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EXHIBIT 10.7
LEASE BETWEEN
LIGHTON PLAZA, L.L.C.
AND
The Management Network Group Inc.
FOR SPACE AT
LIGHTON PLAZA I
0000 XXXXXXX XXXXXXXXX
XXXXXXXX XXXX, XXXXXX
SUITE 302
4/23/98
----------------
DATED
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TABLE OF CONTENTS
PARAGRAPH PAGE
1.1 DEFINITIONS........................................... 1
1.2 SCHEDULES AND ADDENDA................................. 2
2.1 LEASE OF PREMISES..................................... 2
2.2 PRIOR OCCUPANCY....................................... 2
3.1 RENT.................................................. 2
3.2 DEPOSIT; PREPAID RENT................................. 3
3.3 OPERATING COSTS....................................... 3
3.4 TAXES................................................. 4
4.1 CONSTRUCTION CONDITIONS............................... 4
4.2 COMMENCEMENT OF POSSESSION............................ 4
5.1 PROJECT SERVICES...................................... 4
5.2 INTERRUPTION OF SERVICES.............................. 5
6.1 USE OF LEASED PREMISES................................ 5
6.2 INSURANCE............................................. 6
6.3 REPAIRS............................................... 7
6.4 ASSIGNMENT AND SUBLETTING............................. 7
6.5 ESTOPPEL CERTIFICATE.................................. 8
7.1 SUBSTITUTE PREMISES................................... 8
7.2 ADDITIONAL RIGHTS RESERVED TO LANDLORD................ 9
8.1 CASUALTY AND UNTENANTABILITY.......................... 9
9.1 CONDEMNATION.......................................... 10
10.1 WAIVER AND INDEMNITY.................................. 10
10.2 WAIVER OF SUBROGATION................................. 10
10.3 LIMITATION OF LANDLORD'S LIABILITY.................... 10
11.1 TENANTS DEFAULT....................................... 11
11.2 REMEDIES OF LANDLORD.................................. 11
12.1 SURRENDER OF LEASED PREMISES.......................... 11
12.2 HOLDER OVER TENANCY................................... 12
13.1 QUIET ENJOYMENT....................................... 12
13.2 ACCORD AND SATISFACTION............................... 12
13.3 SEVERABILITY.......................................... 12
13.4 SUBORDINATION AND ATTORNMENT.......................... 12
13.5 ATTORNEY'S FEES....................................... 13
13.6 APPLICABLE LAW........................................ 13
13.7 BINDING EFFECT; GENDER................................ 13
13.8 TIME.................................................. 13
13.9 ENTIRE AGREEMENT...................................... 13
13.10 NOTICES............................................... 13
13.11 HEADINGS.............................................. 14
13.12 BROKERAGE COMMISSIONS................................. 14
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LIST OF SCHEDULES
1. Description of Leased Premises
2. Rules and Regulations
3. Utility Service
4. Maintenance Services
5. Parking
6. Work Letter
7. Certificate of Acceptance
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LEASE
This Lease is made April 23, 1998 between Lighton Plaza L.L.C. ("Landlord") and
The Management Network Group Inc., a Kansas corporation ("Tenant").
ARTICLE ONE
DEFINITIONS, SCHEDULES AND ADDENDA
1.1 DEFINITIONS:
a. LEASE PREMISES shall mean Suite 302, as described in SCHEDULE 1.
b. BUILDING shall mean Lighton Plaza I located at 0000 Xxxxxxx Xxxxxxxxx,
Xxxxxxxx Xxxx, Xxxxxx.
c. PROJECT shall mean Lighton Plaza, located at 0000-0000 Xxxxxxx Xxxxxxxxx,
Xxxxxxxx Xxxx, Xxxxxx.
d. TENANT'S SQUARE FOOTAGE shall mean 2,351 rentable square feet; TOTAL SQUARE
FOOTAGE of the Building shall mean 117,564 rentable square feet.
e. LEASE COMMENCEMENT DATE shall mean 7/15/98, which may be adjusted pursuant
to paragraph 4.2 of this Lease; LEASE EXPIRATION DATE shall mean 7/31/03; LEASE
TERM shall mean the period between Lease Commencement Date and Lease Expiration
Date.
f. SEE PAGE 1A FOR BASE RENT SCHEDULE
g. TENANT'S PRO RATA SHARE shall mean 2.00%. OPERATING COST STOP shall mean
$8.55 per square foot of Total Square Footage per year.
h. DEPOSIT shall mean $4,212.21; PREPAID RENT shall mean $4,212.21, of which
$4,212.21 represents the first monthly installment of Base Rent, and $0.00
represents the last monthly installment of Base Rent.
i. PERMITTED PURPOSE shall mean general offices use.
j. AUTHORIZED NUMBER OF PARKING SPACES shall mean 9 spaces at a rate of $0.00
per space per month.
k. MANAGING AGENT shall mean Xxxxxxxx Xxxx Company whose address is 0000
Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, XX 00000.
i. BROKER OF RECORD shall mean Xxxxxxxx Xxxx MW, Inc.
m. COOPERATING BROKER shall mean CB Commercial.
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f. Base Rent shall mean
Months $/RSF/Year Rent Annually Rent Monthly
------ ---------- ------------- ------------
1-12 $21.50 $50,546.50 $4,212.21
13-24 $22.00 $51,722.00 $4,310.17
25-36 $22.50 $52,897.50 $4,408.13
37-48 $23.00 $54,073.00 $4,506.08
49-60 $23.50 $55,248.50 $4,604.04
plus applicable sales tax, if any; the total Base Rent payable over the entire
Lease Term is $264,487.50.
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n. LANDLORD'S MAILING ADDRESS: 0000 Xxxxxxx Xxxx, Xxxxx X0X, Xxxxxxxxxx,
Xxxxxxxx 00000. Attention: Real Estate Equity Investment Division.
o. TENANT'S MAILING ADDRESS: 0000 Xxxxxxx Xxxxxxxxx, Xxx. 000, Xxxxxxxx
Xxxx, Xxxxxx 00000. Attention: Xxxxxxx Xxxxxxx
1.2 SCHEDULES AND ADDENDA: The schedules and addenda listed below are
incorporated into this Lease by reference unless lined out. The terms of
schedules, exhibits and typewritten addenda, if any, attached or added hereto
shall control over any inconsistent provisions in the paragraphs of this Lease.
a. SCHEDULE 1: Description of Lease Premises and/or Floor Plan
b. SCHEDULE 2: Rules and Regulations
c. SCHEDULE 3: Utility Services
d. SCHEDULE 4: Maintenance Services
e. SCHEDULE 5: Parking
f. SCHEDULE 6: Work Letter
g. SCHEDULE 7: Certificate of Acceptance
ARTICLE TWO
PREMISES
2.1 LEASE OF PREMISES: In consideration of the Rent and the provisions of
this Lease, Landlord leases to Tenant and Tenant accepts from Landlord the
Leased Premises. Tenant's Square Footage is a stipulated amount based on
Landlord's method of determining Total Square Footage for rental purposes and
may not reflect the actual amount of floor space available for Tenant's use.
2.2 PRIOR OCCUPANCY: Tenant shall not occupy the Leased Premises prior to
Lease Commencement Date except with the express prior written consent of
Landlord and in accordance with the provisions of SCHEDULE 6. IF WITH
Landlord'S consent, Tenant occupies the Leased Premises prior to the Lease
Commencement Date, Tenant shall pay Landlord Base Rent in the amounts specified
in paragraph 1.1(f), and Tenant's Pro Rata Share of Excess Operating Costs, as
defined in paragraph 3.3(b), from the first day of such occupancy. These
amounts will be payable on the first day of such occupancy and thereafter on
the first day of every calendar month until the first day of the Lease Term. A
prorated monthly installment shall be paid for the fraction of the month if
Tenant's occupancy of the Leased Premises commences on any day other than the
first day of the month. If Tenant shall occupy the Leased Premises prior to
Lease Commencement Date, all covenants and conditions of this Lease shall be
binding on the parties commencing at such prior occupancy.
ARTICLE THREE
PAYMENT OF RENT
3.1 RENT: Tenant shall pay each monthly installment of Base Rent in
advance on the first calendar day of each month, together with each monthly
installment of Tenant's Pro Rata Share of Excess Operating Costs. Monthly
installments for any fractional calendar month, at the beginning or end of the
Lease Term, shall be prorated based on the number of days in such month. Base
Rent, together with all other amounts payable by Tenant to Landlord under this
Lease, including, without limitation, any late charges and interest due
Landlord for Rent not paid when due, shall be sometimes referred to
collectively as "Rent". Tenant shall pay all Rent, without deduction or
set-off, to Landlord or Managing Agent at a place specified by Landlord. Rent
not paid when due shall bear interest until paid, at the rate of 2% per month,
or at the maximum rate allowed by law, whichever is less, from the date when
due. Tenant shall also pay a processing charge of $50 with each late payment of
Rent. Landlord agrees to waive the processing and interest charge for late
payments of Rent twice during any twelve month period during the Lease Term,
provided any such late Rent payment is paid in full within 10 days of the date
when due.
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3.2 DEPOSIT; PREPAID RENT: Tenant has paid to Landlord the Deposit and
Prepaid Rent as security for performance of Tenant's obligations under this
Lease. In the event Tenant fully complies with all the terms and conditions of
this Lease, the Deposit shall be refunded to Tenant, without interest unless
otherwise required by law, upon expiration of this Lease. Landlord may, but is
not obligated to, apply a portion of the Deposit to cure any default hereunder
and Tenant shall pay on demand the amount necessary to restore the Deposit in
full within 10 days after notice by Landlord.
3.3 OPERATING COSTS: Tenant shall pay Tenant's Pro Rata Share of any
Excess Operating Costs as follows:
a. "Operating Costs" shall mean all reasonable and actual expenses
relating to the Lease Premises, the Building or the Project, including but
not limited to: real estate taxes and assessments; gross rents, sales,
use, business, corporation, franchise or other taxes (except income
taxes); utilities not separately chargeable to other tenants; insurance
premiums and (to the extent used) deductibles; maintenance, repairs and
replacements; refurbishing and repainting; cleaning, janitorial and other
services; equipment, tools, materials and supplies; air conditioning,
heating and elevator service; property management including management
fees; security; employees and contractors; resurfacing and restriping of
walks, drives and parking areas; signs, directories and markets;
landscaping; and snow and rubbish removal. Operating Costs shall not
include expenses for legal services, real estate brokerage and leasing
commissions, Landlord's income taxes, income tax accounting, interest,
depreciation, general corporate overhead, or capital improvements to the
Building or Project except for capital improvements installed for the
purpose of reducing or controlling expenses, or required by any
governmental or other authority having or asserting jurisdiction over the
Building or Project. If any expense, though paid in one year, relates to
more than one calendar year, at option of Landlord, such expense may be
proportionately allocated among such related calendar years. In the event
that the Building is not fully leased during any calendar year, Landlord
may make appropriate adjustments to the Operating Costs, using reasonable
projections, to adjust such costs to an amount that would normally be
expected to be incurred if the Building were 100% leased, and such
adjusted cost shall be used for purposes of this paragraph 3.3. "Excess
Operating Costs" shall mean any excess of (i) Landlord's Operating Costs
for any calendar year over (ii) the Operating Cost Stop multiplied by
Total Square Footage.
b. Tenant shall pay, in equal monthly installments, Tenant's Pro Rata
Share of any estimated Excess Operating Costs for each calendar year which
falls (in whole or in part) during the Lease Term (prorated for any
partial calendar year at the beginning or end of the Lease Term).
