Exhibit 10.3
OFFICE LEASE
BY AND BETWEEN
G & W INVESTMENT PARTNERS,
A XXXX XXXXX FORMED UNDER THE LAWS OF JAPAN,
LANDLORD,
AND
PENCOM SYSTEMS, INC.,
A NEW YORK CORPORATION
DBA PSW TECHNOLOGIES
TENANT
TABLE OF CONTENTS
Section
Page
Number Title Number
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I. TERMS AND DEFINITIONS 1
II. PROPERTY LEASED 2
A. Premises 2
B. Common Areas 2
C. Minor Variations In Area 2
D. Substitution of Space 2
III. COMMENCEMENT OF TERM AND POSSESSION OF PREMISES 3
A. Lease Commencement Date 3
B. Completion of Tenant Improvements and
Possession of Premises 3
C. Extension of Lease Commencement Date 3
D. Acceptance and Suitability 3
IV. RENT 4
A. Monthly Rental 4
B. Consumer Price Index Increases 4
C. Additional Rent 5
V. REIMBURSEMENT OF COMMON EXPENSES 5
A. Definitions 5
B. Reimbursement 6
C. Rebate or Additional Charges 7
D. Control of Common Areas 7
VI. SECURITY DEPOSIT 7
VII. TENANT'S TAXES 8
VIII. USE OF PREMISES 8
A. Permitted Uses 8
B. Compliance with Laws 9
C. Hazardous Materials 9
D. Landlord's Rules and Regulations 10
IX. SERVICE AND UTILITIES 11
A. Standard Building Services
and Reimbursement by Tenant 11
B. Limitation on Landlord's Obligations 12
C. Excess Service 12
D. Security Services 12
X. MAINTENANCE AND REPAIRS 12
A. Landlord's Obligations 12
B. Tenant's Obligations 12
C. Landlord's Right to Make Repairs 13
D. Condition of Premises Upon Surrender 13
XI. ENTRY BY LANDLORD 13
XII. ALTERATIONS, ADDITIONS AND TRADE FIXTURES 14
XIII. MECHANIC'S LIENS 15
(I)
XIV. INSURANCE 15
A. Tenant 15
B. Landlord 16
XV. INDEMNITY 16
A. Tenant 16
B. Landlord 17
C. Limitation on Recovery for Property Damage 17
D. Limitation of Landlord's Liability,
Release of Trustees, Officers and
Partners of Landlord 18
XVI. ASSIGNMENT AND SUBLETTING BY TENANT 18
XVII. TRANSFER OF LANDLORD'S INTEREST 21
XVIII. DAMAGE AND DESTRUCTION 21
A. Minor Insured Damage 21
B. Major or Uninsured Damage 21
C. Abatement of Rent 22
XIX. CONDEMNATION 22
A. Total or Partial Taking 22
B. Award 23
C. Abatement in Rent 23
D. Temporary Taking 23
E. Transfer of Landlord's Interest to Condemnor 24
XX. DEFAULT 24
A. Tenant's Default 24
B. Remedies 25
XXI. LATE PAYMENTS/INTEREST AND LATE CHARGES 26
A. Interest 27
B. Late Charges 27
C. Consecutive Late Payment of Rent 27
D. No Waiver 27
XXII. LIEN FOR RENT 28
XXIII. HOLDING OVER 28
XXIV. ATTORNEYS' FEES 28
XXV. MORTGAGEE PROTECTION 28
A. Subordination; Nondisturbance 29
B. Attornment 29
XXVI. ESTOPPEL CERTIFICATE/FINANCIAL STATEMENTS 29
A. Estoppel Certificate 29
B. Furnishing of Financial Statements 30
XXVII. PARKING 30
XXVIII. SIGNS; NAME OF BUILDING 31
XXIX. QUIET ENJOYMENT 32
XXX. BROKERS AND AGENTS 32
(II)
XXXI. NOTICES 32
XXXII. NOTICE AND CURE TO LANDLORD AND MORTGAGEE 32
XXXIII. GENERAL 33
A. Paragraph Headings 33
B. Incorporation of Prior Agreements; Amendments 33
C. Waiver 33
D. Short Form or Memorandum of Lease 33
E. Time of Essence 33
F. Examination of Lease 33
G. Severability 33
H. Surrender of Lease Not Merger 34
I. Corporate Authority 34
J. Governing Law 34
K. Force Majeure 34
L. Use of Language 34
M. Successors 34
N. No Reduction of Rental 34
0. No Partnership 35
P. Exhibits 35
Q. Indemnities 35
XXXIV. EXECUTION 36
EXHIBIT A SITE PLAN FOR THE PROJECT 37
EXHIBIT B FLOOR PLAN OF THE PREMISES 38
EXHIBIT C CONSTRUCTION WORK LETTER 39
EXHIBIT D RENT SCHEDULE 40
EXHIBIT E RULES AND REGULATIONS 41
EXHIBIT F AMENDMENT OF LEASE COMMENCEMENT DATE 44
(III)
OFFICE LEASE
THIS LEASE is entered into by and between Landlord and Tenant effective as of
this 25th day of April, l996 ("Effective Date").
SECTION I. TERMS AND DEFINITIONS
The following terms as used herein shall have the meanings as set forth below:
A. "Landlord" means G&W INVESTMENT PARTNERS, a xxxx xxxxx formed under
the laws of Japan and its successors and assigns.
B. "Tenant" means Pencom Systems Inc., a New York Corporation DBA PSW
Technologies.
C. "Building" means the building in which the Premises are located,
which Building has approximately 41,941 net rentable square feet and
is located at 0000 - 000xx Xxxxxx XX in the City of Bellevue,
Washington.
D. "Project" means the Corporate Campus East - Buildings A, B & C
located in the City of Bellevue, Washington, in which Project the
Building is located as shown on the site plan attached hereto as
Exhibit A.
E. "Premises" means suite(s) 202 located on the second floor of the
Building and consisting of approximately four thousand six hundred
twenty three (4,623) net rentable square feet, as more particularly
shown on Exhibit B attached hereto and incorporated herein by this
reference.
F. "Term" means three (3) years.
G. "Lease Commencement Date" means May 1, 1996; provided, however, that
if the Lease Commencement Date stated in this subsection is extended
pursuant to Section III. C. below, Landlord and Tenant shall execute
and attach hereto as a new Exhibit F, an Amendment of Lease
Commencement Date, in form of that attached hereto as Exhibit F,
which shall specify such amended Lease Commencement Date and, if
applicable, an amended Expiration Date.
H. "Expiration Date" means April 30, 1999 unless amended as provided in
an Amendment of Lease Commencement Date executed as provided above.
I. "Monthly Rental" means the amounts specified in Section IV below and
in the Rent Schedule attached hereto as Exhibit D and incorporated
herein, subject to adjustments as set forth in Section IV. B. below.
J. "Base Operating Expense" means the actual amount for the calendar
year 1996 (as defined in Section V below) which shall be paid by
Landlord and not Tenant.
K. "Security Deposit" means seven thousand one hundred twenty seven
Dollars ($7,127.00)
L. "Permitted Use" means General Office Use
M. "Broker" means CB Commercial Real Estate Group, Inc.
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N. "Landlord's Address for Notice" means ARES Realty Capital Inc., 0000
000xx Xxxxxx XX, Xxxxx 000, Xxxxxxxx, XX 00000, With a copy to:
Asset Management, ARES Realty Capital Inc., 0000 Xxxx Xxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000.
0. "Tenant's Address for Notice" means 0000 - 000xx Xxxxxx XX, Xxxxx
000, Xxxxxxxx, Xxxxxxxxxx.
P. "Tenant's Proportionate Share" for Tenant's reimbursement of Common
Operating Costs and other expenses to be pro-rated hereunder means
11% which is the quotient obtained by dividing the total number of
square feet of net rentable floor area in the Building into the
total number of square feet of net rentable floor area within the
Premises.
Q. "Tenant's Parking Spaces" means seventeen (17) total parking spaces
located in such areas of the Project as landlord determines and
divided as follows: two (2) covered and fifteen (15) non-covered or
surface, all of which shall be non-exclusive, unassigned.
R. "Monthly Parking Rent" means fifteen dollars ($15) per month, per
stall payable by Tenant for Tenant's fifteen (15) covered parking
spaces. Such Monthly Parking Rent shall be considered Additional
Rent and shall be due and payable without notice or demand, on or
before the first day of each calendar month.
SECTION II. PROPERTY LEASED
A. Premises
Upon and subject to the terms, covenants and conditions hereinafter set
forth, Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the Premises.
B. Common Areas
Subject to the terms, covenants and conditions of this Lease, Tenant shall
have the right, for the benefit of Tenant and its employees, suppliers,
shippers, customers and invitees, to the non-exclusive use of all of the
Common Areas as hereinafter defined.
C. Minor Variations In Area
The area of the Premises contained in Section I. is agreed to be the area
of the Premises regardless of minor variations resulting from construction
or remodeling of the Building and/or tenant improvements.
D. Substitution of Space (Intentionally Deleted)
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SECTION III. COMMENCEMENT OF TERM AND POSSESSION OF PREMISES
A. Lease Commencement Date
The Term of the Lease shall commence on the Lease Commencement Date (as
extended only pursuant to Section III. C. below, if applicable), and shall
continue, subject to earlier termination as provided herein, until the
Expiration Date (as extended only pursuant to subsection C. below).
B. Completion of Tenant Improvements and Possession of Premises
Upon execution of this Lease by the parties, Landlord shall proceed to
complete the tenant improvements in the Premises described as "Landlord's
Work" in the "Construction Work Letter" attached hereto and incorporated
herein as Exhibit C. At the time such work has been substantially
completed in accordance with the Construction Work Letter, except for
minor decorative or other "punch list" items as contemplated in subsection
D. below, and the Premises has been approved for occupancy under the
applicable building code (which together shall constitute "Substantial
Completion" hereunder), Landlord shall notify Tenant thereof and Tenant
shall take possession of the Premises on or after the Lease Commencement
Date. In the event permission is given to Tenant to enter or occupy all or
a portion of the Premises prior to the Lease Commencement Date, such
occupancy shall be subject to all of the terms and conditions of this
Lease. All tenant improvements constructed in the Premises, whether by
Landlord or by (or on behalf of) Tenant and whether at Landlord's or
Tenant's expense, shall become part of the Premises and shall be and
remain the property of Landlord unless Landlord specifically agrees
otherwise in writing.
C. Extension of Lease Commencement Date
If the Premises are not Substantially Completed on the original Lease
Commencement Date specified in Section I. due to one or more delays caused
by Landlord or caused by matters beyond the control of Landlord, this
Lease and the obligations of Landlord and Tenant hereunder shall
nevertheless continue in full force and effect. However, in such event
Landlord and Tenant shall agree on an amendment of the original Lease
Commencement Date to reflect such delay or delays and shall, in each
instance, execute and attach hereto an amendment in the form of that
attached as Exhibit F hereto stating such amended Lease Commencement Date
and, if applicable, an amended Expiration Date and no rental shall be
payable by Tenant hereunder until the amended Lease Commencement Date. The
delay in commencement of the Term and in Tenant's obligation to pay rent
described in the foregoing sentence shall constitute full settlement of
all claims that Tenant might otherwise have by reason of the Premises not
being Substantially Completed on the original Lease Commencement Date
specified in Section I. above.
If the Premises are not Substantially Completed on the Lease Commencement
Date due to one or more delays caused by Tenant, or anyone acting under or
for Tenant, Landlord shall have no liability for such delay and the Lease
Commencement Date shall nevertheless begin as of the Lease Commencement
Date stated in Section I. (as extended only because of Landlord's delay
pursuant to this subsection C., if applicable).
D. Acceptance and Suitability
Within fifteen (15) days following the date Tenant takes possession of the
Premises, Tenant may provide Landlord with a "punch list" which sets forth
an itemization of any reasonable corrective work
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to be performed by Landlord with respect to the Landlord's Work as set
forth in the Construction Work Letter; provided, however, that Tenant's
obligation to pay Monthly Rental as provided below shall not be affected
thereby. If Tenant fails to submit such "punch list" to Landlord within
such fifteen (15) day period, Tenant agrees that by taking possession of
the Premises it will conclusively be deemed to have inspected the Premises
and found the Premises in satisfactory condition. Tenant acknowledges that
neither Landlord, nor any agent, employee or servant of Landlord, has made
any representation with respect to the Premises or the Project, or with
respect to the suitability of them to the conduct of Tenant's business,
nor has Landlord agreed to undertake any modifications, alterations, or
improvements of the Premises or Project, except as specifically provided
in this Lease.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LANDLORD HEREBY
DISCLAIMS, AND TENANT WAIVES THE BENEFIT OF, ANY AND ALL IMPLIED
WARRANTIES, INCLUDING IMPLIED WARRANTIES OF HABITABILITY, FITNESS OR
SUITABILITY FOR PURPOSE, OR THAT THE PROJECT (OTHER THAN THE IMPROVEMENTS
CONSTRUCTED BY LANDLORD IN THE PREMISES) HAVE BEEN CONSTRUCTED IN A GOOD
AND WORKMANLIKE MANNER. TENANT EXPRESSLY ACKNOWLEDGES THAT LANDLORD DID
NOT CONSTRUCT OR APPROVE THE QUALITY OF CONSTRUCTION OF THE BUILDING.
SECTION IV. RENT
A. Monthly Rental
Commencing on the Lease Commencement Date Tenant shall pay to Landlord
during the Term, rental for the entire Term in the total amount as set
forth in the "Rental Schedule" attached hereto as Exhibit D payable in
monthly installments (the "Monthly Rental") in the amount also set forth
in Exhibit D, (subject, however, to any modifications or adjustments
specified hereinbelow and/or in Exhibit D. The Monthly Rental shall be
payable by Tenant on or before the first day of each month, in advance,
without further notice, at the address specified for Landlord in Section
I., or such other place as Landlord shall designate, without any prior
demand therefor and without any abatement, deduction or set off
whatsoever. Notwithstanding the foregoing, Monthly Rental for the first
full month shall be paid upon the execution hereof. If the Lease
Commencement Date should occur on a day other than the first day of a
calendar month, or the Expiration Date should occur on a day other than
the last day of a calendar month, then the rental for such fractional
month shall be prorated on a daily basis upon a thirty (30) day calendar
month.
B. Consumer Price Index Increases (Intentionally Deleted)
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C. Additional Rent
As used in this Lease, the term "rent" shall mean the Monthly Rental plus
all "additional rent", which shall mean all other amounts payable by
Tenant to Landlord pursuant to this Lease other than Monthly Rental,
including without limitation, Tenant's Proportionate Share of Common
Operating Costs and Monthly Parking Rent. All Monthly Rental and
additional rent shall be paid in lawful money of the United States which
shall be legal tender at the time of payment. Where no other time is
stated herein for payment, payment of any amount due from Tenant to
Landlord hereunder shall be made within ten (10) days after Tenant's
receipt of Landlord's invoice or statement therefor.
