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Sample Business ContractsHome: Sample Business Contracts:
INDUSTRIAL BUILDING LEASE
BETWEEN
COPPELL COMMERCE CENTER, LTD. ("LANDLORD")
AND
HNC INSURANCE SOLUTIONS, INC., A CALIFORNIA CORPORATION ("TENANT")
DATE OF LEASE: DECEMBER 13, 2000
BUILDING: COPPELL COMMERCE CENTER
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TABLE OF CONTENTS
1. DEFINITIONS...............................................................1
2. LEASE GRANT...............................................................3
3. ADJUSTMENT OF COMMENCEMENT DATE/POSSESSION................................3
4. USE.......................................................................4
5. BASE RENTAL...............................................................5
6. SECURITY DEPOSIT..........................................................5
7. SERVICES TO BE FURNISHED BY LANDLORD......................................6
8. LEASEHOLD IMPROVEMENTS/TENANT'S PROPERTY..................................6
9. SIGNAGE...................................................................7
10. REPAIRS AND ALTERATIONS BY TENANT.........................................7
11. USE OF ELECTRICAL SERVICES BY TENANT......................................8
12. ENTRY BY LANDLORD.........................................................9
13. ASSIGNMENT AND SUBLETTING.................................................9
14. MECHANIC'S LIENS.........................................................10
15. INSURANCE................................................................10
16. INDEMNITY................................................................11
17. DAMAGES FROM CERTAIN CAUSES..............................................12
18. CASUALTY DAMAGE..........................................................12
19. CONDEMNATION.............................................................12
20. HAZARDOUS SUBSTANCES.....................................................13
21. AMERICANS WITH DISABILITIES ACT..........................................14
22. EVENTS OF DEFAULT........................................................14
23. REMEDIES.................................................................15
24. NO WAIVER................................................................18
25. PEACEFUL ENJOYMENT.......................................................18
26. SUBSTITUTION.............................................................18
27. HOLDING OVER.............................................................18
28. SUBORDINATION TO MORTGAGE/ESTOPPEL CERTIFICATE...........................18
29. NOTICE...................................................................19
30. LANDLORD'S LIEN..........................................................19
31. SURRENDER OF PREMISES....................................................19
32. RIGHTS RESERVED TO LANDLORD..............................................19
33. MISCELLANEOUS............................................................20
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34. ENTIRE AGREEMENT....................................................22
35. LIMITATION OF LIABILITY.............................................22
EXHIBIT A-OUTLINE AND LOCATION OF PREMISES
EXHIBIT A-1-LEGAL DESCRIPTION OF LAND
EXHIBIT B-RULES AND REGULATIONS
EXHIBIT C-PAYMENT OF BASIC COSTS
EXHIBIT D-WORK LETTER
EXHIBIT E-ADDITIONAL PROVISIONS
EXHIBIT F-COMMENCEMENT LETTER
EXHIBIT G-GUARANTY OF LEASE
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INDUSTRIAL BUILDING LEASE AGREEMENT
This Industrial Building Lease Agreement (THE "LEASE"), made and entered into as
of the 13th day of December, 2000, between Coppell Commerce Center Ltd., a Texas
limited partnership ("LANDLORD") and HNC Insurance Solutions, Inc., a California
corporation ("TENANT").
W I T N E S S E T H:
1. DEFINITIONS. The following are definitions of some of the defined terms used
in this Lease. The definition of other defined terms are found throughout this
Lease.
A. "BUILDING" shall mean the industrial building at 1221 S. Beltline Road,
County of Dallas, State of Texas, currently known as Coppell Commerce
Center, and located on the land described in EXHIBIT A-1.
B. "BASE RENT": Base Rent will be paid according to the following schedule,
subject to the provisions of Section 5. hereof. For the purposes of this
Section 1.B., "LEASE YEAR" shall mean the twelve (12) month period
commencing on the Commencement Date, and on each anniversary of the
Commencement Date.
MONTHLY INSTALLMENTS
PERIOD ANNUAL BASE RENT OF BASE RENT
FIRST LEASE YEAR $174,240.00 $14,520.00
SECOND LEASE YEAR $174,240.00 $14,520.00
THIRD LEASE YEAR $174,240.00 $14,520.00
FOURTH LEASE YEAR $174,240.00 $14,520.00
FIFTH LEASE YEAR $174,240.00 $14,520.00
The Base Rent due for the first month during the Lease Term (hereinafter
defined) shall be paid by Tenant to Landlord contemporaneously with
Tenant's execution hereof.
C. "ADDITIONAL RENT": shall mean Tenant's Pro Rata Share of Basic Costs
(hereinafter defined) and any other sums (exclusive of Base Rent) that are
required to be paid to Landlord by Tenant hereunder, which sums are deemed
to be Additional Rent under this Lease. Additional Rent and Base Rent are
sometimes collectively referred to herein as "Rent."
D. "BASIC COSTS" shall mean all direct and indirect costs and expenses
incurred in connection with the Building as more fully defined in EXHIBIT C
attached hereto. TENANT AGREES TO ESCROW WITH LANDLORD AN AMOUNT EQUAL TO
1/12 OF THE ESTIMATED ANNUAL COSTS OF ITS PROPORTIONATE SHARE OF SUCH BASIC
COSTS WITH TENANT'S MONTHLY BASE RENT PAYMENT. LANDLORD CURRENTLY ESTIMATES
TENANT'S ANNUAL COST TO BE $2.20 PER SQUARE FOOT.
E. "SECURITY DEPOSIT" shall mean the sum of Fourteen Thousand Five Hundred
Twenty and No/100 Dollars ($14,520.00). The Security Deposit shall be paid
by Tenant to Landlord contemporaneously with Tenant's execution hereof.
F. "COMMENCEMENT DATE", "LEASE TERM" and "TERMINATION DATE" shall have the
meanings set forth in subsection 1.F.(1):
(1) The "LEASE TERM" shall mean a period of sixty (60) months commencing
on the earlier to occur (a) MARCH 1, 2001 (the "TARGET COMMENCEMENT
DATE") and (b) the date upon which Landlord's Work in the Premises
has been substantially completed as such date is determined pursuant
to Section 3.A. hereof (the earlier to occur of such dates being
defined as the "COMMENCEMENT DATE"). THE DATE WHICH IS SIXTY (60)
MONTHS AFTER THE COMMENCEMENT DATE (the "TERMINATION DATE") shall,
unless sooner terminated as provided herein, mean the last day of
the Lease Term. Notwithstanding the foregoing, if the Termination
Date, as determined herein, does not occur on the last day of a
calendar month, the Lease Term shall be extended by the number of
days necessary to cause the Termination Date to occur on the last
day of the last calendar month of the Lease Term. Tenant shall pay
Base Rent and Additional Rent for such additional days at the same
rate payable for the portion of the last calendar month immediately
preceding such extension. The Commencement Date, Lease Term
(including any extension by Landlord pursuant to this subsection
1.F.(1) and Termination Date shall be set forth in a Commencement
Letter prepared by Landlord and executed by Tenant in accordance
with the provisions of Section 3.A. hereof.
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G. "PREMISES" shall mean the space located within the Building and outlined
on EXHIBIT A to this Lease.
H. "APPROXIMATE RENTABLE AREA IN THE PREMISES" shall mean the area contained
within the demising walls of the Premises and any other area designated for the
exclusive use of Tenant plus an allocation of the Tenant's pro rata share of
the square footage of the "Common Areas" and the "Service Areas" (as defined
below). For purposes of the Lease it is agreed and stipulated by both Landlord
and Tenant that the Approximate Rentable Area in the Premises is 14,400 square
feet.
I. The "APPROXIMATE RENTABLE AREA IN THE BUILDING" is 105,600 square feet. The
Approximate Rentable Area in the Premises and the Approximate Rentable Area
in the Building as set forth herein may be revised at Landlord's election if
Landlord's architect determines such estimate to be inaccurate in any material
degree after examination of the final drawings of the Premises and the Building.
J. "TENANT'S PRO RATA SHARE" shall mean 13.6364 percent (13.6364%) which is the
quotient (expressed as a percentage), derived by dividing the Approximate
Rentable Area in the Premises by the Approximate Rentable Area in the Building.
K. "PERMITTED USE" shall mean SALES, TRAINING AND ADMINISTRATION, CUSTOMER
SERVICE AND SUPPORT, CUSTOMER DATA REVIEW, AND ANY OTHER LEGAL USE INCIDENTAL
TO THE FOREGOING WHICH IS CONSISTENT WITH THE CHARACTER OF THE BUILDING and no
other use or purpose.
L. Intentionally Omitted.
M. "GUARANTOR" shall mean HNC Software, Inc. and any other party that agrees in
writing to guarantee Tenant's obligations under this Lease.
N. "BROKER" shall mean CB Richard Ellis.
O. "BUILDING MANAGER" shall mean Transwestern Commercial Services or such other
company as Landlord shall designate from time to time.
P. "BUILDING STANDARD", shall mean the type, brand, quality and/or quantity of
materials Landlord designates from time-to-time to be the minimum quality and/or
quantity to be used in the Building or the exclusive type, grade, quality
and/or quantity of material to be used in the Building.
Q. "BUSINESS DAY(S)" shall mean Mondays through Fridays exclusive of the normal
business holidays of New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day ("HOLIDAYS"). Landlord, from time to time
during the Lease Term, shall have the right to designate additional Holidays,
provided such additional Holidays are commonly recognized by other industrial
buildings in the area where the Building is located.
R. "COMMON AREAS" shall mean those areas located within the Building or on the
Property used for corridors, elevator foyers, mail rooms, restrooms, mechanical
rooms, elevator mechanical rooms, property management office, janitorial
closets, electrical and telephone closets, vending areas, and lobby areas
(whether at ground level or otherwise), entrances, exits, sidewalks, skywalks,
tunnels, driveways, parking areas and parking garages and landscaped areas and
other similar facilities provided for the common use or benefit of tenants
generally and/or the public.
S. "DEFAULT RATE" shall mean the lower of (i) the Prime Rate plus FOUR PERCENT
(4%) or (ii) the Maximum Rate.
T. "MAXIMUM RATE" shall mean the highest rate of interest from time-to-time
permitted under applicable federal and state law.
U. "NORMAL BUSINESS HOURS" for the Building shall mean 8:00 a.m. to 6:00 p.m.
Mondays through Fridays, and 8:00 a.m. to 1:00 p.m. on Saturdays, exclusive of
Holidays.
V. "PRIME RATE" shall mean the per annum interest rate announced by and quoted
in the Wall Street Journal from time-to-time as the prime or base rate.
W. "PROPERTY" shall mean the Building and the parcel(s) of land on which it is
located, other improvements located on such land, adjacent parcels of land that
Landlord operates jointly with the Building, and other buildings and
improvements located on such adjacent parcels of land.
X. "SERVICE AREAS" shall mean those areas within the Building used for stairs,
elevator shafts, flues, vents, stacks, pipe shafts and other vertical
penetrations (but shall not include any such areas for the exclusive use of a
particular tenant).
Y. "NOTICE ADDRESSES" shall mean the following addresses for Tenant and
Landlord, respectively:
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Tenant:
HNC Insurance Solutions, Inc.
1221 S. Beltline Road
Coppell, TX 75019
Attention: Don Dougherty or
Service Center Manager
with a copy to:
HNC Insurance Solutions, Inc.
110 Theory
Irvine, CA 92612
Attention: Chief Financial Officer
Landlord:
Transwestern Commercial Services
17111 Preston Road, Suite 140
Dallas, TX 75248
Attn: Property Manager
with a copy to:
Transwestern Investment Company
150 North Wacker Drive, Suite 800
Chicago, IL 60606
Attn: Owner's Representative
Payments of Rent only shall be made payable to the order of:
Transwestern Commercial Services
at the following address:
P.O. Box 797544
Dallas, TX 75379-7544
or such other name and address as Landlord shall, from time to time,
designate.