Annually, or from time to time, based on actual and projected Operating
Cost data, Landlord may adjust its estimate of Operating Costs upward or
downward. Within 30 days after notice to Tenant of a revised estimate of
Operating Costs, Tenant shall remit to Landlord a sum equal to any
shortage of the amount which should have been paid to date for the then
current calendar year based on the revised estimate, and all subsequent
monthly estimated payments shall be based on the revised estimate.
c. As soon as possible, after the first day of each year Landlord shall
compute the actual Operating costs for the prior calendar year, and shall
give notice thereof to Tenant. Within 30 days after receipt of such
notice, Tenant shall pay any deficiency between estimated and actual in
Tenant's Pro Rata Share of any Excess Operating costs for the prior
calendar year (prorated for any partial calendar year at the beginning or
end of the Lease Term). In the event of overpayment by Tenant, Landlord
shall apply the excess to the next payment of Rent when due, until such
excess if exhausted or until no further payments of Rent are due, in which
case, Landlord shall pay to Tenant the balance of such excess within 30
days thereafter. Tenant or its representatives shall have the right, upon
reasonable notice, to examine Landlord's books and records with respect to
the Operating Costs at the management office during normal business hours
at any time within 30 days following the delivery by Landlord to Tenant of
the notice of actual Operating Costs. Tenant shall have an additional 10
days to file any written exception to any of the Operating costs.
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3.4 TAXES: In addition to Base Rent and other sums to be paid by Tenant
hereunder, Tenant shall reimburse Landlord, as additional Rent, on demand, any
taxes payable by Landlord (a) upon, measured by or reasonably attributable to
the cost or value of Tenant's equipment, fixtures and other personal property
located in the Leased Premises or by the cost or value of any leasehold
improvements made to the Leased Premises by Tenant or Landlord, regardless of
whether title to such improvements are held by Tenant or Landlord; (b) upon or
measured by the monthly rental payable hereunder, including, without
limitation, any gross receipts tax or excise tax; (c) upon or with respect to
the possession, leasing, operation, management, maintenance, alteration,
repair, use or occupancy by Tenant of the Leased Premises or any portion
thereof, (d) upon this Lease or any document to which Tenant is a party
creating or transferring an interest or an estate in the Leased Premises.
ARTICLE FOUR
IMPROVEMENTS
4.1 CONSTRUCTION CONDITIONS: The improvements shall be constructed as
described in the work letter attached hereto as SCHEDULE 6 (the "Improvements").
The expenses to be incurred as between Landlord and Tenant for construction of
the Improvements are specified in SCHEDULE 6. If any act, omission or change
requested or caused by Tenant increases the cost of work or materials or the
time required for completion of construction, Tenant shall reimburse Landlord
for such increase in cost at the time the increased cost is incurred and shall
reimburse Landlord for any loss in Rent at the time the Rent would have become
due. Landlord's approval of Tenant's plans for Improvements shall create no
responsibility or liability on the part of Landlord for their completeness,
design sufficiency, or compliance with laws, rules and regulations of
governmental agencies or authorities.
4.2 COMMENCEMENT OF POSSESSION: If the Leased Premises are not
substantially completed by the scheduled Lease Commencement Date then the Lease
Commencement Date shall be extended to a date 5 days after Landlord shall
notify Tenant that the Leased Premises are ready for occupancy. In such an
event the Lease Expiration Date shall remain the same. If Landlord fails to
cause the Leased Premises to be ready for occupancy at the time of the
scheduled Lease Commencement Date, Landlord and Landlord's agents, officers,
employees, or contractors shall not be liable for any damage, loss, liability
or expense caused thereby, and this Lease shall not become void or voidable
unless such failure continues for more than 120 days, in which case Tenant may
terminate this Lease upon 20 days written notice to Landlord. Prior to
occupying the Leased Premises, Tenant shall execute and deliver to Landlord a
letter in the form attached as SCHEDULE 7, acknowledging the Lease Commencement
Date and certifying that the improvements have been substantially completed and
that Tenant has examined and accepted the Leased Premises. Tenant shall list
any items that do not conform with Schedule 6. If Tenant fails to deliver such
letter, Tenant shall conclusively be deemed to have made such acknowledgement
and certification by occupying the Leased Premises.
ARTICLE FIVE
PROJECT SERVICES
5.1 PROJECT SERVICES: Landlord shall furnish:
a. Utility Services: The utility services listed on SCHEDULE 3
("Utility Services"). Should Tenant, in Landlord's reasonable judgment,
use additional, unusual or excessive Utility Services, Landlord reserves
the right to charge for such services as determined either by a separate
submeter, installed at Tenant's expense, or by methods specified by an
engineer selected by Landlord.
b. Maintenance Services: Maintenance of all interior and exterior
common areas of the Building areas including lighting, landscaping,
cleaning, painting, maintenance and repair of the exterior of the Building
and its structural portions and roof, including all of the services listed
on SCHEDULE 4 ("Maintenance Services").
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c. Parking. Parking under the terms and conditions described in Schedule 5
("Parking").
Utility Services, Maintenance Services and Parking described above shall
be collectively referred to as "Project Services". The costs of Project
Services shall be a part of Operating Costs.
5.2 INTERRUPTION OF SERVICES: Landlord does not warrant that any of the
Project Services will be free from interruption. Any Project Service may be
suspended by reason of accident or of necessary repairs, alterations or
improvements, or by strikes or lockouts, or by reason of operation of law, or
causes beyond the reasonable control of Landlord. Subject to possible rent
abatement as may be provided pursuant to the conditions described in paragraph
8.1, any such interruption or discontinuance of such Project Services shall
never be deemed a disturbance of Tenant's use and possession of the Leased
Premises, or render Landlord liable to Tenant for damages by abatement of rent
or otherwise, or relieve Tenant from performance of Tenant's obligations under
this Lease; provided, that should such interruption or discontinuance of
Project Services which materially impairs Tenant's ability to conduct its
business continue for 4 consecutive business days, then beginning on the fifth
business day, Landlord shall xxxxx Base Rent and Tenant's Pro Rata Share of
Excess Operating Costs, for that portion of the Leased Premises rendered
untenantable, from the fifth business day after said interruption or
discontinuance until the Project Services are restored. Landlord shall use its
best efforts to cause the Project Services to be promptly restored.
ARTICLE SIX
TENANT'S COVENANTS
6.1 USE OF LEASED PREMISES: Tenant agrees to:
a. Permitted Usage: Use the Leased Premises for the Permitted Purpose
only and for no other purpose.
b. Compliance with Laws: At Tenant's expense, comply with the provisions
of all recorded covenants, conditions and restrictions and all building,
zoning, fire and other governmental laws, ordinances, regulations or rules
now in force or which may hereafter be in force relating to Tenant's use
and occupancy of the Leased Premises, the Building, or the Project and all
requirements of the carriers of insurance covering the Project. Tenant at
its sole cost, shall be responsible for any changes required to the Leased
Premises necessary to comply with such laws and regulations which may
impose any duly upon Landlord or Tenant as a result of changes to the
configuration of the Leased Premises made by Tenant. Landlord shall be
responsible for making any other changes necessary to comply with any
federal or local laws and regulations to the common areas of the Building
or Project and to the Leased Premises; the cost of such changes made by
Landlord shall be Operating Costs in accordance with Section 3.3 of the
Lease.
c. Nuisances or Waste: Not do or permit anything to be done in or about
the Leased Premises, or bring or keep anything in the Leased Premises that
may increase Landlord's fire and extended coverage insurance premium,
damage the Building or the Project, constitute waste, constitute an immoral
purpose, or be a nuisance, public or private, or menace or other
disturbance to tenants of adjoining premises or anyone else.
d. Hazardous Substances: (i) comply with all Environmental Laws; (ii) not
cause or permit any Hazardous Materials to be treated, stored, disposed of,
generated, or used in the Leased Premises or the Project, provided,
however, that Tenant may store, use or dispose of products customarily
found in offices and used in connection with the operation and maintenance
of property if Tenant complies with all Environmental Laws and does not
contaminate the Leased Premises, Project or environment; (iii) promptly
after receipt, deliver to Landlord any communication concerning any past or
present, actual or potential violation of Environmental Laws, or liability
of either party for Environmental Damages. Environmental Laws mean all
applicable present and future statutes, regulations, rules, ordinances,
codes, permits or orders of all governmental agencies, departments,
commissions, boards, bureaus, or instrumentalities of the United States,
state and their political subdivisions and all applicable judicial,
administrative and regulatory decrees and judgments relating to the
protection of public health or safety or of the environment. Hazardous
Materials include substances (i) which require remediation under any
Environmental Laws; or (ii) which are or become defined as a "hazardous
waste', "hazardous substance", pollutant or contaminant under any
Environmental Laws; or (iii) which are toxic, explosive, corrosive,
flammable, infectious, radioactive,
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carcinogenic or mutagenic; or (iv) which contain petroleum hydrocarbons,
polychlorinated biphenyls, asbestos, asbestos containing materials or urea
formaldehyde.
e. Alterations and Improvements: Make no alterations or improvements to
the Leased Premises without the prior written approval of Landlord and
Landlord's mortgagee, if any. Any such alterations or improvements by
Tenant shall be done in a good and workmanlike manner, at Tenant's expense,
by a licensed contractor approved by Landlord in conformity with plans and
specifications approved by Landlord. If requested by Landlord, Tenant will
post a bond or other security reasonably satisfactory to Landlord to
protect Landlord against liens arising from work performed for Tenant.