SECTION V. REIMBURSEMENT OF COMMON EXPENSES
A. Definitions
(1) "Common Areas" means all areas, space, equipment and special
services provided by Landlord for the common or joint use and
benefit of the tenants, their employees, agents, servants,
suppliers, customers and other invitees, including, by way of
illustration, but not limitation, retaining walls, fences,
landscaped areas, parks, curbs, sidewalks, private roads, restrooms,
stairways, elevators, lobbies, hallways, patios, service quarters,
parking areas, all common areas and other areas within the exterior
of the Building and in the Project or as shown on the site plan
attached to this Lease as Exhibit A.
(2) "Taxes" shall mean all real property taxes, personal property taxes,
improvement bonds, and other charges and assessments which are
levied or assessed upon or with respect to the Building and Project
and the land on which the Building and Project are located and any
improvements, fixtures and equipment and all other property of
Landlord, real or personal, located in the Building and Project and
used in connection with the operation of the Building and Project
and the land on which the Building and Project are located,
including any increase in such taxes, whether resulting from a
reassessment of the value of the land, the Building or the Project,
personal property, or for any other reason, imposed by any
governmental authority, and any tax which shall be levied or
assessed in addition to or in lieu of such real or personal property
taxes and any license fees, commercial rental tax, or other tax upon
Landlord's business of leasing the Building and the Project, but
shall not include any federal or state income tax, or any franchise,
capital stock, estate, inheritance, succession, transfer and excess
profit taxes imposed upon Landlord, and shall also include any tax
consultant fee or other costs incurred by Landlord to review or
contest any tax assessed against the Premises, Building, or Project.
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(3) "Common Operating Costs" shall mean the aggregate of all costs and
expenses payable by Landlord in connection with the operation and
maintenance of the Premises, Building, Project, and Common Areas,
including, but not limited to, (a) the cost of landscaping,
repaving, resurfacing, repairing, replacing, painting, lighting,
cleaning, removing trash, janitorial services, security services and
other similar items;(c) all Taxes; (d) the cost of any insurance
obtained by Landlord in connection with the Building and Project,
including, but not limited to, the insurance required to be obtained
by Landlord pursuant to this Lease; (e) the cost of operating,
repairing and maintaining the mechanical, electrical, plumbing, life
safety, and access systems; (f) the cost of monitoring services, if
provided by Landlord, including, without limitation, any monitoring
or control devices used by Landlord in regulating the parking areas;
(g) the cost of water, electricity, gas and any other utilities; (h)
legal, accounting and consulting fees and expenses; (i) compensation
(including employment taxes and fringe benefits) of all persons who
perform duties connected with the operation, maintenance and repair
of the Premises, Project, Building or Common Areas but in no event
will this cost include executive personnel beyond the level of the
property manager, additionally, as long as the current management
agreement is in effect, neither will the cost of persons include
that of the Property Manager or any accounting personnel; (j) energy
allocation, energy use surcharges, or environmental charges; (k)
municipal inspection fees or charges; (l) the costs incurred by
Landlord to provide management services for the Building or Project;
(m) the amortized cost, including financing costs if applicable, of
any equipment, device or other capital improvement installed by
Landlord in the Premises, Building or Project which achieve
economies in the operation, maintenance and/or repair thereof; and
(n) any other costs or expenses incurred by Landlord under this
Lease which are not otherwise reimbursed directly by tenants. The
computation of Common Operating Costs shall be made in accordance
with generally accepted accounting principles.
(4) In the event during all or any portion of any calendar year the
Building is not at least ninety-five percent (95%) rented and
occupied, Landlord may elect to make an appropriate adjustment to
the Common Operating Costs for such year, employing sound accounting
and management principles, to determine the Common Operating Costs
that would have been paid or incurred by Landlord had the Building
been ninety-five percent (95%) rented and occupied and the amount so
determined shall be deemed to have been the Common Operating Costs
for such year.
B. Reimbursement
Within a reasonable time before the commencement of each calendar year
during the Term, Landlord shall deliver to Tenant a reasonable estimate of
the Common Operating Costs Landlord will incur for the forthcoming
calendar year. Commencing on the Lease Commencement Date, and continuing
on the first day of each calendar month thereafter, Tenant shall pay to
Landlord, as additional rental, an amount equal to one-twelfth (1/12th) of
the product obtained by multiplying (i) the remainder obtained by
deducting the Base Operating Expense, if any, from the then estimated
Common Operating Costs for the applicable calendar year of the Lease Term,
times (ii) Tenant's Proportionate Share; provided, however, that such
amount shall not be less than zero dollars ($0). The total of such
additional monthly payments to be paid by Tenant for such calendar year
shall be called "Tenant's Estimated Operating Cost". Upon
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Notice to Tenant, Tenant's Estimated Operating Cost may be adjusted
periodically by Landlord during the calendar year on the basis of
Landlord's reasonably revised estimate of Common Operating Costs for such
calendar year. Any major expenditure by Landlord (e.g. resurfacing of
parking areas, painting buildings, refurbishing landscaping or walkways
and similar items) during the year which was not included in determining
the estimated Common Operating Costs, may be billed separately to Tenant
according to Tenant's Proportionate Share.
C. Rebate of Excess Charges or Payment of Additional Charges
Within a reasonable time after the end of each calendar year, Landlord
shall furnish Tenant with a statement showing the Common Operating Costs
actually paid or incurred by Landlord for such year less the Base
Operating Expense, if any, and Tenant's Proportionate Share thereof
("Tenant's Actual Operating Cost"), which shall in no event be less than
zero dollars ($0). If the amount of Tenant's Estimated Operating Cost paid
by Tenant for such calendar year exceeds Tenant's Actual Operating Cost
for that year, Landlord shall refund such excess to Tenant within thirty
(30) days after such determination or Landlord may, at its sole option,
apply such excess to any outstanding amounts due Landlord. If Tenant's
Estimated Operating Cost actually paid by Tenant is less than Tenant's
Actual Operating Cost, Tenant shall pay such shortfall to Landlord, as
additional rent, within thirty (30) days after receipt of Landlord's
statement showing the amount due. If the Lease commences on a date other
than on the first day of a calendar year or expires or otherwise
terminates, on a date other than on the last day of a calendar year, the
foregoing payments shall be prorated accordingly.
D. Control of Common Areas
Tenant's use of the Common Areas shall be subject to the provisions of
this Lease and Landlord's rights, hereby reserved, to (a) restrain the use
of the Common Areas by unauthorized persons, (b) utilize from time to time
any portion of the Common Areas for promotional and related matters, (c)
temporarily close any portion of the Common Areas for repairs,
improvements or alterations, (d) change the shape and size of the Common
Areas or change the location of improvements within the Common Areas,
including, without limitation, parking areas, roadways and curb cuts, and,
(e) prohibit access to or use of Common Areas that are designated for the
storage of supplies or operation of equipment necessary to operate the
Project or Building. In addition, Landlord may determine the nature, size
and extent of the Common Areas as well as make changes to the Common Areas
and take such other actions in connection therewith from time to time
which, in its opinion, are deemed desirable.
SECTION VI. SECURITY DEPOSIT
Upon execution of this Lease, Tenant shall deposit with Landlord the Security
Deposit defined in Section I. above, which shall be held for Landlord as
security for the performance by Tenant of all terms, covenants and conditions of
this Lease. It is expressly understood and agreed that such deposit is not an
advance rental payment or a measure of Landlord's damages in case of Tenant's
default. If Tenant defaults with respect to any provision of this Lease,
including, but not limited to, the provisions relating to the payment of rent or
the obligation to repair and maintain the Premises or to perform any other term,
covenant or condition contained herein, Landlord may (but shall not be required
to), without prejudice to any other remedy provided herein or provided by law
and without notice to Tenant, use the Security Deposit, or any portion of it, to
cure the default or to compensate Landlord for all damages sustained by Landlord
resulting from Tenant's default. Tenant shall immediately on demand pay to
Landlord a sum equivalent to the portion of the Security Deposit so expended or
applied by Landlord as
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provided in this paragraph so as to maintain the Security Deposit in the sum
initially required to be deposited with Landlord. Although the Security Deposit
shall be deemed the property of Landlord, if Tenant is not in default at the
expiration or earlier termination of this Lease, Landlord shall return the
Security Deposit to Tenant within thirty (30) days of the termination of this
Lease. Landlord shall not be required to keep the Security Deposit separate from
its general funds and Landlord, not Tenant, shall be entitled to all interest,
if any, accruing on any such deposit. Upon any sale or transfer of its interest
in the Building, Landlord shall transfer the Security Deposit to its successor
in interest and thereupon, Landlord shall be released from any liability or
obligation with respect thereto.
SECTION VII. TENANT'S TAXES
To the extent not covered as a Common Operating Expense, Tenant shall be liable
for any tax (now or hereafter imposed by any governmental entity) applicable to
or measured by or levied on the rents or any other charges payable by Tenant
under this Lease, including (but not limited to) any gross income tax, gross
receipts tax or excise tax payable with respect to the receipt of such rent or
other charges or the possession, leasing or operation, use or occupancy of the
Premises, but not including any net income, franchise, capital stock, estate or
inheritance taxes payable by Landlord. If any such tax is required to be paid to
the governmental taxing entity directly by Landlord, then Landlord shall pay the
amount due and, upon demand, shall be fully reimbursed by Tenant for such
payment.
Tenant shall also be liable for all taxes levied against the leasehold held by
Tenant or against any personal property, leasehold improvements, additions,
alterations and fixtures placed by or for Tenant in, on or about the Premises,
Building and Project or constructed by Landlord for Tenant in the Premises,
Building or Project; and if any such taxes are levied against Landlord or
Landlord's property, or if the assessed value of such property is increased
(whether by special assessment or otherwise) by the inclusion therein of value
placed on such leasehold, personal property, leasehold improvements, additions,
alterations and fixtures, and Landlord pays any such taxes (which Landlord shall
have the right to do regardless of the validity thereof), Tenant, upon demand,
shall fully reimburse Landlord for the taxes so paid by Landlord or for the
proportion of such taxes resulting from such increase in any assessment.
SECTION VIII. USE OF PREMISES
A. Permitted Uses
Tenant shall use the Premises and Common Areas solely for the Permitted
Use specified in subsection I.L. above, and for no other use. Tenant
shall, at its own cost and expense, obtain any and all licenses and
permits necessary for any such use. Tenant shall not do or permit anything
to be done in or about the Premises, Common Areas, Building or Project
which will in any way obstruct or interfere with the rights of other
tenants or occupants of the Project or injure or annoy them. Tenant shall
not use or allow the Premises to be used for any unlawful purpose, nor
shall Tenant cause, maintain or permit any nuisance in, on or about the
Premises and Common Areas. Tenant shall not commit or suffer to be
committed any waste in or upon the Premises, Common Areas, Building or
Project. Tenant shall not do or permit anything to be done in or about the
Premises, Common Areas, Building or Project which may render the insurance
thereon void or increase the insurance risk or cost thereon. If an
increase in any fire and extended coverage insurance premiums paid by
Landlord for the Building and Project is caused by Tenant's use and
occupancy of the Premises, then Tenant shall pay, as additional rental,
the amount of such increase to Landlord.
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B. Compliance with Laws
Tenant shall not use the Premises, Building, Project or Common Areas in
any way (or permit or suffer anything to be done in or about the same)
which will conflict with any law, statute, ordinance or governmental rule
or regulation or any covenant, condition or restriction (whether or not of
public record) affecting the Premises, Project or Building, now in force
or which may hereafter be enacted or promulgated including, but not
limited to, the provisions of any city or county zoning codes regulating
the use thereof. Tenant shall, at its sole cost and expense, promptly
comply with (a) all laws, statutes, ordinances, and governmental rules and
regulations, now in force or which may hereafter be in force, (b) all
requirements, and other covenants, conditions and restrictions, now in
force or which may hereafter be in force, which affect the Premises, and
(c) all requirements, now in force or which may hereafter be in force, of
any board of fire underwriters or other similar body now or hereafter
constituted relating to or affecting the condition, use or occupancy of
the Premises, Building or Project. The judgment of any court of competent
jurisdiction or the admission by Tenant in any action against Tenant,
whether Landlord be a party thereto or not, that Tenant has violated any
such law, statute, ordinance, governmental rule or regulation or any
requirement, covenant, condition or restriction shall be conclusive of the
fact as between Landlord and Tenant. Tenant agrees to fully indemnify
Landlord against any liability, claims or damages arising as a result of a
breach of the provisions of this Subsection by Tenant, and against all
costs, expenses, fines or other charges arising therefrom, including,
without limitation, reasonable attorneys' fees and related costs incurred
by Landlord in connection therewith, which indemnity shall survive the
expiration or earlier termination of this Lease.
C. Hazardous Materials
Tenant shall not cause or permit any Hazardous Material (as defined below)
to be brought upon, kept, or used in or about the Premises, Building or
Project by Tenants, its agents, employees, contractors, or invitees,
without the prior written consent of Landlord (which Landlord shall not
unreasonably withhold as long as Tenant demonstrates to Landlord's
reasonable satisfaction that such Hazardous Material is necessary or
useful to Tenant's business and will be used, kept, stored and disposed of
in a manner that complies with all laws regulating any such Hazardous
Material so brought upon or used or kept in or about the Premises,
Building and Project, and such storage will not create an undue risk to
other tenants of the Building and Project, giving consideration to the
nature of the Project and Building). If Tenant breaches the obligations
stated in the preceding sentence, or if the presence of Hazardous Material
on the Premises, Building or Project caused or permitted by Tenant results
in contamination of the Premises, the Building or the Project, or if
contamination of the Premises, the Building or the Project, by Hazardous
Material otherwise occurs for which Tenant is legally liable to Landlord
for damage resulting therefrom, then Tenant shall indemnify, defend and
hold Landlord harmless from any and all claims, judgments, damages,
penalties, fines, costs, liabilities, or losses (other than consequential
damages) which arise during or after the Lease Term as a result of such
contamination. This indemnification of Landlord by Tenant includes,
without limitation, the obligation to reimburse Landlord for costs
incurred in connection with any investigation of site conditions or any
cleanup, remedial, removal or restoration work required by any federal,
state, or local governmental agency or political
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subdivision because of Hazardous Material present in, on, or about the
Premises, Building or Project or in the soil or ground water on or under
the Premises, the Building or the Project. Without limiting the foregoing,
if the presence of any Hazardous Material in, on or about the Premises,
Building or Project caused or permitted by Tenant results in any
contamination of the Premises, the Building or the Project, Tenant shall
promptly take all actions at its sole expense as are necessary to return
the Premises, the Building or the Project to the condition existing prior
to the introduction of any such Hazardous Material thereto; provided that
Landlord's approval of such actions shall first be obtained, which
approval shall not be unreasonably withheld so long as such actions would
not potentially have any material adverse long-term or short-term effect
on the Premises, Building or Project or exposes Landlord to any liability
therefor and such actions are undertaken in accordance with all applicable
laws, rules and regulations and accepted industry practices.
