COVER SHEET
FOR
LEASE AGREEMENT
OWNER: NORTH POINT ASSOCIATES LIMITED PARTNERSHIP
TENANT: GAME-TECH INTERNATIONAL, INC.
TABLE OF CONTENTS
BASIC LEASE PROVISIONS
GENERAL LEASE PROVISIONS
1. Incorporation of Attachments; Definitions
2. Lease Grant
3. Term
4. Payment of Rent
5. Base Rent and Percentage Rent
6. Additional Rent; Escalation
7. Late Charge and Interest on Overdue Rent
8. Security Deposit
9. Use of Premises; Merchant's Association; Covenants
10. Use of Common Areas; Parking
11. Rules and Regulations
12. Building Services and Utilities
13. Owner's Construction of Premises
14. Tenant's Alterations
15. Repairs and Maintenance
16. Signs and Advertising
17. Mechanics' Liens
18. Indemnification and Exculpation
19. Tenant's Liability Insurance; Subrogation of Rights
20. Subordination
21. Estoppel Certificates
22. Assignment and Subletting by Tenant
23. Holding Over
24. Acceptance of Surrender of Premises
25. Condemnation
26. Fire and Other Casualty
27. Events of Default
28. Owner's Remedies
29. Owner's Lien
30. Certain Rights Reserved by Owner
31. Relocation of Tenant
32. Brokers
33. Quiet Enjoyment
34. Notices
35. Force Majeure
36. Entire Agreement; Amendments; Waivers; Binding Effect
37. Severability
38. Joint and Several Liability of Tenant
39. Owner's Liability Limitation
40. Arbitration
41. Waiver of Trial by Jury
42. Applicable Law
43. Miscellaneous
44. Special Provisions
45. Acts to be Performed by Tenant prior to Tenant's Construction
46. Personal Property Taxes
47. Transfer of Interest
48. Special Provisions
RIDERS
I Additional Rent; Escalation
II Building Services and Utilities
EXHIBITS
A Description of Building and Premises
B Rules and Regulations
C Tenant Finish
D Operating Expenses
E Legal Description
ADDENDUM I
BASIC LEASE PROVISIONS
LEASE DATE June 12, 1996
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TENANT:
Name: GameTech International, Inc.
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Legal Form: Corporation
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Legal Situs: Arizona
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Address: 0000 X. Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxxxxxx 00000
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Authorized Representative: Xxxxxxx X. Xxxxxxx
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Telephone: 000-000-0000
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OWNER: New North Point Associates Limited Partnership
A Colorado Limited Partnership
c/o Xxxx Xxxxxxxxxx
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx XX 00000
(000) 000-0000
LAND: The tract of land located in Xxxxx County and described in Exhibit A.
BUILDING: The building commonly known as 00000 X. Xxxxx Xxxxxx situated on
the Land and described in or depicted on Exhibit A.
PREMISES: Suite No.(s) See Exhibit A, being the portion(s) of the Building
shown on the Floor Plan, Exhibit A.
STATE: Colorado
TERM: Three years 0 months (subject to adjustment pursuant to Paragraph 3).
ENDING DATE OF TERM (pursuant to Paragraph 3): May 31, 1999
Initials: Owner [Initials] Tenant
ESTIMATED COMMENCEMENT DATE: June 17, 1996.
ACTUAL COMMENCEMENT DATE: (pursuant to Paragraph 3): June 17, 1996
Initials: Owner [Initials] Tenant
BASE RENT: $ See Addendum per year, payable in monthly installments of $ See
Addendum per month.
REIMBURSEMENT INTEREST RATE: 12 % per annum.
OVERDUE INTEREST RATE: 18 % per annum (but never to exceed the maximum rate
of interest permitted by applicable law to be charged Tenant for the use,
forbearance or detention of money).
SECURITY DEPOSIT: $828.33
LATE CHARGE: 5 % of the installment of Base Rent and Additional Rent due and
unpaid.
FIRST OPERATING COST YEAR: Means the twelve month period commencing on the
first day of January, 1996.
INITIAL MONTHLY ESTIMATED ADDITIONAL RENT: $7.50 per rentable square foot
per year = $625.00 per month for the Premises.
TENANT'S PROJECT PROPORTIONATE SHARE: The percentage which expresses the
ratio between the number of square feet leased and the rentable square feet
within the project which for the purpose of the Lease shall be conclusively
deemed to be 2.25%. This percentage shall be the initial Tenant's Project
Proportionate Share. If and at such times as the Project is expanded or
diminished, Owner shall equitably adjust Tenant's Project Proportionate Share
to reflect the increased or decreased rentable square feet within the Project
using the formula set forth above.
RENTABLE AREA: Project 44,535 square feet.
Premises 1,000 square feet.
The computation of the rentable area of the Premises includes an
agreed upon loss factor representing Tenant's allocable share of
common areas. The rentable area and the useable area of the
Premises may be different, but have been stipulated and agreed
to by the parties, and the Rent and Tenant's Allocated Share
shall not be changed even if it is determined that the Premises
contains either a larger or a smaller area than indicated.
PERMITTED USE: General office
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BROKER(S): CB Commercial Real Estate, Xxxxx & Xxxxx Company
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GENERAL LEASE PROVISIONS
This LEASE AGREEMENT ("Lease") is entered into as of the Lease Date
between Owner and Tenant. In consideration of the mutual covenants herein set
forth, and intending to be legally bound hereby, Owner and Tenant agree as
follows:
1. INCORPORATION OF ATTACHMENTS; DEFINITIONS. This Lease consists of
the Cover Sheet, Table of Contents, Basic Lease Provisions, General Lease
Provisions, Riders, Addendums and Exhibits all of which are attached and
incorporated by reference for all purposes. The terms defined in the Basic
Lease Provisions, General Lease Provisions, Riders, Addendum and Exhibits
shall be deemed to have the meanings ascribed, wherever used herein. The
Cover Sheet, Table of Contents and headings of paragraphs, Riders, Addenda
and Exhibits are for convenience only and shall not be deemed to enlarge or
diminish the meanings of the provisions of this Lease.
2. LEASE GRANT. Owner leases to Tenant and Tenant leases from Owner the
Premises for the Term and upon the provisions and subject to the conditions
set forth herein.
3. TERM. (a) The Commencement Date of the Term shall be the earlier of
(i) the date on which Tenant, with Owner's approval, takes possession of the
Premises for the Permitted Use, or (ii) on the thirtieth (30th) day following
the date on which Owner notifies Tenant that the Premises will be available
for occupancy, provided that Owner's work on the Premises is substantially
completed as specified in paragraph 13 by such date, and if not then
substantially completed, (iii) five (5) days following the date of
substantial completion of such work. Upon notification as provided in (ii)
above, Owner and Tenant shall schedule a pre-occupancy inspection of the
Premises at which time all mechanical systems will be demonstrated to Tenant,
a punchlist of outstanding items, if any, shall be completed by Owner for
conformance to construction plans, and a letter of acceptance of the Premises
shall be executed by Xxxxxx, on Owner's usual form. If the Commencement Date
is other than the first day of a calendar month, the Term shall be deemed
extended by the period from (including) the Commencement Date to the end of
such month.
(b) Notwithstanding said commencement date, if for any reason Owner
cannot deliver possession of the Premises to Tenant on said date, Owner shall
not be subject to any liability therefor, nor shall such failure affect the
validity of this Lease or the obligations of Tenant hereunder. However, in
such case Tenant shall not be obligated to pay rent until possession of the
Premises is tendered to Tenant. Upon Owner's request, the parties agree to
execute in writing an Addendum to certify the Commencement Date and
expiration date hereof, but this Lease shall not be affected in any manner if
either party fails or refuses to execute such Addendum.
4. PAYMENT OF RENT. The term "Rent" means Base Rent, Additional Rent
and any charges, fees and other amounts due from tenant to Owner hereunder,
Xxxxxx agrees to pay all Rent to Owner, in lawful currency of the United
States of America, at Owner's Address or at such other location as Owner may
specify by notice to Tenant, without notice or demand (except as may be
expressly provided for herein with regard to a particular portion of Rent) and
without setoff or deduction. Tenant's obligation to pay any and all Rent
owing by Tenant to Owner under this Lease shall survive any expiration or
termination of this Lease.
5. BASE RENT. Base Rent is payable in monthly installments in advance
on the first day of each calendar month during the Term, except that the
monthly installment of Base Rent due for the first full calendar month of the
Term shall be paid on the Lease Date. If the Commencement Date is other than
the first day of a calendar month, Tenant shall pay on the Commencement Date a
pro rata portion of the monthly installment of Base Rent for the month during
which the Commencement Date falls, such pro rata portion being equal to
one-thirtieth of the monthly installment times the number of days from
(including) the commencement Date to the end of such month.
6. ADDITIONAL RENT; ESCALATION. Additional Rent shall be calculated
and is payable as provided in RIDER I.
7. LATE CHARGE AND INTEREST ON OVERDUE RENT. If any installment of
Base Rent or Additional Rent is not received within five (5) days after the
due date thereof (without in any way implying Owner's consent to such late
payment), Tenant agrees to pay Owner the Late Charge, to the extent permitted
by law, in addition to said installment of Base Rent or Additional Rent, it
being understood that the Late Charge shall constitute liquidated damages and
such liquidated damages shall be solely for the purpose of reimbursing Owner
for the additional costs and expenses which Owner presently expects to incur
in connection with the handling and processing of late payments of Base Rent
and/or Additional Rent. Owner and Tenant agree that in the event of any such
late payment by Xxxxxx, the damages resulting to Owner will be difficult to
ascertain precisely, and that the Late Charges constitutes a reasonable and
good faith estimate by the parties of the extent of such damages. In addition
to the Late Charge, Xxxxxx agrees to pay Owner interest, at the Overdue
Interest Rate, on any installment of Base Rent or Additional Rent not paid
within thirty (30) days after the due date thereof.
8. SECURITY DEPOSIT. The Security Deposit shall be delivered by Tenant
to Owner on the Lease Date, and shall be held by Owner, without liability for
interest, as security for the performance by Tenant of Tenant's covenants and
obligations under this Lease, it being expressly understood that the Security
Deposit shall not be considered an advance payment of Rent or a measure of
Owner's damages in case of default by Tenant. Upon the occurrence of any
Event of Default, Owner, from time to time and without prejudice to any other
remedy, may use the Security Deposit to the extent necessary to make good any
arrearages of Rent and any other damage, injury, expense or
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liability caused to Owner by such Event of Default. Following any such
application of the Security Deposit, Tenant shall pay Owner on demand the
amount so applied in order to restore the Security Deposit to its original
amount. If Xxxxxx is not then in default hereunder, any remaining balance of
the Security Deposit shall be returned by Owner to Tenant within a reasonable
period of time after the termination of this Lease, and in any event within
the time period prescribed by State law, if any. If Owner transfers its
interest in the Premises during the Term, Owner may assign the Security
Deposit (or so much thereof as has not been used and not restored by Xxxxxx)
to the transferee and thereafter Owner shall have no further liability to
Tenant for the return of the Security Deposit.
9. USE OF PREMISES. Tenant shall use the Premises only for the
Permitted Use. Tenant will not occupy or use the Premises, or permit any
portion of the Premises to be occupied or used, for any business or purpose
other than the Permitted Use or for any use or purpose which is unlawful in
part or in whole or deemed to be disreputable in any manner or extra
hazardous on account of fire or other casualty, nor permit anything to be
done which will in any way increase the rate of insurance on the Building or
contents; and in the event that, by reason of acts of Tenant or Tenant's
servants, employees, agents, contractors, licensees or invitees ("Tenant
Parties"), there shall be any increase in rate of insurance on the Building
or contents, then such acts shall be deemed to be an Event of Default
hereunder and Tenant hereby agrees to pay to Owner the amount of such
increase on demand. Tenant will conduct its business and control Tenant
Parties in such a manner as not to create any nuisance, nor interfere with,
annoy or disturb other tenants or Owner in the ownership or management of the
Land or Building. Tenant will maintain the Premises in a clean, healthful and
safe condition and will comply with all laws, ordinances, orders, rules and
regulations (of federal, state, municipal and other agencies or bodies having
any jurisdiction thereof), and any restrictive covenants and condominium
association by-laws, rules and regulations of which Tenant has been advised,
with reference to the use, condition or occupancy of the Premises.
10. USE OF COMMON AREAS; PARKING. (a) Tenant shall have the right,
nonexlusive and in common with others, to use (i) any common hallways,
entrances, lobbies, common restroom facilities and similar common areas of
the Building for the purposes for which the same were designed and (ii) to
use the exterior paved driveways and walkways of the Land for vehicular and
pedestrian access to the Building. Tenant shall also have the right,
nonexclusive and in common with other tenants of the Building and Owner, to
use the designated free parking areas of the Land, if any, for the parking of
automobiles and other vehicles of Tenant and its employees and business
visitors; incident to Tenant's Permitted Use of the Premises; provided that
Owner shall have the right to restrict or limit Tenant's utilization of such
parking areas in the event the same become overburdened and in such case to
allocate on a proportionate basis or assign parking spaces among Tenant and
the other tenants of the Building. Owner shall have the right to establish
other reasonable regulations, applicable to all tenants, governing the use of
or access to any interior or exterior common areas, and such regulations;
when communicated by written notification from Owner to Tenant, shall be
deemed incorporated by reference into Exhibit B hereof.
(b) Tenant covenants that under no circumstances shall Tenant allow
freight, merchandise, supplies, construction materials, trade fixtures or
other goods delivered to or from the Premises to be stored on, accumulate on,
or obstruct the entrances of the Building or the roads, trash bay, sidewalks,
driveways or parking areas within the Project. A violation or violations of
this sub-paragraph shall constitute a material breach of this lease.
(c) Tenant shall not perform or permit work to be done on the roads,
sidewalks, driveways, parking areas, landscaped areas or any other exterior
areas within the Project. This includes, but is not limited to, assembly,
construction, mechanical work, painting, drying, layout, cleaning or repair
of goods or materials.
11. RULES AND REGULATIONS. Tenant will comply fully with all
requirements of the Rules and Regulations set forth in EXHIBIT B. Owner shall
at all times have the right to change the Rules and Regulations or to
promulgate other Rules and Regulations in such manner as Owner may deem
advisable for safety, care, or cleanliness of the Building, Land and
Premises, and for preservation of good order therein, all of which
additional Rules and Regulations, changes and amendments will be forwarded to
Tenant in writing and shall be carried out and observed by Tenant. Tenant
shall further be responsible for compliance with such Rules and Regulations
by Tenant Parties. Nothing in this Lease shall be construed to impose upon
Owner any duty or obligation to enforce the rules and Regulations or terms,
covenants or conditions in any other lease, against any other tenant, and
Owner shall not be liable to Tenant for violation of the same by any other
tenant, its tenant parties, or other visitors.