Landlord's approval of the plans and specifications for Tenant's
alterations or improvements shall create no responsibility or liability on
the part of Landlord for their completeness, design sufficiency, or
compliance with all laws, rules and regulations of governmental agencies or
authorities.
f. Liens: Keep the Leased Premises, the Building and the Project free from
liens arising out of any work performed, materials furnished or obligations
incurred by or for Tenant. If, at any time, a lien or encumbrance is filed
against the Leased Premises, the Building or the Project as a result of
Tenant's work, materials or obligations, Tenant shall promptly discharge
such lien or encumbrance. If such lien or encumbrance has not been removed
within 30 days from the date it is filed, Tenant agrees to deposit with
Landlord cash or a bond, which shall be in a form and be issued by a
company acceptable to Landlord in its sole discretion, in an amount equal
to 150% of the amount of the lien, to be held by Landlord as security for
the lien being discharged.
g. Rules and Regulations: Observe, perform and abide by all the rules and
regulations promulgated by Landlord from time to time. SCHEDULE 2 sets
forth Landlord's rules and regulations in effect on the date hereof.
h. Signage: Obtain the prior approval of the Landlord before placing any
sign or symbol in doors or windows or elsewhere in or about the Leased
Premises, or upon any other part of the Building or Project including
building directories. Any signs or symbols which have been placed without
Landlord's approval may be removed by Landlord. Upon expiration or
termination of this Lease, all signs installed by Tenant shall be removed
and any damage resulting therefrom shall be promptly repaired, or such
removal and repair may be done by Landlord and the cost charged to Tenant
as Rent. Landlord, at Landlord's expense, shall supply Tenant with a
building standard signage at suite entry and in lobby building directory.
6.2 INSURANCE; Tenant shall, at its own expense, procure and maintain
during the Lease Term; (i) fire and extended casualty insurance covering
Tenant's trade fixtures, merchandise and other personal property located in the
Leased Premises, in an amount not less than 100% of their actual replacement
cost, and (ii) worker's compensation insurance in at least the statutory
amounts, and (iii) commercial general liability insurance with respect to the
Leased Premises and Tenant's activities in the Leased Premises and in the
Building and the Project, providing bodily injury and broad form property damage
coverage with a maximum $5,000 deductible, or such other amount approved by
Landlord in writing, and minimum coverage as follows:
a. $1,000,000 with respect to bodily injury or death to any one person;
b. $5,000,000 with respect to bodily injury or death arising out of any
one occurrence;
c. $1,000,000 with respect to property damage or other loss arising out of
any one occurrence.
Nothing in this paragraph 6.2 shall prevent Tenant from obtaining insurance
of the kind and in the amounts provided for under this paragraph under a blanket
insurance policy covering other properties as well as the Leased Premises,
provided, however, that any such policy of blanket insurance (i) shall specify
the amounts of the total insurance allocated to the Leased Premises, which
amounts shall not be less than the amounts required by subparagraphs a. through
c. above, and (ii) such amounts so specified shall be sufficient to prevent any
one of the assureds from becoming a coinsurer within the terms of the applicable
policy, and
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(iii) shall, as to the Leased Premises, otherwise comply as to endorsements and
coverage with the provisions of this paragraph.
Tenant's insurance shall be with a company which has a rating equal to or
greater than Best's Insurance Reports classification of A, Class X or its
equivalent, as such classification is determined as of the Lease Commencement
Date. Landlord and Landlord's mortgagee, if any, shall be named as "additional
insureds' under Tenant's insurance, and such Tenant's insurance shall be
primary and non-contributing with Landlord's insurance. Tenant's insurance
policies shall contain endorsements requiring 30 days notice to Landlord and
Landlord's mortgagee, if any, prior to any cancellation, lapse or nonrenewal or
any reduction in amount of coverage.
Tenant shall deliver to Landlord as a condition precedent to its taking
occupancy of the Leased Premises certificates of insurance (with respect to the
liability policy) and evidence of insurance (ACCORD Number 27) or equivalent
(with respect to the property policy), or certified copies of either of the
policies.
6.3 REPAIRS: Tenant, at its sole expense, agrees to maintain the
interior of the Leased Premises in a neat, clean and sanitary condition. If
Tenant fails to maintain or keep the Leased Premises in good repair and such
failure continues for 5 days after written notice from Landlord or if such
failure results in a nuisance or health or safety risk, Landlord xxx perform
any such required maintenance and repairs and the cost thereof shall be payable
by Tenant as Rent within 10 days of receipt of an invoice from Landlord. Tenant
shall also pay to Landlord the costs of any repair to the Building or Project
necessitated by any act or neglect of Tenant.
6.4 ASSIGNMENT AND SUBLETTING: Tenant shall assign, mortgage, pledge, or
encumber this Lease, or permit all or any part of the Leased Premises to be
subleased without the prior written consent of Landlord and Landlord's
mortgagee, if any, which consent shall not be unreasonably withheld or delayed.
Any transfer of this Lease by merger, consolidation, reorganization or
liquidation of Tenant, or by operation of law, or change in ownership of or
power to vote the majority of the outstanding voting stock of a corporate
Tenant, or by change in ownership of a controlling partnership interest in a
partnership Tenant, shall constitute an assignment for the purposes of this
paragraph. However, a public offering or debt restructuring which may result in
a change of control but not a substantial diminution of the financial strength
of Tenant, or an acquisition, consolidation or merger in which Tenant is the
surviving entity shall not constitute an assignment requiring Landlord's
consent, provided Landlord is notified within 20 days of such transaction and is
given any financial information as may be reasonably required by Landlord.
Notwithstanding the foregoing, Tenant shall have the right to assign or sublease
part or all of the Leased Premises to any of its subsidiaries, affiliates or any
parent liable on its obligations as set forth herein; (ii) any such assignee or
sublessee shall assume and be bound by all covenants and obligations of Tenant
herewith; (iii) the proposed assignee or sublessee or sublessee is, in
Landlord's good faith judgment, compatible with other tenants in the Building
and seeks to use the Leased Premises only for the Permitted Purpose and for a
use that is not prohibited under the terms of a lease with another tenant in the
Building; and (iv) such use would not result in a material change in the number
of personnel working in, or members of the general public visiting, the Leased
Premises.
In addition to other reasonable bases, Tenant hereby agrees that Landlord
shall be deemed to be reasonable in withholding its consent, if: (a) such
proposed assignment or sublease is for less than the whole of the Leased
Premises or is for a term less than the whole of the remaining Lease Term; or
(b) such proposed assignment or sublease is to any party who is then a tenant
of the Building or the Project if Landlord has comparable area; or (c) Tenant
is in default under any of the terms, covenants, conditions, provisions and
agreements of this Lease at the time of request for consent or on the effective
date of such subletting or assignment; or (d) the proposed subtenant or
assignee is, in Landlord's good faith judgment, incompatible with other tenants
in the Building, or seeks to use any portion of the Leased Premises for a use
not consistent with other uses in the Building, or is financially incapable of
assuming the obligations of this Lease; (e) the proposed assignee of sublessee
or its business is subject to compliance with additional requirements of the
law (including related regulation) commonly known as the "Americans with
Disabilities Act" beyond those requirements which are applicable to the Tenant,
unless the proposed assignee or sublessee shall: (i) first consent thereto, and
(ii) comply with all Landlord's conditions for or contained in such consent,
including without limitation, requirements for security to assure the lien-free
completion of such improvements. Tenant shall submit to Landlord the name of a
proposed assignee or subtenant, the terms of the proposed
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assignment or subletting, the nature of the proposed subtenant's business and
such information as to the assignee's or subtenant's financial responsibility
and general reputation as Landlord may reasonably require.
No subletting or assignment, even with the consent of Landlord, shall
relieve Tenant of its primary obligation to pay the Rent and to perform all of
the other obligations to be performed by Tenant hereunder. The acceptance of
Rent by Landlord from any other person or entity shall not be deemed to be
waived by Landlord of any provision of this Lease or to be a consent to any
assignment, subletting or other transfer. Consent to one assignment, subletting
or other transfer shall not be deemed to constitute consent to any subsequent
assignment, subletting or transfer.
In lieu of giving any consent to a sublet or an assignment of all the
Leased Premises, Landlord may within 10 days after notification by Tenant, at
Landlord's option, elect to terminate this Lease. In the case of a proposed
subletting of a portion of the Leased Premises, Landlord may, at Landlord's
option, elect to terminate the Lease with respect to that portion of the Leased
Premises being proposed for subletting. The effective date of any such
termination shall be 30 days after the proposed effective date of any proposed
assignment or subletting. However, if Landlord elects to terminate this lease or
a portion of the Leased Premises, Tenant shall have the option to withdraw its
request for consent within 10 days after Tenant's notification by Landlord of
its election to terminate.
Seventy Five Percent (75%) of any proceeds in excess of Base Rent and
Tenant's Pro Rata Share of Excess Operating Costs which is received by Tenant
pursuant to an assignment or subletting consented to by Landlord, less
reasonable brokerage commissions actually paid by Tenant, and less other costs
incurred by Tenant in connection with making the space available for lease,
shall be remitted to Landlord as extra Rent within 10 days of receipt by Tenant.
For purposes of this paragraph, all money or value in whatever form received by
Tenant from or on account of any party as consideration for an assignment or
subletting shall be deemed to be proceeds received by Tenant pursuant to an
assignment or subletting.
6.5 ESTOPPEL CERTIFICATE: From time to time and within 10 days after
request by Landlord or Tenant, the other party Tenant shall execute and deliver
a certificate to any proposed lender or purchaser, or to the requesting party,
together with a true and correct copy of this Lease, certifying with any
appropriate exceptions, (i) that this Lease is in full force and effect without
modification or amendment, (ii) the amount of Rent payable by Tenant and the
amount, if any, of Prepaid Rent and Deposit paid by Tenant to Landlord, (iii)
the nature and kind of concessions, rental or otherwise, if any, which Tenant
has received or is entitled to receive, (iv) that Tenant has not assigned its
rights under this Lease or sublet any portion of the Leased Premises, (v) that
Landlord or Tenant has performed all of its obligations due to be performed
under this Lease and that there are no defenses, counterclaims, deductions or
offsets outstanding or other excuses for Tenant's or Landlord's performance
under this Lease, (vi) that such proposed lender or purchaser may rely on the
information contained in the certificate, and (vii) any other fact reasonably
requested by the requesting party or such proposed lender or purchaser.
ARTICLE SEVEN
LANDLORD'S RESERVED RIGHTS
7.1 SUBSTITUTE PREMISES: Landlord shall have the right at any time, upon
giving Tenant 60 days written notice, to relocate at Landlord's expense the
Leased Premises on any floor of the Building or elsewhere in the Project,
provided that Tenant's Square Footage shall be approximately the same. Should
Landlord give Tenant written notice of the relocation of the Leased Premises
after Tenant has commenced or completed the approved installation of partitions
or other improvements, Landlord shall furnish Tenant with similar partitions or
other improvements of equal quality. Landlord hereby agrees to pay expenses
resulting from relocating the Tenant to a space with communication, electronic
and air-conditioning infrastructure at least equal to that which existed in the
original Leased Premises ????????????????????????? will be substantially
completed before Tenant is required to vacate the original Leased Premises)
including moving expenses, telephone installation, computer wires, wiring and
installation, and the cost of stationery to replace that made obsolete as a
result of the move. The relocation of the Leased Premises shall not affect any
of the clauses or conditions of this Lease, including the Rent.