"Hazardous Material" is used in this Lease in its broadest sense and shall
mean any petroleum based products, pesticides, paints and solvents,
polychlorinated biphenyl, lead, cyanide, DDT, acids, ammonium compounds
and other chemical products and any substance or material defined or
designated as hazardous or toxic, or other similar term, by any federal,
state or local environmental statute, regulation, or ordinance affecting
the Premises, Building or Project presently in effect or that may be
promulgated in the future, as such statutes, regulations and ordinances
may be amended from time to time, including but not limited to the
statutes listed below:
Resource Conservation and Recovery Act of 1976, 42 U.S.C. ss. 6901 et seq.
Comprehensive Environmental Response, Compensation, and Liability Act of
1980, 40 U.S.C. ss. 1801 et seq.
Clean Air Act, 42 U.S.C. xx.xx. 7401-7626.
Water Pollution Control Act (Clean Water Act of 1977), 33 U.S.C. ss. 1251
et seq.
Insecticide, Fungicide, and Rodenticide Act (Pesticide Act of 1987), 7
U.S.C. ss. 135 et seq.
Toxic Substances Control Act, 15 U.S.C. ss. 2601 et seq.
Safe Drinking Water Act, 42 U.S.C. ss. 300(f) et seq.
National Environmental Policy Act (NEPA) 42 U.S.C. ss. 4321 et seq.
Refuse Act of 1899, 33 U.S.C. ss. 407 et seq.
D. Landlord's Rules and Regulations
Tenant shall, and Tenant agrees to cause its agents, servants, employees,
invitees, and licensees to observe and comply fully and faithfully with
the rules and regulations attached hereto as Exhibit E or such reasonable
rules and regulations which may hereafter be adopted by Landlord (the
"Rules") for the care, protection, cleanliness, and operation of the
Premises, Building and Project, and any reasonable modifications or
additions to the Rules adopted by Landlord, provided that, Landlord shall
give written notice thereof to Tenant and, Tenant's Permitted Use of the
Project's not unreasonably affected. Landlord shall not be responsible to
Tenant for failure of any other tenant or occupant of the Building or
Project to observe or comply with any of the Rules. To the best of its
ability Landlord will apply the Rules equally to all tenants and will not
discriminate in the application of the Rules.
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SECTION IX. SERVICE AND UTILITIES
A. Standard Building Services and Reimbursement by Tenant
Landlord agrees to furnish to the Premises, between the hours of 7:00 a.m.
and 6:00 p.m. on Monday through Friday and between 8:00 a.m. and 12 noon
on Saturday (Sunday and legal holidays excepted) (hereinafter "Building
Hours"), heat and air conditioning (hereinafter "HVAC"), required in
Landlord's judgment for the comfortable use and occupation of the Premises
for general office purposes and at a level which is usual and customary in
similar office buildings in the area where the Project is located, all of
which shall be subject to the Rules of the Building as well as any
governmental requirements or standards relating to, among other things,
energy conservation. Standard water, electrical and elevator (if
applicable) service shall be supplied to the Premises at all times at
Landlord's cost, which cost is subject to the provisions of Section V
herein. Tenant agrees to pay, as a Common Operating Expense except as
provided below, the full cost of all utilities supplied to the Premises,
together with any taxes thereon, as part of Tenant's Proportionate Share
of Common Operating Costs except for separately metered and excess service
as provided below. If any such service or utilities are separately metered
to the Premises, Tenant shall pay the cost thereof in a timely manner
directly to the utility company providing such service. Tenant's
obligations in this Section regarding utilities include, but are not
limited to initial connection charges, all charges for gas, water and
electricity used on the Premises, and for all electric light lamps or
tubes. Tenant shall be required to pay any increased cost, as additional
rent, of any utilities and services, including, without limitation, water,
electricity and HVAC, resulting from any use of the Premises at any time
other than the above scheduled Building Hours or any use beyond what
Landlord agrees to furnish as described above, or resulting from special
electrical, cooling and ventilating needs created in certain areas by
telephone equipment, computers and other similar equipment or uses. Tenant
agrees to pay the cost of operating the HVAC at any time other than the
above scheduled Building Hours, which cost may include the operation of
the HVAC for space located outside the Premises when such space is
serviced concurrently with the operation of the HVAC for the benefit of
the Premises. Landlord estimates the cost of such HVAC service to be
$25.00 per hour.
B. Limitation on Landlord's Obligations
Landlord shall not be liable for and Tenant entitled to any abatement or
reduction of rent by reason of, Landlord's failure to furnish any of the
foregoing when such failure is caused by accidents, breakage, repairs,
strikes, brownouts, blackouts, lockouts or other labor disturbances or
labor disputes of any character, or by any other cause, similar or
dissimilar, beyond the reasonable control of Landlord, nor shall such
failure under such circumstances be construed as a constructive or actual
eviction of Tenant. Notwithstanding any of the foregoing, Landlord shall
not be liable under any circumstances for loss or injury to the property
or business of Tenant, however occurring, through or in connection with or
incidental to Landlord's furnishing or failure to furnish any of said
service or utilities.
C. Excess Service
Tenant shall not, without the written consent of Landlord, use any
apparatus or device in the Premises, including, without limitation,
electronic data processing machines, punch card machines or machines using
in excess of one hundred twenty (120) volts or which consumes more
electricity than is usually furnished or supplied for the Permitted Use of
the Premises, as reasonably determined by Landlord. Tenant shall not
consume water or electric current in excess of that usually furnished or
supplied for the Permitted Use of the Premises
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(as reasonably determined by Landlord), without first procuring the
written consent of Landlord, which Landlord may refuse. The excess cost
for such water and electric current shall be established by an estimate
made by a utility company or independent engineer hired by Landlord at
Tenant's expense and Tenant shall pay such excess costs as additional rent
each month with the Monthly Rental.
D. Security Services
Certain security measures (both by electronic equipment and personnel) may
be provided by Landlord in connection with the Building and Common Areas.
However, Tenant hereby acknowledges that any such security is intended to
be solely for the benefit of the Landlord in protecting its property from
fire, theft, vandalism and similar perils and while certain incidental
benefits may accrue to the Tenant therefrom, any such security is not for
the purpose of protecting either the property of Tenant or the safety of
its officers, employees, servants or invitees. By providing such security,
Landlord assumes no obligation to Tenant and shall have no liability
arising therefrom. Landlord reserves the right to either commence, expand,
reduce or discontinue the providing of any such security at any time
without notice to Tenant.
SECTION X. MAINTENANCE AND REPAIRS
A. Landlord's Obligations
Except for special or non-standard systems and equipment installed for
Tenant's exclusive use, Landlord shall, at Landlord's initial cost and
expense subject to reimbursement by Tenant of Tenant's Proportionate Share
of such cost and expense, keep in good condition and repair the heating,
ventilating and air conditioning and other mechanical systems which
service the Premises as well as other premises within the Building; the
foundations, exterior walls, structural condition of interior bearing
walls, and roof of the Premises and Building; and the parking lots,
walkways, driveways, landscaping, fences, signs and utility installations
and other Common Areas of the Project. Landlord shall not be in breach of
its obligations under this Section unless Landlord fails to make any
repairs or perform maintenance which it is obligated to perform hereunder
and such failure persists for an unreasonable time after written notice of
a need for such repairs or maintenance is given to Landlord by Tenant.
Landlord shall not be required to make any repairs that are the obligation
of any tenant or occupant within the Building or Project or repairs for
damage caused by any negligent or intentional act or omission of Tenant or
any person claiming through or under Tenant or any of Tenant's employees,
suppliers, shippers, customers or invitees, in which event Tenant shall,
with the consent and under the direction of Landlord, repair such damage
at its sole cost and expense. Tenant hereby waives and releases any right
it may have to make repairs to the Premises, Building or Project at
Landlord's expense under any law, statute, ordinance, rules and
regulations now or hereafter in effect in any jurisdiction in which the
Project is located.
B. Tenant's Obligations
Tenant shall, at its sole cost and expense, make all maintenance, repairs
and replacements in the manner and when Landlord reasonably deems
necessary to preserve in good working order and condition the following
items, and every part thereof: plumbing that is both within and servicing
the Premises; special or supplementary heating, ventilating and air
conditioning systems installed for the exclusive use of the Premises;
non-standard electrical, lighting and other utility systems, facilities
and equipment located within the Premises and; all trade fixtures,
interior walls, interior surfaces of exterior walls, ceilings, windows,
doors, cabinets, draperies, window coverings, carpeting and other floor
coverings, plate glass
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and skylights located within the Premises. Tenant shall not commit or
permit any waste in or about the Premises, the Building or the Project.
Tenant shall, at its sole cost and expense, make all repairs to the
Premises, Building and Project which are required, in the reasonable
opinion of Landlord, as a result of any misuse, neglect, negligent or
intentional act or omission committed or permitted by Tenant or by any
subtenant, agent, employee, supplier, shipper, customer, invitee or
servant of Tenant.
C. Landlord's Right to Make Repairs
In the event that Tenant fails to maintain the Premises, Building and
Project in good and sanitary order, condition and repair as required by
this Lease, then, following written notification to Tenant (except in the
case of an emergency, in which case no prior notification shall be
required), Landlord shall have the right, but not the obligation, to enter
the Premises and to do such acts and expend such funds at the expense of
Tenant as are required to place the Premises, Building and Project in
good, safe and sanitary order, condition and repair. Any amount so
expended by Landlord shall be paid by Tenant promptly upon demand as
additional rent.
D. Condition of Premises Upon Surrender
Except for reasonable wear and tear and as otherwise provided in this
Lease, Tenant shall, upon the expiration or earlier termination of the
Term, surrender the Premises to Landlord broom clean and in the same
condition as on the date Tenant took possession. All appurtenances,
fixtures, improvements, additions and other property attached to or
installed in the Premises whether by Landlord or by or on behalf of
Tenant, and whether at Landlord's expense or Tenant's expense, shall be
and remain the property of Landlord unless Landlord specifically agrees
otherwise in writing. Any furnishings and personal property of Tenant
located in the Premises, whether the property of Tenant or leased by
Tenant, and any fixtures, improvements and other items agreed, in writing,
by Landlord to belong to the Tenant as provided in the preceding sentence,
shall be and remain the property of Tenant and shall be removed by Tenant
at Tenant's sole cost and expense at the expiration of the Term. Tenant
shall promptly repair any damage to the Premises or the Building resulting
from such removal. Any of Tenant's property not removed from the Premises
prior to or upon the Expiration Date shall, at Landlord's option, either
become the property of Landlord or may be removed by Landlord, in which
case Tenant shall pay to Landlord the cost of such removal within ten (10)
days after delivery of a xxxx therefor or Landlord, at its option, may
deduct such amount from the Security Deposit. Any damage to the Premises,
including any structural damage, resulting from Tenant's use or from the
removal of Tenant's fixtures, furnishings and equipment shall be repaired
by Tenant at Tenant's expense.
SECTION XI. ENTRY BY LANDLORD
Landlord reserves and shall at any and all times have the right to enter the
Premises at reasonable times to inspect the same to determine whether Tenant is
complying with its obligations hereunder; to supply any service to be provided
by Landlord hereunder; to supply janitorial service and any other service to be
provided by Landlord to Tenant hereunder; to exhibit, upon reasonable notice to
Tenant the Premises to prospective purchasers, mortgagees or prospective
tenants; to post notices of nonresponsibility; and to alter, improve or repair
the Premises and any portion of the Building and Project, without abatement of
rent, in which case Landlord may erect scaffolding and other necessary
structures that are reasonably required by the character of the work to be
performed by Landlord, provided that the business of Tenant shall not be
interfered with unreasonably. In order to enter the Premises for each of the
aforesaid purposes, Landlord shall at all times have and retain a key
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with which to unlock all of the doors in, upon and about the Premises, excluding
Tenant's vaults and safes. Further, Landlord shall have the right to use any and
all means which Landlord may deem proper to open such doors in the event of an
emergency. Any entry to the Premises or portions thereof obtained by Landlord by
any of said means, or otherwise, shall not under any circumstances be construed
or deemed to be a forcible or unlawful entry into, or a detainer of, the
Premises, or an eviction, actual or constructive, of Tenant from the Premises,
or any portion thereof.
SECTION XII. ALTERATIONS, ADDITIONS AND TRADE FIXTURES
Tenant shall not make any alterations, additions or improvements to the
Premises, or any part thereof, whether structural or nonstructural (hereafter
"Alterations"), without Landlord's prior, final written consent. In order to
obtain Landlord's preliminary consent, which preliminary consent may be given or
denied in Landlord's sole discretion, Tenant shall submit such information as
Landlord may require, including, without limitation plans and specifications for
the Alterations. If Landlord gives its preliminary consent for the Alterations,
in order to obtain Landlord's final consent (which final consent may not be
unreasonably withheld after preliminary consent is given), Tenant shall then
submit (i) all necessary permits, licenses, bonds, and the construction
contract, all in conformance with the plans and specifications preliminarily
approved by Landlord; (ii) evidence of insurance coverage in such types and
amounts and from such insurers as Landlord deems satisfactory; and (iii) such
other information and documentation as Landlord deems reasonably necessary
including, but not limited to, evidence of Tenant's financial ability to pay for
the Alterations. Notwithstanding the foregoing Landlord will make reasonable
efforts to render it's preliminary consent within five (5) working days after
receipt of request for consent from Tenant.
The construction contract for the Alterations shall, at the minimum, require the
general contractor and all subcontractors to obey the rules and regulations of
the Building and Project. All Alterations shall be done in a good workmanlike
manner by qualified and licensed contractors or mechanics, as approved by
Landlord. In no event shall any Alterations affect the structure of the Building
or its exterior appearance. All Alterations made by or for Tenant (other than
Tenant's moveable trade fixtures), shall, unless Landlord expressly requires or
agrees otherwise in writing, immediately become the property of Landlord,
without compensation to Tenant, but Landlord shall have no obligation to repair,
maintain or insure those Alterations. Carpeting, shelving and cabinetry shall be
considered improvements of the Premises and not movable trade fixtures,
regardless of how or where affixed. No Alterations shall be removed by Tenant
from the Premises either during or at the expiration or earlier termination of
the Term, and they shall be surrendered as a part of the Premises unless
Landlord has agreed or required otherwise in writing, in Landlord's discretion,
in which case the Alterations shall be removed by Tenant at Tenant's sole cost
and expense. Upon any such removal, Tenant shall repair any damage caused to the
Premises thereby, and shall return the Premises to the condition they were in
prior to installation of the Alterations so removed.