12. BUILDING SERVICES AND UTILITIES. Building services and utilities
shall be provided by Owner as provided in RIDER II.
13. OWNER'S CONSTRUCTION OF PREMISES. The Premises shall be deemed to be
substantially completed when all work specified to be done in EXHIBIT C
("Tenant Finish") has been substantially completed, except for (i) minor
items of finishing and construction of a nature which are not necessary to
make the Premises reasonably tenantable for the Permitted Use, and (ii) items
not then completed because of delay by Tenant in furnishing any drawings,
plans or approvals (collectively, "Plans") required by EXHIBIT C or because
of approved requests made by Tenant subsequent to delivery of Plans, for
changes or additions therein.
14. TENANT'S ALTERATIONS. (a) Tenant will not make or allow to be made any
alterations, additions or improvements ("Alterations") in or to the Premises
without the prior written consent of Owner. Alterations to the Premises shall
be done by Owner or by contractors approved in writing by Owner, at Xxxxxx's
sole cost and expense. If Owner approves Xxxxxx's proposed Alterations and
agrees to permit Xxxxxx's contractor to do the work, Xxxxxx's contractor must
first furnish to Owner insurance coverage against such risks and in such
amounts as Owner
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may require, including but not limited to Xxxxxxx'x Compensation Insurance
(as required under the Xxxxxxx'x Compensation Act of Colorado), issued by
such companies as Owner may approve. All Alterations permitted by Owner must
conform to all rules and regulations established from time to time by the
Underwriters' Association (or comparable organization) of the local area in
which the Land and Building are located, and conform to all requirements of
all governmental entities having jurisdiction. Tenant's contractor shall also
furnish all applicable building and occupancy permits required by law. Owner
shall have the right to have Xxxxxx's contractor's work inspected by
architects and engineers, the cost of which shall be paid by Xxxxxx to Owner
on demand, with interest thereon at the Reimbursement Interest Rate from the
due date until paid. At any time Tenant either desires to, or is required to
make repairs or Alterations in accordance with this Lease, Owner may, in
addition to its other options, require Tenant at Tenant's sole cost and
expense, to obtain and provide to Owner a lien and completion bond (or such
other applicable bond as reasonably determined by Owner) in an amount equal
to one and one-half (1.5) times the estimated cost of such improvements to
insure Owner against risk and liability, including but not limited to
liability for mechanics and materialman's lien, and to insure the completion
of the work.
(b) All Alterations (whether temporary or permanent in character and
whether made with or without Owner's consent) made in or upon the Premises,
either by Owner or Tenant, shall be Owner's property upon installation and
shall remain on the Premises without compensation to Tenant unless Owner
shall, by written notice, elect to have the alterations so made be removed
upon expiration of the Term or termination of this Lease. Owner may give this
notice of election to Tenant at any time during the Term of the Lease, and
for a period of three (3) days after the expiration of the Term or the
termination of this Lease. If Owner shall make such election that Alterations
so made shall be removed, then Xxxxxx agrees to cause same to be removed and
to restore the Premises to their former condition at Tenant's sole cost and
expense, and should Tenant fail to remove the same and restore the Premises,
then Owner may cause same to be removed and the Premises restored at Xxxxxx's
expense, and Xxxxxx agrees to reimburse Owner on demand for the cost of such
removal and restoration, together with any and all damages which Owner may
suffer and sustain by reason of the failure of Tenant to remove the same with
interest thereon at the Reimbursement Interest Rate from the due date until
paid.
(c) At the Ending Date of Term or other termination of this Lease,
all furniture, movable trade fixtures and personal property of Tenant may be
removed by Tenant if Tenant so elects and no Event of Default then exists,
and shall be so removed if required by Owner, or if not so removed shall, at
the option of Owner, become the property of Owner.
(d) All Alterations, installations, removals and restoration shall
be accomplished in a good and workmanlike manner so as not to damage the
Premises or the Building, and in such manner as not to disturb other tenants
in their use and occupancy of the Building.
15. REPAIRS AND MAINTENANCE. (a) OWNER SHALL BE RESPONSIBLE FOR REPAIR
AND MAINTENANCE OF THE FOUNDATION, FLOORS (BENEATH THE CARPET OR OTHER FLOOR
COVERING), ROOF, THE EXTERIOR WALLS (EXCLUDING ALL GLASS WINDOWS, WINDOW
FRAMES AND DOORS) THE ELECTRICAL SERVICE TO THE WALL BOX (BEFORE ANY TENANT
FINISH), THE PLUMBING TO THE WALL STUBS BUT USED IN CONNECTION WITH THE
OPERATION OF THE PREMISES.
(b) Tenant shall use, operate and maintain the Premises and its
systems including all fixtures and equipment, whether installed by Tenant or
Owner, in such manner as to keep the same in good order and condition, making
all repairs and replacements necessary to maintain such good order and
condition all at Tenant's expense, including but not limited to, plumbing
from the wall stubs, electrical service from the wall box, sewer, water and
heating pipes from the exterior wall, heating, ventilation and air
conditioning systems, and all glass. The performance by Tenant of its
obligations to maintain the Premises shall be conducted only by contractors
approved in writing by Owner, it being understood that Tenant shall procure
and maintain and shall cause contractors engaged by or on behalf of Tenant to
procure and maintain insurance coverage against such risks and in such
amounts as Owner may require, including but not limited to Workmen's
Compensation Insurance (as required under the Workmen's Compensation Act of
Colorado), issued by such companies as Owner may approve, in connection with
such maintenance. If Tenant fails to make any repair within fifteen (15) days
after the occurrence of the damage necessitating same, or fails to cause
other maintenance to be performed within fifteen (15) days after notice from
Owner of the need therefor, Owner at its option may make such repair, or
cause such other maintenance to be performed, and tenant, shall on demand
therefor, pay Owner for the cost thereof, with interest thereon at the
Reimbursement Interest Rate from the due date until paid. At the Ending Date
of Term or other termination of this Lease, Tenant shall deliver up the
Premises including all Alterations (except as otherwise herein provided), in
good repair and condition, reasonable wear and tear excepted, and shall
deliver to Owner all keys to the Premises.
(c) Tenant shall give Owner prompt written notice of any damage to
or defects in, the Premises and in the plumbing, electrical, heating, air
conditioning and other systems and apparatus located in the Premises. The
obligation to repair such damages or defects shall be as stated in this
paragraph 15. In no event shall Owner be obligated to repair any damage to
the Premises or the Building caused by any act, omission or negligence of
Tenant or Tenant Parties. Tenant shall reimburse Owner for all costs and
expenses of repairing and replacing all damage to the Premises and Building
and to fixtures and equipment caused by Tenant or Tenant Parties or as the
result of all or any of them moving in or out of Building or by installation
or removal of furniture, fixtures or other property. Such costs and expenses
shall be paid by Tenant to Owner on demand, with interest thereon at the
Reimbursement Interest Rate from the due date until paid.
(d) Owner shall not be liable by reason of any injury to or
interference with Xxxxxx's business arising from
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the making of any repairs or alterations in or to the Premises or the
Building or to any appurtenances or equipment therein. There shall be no
abatement of Rent because of such repairs or alterations, or because of any
delay by Owner in making the same.
(e) Owner may, at Owner's sole discretion, enter into a mechanical
system inspection contract with a reputable service company, and Tenant shall
pay its pro rata share of the costs of said service contract. Tenant shall
pay its pro rata share of all costs of any replacements or repairs resulting
from determinations made by the inspection service. Owner may at its sole
discretion, require Tenant to enter into a regularly scheduled preventive
maintenance/service contract with a maintenance contractor for servicing all
heating and air conditioning systems and equipment within the Premises. The
maintenance contractor must be approved by Owner. The service contract must
include all services suggested by the equipment manufacturer within the
operation/maintenance manual and must become effective within thirty (30)
days of notification from Owner that said HVAC contract shall be Tenant's
responsibility. A copy of said contract is to be delivered to Owner also
within said thirty-day period. All guarantees/warranties provided with the
heating and air conditioning systems will be recognized within this program.
16. SIGNS AND ADVERTISING. No sign, advertisement or notice shall be
inscribed, painted, affixed or otherwise displayed on any part of the outside
or the inside of the Building except on the directories and doors of offices,
and then only in such place, number, size, color and style as is approved by
Owner and provided by Owner at Tenant's cost and expense; if any such sign,
advertisement or notice is nevertheless exhibited by Tenant, Owner shall have
the right to remove same and Tenant shall be liable for any and all expenses
incurred by Owner in said removal, which shall be payable by Tenant to Owner
on demand, with interest thereon at the Reimbursement Interest Rate from the
due date until paid. Owner shall have the right to prohibit (by injunction or
otherwise) any advertisement of Tenant which in Owner's opinion tends to
impair the reputation of the Building or its desirability. Upon written
notice from Owner, Tenant shall immediately refrain from and discontinue any
such advertisement.
17. MECHANIC'S LIENS. (a) Tenant will not suffer or permit any
mechanic's, laborer's or materialman's lien to be filed against the Land,
Building, or Premises, or any part thereof, by reason of work, labor services
or materials supplied or claimed to have been supplied to tenant; and if any
such lien shall at any time be filed, Tenant, within ten (10) days after
notice of the filing thereof, shall cause it to be discharged of record by
payment, deposit, bond, order of a court of competent jurisdiction or as
otherwise provided by law. If Tenant shall fail to cause such lien to be
discharged within the period aforesaid, then in addition to any other right
or remedy, Owner may, but shall not be obligated to, discharge it either by
paying the amount claimed to be due or by procuring the discharge of such
lien by deposit or by bonding or other proceedings. NOTWITHSTANDING THE
FOREGOING, Owner hereby authorizes Tenant to contest validity of any such
lien or claim, provided that in such circumstances the Tenant shall at its
expense defend itself and Owner against the same and shall pay and satisfy
any such adverse judgment that may be rendered thereon before the enforcement
thereof against the Owner, the Premises or the building, provided further
that Owner may at any time require the Tenant to post a bond with an entity
satisfactory to Owner in an amount one and one-half (1.5) times the amount of
the lien or to deposit with the Court exercising jurisdiction over such claim
such amount as either the Court or statute may determine to be sufficient as
a release and discharge of the lien. If Tenant shall not immediately make
such payment upon the request of Owner, Owner may make said payment in the
amount so paid together with interest thereon from the date of payment and
all legal costs and charges, including attorney fees incurred by Owner in
connection with said payment shall be deemed Additional Rent and shall be
payable on the next date on which a base rental installment is due. Any
amount so paid by Owner, plus all of Owner's costs and expenses associated
therewith, shall be paid by Tenant to Owner on demand, with interest thereon
at the Reimbursement Interest Rate from the due date until paid.
(b) Nothing in this Lease, nor any approval by Owner of any of
Tenant's Alterations or contractors, shall be deemed or construed in any way
as constituting consent by Owner for the making of any alterations or
additions by Xxxxxx within the meaning of any State law, or constituting a
request by Owner, expressed or implied, to any contractor, subcontractor,
laborer or materialman for the performance of any labor or the furnishing of
any materials for the use or benefit of Owner.
18. INDEMNIFICATION AND EXCULPATION. (a) Xxxxxx indemnifies and agrees to
hold harmless Owner against and from any and all claims arising from Xxxxxx's
use of the Premises, or from the conduct of Tenant's business or from any
activity, work or things done, permitted or suffered by Tenant in or about
the Premises, Land, Building or elsewhere, and Xxxxxx further indemnifies and
agrees to hold harmless Owner against and from any and all claims arising
from any breach or default in the performance of any obligation on Xxxxxx's
part to be performed under the terms of this Lease, or arising from any
negligence of Tenant or Tenant Parties, and from and against all costs,
attorney's fees, expenses and liabilities incurred in the defense of any such
claims or any action or proceeding brought thereon, and if any action or
proceeding is brought against Owner by reason of any such claim, Tenant upon
notice from Owner shall defend the same at Tenant's expense by counsel
satisfactory to Owner.
(b) Owner shall not be liable or responsible for any loss or damage
to any property or death or injury to any person occasioned by theft, fire,
act of God or public enemy, criminal conduct of third parties, injunction,
riot, strike, insurrection, war, court order, requisition or other act of
governmental body or authority, acts of other tenants of the Building, or any
other matter beyond the control of Owner, or for any injury or damage or
inconvenience which may arise through repair or alteration of any part of the
Building, or failure to make repairs, or from any cause whatever except
Owner's gross negligence or willful wrong.
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19. TENANT'S LIABILITY INSURANCE; SUBROGATION RIGHTS. (a) Tenant shall
obtain and keep in effect throughout the Term, an insurance policy or
policies, issued by insurance carriers reasonably satisfactory to Owner,
providing general public liability insurance against claims for personal
injury (including death), property damage, or otherwise, arising out of or in
any way connected with the Premises or this Lease, in amounts of not less
than a combined single limit of $1,000,000.00 or such higher amounts as Owner
shall reasonably require from time to time. Such insurance shall not be
subject to cancellation, reduction of coverage or other modification without
at least thirty (30) days prior notice to all insureds, and such insurance
shall name Owner, first mortgagee and Xxxxxx as insured and if requested by
Owner shall also name as additional insureds any lessor and any other
mortgagee.
(b) Prior to the commencement of the Term, Tenant shall provide
Owner with original certificates or duplicate originals of the policy or
policies of insurance referred to in subparagraph (a) with evidence that
premiums have been paid in full for the respective policy periods. Tenant
also shall furnish to Owner throughout the Term, replacement certificates or
renewal policies, together with evidence of like premium payment at least ten
(10) days prior to the respective expiration dates of the then current
policy or policies.
(c) Each party hereto hereby waives any cause of action it might
have against the other party on account of any loss or damage that is insured
against under any insurance policy (to the extent that such loss or damage is
recoverable under such insurance policy and only to the extent of and with
respect to any loss or damage occurring during such time as the policy or
policies of insurance covering said loss shall contain a clause or
endorsement to the effect that this waiver shall not adversely affect or
impair said insurance or prejudice the right of the insured to recover
thereunder) that covers the Building, the Land, the Premises, Owner's or
Tenant's fixtures, personal property, leasehold improvements or business and
which names Owner or Tenant, as the case may be, as a party insured. Each
party hereto agrees that it will request its insurance carrier to endorse all
applicable policies waiving the carrier's rights of recovery under
subrogation or otherwise against the other party.