7.2 ADDITIONAL RIGHTS RESERVED TO LANDLORD: Without notice and without
liability to Tenant or without effecting an eviction or disturbance of Tenant's
use or possession, Landlord shall have the right to (i) grant utility easements
or other easements in, or replat, subdivide or make other changes in the legal
status of the land underlying the Building or the Project as Landlord shall deem
appropriate in its sole discretion, provided such changes do not substantially
interfere with Tenant's use of the Leased Premises
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for the Permitted Purpose; (ii) enter the Leased Premises at reasonable times
and at any time in the event of an emergency to inspect, alter or repair the
Leased Premises or the Building and to perform any acts related to the safety,
protection, reletting, sale or improvement of the Leased Premises or the
Building; (iii) change the name or street address of the Building or the
Project; (iv) install and maintain signs on and in the Building and the Project;
and (v) make such rules and regulations as, in the sole judgment of Landlord,
may be needed from time to time for the safety of the tenants, the care and
cleanliness of the Leased Premises, the Building and the Project and the
preservation of good order therein.
ARTICLE EIGHT
CASUALTY AND UNTENANTABILITY
8.1 CASUALTY AND UNTENANTABILITY: If the Building is made substantially
untenantable or if Tenant's use and occupancy of the Leased Premises are
substantially interfered with due to damage to the common areas of the Building
or if the Leased Premises are made wholly or partially untenantable by fire or
other casualty, Landlord may, by notice to Tenant within 45 days after the
damage, terminate this Lease or if the Leased Premises or Building are damaged
so that they cannot reasonably be restored within 120 days after the damage,
Tenant may, by notice to Landlord within 45 days after the damage, terminate
this Lease. In either case, termination shall effective as of the date of the
casualty.
If the Leased Premises are made partially or wholly untenantable by fire or
other casualty and this Lease is not terminated as provided above, Landlord
shall restore the Leased Premises to the condition they were in on the Lease
Commencement Date, not including any personal property of Tenant or alterations
performed by Tenant.
If the Landlord does not terminate this Lease as provided above, and
Landlord fails within 120 days from the date of such casualty to restore the
damaged common areas thereby eliminating substantial interference with Tenant's
use and occupancy of the Leased Premises, or fails to restore the Leased
Premises to the condition they were in on the Lease Commencement Date, not
including any personal property or alterations performed by Tenant, Tenant may
terminate this Lease as of the end of such 120 day period.
In the event of termination of this Lease pursuant to this Article Eight,
Rent shall be prorated on a per diem basis and paid to the date of the casualty,
unless the Leased Premises shall be tenantable, in which case Rent shall be
payable to the date of the lease termination. If the Leased Premises are
untenantable and this Lease is not terminated, Rent shall xxxxx on a per diem
basis from the date of the casualty until the Leased Premises are ready for
occupancy by Tenant. If part of the Leased Premises are untenantable, Rent shall
be prorated on a per diem basis and apportioned in accordance with the part of
the Leased Premises which is usable by Tenant until the damaged part is ready
for Tenant's occupancy. Notwithstanding the foregoing, if any damage was
proximately caused by an act or omission of Tenant, its employees, agents,
contractors, licensees or invitees, then, in such event, Tenant agrees that Rent
shall not xxxxx or be diminished during the term of this Lease.
ARTICLE NINE
CONDEMNATION
9.1 CONDEMNATION: If all or any part of the Leased Premises shall be
taken under power of eminent domain or sold under imminent threat to any public
authority or private entity having such power, this Lease shall terminate as to
the part of the Leased Premises so taken or sold, effective as of the date
possession is required to be delivered to such authority. In such event, Base
Rent shall xxxxx in the ratio that the portion of Tenant's Square Footage taken
or sold bears to Tenant's Square Footage. If a partial taking or sale of the
Leased Premises, the Building or the Project (i) reduces Tenant's Square Footage
resulting in a inability of Tenant to use the Leased Premises for the Permitted
Purpose, or (ii) renders the Building or the Project not commercially viable to
Landlord in Landlord's sole opinion, either Tenant in the case of (i), or
Landlord in the case of (ii), may terminate this Lease by notice to the other
party within 30 days after the terminating party receives written notice of the
portion to be taken or sold. Such
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termination shall be effective 180 days after notice thereof, or when the
portion is taken or sold, whichever is sooner. All condemnation awards and
similar payments shall be paid and belong to Landlord, except any amounts
awarded or paid specifically to Tenant for removal and reinstallation of
Tenant's trade fixtures, personal property or Tenant's moving costs.
ARTICLE TEN
WAIVER AND INDEMNITY
10.1 WAIVER AND INDEMNITY: Except for those claims arising from
Landlord's breach of this Lease, negligence or willful misconduct, Tenant, to
the extent permitted by law, waives all claims it may have against Landlord,
and against Landlord's agents and employees for any damages sustained by Tenant
or by any occupant of the Leased Premises, or by any other person, resulting
from any cause arising at any time. Tenant agrees to hold Landlord harmless and
indemnified against claims and liability for injuries to all persons and for
damage to or loss of property occurring in or about the Leased Premises or the
Building, due to Tenant's breach of this Lease or any act of negligence or
willful misconduct or default under this Lease by Tenant, its contractors,
agents, employees, licensees and invitees. Landlord agrees to hold Tenant
harmless and indemnified against claims and liability for injuries to all
persons and for damage to or loss of property occurring in or about the
Building to the extent due to Landlord's breach of this Lease or any act of
negligence or willful misconduct or default under this Lease by Landlord, its
contractors, agents, employees, and licensees. Tenant agrees to indemnify,
defend, reimburse and hold Landlord harmless against any Environmental Damages
incurred by Landlord arising from Tenant's breach of paragraph 6.1(d) of this
Lease. Environmental Damages means all claims, judgments, losses, penalties,
fines, liabilities, encumbrances, liens, costs and reasonable expenses of
investigation, defense or good faith settlement resulting from violations of
Environmental Laws, and including, without limitation: (i) damages for personal
injury and injury to property or natural resources; (ii) reasonable fees and
disbursement of attorneys, consultants, contractors, experts and laboratories;
and (iii) costs of any cleanup, remediation, removal, response, abatement,
containment, closure, restoration or monitoring work required by any
Environmental Law and other costs reasonably necessary to restore full economic
use of the Leased Premises or Project.
10.2 WAIVER OF SUBROGATION: Tenant and Landlord release each other and
waive any right of recovery against each other for loss or damage to the waiving
party or its respective property, which occurs in or about the Leased Premises
or Building, whether due to the negligence of either party, their agents,
employees, officers, contractors, licensees, invitees or otherwise, to the
extent that such loss or damage is insurable against under the terms of
standard fire and extended coverage insurance policies. Tenant and Landlord
agree that all policies of insurance obtained by either of them in connection
with the Leased Premises shall contain appropriate waiver of subrogation
clauses.
10.3 LIMITATION OF LANDLORD'S LIABILITY: The obligations of Landlord
under this Lease do not constitute personal obligations of the individual
partners, shareholders, directors, officers, employees or agents of Landlord,
and Tenant shall look solely to Landlord's interest in the Building and land
and to no other assets of Landlord for satisfaction of any liability in respect
of this Lease. Tenant will not seek recourse against the individual partners,
shareholders, directors, officers, employees or agents of Landlord or any of
their personal assets for such satisfaction. Notwithstanding any other
provisions contained herein, Landlord shall not be liable to Tenant, its
contractors, agents or employees for any consequential damages or damages for
loss of profits.
ARTICLE ELEVEN
TENANT'S DEFAULT AND LANDLORD'S REMEDIES
11.1 TENANT'S DEFAULT: It shall be an "Event of Default" if Tenant shall
(i) fail to pay any monthly installment of Base Rent or Tenant's Pro Rate Share
of Excess Operating Costs, or any other sum payable hereunder within 10 days
after such payment is due and payable; Landlord agrees to provide written
notice once in a 12 month period during the lease term. (ii) violate or fail to
perform any conditions, covenants, or agreements herein made by Tenant
respecting Tenant's insurance requirements as specified in paragraph 6.2, and
such violation or failure shall continue for 5 business days after written
notice thereof to Tenant by Landlord; (iii) violate or fail to perform any of
the other conditions, covenants or agreements herein made by Tenant, and such
violation or failure shall continue for 15 days after written notice thereof
to Tenant by Landlord; provided, however, if such default is of a nature that
it cannot reasonably be
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cured within 15 days, it shall not be an Event of Default if Tenant commences
to cure within such 15 day period and diligently prosecutes such cure to
completion within the time reasonably required for such cure, not to exceed 60
days; (iv) make a general assignment for the benefit of its creditors or file a
petition for bankruptcy or other reorganization, liquidation, dissolution or
similar relief; (v) have a proceeding filed against Tenant seeking any relief
mentioned in (iv) above; (vi) have a trustee, receiver or liquidator appointed
for Tenant or a substantial part of its property; (vii) abandon or vacate the
Leased Premises and any portion of Rent is delinquent; (viii) default under any
other lease, if any, within the Building or the Project; or (ix) if Tenant is a
partnership, if any partner of the partnership is involved in any of the acts
or events described in subparagraphs (i) through (viii) above.
11.2 REMEDIES OF LANDLORD: If an Event of Default occurs, Landlord, may,
at it option, within 5 days after written notice to Tenant, reenter the Leased
Premises, remove all persons therefrom, take possession of the Leased Premises,
and remove all of Tenant's personal property at Tenant's risk and expense and,
either (i) terminate this Lease and Tenant's right of possession of the Leased
Premises or (ii) maintain this Lease in full force and effect and endeavor to
relet all or part of the Leased Premises for such rent and upon such terms as
Landlord deems reasonable and necessary, and Tenant shall be liable for all
damages sustained by Landlord, including but not limited to, any deficiency in
Rent for the period of time which would have remained in the Lease Term in the
absence of any termination, leasing fees, attorneys' fees, other marketing and
collection costs, the cash value of any concessions granted to Tenant and all
expenses of placing the Leased Premises in first class rentable condition.
Landlord retains the right to terminate this Lease, at any time,
notwithstanding that Landlord fails to terminate this Lease initially. If
Landlord is unable after diligent efforts to relet the Leased Premises within
60 days after termination of this Lease, Landlord may elect at any time
thereafter to have Tenant immediately pay, as liquidated damages and not as a
penalty, all Rent then due and the present value (discounted at 10%) of all
Rent which would have become due (based on Base Rent and Tenant's Pro Rata
Share of Excess Operating Costs payable at the time of such election and the
cash value of any concessions granted to Tenant) for the period of time which
would have remained in the Lease Term in the absence of any termination.
