, or create a health hazard,
(viii) bring or permit any bicycle or other vehicle, or dog (except in the
company of a blind person or except where specifically permitted) or other
animal or bird in the Property, (ix) make or permit objectionable noise,
vibration or odor to emanate from the Premises, (x) do anything in or about the
Premises or Property that is illegal, immoral, obscene, pornographic, or
anything that may in Landlord's good faith opinion create or maintain a
nuisance, cause physical damage to the Premises or Property, interfere with the
normal operation of the Systems and Equipment, impair the appearance, character
or reputation of the Premises or Property, create waste to the Premises or
Property, cause demonstrations, protests, loitering, bomb threats or other
events that may require evacuation of the Building, (xi) advertise or engage in
any activities which violate the spirit or letter of any code of ethics or
licensing requirements of any professional or business organization, (xii) throw
or permit to be thrown or dropped any article from any window or other opening
in the Property, (xiii) use the Premises for any purpose, or permit upon the
Premises or Property anything, that may be dangerous to persons or property
(including firearms or other weapons (whether or not licensed or used by
security guards) or any explosive or combustible articles or materials), (xiv)
place vending or game machines in the Premises, except vending machines for
employees, (xv) adversely affect the indoor air
5
quality of the Premises or Property, or (xvi) do or permit anything to be done
upon the Premises or Property in any way tending to disturb, bother, annoy or
interfere with Landlord or any other tenant at the Property or the tenants of
neighboring property, or otherwise disrupt orderly, quiet use and occupancy of
the Property.
(23) Transportation Management. Tenant shall comply with all present or
future programs intended to manage parking, transportation or traffic in and
around the Property, and in connection therewith, Tenant shall take responsible
action for the transportation planning and management of all employees located
at the Premises by working directly with Landlord, any governmental
transportation management organization or any other transportation-related
committees or entities. Such programs may include, without limitation: (i)
restrictions on the number of peak-hour vehicle trips generated by Tenant; (ii)
increased vehicle occupancy; (iii) implementation of an in-house ridesharing
program and an employee transportation coordinator; (iv) working with employees
and any Property or area-wide ridesharing program manager, (v) instituting
employer-sponsored incentives (financial or in-kind) to encourage employees to
rideshare; and (vi) utilizing flexible work shifts for employees.
(24) Responsibility for Compliance. Tenant shall be responsible for
ensuring compliance with these Rules, as they may be amended, by Tenant's
employees and as applicable, by Tenant's agents, invitees, contractors,
subcontractors, and suppliers. Tenant shall cooperate with any reasonable
program or requests by Landlord to monitor and enforce the Rules, including
providing vehicle numbers and taking appropriate action against such of the
foregoing parties who violate these provisions.
6
EXHIBIT C
GUARANTY
THIS GUARANTY, made effective this 1st day of February, 2005, by YDI
Wireless, Inc, 0000 Xxx Xxxxxxx, Xxxxx Xxxxxx, XX 00000, (hereinafter referred
to as the "Guarantor"), to and for the benefit of 0000 Xxxxxxx Xxxxx Venture or
any future landlord under the Lease (hereinafter collectively referred to as the
"Landlord").
ARTICLE 1
RECITALS
Section 1.1. Obligations. Ricochet Networks, Inc., a Delaware corporation
(hereinafter referred to as the "Tenant"), is entering into an Office Lease of
even date herewith for the real property commonly known as 0000 Xxxxxxx Xxxxx,
Xxxxx 000, Xxxxxx, Xxxxxxxx (hereinafter referred to as the "Lease").
Section 1.2. Inducement for Guaranty. As inducement for Landlord to enter
into the Lease, Landlord requires that Guarantor guarantee payment of the Lease,
and performance by Tenant of each and every term, covenant, condition and
agreement contained in the Lease. Guarantor desires to give such guaranty in
order to induce Landlord to enter into the Lease.
ARTICLE 2
GUARANTY, WAIVER AND CONSENTS
Section 2.1. Guaranty. Guarantor unconditionally and absolutely guarantees
the due and punctual payment of the rent and any other money due or which may
become due under the Lease, and the due and punctual performance and observance
by Tenant of any other terms, covenants and conditions of the Lease on the part
of the Lessee to be kept, observed or performed, whether according to the
present terms thereof, at any earlier or accelerated date or dates as provided
therein, or pursuant to any extension of time or to any change or changes in the
terms, covenants and condition thereof.