(d) Tenant shall obtain and keep in effect throughout the Term of
the Lease an insurance policy or policies with coverage known as business
interruption or business continuation insurance. This policy shall name Owner
as an additional insured. Such insurance shall not be subject to
cancellation, reduction of coverage or other modification without at least
thirty (30) days prior written notice to Owner.
(e) Any insurance required by Tenant hereunder shall be in companies
rated A+, AAA or better in "Best's Insurance Guide". If in the reasonable
opinion of Owner, the amount of liability insurance required hereunder or the
coverage under such policy is not adequate, then not more frequently than
twice during this Lease and any extension or renewal term of this Lease, if
any, Tenant shall reasonably increase said insurance coverage, either in an
amount or breadth of insurance as required by Owner provided however that in
no event shall the amount of the liability insurance increase by more than
fifty per cent (50%) of the amount of the insurance during the preceding term
of this Lease.
20. SUBORDINATION. (a) This Lease and all rights of Tenant hereunder are
subject and subordinate to any first deed of trust, first mortgage or other
first instrument of security (a "Mortgage"), and at Owner's option, this
Lease and all rights of Tenant hereunder are subject and subordinate to any
junior deed of trust, junior mortgage or other junior instrument of security,
as well as to any ground Lease or primary Lease (an "Underlying Lease") that
now or hereafter covers all or any part of the Building, the Land, or any
interest of Owner therein, and to any and all advances made on the security
thereof, and to any and all increases, renewals, modifications,
consolidations, replacements and extensions of any Mortgage or Underlying
Lease. This provision is self-operative and no further instrument shall be
required to effect such subordination of this Lease. Tenant shall, however,
upon demand at any time or times execute, acknowledge and deliver to Owner or
to the holder ("Holder") of any Mortgage, or lessor ("Lessor") in any
Underlying Lease, any and all instruments and certificates that in the
judgment of Owner, Holder or Lessor may be necessary or desirable to confirm
or evidence such subordination. Not in limitation of the generality of the
foregoing, Xxxxxx agrees that any Holder shall have the right at any time to
subordinate any Mortgage to this Lease on such terms and subject to such
conditions as such Holder may deem appropriate in its discretion. Tenant
further covenants and agrees upon demand by Holder or Lessor at any time,
before or after the institution of any proceedings for foreclosure or sale
pursuant to any Mortgage, or termination of any Underlying Lease, to attorn
to the purchaser upon such foreclosure or sale or to Lessor upon such
termination, and to recognize such purchaser or Lessor as Owner under this
Lease. The agreement of Tenant to attorn contained in the immediately
preceding sentence shall survive any such foreclosure, sale or termination.
Tenant, upon demand at any time or times, before or after any such
foreclosure, sale or termination, shall execute, acknowledge and deliver to
Holder or Lessor any and all instruments that in the judgment of Holder or
Lessor may be necessary or desirable to confirm or evidence such attornment
and Tenant hereby irrevocably authorizes Holder or Lessor to execute,
acknowledge and deliver any such instruments on Tenant's behalf.
(b) If Owner shall be or is alleged to be in default of any of its
obligations owing to Tenant under this Lease, Tenant agrees to give to Holder
and Lessor a copy of any written notice (by registered or certified mail or
by delivery service) of any such default which Tenant shall have served upon
Owner, provided that prior thereto Tenant has been notified in writing (by
way of notice of assignment of rents and/or leases, or otherwise) of the name
and addresses of any such Holder and Lessor. Tenant shall not be entitled to
exercise any right or remedy as may exist because of any default by Owner
without having given such notice to Holder and Lessor; and Tenant further
agrees that if Owner shall fail to cure such default; (i) Holder or Lessor
shall have an additional thirty (30) days (measured from the later of the
date on which the default should have been cured by Owner, or the date of
Holder's or Lessor's receipt of such notice from Tenant), provided that if
such default could not be cured within
5
such thirty (30) day period and Holder or Lessor is diligently pursuing the
remedies necessary to effectuate the cure (including but not limited to
foreclosure or termination proceedings, if appropriate) such longer period as
may be necessary, within which to cure such default; and (ii) Tenant shall
not exercise any right or remedy as may exist or arise because of Owner's
default, as may be expressly provided for herein or available to Tenant as a
matter of law, if the Holder or Lessor either has cured the default within
such thirty (30) day period, or as the case may be, has initiated the cure of
same within such thirty (30) day period and is diligently pursuing the cure
of same as aforesaid.
(c) If any Holder or Lessor, or a successor of either, succeeds to
the interest of Owner in the Land or Building, or acquires the right to
possession of the Land or Building, such person shall not be (i) liable for
any act or omission of Owner under this Lease; (ii) liable for the performance
of Owner's covenants hereunder which arise and accrue prior to such person's
succeeding to the interest of Owner hereunder or acquiring such right to
possession; (iii) subject to any offsets or defenses which Tenant may have at
any time against Owner; (iv) bound by any rent which Tenant may have prepaid
for more than one month; (v) in the event the unexpired term of this Lease
exceeds three years at the time of such succession or acquisition of the
right to possession, bound by any amendment or modification hereof relating
to the reduction of rent, shortening of term, or effecting a cancellation or
surrender hereof and made without the consent of such person; or (vi) liable
for the performance of any covenant of Owner under this Lease which is
capable of performance only by the original Owner.
21. ESTOPPEL CERTIFICATES. Xxxxxx agrees, from time to time as may be
requested by Owner, Holder or Lessor, within five (5) days after such
request, to execute, acknowledge and deliver to such person(s) as may be
specified in the request, a certificate confirming and containing such
factual certifications and representations with respect to Tenant and this
Lease, as may be deemed appropriate by Owner, Holder or Lessor. Not in
limitation of the foregoing, such certificate shall confirm that this Lease
is in full force and effect and has not been amended, modified or superseded,
that Owner has satisfactorily completed all construction work required by
this Lease (subject to completion of punchlist items), that Xxxxxx has
accepted the Premises and is then in possession thereof, that Tenant has no
defense, offsets or counterclaims hereunder or otherwise against Owner with
respect to this Lease or the Premises, that Owner is not in default
hereunder, that Xxxxxx has no knowledge of any pledge or assignment of this
Lease or rentals hereunder (other than to Holder), and that Rent is accruing
under this Lease but has not been paid more than one month in advance (and
specifying the date to which Rent has been paid). If any of the foregoing
shall not be the case, Tenant shall specify in reasonable detail the extent
and nature of the deviation therefrom.
22. ASSIGNMENT AND SUBLETTING BY TENANT. (a) Without the prior written
consent of Owner, Tenant shall not (i) assign or in any manner transfer this
Lease or any estate or interest therein, or (ii) permit any assignment of
this Lease or any estate or interest therein by operation of law, or (iii)
sublet the Premises or any part thereof, or (iv) grant any license,
concession or other right of occupancy of any portion of the Premises, or (v)
permit the use of the Premises by any parties other than Tenant, its agents
and employees, and any such acts without Owner's prior written consent shall
be void and of no effect. Consent by Owner to one or more assignments or
sublettings shall not operate as a consent to, or a waiver of Owner's rights
with respect to, any subsequent assignments and sublettings. Notwithstanding
any assignment or subletting, Tenant and any guarantor of Tenant's
obligations under this Lease shall at all times remain fully responsible and
liable for the payment of the Rent and for compliance with all of Tenant's
other obligations under this Lease. If an Event of Default should occur while
the Premises or any part thereof is then assigned or sublet, Owner, in
addition to any other remedies herein provided or provided by law, may at its
option collect directly from such assignee or sublessee all payments
becoming due to Tenant under such assignment or sublease and apply such
payments against any sums due to Owner by Tenant hereunder, and Tenant hereby
authorizes and directs any such assignee or sublessee to make such payments
directly to Owner upon receipt of notice from Owner. No direct collection by
Owner from any such assignee or sublessee (regardless of whether or not such
assignee or sublessee shall be deemed to be void and of no effect as stated
in the first sentence of this (a)) shall be construed to constitute a
novation or a release of Tenant or any guarantor of Tenant from the further
performance of its obligations hereunder. Receipt by Owner of payments from
any assignee, sublessee or occupant of the Premises shall not be deemed a
waiver of the covenants in this Lease against assignment and subletting, or
a release of Tenant under this Lease. The receipt by Owner from any such
assignee or sublessee obligated to make payments shall be a full and complete
release, discharge, and acquittance to such assignee or sublessee to the
extent of any such amount so paid to Owner. Owner is authorized and
empowered on behalf of Tenant to endorse the name of Tenant upon any check,
draft, or other instrument payable to Tenant evidencing payment under an
assignment or sublease to Tenant, and to receive and apply the proceeds
thereof in accordance with the terms hereof.
(b) Tenant shall not mortgage, pledge or otherwise encumber this
Lease or any estate or interest therein or in the Premises.
(c) If Tenant requests Owner's consent to an assignment of the
Lease or subletting of all or a part of the Premises, it shall submit to
Owner, in writing, the name of the proposed assignee or subtenant and the
nature and character of the business of the proposed assignee or subtenant,
the term, use, rental rate and other particulars of the proposed subletting
or assignment, including without limitation, evidence satisfactory to Owner
that the proposed subtenant or assignee is financially responsible and will
immediately occupy and thereafter use the Premises (or any sublet portion
thereof) for the remainder of the Term (or for the entire term of the
sublease, if shorter). This review is made solely for the purpose of
determining suitability from Owner's point of view of the proposed subtenant
and subtenancy or proposed assignee and assignment. Owner shall have the
option (to be exercised within thirty (30) days from receipt of Xxxxxx's
written request) to cancel this Lease (or to cancel this Lease with respect
to the
6
applicable portion of the Premises, as to a partial subletting) as of the
commencement date provided for in the subletting or assignment. If Owner
elects to cancel this Lease as dated, then the Term, and the tenancy and
occupancy of the Premises by Tenant under this Lease, shall terminate with
respect to that portion of the Premises proposed to be so assigned or sublet,
as if the cancellation date were the Ending Date of Term, and Tenant shall
pay to Owner all costs or charges which are the responsibility of Tenant
hereunder with respect to that portion of the Premises, and Tenant shall, at
its own cost and expense, discharge in full any outstanding commission
obligation of Owner with respect to this Lease, or any part hereof so
cancelled, and/or reimburse Owner for the portion of any such commission paid
by Owner relating to the portion of the Term which is cancelled. Thereafter
Owner may lease the Premises to any person, including the prospective
subtenant or assignee, without liability to Tenant. If Owner does not thus
cancel this Lease, the terms and provisions of subparagraph (a) hereof will
apply.
(d) If Owner consents to any subletting or assignment by Tenant as
above provided, and subsequently any payments received by Tenant under any
such sublease are in excess of the Rent payable by Tenant under this Lease,
or any additional consideration is paid to Tenant by the assignee under any
such assignment, then Owner may, at its option, either (i) declare such
excess payments under such sublease or such additional consideration for such
assignment to be due and payable by Tenant to Owner as Additional Rent
hereunder, or (ii) elect to cancel this Lease as provided in subparagraph (c)
hereof.
(e) All of the foregoing notwithstanding, Tenant shall not enter
into any lease, sublease, license, concession or other agreement for the use,
occupancy or utilization of the Premises or any portion thereof, which
provides for a rental or other payment for such use, occupancy or utilization
based in whole or in part on the income or profits derived by any persons
from the property leased, occupied or utilized (other than an amount based on
a fixed percentage or percentages of receipts or sales). Any such purported
lease, sublease, license, concession or other agreement shall be absolutely
void and ineffective as a conveyance of any right or interest in the
possession, use or occupancy of any part of the Premises.
23. HOLDING OVER. Tenant shall, at the expiration or earlier
termination of the Term, promptly quit and surrender the Premises in good
order and condition and in conformity with the applicable provisions of this
Lease, excepting only reasonable wear and tear and damage by fire or other
insured casualty. Tenant shall have no right to hold over beyond the
expiration or earlier termination of the Term and in the event Tenant shall
fail to deliver possession of the Premises as herein provided, such occupancy
shall not be construed to effect or constitute other than a tenancy at
sufferance, at a daily rental equal to (a) the greater of (i) twice the Rent
(calculated on a per diem basis) in effect for the last day of the Term, or
(ii) the then current market rental (calculated on a per diem basis) for the
Premises, plus (b) all damages, costs and expenses sustained by Owner by
reason of Tenant's holding over. Without limiting any rights and remedies of
Owner as a result of the holding over by Tenant, and without creating any
right in Tenant to continue in possession of the Premises, all of Tenant's
obligations provided for in this Lease with respect to the use, occupancy and
maintenance of the Premises shall continue during such hold over period. The
inclusion of this paragraph shall not be construed as Owner's consent for
Tenant to hold over.
24. ACCEPTANCE OF SURRENDER OF PREMISES. During the Term, tenant shall
continuously occupy the Premises and shall not permit the Premises to become
vacant or abandoned. No act or thing done by Owner or its agents during the
Term shall be deemed an acceptance of a surrender of the Premises, and no
agreement to accept a surrender of the Premises shall be valid unless the
same is made in writing and signed by Owner.
25. CONDEMNATION. (a) If any taking by condemnation, or sale in lieu
thereof, pursuant to an exercise of a power of eminent domain ("Condemnation")
occurs with respect to the Building or Land or any portion of either, which
would leave the remainder of the Building or Land unsuitable for use
comparable (economically or otherwise) to its use prior to the Condemnation,
in Owner's reasonable judgment, then Owner may terminate this Lease.
(b) If any Condemnation occurs with respect to the entire
Premises, or more than 25% thereof (by floor area), or such portion of the
Premises as renders the remainder thereof unsuitable for use comparable
(economically or otherwise) to its use prior to the Condemnation, in Owner's
reasonable judgment, then Owner or Tenant may terminate this Lease.
(c) If Owner determines that the compensation awarded for
Condemnation, available for restoration of the Land, Building or Premises will
not be sufficient to pay the cost of restoration, or if such award is
required to be applied on account of any Mortgage or Underlying Lease, or if
Owner determines that the length of the Term remaining after restoration
would make restoration impractical (whether for economic or other reasons),
Owner may terminate this Lease.
(d) Any termination of this Lease pursuant to this paragraph shall
be effective upon the earlier of the date title to or possession of the
condemned real estate vests in the condemnor. All Rent shall be apportioned
equitably and paid in full by Tenant to Owner to that date. In the event of a
Condemnation which does not effect a termination of this Lease but does deprive
Tenant of the use of a portion of the Premises, there shall be an equitable
reduction of the Rent, taking into account the period for which and the
extent to which such portion of the Premises is not reasonably usable for the
Permitted Use.