Tenant shall indemnify, defend and keep Landlord free and harmless from and
against all liability, loss, damage, cost, attorneys' fees and any other expense
incurred on account of claims by any person performing work or furnishing
materials or supplies for Tenant or any person claiming under Tenant. Landlord
may require Tenant to provide Landlord, at Tenant's sole cost and expense, a
lien and completion bond in an amount equal to one and one-half times the
estimated cost of such improvements, to insure Landlord against any liability
for mechanic's liens and to insure completion of the work. Landlord shall have
the right at all times to post on the Premises any notices permitted or required
by law, or that Landlord shall deem proper, for the protection of Landlord, the
Premises, the Building and the Project, and any other party having an interest
therein, from mechanics' and materialmen's liens. Tenant shall
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give to Landlord written notice of the commencement of any construction in or on
the Premises at least thirty (30) business days prior thereto. Prior to the
commencement of any such construction, Landlord shall be furnished certificates
of insurance, naming Landlord as an additional insured, evidencing that each
contractor performing work has insurance acceptable to Landlord including but
not limited to general liability insurance of not less that $1,000,000 and
worker's compensation insurance in the statutorily required amount.
SECTION XIII. MECHANIC'S LIENS
Tenant shall keep the Premises, the Building and the Project free from any liens
arising out of any work performed, material furnished or obligation incurred by
or for Tenant or any person or entity claiming through or under Tenant. In the
event that Tenant shall not, within ten (10) days following the imposition of
any such lien, cause the same to be released of record by payment or posting of
a proper bond, Landlord shall have, in addition to all other remedies provided
herein and by law, the right, but not the obligation, to cause such lien to be
released by such means as Landlord deems proper, including payment of the claim
giving rise to such lien. All such sums paid and all expenses incurred by
Landlord in connection therewith shall be due and payable to Landlord by Tenant
on demand.
SECTION XIV. INSURANCE
A. Tenant
During the Term hereof, Tenant shall keep in full force and effect the
following insurance and shall provide appropriate insurance certificates
evidencing such coverage to Landlord prior to the Lease Commencement Date
and annually thereafter before the expiration of each policy:
(1) Commercial general liability insurance for the benefit of Tenant and
Landlord as an additional insured, with a limit of not less than One
Million Dollars ($1,000,000.00) combined single limit per
occurrence, against claims for personal injury liability including,
without limitation, bodily injury, death or property damage
liability and covering (i) the business(es) operated by Tenant and
by any subtenant of Tenant on the Premises, (ii) operations of
independent contractors engaged by Tenant for services or
construction on or about the Premises, and (iii) contractual
liability;
(2) Fire, extended coverage, vandalism and malicious mischief insurance,
insuring the personal property, furniture, furnishings and fixtures
belonging to Tenant located on the Premises for not less than one
hundred percent (100%) of the actual replacement value thereof; and
(3) Business interruption or loss of income insurance in amounts
satisfactory to Landlord, with a rental interruption rider assuring
Landlord that the rent due hereunder will be paid for a period of
not less than twelve (12) months if the Premises are destroyed or
rendered inaccessible by a risk insured against by a policy of all
risk insurance.
Each insurance policy obtained by Tenant pursuant to this Lease shall
contain a clause that the insurer will provide Landlord with at least
thirty (30) days prior written notice of any material change, non-renewal
or cancellation of the policy, shall be in a form satisfactory to Landlord
and shall be taken out with an insurance company authorized to do business
in the State in which the Project is located and rated not less than
Best's Financial Class X and Best's Policy Holder Rating "A". In addition,
any insurance policy obtained by Tenant shall be written as a primary
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policy, and shall not be contributing with or in excess of any coverage
which Landlord may carry, and shall have loss payable clauses satisfactory
to Landlord and in favor of Landlord naming Landlord, and any other party
reasonably designated by Landlord as an additional insured. The liability
limits of the above described insurance policies shall in no matter limit
the liability of Tenant under the terms of Section XV. below.
Not more frequently than every two (2) years, Landlord may, by notice to
Tenant, require an increase in the above-described limits of coverage if,
in the reasonable opinion of Landlord, the amount of liability insurance
specified in this Section is not adequate to maintain the level of
insurance protection at least equal to the protection afforded on the date
the Term commences. If Tenant fails to maintain and secure the insurance
coverage required under this Section XIV., then Landlord shall have, in
addition to all other remedies provided herein and by law, the right, but
not the obligation, to procure and maintain such insurance, the cost of
which shall be due and payable to Landlord by Tenant within ten (10)
business days after written demand.
If, on account of the failure of Tenant to comply with the provisions of
this Section, Landlord is deemed a co-insurer by its insurance carrier,
then any loss or damage which Landlord shall sustain by reason thereof
shall be borne by Tenant and shall be paid by Tenant as additional rent
within ten (10) business days after receipt of a xxxx therefor and
evidence of such loss.
B. Landlord
During the Term hereof, Landlord shall keep in full force and effect the
following insurance:
(1) Fire, extended coverage and vandalism and malicious mischief
insurance insuring the Building and Project of which the Premises
are a part, in an amount not less than 80% (or such greater
percentage as may be required by law) of the full replacement cost
thereof; and
(2) Such other insurance as Landlord deems necessary in its sole and
absolute discretion.
All insurance policies shall be issued in the names of Landlord and
Landlord's lender, and any other party reasonably designated by Landlord
as an additional insured, as their interests appear. The insurance
policies shall provide that any proceeds shall be made payable to
Landlord, or to the holders of mortgages or deeds of trust encumbering
Landlord's interest in the Premises, Building, and Project, or to any
other party reasonably designated by Landlord as an additional insured, as
their interests shall appear. All insurance premiums for Landlord's
insurance shall be included in Common Operating Costs.
SECTION XV. INDEMNITY
A. Tenant
Subject to the provisions of subparagraph C below, Tenant agrees to
indemnify, defend and hold Landlord and its officers, directors, partners
and employees entirely harmless from and against all liabilities, losses,
demands, actions, expenses or claims, including reasonable attorneys' fees
and court costs, for injury to or death of any person or for damages to
any property or for violation of law to the extent such liabilities,
losses, demands, actions, expenses or claims, including reasonable
attorneys' fees and court costs are arising out of or in any manner
connected with (i) the use, occupancy or enjoyment of the Premises,
Building and Project by Tenant or Tenant's agents, employees, or
contractors (the "Tenant's
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Agents") or any work, activity or other things allowed or suffered by
Tenant or Tenant's Agents to be done in or about the Premises, Building
and Project (ii) any breach or default in the performance of any
obligation of Tenant under this Lease and (iii) any negligent or otherwise
tortious act or failure to act by Tenant or Tenant's Agents on or about
the Premises, Building or Project. Notwithstanding the foregoing, Tenant
shall be responsible for actual damages only and shall not be responsible
for consequential damages.
B. Landlord
Subject to the provisions of subparagraph C below, Landlord agrees to
indemnify, defend and hold Tenant and its officers, directors, partners
and employees entirely harmless from and against all liabilities, losses,
demands, actions, expenses or claims, including attorneys' fees and court
costs but excluding consequential damages, for injury to or death of any
person or for damage to any property to the extent such are
determined to be caused by the negligence or willful misconduct of
Landlord, its agents, employees, or contractors on or about the Premises,
Building, or Project. None of the events or conditions set forth in this
paragraph shall be deemed a constructive or actual eviction or entitle
Tenant to any abatement or reduction of rent.
C. Limitation on Recovery for Property Damage
Notwithstanding the provisions of subparagraphs A and B above, neither
Landlord nor Tenant shall be liable to the other for any damage to the
property of the other caused by fire, casualty or the actions of Landlord,
Tenant or their employees, agents and contractors except to the extent
such property damage is (a) not covered by the damaged party's insurance
required to be maintained under the terms of this Lease (or if such
insurance is not in effect as required, the amount of such damage which
would not have been covered had the such insurance been in effect as
required); (b) caused by the intentional actions of Landlord or Tenant;
or (c) are caused by Tenant's installation or removal of alterations or
trade fixtures as provided in the Lease. In connection with the foregoing
waiver of claims, Landlord and Tenant hereby waive any rights of
subrogation arising under their respective property insurance policies.
D. Limitation on Landlord's Liability; Release of Trustees, officers and
Partners of Landlord
Tenant agrees that in the event Tenant obtains a judgment or decree
against Landlord arising out of the subject matter of this Lease which
requires the payment of money by Landlord, Tenant's sole recourse for the
satisfaction thereof shall be to (a) proceed against Landlord's interest
in the Building or any proceeds therefrom or (b) offset the amount due
under such judgment or decree against the sums due to Landlord hereunder
and no other property or assets of Landlord, its successors or assigns,
shall be subject to the levy, execution or other enforcement procedure for
the satisfaction of any such judgment or decree. Tenant further hereby
waives any and all right to assert any claim against or obtain any damages
from, for any reason whatsoever, the trustees, directors, officers and
partners of Landlord including all injuries, damages or losses to Tenant's
property, real and personal, whether known, unknown, foreseen, unforeseen,
patent or latent, which Tenant may have against Landlord or its directors,
officers or partners. Tenant understands and acknowledges the significance
and consequence of such specific waiver.
Landlord shall not be liable or responsible to Tenant for any loss or
damage to any property or person occasioned by theft, fire, act of God,
public enemy, injunction, riot, strike, insurrection, war,
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court order, requisition, or order of governmental body or authority.
SECTION XVI. ASSIGNMENT AND SUBLETTING BY TENANT
A. Tenant shall not directly or indirectly, voluntarily or by operation of
law, sell, assign, encumber, pledge or otherwise transfer or hypothecate
all or any part of the Premises or Tenant's leasehold estate hereunder
(collectively an "Assignment"), or permit the Premises to be occupied by
anyone other than Tenant or sublet the Premises or any portion thereof
(collectively a "Sublease") without Landlord's prior written consent,
which shall not be unreasonably withheld, being obtained in each instance,
subject to the terms and conditions contained in this Section.
B. If Tenant desires at any time to enter into an Assignment or Sublease of
the Premises or any portion thereof, Tenant shall, at least fifteen (15)
days prior to the effective date of the Assignment or Sublease, request in
writing Landlord's consent to the Assignment or Sublease and provide the
following:
(1) The name of the proposed assignee, sub-tenant or occupant;
(2) The nature of the proposed assignee's, subtenant's or occupant's
business to be carried on in the Premises;
(3) A copy of the proposed Assignment or Sublease; and
(4) Such financial information concerning the proposed assignee,
subtenant or occupant and other reasonable information regarding the
transaction which Landlord shall have requested following its
receipt of Tenant's request for consent.
C. At any time within fifteen (15) days after Landlord's receipt of the
notice specified above, Landlord may by written notice to Tenant elect
either to (a) consent to the proposed Assignment or Sublease, (b) refuse
to consent to the proposed Assignment or Sublease or (c) terminate this
Lease in full with respect to an Assignment or terminate in whole or in
part with respect to a Sublease and enter into a lease directly with the
proposed assignee or sublessee. In this regard, Landlord and Tenant agree
(by way of example and without limitation) that it shall be reasonable for
Landlord to withhold its consent if any of the following situations exist
or may exist:
(1) The proposed transferee's use of the Premises conflicts with the
Permitted Use under this Lease or is a type of use that is not
desirable or compatible with other uses of the Building or Project;
(2) In Landlord's reasonable business judgment, the proposed assignee,
sublessee or occupant lacks sufficient business reputation or
experience to operate a successful business of the type and quality
permitted under this Lease;
(3) Tenant is in default pursuant to this Lease or an event has occurred
which, with the passage of time and/or the giving of notice, would
constitute an event of default hereunder;
(4) (Intentionally Deleted)
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D. If Landlord consents to the Sublease or Assignment within said fifteen
(15) day period, Tenant may enter into such Assignment or Sublease of the
Premises or portion thereof, but only upon the terms and conditions set
forth in the notice furnished by Tenant to Landlord pursuant to Subsection
B. above; provided, however, that in connection with such Assignment or
Sublease, as a condition to Landlord's consent, Tenant shall pay to
Landlord one hundred percent (100%) of the excess net of actual
transaction costs (e.g., commissions) and net of any amounts paid to
Tenant by subtenant or assignee for furniture or equipment sold to said
subtenant or assignee, if any, of (i) in the case of an Assignment, the
rental and other payment obligations of the proposed assignee under the
terms of the proposed Assignment over the rental and other payment
obligations of Tenant under the terms of this Lease, or (ii) in the case
of a Sublease, the amount proposed to be paid by the sublessee over the
proportionate amount of rental and other payment obligations required to
be paid by Tenant to Landlord under the terms of this Lease as applicable
to the portion of the Premises so subleased.
E. No consent by Landlord to any Assignment or Sublease by Tenant shall
relieve Tenant of any obligation to be performed by Tenant under this
Lease, whether arising before or after the Assignment or Sublease. The
consent by Landlord to any Assignment or Sublease shall not relieve Tenant
of the obligation to obtain Landlord's express written consent to any
other Assignment or Sublease. Any Assignment or Sublease that is not in
compliance with this Section shall be void and, at the option of Landlord,
shall constitute a material default by Tenant under this Lease. The
acceptance of rent or payment of any other monetary obligation by Landlord
from a proposed assignee or sublessee shall not constitute the consent by
Landlord to such Assignment or Sublease. Tenant shall promptly provide to
Landlord a copy of the fully executed Sublease or Assignment.
F.
(1) For the purposes of the Lease, the term Assignment" shall also
include any of the following transactions if such transaction is
entered into principally for the purpose of transferring the
leasehold estate created hereby: (i) if Tenant is a partnership, the
transfer of a majority of partnership interests to other than,
existing partners or to their immediate family members; (ii) if
Tenant is a limited liability company, the transfer of a majority of
the membership interests to other than existing members or to their
immediate family members; (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 sale or transfer of
more than an aggregate of 50% of the voting shares of Tenant to
other than existing shareholders or to their immediate family
members.
(2) Notwithstanding anything to the contrary contained in this Section
XVI, Landlord's consent shall not be required for an Assignment or
Sublease to an Affiliate, as long as Tenant gives notice to Landlord
of the Assignment or Sublease and, if an Assignment (other than as
described in Section XVIF(l)
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hereof), such assignee assumes the obligations of Tenant under this
Lease. As used herein, "Affiliate" shall mean any natural person,
corporation, partnership or limited liability company which, either
directly or with others; (i) then controls the original Tenant under
this Lease, (ii) is then controlled by the original Tenant under
this Lease, or (iii) is then controlled by a person or an entity
described in (1). The term "control" as used in this Section XVIF2
means the power to directly or indirectly direct or cause the
direction of the management or policies of Tenant.