2. LEASE GRANT. Subject to and upon the terms herein set forth, Landlord
leases to Tenant and Tenant leases from Landlord the Premises together with the
right, in common with others, to use the Common Areas.
3. ADJUSTMENT OF COMMENCEMENT DATE/POSSESSION.
A. If the Lease Term, Commencement Date and Termination Date are to be
determined in accordance with Section 1.F.1. above, the Lease Term shall
not commence until the earlier to occur of the Target Commencement Date and
the date that Landlord has substantially completed the work to be performed
by Landlord as set forth in the Work Letter Agreement attached hereto as
EXHIBIT D ("LANDLORD'S WORK"); provided, however, that if Landlord shall be
delayed in substantially completing the Landlord Work as a result of the
occurrence of any of the following (a "DELAY"):
(1) Tenant's failure to furnish information in accordance with the
Work Letter Agreement or to respond to any request by Landlord for
any approval of information within any time period prescribed, or
if no time period is prescribed, then within two (2) Business Days
of such request; or
(2) Tenant's insistence on materials, finishes or installations that
have long lead times after having first been informed by Landlord
that such materials, finishes or installations will cause a
Delay. AS OF THE DATE OF THIS LEASE, TO LANDLORD'S KNOWLEDGE,
BUILDING STANDARD MATERIALS DO NOT HAVE LONG LEAD TIMES WHICH
WOULD BE LIKELY TO CAUSE A DELAY; or
(3) Changes in any plans and specifications requested by Tenant; or
(4) The performance or nonperformance by a person or entity employed
by on or behalf of Tenant in the completion of any work in the
Premises (all such work and such persons or entities being subject
to prior approval of Landlord); or
(5) Any request by Tenant that Landlord delay the completion of any of
the Landlord's Work; or
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(6) Any breach or default by Tenant in the performance of Tenant's
obligations under this Lease; or
(7) Any delay resulting from Tenant's having taken possession of the
Premises for any reason prior to substantial completion of the
Landlord's Work; or
(8) Any other delay chargeable to Tenant, its agents, employees or
independent contractors;
then, for purposes of determining the Commencement Date, the date of
substantial completion shall be deemed to be the day that said Landlord's
Work would have been substantially completed absent any such Delay(s). The
Landlord's Work shall be deemed to be substantially completed on the date
that Landlord's Work has been performed (or would have been performed absent
any Delay(s), other than any details of construction, mechanical adjustment
or any other matter, the noncompletion of which does not materially interfere
with Tenant's use of the Premises. The adjustment of the Commencement Date
and, accordingly, the postponement of Tenant's obligation to pay Base rent
and other sums due hereunder shall be tenant's sole remedy and shall
constitute full settlement of all claims that tenant might otherwise have
against Landlord by reason of the Premises not being ready for occupancy by
Tenant on the Target Commencement Date. Promptly after the determination of
the Commencement Date, Landlord and Tenant shall enter into a letter
agreement (the "COMMENCEMENT LETTER") on the form attached hereto as EXHIBIT
F setting forth the Commencement Date, the termination Date and any other
dates that are affected by the adjustment of the Commencement Date. If this
Lease requires Landlord to perform Landlord's work in the Premises, the
Commencement Letter shall identify any minor incomplete items of the
Landlord's Work as reasonably determined by Landlord's architect (the
"PUNCHLIST ITEMS"), which Punchlist Items Landlord shall promptly remedy.
Tenant, within five (5) days after receipt thereof from Landlord, shall
execute the Commencement Letter and return the same to Landlord.
Notwithstanding anything herein to the contrary, Landlord may elect, by
written notice to Tenant, not to adjust the Commencement Date as provided
above if such adjustment wold cause Landlord to be in violation of the
existing right granted to any other tenant of the Building. If Landlord
elects not to adjust the Commencement Date, the Commencement Date shall be
the target Commencement Date, provided that Base Rent and Additional Rent
shall not commence until the date that Landlord's Work has been substantially
completed (or would have been substantially completed absent any Delays).
B. Subject to Paragraph 21 below, by taking possession of the Premises,
Tenant is deemed to have accepted the Premises and agreed that the Premises
is in good order and satisfactory condition, with no representation or
warranty by Landlord as to the condition of the Premises or the Building or
suitability thereof for Tenant's use. LANDLORD COVENANTS THAT THE HVAC AND
MECHANICAL, ELECTRICAL AND PLUMBING SYSTEM AND EQUIPMENT SERVICING THE
PREMISES WILL BE DELIVERED IN GOOD WORKING CONDITION.
C. Notwithstanding anything to the contrary contained in this Lease,
Landlord shall not be obligated to tender possession of any portion of the
Premises or other space leased by Tenant from time to time hereunder that, on
the date possession is to be delivered, is occupied by a tenant or other
occupant or that is subject to the rights of any other tenant or occupant,
nor shall Landlord have any other obligations to Tenant under this Lease with
respect to such space until the date Landlord: (1) recaptures such space from
such existing tenant or occupant; and (2) regains the legal right to
possession thereof. This Lease shall not be affected by any such failure to
deliver possession and Tenant shall have no claim for damages against
Landlord as a result thereof, all of which are hereby waived and released by
tenant. If Landlord is prevented from delivering possession of the Premises
to Tenant due to the holding over in possession of the Premises by tenant or
other occupant thereof, Landlord shall use reasonable efforts to regain
possession of the Premises in order to deliver the same to Tenant. If the
Lease Term is to be determined pursuant to Section 1.F.(1), the Commencement
Date and Termination Date shall be determined as provided in section 3.A.
above.
D. If Tenant takes possession of the Premises prior to the Commencement
Date, such possession shall be subject to all the terms and conditions of the
Lease and Tenant shall pay Base Rent and Additional Rent to Landlord for each
day of occupancy prior to the Commencement Date. Notwithstanding the
foregoing, if Tenant, with Landlord's prior approval, takes possession of the
Premises prior to the Commencement Date for the sole purpose of performing
any Landlord-approved improvements therein or installing furniture,
equipment or other personal property of Tenant, such possession shall be
subject to all of the terms and conditions of the Lease, except that Tenant
shall not be required to pay Rent with respect to the period of time prior to
the Commencement Date during which Tenant performs such work. Nothing herein
shall be construed as granting Tenant the right to take possession of the
Premises prior to the Commencement Date, whether for construction, fixturing
or any other purpose, without the prior consent of Landlord.
4. USE. The Premises shall be used for the Permitted Use and for no other
purpose. Tenant agrees not to use or permit the use of the Premises for any
purpose which is illegal, dangerous to life, limb or property or which, in
Landlord's sole judgement, creates a nuisance or which would increase the cost
of insurance
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coverage with respect to the Building. Tenant will conduct its business and
control its agents, servants, employees, customers, licensees, and invitees in
such a manner as not to interfere with, annoy or disturb other tenants or
Landlord in the management of the Building and the Property. Tenant will
maintain the Premises in a clean and healthful condition, and comply with all
laws, ordinances, orders, rules and regulations of any governmental entity with
reference to the use, condition, configuration or occupancy of the Premises.
Tenant, within ten (10) days after the receipt thereof, shall provide Landlord
with copies of any notices it receives with respect to a violation or alleged
violation of any such laws, ordinances, orders, rules and regulations. Tenant,
at its expense, will comply with the rules and regulations of the Building
attached hereto as EXHIBIT B and such other rules and regulations adopted and
altered by Landlord from time-to-time and will cause all of its agents,
employees, invitees and visitors to do so. All such changes to rules and
regulations will be reasonable PROVIDED, HOWEVER, THAT IN NO EVENT SHALL ANY
SUCH RULES AND REGULATIONS MATERIALLY AND ADVERSELY CHANGE ANY PROVISION OF THIS
LEASE, and shall be sent by Landlord to Tenant in writing.
5. BASE RENT.
A. Tenant covenants and agrees to pay to Landlord during the Lease Term,
without any setoff or deduction except as otherwise expressly provided
herein, the full amount of all Base Rent and Additional Rent due hereunder
and the full amount of all such other sums of money as shall become due
under this Lease (including, without limitation, any charges for
replacement of electric lamps and ballasts and any other services, goods or
materials furnished by Landlord at Tenant's request), all of which
hereinafter may be collectively called "RENT." In addition Tenant shall pay
and be liable for, as Additional Rent, all rent, sales and use taxes or
other similar taxes, if any, levied or imposed by any city, state, county
or other governmental body having authority, such payments to be in
addition to all other payments required to be paid to Landlord by Tenant
under the terms and conditions of this Lease. Any such payments shall be
paid concurrently with the payments of the Rent on which the tax is based.
The Base Rent and Additional Rent for each calendar year or portion thereof
during the Lease Term, shall be due and payable in advance in monthly
installments of the first day of each calendar month during the Lease Term
and any extensions or renewals hereof, and Tenant hereby agrees to pay such
Base Rent and Additional Rent to Landlord without demand. If the Lease Term
commences on a day other than the first day of a month or terminates on a
day other than the last day of a month, then the installments of Base Rent
and Additional Rent for such month or months shall be prorated, based on
the number of days in such month. No payment by Tenant or receipt or
acceptance by Landlord of a lesser amount than the correct installment of
Rent due under this Lease shall be deemed to be other than a payment on
account of the earliest Rent due hereunder, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment be
deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance or
pursue any other available remedy. The acceptance by Landlord of an
installment of Rent on a date after the due date of such payment shall not
be construed to be a waiver of Landlord's right to declare a default for
any other late payment. All amounts received by Landlord from Tenant
hereunder shall be applied first to the earliest accrued and unpaid Rent
then outstanding. Tenant's covenant to pay Rent shall be independent of
every other covenant set forth in this Lease.
B. To the extent allowed by law, all installments of Rent not paid when due
shall bear interest at the Default Rate from the date due until paid. In
addition, if Tenant fails to pay any installment of Base Rent and
Additional Rent or any other item of Rent when due and payable hereunder, a
"LATE CHARGE" equal to five percent (5%) of such unpaid amount will be due
and payable immediately by Tenant to Landlord.
C. The Additional Rent payable hereunder shall be adjusted from
time-to-time in accordance with the provisions of EXHIBIT C attached hereto
and incorporated herein for all purposes.
6. SECURITY DEPOSIT. The Security Deposit shall be held by Landlord without
liability for interest and as security for the performance by Tenant of Tenant's
covenants and obligations under this Lease including but not limited to those
set forth in Section 10 hereof, it being expressly understood that the Security
Deposit shall not be considered an advance payment of Rent or a measure of
Tenant's liability for damages in case of default by Tenant. Landlord shall have
no fiduciary responsibilities or trust obligations whatsoever with regard to the
Security Deposit and shall not assume the duties of a trustee for the Security
Deposit. Landlord may, from time-to-time, without prejudice to any other remedy
and without waiving such default, use the Security Deposit to the extent
necessary to cure or attempt to cure, in whole or in part, any DEFAULT BEYOND
ANY APPLICABLE CURE AND NOTICE PERIODS, default to Tenant hereunder. Following
any such application of the Security Deposit, Tenant shall pay to Landlord on
demand the amount so applied in order to restore the Security Deposit to its
original amount. IF TENANT IS NOT IN DEFAULT AT THE TERMINATION OF THIS LEASE,
LANDLORD SHALL RETURN ANY UNAPPLIED BALANCE OF THE SECURITY DEPOSIT TO TENANT
WITHIN FORTY FIVE (45) DAY(S) AFTER TENANT SURRENDERS THE PREMISES TO LANDLORD
IN ACCORDANCE WITH THE TERMS OF THIS LEASE. IN ADDITION TO ANY OTHER DEDUCTIONS
LANDLORD IS ENTITLED TO MAKE PURSUANT TO THE TERMS HEREOF, LANDLORD SHALL HAVE
THE RIGHT TO MAKE GOOD FAITH ESTIMATE OF ANY UNRECONCILED BASIC COSTS AS OF THE
TERMINATION DATE AND TO DEDUCT ANY ANTICIPATED SHORTFALL FROM THE SECURITY
DEPOSIT, SUCH ESTIMATE TO BE RECONCILED WHEN THE FINAL BASIC COSTS ARE KNOWN.