The remedies granted to Landlord herein shall be cumulative and shall not
exclude any other remedy allowed by law, and shall not prevent the enforcement
of any claim Landlord may have against Tenant for anticipatory breach of the
unexpired term of this Lease, including without limitation, a claim for
attorney's fees incurred by Landlord.
ARTICLE TWELVE
TERMINATION
12.1 SURRENDER OF LEASED PREMISES: On expiration of this Lease, if no
Event of Default exists, Tenant shall surrender the Leased Premises in the same
condition as when the Lease Term commenced, ordinary wear and tear or damage
from casualty excepted. Except for furnishings, trade fixtures and other
personal property installed at Tenant's expense, all alterations, additions or
improvements, whether temporary or permanent in character, made in or earlier
termination of the Lease Term shall remain on the Leased Premises without
compensation to Tenant, except if requested by Landlord, Tenant, at its expense
and without delay, shall remove any alterations, additions or improvements made
to the Leased Premises by Tenant and designated by Landlord to be removed, at
the time Landlord consented to the installation and repair any damage to the
Leased Premises or the Building caused by such removal. Tenant shall have no
obligation to remove or restore any alterations made as part of the initial
Tenant build-out. If Tenant fails to repair the Leased Premises, Landlord may
complete such repairs and Tenant shall reimburse Landlord for such repair and
restoration. Landlord shall have the option to require Tenant to remove all its
property. If Tenant fails to remove such property as required under this Lease,
Landlord may dispose of such property in its sole discretion without any
liability to Tenant, and further may charge the cost of any such disposition to
Tenant.
12.2 HOLD OVER TENANCY: If Tenant shall hold over after the Lease
Expiration Date, Tenant may be deemed, at Landlord's option, to occupy the
Leased Premises as a tenant from month to month, which
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tenancy may be terminated by one month's written notice. During such tenancy,
Tenant agrees to pay to Landlord, monthly in advance, an amount equal to double
of all Rent which would become due (based on Base Rent and Tenant's pro Rata
Share of Excess Operating Costs payable for the last month of the Lease Term,
together with all other amounts payable by Tenant to Landlord under this Lease),
and to be bound by all of the terms, covenants and conditions herein specified.
If Landlord relets the Leased Premises or any portion thereof to a new tenant
and the term of such new lease commences during the period for which Tenant
holds over, Landlord shall also be entitled to recover from Tenant all costs and
expenses, attorneys fees, damages or loss of profits incurred by Landlord as a
result of Tenant's failure to deliver possession of the Leased Premises to
Landlord when required under this Lease.
ARTICLE THIRTEEN
MISCELLANEOUS
13.1 QUIET ENJOYMENT: If and so long as Tenant pays all Rent and keeps
and performs each and every term, covenant and condition herein contained on
the part of Tenant to be kept and performed, Tenant shall quietly enjoy the
Leased Premises without hindrance by Landlord.
13.2 ACCORD AND SATISFACTION: No receipt and retention by Landlord of any
payment tendered by Tenant in connection with this Lease shall constitute an
accord and satisfaction, or a compromise or other settlement, notwithstanding
any accompanying statement, instruction or other assertion to the contrary
unless Landlord expressly agrees to an accord and satisfaction, or a compromise
or other settlement, in a separate writing duly executed by Landlord. Landlord
will be entitled to treat any such payments as being received on account of any
item or times of Rent, interest, expense or damage due in connection herewith,
in such amounts and in such order as Landlord may determine at its sole option.
13.3 SEVERABILITY: The parties intend this Lease to be legally valid and
enforceable in accordance with all of its terms to the fullest extent permitted
by law. If any term hereof shall be invalid or unenforceable, the parties agree
that such term shall be stricken from this Lease to the extent unenforceable,
the same as if it never had been contained herein. Such invalidity or
unenforceability shall not extent to any other term of this Lease, and the
remaining terms hereof shall continue in effect to the fullest extent permitted
by law, the same as if such stricken term never had been contained herein.
13.4 SUBORDINATION AND ATTORNMENT: Tenant acknowledges that this Lease
is subordinate to all leases in which Landlord currently is lessee and to any
mortgage or deed of trust now in force against the Building and to all advances
made or hereafter to be made thereunder and, provided the holder thereof agrees
in writing for Tenant's benefit not to disturb Tenant's rights under this Lease
so long as there is no Event of Default under this Lease, Tenant agrees that
this Lease shall be subordinate to any future leases in which Landlord is
lessee and to any future first mortgage or deed of trust hereafter in force
against the Building and to all advances made or hereafter to be made
thereunder (all such existing and future leases, mortgages and deeds of trust
referred to collectively as "Superior Instruments"). Tenant also agrees that if
the holder of any Superior Instrument elects to have this Lease superior to its
Superior Instrument and gives notice of its election to Tenant, then this Lease
shall be superior to the lien of any such lease, mortgage or deed of trust and
all renewals, replacements and extensions thereof, whether this Lease is dated
before or after such lease, mortgage or deed of trust. If requested in writing
by Landlord or any first mortgagee or ground lessor of Landlord, Tenant agrees
to execute a subordination agreement required to further effect the provisions
of this paragraph.
In the event of any transfer in lieu of foreclosure or termination of a
lease in which Landlord is lessee or the foreclosure of any Superior
Instrument, or sale of the Property pursuant to any Superior Instrument, Tenant
shall attorn to such purchaser, transferee or lessor and recognize such party
as landlord under this Lease, provided such party acquires and accepts the
Leased Premises subject to this Lease. The agreement of Tenant to attorn
contained in the immediately preceding sentence shall survive any such
foreclosure sale or transfer.
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13.5 ATTORNEY'S FEES: If the services of an attorney are required by any
party to secure the performance under this Lease or otherwise upon the breach
or default of the other party to the Lease, or if any judicial remedy is
necessary to enforce or interpret any provision of the Lease, the prevailing
party shall be entitled to reasonable attorney's fees, costs and other
expenses, in addition to any other relief to which such prevailing party may be
entitled.
13.6 APPLICABLE LAW: This Lease shall be construed according to the laws
of the state in which the Leased Premises are located.
13.7 BINDING EFFECT; GENDER: This Lease shall be binding upon and inure to
the benefit of the parties and their successors and assigns. It is understood
and agreed that the terms "Landlord" and "Tenant" and verbs and pronouns in the
singular number are uniformly used throughout this Lease regardless of gender,
number or fact of incorporation of the parties hereto.
13.8 TIME: Time is of the essence of this Lease.
13.9 ENTIRE AGREEMENT: This Lease and the schedules and addenda attached
set forth all the covenants, promises, agreements, representations, conditions,
statements and understandings between Landlord and Tenant concerning the Leased
Premises and the Building and the Project, and there are no representations,
either oral or written between them other than those in this Lease. This Lease
shall not be amended or modified except in writing signed by both parties.
Failure to exercise any right in one or more instances shall not be construed
as a waiver of the right to strict performance or as an amendment to this Lease.
13.10 NOTICES: Any notice or demand provided for or given pursuant to this
Lease shall be in writing and served on the parties at the addresses listed in
paragraph 1.1(m) and paragraph 1.1(n). Any notice shall be either (i)
personally delivered to the addressee set forth above, in which case it shall
be deemed delivered on the date of delivery to said addressee; or (ii) sent by
registered or certified mail/return receipt requested, in which case it shall
be deemed delivered 3 business days after being deposited in the U.S. Mail;
(iii) sent by a nationally recognized overnight courier, in which case it shall
be deemed delivered 1 business day after deposit with such courier; or (iv)
sent by telecommunication ("Fax") during normal business hours in which case it
shall be deemed delivered on the day sent, provided an original is received by
the addressee after being sent by a nationally recognized overnight courier
within 1 business day of the Fax. The addresses and Fax numbers listed in
paragraphs 1.1(m) and 1.1(n) may be changed by written notice to the other
parties, provided, however, that no notice of a change of address or Fax number
shall be effective until the date of delivery of such notice. Copies of notices
are for informational purposes only and a failure to give or receive copies of
any notice shall be deemed a failure to give notice.
13.11 HEADINGS: The headings on this Lease are included for convenience
only and shall not be taken into consideration in any construction or
interpretation of this Lease or any of its provisions.
13.12 BROKERAGE COMMISSIONS: Tenant and Landlord each represents to the
other that no broker or agent was instrumental in procuring or negotiating or
consummating this Lease other than Broker of Record whose compensation shall be
paid by Landlord, and Cooperating Broker, if any, whose compensation shall be
paid by Broker of Record, and Tenant and Landlord each agree to defend,
indemnify and hold harmless the other party against any loss, cost, expense or
liability for any compensation, commission, fee or charge, including reasonable
attorney's fees, resulting from any claim of any other broker, agent or finder
claiming under or through the indemnifying party in connection with this Lease
or its negotiation.
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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 AND DELIVERY BY BOTH LANDLORD AND TENANT.
This Lease is executed as of the date first written above.
TENANT: LANDLORD:
The Management Network Group, Inc. LIGHTON PLAZA, L.L.C.
----------------------------------- a Kansas limited liability company
a Kansas corporation
By: /s/ XXXXXXX X. XXXXXXX By: Allstate Insurance Company
------------------------------- a member
Its President & CEO
---------------------------
By: By: /s/ [Signature Illegible]
------------------------------- ------------------------------
Its Authorized Signatory
Its
---------------------------
Where Tenant is a corporation, this Lease shall be signed by a President or
Vice President and Secretary or Assistant Secretary of Tenant. Any other
signatories shall require a certified corporate resolution.
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SCHEDULE 1
DESCRIPTION OF THE PREMISES AND FLOOR PLAN
The Network Management Group Inc.
Lighton Plaza I
0000 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx
2,351 rentable square feet
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SCHEDULE 2
RULES AND REGULATIONS
1. The sidewalks, entrances, halls, corridors, elevators and stairways of the
Building and Project shall not be obstructed or used as a waiting or lounging
place by tenants, and their agents, servants, employees, invitees, licensees
and visitors. All entrance doors leading from any Leased Premises to the
hallways are to be kept closed at all times.
2. Landlord reserves the right to refuse admittance to the Building after
reasonable business hours, as established from time to time, to any person not
producing both a key to the Leased Premises and/or a pass issued by Landlord. In
case of invasion, riot, public excitement or other commotion, Landlord also
reserves the right to prevent access to the Building during the continuance of
same. Landlord shall in no case be liable for damages for the admission or
exclusion of any person to or from the Building.