(3) Notwithstanding anything to the contrary contained in this Section
XVI, Landlord's consent shall not be required in connection with an
Assignment or Sublease made in connection with: (i) a reorganization
in which beneficial ownership of a controlling interest in Tenant
remains in the shareholders of Tenant at the execution of this
Lease, (ii) a reincorporation or recapitalization of Tenant, (iii) a
merger or consolidation of any entity with or into Tenant, or (iv) a
sale of all or substantially all of the assets of Tenant or of the
division of Tenant located at the Premises, provided that in the
case of any such Transfer pursuant to clauses (iii) or (iv) above,
(x) Tenant gives Landlord at least ten (10) days' prior notice of
such transfer and (y) the successor to Tenant pursuant to such
Transfer has a net worth immediately following such Transfer that is
not less than ten (10) times the then annual rent obligations under
this lease.
G. Each assignee or other transferee, other than Landlord, shall assume, as
provided in this Subsection, all obligations of Tenant under this Lease
and shall be and remain liable jointly and severally with Tenant for the
payment of Monthly Rental and all other monetary obligations hereunder,
and for the performance of all the terms, covenants, conditions and
agreements herein contained on Tenant's part to be performed for the
remainder of the Term. No Assignment or Sublease shall be binding on
Landlord unless the assignee, sublessee or Tenant shall deliver to
Landlord a counterpart of the Assignment or Sublease . In connection with
an Assignment, Tenant or the assignee shall deliver an instrument
(acceptable in form and substance to Landlord and in recordable form,
whereby the assignee assumes all of the terms, covenants, conditions and
agreements of the Lease. However the failure or refusal of the assignee to
execute such instrument of assumption shall not release or discharge the
assignee from its liability as set forth above. In connection with a
Sublease, Tenant or the sublessee shall deliver to Landlord an instrument
(acceptable in form and substance to Landlord and in recordable form)
agreeing that sublessee shall be bound by all of the terms and conditions
of the Lease, other than those pertaining to rent, applicable to the
subleased space and that sublessee shall, at Landlord's sole option,
attorn to Landlord as lessor under the Sublessee if this Lease is
terminated for any reason and Landlord chooses to keep the Sublease in
effect.
H. If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et. seq., (the
"Bankruptcy Code"), any and all monies or other consideration payable or
otherwise to be delivered in connection with such assignment shall be paid
or delivered to Landlord, shall be and remain the exclusive property of
Landlord and shall not constitute property of Tenant or of the estate of
Tenant within the meaning of the Bankruptcy Code. Any and all monies or
other considerations constituting Landlord's property under the preceding
sentence not paid or delivered to Landlord shall be held in trust for the
benefit of Landlord and be promptly paid or delivered to Landlord.
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I. any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code, shall be deemed, without further act or
deed, to have assumed all of the obligations arising under this Lease on
and after the date of such assignment. Any such assignee shall upon demand
execute and deliver to Landlord an instrument confirming such assumption.
J. Tenant shall pay Landlord's reasonable expenses and attorneys' fees
incurred in processing an Assignment or Sublease, but in no event more
than Five Hundred Dollars ($500.00), for each such proposed transfer to
cover the legal review and administrative expenses of Landlord, whether or
not Landlord shall grant its consent to such proposed transfers.
SECTION XVII. TRANSFER OF LANDLORD'S INTEREST
In the event Landlord shall sell or otherwise convey its title to the Building,
then, after the effective date of such sale or conveyance Landlord shall have no
further liability under this Lease to Tenant except as to matters of liability
which have accrued and are unsatisfied as of the date of sale or conveyance, and
Tenant shall seek performance solely from Landlord's purchaser or successor in
title. In connection with such sale or transfer, Landlord may assign its
interest under this Lease without notice to or consent by Tenant. In such event,
Tenant agrees to be bound to any successor Landlord.
SECTION XVIII. DAMAGE AND DESTRUCTION
A. Minor Insured Damage
In the event the Premises or the Building, or any portion thereof, is
damaged or destroyed by any casualty that is covered by the insurance
maintained by Landlord pursuant to Section XIV. above, then Landlord shall
rebuild, repair and restore the damaged portion thereof, provided that (1)
the amount of insurance proceeds available to Landlord equals or exceeds
the cost of such rebuilding, restoration and repair, (2) such rebuilding,
restoration and repair can be completed within one hundred eighty (180)
days after the work commences in the opinion of a registered architect or
engineer appointed by Landlord, (3) the damage or destruction has occurred
more than twelve (12) months before the expiration of the Term and (4)
such rebuilding, restoration, or repair is then permitted, under
applicable governmental laws, rules and regulations, to be done in such a
manner as to return the damaged portion thereof to substantially its
condition immediately prior to the damage or destruction, including,
without limitation, the same net rentable floor area. To the extent that
insurance proceeds must be paid to a mortgagee or beneficiary under, or
must be applied to reduce any indebtedness secured by, a mortgage or deed
of trust encumbering the Premises, Building or Project, such proceeds, for
the purposes of this Subsection shall be deemed not available to Landlord
unless such mortgagee or beneficiary permits Landlord to use such proceeds
for the rebuilding, restoration, and repair of the damaged portion
thereof. Notwithstanding the foregoing, Landlord shall have no obligation
to repair any damage to, or to replace any of, Tenant's personal property,
furnishings, trade fixtures, equipment or other such property or effects
of Tenant.
B. Major or Uninsured Damage
In the event the Premises or the Building, or any portion thereof, is
damaged or destroyed by any casualty to the extent that Landlord is not
obligated, under Subsection A. above, to rebuild, repair or restore the
damaged portion thereof, then Landlord shall within sixty (60) days after
such damage or destruction, notify Tenant of its election, at its option,
to either (1) rebuild, restore and repair the damaged portions thereof, in
which case Landlord's notice
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shall specify the time period within which Landlord estimates such repairs
or restoration can be completed; or (2) terminate this Lease effective as
of the date the damage or destruction occurred. If Landlord does not give
Tenant written notice within ninety (90) days after the damage or
destruction occurs of its election to rebuild or restore and repair the
damaged portions thereof, Landlord shall be deemed to have elected to
terminate this Lease. Notwithstanding the foregoing, if Landlord does not
elect to terminate this Lease, Tenant may terminate this Lease if either
(i) Landlord notifies Tenant that such repair or restoration cannot be
completed within three hundred and sixty-five (365) days after the work is
commenced or (ii) the damage or destruction occurs within the last twelve
(12) months of the Term, unless Tenant's actions or omissions are the
cause of the damage. If Tenant has the right to terminate the Lease in
accordance with the above provisions, Tenant may so elect by written
notice to Landlord which must be given within fifteen (15) days after
Tenant's receipt of Landlord's notice of its election to rebuild. Upon
Landlord's receipt of such notice, the termination shall be effective as
of the date the destruction occurred.
C. Abatement of Rent
There shall be an abatement of rent by reason of damage to or destruction
of the Premises or the Building, or any portion thereof, to the extent
that either (i) Landlord received insurance proceeds for loss of rental
income attributable to the Premises or (ii) the floor area of the Premises
cannot be reasonably used by Tenant for conduct of its business, in which
event the Monthly Rental shall xxxxx proportionately according to (i) or
(ii) above, as appropriate, commencing on the date that the damage to or
destruction of the Premises or Building has occurred, and except that, if
Landlord or Tenant elects to terminate this Lease as provided in
Subsection B. above, no obligation shall accrue under this Lease after
such termination. Notwithstanding the provisions of this Section, if any
such damage is due to the fault or neglect of Tenant, any person claiming
through or under Tenant, or any of their employees, suppliers, shippers,
servants, customers or invitees, then there shall be no abatement of rent
by reason of such damage, unless and until Landlord is reimbursed for such
abatement pursuant to any rental insurance policy that Landlord may, in
its sole discretion, elect to carry. Tenant's right to terminate this
Lease in the event of any damage or destruction to the Premises or
Building, is governed by the terms of this Section and therefore Tenant
hereby expressly waives the provisions of any and all laws, whether now or
hereafter in force, and whether created by ordinance, statute, judicial
decision, administrative rules or regulations, or otherwise, that would
cause this Lease to be terminated, or give Tenant a right to terminate
this Lease, upon any damage to or destruction of the Premises or Building
that occurs.
SECTION XIX. CONDEMNATION
A. Total or Partial Taking
If all or substantially all of the Premises is permanently condemned or
taken in any manner for public or quasi-public use, including but not
limited to, a conveyance or assignment in lieu of the condemnation or
taking, this Lease shall automatically terminate as of the earlier of the
date on which actual physical possession is taken by the condemnor or the
date of dispossession of Tenant as a result of such condemnation or other
taking. If less than all or substantially all of the Premises is so
condemned or taken, this Lease shall automatically terminate only as to
the portion of the Premises so taken as of the earlier of the date on
which actual physical possession is taken by the condemnor or the date of
dispossession of Tenant as a result of such condemnation or taking. If
such portion of the Building is condemned or otherwise taken so as to
require, in the opinion of Landlord, a substantial alteration
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or reconstruction of the remaining portions thereof, this Lease may be
terminated by Landlord, as of the date on which actual physical possession
is taken by the condemnor or dispossession of Tenant as a result of such
condemnation or taking, by written notice to Tenant within sixty (60) days
following notice to Landlord of the date on which such physical possession
is taken or dispossession will occur.
B. Award
Landlord shall be entitled to the entire award in any condemnation
proceeding or other proceeding for taking the Premises, Building or
Project for public or quasi-public use, including, without limitation, any
award made for the value of the leasehold estate created by this Lease. No
award for any partial or total taking shall be apportioned, and Tenant
hereby assigns to Landlord any award that may be made in such proceeding
for condemnation or other taking, together with any and all rights of
Tenant now or hereafter arising in or to the same or any part thereof.
Although all damages in the event of any condemnation shall belong to
Landlord whether such damages are awarded as compensation for diminution
in value of the leasehold or to the Landlord's fee , Tenant shall have the
right to claim and recover from the condemnor, but not from Landlord, such
compensation as may be separately awarded or recoverable by Tenant in
Tenant's own right on account of the interruption of or damage to Tenant's
business by reason of the condemnation and for or on account of any cost
or loss to which Tenant might incur in removing Tenant's merchandise,
furniture and other personal property, fixtures, and equipment from the
Premises.
C. Abatement in Rent
In the event of a partial condemnation or other taking that does not
result in a termination of this Lease as to the entire Premises pursuant
to this Section, the rent and all other charges under this Lease shall
xxxxx in proportion to the portion of the Premises taken by such
condemnation or other taking. If this Lease is terminated, in whole or in
part, pursuant to any of the provisions of this Section, all rentals and
other charges payable by Tenant to Landlord hereunder and attributable to
the Premises taken shall be paid up to the date upon which actual physical
possession shall be taken by the condemnor. Landlord shall be entitled to
retain all of the Security Deposit until such time as this Lease is
terminated as to all of the Premises.
D. Temporary Taking
If all or any portion of the Premises is temporarily condemned or
otherwise taken for public or quasi-public use for a limited period of
time, this Lease shall remain in full force and effect and Tenant shall
continue to perform all terms, conditions and covenants of this Lease;
provided, however, the rent and all other charges payable by Tenant to
Landlord hereunder shall xxxxx during such limited period in proportion to
the portion of the Premises that is rendered untenable and unusable as a
result of such condemnation or other taking. Landlord shall be entitled to
receive the entire award made in connection with any such temporary
condemnation or other taking. Tenant shall have the right to claim and
recover from the condemnor, but not from Landlord, such compensation as
may be separately awarded or recoverable by Tenant in Tenant's own right
on account of damages to Tenant's business by reason of the condemnation
and for or on account of any cost or loss to which Tenant might be put in
removing Tenant's merchandise, furniture and other personal property,
fixtures, and equipment or for the interruption of or damage to Tenant's
business.
E. Transfer of Landlord's Interest to Condemnor
Landlord may, without any obligation or liability to Tenant, agree to sell
and/or convey to the condemnor the Premises, the Building,
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the Project or any portion thereof, sought by the condemnor, free from
this Lease and the rights of Tenant hereunder, without first requiring
that any action or proceeding be instituted or, if instituted, pursued to
a judgment. In such event, this Lease shall be deemed terminated effective
on the date of such transfer.
SECTION XX. DEFAULT
A. Tenant's Default
The occurrence of any of the following events shall constitute a default
hereunder by Tenant:
(1) (Intentionally Deleted)
(2) If Tenant fails to pay any rent or other charges required to be paid
by Tenant under this Lease and such failure continues for five (5)
days after such payment is due and payable; provided, however, that
the obligation of Tenant to pay a late charge or interest pursuant
to this Lease shall commence as of the due date of the rent or such
other monetary obligation and not on the expiration of such five (5)
day grace period;
(3) If Tenant involuntarily transfers Tenant's interest in this Lease or
voluntarily attempts to or actually transfers its interest in this
Lease, without Landlord's prior written consent;
(4) If Tenant files a voluntary petition for relief, or if an
involuntary petition against Tenant, is filed in a proceeding under
the United States Bankruptcy Code or other federal or state
insolvency laws and is not withdrawn or dismissed within forty-five
(45) days thereafter; or if under the provisions of any law
providing for reorganization or winding up of corporations, any
court of competent jurisdiction assumes jurisdiction, custody or
control of Tenant or any substantial part of the Premises or any of
Tenant's personal property located at the Premises and such
jurisdiction, custody or control remains in force unrelinquished,
unstayed or unterminated for a period of forty-five (45) days;
(5) If in any proceeding or action in which Tenant is a party, a
trustee, a receiver, agent or custodian is appointed to take charge
of the Premises or any of Tenant's personal property located at the
Premises (or has the authority to do so) for the purpose of
enforcing a lien against the Premises or Tenant's personal property;
(6) If Tenant shall make any general assignment for the benefit of
creditors or convene a meeting of its creditors or any class thereof
for the purpose of effecting a moratorium upon or composition of its
debts, or any class thereof;
(7) If Tenant fails to discharge any lien placed as a result of Tenant's
action or inaction upon the Premises, the Building or the Project
within thirty (30) days after the imposition of such lien;
(8) If Tenant is a partnership or consists of more than one (1) person
or entity, if any partner of the partnership or other person or
entity is involved in any of the acts or events described in
subparagraphs (1) through (8) above;
(9) If Tenant fails to promptly and fully perform any other covenant,
condition or agreement contained in this Lease (other than as
provided in subparagraphs (1) through (8) above) and such failure
continues for thirty (30)
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days after written notice thereof from Landlord to Tenant, or if
such failure cannot be completely cured within such thirty (30) day
period, then if Tenant fails to commence such cure within such
thirty (30) day period and thereafter proceed to completely cure
such failure within thirty (30) days after such written notice.