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If Landlord transfers its interest in the Premises during the term of this
Lease, Landlord may assign the Security Deposit to the transferee and thereafter
shall have no further liability for the return of such Security Deposit. Tenant
agrees to look solely to such transferee or assignee or successor thereof for
the return of the Security Deposit. Landlord and its successors and assigns
shall not be bound by any actual or attempted assignment or encumbrance of the
Security Deposit by Tenant. Landlord shall not be required to keep the Security
Deposit separate from its other accounts.
7. SERVICES TO BE FURNISHED BY LANDLORD.
A. Landlord agrees to furnish Tenant the following services:
(1) Water for use in the lavatories on the floor(s) on which the
Premises is located. If Tenant desires water in the Premises for
any approved reason, including a private lavatory or kitchen,
cold water shall be supplied, at Tenant's sole cost and expense,
from the Building water main through a line and fixtures
installed at Tenant's sole cost and expense with the prior
reasonable consent of Landlord. If Tenant desires hot water in
the Premises, Tenant, at its sole cost and expense and subject to
the prior reasonable consent of Landlord, may install a hot water
in the Premises. Tenant shall be solely responsible for the
maintenance and repair of any such water heater.
(2) Maintenance and repair of all Common Areas in the manner and to
the extent reasonably deemed by Landlord to be standard for
buildings of similar class, age and location.
(3) Electricity to the Premises in accordance with and subject to the
terms and conditions of Section 11. of this Lease.
(4) GAS TO THE PREMISES IN ACCORDANCE WITH AND SUBJECT TO THE TERMS
AND CONDITIONS OF SECTION D BELOW.
B. If Tenant requests any other utilities or building services in addition
to those identified above, or any of the above utilities or building
services in frequency, scope, quality or quantities substantially greater
than the standards set by Landlord for the Building, then Landlord shall
use reasonable efforts to attempt to furnish Tenant with such additional
utilities or building services. Landlord may impose a reasonable charge for
such additional utilities or building services, which shall be paid monthly
by Tenant as Additional Rent on the same day that the monthly installment
of Base Rent is due.
C. Except as otherwise expressly provided herein, the failure by Landlord
to any extent to furnish, or the interruption or termination of these
defined services in whole or in part, resulting from adherence to laws,
regulations and administrative orders, wear, use, repairs, improvements
alterations or any causes beyond the reasonable control of Landlord shall
not render Landlord liable in any respect nor be construed as a
constructive eviction of Tenant, nor give rise to an abatement of Rent, nor
relieve Tenant from the obligation to fulfill any covenant or agreement
hereof. Should any of the equipment or machinery used in the provision of
such services for any cause cease to function properly, Landlord shall use
reasonable diligence to repair such equipment or machinery. NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED IN THIS ARTICLE 7, IF: (i) LANDLORD
CEASES TO FURNISH ANY SERVICE IN THE BUILDING FOR A PERIOD IN EXCESS OF
FIVE (5) CONSECUTIVE DAYS AFTER TENANT NOTIFIES LANDLORD OF SUCH CESSATION
(THE "INTERRUPTION NOTICE"); (ii) SUCH CESSATION DOES NOT ARISE AS A RESULT
OF AN ACT OR OMISSION OF TENANT; (iii) SUCH CESSATION IS NOT CAUSED BY A
FIRE OR OTHER CASUALTY (IN WHICH CASE ARTICLE 19 SHALL CONTROL); (iv) THE
RESTORATION OF SUCH SERVICE IS REASONABLY WITHIN THE CONTROL OF LANDLORD;
AND (v) AS A RESULT OF SUCH CESSATION, THE PREMISES OR A MATERIAL PORTION
THEREOF, IS RENDERED UNTENANTABLE (MEANING THAT TENANT IS UNABLE TO USE THE
PREMISES IN THE NORMAL COURSE OF ITS BUSINESS) AND TENANT IN FACT CEASES TO
USE THE PREMISES, OR MATERIAL PORTION THEREOF, THEN TENANT, AS ITS SOLE
REMEDY SHALL BE ENTITLED TO RECEIVE AN ABATEMENT OF BASE RENT PAYABLE
HEREUNDER DURING THE PERIOD BEGINNING ON THE SIXTH (6TH) CONSECUTIVE DAY OF
SUCH CESSATION AND ENDING ON THE DAY WHEN THE SERVICE IN QUESTION HAS BEEN
RESTORED. IN THE EVENT THE ENTIRE PREMISES HAS NOT BEEN RENDERED
UNTENANTABLE BY THE CESSATION IN SERVICE, THE AMOUNT OF ABATEMENT THAT
TENANT IS ENTITLED TO RECEIVE SHALL BE PRORATED BASED UPON THE PERCENTAGE
OF THE PREMISES SO RENDERED UNTENANTABLE AND NOT USED BY TENANT.
D. LANDLORD SHALL PROVIDE GAS SERVICE TO THE BUILDING IN A LOCATION AS
DETERMINED BY THE LANDLORD, GAS PROVIDER AND GOVERNING AUTHORITIES.
DISTRIBUTION AND RELATED WORK SHALL BE PERFORMED BY TENANT IN ACCORDANCE
WITH THE TERMS OF THIS LEASE. TENANT SHALL ARRANGE FOR AND PAY FOR ALL
CHARGES FOR GAS USED OR SUPPLIED UPON OR IN CONNECTION WITH THE PREMISES
AND SHALL BE RESPONSIBLE FOR ARRANGING FOR THE CONNECTION AND INSTALLATION
OF ALL METERS IN CONNECTION THEREWITH. TENANT SHALL PROMPTLY PAY ALL BILLS
FOR SAID UTILITIES AND THE COST OF INSTALLING METERS OR SUBMETERS. IN THE
EVENT THAT ANY UTILITIES ARE FURNISHED TO THE PREMISES BY LANDLORD, WHETHER
SUB-METERED OR OTHERWISE, THEN IN THAT EVENT, TENANT SHALL PAY LANDLORD FOR
SUCH UTILITIES.
8. LEASEHOLD IMPROVEMENTS/TENANT'S PROPERTY. All fixtures, equipment,
improvements and appurtenances attached to, or built into, the Premises at the
commencement of or during the Lease Term, whether or not by, or at the expense
of, Tenant ("LEASEHOLD IMPROVEMENTS"), shall be and remain a part of the
Premises; shall be the property of Landlord; and shall not be removed by Tenant
except as expressly
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provided herein. All unattached and moveable partitions, trade fixtures,
moveable equipment or furniture located in the Premises and acquired by or for
the account of Tenant, without expense to Landlord, which can be removed without
structural damage to the Building or Premises, and all personalty brought into
the Premises by Tenant ("TENANT'S PROPERTY") shall be owned and insured by
Tenant. Landlord may, nonetheless, at any time prior to, or within one (1) month
after, the expiration or earlier termination of this Lease or Tenant's right to
possession, require Tenant to remove any Leasehold Improvements performed by or
for the benefit of Tenant and all electronic, phone and data cabling as are
designated by Landlord (the "REQUIRED REMOVABLES") at Tenant's sole cost. In the
event that Landlord so elects, Tenant shall remove such Required Removables
within ten (10) days after notice from Landlord, provided that in no event shall
Tenant be required to remove such Required Removables prior to the expiration or
earlier termination of this Lease or Tenant's right to possession. In addition
to Tenant's obligation to remove the Required Removables, Tenant shall repair
any damage caused by such removal and perform such other work as is reasonably
necessary to restore the Premises to a "move in" condition. If Tenant fails to
remove any specified Required Removables or to perform any required repairs and
restoration within the time period specified above, Landlord, at Tenant's sole
cost and expense, may remove the Required Removables (and repair any damage
occasioned thereby) and dispose thereof or deliver the Required Removables to
any other place of business of Tenant, or warehouse the same, and Tenant shall
pay the cost of such removal, repair, delivery, or warehousing of the Required
Removables within five (5) days after demand from Landlord. NOTWITHSTANDING THE
FOREGOING, TENANT MAY REQUEST IN WRITING AT THE TIME IT SUBMITS ITS PLANS AND
SPECIFICATIONS FOR AN ALTERATION, ADDITION OR IMPROVEMENT, THAT LANDLORD ADVISE
TENANT WHETHER LANDLORD WILL REQUIRE TENANT TO REMOVE, AT THE TERMINATION OF
THIS LEASE OR THE TERMINATION OF TENANT'S RIGHT TO POSSESSION HEREUNDER, SUCH
ALTERATION, ADDITION OR IMPROVEMENT, OR ANY PARTICULAR PORTION THEREOF; AND
LANDLORD SHALL ADVISE TENANT WITHIN TWENTY (20) DAYS AFTER RECEIPT OF TENANT'S
REQUEST AS TO WHETHER LANDLORD WILL REQUIRE REMOVAL OF SUCH ALTERATION, ADDITION
OR IMPROVEMENT.
9. SIGNAGE. Landlord shall provide and install, at Tenant's cost, all letters or
numerals on the exterior of the Premises; all such letters and numerals shall
be in the standard graphics for the Building and no others shall be used or
permitted on the Premises without Landlord's prior written consent.
10. REPAIRS AND ALTERATIONS BY TENANT.
A. Except to the extent such obligations are imposed upon Landlord
hereunder, Tenant shall, at its sole cost and expense, maintain the Premises
in good order, condition and repair throughout the entire Lease Term,
ordinary wear and tear expected. Tenant agrees to keep the areas visible
from outside the Premises in a neat, clean and attractive condition at all
times. Tenant shall be responsible for all repairs replacements and
alterations in and to the Premises, Building and Property and the facilities
and systems thereof, the need for which arises out of (1) Tenant's use or
occupancy of the Premises, (2) the installation, removal, use or operations
of Tenant's Property (as defined in Section 8. above), (3) the moving of
Tenant's Property into or out of the Building, or (4) the act, omission,
misuse or negligence of Tenant, its agents, contractors, employees or
invitees. Tenant shall be responsible for repair, maintenance and
replacement, if necessary, of the HVAC system and equipment exclusively
serving the Premises. All such repairs, replacements or alterations shall be
performed in accordance with Section 10.B. below and the rules, policies and
procedures reasonably enacted by Landlord from time to time for the
performance of work in the Building. If Tenant fails to maintain the
Premises in good order, condition and repairs, Landlord shall give Tenant
notice to perform such acts as are reasonably required to so maintain the
Premises. If Tenant fails to promptly commence such work and diligently
pursue it to its completion, then Landlord may, at its option, make such
repairs, and Tenant shall pay the cost thereof to Landlord on demand as
Additional Rent, together with an administration charge in an amount equal
to ten percent (10%) of the cost of such repairs. Landlord shall, at its
expense (except as included in Basic Costs) keep and maintain in good repair
and working order and make all repairs to and perform necessary maintenance
upon: (a) all structural elements of the Building; and (b) all mechanical,
electrical and plumbing systems that serve the Building in general; and (c)
the Building facilities common to all tenants including but not limited to,
the ceilings, walls and floors in the Common Areas. NOTWITHSTANDING THE
FOREGOING TO THE CONTRARY, IN THE EVENT THE HVAC SYSTEM AND EQUIPMENT
EXCLUSIVELY SERVING THE PREMISES NEED TO BE REPLACED DURING THE TERM AND
SUCH REPLACEMENT IS NOT CAUSED BY THE ACTS, OMISSIONS OR NEGLIGENCE OF
TENANT, ITS AGENTS OR EMPLOYEES, THEN THE COST TO REPLACE THE SYSTEM AND
EQUIPMENT SHALL BE AMORTIZED ON A STRAIGHT-LINE BASIS OVER THEIR USEFUL LIFE
AND TENANT SHALL BE RESPONSIBLE FOR PAYMENT OF THAT PORTION WHICH IS
AMORTIZED DURING THE REMAINING BALANCE OF THE TERM.