Section 2.2. Waiver and Consents. Guarantor waives diligence, presentment,
protest, notice of dishonor, demand for payment, extension of time for payment,
notice of acceptance of this Guaranty, indulgences and notice of every kind, and
consents to any and all forbearances and extensions of the time for payment of
the rent due under the Lease or performance under the Lease, and to any and all
changes in the terms, covenants and conditions of the Lease hereafter made or
granted, and to any changes, compromises or waivers of any default with respect
to any other person secondarily or otherwise liable for any of the indebtedness
and liabilities of the Tenant.
Section 2.3. Waiver of Jury Trial. As an additional inducement to Lender
to enter into the Lease, Guarantor, for itself and for all who may claim through
or under it, HEREBY
1
WAIVES THE RIGHT TO TRIAL BY JURY ON ANY ISSUES BETWEEN LANDLORD AND GUARANTOR
AND TO ANY ISSUES PERTAINING TO THE LEASE.
ARTICLE 3
AGREEMENTS AND COVENANTS OF GUARANTOR
Section 3.1. No Subrogation. Guarantor also hereby waives any claim, right
or remedy which Guarantor may now have or hereafter acquire against Tenant, or
any of its members, that arises under this Guaranty and/or from the performance
by the Guarantor under this Guaranty, including, without limitation, any claim,
remedy or right of subrogation, reimbursement, exoneration, contribution,
indemnification, or participation in any claim, right or remedy of Landlord
against Tenant, or any security which Landlord now has or hereafter acquires,
whether or not such claim, right or remedy arises in equity, under contract, by
statute, under common law or otherwise. This waiver shall only be in effect
until all obligations to Landlord have been satisfied.
Section 3.2. Enforcement. This Guaranty may be enforced by Landlord
without first resorting to or exhausting any other security or collateral and
without first having to evict the Tenant and relet the leased premises, or any
of the other remedies provided by the Lease. If suit or other remedy is availed
of, only the net proceeds therefrom, after deduction of all charges and expenses
of every kind and nature whatsoever, shall be applied in reduction of the amount
due under the Lease. Landlord shall not be required to institute or prosecute
proceedings to recover any amounts due by Tenant as a condition of payment
hereunder or enforcement hereof.
Section 3.3. Primary Obligation. This Guaranty is a primary obligation of
Guarantor unless the Lease is determined to be invalid, unenforceable or
discharged by a court of competent jurisdiction; provided, however, that
Guarantor shall not be able to assert that the Lease is invalid, unenforceable
or discharged due to a bankruptcy of the Tenant or any permitted assignee of the
Tenant.
Section 3.4. Financial Statements. Guarantor agrees to furnish Landlord,
upon demand, so long as this Guaranty shall remain in effect, a financial
statement setting forth in reasonable detail the assets, liabilities and net
worth of the Guarantor.
Section 3.5. Expenses of Enforcement. In the event this Guaranty is placed
in the hands of an attorney for enforcement, Guarantor will reimburse Landlord
for all expenses incurred in connection therewith, including reasonable
attorneys' fees.
ARTICLE 4
MISCELLANEOUS
Section 4.1. Successors and Assigns. This Guaranty shall inure to the
benefit and may be enforced by Landlord, and any subsequent owner of the real
property of which the leased premises are a part, and shall be binding upon and
enforceable against the legal representatives, heirs and assigns of Guarantor.
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Section 4.2. No Alteration of Other Documents. No provision of this
Guaranty shall be construed to alter or amend the Lease, or to relieve Tenant of
any duties or obligations under the Lease.
Section 4.3. Word Meanings. As used herein the singular shall include the
plural, the plural the singular and the use of any gender shall be applicable to
all genders.
Section 4.4. Joint Obligation. In the event that more than one person or
party shall execute this Guaranty as the Guarantor herein, this agreement shall
bind all persons and parties jointly and severally.
Section 4.5. Colorado Law; Venue. This Guaranty and the terms and
provisions hereof shall be governed by and construed according to the laws of
the State of Colorado, without regard to principles of conflict of laws. Any
suit hereon may be brought and prosecuted in the courts of the City and County
of Denver, Colorado.
Section 4.6. Remedies Cumulative. Guarantor hereby agrees with Landlord
that all rights, remedies and recourse afforded to Landlord by reason of this
Guaranty, or otherwise, are separate and cumulative and may be pursued
separately, successively or concurrently, as occasion therefor shall occur, and
are nonexclusive and shall in no way limit or prejudice any other legal or
equitable right, remedy or recourse which Landlord may have.
Section 4.7. Captions. The section headings contained in this Guaranty are
for reference purposes only and shall not affect the meaning or interpretation
of this Guaranty.
WITNESS the execution hereof by the Guarantor.
GUARANTOR:
YDI WIRELESS, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx, Vice President
(Print name and title)
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