B. Remedies
Upon the occurrence of a default by Tenant that is not cured by Tenant
within any applicable grace period specified above, Landlord shall have
the following rights and remedies in addition to all other rights and
remedies available to Landlord at law or in equity, which shall be
cumulative and non-exclusive:
(1) The right to declare this Lease and the term of this Lease
terminated; to re-enter the Premises and the improvements located
thereon, with or without process of law; to eject all parties in
possession thereof therefrom; to repossess and enjoy the Premises
together with all said improvements; and to recover from Tenant all
of the following:
(a) The worth at the time of award of the unpaid rent which had
been earned at the time of termination;
(b) The worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination
until the time of award exceeds the amount of such rental loss
that Tenant proves could have been reasonably avoided;
(c) The worth at the time of award of the amount by which the
unpaid rent for the balance of the Term after the time of
award exceeds the amount of rental loss that Tenant proves
could be reasonably avoided; and
(d) Any other amount necessary to compensate Landlord for all the
actual (not consequential) detriment proximately caused by
Tenant's failure to perform its obligations under this Lease
or which in the ordinary course of things would be likely to
result therefrom, including, but not limited to, any
attorneys' fees, broker's commissions or finder's fees (not
only in connection with the reletting of the Premises, but
also that portion of any leasing commission paid by Landlord
in connection with this Lease which is applicable to that
portion of the Lease Term which is unexpired as of the date on
which this Lease is terminated); any costs for repairs,
clean-up, refurbishing, removal (including the repair of any
damage caused by such removal) and storage (or disposal) of
Tenant's personal property, equipment, fixtures, and anything
else that Tenant is required (under this Lease) to remove but
does not remove; any costs for alterations, additions and
renovations; and any other costs and expenses, including
reasonable attorney's fees and costs incurred by Landlord in
regaining possession of and reletting (or attempting to relet)
the Premises.
(2) The right to continue this Lease in effect and to enforce all of
Landlord's rights and remedies under this Lease, including the right
to recover rent and any other additional monetary charges as they
become due, for as long as Landlord does not terminate Tenant's
right to possession. Acts of maintenance or preservation, efforts to
relet the Premises or the appointment of a receiver upon Landlord's
initiative to protect its interest under this Lease shall not
constitute a termination of Tenant's right to possession.
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(3) The right: to re-enter the Premises; to eject therefrom all parties
in possession thereof; at any time and from time to time, but
without obligation to do so, to relet the Premises and the
improvements located therein or any part or parts thereof for the
account of Tenant, or otherwise, and to receive and collect the
rents therefor, and apply the same (i) first to the payment of the
following costs and expenses which Landlord may have paid, assumed
or incurred: (a) costs in recovering possession of the Premises and
said improvements, including attorneys' fees, and costs; (b)
expenses for placing the Premises and said improvements in good
order and condition, for decorating and preparing the Premises for
reletting; (c) costs in making any alterations, repairs, changes or
additions to the Premises that may be necessary or convenient; (d)
all other costs and expenses, including leasing and subleasing
commissions, and charges paid, assumed or incurred by Landlord in or
upon reletting the Premises and said improvements, or in fulfillment
of the covenants of Tenant under this Lease; and (ii) then to the
payment of Monthly Rental, Tenant's Proportionate Share of Common
Operating Costs, and other monetary obligations due and unpaid
hereunder. Any such reletting may be for the remainder of the term
of this Lease or for a longer or shorter period in Landlord's sole
and absolute discretion. Landlord may execute any lease or sublease
made pursuant to the terms of this subparagraph either in its own
name or in the name of Tenant as its agent, as Landlord may see fit.
The tenant(s) or subtenant(s) thereunder shall be under no
obligation whatsoever with regard to the application by Landlord of
any rent collected by Landlord from such tenant or subtenant to any
and all sums due and owing or which may become due and owing under
the provisions of this Lease, nor shall Tenant have any right or
authority whatever to collect any rent whatever from such tenant(s)
or subtenant(s). If Tenant has been credited with any rent received
by such reletting and such rent shall not be promptly paid to
Landlord by the tenant(s) or subtenant(s), or if such rentals
received from reletting during any month are less than those to be
paid during that month by Tenant hereunder, Tenant shall pay any
such deficiency to Landlord. Such deficiency shall be calculated and
paid monthly. For all purposes set forth in this subsection,
Landlord is hereby irrevocably appointed as agent for Tenant. No
taking possession of the Premises by Landlord shall be construed as
Landlord's acceptance of a surrender of the Premises by Tenant or an
election of Landlord's part to terminate this Lease unless written
notice of such intention is given to Tenant. Notwithstanding any
such leasing or subletting without termination of this Lease,
Landlord may at any time thereafter elect to terminate this Lease
for Tenant's previous breach.
(4) The right to have a receiver appointed for Tenant, upon application
by Landlord, to take possession of the Premises and to apply any
rental collected from the Premises and exercise all other rights and
remedies granted to Landlord pursuant to this Section.
SECTION XXI. LATE PAYMENTS/INTEREST AND LATE CHARGES
A. Interest
Any amount due from Tenant to Landlord which is not paid when due shall
bear interest at twelve percent (12%) annually from the date such payment
is due until paid, except that amounts spent by Landlord on behalf of
Tenant as provided in this Lease shall bear interest at such rate from the
date of disbursement by Landlord which Tenant agrees is to compensate
Landlord for Tenant's use of Landlord's money after it is due. Payment of
such interest shall
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not excuse or cure any default by Tenant pursuant to this Lease. Such rate
shall remain in effect after the occurrence of any breach or default
hereunder by Tenant to and until payment of the entire amount due.
B. Late Charges
Tenant hereby acknowledges that in addition to lost interest, the late
payment by Tenant to Landlord of rent or any other sums due hereunder will
cause Landlord to incur other costs not contemplated in this Lease, the
exact amount of which will be extremely difficult and impracticable to
ascertain. Such other costs include, but are not limited to processing,
administrative and accounting costs. Accordingly, if any installment of
rent or any additional rent or other sum due from Tenant shall not be
received by Landlord when such amount shall be due (without regard to any
grace period prior to default granted in this Lease), Tenant shall pay to
Landlord as additional rent hereunder a late charge equal to ten percent
(10%) of such overdue amount. The parties hereby agree that (i) such late
charge represents a fair and reasonable estimate of the costs Landlord
will incur in processing such past-due payment by Tenant, (ii) such late
charge shall be paid to Landlord as liquidated damages for each delinquent
payment, and (iii) the payment of the late charge is to compensate
Landlord for the additional administrative expense incurred by Landlord in
handling and processing delinquent payments. Notwithstanding the above, no
late charge or interest on past due amounts will be charged if there have
been fewer than two (2) incidences of late payment within the last twelve
(12) months and not more than five (5) incidences of late payments since
the beginning of the lease.
C. Consecutive Late Payment of Rent (Intentionally Deleted)
D. No Waiver
Neither assessment nor acceptance of partial payments, interest or late
charges by Landlord shall constitute a waiver of Tenant's default with
respect to such overdue amount, nor prevent Landlord from exercising any
of its other rights and remedies under this Lease. Nothing contained in
this Section shall be deemed to condone, authorize, sanction or grant to
Tenant an option for the late payment of rent, additional rent or other
sums due hereunder, and Tenant shall be deemed in default with regard to
any such payments should the same not be made by the date on which they
are due.
SECTION XXII. LIEN FOR RENT (Intentionally Deleted)
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SECTION XXIII. HOLDING OVER
Any holding over by Tenant in the possession of the Premises, or any portion
thereof, after the expiration of the Term, with or without the consent of
Landlord, shall require Tenant to pay one hundred fifty percent (150%) of the
Monthly Rental herein specified for the last month in the Term (prorated on a
monthly basis), unless Landlord shall specify a lesser amount for rent in its
sole discretion, together with an amount estimated by Landlord for the monthly
Common Operating Costs payable under this Lease. If Tenant holds over with
Landlord's consent, such occupancy shall be deemed a month to month tenancy and
such tenancy shall otherwise be on the terms and conditions herein specified in
this Lease as far as applicable. Notwithstanding the foregoing provisions or the
acceptance by Landlord of any payment by Tenant, any holding over without
Landlord's consent shall constitute a default by Tenant and shall entitle
Landlord to pursue all remedies provided in this Lease and Tenant shall be
liable for any and all direct or consequential damages or losses of Landlord
resulting from Tenant's holding over without Landlord's consent.
SECTION XXIV. ATTORNEYS' FEES
The losing party shall pay to the prevailing party all reasonable costs and
expenses, including, but not limited to, reasonable attorneys' fees and amounts
paid to any collection agency, incurred by the prevailing party in connection
with any breach or default by the losing party under this Lease or incurred in
order to enforce or interpret the terms or provisions of this Lease. Such
amounts shall be payable immediately upon demand. In addition, if any action
shall be instituted by either Landlord or Tenant for the enforcement or
interpretation of any of its rights or remedies in or under this Lease, the
prevailing party shall be entitled to recover from the losing party all costs
incurred by the prevailing party in said action and any appeal therefrom,
including reasonable attorneys' fees and court costs to be fixed by the court
therein. In the event Landlord is made a party to any litigation between Tenant
and any third party, then Tenant shall reimburse Landlord for all costs and
attorneys' fees incurred by or imposed upon Landlord in connection with such
litigation unless Landlord is ultimately held to be liable.
SECTION XXV. MORTGAGEE PROTECTION
A. Subordination; Nondisturbance
The rights of Tenant under this Lease are and shall be, at the option of
Landlord or the mortgagee, beneficiary or master or ground lessor under
the following instruments, either subordinate or superior to any mortgage
or deed of trust (including a consolidated mortgage or deed of trust)
constituting a lien on the Premises,
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Building or Project, or on any part thereof or Landlord's interest therein
and to any ground or master lease if Landlord's title to the Premises or
any part thereof is or shall become a leasehold interest, whether such
mortgage, deed of trust, ground or master lease is placed on the Premises,
Building or Project before or after the date of this Lease; provided
however that notwithstanding any such subordination, Tenant's right to
occupy the Premises pursuant to this Lease shall remain in effect for the
full Term as long as Tenant is not in default hereunder. To further assure
the foregoing subordination or superiority, Tenant shall, upon Landlord's
request, together with the request of any mortgagee under a mortgage or
beneficiary under a deed of trust or ground or master lessor, execute any
instrument (including without limitation an amendment to this Lease that
does not materially and adversely affect Tenant's rights or duties under
this Lease), or instruments intended to subordinate this Lease (subject to
Tenant's non-disturbance rights, or at the option of Landlord, to make it
superior to any mortgage, deed of trust, or ground or master lease.
B. Attornment
Notwithstanding and in addition to the provisions of Subsection A. above,
Tenant agrees (1) to attorn to any mortgagee of a mortgage or beneficiary
of a deed of trust encumbering the Premises and to any party acquiring
title to the Premises by judicial foreclosure, trustee's sale, or deed in
lieu of foreclosure, and to any ground or master lessor, as the successor
to Landlord hereunder and (2) to execute any attornment agreement
evidencing such attornment requested by a mortgagee, beneficiary, ground
or master lessor, or party making a loan secured by the Premises, Building
or Project or so acquiring title to the Premises, and (3) that this Lease
shall remain in force notwithstanding any such judicial foreclosure,
trustee's sale, deed in lieu of foreclosure, or merger of titles.
Notwithstanding the foregoing, neither a mortgagee of a mortgage or
beneficiary of a deed of trust encumbering the Premises, any party
acquiring title to the Premises by judicial foreclosure, trustee sale, or
deed in lieu of foreclosure, or any ground lessor or master lessor, as the
successor to Landlord hereunder, shall be liable or responsible for any
breach of a covenant contained in this Lease that occurred before such
party acquired its interest in the Premises or for any continuing breach
thereof until after the successor Landlord has received the notice and
right to cure as provided herein, and no such party shall be liable or
responsible for any security deposits held by Landlord hereunder which
have not been transferred or actually received by such party, and such
party shall not be bound by any payment of rent or additional rent for
more than two (2) months in advance.
SECTION XXVI. ESTOPPEL CERTIFICATE/FINANCIAL STATEMENTS
A. Estoppel Certificate
Tenant, at any time and from time to time upon not less than ten (10) days
prior written notice from Landlord, agrees to execute and deliver to
Landlord a statement in the form provided by Landlord (a) certifying 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 and the date to which the rent
and other charges are paid in advance, if any; (b) acknowledging that
there are not, to Tenant's knowledge, any uncured defaults on the part of
Landlord hereunder, or specifying such defaults if they are claimed
evidencing the status of this Lease; (c) acknowledging the amount of the
Security Deposit held by Landlord; and (d) containing such other
information regarding this Lease or Tenant as Landlord reasonably
requests. Tenant's failure to deliver an estoppel certificate within such
time shall be conclusive upon Tenant that (i) this Lease is in full force
and effect without modification except as may be represented by
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Landlord, (ii) to Tenant's knowledge there are no uncured defaults in
Landlord's performance, (iii) no rent has been paid in advance except as
set forth in this Lease, and (iv) such other information regarding this
Lease and Tenant set forth therein by Landlord is true and complete.
B. Furnishing of Financial Statements
Landlord has reviewed the financial statements, if any, requested and
received from the Tenant and has relied upon the truth and accuracy
thereof with Tenant's knowledge and representations of the truth and
accuracy of such statements and that said statements accurately and fairly
depict the financial condition of Tenant. Said financial statements are an
inducing factor and consideration for the entering into of this Lease by
Landlord with this particular Tenant. Tenant shall, at any time and from
time to time upon not less than ten (10) days prior written notice from
Landlord, furnish Landlord with (a) Tenant's most recent audited financial
statements, including a balance sheet and income statement, or a document
in which Tenant states that its books are not independently audited, and
(b) unaudited financial statements, including a balance sheet and income
statement, dated within ninety (90) days of the request from Landlord.
SECTION XXVII. PARKING
Landlord agrees to maintain or cause to be maintained an automobile parking area
and to maintain and operate, or cause to be maintained and operated, said
automobile parking area during the Term of this Lease for the benefit and use of
the customers, service suppliers, other invitees and employees of Tenant.
Whenever the words "automobile" or "parking area" are used in this Lease, it is
intended that the same shall include, whether in a surface parking area or a
parking structure, the automobile parking stalls, driveways, loading docks,
truck areas, service drives, entrances and exits and sidewalks, landscaped
areas, pedestrian passageways in conjunction therewith and other areas designed
for parking. Landlord shall keep said automobile parking area in a reasonably
neat, clean and orderly condition, lighted and landscaped, and shall repair any
damage to the facilities thereof, the cost of which shall be included in Common
Operating Costs as defined above. Landlord shall also have the right to
establish such reasonable rules and regulations as may be deemed desirable, at
Landlord's sole discretion, for the proper and efficient operation and
maintenance of said automobile parking area. Such rules and regulations may
include, without limitation, (i) restrictions in the hours during which the
automobile parking area shall be open for use, (ii) the establishment of charges
for parking therein (on either a reserved or unreserved basis, at Landlord's
sole discretion) by tenants of the Building and Project as well as by their
employees, customers and service suppliers, and (iii) the use of parking gates,
cards, permits and other control devices to regulate the use of the parking
areas.