(e) All compensation awarded for any Condemnation of the Building
or Land or any portion of either shall be the property of Owner, and Tenant
shall have no claim thereto, the same being expressly waived by Xxxxxx.
Tenant assigns to Owner all rights to compensation for damages, if any,
sustained by Tenant on any Condemnation,
7
except for loss of business, or for Condemnation of equipment, fixtures
and/or improvements which Tenant, on expiration of the Term, is entitled to
remove, if and to the extent a separate award is made by the condemnor to
Tenant for such items.
(f) If this Lease is not terminated as provided above, Owner shall
make such repairs, if any, as are reasonably necessary to restore the part of
the Premises not condemned to tenantable condition. Owner, in so doing, shall
not be required to expend more than the net amount Owner reasonably expects
to be available for restoration of the Premises, unless Xxxxxx agrees to pay
the amount of the excess expenditure and, before commencement of the
restoration, provides Owner with reasonable security for such payment by
Xxxxxx. Restoration, if any, shall begin promptly after Tenant vacates the
part of the Premises condemned an shall be completed with reasonable
diligence, subject, however, to delays incident to Force Majeure.
26. FIRE AND OTHER CASUALTY. (a) Except as provided below, in case of
damage to the Premises or other portions of the Building by fire or other
insured casualty, Owner shall repair the damage. Such repair work shall be
commenced promptly following notice of the damage and completed with
reasonable diligence, taking into account the time required for Owner to
effect a settlement with and procure insurance proceeds from the insurer,
except for delays due to Force Majeure.
(b) If the damage is of a nature or extent that, in Owner's
reasonable judgment, the repair and restoration work would require more than
180 days to complete after commencement of work, assuming normal work crews
not engaged in overtime, Owner shall so notify Tenant within a reasonable
time after such determination, and either party, for a period of fifteen (15)
days after such notice, shall have the right to terminate this Lease by
notice to the other, as of the date, not later than thirty (30) days
thereafter, specified in such termination notice. Further, if Owner
reasonably determines that the Building is damaged to such extent as to make
repair thereof unfeasible or that the length of the Term remaining after
restoration would make restoration impractical (in either case, whether for
economic or other reasons), within a reasonable time after such determination
Owner shall have the right to terminate this Lease by notice to Tenant, as of
the date, not later than thirty (30) days thereafter, specified in such
termination notice.
(c) If the insurance proceeds received or to be received by Owner
(excluding any rental interruption insurance proceeds) would not be
sufficient to pay for repairing the damage or are required to be applied on
account of any Mortgage or Underlying Lease, or if the nature of loss is not
covered by Owner's hazard insurance coverage, Owner may elect either to (i)
repair the damage as above provided notwithstanding such fact, or (ii)
terminate this Lease, by giving Tenant within thirty (30) days after Owner's
knowledge of the damage and determination of availability or sufficiency of
insurance proceeds, notice of Owner's election; and if the election is to
terminate, specifying the termination date, which termination date shall be
not earlier than fifteen (15) days nor later than thirty (30) days thereafter.
(d) All injury or damage to the Premises or the Building caused by
Tenant or Tenant Parties shall be repaired at Tenant's sole cost and expense.
Owner shall have the right to make such repairs, and any cost or expense so
incurred by Owner shall be paid by Tenant to Owner on demand, with interest
thereon at the Reimbursement Interest Rate from the due date until paid.
(e) Owner shall not be obligated to repair any Alterations which
Tenant may have installed (whether or not Tenant has the right or the
obligation to remove the same or is required to leave the same on the
Premises as of the Ending Date of Term or earlier termination of this Lease)
unless Tenant, in a manner satisfactory to Owner, assures payment in full of
all costs which may be incurred by Owner in connection therewith. Owner shall
not be required to insure any Alterations to the Premises in excess of
Building standard tenant improvements, or any fixtures, equipment or other
property of Tenant. Tenant shall have the right, at its sole expense, to
insure the value of its leasehold improvements, fixtures, equipment or other
property located in the Premises, for the purpose of providing funds to Owner
to repair the Premises. Except as otherwise provided in this Lease, any
insurance which may be carried by owner or Tenant against loss or damage to
the Building or to the Premises shall be for the sole benefit of the party
carrying such insurance and under its sole control.
(f) If this Lease is terminated pursuant to this paragraph, all
Rent shall be apportioned equitably and paid in full by Tenant to Owner to
the date of termination. This provision shall not relieve Tenant of liability
to Owner for damages (including damages arising due to early termination of
this Lease) arising out of the negligence or other tortious conduct of Tenant
or Tenant Parties.
(g) In the event of a fire or other casualty damage not arising out
of the negligence or other tortious conduct of Tenant or Tenant Parties, which
does not result in termination of this Lease pursuant to this paragraph but
does deprive Tenant of the use of a portion of the Premises, there shall be
an equitable reduction of the Rent, taking into account the period for which
and the extent to which such portion of the Premises is not reasonably usable
for the Permitted Use.
27. EVENTS OF DEFAULT. In addition to any Event of Default specified
elsewhere in this Lease, each of the following events shall be deemed to be an
"Event of Default" by Tenant under this Lease:
(a) Failure by Tenant to pay when due any installment of Rent
payable by Tenant hereunder (or any rental or other sum under any other lease
now or hereafter executed by Xxxxxx in connection with space in the
Building).
8
(b) Failure by Tenant to comply with or observe any other provision
of this Lease (or any other Lease now or hereafter executed by Tenant in
connection with space in the Building) after ten (10) days notice of such
failure.
(c) Vacation or abandonment by Tenant or any portion of the
Premises.
(d) (i) Appointment of a receiver to take possession of, or making
of an attachment or execution against, Xxxxxx's assets or any substantial
portion thereof, or Tenant's interest in this Lease; or
(ii) Making by Tenant of a general assignment for the benefit or
creditors; or
(iii) Admission by Xxxxxx in writing of its inability to meet its
obligations as they mature; or
(iv) Commission by Tenant of any other act of bankruptcy or
filing by Tenant of a petition or institution of a proceeding on its behalf
under any section or chapter of the Bankruptcy Code of the United States, as
amended, or under any similar law or statute of the United States or any
state thereof ("Bankruptcy Laws"); or
(v) Filing by any third party of a petition or institution by
any third party of a proceeding against Tenant under any Bankruptcy Law, and
such petition or proceeding is not dismissed within thirty (30) days; or
(iv) Adjudication of Tenant as a bankrupt; or
(vii) Occurrence of any of the foregoing actions in this
subparagraph (d) with respect to any guarantor of Tenant's obligations under
this Lease, or default by such guarantor in performance of any provision
under its guaranty.
28. OWNER'S REMEDIES. If an Event of Default shall occur, the following
provisions shall apply and Owner shall have the rights and remedies,
cumulatively if possible, set forth herein, which rights and remedies may be
exercised, separately or cumulatively, notwithstanding any election of
remedies, upon or at any time following the occurrence of an Event of Default
unless, prior to such exercise, Owner shall agree in writing with Tenant that
the Event of Default has been cured by Tenant in all respects:
(a) Acceleration of Rent. (i) By notice to Tenant, Owner shall
have the right to accelerate all Base Rent and all Additional Rent due
hereunder and otherwise payable in installments over the remainder of the
Term, and, at Owner's option, any other Additional Rent and other Rent to the
extent that such Additional Rent and other Rent can be determined and
calculated (which may be reasonably estimated by Owner) to a fixed sum; and
the amount of all of such accelerated Rent, without further notice or demand
for payment, shall be due and payable by Tenant within five (5) days after
Owner has so notified Tenant. Additional Rent and other Rent which has not
been included in accelerated Rent, shall be due and payable by Tenant during
the remainder of the Term, in the amounts and at the times otherwise
provided for in this Lease.
(ii) Notwithstanding the foregoing or the application of any rule
of law based on election of remedies or otherwise, if Tenant fails to pay the
accelerated Rent in full when due, Owner thereafter shall have the right by
notice to Xxxxxx. (A) to terminate Tenant's further right to possession of
the Premises and (B) to terminate this Lease under subparagraph (c) below;
and if Tenant shall have paid part but not all of the accelerated Rent, the
portion thereof attributable to the period equivalent to the part of the Term
remaining after Owner's termination of possession or termination of this
Lease shall be applied by Owner against Tenant's obligations owing to Owner
as determined by the applicable provisions of subparagraphs (d) and (f) below.
(b) Taking of Possession - Curing Xxxxxx's Defaults. (i) With or
without notice, Owner shall have the right to enter upon and take possession
of the Premises and expel or remove Xxxxxx and any other person who may be
occupying the Premises or any part thereof, by force if necessary, without
being liable for prosecution or any claim for damages therefor. No re-entry or
taking possession of the Premises by Owner shall be construed as an election
on its part to terminate this Lease, unless a written notice of termination
is given to Tenant.
(ii) With or without re-entering and taking possession of the
Premises, and with or without notice to Tenant, Owner may make any payment
which Tenant was obligated but failed to make under this Lease, and perform
or attempt to perform any other obligation of Tenant under this Lease which
Xxxxxx has failed to perform.
(c) Termination of Lease. (i) By notice to Tenant, Owner shall
have the right to terminate this Lease as of a date specified in the notice.
Tenant's rights to the possession and use of the Premises shall end
absolutely as of the specified termination date, and this Lease shall
terminate in all respects except for the provisions hereof regarding Owner's
damages and Xxxxxx's liabilities arising prior to, out of and following the
Event of Default and the ensuing termination, and the provisions hereof which
by their terms survive termination. Therefore after termination of the Lease,
Tenant shall remain liable to Owner for damages calculated pursuant to
28.(f).
(ii) Following such termination (as well as upon any other
termination of this Lease by expiration of the Term or otherwise) Owner
immediately shall have the right to recover possession of the Premises; and
to that end, Owner may enter the Premises and take possession, without the
necessity of giving Tenant any notice to quit or any other notice, with or
without legal process or proceedings, and in so doing Owner may remove
Xxxxxx's property (including any improvements or additions to the Premises
which Tenant made, unless made with Owner's
9
consent which expressly permitted Tenant to not remove the same upon
expiration of the Term), as well as the property of others as may be in the
Premises, and make disposition thereof in such manner as Owner may deem to be
commercially reasonable under the circumstances.
(d) Xxxxxx's Continuing Obligations - Owner's Re-letting Rights. (i)
Unless and until Owner shall have in writing terminated this Lease under
subparagraph (c) above, Tenant shall remain fully liable and responsible to
perform all of the covenants and to observe all the conditions of this Lease
throughout the remainder of the Term; and, in addition, whether or not Owner
shall have terminated this Lease, Tenant shall pay to Owner, on demand and
with interest thereon at the Reimbursement Interest Rate from the due date
until paid, the total sum of all costs, losses and expenses, including
reasonable counsel fees, as Owner incurs, directly or indirectly, because of
any Event of Default having occurred.
(ii) If Owner either terminates Tenant's right to possession
without terminating this Lease or terminates this Lease and Tenant's
leasehold estate as above provided, Owner shall have the unrestricted right
to re-let the Premises or any part thereof to such tenants, on such
provisions, and for such periods as Owner may deem appropriate. It is
understood that Owner shall have no obligation to have the Premises available
for re-letting or otherwise endeavor to re-let so long as Owner (or any
affiliated entity) has other comparable or competing vacant space or property
available for leasing to others in the Building or in other buildings in the
general market area of which the Building is a part; and that notwithstanding
non-availability of other space or property, Owner's obligation to mitigate
damages shall be limited to such efforts as Owner, in its reasonable
judgement, deems appropriate.
(e) Bankruptcy Assurances. Owner and Tenant understand that,
notwithstanding certain provisions to the contrary contained herein, a
trustee or debtor in possession under the Bankruptcy Code of the United
States (or other Bankruptcy Laws) may have certain rights to assume or assign
this Lease. Owner and Tenant further understand that in any event Owner is
entitled under the Bankruptcy Code (or other Bankruptcy Laws) to adequate
assurances of future performance of the terms and provisions of this Lease.
For purposes of any such assumption or assignment, the parties hereto agree
that the term "adequate assurance" shall include at least the following:
(i) In order to assure Owner that the proposed
assignee will have the resources with which to pay the Rent, any proposed
assignee must have demonstrated to Owner's satisfaction a net worth (as
defined in accordance with generally accepted accounting principles
consistently applied) at least as great as the net worth of Tenant on the
commencement Date, increased by ten percent (10%) for each year from the
Commencement Date through the date of the proposed assignment. The financial
condition and resources of Tenant were a material inducement to Owner in
entering into this Lease.
(ii) Any proposed assignee must have been engaged in
the business conducted by Xxxxxx in the Premises, allowable pursuant to the
Permitted Use, for at least five (5) years prior to any such proposed
assignment.
(iii) Any proposed assignee must agree to use the Premises only
for the Permitted Use. In entering into this Lease, Owner considered
extensively the Permitted Use and determined that such Permitted Use would
add substantially to Owner's tenant balance and that were it not for Tenant's
agreement to use the Premises only for the Permitted Use, Owner would not
have entered into this Lease. Owner's overall operation will be substantially
impaired if the trustee in bankruptcy or any assignee of this Lease makes any
use of the Premises other than the Permitted Use.
(f) Owner's Damages. (i) Whether the Lease is terminated or not the
damages which Owner shall be entitled to recover from Tenant shall be the
sum of:
(A) All Rent accrued and unpaid as of the termination
date or the date Owner retakes possession of the premises (whichever occurs
later); and
(B) (1) all costs and expenses incurred by Owner in
recovering possession of the Premises, including removal and storage of
Tenant's property, improvements and Alterations therefrom, (2) the costs and
expenses of curing or attempting to cure any default by Xxxxxx, (3) the costs
and expenses of restoring the Premises to the condition in which the same
were to have been surrendered by Xxxxxx as of the Ending Date of Term, or, in
lieu thereof, the costs and expenses of remodeling or altering the Premises
or any part for re-letting the same, (4) the costs of re-letting (exclusive
of those covered by the foregoing) including brokerage fees and reasonable
counsel fees, and (5) any special overhead expenses related to the vacancy of
the Premises not in excess of ten percent (10%) of the monthly Base Rent
otherwise to be paid by Tenant over the remainder of the Term, for each month
or part between the date of termination and the re-letting of the entire
Premises; and
(C) all Base Rent and Additional Rent and other Rent (to
the extent that the amount of Additional Rent and other Rent has been then
determined or estimated as provided above) otherwise payable by Tenant over
the remainder of the Term; and
(D) All reasonable attorney fees, court costs,
arbitration costs, witness fees and similar costs of enforcing this Lease;
(E) Less [deducting from the total determined under
subparagraphs (A), (B), (C) and (D)] all Rent
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and Additional Rent which Owner receives from other tenants by reason of the
leasing of the Premises or part thereof during or attributable to any period
falling within what would otherwise have been the remainder of the Term. If
the premises covered by a new lease by other tenants include other premises
not part of the Premises of this Lease, a fair apportionment of the rent
received from such new lease and expenses incurred in connection therewith as
provided aforesaid will be made in determining the net proceeds from such new
lease. If the existing term of a new lease by other tenants is different from
the Term of this Lease any rent concessions will be equally apportioned over
the term of the new lease.