3. Landlord will furnish each tenant with two keys to each door lock on the
Leased Premises, and Landlord may make a reasonable charge for any additional
keys and access cards requested by any tenant. No tenant shall have any keys
made for the Leased Premises; nor shall any tenant alter any lock, or install
new or additional locks or bolts, on any door without the prior written approval
of Landlord. If Landlord approves any lock alteration or addition, the tenant
making such alteration shall supply Landlord with a key for any such lock or
bolt. Each tenant, upon the expiration or termination of its tenancy, shall
deliver to Landlord all keys and access cards in any such tenant's possession
for all locks and bolts in the Building.
4. No tenant shall cause any unnecessary labor by reason of such tenant's
carelessness or indifference in the preservation of good order and cleanliness
of the Leased Premises. Tenants will see that (i) the windows are closed, (ii)
the doors securely locked, and (iii) all water faucets and other utilities are
shut off (so as to prevent waste or damage) each day before leaving the Leased
Premises. In the event tenant must dispose of crates, boxes, etc. which will
not fit into office waste paper baskets, it will be the responsibility of
tenant to dispose of same. In no event shall tenant set such items in the
public hallways or other areas of the Building or garage facility, excepting
tenant's owned Leased Premises, for disposal.
5. Landlord reserves the right to prescribe the date, time, method and
conditions that any personal property, equipment, trade fixtures, merchandise
and other similar items shall be delivered to or removed from the Building. No
iron safe or other heavy or bulky objects shall be delivered to or removed from
the Building, except by experienced safe men, movers or riggers approved in
writing by Landlord. All damage done to the Building by the delivery or removal
of such items, or by reason of their presence in the Building, shall be paid to
Landlord, immediately upon demand, by the tenant by, through, or under whom
such damage was done. There shall not be used in any space, or in the public
halls of the Building, either by tenant or by jobbers or others, in the
delivery or receipt of merchandise, any hand trucks, except those equipped with
rubber tires.
6. Tenant shall not cover or obstruct any skylights, windows, doors and
transoms that reflect or admit light into passageways or into any other part of
the Building.
7. The toilet rooms, toilets, urinals, wash bowls and water apparatus shall
not be used for any purpose other than those for which they were constructed or
installed, and no sweepings, rubbish, chemicals, or other unsuitable substances
shall be thrown or placed therein. The expense of any breakage, stoppage or
damage resulting from violation(s) of this rule shall be borne by the tenant by
whom, or by whose agents, employees, invitees, licensees or visitors, such
breakage, stoppage or damage shall have been caused.
8. No sign, name, placard, advertisement or notice visible from the exterior
of any Leased Premises, shall be inscribed, painted or affixed by any tenant on
any part of the Building or Project without the prior written approval of
Landlord. All signs or letterings on doors, or otherwise, approved by Landlord
shall be inscribed,
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painted or affixed at the sole cost and expense of the tenant, by a person
approved by Landlord. A directory containing the names of all tenants in the
Building shall be provided by Landlord at an appropriate place on the first
floor of the Building.
9. No signalling, telegraphic or telephonic instruments or devices, or other
wires, instruments or devices, shall be installed by Tenant in connection with
any Leased Premises without the prior written approval of Landlord or
specifically identified and located on Construction Documents as defined in
Schedule 6. Such installations, and the boring or cutting for wires, shall be
made at the sole cost and expense of the tenant and under control and direction
of Landlord. Landlord retains, in all cases, the right to require (i) the
installation and use of such electrical protecting devices that prevent the
transmission of excessive currents of electricity into or through the Building,
(ii) the changing of wires and of their installation and arrangement
underground or otherwise as Landlord may direct, and (iii) compliance on the
part of all using or seeking access to such wires with such rules as Landlord
may establish relating thereto. All such wires used by tenants must be clearly
tagged at the distribution boards and junction boxes and elsewhere in the
Building, with (i) the number of the Leased Premises to which said wires lead,
(ii) the purpose for which said wires are used, and (iii) the name of the
company operating same.
10. Tenant, their agents, servants or employees, shall not (a) go on the roof
of the Building, (b) use any additional method of heating or air conditioning
the Leased Premises, (c) sweep or throw any dirt or other substance from the
Leased Premises into any of the halls, corridors, elevators, or stairways of
the Building, (d) bring in or keep in or about the Leased Premises any vehicles
or animals of any kind, (e) install any radio or television antennae or any
other device or item on the roof, exterior walls, windows or windowsills of the
Building, (f) place objects against glass partitions, doors or windows which
would be unsightly from the interior or exterior of the Building, (g) use any
Leased Premises (i) for lodging or sleeping, (ii) for cooking (except that the
use by any tenant of Underwriter's Laboratory-approved equipment for
microwaving, brewing coffee, tea and similar beverages shall be permitted,
provided that such use is in compliance with law), (iii) for any manufacturing,
storage or sale of merchandise or property of any kind, (h) cause or permit
unusual or objectionable odor to be produced or permeate from the Leased
Premises, including, without limitation, duplicating or printing equipment
fumes, and (i) install or operate any vending machines in the Leased Premises
unless specifically identified and located on Construction Documents as defined
in Schedule 6. Tenant, its agents, servants and employees, invitees, licensees,
or visitors shall not permit the operation of any musical or sound producing
instruments or device which may be heard outside Leased Premises, Building or
garage facility, or which may emit electrical waves which will impair radio or
television broadcast or reception from or into the Building.
11. No canvassing, soliciting, distribution of hand bills or other written
material, or peddling by Tenant shall be permitted in the Building or the
Project, and tenants shall cooperate with Landlord in prevention and
elimination of same.
12. Tenant shall give Landlord prompt notice of all accidents to or defects in
air conditioning equipment, plumbing, electrical facilities or any part or
appurtenances of Leased Premises.
13. If any Leased Premises becomes infested with vermin by acts of Tenant, the
Tenant, at its sole cost and expense, shall cause its premises to be
exterminated from time to time to the satisfaction of the Landlord and shall
employ such exterminators as shall be approved by Landlord.
14. No curtains, blinds, shades, screens, awnings or other coverings or
projections of any nature shall be attached to or hung in, or used in
connection with any door, window or wall of the premises of the Building by
Tenant without the prior written consent of Landlord.
15. Landlord shall have the right to prohibit any advertising by tenant which,
in Landlord's opinion, tends to impair the reputation of Landlord or of the
Building, or its desirability as an office building for existing or
22
prospective tenants who require the highest standards of integrity and
respectability, and upon written notice from Landlord, tenant shall refrain
from or discontinue such advertising.
16. Wherever the word "tenant" occurs, it is understood and agreed that it
shall also mean tenant's associates, employees, agents and any other person
entering the Building or the Leased Premises under the express or implied
invitation of tenant. Tenant shall cooperate with Landlord to assure compliance
by all such parties with rules and regulations.
17. Landlord will not be responsible for lost or stolen personal property,
equipment, money or any article taken from Leased Premises, Building or garage
facilities regardless of how or when loss occurs.
18. All contractors and or technicians performing work for Tenant within the
Leased Premises, Building or garage facilities shall be referred to Landlord for
approval before performing such work. This shall apply to all work including,
but not limited to, installation of telephones, electrical devises and
attachments, and all installations affecting floors, walls, windows, doors,
ceilings, equipment of any other physical feature of the Building, Leased
Premises or garage facilities.
19. Showcases and any other articles shall not be placed in front of or
affixed to any part of the exterior of the Building, nor placed in the halls,
corridors or vestibules by Tenant without the prior written consent of Landlord.
20. The Tenant shall not do anything in the Leased Premises, or bring or keep
anything herein, which will in any way increase or tend to increase the risk of
fire or rate of insurance, or which shall conflict with the Regulations of the
Fire Department, any fire laws, with any insurance policy on the Building or
any part thereof, or with any rules or ordinances established by any
governmental authority.
21. The requirements of Tenant will be attended to only upon application to
the Managing Agent, Employees of Landlord shall not perform any work or do
anything outside of their regular dates unless under special instructions from
Landlord, and no employee will admit any person (Tenant or otherwise) to any
office without specific instructions from Landlord.
22. No Tenant shall obtain for use upon the Leased Premises ice, drinking
water, towel or other similar service or accept barbering or other personal
services on the Leased Premises, except for persons authorized by Landlord and
at the hours and under regulations fixed by Landlord.
23. Landlord reserves the right to make reasonable amendments, modifications
and additions to the rules and regulations heretofore set forth, and to make
additional reasonable rules and regulations, as in Landlord's sole judgment may
from time to time be needed for the safety, care, cleanliness and preservation
of good order of the Building.
23
SCHEDULE 3
UTILITY SERVICES
The Landlord shall provide, as part of Operating Costs, except as otherwise
provided, the following services:
(1) Air Conditioning and heat for normal purposes only, to provide in
Landlord's judgment, comfortable occupancy Monday through Friday from 7:00 a.m.
to 6:00 p.m., and Saturday from 9:00 a.m. to 12:00 noon, Sundays and holidays
excepted. Tenant agrees not to use any apparatus or device, in or upon or about
the Leased Premises, and Tenant further agrees not to connect any apparatus or
device with the conduits or pipes, or other means by which such services are
supplied, for the purpose of using additional or unusual amounts of such
services, without written consent of Landlord.
(2) Electric power for lighting and operating of office machines shall be
available 24 hours a day, seven days a week. Electric power furnished by
Landlord is intended to be that consumed in normal office use for lighting and
small office machines including desktop computers, copiers and fax machines.
(3) Water for drinking, lavatory and toilet purposes from the regular
Building supply (at the prevailing temperature) through fixtures installed by
Landlord, (or by Tenant with Landlord's written consent).
24
SCHEDULE 4
MAINTENANCE SERVICES
(1) In order that the Building may be kept in a state of cleanliness, each
tenant shall during the term of each respective lease, permit Landlord's
employees (or Landlord's agent's employees) to take care of and clean the
Leased Premises and tenants shall not employ any person(s) other than
Landlord's employees (or Landlord's agent's employees) for such purpose.
(2) Landlord shall supply public restroom supplies, public area lamp
replacement, window washing with reasonable frequency, and janitorial services
to the common areas of the Building and Leased Premises during the time and in
the manner that such janitorial services are customarily furnished in general
office buildings in the area.
(3) Landlord agrees to maintain the exterior and common areas of Building to
include maintenance of the structure, roof, mechanical, electrical and HVAC
equipment, architectural finish, lawn and shrub care, snow removal and so on,
excluding only those items specifically excepted elsewhere in this Lease.
25
SCHEDULE 5
PARKING
Landlord hereby grants to Tenant a license to the use during the term of this
Lease the spaces described in Article 1.1j. Said parking spaces shall be made
available to Tenant on an allocated basis and Tenant agrees to comply with such
reasonable rules and regulations as may be made by Landlord from time to time
in order to insure the proper operation of the parking facilities. In
consideration of the right to use said parking spaces, Tenant shall pay to
Landlord on the first day of each calendar month, the amount specified in
Article 1.1j, in addition to the Rent and other charges payable by Tenant under
this Lease. Tenant agrees not to overburden the parking facilities and agrees
to cooperate with Landlord and other tenants in the use of parking facilities.