B. PROVIDED THE REPAIRS, ADDITIONS OR ALTERATIONS ARE LESS THAN $5,000.00
AND ARE NON-STRUCTURAL, NON-ELECTRICAL, NOT VISIBLE FROM THE EXTERIOR OF THE
BUILDING, AND DO NOT ADVERSELY AFFECT THE VALUE OF THE BUILDING, TENANT
SHALL ONLY HAVE TO PROVIDE NOTICE TO LANDLORD. Tenant shall not make or
allow to be made any alterations, additions or improvements to the Premises,
without first obtaining the written consent of Landlord in each such
instance, which consent may be refused or given on such conditions as
Landlord may REASONABLY elect. Prior to commencing any such work and as a
condition to obtaining Landlord's consent, Tenant must furnish Landlord with
plans and specifications acceptable to Landlord; names and addresses of
contractors reasonably acceptable to Landlord; copies of contracts;
necessary permits and approvals; evidence of contractor's and
subcontractor's insurance in accordance with Section 15. hereof; and a
payment bond or other security, all in form and amount satisfactory to
Landlord. Tenant shall be responsible
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for insuring that all such persons procure and maintain insurance coverage
against such risks, in such amounts and with such companies as Landlord
may require, including, but not limited to, Builder's Risk and Worker's
Compensation insurance. All such improvements, alterations or additions
shall be constructed in a good and workmanlike manner using Building
Standard materials or other new materials of equal or greater quantity.
Landlord, to the extent reasonably necessary to avoid any disruption to
the tenants and occupants of the Building, shall have the right to
designate the time when any such alterations, additions and improvements
may be performed and to otherwise designate reasonable rules, regulations
and procedures for the performance of work in the Building. Upon
completion, Tenant shall furnish "as-build" plans, contractor's affidavits
and full and final waivers of lien and receipted bills covering all labor
and materials. All improvements, alterations and additions shall comply
with the insurance requirements, codes, ordinances, laws and regulations,
including without limitation, the Americans with Disabilities Act. Tenant
shall reimburse Landlord upon demand for all sums, if any, expended by
Landlord for third party examination of the architectural, mechanical,
electrical and plumbing plans for any alterations, additions or
improvements. In addition, if Landlord so requests, Landlord shall be
entitled to oversee the construction of any alterations, additions or
improvements that may affect the structure of the Building or any of the
mechanical, electrical, plumbing or life safety systems of the Building.
In the event Landlord elects to oversee such work, Landlord shall be
entitled to receive a fee for such oversight in an amount equal to FIVE
PERCENT (5%) of the cost of such alterations, additions or improvements.
Landlord's approval of Tenant's plans and specifications for any work
performed for on behalf of Tenant shall not be deemed to be representation
by Landlord that such plans and specifications comply with applicable
insurance requirements, building codes, ordinances, laws or regulations or
that the alterations, additions and improvements constructed in accordance
with such plans and specifications will be adequate for Tenant's use.
11. USE OF ELECTRICAL SERVICES BY TENANT.
A. All electricity used by Tenant in the Premises shall, at Landlord's
option, be paid for by Tenant either: (1) through inclusion in Base Rent
and Basic Costs (except as provided in Section 11.B. below with respect to
excess usage); or (2) by a separate charge billed directly to Tenant by
Landlord and payable by Tenant as Additional Rent within ten (10) days
after billing; or (3) by a separate charge or charges billed by the utility
company(ies) providing electrical service and payable by Tenant directly to
such utilities company(ies). Landlord shall have the right at any time and
from time-to-time during the Lease Term to contract for electricity service
from such providers of such services as Landlord shall elect (each being an
"ELECTRIC SERVICE PROVIDER"). Tenant shall cooperate with Landlord, and the
applicable Electric Service Provider, at all times and, as reasonably
necessary, shall allow Landlord and such Electric Service Provider
reasonable access to the Building's electric lines, feeders, risers,
wiring, and any other machinery within the Premises. NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED IN THIS ARTICLE 7, IF: (i) LANDLORD
CEASES TO FURNISH ANY SERVICE IN THE BUILDING FOR A PERIOD IN EXCESS OF
FIVE (5) CONSECUTIVE DAYS AFTER TENANT NOTIFIES LANDLORD OF SUCH CESSATION
(THE "INTERRUPTION NOTICE"); (ii) SUCH CESSATION DOES NOT ARISE AS A RESULT
OF AN ACT OR OMISSION OF TENANT; (iii) SUCH CESSATION IS NOT CAUSED BY A
FIRE OR OTHER CASUALTY (IN WHICH CASE ARTICLE 19 SHALL CONTROL); (iv) THE
RESTORATION OF SUCH SERVICE IS REASONABLY WITHIN THE CONTROL OF LANDLORD;
AND (v) AS A RESULT OF SUCH CESSATION, THE PREMISES OR A MATERIAL PORTION
THEREOF, IS RENDERED UNTENANTABLE (MEANING THAT TENANT IS UNABLE TO USE THE
PREMISES IN THE NORMAL COURSE OF ITS BUSINESS) AND TENANT IN FACT CEASES TO
USE THE PREMISES, OR MATERIAL PORTION THEREOF, THEN TENANT, AS ITS SOLE
REMEDY, SHALL BE ENTITLED TO RECEIVE AN ABATEMENT OF BASE RENT PAYABLE
HEREUNDER DURING THE PERIOD BEGINNING ON THE SIXTH (6TH) CONSECUTIVE DAY OF
SUCH CESSATION AND ENDING ON THE DAY WHEN THE SERVICE IN QUESTION HAS BEEN
RESTORED. IN THE EVENT THE ENTIRE PREMISES HAS NOT BEEN RENDERED
UNTENANTABLE BY THE CESSATION IN SERVICE, THE AMOUNT OF ABATEMENT THAT
TENANT IS ENTITLED TO RECEIVE SHALL BE PRORATED BASED UPON THE PERCENTAGE
OF THE PREMISES SO RENDERED UNTENANTABLE AND NOT USED BY TENANT.
Landlord shall in no way be liable or responsible for any loss, damage, or
expense that Tenant may sustain or incur by reason of any change, failure,
interference, disruption, or defect in the supply or character of the
electric energy furnished to the Premises, or if the quantity or character
of the electric energy supplied by the Electric Service Provider is no
longer available or suitable for Tenant's requirements, and no such
change, failure, defect, unavailability, or unsuitability shall constitute
an actual or constructive eviction, in whole or in part, or entitle Tenant
to any abatement or diminution of rent, or relieve Tenant from any of its
obligations under the Lease.
B. Tenant's use of electrical services furnished by Landlord shall not
exceed in voltage, rated capacity, or overall load that which is standard
for the Building. In the event Tenant shall request that it be allowed to
consume electrical services in excess of Building Standard, Landlord may
refuse to consent to such usage or may consent upon such conditions as
Landlord reasonably elects (including the installation of utility service
upgrades, submeters, air handlers or cooling units), and all such
additional usage (to the extent permitted by law), installation and
maintenance thereof shall be paid for by Tenant as Additional Rent.
Landlord, at any time during the Lease Term, shall have the right to
separately meter electrical usage for the Premises or to measure
electrical usage by survey or any other method that Landlord, in its
reasonable judgment, deems appropriate.
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12. ENTRY BY LANDLORD. Tenant shall permit Landlord or its agents or
representatives to enter into and upon any part of the Premises to inspect the
same, or to show the Premises to prospective purchasers, mortgagees, tenants
(during the last (9) nine months of the Lease Term or earlier in connection with
a potential relocation) or insurers, or to clean or make repairs, alterations,
or additions thereto, including any work that Landlord deems necessary for the
safety, protection or preservation of the Building or any occupants thereof, or
to facilitate repairs, alterations or additions to the Building or any other
tenant's premises. Except for any entry by Landlord in an emergency situation or
to provide normal cleaning and janitorial service, Landlord shall provide Tenant
with reasonable prior notice of any entry into the Premises, which notice may be
given verbally. Landlord shall have the right to temporarily close the Premises
or the Building to perform repairs, alterations or additions in the Premises or
the Building, provided that Landlord shall use reasonable efforts to perform all
such work on weekends and after Normal Business Hours. Entry by Landlord
hereunder shall not constitute a constructive eviction or entitle Tenant to any
abatement or reduction of Rent by reason thereof.
13. ASSIGNMENT AND SUBLETTING.
A. Except in connection with a Permitted Transfer (defined in Section
13.E. below), Tenant shall not assign, sublease, transfer or encumber any
interest in this Lease or allow any third party to use any portion of the
Premises (collectively or individually, a "TRANSFER") without the prior
written consent of Landlord, which consent shall not be unreasonably
withheld CONDITIONED OR DELAYED. Without limitation, it is agreed that
Landlord's consent shall not be considered unreasonably withheld if: (1)
the proposed transferee's financial condition does not meet the criteria
Landlord uses to select Building tenants having similar leasehold
obligations; (2) the proposed transferee's business is not suitable for the
Building considering the business of the other tenants and the Building's
prestige, or would result in a violation of another tenant's rights; (3)
the proposed transferee is a governmental agency or occupant of the
Building; (4) Tenant is in default beyond any applicable notice and cure
period; or (5) any portion of the Building or the Premises would likely
become subject to additional or different laws as a consequence of the
proposed Transfer. Any attempted Transfer in violation of this Section 13,
shall, exercisable in Landlord's sole and absolute discretion, be voidable.
Consent by Landlord to one or more Transfer(s) shall not operate as a
waiver of Landlord's rights to approve any subsequent Transfer(s). IN NO
EVENT SHALL ANY TRANSFER OR PERMITTED TRANSFER RELEASE OR RELIEVE TENANT
FROM ANY OBLIGATION UNDER THIS LEASE OR ANY LIABILITY HEREUNDER.
B. If Tenant requests Landlord's consent to a Transfer, Tenant shall submit
to Landlord financial statements for the proposed transferee, a complete
copy of the proposed assignment, sublease and other information as Landlord
may reasonably request. Landlord shall within TWENTY (20) DAYS after
Landlord's receipt of the required information and documentation either:
(1) consent or reasonably refuse consent to the Transfer in writing; (2) in
the event of a proposed assignment of this Lease or a proposed sublease of
the entire Premises for the entire remaining term of this Lease, terminate
this Lease effective the first to occur of ninety (90) days following
written notice of such termination or the date that the proposed Transfer
would have come into effect. If Landlord shall fail to notify Tenant in
writing of its decision within such thirty (30) days period after the later
of the date Landlord is notified in writing of the proposed Transfer or the
date Landlord has received all required information concerning the proposed
transferee and the proposed Transfer, Landlord shall be deemed to have
refused to consent to such Transfer, and to have elected to keep this Lease
in full force and effect. Tenant shall pay Landlord a review fee of FIVE
HUNDRED ($500.00) for Landlord's review of any Permitted Transfer or
requested Transfer. In addition, Tenant shall reimburse Landlord for its
actual reasonable costs and expenses (including without limitation
reasonable attorney's fees) incurred by Landlord in connection with
Landlord's review of such requested Transfer or Permitted Transfer.
C. Tenant shall pay to Landlord fifty percent (50%) of all cash and other
consideration which Tenant receives as a result of a Transfer that is in
excess of the rent payable to Landlord (NET OF TENANT'S REASONABLE
OUT-OF-POCKET MARKETING, BROKERAGE, AND BUILD-OUT CONCESSIONS GRANTED TO
THE SUBTENANT WHICH ARE ASSOCIATED WITH PROCURING SUCH SUBTENANT HEREUNDER)
for the portion of the Premises and Term covered by the Transfer within
ten (10) days following receipt thereof by Tenant. If Tenant is in
Monetary Default (defined in Section 22. below), Landlord may require that
all sublease payments be made directly to Landlord, in which case Tenant
shall receive a credit against rent in the amount of any payments received
(less Landlord's share of any excess).