(ii) The damages payable by Tenant under the preceding
provisions of this subparagraph (f) shall be payable on demand from time to
time as the amounts are determined; and if from Owner's subsequent receipt of
rent as aforesaid from re-letting, there shall be any excess payment(s) by
Tenant by reason of the crediting of such rent thereafter received, the
excess payment(s) shall be refunded by Owner to Tenant, without interest.
(iii) If this Lease is terminated, then Owner shall
have the additional options to determine the damages as follows:
(A) Tenant shall be liable for amounts
determined pursuant to Par 28, OWNER'S REMEDIES. (a)(i). Owner may have
damages determined under this section A, even if Owner did not previously
accelerate the rent pursuant to Par 28 (a)(i).
(B) Owner shall be entitled to recover
forthwith against Tenant as damages for loss of the bargain, and not as a
penalty, an aggregate sum which, at the time of such termination of this
lease, represents the aggregate of the rent and all other sums payable by
Tenant hereunder that would have accrued for the balance of the term
discounted present worth at the rate of 4% per annum.
(g) Interest on Damage Amounts. Any sums payable by Tenant hereunder
which are not paid after the same shall be due shall bear interest, from the
due date until paid, at the Overdue Interest Rate.
(h) Owner's Statutory Rights. Owner shall have all rights and remedies
now or hereafter existing at law or in equity with respect to the enforcement
of Tenant's obligations hereunder and the recovery of the Premises. No right
or remedy herein conferred upon or reserved to Owner shall be exclusive of
any other right or remedy, but shall be cumulative and in addition to all
other rights and remedies given hereunder or now or hereafter existing at law
or in equity. Owner shall be entitled to injunctive relief in case of the
violation, or attempted or threatened violation, by Tenant of any covenant,
agreement, condition or provision of this Lease, or to a decree compelling
performance of any covenant, agreement, condition or provision of this Lease.
(i) Remedies Not Limited. Nothing herein contained shall limit or
prejudice the right of Owner to exercise any or all rights and remedies
available to Owner by reason of default or to prove and obtain in proceedings
under any Bankruptcy Laws, an amount equal to the maximum allowance permitted
by any law in effect at the time when, and governing the proceedings in
which, the damages are to be proved, whether or not the amount is greater,
equal to, or less than the amount of the loss or damages referred to above.
(j) No termination Except by Owner in writing. No action by Owner,
including without limitation legal proceedings for eviction, unlawful
detainer or similar actions that may be available under the laws of the
State, shall be deemed a termination of this Lease or of Tenant's obligations
hereunder unless Owner specifies in writing that the Lease is terminated and
that Xxxxxx has no further liability hereunder.
(k) No Waiver by Owner. No delay or forbearance by Owner in exercising
any right or remedy hereunder, or Owner's undertaking or performing any act
or matter which is not expressly required to be undertaken by Owner shall be
construed, respectively, to be a waiver of Owner's rights or to represent any
agreement by Owner to undertake or perform such act or matter thereafter.
Waiver by Owner of any breach by Tenant of any covenant or condition herein
contained (which waiver shall be effective only if so expressed in writing by
Owner) or failure by Owner to exercise any right or remedy in respect of any
such breach shall not constitute a waiver or relinquishment for the future of
Owner's right to have any such covenant or condition duly performed or
observed by Xxxxxx, or of Owner's rights arising because of any subsequent
breach of any such covenant or condition, nor bar any right or remedy of
Owner in respect of such breach or any subsequent breach. Owner's receipt and
acceptance of any payment from Tenant which is tendered not in conformity
with the provisions of this Lease or following an Event of Default
(regardless of any endorsement or notation on any check or any statement in
any correspondence accompanying any payment) shall not operate as an accord
and satisfaction or a waiver of the right of Owner to recover any payments
then owing by Tenant which are not paid in full, or act as a bar to the
termination of this Lease and the recovery of the Premises because of
Tenant's previous default.
29. DELETED
30. CERTAIN RIGHTS RESERVED BY OWNER. Owner (acting itself or through
persons authorized by it) shall have the following rights, exercisable from
time to time without notice and without liability to Tenant for damage or
injury to property, persons or business and without effecting an eviction,
constructive or actual, or disturbance of Tenant's use or possession of the
Premises or giving rise to any claim for set off or abatement of Rent or
otherwise affecting Tenant's obligations hereunder:
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(a) To decorate and to make repairs, alterations, additions, changes
or improvements whether structural or otherwise, in and about the Building,
or any part thereof, and for such purposes to enter upon the Premises, and
during the continuance of any such work, to temporarily close doors,
entryways, common areas, public space and corridors in the Building, to
interrupt or temporarily suspend Building Services and facilities and to
change the arrangement and location of entrances or passageways, doors and
doorways, corridors, elevators, stairs, toilets, or other public parts of the
Building, so long as the Premises are reasonably accessible and Tenant is not
unreasonably disturbed in use or possession thereof.
(b) To have and retain paramount title to the Premises free and
clear of any act of Tenant purporting to burden or encumber the Premises.
(c) To grant to anyone the exclusive right to conduct any business
in or render any service to the Building, provided such exclusive right shall
not operate to exclude Tenant from the Permitted Use.
(d) To prohibit the placing of vending or dispensing machines of any
kind in or about the Premises without the prior written permission of Owner.
(e) To have access for Owner and other tenants of the Building to
any mail chutes located on the Premises according to the rules of the United
States Postal Service.
(f) To take all such reasonable measures as Owner may deem advisable
for the security of the Building and its occupants, including without
limitation, the search of persons entering or leaving the Building, the
evacuation of the Building for cause, suspected cause, or for drill purposes,
the temporary denial of access to the Building, and the closing of the
Building after normal business hours and on Saturdays, Sundays and holidays,
subject, however to Tenant's right to admittance when the Building is closed
after normal business hours under such reasonable reasonable regulations as
Owner may prescribe from time to time which may include by way of example but
not of limitation, that persons entering or leaving the Building, whether or
not during normal business hours, identify themselves to a security officer
by registration or otherwise and that such persons establish their right to
enter or leave the Building.
(g) To enter the Premises to perform Owner's covenants under this
Lease, to exercise Owner's remedies under this Lease, to ascertain if Tenant
is in compliance with its covenants under this Lease, to inspect the
Premises, and to exhibit the Premises to Mortgagees and Lessors and to
prospective lenders, purchasers and tenants.
(h) To change the name by which the Building is designated.
(i) To transfer, assign and convey, in whole or in part, the
Building and any and all of its rights under this Lease, and in the event
Owner assigns its rights under this Lease, Owner shall thereby be released
from any further obligations hereunder, and Xxxxxx agrees to attorn to and
look solely to such successor in interest of the Owner for performance of
such obligations.
31. RELOCATION OF TENANT. (a) To permit Owner to consolidate the Premises
with other space leased or to be leased by another tenant, or to permit Owner
to remodel or otherwise alter the Building, Owner shall have the right to
require Tenant to relocate from the Premises to another location in the
Building ("Substitute Space"), upon not less than sixty (60) days notice
("Relocation Notice"). The Relocation Notice shall specify the location of
and generally describe the Substitute Space, and shall specify the effective
date of the move ("Relocation Date"). The floor area of the Substitute Space
shall not vary by more than five percent (5%) from the floor area of the
Premises.
(b) Within ten (10) days after the Relocation Notice is given,
Tenant may elect, by notice to Owner, to not move to the Substitute Space and
in lieu thereof to terminate this Lease, in which event the date of
termination shall be the Relocation Date. Failure of Tenant to timely give
such notice of termination shall be deemed waiver of the right to terminate
pursuant to this subparagraph.
(c) If Tenant does not terminate this Lease as provided in
subparagraph (b), Tenant shall have the option either to accept the
Substitute Space in its "as is" condition or to require Owner to alter the
Substitute Space to substantially the same decor and condition of the
Premises, existing as of the date of the Relocation Notice (provided that
Owner may substitute materials of like quality for the existing materials).
Such option shall be exercised by notice to Owner within ten (10) days after
the Relocation Notice is given. Failure of Tenant to timely give such notice
shall be deemed Xxxxxx's election to accept the Substitute Space in its "as
is" condition.
(d) If Tenant elects to require Owner to alter the Substitute Space
as provided in subparagraph (c), and if the unexpired balance of the Term
after the Relocation Date would be less than three (3) years, Owner shall
have the option to extend the Term to any date after the then existing Ending
Date of Term, up to the date which is three years after the Relocation Date.
Such option shall be exercised by notice to tenant on or before the
Relocation Date. Failure of Owner to timely give such notice shall be deemed
Owner's election to not extend the Term.
(e) If Tenant elects to require Owner to alter the Substitute Space
as provided in subparagraph (c), the Relocation Date shall be changed to the
date on which Owner shall have substantially completed such alteration work
in the Substitute Space. Tenant shall move from the Premises into the
Substitute Space immediately upon the date of such substantial completion,
and shall vacate and surrender possession to Owner of the Premises on such
date.
12
If Xxxxxx continues to occupy the Premises after such date, then in addition
to any other remedies Owner may have for such default, during the period of
such occupancy, Tenant shall pay Rent for the Premises in addition to Rent
for the Substitute Space.
(f) If Owner exercises this relocation right, Owner shall reimburse
Tenant for Tenant's reasonable out-of-pocket expenses for moving Tenant's
furniture, equipment, supplies and telephones and telephone equipment from
the Premises to the Substitute Space and, if Tenant's stationery contains an
address which would change due to such relocation, for reprinting Tenant's
stationery of the same quality and quantity of Tenant's stationery supply on
hand on the date of the Relocation Notice, as reasonably estimated to be
depleted by the Relocation Date.
(g) On the Relocation Date the description of the Premises set forth
in this Lease shall be deemed amended so that the Substitute Space, for all
purposes, shall thereafter be deemed the Premises hereunder. If the floor
area of the Substitute Space varies from the floor areas of the Premises,
Rent and Tenant's Allocated Share shall be equitably adjusted. Owner and
Tenant agree to execute and deliver such amendment to this Lease as may be
reasonably appropriate to reflect the changes occasioned by the provisions of
this paragraph.
32. BROKERS. Each party warrants to the other that it has had no dealings
with any broker or agent in connection with the negotiation or execution of
this Lease except as may be named in the Basic Lease Provisions, and each
party agrees to indemnify the other against all costs, expenses, attorney's
fees or other liability for commissions or other compensation or charges
claimed by any broker or agent claiming the same by, through or under said
indemnifying party.
33. QUIET ENJOYMENT. Provided Tenant has performed all of the terms and
conditions of this Lease, including the payment of Rent, to be performed by
Xxxxxx, Tenant shall peaceably and quietly hold and enjoy the Premises for
the Term, without hindrance from Owner, subject to the terms and conditions
of this Lease.
34. NOTICES. Each provision of this Lease, or of any applicable
governmental law, ordinance or regulation, or other requirement, with
reference to the sending, mailing or delivery of any notice or document, or
with reference to the making of any payment by Tenant to Owner, shall be
deemed to be complied with when and if the following steps are taken:
(a) All Rent and other payments required to be made by Tenant to
Owner hereunder shall be payable to Owner at Owner's Address set forth in the
Basic Lease Provisions or at such other address as Owner may specify from
time to time by notice to Tenant, and shall be deemed delivered only upon
actual receipt (and if other than in cash, subject to collection).
(b) Any notice or document required to be delivered hereunder shall
be deemed to be delivered if actually received and whether or not received
when deposited in the United States mail, postage prepaid, certified or
registered mail (with return receipt requested), addressed to the party to
receive same at its address set forth in the basic Lease Provisions or at
such other address as said party has theretofore specified to the other by
notice.
35. FORCE MAJEURE. Whenever a period of time is herein prescribed for
action to be taken by Owner, Owner shall not be liable or responsible for,
and there shall be excluded from the computation of any such period of time,
any delays due to strikes, riots, acts of God, shortages of labor or
materials, war, governmental laws, regulations or restrictions or any other
causes of any kind whatsoever which are beyond the control of Owner ("Force
Majeure").
36. ENTIRE AGREEMENT; ADDENDUMS; WAIVERS; BINDING EFFECT. This Lease
contains and embodies the entire agreement of the parties hereto with respect
to the subject matter hereof, and no representations, inducements or
agreements, oral or otherwise, between the parties not contained in this
Lease shall be of any force or effect. This Lease may not be supplemented or
amended, except by instrument in writing signed by both parties hereto. No
provision of this Lease shall be deemed to have been waived by Owner unless
such waiver is in writing signed by Owner and addressed to Tenant, nor shall
any custom or practice which may evolve between the parties in the
administration of the terms thereof be construed to waive or lessen the right
of Owner to insist upon performance by Xxxxxx in strict accordance with the
terms hereof. The terms and conditions contained in this Lease shall apply
to, inure to the benefit of, and be binding upon the parties hereto, and upon
their respective successors in interest and legal representatives, except as
otherwise herein expressly provided.
37. SEVERABILITY. If any clause or provision of this Lease is illegal,
invalid, or unenforceable under present or future laws effective during the
Term, the remainder of this Lease shall not be affected thereby and in lieu
of such clause or provision, there shall be deemed added as a part of this
Lease a clause or provision as similar in terms thereto as may be possible
and legal, valid and enforceable.
38. JOINT AND SEVERAL LIABILITY OF TENANT. If there is more than one
person comprising Xxxxxx, the obligations imposed upon Tenant hereunder shall
be joint and several. If there is a guarantor or there are guarantors of
Tenant's obligations hereunder, the obligations imposed upon Tenant shall be
the joint and several obligations of Tenant and each such guarantor and Owner
need not first proceed against Tenant before proceeding against any such
guarantor, nor shall any such guarantor be released from its guaranty for any
reasons whatsoever, including without limitation, any amendment hereto,
waiver of any provision hereof or failure to give such guarantor any notice
hereunder.