Landlord reserves the right in its sole discretion to determine whether parking
facilities are becoming crowded, and in such event, to allocate specific
parking spaces among Tenant and other tenants or to take such other steps
necessary to correct such condition, including but not limited to policing and
towing, and if Tenant, its agents, officers, employees, contractors, licensees
or invitees are deemed by Landlord to be contributing to such condition, to
charge to Tenant as Rent that portion of the cost thereof which Landlord
reasonably determines to be caused thereby. Landlord may, in its sole
discretion, change the location and nature of the parking spaces available to
Tenant, provided that after such change, there shall be available to Tenant
approximately the same number of spaces as available before such change.
26
SCHEDULE 6
1. Definitions. The terms defined in this paragraph, for purposes of this
Schedule, shall have the meanings specified below, and, in addition to the
terms defined below, terms defined in the Lease shall, for purposes of this
Schedule, have the meanings specified in the Lease.
1.01 "Leasehold Improvements" means those items which are supplied,
installed and finished by Landlord, according to and described in the
Construction Documents (as hereinafter defined) and which shall be paid for
by Landlord (subject to the Allowance) as provided for in paragraph 2.03
below.
1.02 "Construction Documents" means the approved construction drawings,
plans and specifications, referred to in paragraph 2.03.
1.03 "Substantial Completion" means that the Leasehold Improvements have
been substantially completed according to the Construction Documents,
except for items which will not materially affect the use of the Leased
Premises or which customarily are deemed to be "punchlist work". Landlord
shall attain a Certificate of Occupancy prior to Tenant's occupancy or rent
commencement.
2. Construction Documents: Payments
2.01 The parties have approved a preliminary floor plan for the Leased
Premises, a copy of which is attached to the Lease as Schedule 1 (the
"Preliminary Plan").
2.02 Landlord shall cause to be prepared and submitted to Tenant for
approval all drawings, plans and specifications necessary to construct the
Leasehold Improvements. Within twenty (20) business days from the date the
documents are submitted ("Document Approval Period"), Tenant shall approve
or disapprove the documents. If Tenant fails to respond within the Document
Approval Period, Landlord shall have the right to terminate this Lease. If
the Tenant disapproves the documents within the Approval Period, then the
Landlord and Tenant shall attempt to resolve the objections of Tenant; and
if a resolution cannot be reached within twenty (20) days of Tenant's
notice of disapproval, then either Tenant or Landlord shall have the right
to terminate the Lease by written notice to the other.
The fees and expenses for preparing the drawings, plans and specifications
shall be included in the Final Cost (defined in paragraph 2.03 below).
2.03 Upon Tenant's approval of the final form of the drawings, plans and
specifications, which shall constitute the Construction Documents, Landlord
shall prepare an analysis of the cost of constructing the Leasehold
Improvements according to the Construction Documents (the "Final Cost") and
submit such analysis to Tenant for its approval. Within twenty (20)
business days from the date the Final Cost has been submitted ("Cost
Approval Period"), Tenant shall approve or disapprove the Final Cost. If
Tenant fails to respond within the Cost Approval Period, it shall be
conclusively presumed that Tenant has approved the Final Costs. If Tenant
does not approve the Final Cost, it shall promptly notify Landlord, in
which case Tenant and Landlord shall use their best efforts to amend the
Construction Documents in a manner satisfactory to each. If they are unable
to do so within 10 days after Tenant notifies Landlord as provided in the
preceding sentence, either party may terminate the Lease by delivering
written notice to the other. Tenant acknowledges that Landlord's sole
monetary obligation is to pay the costs attributable to the construction of
the Leasehold Improvements, up to an aggregate maximum limit of $10.00 per
square foot of Tenant's Square Footage (the "Allowance"), and Tenant shall
pay all other costs of the construction of the Leasehold Improvements
1
27
("Tenant's Share"). In addition, all costs attributable to tenant requested
and approved changes and variations from the Construction Documents in
excess of the Final Cost (including, without limitation, any fees and
expenses of the Consultants and any increased costs of construction) shall
be paid by Tenant. Any additional costs not authorized by Tenant, in excess
of final cost, shall not be the responsibility of Tenant.
3. Leasehold Improvements
3.01 The following provisions shall apply to the construction of the
Leasehold Improvements:
(a) All work involved in the completion of the Leasehold Improvements
shall be carried out by Landlord and its agents and contractors under
the sole direction of Landlord. Tenant shall cooperate with Landlord
and its agents and contractors to promote the efficient and
expeditious completion of the Leasehold Improvements; and
(b) Landlord agrees to construct the Leasehold Improvements in
accordance with the Construction Documents, provided Tenant has
complied with all the applicable provisions of this Schedule and the
Lease.
3.02 If there are any changes in the Leasehold Improvements requested by,
or on behalf of, Tenant from the work as reflected in the Construction
Documents, each such change must receive the prior written approval of
Landlord, and Tenant shall bear the cost of all such changes.
3.03 Landlord shall have no obligation to commence construction of any work
in the Leased Premises until (a) Tenant has approved the Construction
Documents and the Final Cost for the construction of the Leasehold
Improvements as required by the provisions hereof, and (b) Landlord shall
have received Tenant's advance payment in an amount equal to the Tenant's
Share, if any.
4. Lease Commencement Date
4.01 Landlord shall notify Tenant when Substantial Completion has been
achieved and the Lease Commencement Date shall be established as set forth
in the Lease. Notwithstanding anything to the contrary contained in the
Lease or this Schedule, the Lease Commencement Date shall not be extended
for any delay in Substantial Completion to the extent that such delay is
caused in whole or in part by any act or omission attributable to Tenant,
including without limitation:
(a) Tenant's request for any Leasehold Improvements which require
materials which need to be ordered and are not immediately available;
(b) Tenant's failure to furnish promptly information concerting
Tenant's requirements pertaining to construction of the Leasehold
Improvements or any other information requested by the Landlord as
necessary or useful to prepare the Construction Documents;
(c) Tenant's failure to approve promptly the Construction Documents
and Final Cost; and
(d) Tenant's request for any changes in the Leasehold Improvements
from the work as reflected in the Construction Documents.
4.02 In any event, Rent payable under the Lease shall not xxxxx by reason
of any delay, expense or other burden arising out of or incurred in
connection with the design or construction of the Leasehold Improvements to
the extent that such delay, expense or other burden is caused in whole
2
28
or in part by any act or omission attributable to Tenant (including,
without limitation, the acts and omissions referred to in subparagraphs
(a) through (d) of paragraph 4.01 above).
5. Tenant's Access to Leased Premises
5.01 Landlord, in its sole discretion, may permit Tenant and Tenant's
agents or independent contractors to enter the Leased Premises prior to
the scheduled Lease Commencement Date in order that Tenant may do other
work as may be required by Tenant to make the Leased Premises ready for
Tenant's use and occupancy. Such permission must be in writing prior to
entry. If Landlord permits such prior entry, then such license shall be
subject to the condition that Tenant and Tenant's agents, contractors,
workmen, mechanics, suppliers, and invitees shall work in harmony with and
not interfere with Landlord and its agents and contractors in doing work
in the Leased Premises or the Building or with other tenants and occupants
of the Building or the Project. If at any time such entry shall cause or
threaten to cause disharmony or interference, Landlord, in its sole
discretion, shall have the right to withdraw and cancel such license upon
notice to Tenant. Tenant agrees that any such entry into the Leased
Premises shall be deemed to be under all of the terms, covenants,
conditions and provisions of the Lease, except as to the covenant to pay
periodic Rent. Tenant further agrees that, to the extent permitted by law,
Landlord and its principals shall not be liable in any way for any injury
or death to any person or persons, loss or damage to any of the Leasehold
Improvements or installations made in the Leased Premises or loss or
damage to property placed therein or there about, the same being at
Tenant's sole risk.
5.02 In addition to any other conditions or limitations on such license
to enter the Leased Premises prior to the Lease Commencement Date, Tenant
expressly agrees that none of its agents, contractors, workmen, mechanics,
suppliers or invitees shall enter the Leased Premises prior to the Lease
Commencement Date unless and until each of them shall furnish Landlord
with satisfactory evidence of insurance coverage, financial responsibility
and appropriate written releases of mechanics' or materialmen's lien
claims.
6. Miscellaneous Provisions. Landlord and Tenant further agree as follows:
6.01 Except as herein expressly set forth with respect to the Leasehold
Improvements, Landlord has no agreement with Tenant and has no obligation
to do any work with respect to the Leased Premises. Any other work in the
Leased Premises which may be permitted by Landlord pursuant to the terms
and conditions of the Lease shall be done at Tenant's sole cost and
expense and in accordance with the terms and conditions of the Lease.
6.02 This Schedule shall not be deemed applicable to: (a) any additional
space added to the original Leased Premises at any time, whether by the
exercise of any options under the Lease or otherwise, or (b) any portion of the
original Leased Premises or any additions thereto in the event of a renewal or
extension of the original Lease Term, whether by the exercise of any options
under the Lease or any amendment or supplement thereto. The construction of any
additions or improvements to the Leased Premises not contemplated by this
Schedule shall be effected pursuant to a separate work letter agreement or
other document, in the form then being used by Landlord and specifically
addressed to the allocation of costs relating to such construction.
3
29
SCHEDULE 7
CERTIFICATE OF ACCEPTANCE
TENANT _____________________________
LEASED PREMISES ____________________
LOCATED AT _________________________
This letter is to certify that:
1. The above referenced Leased Premises have been accepted by the Tenant for
possession.
2. The Leased Premises are substantially complete in accordance with the
plans and specifications used in connection with the demised premises.
3. The Leased Premises can now be used for intended purposes.
The execution of this certificate shall not relieve the Landlord of its
obligation to expeditiously complete all work to which the Tenant is entitled
under the terms of its lease with the Landlord. Neither this certificate, nor
Tenant's occupancy of the Leased Premises, shall be construed to relieve the
Landlord of its responsibility to remedy, correct, replace, reconstruct or
repair any deviation, deficiency or defect in the work or in the materials or
equipment furnished by the Landlord, without cost to Tenant, if a claim with
respect thereto is made by Tenant.
Commencement Date ___________________, 19____.
Expiration Date _____________________, 19____.
Executed this ____ day of ___________, 19____.
TENANT
By: __________________________
Authorized Signatory
30
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (the "Amendment") is made this 11th day of
May, 1999, by and between ASP Lighton, L.L.C. ("Landlord"), and The Management
Network Group Inc. ("Tenant").