The rights of Tenant and its employees, customers, service suppliers and
invitees to use the automobile parking area shall at all times be subject to (a)
Landlord's right to establish rules and regulations applicable to such use and
to exclude any person therefrom who is not authorized to use same or who
violates such rules and regulations; (b) the rights of Landlord and other
tenants in the Building and Project to use the same in common with Tenant and
its employees, customers, service suppliers and invitees, (c) the availability
of parking spaces in said automobile parking area, and (d) Landlord's right to
change the location and configuration of the parking areas and any assigned
reserved parking spaces as shall be determined at Landlord's sole discretion.
Tenant agrees to limit its use of the Automobile Parking Area to the number and
type of parking spaces specified in the subsection entitled "Tenant Parking
Spaces" in Section I.
Notwithstanding the foregoing, nothing contained herein shall be deemed
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to impose liability upon Landlord for personal injury or theft, for damage to
any motor vehicle, or for loss of property from within any motor vehicle, which
is suffered by Tenant or any of its employees, customers, service suppliers or
other invitees in connection with their use of said automobile parking area.
SECTION XXVIII. SIGNS; NAME OF BUILDING
Tenant shall not have the right to place, construct, or maintain on or about the
Premises, Building or Project, or in any interior portions of the Premises or
Building that may be visible from the exterior of the Building or Common Areas,
any signs, names, insignia, trademark, advertising placard, descriptive material
or any other similar item ("Sign") without Landlord's prior written consent,
which consent may be withheld in Landlord's sole discretion. In the event
Landlord consents to Tenant placing a Sign on or about the Premises, Building or
Project, any such Sign shall be subject to Landlord's approval of the color,
size, style and location of such Sign, and shall conform to any current or
future Sign criteria established by Landlord for the Building or Project. If
Landlord enacts a Sign criteria or revises an existing Sign criteria, after
Tenant has erected a Sign to which Landlord has granted its consent, if Landlord
so elects, Tenant agrees, at Landlord's expense but subject to Landlord's prior
approval of the cost thereof, to make the necessary changes to its Sign in order
to conform the Sign to Landlord's current Sign criteria, as enacted or revised,
provided that such changes shall be limited to the color, size, style and
location of Tenant's Sign and that Tenant shall not be required to change the
content of its Sign. In the event Landlord consents to Tenant's placement of a
Sign on the Building, Tenant shall, at its sole cost, (i) maintain such sign in
first class condition during the Term and (ii) and remove such Sign from the
Building at the end of the Term and restore the Building to the same condition
as before the installation of the Sign, ordinary wear and tear excepted,
including removing any discoloration of the Building caused by the presence of
such sign.
Landlord reserves the right at any time it deems necessary or appropriate to (a)
place Signs at any location on the Building and Project as it deems necessary
and (b) change the name, address or designation of the Building and Project.
SECTION XXIX. QUIET ENJOYMENT
Upon payment by Tenant of the charges herein provided, and upon the observance
and performance of all the covenants, terms and conditions on Tenant's part to
be observed and performed, Tenant shall peaceably and quietly hold and enjoy the
Premises for the Term without hindrance or interruption by Landlord or any other
person or persons lawfully or equitably claiming by, through or under Landlord,
subject, nevertheless, to the terms and conditions of this Lease and any
mortgage and/or deed of trust to which this Lease is subordinate.
SECTION XXX. BROKERS AND AGENTS
Tenant warrants and represents that it has not dealt with any real estate broker
or agent in connection with this Lease or its negotiation except the Broker
identified in Section I. Tenant shall indemnify and hold Landlord harmless from
any cost, expense or liability (including costs of suit and reasonable
attorneys' fees) for any compensation, commission or fees claimed by any other
real estate broker or agent in connection with this Lease or its negotiation by
reason of any act of Tenant. Further, Tenant agrees that Landlord shall not be
responsible for, and Tenant shall indemnify and hold Landlord harmless from and
such liability for compensation, commission or fees claimed by any real estate
broker or agent representing Tenant in connection with any renewal, extension
modification or other matter relating to this Lease.
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SECTION XXXI. NOTICES
Any notice, demand, approval, consent, xxxx, statement or other communication
("Notice") required or desired to be given under this Lease shall be in writing
addressed to Tenant at Tenant's Address for Notice or to Landlord at Landlord's
Address for Notice, above and shall be personally served or given by pre-paid
Certified U.S. Mail, return receipt requested, or "overnight" delivery service
with written receipt. In the case of personal delivery, any Notice shall be
deemed to have been given when delivered; in the case of service by certified
mail, any Notice shall be deemed delivered on the date of receipt or refusal or
non-delivery indicated on the return receipt; and in the case of overnight
delivery service, any Notice shall be deemed given when delivered as evidenced
by a receipt. If more than one Tenant is named under this Lease, service of any
Notice upon any one of said Tenants shall be deemed as service upon all of such
Tenants. The parties hereto and their respective heirs, successors, legal
representatives, and assigns may from time to time change their respective
addresses for Notice by giving at least fifteen (15) days' written notice to the
other party, delivered in compliance with this Section.
SECTION XXXII. NOTICE AND CURE TO LANDLORD AND MORTGAGEE
On any act or omission by Landlord which gives, or which Tenant claims or
intends to claim gives, Tenant the right to recover damages from Landlord or the
right to terminate this Lease by reason of a constructive or actual eviction
from all or part of the Premises, or otherwise, Tenant shall not xxx for damages
or attempt to terminate this Lease until it has given written notice of the act
or omission to Landlord and to the holder(s) of the indebtedness or other
obligations secured by any mortgage or deed of trust affecting the Premises as
identified by Landlord, and a reasonable period of time for remedying the act or
omission has elapsed following the giving of the notice, during which time
Landlord and the lienholder(s), or either of them, their agents or employees,
may enter upon the Premises and do therein whatever is necessary to remedy the
act or omission. During the period after the giving of notice and during the
remedying of the act or omission, the Monthly Rental payable by Tenant shall not
be abated and apportioned except to the extent that the Premises are
untenantable as a direct result of Landlord's breach of its obligations
hereunder.
SECTION XXXIII. GENERAL
A. Paragraph Headings
The paragraph headings used in this Lease are for the purposes of
convenience only. They shall not be construed to limit or to extend the
meaning of any part of this Lease.
B. Incorporation of Prior Agreements; Amendments
This Lease contains all agreements of Landlord and Tenant with respect to
any matter mentioned, or dealt with, herein. No prior agreement or
understanding pertaining to any such matter shall be binding upon
Landlord. Any amendments to or modifications of this Lease shall be in
writing, signed by the parties hereto, and neither Landlord nor Tenant
shall be liable for any oral or implied agreements.
Tenant hereby agrees that Landlord has not made, and Tenant may not rely
on, any representations or warranties, expressed or implied, with regard
to the Project, the Building, the Premises or otherwise, except as stated
in this Lease. In particular, Landlord has not authorized any agent or
broker to make a representation or warranty inconsistent with the terms of
this Lease and Tenant may not rely on any such inconsistent representation
or warranty.
C. Waiver
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Any waiver by Landlord of any breach of any term, covenant, or condition
contained in this Lease shall not be deemed to be a waiver of such term,
covenant, or condition or of any subsequent breach of the same or of any
other term, covenant, or condition contained in this Lease. Landlord's
consent to, or approval of, any act shall not be deemed to render
unnecessary the obtaining of Landlord's consent to, or approval of, any
subsequent act by Tenant. The acceptance of rent or other sums payable
hereunder by Landlord shall not be a waiver of any preceding breach by
Tenant of any provision hereof, other than failure of Tenant to pay the
particular rent or other sum so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of acceptance of such rent,
or sum equivalent to rent.
D. Short Form or Memorandum of Lease
Tenant agrees, at the request of Landlord, to execute, deliver, and
acknowledge a short form or memorandum of this Lease satisfactory to
counsel for Landlord, and Landlord may, in its sole discretion, record
such short form or memorandum in the county where the Premises are
located. Tenant shall not record this Lease, or a short form of this
Lease, without Landlord's prior written consent, and such recordation
shall, at the option of Landlord, constitute a default of Tenant
hereunder.
E. Time of Essence
Time is of the essence in the performance of each provision of this Lease.
F. Examination of Lease
Submission of this instrument for examination or signature by Tenant does
not constitute a reservation of or option for lease, and it is not
effective as a lease or otherwise until execution by and delivery to both
Landlord and Tenant.
G. Severability
If any term or provision of this Lease or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such term or provision
to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law.
H. Surrender of Lease Not Merger
+ Neither the voluntary or other surrender of the Lease by Tenant nor the
mutual cancellation thereof shall cause a merger of the titles of Landlord
and Tenant, but such surrender or cancellation shall, at the option of
Landlord, either terminate all or any existing subleases or operate as an
assignment to Landlord of any such subleases.
I. Corporate Authority
If Tenant is a corporation, each individual executing this Lease on behalf
of Tenant represents and warrants (1) that he is duly authorized to
execute and deliver this Lease on behalf of Tenant in accordance with a
duly adopted resolution of the Board of Directors of Tenant in accordance
with the By-laws of Tenant and (2) that this Lease is binding upon and
enforceable by Landlord against Tenant in accordance with its terms. If
Tenant is a corporation, Tenant shall, within thirty (30) days after
execution of this Lease, deliver to Landlord a certified copy of a
resolution of its Board of Directors authorizing or ratifying the
execution of this Lease.
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J. Governing Law
This Lease and the rights and obligations of the parties hereto shall be
interpreted, construed and enforced in accordance with the local laws of
the State in which the Project is located.
K. Force Majeure
If the performance by Landlord of any provision of this Lease is delayed
or prevented by any act of God, strike, lockout, shortage of material or
labor, restriction by any governmental authority, civil riot, flood, and
any other cause not within the control of Landlord, then the period for
Landlord's performance of the provision shall be automatically extended
for the same time the Landlord is so delayed or hindered.
L. Use of Language
Words of gender used in this Lease include any other gender, and words in
the singular include the plural, unless the context otherwise requires.
M. Successors
The terms, conditions and covenants contained in the Lease inure to the
benefit of and are binding on, the parties hereto and their respective
successors in interest, assigns and legal representatives, except as
otherwise herein expressly provided. All rights, privileges, immunities
and duties of Landlord under this Lease, including without limitation,
notices required or permitted to be delivered by Landlord to Tenant
hereunder, may, at Landlord's option, be exercised or performed by
Landlord's agent or attorney.
N. No Reduction of Rental
Except as otherwise expressly and unequivocally provided in this Lease,
Tenant shall not for any reason withhold or reduce the amounts payable by
Tenant under this Lease, it being understood that the obligations of
Landlord hereunder are independent of Tenant's obligations. If Landlord is
required by governmental authority to reduce energy consumption or impose
a parking or similar charge with respect to the Premises, Building or
Project, to restrict the hours of operation of, limit access to, or reduce
parking spaces available at the Building, or take other limiting actions,
then Tenant is not entitled to abatement or reduction of rent or to
terminate this Lease.
0. No Partnership
Notwithstanding any provision of this Lease or otherwise, Landlord is not,
and under no circumstances shall it be considered to be, a partner of
Tenant, or engaged in a joint venture with Tenant.
P. Exhibits
All exhibits attached hereto are made a part hereof and are incorporated
herein by a reference. A complete list of said exhibits is set forth in
the Table of Contents.
Q. Survival of Indemnities
The obligations of the indemnifying party under each and every
indemnification and hold harmless provision contained in this Lease shall
survive the expiration or earlier termination of this Lease to and until
the last to occur of(a) the last date permitted by law for the bringing of
any claim or action with respect to which indemnification may be claimed
by the indemnified party against the indemnifying party under such
provision or (b) the date on which any claim or action for which
indemnification may be claimed under such
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provision is fully and finally resolved and, if applicable, any compromise
thereof or judgement or award thereon is paid in full by the indemnifying
party and the indemnified party is reimbursed by the indemnifying party
for any amounts paid by the indemnified party in compromise thereof or
upon a judgement or award thereon and in defense of such action or claim,
including reasonable attorneys' fees incurred. Payment shall not be a
condition precedent to recovery upon any indemnification provision
contained herein.
R. References to Default:
All references to default or Default herein shall be interpreted to mean
that all applicable notice or grace periods have expired.
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SECTION XXXIV. EXECUTION
This Lease may be executed in several duplicate counterparts, each of which
shall be deemed an original of this Lease for all purposes.
"TENANT" "LANDLORD"
Pencom Systems, Inc. G&W Investment Partners, a nini
a New York Corporation kumia formed under the laws of
DBA PSW Technologies Japan
By: /s/ Xxxx X. Xxxxx By: Mony Realty Partner, Inc.,
------------------------ -----------------------------
a Delaware Corporation
as its Agent
Name: Xxxx X. Xxxxx Name: /s/Xxxx X. Xxxxxx
---------------------- ---------------------------
Xxxx X. Xxxxxx
Title: President Title: Vice President
--------------------- --------------------------
/s/Xxxxxxx X. Xxxxxxx /s/Xxxxxxxxx Xxxxx Xxxxx
[Stamp]
XXXXXXX X. XXXXXXX Xxxxxxxxx Xxxxx Xxxxx
Notary Public State of New York Notary Public
No. 00-0000000 State of Colorado
Qualified in Richmond County My Commission Expires 10-08-1996
Commission Expires March 30,1998
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EXHIBIT "A"
[SITE PLAN FOR THE PROJECT]
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EXHIBIT "B"
[FLOOR PLAN OF THE PREMISES]
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EXHIBIT "C"
CONSTRUCTION WORK LETTER
Landlord shall be responsible for the construction of all tenant improvements to
be installed in the Premises prior to the Lease Commencement Date ("Landlord's
Work") in accordance with the following provisions. Landlord's Work shall
include those items shown on the space plan attached to this exhibit as Exhibit
"B" ("Space Plan"). After execution of the Lease by both parties, Landlord shall
cause Landlord's architect to prepare and submit to Landlord and Tenant complete
construction plans and specifications ("Working Drawings") which shall be based
on the attached Space Plan. Landlord and Tenant shall approve or disapprove the
Working Drawings within five (5) business days after receipt. In the event any
changes are required or desired to the Working Drawings, Landlord and Tenant
shall work in good faith to finalize and approve the Working Drawings within ten
(10) business days after their original receipt thereof. Upon approval of the
Working Drawings by Landlord and Tenant, they shall constitute the "Construction
Documents".