13
39. OWNER'S LIABILITY LIMITATION. The liability of Owner to Tenant for
fulfillment of any obligation of Owner or for any default by Owner under the
terms of this Lease shall be limited to the interest of Owner in the Building
and the Land; tenant shall look solely to such interest for satisfaction
thereof; and Owner shall not be personally liable for any deficiency.
40. ARBITRATION. (a) At Owner's option, all claims, disputes and other
matters in question or calling for mutual agreement, between Owner and Tenant
arising out of, or relating to this Lease or the breach hereof, shall be
decided by arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association then obtaining. At Owner's option, any
arbitration arising out of or relating to this Lease or any breach hereof
shall include, by consolidation, joinder or joint filing any other person not
a party to this Lease to the extent necessary for the final resolution of the
matter in controversy. This agreement by Tenant to arbitrate shall be
specifically enforceable by Owner under the prevailing arbitration law. The
award rendered by the arbitrators shall be final, and judgment may be entered
upon it in accordance with applicable law in any court having jurisdiction
thereof.
(b) Notice of the demand for arbitration shall be filed by Owner in
writing with tenant and with the American Arbitration Association. The demand
for arbitration shall be made within a reasonable time after the claim,
dispute or other matter has arisen, and in no event shall it be made after
the date when institution of legal or equitable proceedings based on such
claim, dispute or other matter would be barred by the applicable statute of
limitations.
(c) Unless otherwise agreed in writing by Owner, Owner and Xxxxxx
shall continue to perform their obligations under this Lease in accordance
with Owner's interpretation of the claim, dispute or other matter during any
arbitration proceedings, until final resolution thereof.
(d) At Owner's option, the venue for arbitration or litigation with
respect to all claims, controversies and disputes arising out of or relating
to this Lease or any breach hereof, shall be the county in which the Land and
Building are located.
41. WAIVER OF TRIAL BY JURY. To the extent such waiver is permitted by
applicable law, Owner and Tenant waive trial by jury in any action or
proceeding brought in connection with this Lease or the Premises.
42. APPLICABLE LAW. This Lease and the rights and obligations of Owner and
Tenant hereunder shall be construed in accordance with and governed by the
laws of the State of Colorado.
43. MISCELLANEOUS. (a) Any approval by Owner or Owner's architects and/or
engineers of any of Tenant's Plans shall not in any way be construed or
operate to bind Owner or to constitute a representation or warranty of Owner
as to the adequacy or sufficiency of such Plans or the Alterations to which
they relate, for any use, purpose, or condition, but such approval shall
merely be the consent of Owner as may be required hereunder.
(b) Nothing contained in this Lease shall be deemed or construed to
create a partnership or joint venture of or between Owner and Tenant, or to
create any other relationship between the parties hereto other than that of
landlord and tenant.
(c) Words of any gender used in this Lease shall be held and
construed to include any other gender, and words in the singular number shall
be held to include the plural, unless the context otherwise requires. The
word "person" as used in this Lease means any natural person, legal entity,
or body politic.
(d) The submission of this Lease to Tenant shall not be construed as
an offer, nor shall Tenant have any rights with respect thereto unless and
until Owner shall have executed a copy of this Lease and delivered the same
to Tenant.
(e) If Tenant is a corporation, each of the persons executing this
Lease on behalf of Tenant hereby warrants that Tenant is a duly formed and
existing corporation, qualified to do business in the State, that the Tenant
has the full right and authority to enter into the Lease, and that each of
the persons signing on behalf of Tenant are authorized to do so.
(f) The covenants and obligations of Owner and Tenant hereunder are
independent, such that the obligations of Tenant to pay rent hereunder are
not contingent upon any act or failure to act by Owner.
(g) If Owner consults with an attorney to enforce any provision of
this Lease then all costs, including reasonable attorney fees from the date
any such matter is turned over to an attorney shall be recoverable by Owner
from Tenant.
44. RECORDING. Tenant hereby covenants and agrees not to place the Lease
of record. If so requested by Owner, Xxxxxx shall execute a short form
memorandum of lease which memorandum may, at Owner's option, be placed of
record. Any recording of the Lease or of any notice of memorandum thereof by
Tenant without Owner's prior written consent shall be a default under the
Lease and Owner shall have all of the rights and remedies set forth therein
for a default.
45. ACTS TO BE PERFORMED BY TENANT PRIOR TO TENANT'S CONSTRUCTION.
14
(a) In the event that Xxxxxx receives Owner's prior written approval
to commence any alterations, additions, improvements or construction of
whatever kind or nature to be done by Tenant in or about the Premises (the
"Alterations"), which approval or disapproval shall be in Owner's sole and
subjective discretion, then, as a condition precedent to Tenant's commencing
such Alterations, Tenant shall submit to Owner the following items:
(i) all architectural, engineering, construction and/or design
drawings, plans, specifications, studies, reports, bids and other material of
every kind relating to the Alterations (the "Plans and Specifications");
(ii) an originally signed copy of the contract between Tenant
and any and all contractors, subcontractors, materialmen or suppliers
together with copies of any and all subcontracts and supply contracts
relating to the Alterations;
(iii) a standard indemnification in a form approved by Owner.
(iv) originally signed xxxx xxxxxxx from all subcontractors and
materialmen or suppliers for all work done and/or material supplied in
connection with the Alterations in a form approved by Owner; and
(v) an originally signed general release of liens from Xxxxxx's
general contractor in a form approved by Owner; and
(vi) a standard form of notice to be posted at the Property in a
form approved by Owner.
(b) Upon completion of the Alterations, tenant shall submit to Owner:
(i) a certification from Tenant's general contractor
and, if requested by Owner, from Tenant's architect, certifying that each has
inspected the Premises not more than five (5) days prior to the date of the
certification and that the Alterations have been constructed in good and
workmanlike manner and in substantial accordance with the Plans and
Specifications and with the requirements of the governmental authorities
having jurisdiction or control over same, and that all materials for which
payment has been made by Tenant have been delivered to and have been
incorporated into the Premises; and
(ii) final unconditional certificate(s) of occupancy, or the
equivalent issued by the applicable governmental authority.
46. PERSONAL PROPERTY TAXES. Tenant shall pay, prior to delinquency, all
taxes, assessments, license fees and public charges levied, assessed or
imposed upon or measured by the value of its personal property and business
operations, including but not limited to, the furniture, fixtures, leasehold
improvements, equipment and other property of Tenant at any time situated
upon or installed in the Premises by Tenant. Tenant shall cause all such
personal property to be assessed and billed separately from the real property
of Owner.
47. TRANSFER OF INTEREST. If Tenant is a partnership or corporation, the
transfer, sale, conveyance and disposition of a controlling interest in
Tenant to any third party, including without limitation, to an affiliate of
Tenant shall be deemed as assignment or transfer of Tenant's interest under
the Lease for purposes of Section 22 of the Lease. As used herein, the term
"affiliate" shall mean any subsidiary or parent company of Tenant and any
subsidiary of a parent company of Tenant, or any entity related to Tenant or
held in common control with Tenant.
48. SPECIAL PROVISIONS. Special Provisions, if any, are provided in
ADDENDUM I.
IN WITNESS WHEREOF, Owner and Xxxxxx have executed this Lease as of the
Lease date.
OWNER: TENANT:
By /s/ Xxxx Xxxxxxxxxx By /s/ Xxxxxxxx X. Xxxxxxx
-------------------------- -----------------------------
Its: Authorized Agent Its: Chief Financial Officer
------------------------ ---------------------------
Attest: /s/ M.I. Xxxxxxx
------------------------
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RIDER I
This Rider to Lease is attached to and forms a part of that certain lease
between NEW NORTH POINT ASSOCIATES LIMITED PARTNERSHIP ("Owner") and GAMETECH
INTERNATIONAL, INC. "Tenant") dated as of the 12TH day of JUNE, 1996 (the
"Lease"), and sets forth additional terms and provisions to be incorporated
into the Lease.
ADDITIONAL RENT. It is expressly agreed that Tenant will pay in addition
to the Base Rent, Additional Rent, herein defined as those items enumerated
in this Rider.
X. Xxxxxx shall pay to Owner as Additional Rental commencing with
the First Operating Cost Year (as said term is hereinafter defined), and for
each Subsequent Operating Cost Year thereafter an amount equal to Tenant's
Project Proportionate Share (as said term in hereinbefore defined) of the
total aggregate of Operating Costs (as said term is hereinafter defined) of
said Operating Cost Year.
B. The term "Operating Costs" means the total amounts paid or
payable, whether by Owner or otherwise on behalf of Owner, in connection with
the ownership, management, maintenance, repair and operation of the Building,
including by way of illustration and not a limitation, and without limiting
the generality of the foregoing, the aggregate of the amounts paid or payable
for; (i) all electricity furnished to the common areas of the Project except
those amounts paid directly by Tenant or tenants; (ii) the amount paid or
payable for all water furnished to the Project. (iii) labor and or wages and
other payments made by Owner in the operation, maintenance and repair of the
Building, including, without limitation, the cost to Owner of xxxxxxx'x
compensation and disability insurance, payroll taxes, and contributions to
any social security, unemployment insurance, welfare, pension or similar fund
and payments for other fringe benefits made to or on behalf of all employees
of Owner performing services rendered in connection with the operation and
maintenance of the Building, including, without limitation, porters,
janitors, handymen, watchmen, persons engaged in patrolling and protection
the Building, carpenters, engineers, mechanics, electricians, plumbers,
building manager, clerical and administrative personnel, contractors,
subcontractors (It is understood that Owner is under no obligation to have
employed any or all of such above-referred to employees.); (iv) the total
charges of any independent contractors employed in the repair, care,
operation, maintenance and cleaning of the Building; (v) the cost of
replacements for tools and equipment used in the operation and maintenance of
the Building, including without limitation electric light bulbs, tubes and
ballasts used in connection with Building Common Areas and parking lots; (vi)
the cost of telephone service, postage, office supplies, maintenance and
repair of office equipment and similar costs related to operation of the
Building and manager's office (whether in the Building or not); (vii) the
cost of licenses, permits and similar fees and charges related to the
operation, repair, maintenance of the Building (viii) the cost of maintenance
of parking areas and driveways, including, but not limited to cleaning, snow
removal, repaving, relining and repainting; (ix) cleaning cost for the
Building, including the windows, sidewalks, all snow removal (including
separate contracts therefore) and the cost of all labor, supplies, equipment
and materials incidental thereto; (x) the cost of premiums and other charges
incurred by Owner with respect to all insurance relating to the Building and
the operation and maintenance thereof, including without limitation, fire and
extended coverage insurance, including windstorm, hail, explosion, riot,
rioting attending a strike, civil commotion, aircraft, vehicle and smoke
insurance, public liability, elevator, xxxxxxx'x compensation, boiler and
machinery, rent, use and occupancy, and health, accident and group life
insurance of all employees; (xi) the cost of sales and excise taxes and the
like upon any of the expenses enumerated herein; (xii) THE COST OF
DECORATING, REPAINTING OR OTHERWISE MAINTAINING THE EXTERIOR OF THE BUILDING;
(xiii) the cost of accounting fees necessarily incurred in preparation and
notification of the real estate tax escalation and the operating expense
escalation statements pursuant to this Rider; (xiv) (deleted)(xv) all costs
incurred by Owner to retrofit any portion or all of the Building to comply
with change in existing legislation or introduction of new legislation,
whether federal, state or municipal, state, county or municipal (including
any agency or arm of said governmental unit; (xvi) the cost of repairs,
REPLACEMENTS AND IMPROVEMENTS WHICH ARE NECESSARY AND TYPICAL FOR THE
CONTINUED OPERATION OF A BUILDING OF THIS CLASS IN THE NORTH METRO DENVER
CORRIDOR INCLUDING A REASONABLE ESCROW FOR ROOF AND PARKING LOT REPLACEMENT
BUT EXCLUDING THOSE ITEMS WHICH ARE OWNER'S RESPONSIBILITY UNDER PARAGRAPH 15
OF THIS LEASE; (xvii) all expenses associated with the installation of any
energy, cost or labor saving devices but only to the extent of any savings in
Operating Costs; (xviii) costs of all landscaping; (xix) costs of any
security guards or security; (xx) any and all other expenditures of Owner in
connection with the operation, repair or maintenance of a Building which are
properly expensed in accordance with generally accepted accounting principles
consistently applied with respect to the operation and repair and maintenance
of comparable buildings in the northern Metro Denver Area. The above
enumeration of any Operating Cost shall not create any obligation (express
or implied) on the part of Owner to furnish such service.
If Owner shall purchase any item of capital equipment or make any capital
expenditure as described in (xv), (xvi), or (xvii) above, then an
amortization charge for the same shall be included in operating expenses in
accordance with generally accepted accounting principles. If Owner shall
lease such item of capital equipment, then the rentals or other operating
costs paid pursuant to such leasing shall be included in operating expenses
for each year in which they are incurred.
In addition, Operating Cost shall also include all Real Estate Taxes. The
term Real Estate Taxes includes, without limitation, general and special
taxes, assessments, duties and levies, charged and levied upon or assessed
against the Building, the land upon which it is located, and improvements
situated on the real property, any leasehold improvements, fixtures,
installations, additions and equipment used in the maintenance or operation
of the Building, whether owned by Owner or Tenant and not paid directly by
Tenant, including, without limitation, real estate taxes, personal property
taxes, general or special assessments, any duties or levies charged or levied
upon or assessed against the building and the property and personal property
transfer taxes, all costs and expenses (including legal fees and court costs)
charged for the protest or reduction of property taxes or assessments in
connection with the property and the Building (except that in the event
efforts to reduce the taxes are unsuccessful, the above referenced costs and
expenses shall be limited to $500)), or any tax or excise on rent or any
other tax (however described) on account of rental received for use and
occupancy of any or all of the Building and the property, whether any such
taxes are imposed by the United States, the State of Colorado, the County in
which the Building is located, or any local governmental municipality,
authority or agency or any political subdivision of any thereof. Real Estate
Taxes shall not include, transfer taxes, franchise, gift, estate or
inheritance taxes or income taxes. Further, if at any time during the Term
the method of taxation of real estate prevailing at the time of execution
hereof shall be, or has been, altered so as to cause the whole or any part of
the taxes now or hereafter levied, assessed or imposed on real estate to be
levied assessed or imposed upon Owner, wholly or partially as a capital levy
or otherwise, or on or measured by the rents received, then such new or
altered taxes attributable to the Demised Premises shall be deemed to be
included within the term Real Estate Taxes for purposes of this paragraph,
save and except that such shall not be deemed to include any increase in said
tax not attributable to the Building. Futhermore, if at any time during the
term hereof a tax or excise on rents or income or other tax however described
(herein called Rent Tax) is levied or assessed by the State of Colorado, or
any political subdivision thereof, on account of the rents hereunder of the
interest of Owner under this Lease, such Rent Tax constitute Real Estate
Taxes, provided, further, in no event shall Tenant be obligated to (i) pay
for any year any greater amount by any of such Rent Tax than would have been
payable by Xxxxxx had the rentals paid to the Owner under all Building leases
(being the rentals upon which such Rent Tax is imposed) been the sole taxable
income of Owner for the year in question or (ii) to pay or to reimburse Owner
for any tax of kind assessed against Owner on account of any such Rent Tax
having been reimbursed.