D. Except as provided below with respect to a Permitted Transfer, if
Tenant is a corporation, limited liability company, partnership or similar
entity, and the entity which owns or controls a majority of the voting
shares/rights at the time changes for any reason (including but not limited
to a merger, consolidation or reorganization), such change of ownership or
control shall constitute a Transfer. The foregoing shall not apply so long
as Tenant is an entity whose outstanding stock is listed on a nationally
recognized security exchange, or if at least eighty percent (80%) of its
voting stock is owned by another entity, the voting stock of which is so
listed.
E. Tenant may assign its entire interest under this Lease or sublet the
Premises to any entity controlling or controlled by or under common control
with Tenant or to any successor to Tenant by purchase, merger,
consolidation or reorganization (hereinafter, collectively, referred to as
"PERMITTED TRANSFER") without the consent of Landlord, provided: (1) Tenant
is not in default BEYOND ANY
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APPLICABLE CURE AND NOTICE PERIODS under this Lease; (2) if such proposed
transferee is a successor to Tenant by purchase, said proposed transferee
shall acquire all or substantially all of the stock or assets of Tenant's
business or, if such proposed transferee shall acquire all or substantially
all of the stock or assets of Tenant's business or, if such proposed
transferee is a successor to Tenant by merger, consolidation or
reorganization, the continuing or surviving corporation shall own all or
substantially all of the assets of Tenant; (3) such proposed transferee
shall have a net worth which would be reasonably acceptable to Landlord if
such entity were entering into a new lease with Landlord for the Premises
as evidenced to Landlord's reasonable satisfaction; (4) such proposed
transferee operates the business in the Premises for the Permitted Use and
no other purpose; and (5) Tenant shall give Landlord written notice at
least thirty (30) days prior to the effective date of the proposed
purchase, merger, consolidation or reorganization.
F. Tenant agrees that in the event Landlord withholds its consent to any
Transfer contrary to the provisions of this Section 13, Tenant's sole
remedy shall be to seek an injunction in equity or compel performance by
Landlord to give its consent and Tenant expressly waives any right to
damages in the event of such withholding by Landlord of its consent.
14. MECHANIC'S LIENS. Tenant will not permit any mechanic's liens or other
liens to be placed upon the Premises, the Building, or the Property and nothing
in this Lease shall be deemed or construed in any way as constituting the
consent or request of Landlord, express or implied, by inference or otherwise,
to any person for the performance of any labor or the furnishing of any
materials to the Premises, the Building, or the Property or any part thereof,
nor as giving Tenant any right, power, or authority to contract for or permit
the rendering of any services or the furnishing of any materials that would
give rise to any mechanic's or other liens against the Premises, the Building,
or the Property. In the event any such lien is attached to the Premises,
the Building, or the Property, then, in addition to any other right or remedy
of Landlord, Landlord may, but shall not be obligated to, discharge the same.
Any amount paid by Landlord for any of the aforesaid purposes including, but
not limited to, reasonable attorneys' fees, shall be paid by Tenant to Landlord
promptly on demand as Additional Rent. Tenant shall within ten (10) days of
receiving such notice of lien or claim (a) have such lien or claim released or
(b) deliver to Landlord a bond in form, content, amount and issued by surety,
satisfactory to Landlord, indemnifying, protecting, defending and holding
harmless the Indemnities against all costs and liabilities resulting from such
lien or claim and the foreclosure or attempted foreclosure thereof. Tenant's
failure to comply with the provisions of the foregoing sentence shall be deemed
an Event of Default under Section 22. hereof entitling Landlord to exercise all
of its remedies therefor without the requirement of any additional notice or
cure period.
15. INSURANCE.
A. Landlord shall maintain such insurance on the Building and the Premises
(other than on Tenant's Property or on any additional improvements
constructed in the Premises by Tenant), and such liability insurance in
such amounts as Landlord elects. The cost of such insurance shall be
included as a part of the Basic Costs, and payments for losses thereunder
shall be made solely to Landlord or the mortgagees of Landlord as their
interests shall appear.
B. Tenant shall maintain at its expense, (1) in an amount equal to full
replacement cost, special form (formerly known as all risk) property
insurance on all of its personal property, including removable trade
fixtures and leasehold and tenant improvements, and Tenant's Property
located in the Premises and in such additional amounts as are required to
meet Tenant's obligations pursuant to Section 18 hereof and with
deductibles in an amount reasonably satisfactory to Landlord, and (ii) a
policy or policies of commercial general liability insurance (including
endorsement or separate policy for owned or non-owned automobile liability)
with respect to its activities in the Building and on the Property, with
the premiums thereon fully paid on or before the due date, in an amount of
not less than $2,000,000 per occurrence per person coverage for bodily
injury, property damage, personal injury or combination thereof (the term
"personal injury" as used herein means, without limitation, false arrest,
detention or imprisonment, malicious prosecution, wrongful entry, liable
and slander), provided that if only single limit coverage is available it
shall be for at least $2,000,000 per occurrence with an umbrella policy of
at least $5,000,000 combined single limit per occurrence. Tenant's
insurance policies shall name Landlord and Building Manager as additional
insureds and shall include coverage for the contractual liability of Tenant
to indemnify Landlord and Building Manager pursuant to Section 16 of this
Lease and shall have deductibles in an amount reasonably satisfactory to
Landlord. Prior to Tenant's taking possession of the Premises, Tenant shall
furnish evidence satisfactory to Landlord of the maintenance and timely
renewal of such insurance, and Tenant shall obtain and deliver to Landlord
a written obligation on the part of each insurer to notify Landlord at
least thirty (30) days prior to the modification, cancellation or
expiration of such insurance policies. In the event Tenant shall not have
delivered to Landlord a policy or certificate evidencing such insurance at
least thirty (30) days prior to the expiration date of each expiring
policy, Landlord may obtain such insurance as Landlord may reasonably
require to protect Landlord's interest (which obtaining of insurance shall
not be deemed to be a waiver of Tenant's default hereunder). The cost to
Landlord of obtaining such policies, plus an administrative fee in the
amount of fifteen percent (15%) of the cost of such policies shall be paid
by Tenant to Landlord as Additional Rent upon demand.
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C. The insurance requirements set forth in this Section 15 are independent
of the waiver, indemnification, and other obligations under this Lease and
will not be construed or interpreted in any way to restrict, limit or
modify the waiver, indemnification and other obligations or to in any way
limit any party's liability under this Lease. In addition to the
requirements set forth in Sections 15 and 16, the insurance required of
Tenant under this Lease must be issued by an insurance company with a
rating of no less than A-VIII in the current Best's Insurance Guide, or A-
in the current Standard & Poor Insurance Solvency Review, or in that is
otherwise acceptable to Landlord, and admitted to engage in the business of
insurance in the state in which the Building is located; be primary
insurance for all claims under it and provide that any insurance carried by
Landlord and Landlord's lenders is strictly excess, secondary and
noncontributing with any insurance carried by Tenant; and provide that
insurance may not be cancelled, nonrenewed or the subject of material
change in coverage of available limits of coverage, except upon thirty (30)
days prior written notice to Landlord and Landlord's lenders. Tenant will
deliver either a duplicate original or a legally enforceable certificate of
insurance on all policies procured by Tenant in compliance with Tenant's
obligations under this Lease, together with evidence satisfactory to
Landlord of the payment of the premiums therefor, to Landlord on or before
the date Tenant first occupies any portion of the Premises, at least thirty
(30) days before the expiration date of any policy and upon the renewal of
any policy. Landlord must give its prior written approval to all
deductibles and self-insured retentions under Tenant's policies. Tenant may
comply with its insurance coverage requirements through a blanket policy,
provided Tenant, at Tenant's sole expense, procures a "per location"
endorsement, or equivalent reasonably acceptable to Landlord, so that the
general aggregate and other limits apply separately and specifically to the
Premises. Notwithstanding the foregoing, the foregoing "per location" limit
shall be waived as long as Tenant maintains commercial general or
umbrella/excess liability insurance coverage limits of $25,000,000 or
greater.
D. If Tenant's business operations, conduct or use of the Premises or any
other part of the Property causes an increase in the premium for any
insurance policy carried by Landlord, Tenant will, within ten (10) days
after receipt of notice from Landlord, reimburse Landlord for the entire
increase.
E. Neither Landlord nor Tenant shall be liable (by way of subrogation or
otherwise) to the other party (or to any insurance company insuring the
other party) for any personal injury or loss or damage to any of the
property of Landlord or Tenant, as the case may be, with respect to their
respective property, the Building, the Property or the Premises or any
addition or improvements thereto, or any contents therein, to the extent
covered by insurance carried or required to be carried by a party hereto
even though such loss might have been occasioned by the negligence or
willful acts or omissions of the Landlord or Tenant or their respective
employees, agents, contractors, or invitees. Since this mutual waiver will
preclude the assignment of any such claim by subrogation (or otherwise) to
an insurance company (or any other person), Landlord and Tenant each agree
to give each insurance company which has issued, or on the future may
issue, policies of insurance, with respect to the items covered by this
waiver, written notice of the terms of this mutual waiver, and to have such
insurance policies properly endorsed, if necessary, to prevent the
invalidation of any of the coverage provided by such insurance policies by
reason of such mutual waiver. For the purpose of the foregoing waiver, the
amount of any deductible applicable to any loss or damage shall be deemed
covered by, and recoverable by the insured under the insurance policy to
which such deductible relates. In the event that Tenant is permitted to and
self-insures any risk for which insurance is required to be carried under
this Lease, or if Tenant fails to carry any insurance required to be
carried by Tenant pursuant to this Lease, then all loss or damage to
Tenant, its leasehold interest, its business, its property, the Premises or
any additions or improvements thereto or contents thereof shall be deemed
covered by and recoverable by Tenant under valid and collectible policies
of insurance. Notwithstanding anything to the contrary herein, Landlord
shall not be liable to the Tenant or any insurance company (by way of
subrogation or otherwise) insuring the Tenant for any loss or damage to any
property, or bodily injury or personal injury or any resulting loss of
income or losses from worker's compensation laws and benefits, even though
such loss or damage might have been occasioned by the negligence of
Landlord, its agents or employees, or Building Manager, if any such loss or
damage was required to be covered by insurance pursuant to this Lease.
16. INDEMNITY. To the extent not expressly prohibited by law, neither Landlord
nor Building Manager nor any of their respective officers, directors, employees,
members, managers, or agents shall be liable to Tenant, or to Tenant's agents,
servants, employees, customers, licensees, or invitees for any injury to person
or damage to property caused by any act, omission, or neglect of Tenant, its
agents, servants, employees, customers, invitees, licensees or by any other
person entering the Building or upon the Property under the invitation of Tenant
or arising out of the use of the Property, Building or Premises by Tenant and
the conduct of its business or out of a default by Tenant in the performance of
its obligations hereunder. Tenant hereby indemnifies and holds Landlord and
Building Manager and their respective officers, directors, employees, members,
managers and agents ("INDEMNITEES"), harmless from all liability and claims for
any property damage, or bodily injury or death of, or personal injury to, a
person in or on the Premises, or at any place, including the Property or the
Building to the extent caused, in whole or in part by Tenant, its employees,
agents, servants, customers, invitees or licensees and this indemnity shall be
enforceable to the full extent whether or not such liability and claims are the
result of the sole, joint or concurrent acts, negligent or intentional, or
otherwise, of Tenant, or its employees, agents, servants, customers, invitees or
licensees. SUCH INDEMNITY FOR THE BENEFIT OF INDEMNITIEES
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SHALL BE ENFORCEABLE EVEN IF INDEMNITEES, OR ANY ONE OR MORE OF THEM HAVE OR
HAS CAUSED OR PARTICIPATED IN CAUSING SUCH LIABILITY AND CLAIMS BY THEIR JOINT
OR CONCURRENT ACTS, NEGLIGENT OR INTENTIONAL, OR OTHERWISE. Notwithstanding the
terms of this Lease to the contrary, the terms of this Section shall survive the
expiration or earlier termination of this Lease. THE FOREGOING PROVISIONS OF
THIS SECTION SHALL NOT HOWEVER BE DEEMED TO EXCULPATE LANDLORD FROM DAMAGES,
COSTS OR LIABILITIES RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT
OF LANDLORD, ITS EMPLOYEES, AGENTS OR CONTRACTORS (COLLECTIVELY, "LANDLORD'S
PARTIES")."