Landlord shall cause the Landlord's Work to be completed in a good and
workmanlike manner in accordance with the Construction Documents and in
compliance with all applicable laws, rules and regulations, including local
building codes. Landlord shall endeavor to minimize any interruption to Tenant's
business and both parties shall cooperate to accomplish the construction herein
contemplated. Landlord's work shall be limited to the installation of one
demising wall, patching walls as necessary, providing touch up painting as
necessary and cleaning the carpet.
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EXHIBIT "D"
RENT SCHEDULE
The total Monthly Rent (subject to adjustment by CPI increases, if applicable)
for the entire Term is equal to $261,199.68 and shall be payable monthly in
accordance with the provisions of the Lease in installments as set forth below:
Annual Rental
Months RSF Monthly Rental Rate
------ --- -------------- -------------
May 1, 1996 - 4,623 $7,127.13 $18.50/RSF
April 30, 1998
May 1, 1998 - 4,623 $7,512.38 $19.50/RSF
April 30, 1999
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EXHIBIT "E"
RULES AND REGULATIONS
ATTACHED TO AND MADE A PART OF THE LEASE
The following Rules and Regulations shall be in effect at the Building. Landlord
reserves the right to adopt reasonable modifications and additions hereto. In
the case of any conflict between these regulations and the Lease, the Lease
shall be controlling.
1. Except with the prior written consent of Landlord, no tenant shall conduct
any retail sales in or from the Premises, or any business other than that
specifically provided for in the Lease.
2. Landlord reserves the right to prohibit personal goods and services
vendors from access to the Building except upon such reasonable terms and
conditions, including but not limited to a provision for insurance
coverage, as are related to the safety, care and cleanliness of the
Building, the preservation of good order thereon, and the relief of any
financial or other burden on Landlord occasioned by the presence of such
vendors or the sale by them of personal goods or services to a tenant or
its employees. If reasonably necessary for the accomplishment of these
purposes, Landlord may exclude a particular vendor entirely or limit the
number of vendors who may be present at any one time in the Building. The
term "personal goods or services vendors" means persons who periodically
enter the Building of which the Premises are a part for the purpose of
selling goods or services to a tenant, other than goods or services which
are used by a tenant only for the purpose of conducting its business on
the Premises. "Personal goods or services" include, but are not limited
to, drinking water and other beverages, food, barbering services, and shoe
shining services.
3. The sidewalks, halls, passages, elevators and stairways shall not be
obstructed by any tenant or used by it for any purpose other than for
ingress to and egress from their respective Premises. The halls, passages,
entrances, elevators, stairways, balconies, janitorial closets, and roof
are not for the use of the general public, and Landlord shall in all cases
retain the right to control and prevent access thereto of all persons
whose presence in the judgment of Landlord shall be prejudicial to the
safety, character, reputation and interests of the Building and its
tenants, provided that nothing herein contained shall be construed to
prevent such access to persons with whom Tenant normally deals only for
the purpose of conducting its business on the Premises (such as clients,
customers, office suppliers and equipment vendors, and the like) unless
such persons are engaged in illegal activities. No tenant and no employees
of any tenant shall go upon the roof of the Building without the written
consent of Landlord.
4. The sashes, sash doors, windows, glass lights, and any lights or skylights
that reflect or admit light into the halls or other places of the Building
shall not be covered or obstructed. The toilet rooms, water and wash
closets and other water apparatus shall not be used for any purpose other
than that for which they were constructed, and no foreign substance of any
kind whatsoever shall be thrown therein, and the expense of any breakage,
stoppage or damage, resulting from the violation of this rule shall be
borne by the tenant who, or whose clerks, agents, employees, or visitors,
shall have caused it.
5. No sign, advertisement or notice visible from the exterior of the Premises
or Building shall be inscribed, painted or affixed by Tenant on any part
of the Building or the Premises without the prior written consent of
Landlord. If Landlord shall have given
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such consent at any time, whether before or after the execution of this
Lease, such consent shall in no way operate as a waiver or release of any
of the provisions hereof or of this Lease, and shall be deemed to relate
only to the particular sign, advertisement or notice so consented to by
Landlord and shall not be construed as dispensing with the necessity of
obtaining the specific written consent of Landlord with respect to each
and every such sign, advertisement or notice other than the particular
sign, advertisement or notice, as the case may be, so consented to by
Landlord.
6. In order to maintain the outward professional appearance of the Building,
all window coverings to be installed at the Premises shall be subject to
Landlord's prior reasonable approval. If Landlord, by a notice in writing
to Tenant, shall object to any curtain, blind, shade or screen attached
to, or hung in, or used in connection with, any window or door of the
Premises, such use of such curtain, blind, shade or screen shall be
forthwith discontinued by Tenant. No awnings shall be permitted on any
part of the Premises.
7. Tenant shall not do or permit anything to be done in the Premises, or
bring or keep anything therein, which shall in any way increase the rate
of fire insurance on the Building, or on the property kept therein, or
obstruct or interfere with the rights of other tenants, or in any way
injure or annoy them; or conflict with the regulations of the Fire
Department or the fire laws, or with any insurance policy upon the
Building, or any part thereof, or with any rules and ordinances
established by the Board of Health or other governmental authority.
8. No safes or other objects larger or heavier than the freight elevators of
the Building are limited to carry shall be brought into or installed in
the Premises. Landlord shall have the power to prescribe the weight,
method of installation and position of such safes or other objects. The
moving of safes shall occur only between such hours as may be designated
by, and only upon previous notice to, the manager of the Building, and the
persons employed to move safes in or out of the Building must be
acceptable to Landlord. No freight, furniture or bulky matter of any
description shall be received into the Building or carried into the
elevators except during hours and in a manner approved by Landlord.
9. Landlord shall clean the Premises as provided in the Lease, and except
with the written consent of Landlord, no person or persons other than
those approved by Landlord will be permitted to enter the Building for
such purpose, but Tenant shall not cause unnecessary labor by reason of
Tenant's carelessness and indifference in the preservation of good order
and cleanliness.
10. No tenant shall sweep or throw or permit to be swept or thrown from the
Premises any dirt or other substance into any of the corridors or halls or
elevators, or out of the doors or windows or stairways of the Building,
and Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit or suffer the Premises
to be occupied or used in a manner offensive or objectionable to Landlord
or other occupants of the Building by reason of noise, odors and/or
vibrations, or interfere in any way with other tenants or those having
business therein, nor shall any animals or birds be kept in or about the
Building. Smoking or carrying lighted cigars or cigarettes in the
elevators of the Building is prohibited.
11. Except for the use of microwave ovens and coffee makers for Tenant's
personal use, no cooking shall be done or permitted by Tenant on the
Premises, nor shall the Building be used for lodging.
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12. Tenant shall not use or keep in the Building any kerosene, gasoline, or
inflammable fluid or any other illuminating material, or use any method of
heating other than that supplied by Landlord.
13. If Tenant desires telephone or telegraph connections, Landlord will direct
electricians as to where and how the wires are to be introduced. No boring
or cutting for wires or other otherwise shall be made without directions
from Landlord.
14. Each tenant, upon the termination of its tenancy, shall deliver to
Landlord all the keys of offices, rooms and toilet rooms, and security
access card/keys which shall have been furnished such tenant or which such
tenant shall have had made, and in the event of loss of any keys so
furnished, shall pay Landlord therefor.
15. No Tenant shall lay linoleum or other similar floor covering so that the
same shall be affixed to the floor of the Premises in any manner except by
a paste, or other material which may easily be removed with water, the use
of cement or other similar adhesive materials being expressly prohibited.
The method of affixing any such linoleum or other similar floor covering
to the floor, as well as the method of affixing carpets or rugs to the
Premises shall be subject to reasonable approval by Landlord. The expense
of repairing any damage resulting from a violation of this rule shall be
borne by Tenant by whom, or by those agents, clerks, employees or
visitors, the damage shall have been caused.
16. No furniture, packages or merchandise will be received in the Building or
carried up or down in the elevators, except between such hours and in such
elevators as shall be designated by Landlord.
17. On Saturdays, Sundays and legal holidays, and on other days between the
hours of 6:00 p.m. and 7:00 a.m. access to the Building or to the halls,
corridors, elevators or stairways in the Building, or to the Premises may
be refused unless the person seeking access is known to the building
watchman, if any, in charge and has a pass or is properly identified.
Landlord shall in no case be liable for damages for the admission to or
exclusion from the Building of any person whom Landlord has the right to
exclude under Rule 3 above. In case of invasion, mob, riot, public
excitement, or other commotion, Landlord reserves the right but shall not
be obligated to prevent access to the Building during the continuance of
the same by closing the doors or otherwise, for the safety of the tenants
and protection of property in the Building.
18. Tenant shall see that the windows and doors of the Premises are closed and
securely locked before leaving the Building and Tenant shall exercise care
and caution that all water faucets or water apparatus are entirely shut
off before Tenant or Tenant's employees leave the Building, and that all
electricity, gas or air shall likewise be carefully shut off, so as to
prevent waste or damage, and for any default or carelessness Tenant shall
make good all injuries sustained by other tenants or occupants of the
Building or Landlord.
19. Tenant shall not alter any lock or install a new or additional lock or any
bolt on any door of the Premises without prior written consent of
Landlord. If Landlord shall give its consent, Tenant shall in each case
furnish Landlord with a key for any such lock.
20. Tenant shall not install equipment, such as but not limited to electronic
tabulating or computer equipment, requiring electrical or air conditioning
service in excess of those to be provided by Landlord under the Lease.
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21. No bicycle, or shopping cart, or other vehicle or any animal shall be
brought into the Premises or the halls, corridors, elevators or any part
of the Building by Tenant.
22. Landlord shall have the right to prohibit the use of the name of the
Building or Project or any other publicity by Tenant which in Landlord's
opinion tends to impair the reputation of the Building or Project or their
desirability for other tenants, and upon written notice from Landlord,
Tenant will refrain from or discontinue such publicity.
23. Tenant shall not erect any aerial or antenna on the roof or exterior walls
of the Premises, Building, or Project without the prior written consent of
Landlord.
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EXHIBIT "F"
AMENDMENT OF LEASE COMMENCEMENT DATE
In connection with that certain Office Lease dated _________________ between The
Mutual Life Insurance Company of New York, as Landlord, and
____________________________, as Tenant concerning the Premises located at
_____________________________, Landlord and Tenant hereby agree as follows:
1. The Lease Commencement Date stated in Section I. of the Office Lease is
amended to be _____________________, 19__ and the Expiration Date stated
in Section I. is amended to be __________, 19__.
2. Landlord has satisfactorily complied with all requirements and conditions
precedent to the commencement of the Term as specified in the Office
Lease.
3. The Premises covered by the Office Lease and the tenant improvements
therein have been fully completed as required, are in good condition, are
ready for occupancy and have been accepted by Tenant.
4. Tenant has or shall commence paying Monthly Rental pursuant to the Office
Lease on __________________, 199__.
Dated effective this __________ day of _________, 199__.
"TENANT" "LANDLORD"
________________________________ _______________________________________
________________________________ _______________________________________
________________________________ _______________________________________
By:_____________________________ By:____________________________________
Name: ______________________ Name: ______________________________
Title: ______________________ Title: _____________________________
[SAMPLE]
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FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE is entered into by and between G & W Investment
Partners, A Xxxx Xxxxx Formed under the Laws of Japan, ("Landlord"), and
Pencom Systems, Inc. A New York Corporation, d.b.a. PSW Technologies,
("Tenant") effective as of this 1st day of JULY, 1996 ("Lease Amendment
Effective Date").
WHEREAS, Landlord and Tenant executed that certain Office Lease ("Lease")
effective April 25, 1996 for the premises described in Section I, Paragraph E
of the Lease.
NOW THEREFORE, in consideration of mutual covenants and conditions contained
herein and for such other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Section 1. Paragraph E. of the Lease is deleted in its entirety and the
following is added as a replacement:
"Premises" means suite 202 located on the second floor of the
Building and consisting of approximately six thousand six hundred
ninety eight (6,698) rentable square feet, as more particularly shown
on Exhibit B attached hereto and incorporated herein by this reference.
2. Section 1. Paragraph K. of the Lease is deleted in its entirety and the
following is added as a replacement:
"Security Deposit" means Eight Thousand Nine Hundred Twenty One
Dollars ($8,921.00)
3. Section 1. Paragraph P. of the Lease is deleted in its entirety and the
following is added as a replacement:
"Tenant's Proportionate Share" for Tenant's reimbursement of Common
Operating Costs and other expenses to be pro-rated hereunder means
15.97% which is the quotient obtained by dividing the total number of
square feet of net rentable floor area in the Building into the total
number of square feet of net rentable floor area within the Premises.
4. Section 1. Paragraph Q. of the Lease is deleted in its entirety and the
following is added as a replacement:
"Tenant's Parking Spaces" means TWENTY TWO (22) total parking spaces
located in such areas of the Project as landlord determines and
divided as follows: FIVE (5) covered and SEVENTEEN (17) non-covered or
surface, all of which shall be non-exclusive, unassigned.
5. Section 1. Paragraph R. of the Lease is deleted in its entirety and the
following is added as a replacement:
"Monthly Parking Rent" means FIFTEEN dollars ($15) per month, per
stall payable by Tenant for Tenant's FIVE (5) covered parking spaces.
Such Monthly Parking Rent shall be considered Additional Rent and shall
be due and payable without notice or demand, on or before the first day
of each calendar month.
6. Exhibit B. Of the Lease is deleted in its entirety and the attached
Exhibit B is added as a replacement.
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7. Exhibit C. Of the Lease is deleted in its entirety and the attached
Exhibit C is added as a replacement.
8. Exhibit D. Of the Lease is deleted in its entirety and the attached
Exhibit D is added as a replacement.
9. CAPITALIZED TERMS AND DEFINITIONS
Unless defined herein, all terms with initial capitalization shall have the
mean assigned to it in the Lease.
10. ALL OTHER TERMS AND CONDITIONS UNCHANGED
All terms and conditions not specifically changed herein shall remain
unchanged.
11. EXECUTION
This First Amendment to Lease may be executed in several duplicate
counterparts, each of which shall be deemed an original of this Lease for all
purposes.
"TENANT" "LANDLORD"
Pencom Systems, Inc. A New York G&W Investment Partners, a nini
Corporation d.b.a. PSW Technologies kumia formed under the laws of
Japan
By: PENCOM SYSTEMS INCORPORATED By: MONY Realty Partners, Inc.
---------------------------- A Delaware Corporation as
its Agent
Name: /s/ Xxxx X. Xxxxx Name: /s/ Xxxx X. Xxxxxx
--------------------------- --------------------------
Xxxx X. Xxxxx Xxxx X. Xxxxxx
Title: President Vice President
------------------------
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