Operating costs shall not include (1) leasing commissions, advertising
expenses and other costs incurred in leasing or procuring new tenants; (2)
the cost of any capital addition made to the Building, including the cost to
prepare space for occupancy by a new Tenant; (3)
depreciation and amortization of the Building, other than (a) deleted; (b)
capital expenditures required by law as described in (xv) and (xvi) above;
and (c) capital expenditures designed to result in savings or reductions in
operating expenses as described in (xvii) above; (4) interest and principal
payments on mortgages and other debt costs; (5) Any cost or expenditure (or
portion thereof) for which Owner is reimbursed, whether by insurance proceeds
or otherwise (Base Rent adjustments under any provision of this Rider and
under similar provisions and other Tenant leases are not reimbursements); and
(6) cost of any service furnished to any other occupant of the Building which
Owner does not provide to Tenant hereunder.
In the event during all or any portion of any calendar year the Building
is not fully rented and occupied, Owner may elect to make an appropriate
adjustment of Operating Costs for such year, employing sound accounting and
management principles, to determine the Operating Cost that would have been
paid or incurred by Owner had the Building been fully rented and occupied and
the amount so determined shall be deemed to have been the Operating Costs for
such year. If Owner selects an accrual accounting basis rather than a cash
accounting basis for operating expenses purposes, operating expenses shall be
deemed to have been paid when such expenses have accrued.
All references to "Building" in this Rider shall include all other
Buildings in the Project (as defined in Basic Lease Provisions) and all
related facilities, including without limitation, corridors, lobbies,
sidewalks, grounds, parking spaces, driveway areas, elevators and other
common or public areas contained in or around the real estate as well as
landscaping, exterior walkways, and improvements or facility utilized in
common by the Building (and other Buildings of the projects upon or adjacent
to the real property). It is the express intent of the parties that all
Operating Costs be determined on the Project level, rather than at an
individual Building level.
(i) First Operating Cost Year is as defined in Basic Lease
Provisions.
(ii) Subsequent Operating Cost Year means each twelve month
calendar period following the First Operating Cost Year, the whole or any
part of which full period is included within the Term.
(iii) The Amount of Operating Costs for any period shall be the
amount as determined by the Owner in accordance with generally accepted
accounting principles.
C. If only part of the Term is included within any Operating Cost
Year, then such amount payable by Tenant for such Operating Cost Year shall
be estimated by Owner acting reasonably and reduced proportionately on a per
diem basis and shall be payable according to the terms and conditions in
subparagraph D. below.
D. Any additional Rent payable by Tenant under this Rider shall
be payable as follows, unless otherwise provided:
During the Term, Tenant shall pay to owner monthly in advance and every
month during the Term, one-twelfth (1/12th) of the amount of such Additional
Rent as estimated by Owner, from time to time, in advance, acting reasonably,
to be due from Tenant. Within a reasonable time after the close of each
calendar year, Owner shall give Tenant a statement of the year's Operating
Costs and the total amount of Additional Rent, if any. If such year's
Operating Cost is different than the estimated amount paid by Xxxxxx, Tenant
shall pay Owner or Owner shall credit Tenant, as applicable, within 30 days
of the date of the Statement, Tenant's proportionate share which has either
(i) not be paid by Tenant or (ii) overpaid by Tenant pursuant to an estimate.
One-twelfth of the amount of Additional Rent, as reasonably estimated by
Owner, for the First Operating Cost Year, to be paid by Tenant with each
month's Base Rent as Additional Rent shall be as stated in Basic Lease
Provisions as "Initial Monthly Estimated Additional Rent". This amount shall
be paid monthly until such time as Owner, in writing, reasonably adjusts the
estimated Additional Rent pursuant to the first sentence of this paragraph.
For purposes of calculating Additional Rent, Xxxxxx's proportionate share
of the total shall be deemed to be as set forth in paragraph F. below.
E. For the protection of Tenant, Owner shall maintain books of
account which shall be open to Tenant and its representatives for sixty (60)
days after billing for Additional Rent, at all reasonable times so that
Tenant can determine that such Additional Rent costs have, in fact, been paid
or incurred. Tenant shall have the right to contest or question the amount
and the appropriateness of the Operating Cost and Additional Rent for a
period of sixty (60) days after the billing for Additional Rent. If Tenant
does not so contest or question within said sixty (60) day period, then all
the determinations by Owner shall be conclusive.
F. TENANT'S PROJECT PROPORTIONATE SHARE is as defined in Basic
Lease Provisions.
G. Except as otherwise expressly provided in the Lease, the
parties agree that Owner shall have no obligation of any kind to make any
expenditures upon or with respect to the Premises. It is intended that Tenant
shall throughout the term, at its sole expense, maintain in good condition,
repair and order, reasonable wear and tear excepted, all of the Premises and
all parts thereof and shall pay to Owner Additional Rent as stated in this
Rider X.
XXXXX XX
This Rider to Lease is attached to and forms a part of that certain lease
between NEW NORTH POINT ASSOCIATES LIMITED PARTNERSHIP ("Owner") and GAMETECH
INTERNATIONAL, INC. ("Tenant") dated as of the 12TH day of JUNE, 1996 (the
"Lease"), and sets forth additional terms and provisions to be incorporated
into the Lease.
BUILDING SERVICES AND UTILITIES
(a) Subject to the limitation herein set forth, Owner will furnish
Tenant while occupying the Premises and while Tenant is not in default under
this Lease:
(i) water to the wall stub of the Premises;
(ii) snow removal and snow plowing of all common areas of the Building
and Project;
(iii) cleaning and maintenance of driveways and parking areas of the
Project;
(iv) trash and refuse removal;
In addition, Owner will maintain the public and common areas of the
Building and Project, such as walkways, stairs, and landscaping, if any, in
reasonable good order and condition, except for damage occasioned by Tenant
and Xxxxxx's parties.
(b) UTILITIES. Owner shall have the option to have: (i) Tenant pay
promptly all charges for heating, natural gas and electrical service used on
the Premises directly to the appropriate public utility company. If Tenant
shall fail to pay any utilities as required above, Owner shall have the
right, at his option, but without any obligation to do so, to pay such
utilities (without affecting any other remedy available to Owner) on account
of Tenant and the same shall constitute Additional Rent hereunder and shall
be repaid by Tenant to Owner forthwith; or (ii) Tenant pay all charges for
heating, natural gas and electrical service used on the Premises as
Additional Rent pursuant to Rider I. Owner shall make an election pursuant to
this paragraph from time to time, by 30 day notice to Xxxxxx. Owner may
elect to have certain utilities paid pursuant to (i) above and to have other
utilities paid pursuant to (ii) above. If Owner makes no written election,
then all utilities that are separately metered shall be paid pursuant to (i)
above and all items that are not separately metered shall be paid pursuant to
(ii) above.
Notwithstanding the above, Tenant covenants and agrees that at all
times its use of electric current shall never exceed the capacity of the
existing feeders to the Building or the risers or wiring installations. Any
risers or wiring to meet Tenant's excess electrical requirements will be
installed by Owner at the sole cost and expense of Tenant (if, in Owner's
sole judgment, the same are necessary and will not cause permanent damage or
injury to the Building or the Premises or cause or create a dangerous or
hazardous condition or entail excessive or unreasonable alterations, repairs
or expense or interfere with or disturb other tenants or occupants).
If initially Tenant is paying all or any public utilities pursuant
to (ii) above, Owner may at its option, upon not less than 30 days prior
written notice to Tenant discontinue the availability of such utility
service. If Owner gives any such notice of discontinuance, Owner shall make
all necessary arrangements with the public utility supplying the utilities to
the area in which the Building is located with respect to obtaining such
utility service to the Premises, but Tenant will contract directly with such
public utility for the supplying of such utility service to the Premises. In the
event Owner deems it appropriate to make available separately metered service
to the Premises, Owner may require that separate submeters be installed in or
for the Premises, at Owner's expense, and Tenant will be billed monthly from
such sub-meter in a manner provided hereinbefore, provided that no such
sub-metering shall relieve Tenant from its obligation to pay Tenant's share
of other utility charges under this paragraph.
RIDER II.I
Owner shall not in any way be liable or responsible to Tenant for
any loss or damage or expense which Tenant may sustain or incur if either the
quantity or character of any utility service is changed or no longer available
or is no longer suitable for Tenant's requirements.
(c) Failure to any extent to make available, or any slow-down,
stoppage or interruption of, these defined services resulting from any cause
(including, but not limited to, Owner's compliance with (i) any voluntary or
similar governmental or business guideline now or hereafter published or (ii)
any requirements now or hereafter established by any governmental agency,
board or bureau having jurisdiction over the operation and maintenance of
the Building) shall not render Owner liable in any respect for damages to
either person, property or business, nor be construed as an eviction of
Tenant or work an abatement of rent, nor relieve Xxxxxx from fulfillment of
any covenant or agreement hereof. Should any equipment or machinery which
Owner is obligated to maintain and repair pursuant to this Lease break down or
for any reason cease to function properly, Owner shall use reasonable
diligence to repair same promptly, but Tenant shall have no claim for
abatement of rent or damages on account of any interruptions in service
occasioned thereby or resulting therefrom.
(d) Notwithstanding any termination of this Lease prior to the
Ending Date of Term, tenant's obligations to pay any and all Rent pursuant to
this Rider shall continue and shall cover all periods up to the actual
expiration date of the Term; provided, however, if Owner terminates this
Lease without waiving Owner's right to seek damages against Tenant, Xxxxxx's
obligation to pay any and all Rent pursuant to this Rider shall not terminate
as a result thereof.
(e) TRASH AND REFUSE REMOVAL. If Owner determines, in its sole
discretion, that Owner provides Tenant with more than normal and ordinary
Trash and Refuse Removal ("Excess Removal"), then Owner shall have the option
to i) charge Tenant, as Additional Rent, an amount for such Excess Removal
(Owner's determination of such amount shall be binding on the parties), or
ii) cease providing Tenant with Trash and Refuse Removal.
RII.2
SITE PLAN
EXHIBIT B
RULES AND REGULATIONS
1. SIGNS
A. No sign, advertisement, notice, placard, picture, name or other
lettering shall be exhibited, inscribed, printed displayed or affixed on or
to any part of the inside or outside of the Demised Premises of the Building
without the prior written consent of Owner. Owner shall have the right to
remove any such sign, advertisement, notice, placard, picture, logo, name or
other lettering without notice and at the expense of Tenant.
B. All approved signs or lettering on doors shall be printed,
painted, affixed or inscribed at the expense of Tenant by a person selected
by Owner.
2. SIDEWALKS, OBSTRUCTIONS. The sidewalks, halls, entrances,
exits, passages, stairways and elevators of the Building shall not be
obstructed by Tenant, its agents or employees, nor shall they be used for any
purpose other than ingress and egress to and from the Premises. The halls,
passages, entrances, exits, stairways, elevators, balconies and roof are not
for the use of the general public, and Owner shall in all cases retain the
right to control and prevent access thereto by all persons whose presence in
the judgment of Owner might be prejudicial to the safety, reputation and
interests of the Building and its tenants, provided that nothing herein
contained shall be construed to prevent such access to persons with whom
Tenant normally deals in the ordinary course of Tenant's business, unless
such persons are engaged in illegal activities. No tenant and no employees
or invitees of any tenant shall go upon the roof of the Building.
3. LOCKS. Tenant shall not alter any lock or install any new or
place additional locks or any bolts or mail slots on any door, wall or window
of the Premises without the prior written consent of Owner.
4. KEYS. All keys to the Building, Premises, rooms and toilet
rooms shall be and remain the property of Owner and shall be obtained from
Owner's Building Management Office, and Tenant shall not from any other
source duplicate, obtain keys or have keys made. Tenant, upon termination of
the tenancy, shall deliver to Owner all keys to the Building, Premises, rooms
and toilet rooms that have been furnished or shall pay the Owner the cost of
replacing same or of changing the lock or locks opened by such lost key(s) if
Owner deems it necessary to make such change.
5. WATER FIXTURES. The toilet rooms, urinals, wash bowls,
drinking fountains and other apparatus shall not be used for any purposes
other than that for which they were constructed, and no foreign substance of
any kind whatsoever shall be thrown therein. The expense of any breakage,
stoppage or damage resulting from the violation of this rule shall be borne
by the tenant who, or whose employees or invitees, shall have caused it. No
person shall waste water by leaving faucets open or in any other manner.
6. FLOOR LOADING. Tenant shall not overload the floor of the
Premises. Owner shall prescribe, after consultation with the appropriate
architects and engineers, the floor loading permissible.
7. ALTERATIONS. In addition to the provisions of the Lease,
Tenant shall not mark, paint, drill into, drive nails or screw into or in any
way deface or change any part of the Premises or the Building. Owner will
direct electricians as to where electric and telephone wires are to be
introduced. No boring, cutting or stringing of wires will be allowed except
as approved and directed by Owner. The locations of telephones, call boxes
and other office equipment affixed to the Premises shall be subject to the
approval of Owner. Owner shall permit reasonable numbers of picture hangers
and other reasonable attachments to be made to walls, floors and ceilings.
8. FLOOR COVERINGS. The only floor coverings shall be the
building standard carpet, or such other covering(s) as Owner may approve in
writing. The expense of repairing any damage resulting from tenant's
violation of this rule or from removal of any floor covering shall be borne
by the tenant by whom, or by whose contractors, employees or invitees, the
damage shall have been caused.
9. DISTURBANCES AND USE.
A. Tenant shall not use, keep or permit to be used or kept any
food (other than that to be kept in reasonable amounts for the consumption by
its own employees and all of that to be kept in tightly sealed containers
and/or in a refrigerator) or noxious gas or substance in the Premises, or
permit or suffer the Premises to be occupied or used in a manner offensive or
objectionable to Owner or to other occupants of the Building by reason of
noise, odors and/or vibrations, or interfere in any way with other tenants or
those having business therein.