17. DAMAGES FROM CERTAIN CAUSES. To the extent not expressly prohibited by law,
Landlord shall not be liable to Tenant or Tenant's employees, contractors,
agents, invitees or customers, for any injury to person or damage to property
sustained by Tenant or any such party or any other person claiming through
Tenant resulting from any accident or occurrence in the Premises or any other
portion of the Building caused by the Premises or any other portion of the
Building becoming out of repair or by defect in or failure of equipment, pipes,
or wiring, or by broken glass, or by the backing up of drains, or by gas, water,
steam, electricity, or oil leaking, escaping or flowing into the Premises
(except where due to Landlord's willful failure to make repairs required to be
made pursuant to other provisions of this Lease, after the expiration of a
reasonable time after written notice to Landlord of the need for such repairs),
nor shall Landlord be liable to Tenant for any loss or damage that may be
occasioned by or through the acts or omissions of other tenants of the Building
or of any other persons whomsoever, including, but not limited to riot, strike,
insurrection, war, court order, requisition, order of any governmental body or
authority, acts of God, fire or theft.
18. CASUALTY DAMAGE. If the Premises or any part thereof shall be damaged by
fire or other casualty, Tenant shall give prompt written notice thereof to
Landlord. In case the Building shall be so damaged that substantial alteration
or reconstruction of the Building shall, in Landlord's sole opinion, be required
(whether or not the Premises shall have been damaged by such casualty) or in the
event there is less than two (2) years of the Lease Term remaining or in the
event Landlord's mortgagee should require that the insurance proceeds payable as
a result of a casualty be applied to the payment of the mortgage debt or in the
event of any material uninsured loss to the Building, Landlord may, at its
option, terminate this Lease by notifying Tenant in writing of such termination
within ninety (90) days after the date of such casualty. If Landlord does not
thus elect to terminate this Lease, Landlord shall commence and proceed with
reasonable diligence to restore the Building, and the improvements located
within the Premises, if any, for which Landlord had financial responsibility
pursuant to the Work Letter Agreement attached hereto as EXHIBIT D (except that
Landlord shall not be responsible for delays not within the control of Landlord)
to substantially the same condition in which it was immediately prior to the
happening of the casualty. Notwithstanding the foregoing, Landlord's obligation
to restore the Building, and the improvements located within the Premises, if
any, for which Landlord had financial responsibility pursuant to the Work Letter
Agreement, shall not require Landlord to expend for such repair and restoration
work more than the insurance proceeds actually received by the Landlord as a
result of the casualty and Landlord's obligation to restore shall be further
limited so that Landlord shall not be required to expend for the repair and
restoration of the improvements located within the Premises, if any, for which
Landlord had financial responsibility pursuant to the Work Letter Agreement,
more than the dollar amount of the Allowance, if any, described in the Work
Letter Agreement. When the repairs described in the preceding two sentences have
been completed by Landlord, Tenant shall complete the restoration of all
improvements, including furniture, fixtures and equipment, which are necessary
to permit Tenant's reoccupancy of the Premises. Except as set forth above, all
cost and expense of reconstructing the Premises shall be borne by Tenant, and
Tenant shall present Landlord with evidence satisfactory to Landlord of Tenant's
ability to pay such costs prior to Landlord's commencement of repair and
restoration of the Premises. Landlord shall not be liable for any inconvenience
or annoyance to Tenant or injury to the business of Tenant resulting in any way
from such damage or the repair thereof, except that, subject to the provisions
of the next sentence, Landlord shall allow Tenant a fair diminution of Rent
during the time and to the extent the Premises are unfit for occupancy. If the
Premises or any other portion of the Property is damaged by fire or other
casualty resulting from the fault or negligence of Tenant or any of Tenant's
agents, employees, or invitees, the rent hereunder shall not be diminished
during the repair of such damage and Tenant shall be liable to Landlord for the
cost of the repair and restoration of the Property caused thereby to the extent
such cost and expense is not covered by insurance proceeds.
19. CONDEMNATION. If the whole or any substantial part of the Premises or if
the Building or any portion thereof which would leave the remainder of the
Building unsuitable for use as an industrial building comparable to its use on
the Commencement Date, or if the land on which the Building is located or any
material portion thereof, shall be taken or condemned for any public or
quasi-public use under governmental law, ordinance or regulation, or by right of
eminent domain, or by private purchase in lieu thereof, then Landlord may, at
its option, terminate this Lease and the rent shall be abated during the
unexpired portion of this Lease, effective when the physical taking of said
Premises or said portion of the Building or land shall occur. In the event this
Lease is not terminated, the rent for any portion of the Premises so taken or
condemned shall be abated during the unexpired term of this Lease effective when
the physical taking of said portion of the Premises shall occur. All
compensation awarded for any such taking or condemnation, or sale proceeds in
lieu thereof, shall be the property of Landlord, and Tenant shall have no claim
thereto, the same being hereby expressly waived by Tenant, except for any
portions of such award or proceeds which are specifically allocated by the
condemning or purchasing party for the taking of
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or damage to trade fixtures of Tenant, which Tenant specifically reserves to
itself. IN ADDITION, TENANT MAY FILE A CLAIM AT ITS SOLE COST AND EXPENSE AND
RECEIVE AN AWARD FOR THE TENANT'S PROPERTY, TENANT'S BUSINESS GOODWILL AND
REASONABLE RELOCATION EXPENSES, PROVIDED THE FILING OF ANY CLAIM FOR RELOCATION
EXPENSES DOES NOT ADVERSELY AFFECT OR DIMINISH THE AWARD WHICH WOULD OTHERWISE
HAVE BEEN RECEIVED BY LANDLORD HAD TENANT NOT FILED SUCH A CLAIM AND RECEIVED
SUCH AWARD.
20. HAZARDOUS SUBSTANCES.
A. Tenant hereby represents and covenants to Landlord the following: No
toxic or hazardous substances or wastes, pollutants or contaminants
(including, without limitation, asbestos, urea formaldehyde, the group of
organic compounds known as polychlorinated biphenyls, petroleum products
including gasoline, fuel oil, crude oil and various constituents of such
products, radon, and any hazardous substance as defined in the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. 9601-9657, as amended ("CERCLA") (collectively,
"ENVIRONMENTAL POLLUTANTS") other than customary office supplies and
cleaning supplies stored and handled within the Premises in accordance with
all applicable laws, will be generated, treated, stored, released or
disposed of, or otherwise placed, deposited in or located on the Property,
and no activity shall be taken on the Property, by Tenant, its agents,
employees, invitees or contractors, that would cause or contribute to (i)
the Property or any part thereof to become a generation, treatment, storage
or disposal facility within the meaning of or otherwise bring the Property
within the ambit of the Resource Conservation and Recovery Act of 1976
("RCRA"), 42 U.S.C. 5901 et. seq., or any similar state law or local
ordinance, (ii) a release or threatened release of toxic or hazardous
wastes or substances, pollutants or contaminants, from the Property or any
part thereof within the meaning of, or otherwise result in liability in
connection with the Property within the ambit of CERCLA, or any similar
state law or local ordinance, or (iii) the discharge of pollutants or
effluents into any water source or system, the dredging or filling of any
waters, or the discharge into the air of any emissions, that would require
a permit under the Federal Water Pollution Control Act, 33 U.S.C. 1251 et.
seq., or the Clean Air Act, 42 U.S.C. 7401 et. seq., or any similar state
law or local ordinance.
B. Tenant expressly waives, to the extent allowed by law, any claims
under federal, state or other law that Tenant might otherwise have against
Landlord relating to the condition of such Property or the Premises or the
Leasehold Improvements or personal property located thereon or the presence
in or contamination of the Property or the Premises by hazardous materials.
Tenant agrees to indemnify and hold Indemnitees (as defined in Section 16)
harmless from and against and to reimburse Indemnitees with respect to, any
and all claims, demands, causes of action, loss, damage, liabilities, costs
and expenses (including attorneys' fees and court costs) of any and every
kind or character, known or unknown, fixed or contingent, asserted against
or incurred by Landlord at any time and from time-to-time by reason of or
arising out of the breach of any representation or covenant contained in
Section 20.A above.
C. Tenant shall immediately notify Landlord in writing of any release or
threatened release of toxic or hazardous wastes or substances, pollutants
or contaminants of which Tenant has knowledge whether or not the release is
in quantities that would require under law the reporting of such release to
a governmental or regulatory agency.
D. Tenant shall also immediately notify landlord in writing of, and shall
contemporaneously provide Landlord with a copy of:
(1) Any written notice of release of hazardous wastes or substances,
pollutants or contaminants on the Property that is provided by
Tenant or any subtenant or other occupant if the Premises to a
governmental or regulatory agency;
(2) Any notice of a violation, or a potential or alleged violation,
of any Environmental Law (hereinafter defined) that is received
by Tenant or any subtenant or other occupant of the premises from
any governmental or regulatory agency;
(3) Any inquiry, investigation, enforcement, cleanup, removal, or
other action that is instituted or threatened by a governmental
or regulatory agency against Tenant or any subtenant or other
occupant of the Premises and that relates to the release or
discharge of hazardous wastes or substances, pollutants or
contaminants on or from the Property;
(4) Any claim that is instituted or threatened by any third-party
against Tenant or any subtenant or other occupant of the Premises
and that relates to any release or discharge of hazardous wastes
or substances, pollutants or contaminants on or from the
Property; and
(5) Any notice of the loss of any environmental operating permit by
Tenant or any subtenant or other occupant of the Premises.
E. As used herein "Environmental Laws" mean all present and future
federal, state and municipal laws, ordinances, rules and regulations
applicable to environmental and ecological conditions, and the
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rules and regulations of the U.S. Environmental Protection Agency, and any
other federal, state or municipal agency, or governmental board or entity
relating to environmental matters.
F. AS OF THE DATE OF THIS LEASE AND TO THE ACTUAL KNOWLEDGE OF HENRY KNAPEK
(LANDLORD'S EMPLOYEE WHOSE RESPONSIBILITIES INCLUDE THE MANAGEMENT OR
SUPERVISION OF THE MANAGEMENT OF THE BUILDING), LANDLORD HAD NOT RECEIVED
ANY WRITTEN NOTICE FROM ANY GOVERNMENTAL ENTITY AND HAVE NO ACTUAL
KNOWLEDGE THAT THE PROPERTY OR THE BUILDING IS CURRENTLY IN BREACH OF ANY
ENVIRONMENTAL LAWS.
G. Notwithstanding anything to the contrary contained herein, Tenant shall
not have any liability with respect to any hazardous wastes or substances,
pollutants or contaminants (i) existing in or on the Premises on the
Commencement Date, or (ii) brought into or on the Premises after the
Commencement Date by Landlord or Landlord's employees, agents or
contractors.