RECITALS
A. Tenant is leasing approximately 2,351 rentable square feet of space
("Leased Premises") in the office building commonly known as Lighton Plaza I,
7300 College Boulevard, Suite 302, Overland Park, Kansas (the "Building"),
pursuant to a Lease dated April 23, 1998 and Certificate of Acceptance dated
September 10, 1998, between ASP Lighton L.L.C. and Tenant (the "Lease"). The
Leased Premises are more particularly described in the Lease.
X. Xxxxxxx Plaza L.L.C., subsequently conveyed its interest in the
building to ASP Lighton LLC.
C. Landlord and Tenant desire to amend the Lease to expand Tenant's
space in the Building on the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the Leased Premises, the Lease,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Landlord and Tenant do hereby modify and amend the
Lease as follows:
1. Demise. In addition to the currently leased space of approximately
2,351 rentable square feet ("Existing Space") as shown on EXHIBIT A, Landlord
agrees to demise and lease to Tenant, and Tenant agrees to lease from Landlord,
as of the Additional Space Commencement Date, approximately 1,006 rentable
square feet of additional space as shown on EXHIBIT B ("Additional Space"). All
references in the Lease to the Leased Premises after the Additional Space
Commencement Date shall be deemed to refer to both the Existing Space and the
Additional Space, together comprising approximately 3,357 rentable square feet
as shown on EXHIBIT C. Paragraph 1.1a is amended accordingly as of the
Additional Space Commencement Date.
2. Term of Lease of Additional Space. Except as such date may be
extended pursuant to paragraph 3 below, the lease of the Additional Space shall
commence on June 1, 1999 (the "Additional Space Commencement Date"). The lease
of the Additional Space shall terminate on August 31, 2003 at the same time the
lease of the Existing Space terminates.
3. Improvements. Improvements to be Additional Space shall be
constructed and paid for in the same manner as described in Article Four and
Schedule 6 of Lease, with the following modifications:
a. All defined terms therein shall be modified to refer only to the
Additional Space and the lease thereof;
31
b. The phrase "Lease Commencement Date" shall be modified to read
"Additional Space Commencement Date";
c. The twenty (20) day time periods set forth in Section 2 of Schedule 6
shall be modified to be fourteen (14) day time periods; and
d. Landlord's monetary obligation for construction of Leasehold
Improvements to the Additional Space shall be $8,648.00.
Notwithstanding anything to the contrary in this First Amendment or the Lease,
Tenant shall have the right to install and remove a white noise sound masking
system.
4. Tenant's Square Footage. Paragraph 1.1d of the Lease is hereby
amended as of the Additional Space Commencement Date to increase Tenant's
Square Footage to 3,357 rentable square feet.
5. Base Rent. Paragraph 1.1f of the Lease is hereby amended as of the
Additional Space Commencement Date so that Base Rent shall mean:
DATE $/RSF/YEAR RENT ANNUALLY MONTHLY RENT
--------------- ---------- ------------- -------------------
6/1/99*-8/31/99 21.80 N/A $6,098.46 per month
9/1/99-8/31/00 22.15 $74,357.04 $6,196.42 per month
9/1/00-8/31/01 22.65 $76,034.40 $6,336.20 per month
9/1/01-8/31/02 23.15 $77,713.92 $6,476.16 per month
9/1/02-8/31/03 23.65 $79,392.48 $6,616.04 per month
* or such later Additional Space Commencement Date.
6. Additional Rent. Paragraph 1.1g of the Lease is hereby amended as of
the Additional Space Commencement Date to increase Tenant's Pro Rata Share to
2.86% (3,357 rentable square feet (divided by) 117,564 rentable square feet).
7. Parking. Paragraph 1.1j of the Lease is hereby amended as of the
Additional Space Commencement Date to increase the Authorized Number of Parking
Spaces from 9 to 13.
8. Landlord's Mailing Address. Paragraph 1.1n of the Lease is hereby
amended to change Landlord's mailing address to: ASP Lighton, L.L.C., 000 Xxxx
Xxxx, XX00, Xxxxx 0000, Xxxxxx, Xxxxx, Attention: Asset Manager.
9. Ratification. Except as is explicitly amended hereby, the demised
premises shall be leased to Tenant on the terms and conditions contained in the
Lease. The Lease shall remain in full force and effect and is hereby restated,
ratified, and confirmed in accordance with its original terms, as amended
hereby. All capitalized terms not defined herein shall have the meaning
ascribed to such terms in the Lease.
32
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment to Lease on the date indicated above.
Landlord:
ASP LIGHTON, L.L.C.
By: /s/ XXXXX X. XXXXXXXXXX
----------------------------
Xxxxx X. Xxxxxxxxxx
Its: Vice President
---------------------------
Tenant:
THE MANAGEMENT NETWORK GROUP INC.
a Kansas corporation
By: /s/ XXXXXXX X. XXXXXXX
----------------------------
Xxxxxxx X. Xxxxxxx,
President and CEO
33
EXHIBIT A
The Network Management Group Inc.
Lighton Plaza I
0000 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx
Existing Space
Approximately 2,351 rentable square feet
[DIAGRAM]
34
EXHIBIT B
The Network Management Group Inc.
Lighton Plaza I
0000 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx
Additional Space
Approximately 1,005 rentable square feet
[DIAGRAM]
35
EXHIBIT C
The Network Management Group Inc.
Lighton Plaza I
0000 Xxxxxxx Xxxxxxxxx
Xxxxx 000 & 311
Overland Park, Kansas
Existing Space and Additional Space
Approximately 3,357 rentable square feet
[DIAGRAM]
36
[PANASONIC CREDIT COMPANY LOGO] EQUIPMENT LEASE AGREEMENT
Agreement #_____________
--------------------------------------------------------------------------------
SUPPLIER: Unisource, Inc. LESSEE: The Management Network Group, Inc.
0000 Xxxxxx Xx. 0000 Xxxxxxx Xxxx. Xxxxx 000
Xxxxxx, XX 00000 Xxxxxxxx Xxxx, XX 00000
Quantity Equipment Model & Description Serial Number
1 UF-770 01981001155
-------- -------------------------------------------- --------------------
-------- -------------------------------------------- --------------------
-------- -------------------------------------------- --------------------
[ ] See attached schedule for additional Equipment
TRANSACTION TERMS: [ ] ADVANCE RENT $ N/A
RENT $137.50 (plus applicable taxes) LEASE TERM 12 months (plus applicable taxes)
PAYABLE: (check one) [x] Monthly [ ] Other ( ) [ ] SECURITY DEPOSIT $ N/A
PURCHASE OPTION AT END OF LEASE TERM: (check one) [ ] 1.00
[X] Fair Market Value or [ ] Other ( )
LEASE RATE FACTOR:
----------------
Equipment Location (if different from Lessee address above):
--------------------------------------
Lessee Contact/Telephone: Xxxxxxx - 000-0000
------------------------------------------------------------------------
WE HAVE WRITTEN THIS LEASE IN PLAIN LANGUAGE BECAUSE WE WANT YOU TO UNDERSTAND
ITS TERMS. PLEASE READ YOUR COPY OF THIS LEASE CAREFULLY AND FEEL FREE TO ASK US
ANY QUESTIONS YOU MAY HAVE. THE WORDS "YOU" AND "YOUR" MEAN THE LESSEE NAMED
ABOVE. THE WORDS "WE", "US", AND "OUR" REFER TO THE LESSOR NAMED BELOW.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS LEASE (INCLUDING THOSE ON THE
REVERSE SIDE) SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE
ENFORCEABLE. TERMS OR ORAL PROMISES WHICH ARE NOT CONTAINED IN THIS WRITTEN
LEASE MAY NOT BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS LEASE ONLY
BY ANOTHER WRITTEN AGREEMENT BETWEEN YOU AND US. YOU AGREE TO COMPLY WITH THE
TERMS AND CONDITIONS OF THIS LEASE. THIS LEASE IS NOT CANCELABLE, YOU AGREE THAT
THE EQUIPMENT WILL BE USED FOR BUSINESS PURPOSES ONLY AND NOT FOR PERSONAL,
FAMILY OR HOUSEHOLD PURPOSES.
YOU CERTIFY THAT ALL THE INFORMATION GIVEN IN THIS LEASE AND YOUR APPLICATION
WAS CORRECT AND COMPLETE WHEN THIS LEASE WAS SIGNED. THIS LEASE IS NOT BINDING
UPON US OR EFFECTIVE UNTIL AND UNLESS WE EXECUTE THIS LEASE. THIS LEASE WILL BE
GOVERNED BY THE LAWS OF THE STATE OF MISSOURI. YOU AGREE TO THE JURISDICTION AND
VENUE OF FEDERAL COURTS IN MISSOURI AND STATE COURTS IN XXXXXXXX COUNTY,
MISSOURI.
ACCEPTED BY: PROPOSED BY:
LESSOR: PANASONIC COMMUNICATIONS & SYSTEMS COMPANY, LESSEE: The Management Network Group Inc.
DIVISION OF MATSUSHITA ELECTRIC CORPORATION OF AMERICA -------------------------------------
0000 Xxxxx Xxxxx, Xxxxxxx, XX 00000 (legal name)
BY: BY: x /s/ XXXXXXX XXXXXXXX
------------------------------------- --------------------------------------
(Signature of Authorized Signer)
TITLE:
------------------------------------- --------------------------------------
(Printed Name and Title)
DATE: DATE: 11-24-99 FED TAX ID#: 000000000
-------------------------------------- ---------- -----------------------
UNCONDITIONAL GUARANTY
In consideration of Lessor entering into the above Lease in reliance on this
guaranty, the undersigned, together and separately, unconditionally and
irrevocably guarantee to Lessor, its successors and assigns, the prompt payment
and performance of all obligations under the Lease. We agree that (a) this is a
guaranty of payment and not of collection, and that Lessor can proceed directly
against us without disposing of any security or seeking to collect from Lessee,
(b) we waive all defenses and notices, including those of protest, presentment
and demand, (c) Lessor may renew, extend or otherwise change the terms of the
Lease without notice to us and we will be bound by such changes, and (d) we will
pay all of Lessor's costs of enforcement and collection. This guaranty survives
the bankruptcy of Lessee and binds our administrators, successors and assigns.
Our obligations under this guaranty continue even if Lessee becomes insolvent or
bankrupt or is discharged from bankruptcy and we agree not to seek to be repaid
by Lessee in the event we must pay Lessor. THIS GUARANTY WILL BE GOVERNED BY THE
SAME STATE LAW AS THE LEASE. WE AGREE TO JURISDICTION AND VENUE IN THE STATE AND
FEDERAL COURTS IN THE SAME STATE AND COUNTY.
PERSONAL: PERSONAL:
By Individually By Individually
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Address: Address:
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Social Security Number: Social Security Number:
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Witness: Witness:
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