B. Only incidental cooking for the use of Tenant may be done on
the Premises, and that only using equipment and in a place within the
Premises specifically authorized in writing by Owner, and in a way so that no
odors of food are observed by other occupants of the Building.
C. DELETED
D. No animals or birds may be brought in or kept in or about the
Premises or the Building EXCEPT ANIMALS TRAINED TO ASSIST HANDICAPPED
INDIVIDUALS.
E. No tenant, employee or invitee of any tenant shall make or
permit to be made any unseemly or disturbing noises or disturb or interfere
with occupants of this or neighboring buildings or Premises or those having
business with them whether by use of any musical instrument, radio,
phonograph, unusual noise, or in any other way.
F. No tenant, employee or invitee of any tenant shall throw
anything out of doors or down any passageway, any stairway, elevator shaft or
ventilating duct or shaft of the Building.
G. Tenant shall not disturb, solicit, peddle or canvass any
occupancy of the Building and shall cooperate to prevent same.
X. Xxxxxx shall be responsible for keeping any children visiting
or accompanying anyone visiting the Premises under control and quiet so that
they do not disturb other occupants of the Building.
I. Tenant shall not use the Premises for any purpose other than
that described in the Lease, for manufacturing, for the storage of
merchandise, except as such storage may be incidental to the use of the
Premises for the purpose(s) described in the Lease, for washing clothes, for
lodging or for illegal, improper, immoral or objectionable purpose.
X. Xxxxxx shall not advertise for laborers giving an address at
the Building or Premises.
10. FIRE AND OTHER GOVERNMENTAL REGULATIONS. Tenant shall not do
or permit anything to be done in the Premises, or bring or keep anything
therein, which will in any way increase the fire insurance rates on the
building or on the property kept therein; or obstruct or interfere with the
rights of other tenants, or in any way injure or annoy them or conflict with
the laws relating to fire, or with any regulations of the fire department, or
with any insurance policy upon the Building or any part thereof or conflict
with any of the rules or ordinances of the governmental jurisdictions in
which the Building lies.
X. Xxxxxx agrees that it will comply with all fire and security
regulations that may be
issued from time to time by Owner, and Xxxxxx also shall provide Owner with
the name of a designated employee responsible to represent Tenant in all
matters pertaining to such fire or security regulations.
B. Tenant shall not use or keep in the Premises any gasoline,
kerosene or inflammable, combustible, or explosive fluid or material, other
than nominal amounts of ordinary office fluids to be used for duplicating or
photocopying machines or other, similar office equipment.
C. Tenant shall not use any method of heating or air conditioning
other than that supplied by Owner.
D. Tenant shall install and properly maintain, at Tenant's sole
cost and expense, an adequate, visibly marked and at all times properly
operational fire extinguisher next to any duplicating or photocopying machine
or any cooking device or any similar heat-producing equipment which may or
may not contain combustible material in the Premises.
11. LEAVING THE PREMISES. Tenant shall see that the doors of the
Premises are closed and securely locked before leaving the Building and must
observe strict care and caution that all water faucets or other water
apparatus in the Premises are entirely shut off before Tenant leaves the
Building, and that all unnecessary electricity shall likewise be carefully
shut off, so as to prevent waste or damage. For any default or carelessness,
Tenant shall make good all injuries sustained by Tenant, by other tenants or
occupants of the Building.
All doors opening to public corridors shall be kept closed
except for normal ingress and egress from the Premises.
12. OBJECTIONABLE BUILDING OCCUPANTS. Owner reserves the right to
exclude or expel from the Building any person who, in the judgement of Owner,
appears intoxicated or under the influence of alcohol or drugs, or who shall
in any manner do any act in violation of any of the rules and regulations of
the Building.
13. PAINTING AND DECORATING. All painting and decorating in the
Premises must be agreed to in writing and in advance by Owner. Any such work
as may be agreed to be done by and at the expense of Owner shall be done
during regular working hours. Should Tenant desire such work to be done
outside of regular working hours, Tenant shall pay the extra cost thereof.
14. WINDOW COVERINGS. No curtains, blinds, shades, draperies,
screens or other materials shall be attached to, hung in or used in
connection with any window or sidelight of the Premises other than those
supplied by or otherwise agreed to by Owner.
A. The sashes, sash doors, skylights, windows and sidelights that
reflect or admit light or air into the halls, passageways or other public
places in the Building shall not be covered or obstructed by Tenant.
B. Tenant shall not place anything or allow anything to be placed
near the glass of any window, skylights, door, partition or wall which may,
in the sole opinion of Owner, appear unsightly from outside the Premises.
15. LIGHT FIXTURES. No electrical fixtures shall be hung or
otherwise installed in the Premises other than those supplied by or otherwise
agreed to by Owner.
16. SHOW CASES. No show case or other articles shall be put in
front of or affixed to any part of the exterior of the Building, nor placed
in public portions thereof.
17. INFESTATION. If the Premises is or becomes infested with
vermin as a result of the use or any misuse or neglect of Premises by Tenant,
Owner shall forthwith at Tenant's
sole cost and expense cause the same to be exterminated from time to time to
the satisfaction of Owner.
18. TENANT'S CONTRACTORS. Tenant's contractor(s) (any of which
shall be subject to the prior written approval of Owner) shall, while in the
Building or elsewhere on the Property, be subject to and under the control
and direction of Owner or Owner's agent(s) but said contractor(s) shall not
be the agent or servant of Owner or Owner's agent(s).
19. TENANT'S NEEDS. The requirements of Tenant will be attended
to only upon application at the office of the Building. Owner's employees
shall not perform any work or do anything outside of their regular duties
unless under special instructions from Owner.
20. ADVERTISING. Without the prior written consent of Owner,
Tenant shall not use the name of the Building nor any picture of the Building
in connection with or in promoting or advertising the business of Tenant, or
on its stationery or in any other manner except as Xxxxxx's address.
21. BUILDING NAME. Owner shall have the right, exercisable without
notice and without liability to Tenant, to change the name and the street
address of the Building.
22. GOVERNMENT REGULATIONS. If, as a result of any governmental
rule or regulation, Owner imposes a curtailment of services or equipment in
Premises or the Building, Tenant shall comply therewith and shall be liable
to Owner for any surcharge imposed for any violation by Xxxxxx.
23. OUTSIDE SERVICES. No tenant shall obtain for use in the
Premises towel or other similar service or accept barbering, boot-blacking or
other similar services on the Premises, except from persons authorized by the
Owner and at the hours and under regulations fixed by the Owner.
24. BUILDING OPERATION. Owner shall have the right to control and
operate the public portions and the public facilities of the Building and the
heating and air conditioning, as well as facilities furnished for the common
use of the tenants, in such manner as it deems best for the benefit of the
tenants generally.
25. PARKING.
A. Tenant shall not park any vehicles in any driveways, service
entrances or areas posted either as "No Parking" or as "Visitor Parking".
B. Tenant shall not park any vehicles in any parking space
designated for handicapped parking unless such vehicle bears a current
handicapped license plate or windshield placard.
C. Tenant shall not park in such a manner as to occupy more than
one parking space per vehicle, except in such case where a delivery vehicle
too large for one space is parked for the purpose of making a specific
delivery to or pickup from the Premises.
26. DEFINITIONS. For the purposes of the Rules and Regulations,
in every case where the word "Tenant" is used, it shall be deemed to mean the
Tenant, its employees, agents, servants, contractors, licensees, visitors,
delivery people and invitees.
27. RULE WAIVER. Owner reserves the right by written notice to
Tenant to rescind, alter, waiver or add any rule or regulations prescribed
for the Building at any time when, in Owner's sole judgment, it is necessary,
desirable or proper for the best interest of the Building and its tenants.
EXHIBIT C
This Exhibit C is attached to and forms an integral part of that certain
Lease Agreement dated June 12, 1996 ("Lease") by and between New North Point
Associates Limited Partnership ("Owner") and GameTech International, Inc.
("Tenant"). In the event of a conflict between this Exhibit C and the Lease,
then this Exhibit C shall prevail.
Tenant accepts the Premises As-Is, except that:
1) Owner shall, at Owner's expense complete the tenant following as yet
uncompleted tenant improvements:
(a) Repair as needed the existing wood base board trim.
(b) Complete installation of door as required.
Owner: New North Point Associates LP
By: /s/ [ILLEGIBLE]
-------------------------------
Tenant: GameTech International, Inc.
By: /s/ [ILLEGIBLE]
-------------------------------
NORTH POINT BUSINESS PARK
TAXES, INSURANCE & CAM ESTIMATE WORKSHEET
FOR THE YEAR - 1996
1996
EXPENSE ESTIMATE
TAXES 24,500.00
INSURANCE 5,500.00
CAM:
GAS & ELECTRIC 4,000.00
LANDSCAPING 6,000.00
M & R - ELECTRIC 2,000.00
M & R - GENERAL BLDG 8,000.00
M & R - HVAC 7,500.00
M & R - ROOF 2,500.00
MANAGEMENT FEE 14,000.00
MISC ADMINISTRATIVE 1,000.00
PARKING LOT REPAIR 10,000.00
PARKING LOT SWEEPING 2,500.00
PEST CONTROL 1,000.00
SIGNAGE 2,000.00
SNOW REMOVAL 2,500.00
TRASH 3,500.00
WATER & SEWER 12,000.00
TOTAL CAM 78,500.00
TOTAL EXPENSES 108,500.00
PER SQ FT $2.44
EXHIBIT E
Block 1, Northglenn Business Park, County of Xxxxx, State of Colorado, Except
that portion depicted as Melody Drive along the Easterly 10 feet of subject
property, County of Xxxxx, State of Colorado.
ADDENDUM I
To
LEASE AGREEMENT
By and Between New North Point Associates Limited Partnership
As OWNER
And
GameTech International, Inc.
As TENANT
This Addendum I to that certain Lease Agreement dated June 12, 1996 ("Lease")
by and New North Point Associates Limited Partnership ("Owner") and GameTech
International, Inc. ("Tenant") is entered into as of said date and shall be
construed as part thereof. For and in consideration of the mutual covenants
herein contained and contained in the Lease, the parties do hereby agree as
follows:
1) FREE RENT: Tenant shall receive the month of June, 1996 free of Base Rent
and Additional Rent.
2) ENVIRONMENTAL COMPLIANCE:
a) Xxxxxx agrees that Tenant will not conduct any operations or
activities not specifically described in the Lease at the Premises without
the prior specific written consent of Landlord.
b) All operations and activities of Tenant on the Premises will comply
with all applicable federal, state and local environmental laws and
regulations and shall be conducted in a manner which will not give rise to
any environmental hazard or claim. Operations and activities of Tenant
involving the handling, storage, disposal or transportation to and from the
Premises of hazardous materials, substances and/or waste (hereinafter
"hazardous materials") shall be conducted in accordance with all applicable
laws and regulations and in a manner so as to prevent any releases of
hazardous materials.
c) As used herein, "Environmental Cleanup Liability" shall mean any
liability, loss, cost, expense, fine or penalty of any nature incurred or
imposed by any authority as a result of the necessity to contain, dispose,
remove, treat, remedy or xxxxx any air, soil, groundwater or other
contamination on or off the Premises and on or off the property of which
the Premises are a part, which arises or is alleged to arise from Tenant's
acts of omissions on or related to the Premises, including but not limited
to: (a) costs or expenses for investigation, study, assessment, legal
representation, cost recovery by government agency, or monitoring of such
contamination; and (b) cost, expense, loss or damage incurred as a result
of actions or measures necessary to implement or effectuate any
containment, removal, disposal, treatment, remediation, cleanup or
abatement of such contamination.
d) Xxxxxx agrees to protect, defend, indemnify and hold Landlord harmless
from any and all Environmental Cleanup Liability or other liability arising
from operations, acts or omissions of Tenant on the Premises including but
not limited to Tenant's disposal from the Premises or transportation of
hazardous materials to or from the Premises. This agreement of Tenant to
protect, defend, indemnify and hold Landlord harmless shall extend to all
acts or omissions of Tenant and shall not be limited to negligent or
wrongful acts or omissions of Tenant.
e) Xxxxxxxx agrees to protect, defend, indemnify and hold Tenant harmless
from any and all Environmental Cleanup Liability or other liability arising
prior to Xxxxxx's taking occupancy of the Premises.
f) The obligations of this Paragraph 2 shall survive the expiration or
earlier termination of this lease.
3) JANITORIAL: (a) Tenant shall provide their own janitorial in the Premises.
(b) The common area lobbies and bathrooms which service the Premises and the
remaining space in the building which contains the Premises ("Building 5")
shall be cleaned, maintained, and supplied by Owner on a basis and in a
manner consistent with a professionally managed Class B office project in the
immediate competitive corridor. Tenant shall reimburse Owner on a monthly
basis for the greater of (i) their proportionate share of the occupied square
footage in the building, or (ii) 13.28 PERCENT (1,000 s.f./7,530 s.f.) of the
common area janitorial and supplies cost.
4) OPTION TO RENEW: Tenant is granted an option to renew ("Option") the Lease
for one (1) term of three (3) years, provided Tenant notifies Landlord, in
writing, of Xxxxxx's intent to exercise the Option at least one hundred
twenty (120) days and no more than three hundred sixty-five (365) days prior
to the expiration of the then expiring term of this Lease. Tenant's right to
the option shall be further conditioned upon Tenant not having previously
been in default of this Lease, not being in default of this Lease at the time
of exercising the Option or not being in default of this Lease between the
time the Option is exercised and the end of the then expiring Lease term.
Should Tenant not be in compliance with any of the aforesaid conditions, the
Option shall be null and void and of no further effect. The terms and
conditions for the Option, if exercised by Tenant, shall be the same as
during the original term of this Lease except that the Monthly Base Rental
for the first year of the extended term shall be the GREATER of (i) the then
prevailing market rental rate for similarly sized and located office spaces
in the area of the Project or (ii) five (5%) percent above the Base Rent in
effect at the time the Option is exercised. On each anniversary of the
commencement of the extended term, the Monthly Base Rent shall be increased
by the percentage change in the Consumer Price Index (All Urban) for the
immediately preceding twelve month period except in no event shall the
Monthly Base Rent be reduced.
5) CONFLICT: In the event of any conflict between the Lease, including its
Riders and Exhibits, and this Addendum I, this Addendum I shall prevail.
6) The Lease and its Riders, Exhibits or this Addendum may only be modified
by a writing executed by both parties.
Dated as of the ____ of _________, 19__.
Landlord: New North Point Associates LP Tenant: GameTech International, Inc.
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
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Its: Chief Financial Officer
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