21. AMERICANS WITH DISABILITIES ACT. Landlord agrees to deliver the Premises
to Tenant in compliance with the Title III of the ADA (hereinafter defined);
provided that the foregoing agreement shall not apply to any (i) cubicles, (ii)
furniture and fixtures (including countertops thereon), or (iii) other
installations and/or property brought into the Premises by Tenant or on behalf
of Tenant or installed by or on behalf of Tenant (other than installations on
behalf of Tenant made by Landlord's contractors under Exhibit "D"). In the
event of Landlord's failure to deliver the Premises in such condition, Landlord
shall take such action as is necessary to bring the Premises in compliance
therewith. From and after the Commencement Date, Tenant agrees to comply with
all requirements of the Americans with Disabilities Act (Public Law (July 26,
1990) ("ADA") applicable to the Premises and such other current acts or other
subsequent acts, (whether federal or state) addressing like issues as are
enacted or amended. LANDLORD SHALL BE RESPONSIBLE FOR COMPLIANCE WITH ADA IN
THE COMMON AREAS; PROVIDED HOWEVER, TENANT SHALL BE RESPONSIBLE FOR COMPLIANCE
WITH ADA IN THE APPLICABLE COMMON AREAS IN THE EVENT (i) THE CONDUCT OF
TENANT'S BUSINESS IS UNIQUE TO THAT OF OTHER TENANTS IN THE BUILDING AND
NECESSITATES SPECIAL REQUIREMENTS, OR (ii) TENANT'S IMPROVEMENTS IN THE
PREMISES THEREBY NECESSITATE COMPLIANCE WITH ADA IN THE COMMON AREAS. Tenant
agrees to indemnify and hold Landlord harmless from any and all expenses,
liabilities, costs or damages suffered by Landlord as a result of additional
obligations which may be imposed on the Building or the Property under of such
acts by virtue of Tenant's operations and/or occupancy, including the alleged
negligence of the Landlord. Tenant acknowledges that it will be wholly
responsible for any provision of the Lease which could arguably be construed as
authorizing a violation of the ADA. Any such provision shall be interpreted in
a manner which permits compliance with the ADA and is hereby amended to permit
such compliance.
22. EVENTS OF DEFAULT.
A. The following events shall be deemed to be "EVENTS OF DEFAULT" under
this Lease:
(1) With respect to the first two (2) failures within any twelve (12)
month period during the Lease Term, the failure of Tenant to pay
to Landlord when due any Base Rent, Additional Rent or other
amount payable by Tenant to Landlord under this Lease and the
continuance of such failure for five (5) Business Days after
receipt of written notice from Landlord that such amount was not
paid when due. With respect to any other payment of Base Rent,
Additional Rent or other amount payable by Tenant to Landlord
under this Lease, the failure of Tenant to pay Landlord such
amount WITHIN FIVE (5) DAYS WHEN DUE (hereinafter sometimes
referred to as a "MONETARY DEFAULT").
(2) Any failure by Tenant (other than a Monetary Default) to comply
with any term, provision or covenant of this Lease, which failure
is not cured within thirty (30) days after delivery to Tenant of
notice of the occurrence of such failure provided, however, that
if the term, condition, covenant or obligation to be performed by
Tenant is of such nature that the same cannot reasonably be
performed within such thirty-day period, such default shall be
deemed to have been cured if Tenant commences such performance
within said thirty-day period and thereafter diligently
undertakes to complete the same, and in fact, completes same
within ninety (90) days after notice.
(3) Any failure by Tenant to observe or perform any of the covenants
with respect to (a) assignment and subletting set forth in
Section 13, (b) mechanic's liens set forth in Section 14, or (c)
insurance set forth in Section 15.
(4) Tenant or any Guarantor shall (a) become insolvent, (b) make a
transfer in fraud of creditors (c) make an assignment for the
benefit of creditors, (d) admit in writing its inability to pay
its debts as they become due, (e) file a petition under any
section or chapter of the United States Bankruptcy Code, as
amended, pertaining to bankruptcy, or under any similar law or
statute of the United States or any State thereof, or Tenant or
any Guarantor shall be adjudged bankrupt or insolvent in
proceedings filed against Tenant or any Guarantor thereunder; or
a petition or answer proposing the adjudication of Tenant or any
Guarantor as a bankrupt or its reorganization under any present
or future federal or state bankruptcy or similar law shall be
filed in any court and such
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petition or answer shall not be discharged or denied within sixty (60)
days after the filing thereof.
(5) A receiver or trustee shall be appointed for all or substantially all
of the assets of Tenant or any Guarantor or of the Premises or of any
of Tenant's property located thereon in any proceeding brought by
Tenant or any Guarantor, or any such receiver or trustee shall be
appointed in any proceeding brought against Tenant or any Guarantor
and shall not be discharged within sixty (60) days after such
appointment or Tenant or such Guarantor shall consent to or acquiesce
in such appointment.
(6) The leasehold estate hereunder shall be taken on execution or other
process of law in any action against Tenant.
(7) Tenant shall abandon or vacate any substantial portion of the
Premises. UNLESS TENANT CONTINUES TO PAY RENT AND PERFORM IT'S OTHER
OBLIGATIONS UNDER THE LEASE.
(8) Tenant shall fail to take possession of and occupy the Premises within
thirty (30) days following the Commencement Date and thereafter
continuously conduct its operations in the Premises for the Permitted
Use as set forth in Section 4 hereof.
(9) The liquidation, termination, dissolution, forfeiture of right to do
business or death of Tenant or any Guarantor.
23. REMEDIES.
A. Upon the occurrence of any Event of Default, Landlord shall have the
following rights and remedies, in addition to those allowed by law or equity,
any one or more of which may be exercised without further notice to or demand
upon Tenant and which may be pursued successively or cumulatively as Landlord
may elect:
(1) Landlord may re-enter the Premises and cure any default of Tenant, in
which event Tenant shall, upon demand, reimburse Landlord as
Additional Rent for any cost and expenses which Landlord may incur to
cure such default; and Landlord shall not be liable to Tenant for any
loss or damage which Tenant may sustain by reason of Landlord's
action, regardless of whether caused by Landlord's negligence or
otherwise.
(2) Landlord may terminate this Lease by giving to Tenant notice of
Landlord's election to do so, in which event the Term shall end, and
all right, title and interest of Tenant hereunder shall expire, on the
date stated in such notice;
(3) Landlord may terminate the right of Tenant to possession of the
Premises without terminating this Lease by giving notice to Tenant
that Tenant's right to possession shall end on the date stated in such
notice, whereupon the right of Tenant to possession of the Premises or
any part thereof shall cease on the date stated in such notice; and
(4) Landlord may enforce the provisions of this Lease and may enforce and
protect the rights of Landlord hereunder by a suit or suits in equity
or at law for the specific performance of any covenant or agreement
contained herein, or for the enforcement of any other appropriate
legal or equitable remedy, including recovery of all moneys due or to
become due from Tenant under any of the provisions of this Lease.
Landlord shall not be required to serve Tenant with any notices or demands as a
prerequisite to its exercise of any of its rights or remedies under this Lease,
other than those notices and demands specifically required under this Lease. In
order to regain possession of the Premises and to deny Tenant access thereto,
Landlord or its agent may, at the expense and liability of the Tenant, alter or
change any or all locks or other security devices controlling access to the
Premises without posting or giving notice of any kind to Tenant and Landlord
shall have no obligation to provide Tenant a key to new locks installed in the
Premises or grant Tenant access to the Premises. Tenant shall not be entitled
to recover possession of the Premises, terminate this Lease, or recover any
actual, incidental, consequential, punitive, statutory or other damages or
award of attorneys' fees, by reason of Landlord's alteration or change of any
lock or other security device and the resulting exclusion from the Premises of
the Tenant or Tenant's agents, servants, employees, customers, licensees,
invitees or any other persons from the Premises. Landlord may, without notice,
remove and either dispose of or store, at Tenant's expense, any property
belonging to Tenant that remains in the Premises after Landlord has regained
possession thereof. Tenant acknowledges that the provisions of this
subparagraph of this Lease supersedes the Texas Property Code and Tenant
further warrants and represents that it hereby knowingly waives any rights it
may have thereunder.
B. If Landlord exercises either of the remedies provided in Sections 23.A.(2)
or 23.A.(3), Tenant shall surrender possession and vacate the Premises and
immediately deliver possession thereof to Landlord, and Landlord may re-enter
and take complete and peaceful possession of the Premises, with process of law,
full and complete license to do so being hereby granted to Landlord, and
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Landlord may remove all occupants and property therefrom, using such force as
may be necessary to the extent allowed by law, without being deemed guilty in
any manner of trespass, eviction or forcible entry and detainer and without
relinquishing Landlord's right to Rent or any other right given to Landlord
hereunder or by operation of law.
C. If Landlord terminates the right of Tenant to possession of the Premises
without terminating this Lease, Landlord shall have the right to immediate
recovery of all amounts then due hereunder. Such termination of possession
shall not release Tenant, in whole or in part, from Tenant's obligation to pay
Rent hereunder for the full Term, and Landlord shall have the right, from time
to time, to recover from Tenant, and Tenant shall remain liable for, all Base
Rent, Additional Rent and any other sums accruing as they become due under this
Lease during the period from the date of such notice of termination of
possession to the stated end of the Term. In any such case, Landlord may relet
the Premises or any part thereof for the account of Tenant for such rent, for
such time (which may be for a term extending beyond the Term) and upon such
terms as Landlord shall determine and may collect the rents from such
reletting. Landlord shall not be required to accept any tenant offered by
Tenant or to observe any instructions given by Tenant relative to such
reletting. Also, in any such case, Landlord may make repairs, alterations and
additions in or to the Premises and redecorate the same to the extent deemed by
Landlord necessary or desirable and in connection therewith change the locks to
the Premises, and Tenant upon demand shall pay the cost of all of the foregoing
together with Landlord's expenses of reletting. The rents from any such
reletting shall be applied first to the payment of the expenses of reentry,
redecoration, repair and alterations and the expenses of reletting and second
to the payment of Rent herein provided to be paid by Tenant. Any excess or
residue shall operate only as an offsetting credit against the amount of Rent
due and owing as the same thereafter becomes due and payable hereunder, and the
use of such offsetting credit to reduce the amount of Rent due Landlord, if
any, shall not be deemed to give Tenant any right, title or interest in or to
such excess or residue and any such excess or residue shall belong to Landlord
solely, and in no event shall Tenant be entitled to a credit on its
indebtedness to Landlord in excess of the aggregate sum (including Base Rent
and Additional Rent) which would have been paid by Tenant for the period for
which the credit to Tenant is being determined, had no Event of Default
occurred. No such reentry or repossession, repairs, alterations and additions,
or reletting shall be construed as an eviction or ouster of Tenant or as an
election on Landlord's pat to terminate this Lease, unless a written notice of
such intention is given to Tenant, or shall operate to release Tenant in whole
or in part from any of Tenant's obligations hereunder, and Landlord, at any
time and from time to time, may sue and recover judgment for any deficiencies
remaining after the application of the proceeds of any such reletting.
D. If this Lease is terminated by Landlord pursuant to Section 23.A.(2),
Landlord shall be entitled to recover from Tenant all Rent accrued and unpaid
for the period up to and including such termination date, as well as all other
additional sums payable by Tenant, or for which Tenant is liable or for which
Tenant has agreed to indemnify Landlord under any of the provisions of this
Lease, which may be then owing and unpaid, and all costs and expenses,
including without limitation court costs and attorneys' fees incurred by
Landlord in the enforcement of its rights and remedies hereunder, and, in
addition, Landlord shall be entitled to recover as damages for loss of the
bargain and not as a penalty (i) the unamortized portion of any concessions
offered by Landlord to Tenant in connection with this Lease, including without
limitation Landlord's contribution to the cost of tenant improvements and
alterations, if any, installed by either Landlord or Tenant pursuant to this
Lease or any work letter in connection with this Lease, (ii) the aggregate sum
which at the time of such termination represents the excess, if any, of the
present value of the aggregate rents which would have been payable after the
termination date had this Lease not been terminated, including, without
limitation, Base Rent at the annual rate or respective annual rates for the
remainder of the Term provided for in this Lease and the amount projected by
Landlord to represent Additional Rent for the remainder of the Term over the
then present value of the then aggregate fair rent value of the Premises for
the balance of the Term, such present worth to be computed in each case on the
basis of a ten percent (10%) per annum discount from the respective dates upon
which such Rents would have been payable hereunder had this Lease not been
terminated, and (iii) any damages in addition thereto, including without
limitation reasonable attorneys' fees and court costs, which Landlord sustains
as a result of the breach of any of the covenants of this Lease other than for
the payment of Rent.
E. Landlord shall use commercially reasonable efforts to mitigate any damages
resulting from an Event of Default by Tenant under this Lease. Landlord's
obligation to mitigate damages after an Event of Default by Tenant under this
Lease shall be satisfied in full if Landlord undertakes to lease the Premises
to another tenant (a "SUBSTITUTE TENANT") in accordance with the following
criteria:
(1) Landlord shall have no obligations to solicit or entertain
negotiations with any other prospective tenants for the Premises
until Landlord obtains full and complete possession of the Premises
including, without limitation, the final and unappealable legal right
to relet the Premises free of any claim of Tenant;
(2) Landlord shall not be obligated to lease or show the Premises, on a
priority basis, offer the Premises to a prospective tenant when other
premises in the Building suitable for that prospective tenant's use
are (or soon will be) available;
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(3) Landlord shall not be obligated to lease the Premises to a Substitute
Tenant for a Rent less than the current fair market Rent then prevailing
for similar uses in comparable buildings in the same market area as the
Building, nor shall Landlord be obligated to enter into a new lease under
other terms and conditions that are unacceptable to Landlord under
Landlord's then current leasing policies for comparable space in the
Building;
(4) Landlord shall not be obligated to enter into a lease with a Substitute
Tenant whose use would:
(i) violate any restriction, covenant, or requirement contained in
the lease of another tenant of the Building;
(ii) adversely affect the reputation of the Building; or
(iii) be incompatible with the operation of the Building as an
industrial building;
(5) Landlord shall not be obligated to enter into a lease with any proposed
Substitute Tenant which does not have, in Landlord's reasonable opinion,
sufficient financial resources to operate the Premises in a first class
manner; and
(6) Landlord shall not be required to expend any amount of money to alter,
remodel, or otherwise make the Premises suitable for use by a proposed
Substitute Tenant unless:
(i) Tenant pays any such sum to Landlord in advance of Landlord's
execution of a lease with such tenant (which payment shall not be
in lieu of any damages or other sums to which Landlord may be
entitled as a result of Tenant's default under this Lease); or
(ii) Landlord, in Landlord's reasonable discretion, determines that
any such expenditure is financially justified in connection with
entering into any such substitute lease.
F. All property of Tenant removed from the Premises by Landlord pursuant to any
provision of this Lease or applicable law may be handled, removed or stored by
Landlord at the cost and expense of Tenant, and Landlord shall not be
responsible in any event for the value, preservation or safekeeping thereof.
Tenant shall pay Landlord for all expenses incurred by Landlord with respect to
such removal and storage so long as the same is in Landlord's possession or
under Landlord's control. All such property not removed from the Premises or
retaken from storage by Tenant within thirty (30) days after the end of the
Term or the termination of Tenant's right to possession of the Premises,
however terminated, at Landlord's option, shall be conclusively deemed to have
been conveyed by Tenant to Landlord as by bill of sale without further payment
or credit by Landlord to Tenant.
G. Tenant hereby grants to Landlord a first lien upon the interest of Tenant
under this Lease to secure the payment of moneys due under this Lease, which
lien may be enforced in equity, and Landlord shall be entitled as a matter of
right to have a receiver appointed to take possession of the Premises and relet
the same under order of court.
H. If Tenant is adjudged bankrupt, or a trustee in bankruptcy is appointed for
Tenant, Landlord and Tenant, to the extent permitted by law, agree to request
that the trustee in bankruptcy determine within sixty (60) days thereafter
whether to assume or to reject this Lease.
I. The receipt by Landlord of less than the full rent due shall not be
construed to be other than a payment on account of rent then due, nor shall any
statement on Tenant's check or any letter accompanying Tenant's check be deemed
an accord and satisfaction, and Landlord may accept such payment without
prejudice to Landlord's right to recover the balance of the rent due or to
pursue any other remedies provided in this lease. The acceptance by Landlord of
rent hereunder shall not be construed to be a waiver of any breach by Tenant of
any term, covenant or condition of this Lease. No act or omission by Landlord
or its employees or agents during the term of this Lease shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept such a
surrender shall be valid unless in writing and signed by Landlord.
J. In the event of any litigation between Tenant and Landlord to enforce any
provision of this Lease or any right of either party hereto, the unsuccessful
party to such litigation shall pay to the successful party all costs and
expenses, including reasonable attorney's fees, incurred therein. Furthermore,
if Landlord, without fault, is made a party to any litigation instituted by or
against Tenant, Tenant shall indemnify Landlord against, and protect, defend,
and save it harmless from, all costs and expenses, including reasonable
attorney's fees, incurred by it in connection therewith. If Tenant, without
fault, is made party to any litigation instituted by or against Landlord,
Landlord shall indemnify Tenant against, and protect, defend, and save it
harmless from, all costs and expenses, including reasonable attorney's fees,
incurred by it in connection therewith.
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24. NO WAIVER. Failure of Landlord to declare any default immediately upon its
occurrence, or delay in taking any action in connection with an event of
default, shall not constitute a waiver of such default, nor shall it constitute
an estoppel against Landlord, but Landlord shall have the right to declare the
default at any time and take such action as is lawful or authorized under this
Lease. Failure by Landlord to enforce its rights with respect to any one default
shall not constitute a waiver of its rights with respect to any subsequent
default.
25. PEACEFUL ENJOYMENT. Tenant shall, and may peacefully have, hold, and enjoy
the Premises, subject to the other terms hereof, provided that Tenant pays the
Rent and other sums herein recited to be paid by Tenant and timely performs all
of Tenant's covenants and agreements herein contained. This covenant and any and
all other covenants of Landlord shall be binding upon Landlord and its
successors only with respect to breaches occurring during its or their
respective periods of ownership of the Landlord's interest hereunder.
26. SUBSTITUTION. Landlord at its sole discretion shall be entitled to cause
Tenant to relocate from the Premises to a comparably-sized space, of comparable
design and tenant improvements (the "Relocation Space") within the Building or
adjacent buildings within the same Property at any time upon sixty (60) days'
prior written notice to Tenant if such notice is given prior to the Commencement
Date and upon ninety (90) days' prior written notice to Tenant if such notice is
given on or after the Commencement Date. The reasonable costs actually incurred
in connection with the physical relocation of the Tenant to the Relocation Space
shall be at the expense of Landlord and all other costs, if any, involved with
such relocation shall be borne by Tenant. Such a relocation shall not terminate
or otherwise affect or modify this Lease except that from and after the date of
such relocation, "Premises" shall refer to the Relocation Space into which
Tenant has been moved, rather than the original Premises as herein defined and
the Base Rent shall be adjusted so that immediately following such relocation
the Base Rent for the Relocation Space on a per square foot of Rentable Area
basis shall be the same as the Base Rent immediately prior to such relocation
for the original Premises on a per square foot of Rentable Area basis. Tenant's
Pro Rata Share also be adjusted in accordance with the formula set forth in the
Lease. Notwithstanding the foregoing, from and after the Commencement Date,
Landlord shall not be entitled to relocate Tenant more than one (1) time during
the initial Lease Term. Therefore, if prior to the Commencement Date Landlord
notifies Tenant of its election to relocate Tenant, Landlord shall still be
entitled to relocate Tenant one additional time during the initial Lease Term.
27. HOLDING OVER. In the event of holding over by Tenant after expiration or
other termination of this Lease or in the event Tenant continues to occupy the
Premises after the termination of Tenant's right of possession pursuant to
Section 23.A(3) hereof, occupancy of the Premises subsequent to such termination
or expiration shall be that of a tenancy at sufferance and in no event for
month-to-month or year-to-year. Tenant shall, throughout the entire holdover
period, be subject to all the terms and provisions of this Lease and shall pay
for its use and occupancy an amount (on a per month basis without reduction for
any partial months during any such holdover) equal to ONE AND ONE HALF THE SUM
OR (150%) of (a) the greater of then current market rate, or (b) the Base Rent
and Additional Rent which would have been applicable had the Lease Term
continued through the period of such holding over by Tenant. No holding over by
Tenant or payments of money by Tenant to Landlord after the expiration of the
Lease Term shall be construed to extend the Lease Term or prevent Landlord from
recovery of immediate possession of the Premises by summary proceedings or
otherwise unless Landlord has sent written notice to Tenant that Landlord has
elected to extend the Lease Term. In addition to the obligation to pay the
amounts set forth above during any such holdover period, Tenant shall also be
liable to Landlord for all damages, including, without limitation, any
consequential damages, which Landlord may suffer by reason of any holding over
by Tenant and Tenant shall also indemnify Landlord against any and all claims
made by any other tenant or prospective tenant against Landlord for delay by
Landlord in delivering possession of the Premises to such other tenant or
prospective tenant IN THE EVENT THE HOLDOVER CONTINUES FOR MORE THAN THIRTY (30)
DAYS.
28. SUBORDINATION TO MORTGAGE/ESTOPPEL CERTIFICATE. Tenant accepts this Lease
subject and subordinate to any mortgage, deed of trust or other lien presently
existing or hereafter arising upon the Premises, or upon the Building and/or the
Property and to any renewals, modifications, refinancings and extensions
thereof, but Tenant agrees that any such mortgagee shall have the right at any
time to subordinate such mortgage, deed of trust or other lien to this Lease on
such terms and subject to such conditions as such mortgagee may deem appropriate
in its discretion. The provisions of the foregoing sentence shall be
self-operative and no further instrument of subordination shall be required.
However, Landlord is hereby irrevocably vested with full power and authority to
subordinate this Lease to any mortgage, deed of trust or other lien now existing
or hereafter placed upon the Premises, or the Building and/or the property and
Tenant agrees within ten (10) days after demand to execute such further
instruments subordinating this Lease or attorning to the holder of any such
liens as Landlord may request. The terms of this Lease are subject to approval
by the Landlord's existing lender(s) and any lender(s) who, at the time of the
execution of this Lease, have committed or are considering committing to
Landlord to make a loan secured by all or any portion of the Property, and such
approval is a condition precedent to Landlord's obligations hereunder. In the
event that Tenant should fail to execute any subordination or other agreement
required by this Section promptly as requested, Tenant hereby irrevocably
constitutes Landlord as its attorney-in-fact to execute such instrument in
Tenant's name, place and stead, it being agreed that such power is one coupled
with an interest in Landlord and is accordingly irrevocable. Tenant agrees that
it will from time-to-time upon request by Landlord execute and deliver to such
persons as
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Landlord shall request a statement in recordable form certifying that this Lease
is unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as so modified), stating the dates to
which rent and other charges payable under this Lease have been paid, stating
that Landlord is not in default hereunder (or if Tenant alleges a default
stating the nature of such alleged default) and further stating such other
matters as Landlord shall reasonably require. Tenant agrees periodically to
furnish within ten (10) days after so requested by Landlord, ground lessor or
the holder of any deed or trust, mortgage or security agreement covering the
Building, the Property, or any interest of Landlord therein, a certificate
signed by Tenant certifying (a) that this Lease is in full force and effect and
unmodified (or if there have been modifications, that the same is in full force
and effect as modified and stating the modifications), (b) as to the
Commencement Date and the date through which Base Rent and Tenant's Additional
Rent have been paid, (c) that Tenant has accepted possession of the Premises and
that any improvements required by the terms of this Lease to be made by Landlord
have been completed to the satisfaction of Tenant, (d) that except as stated in
the certificate no rent has been paid more than thirty (30) days in advance of
its due date, (e) that the address for notices to be sent to Tenant is as set
forth in this Lease (or has been changed by notice duly given and is as set
forth in the certificate), (f) that except as stated in the certificate, Tenant,
as of the date of such certificate, has no charge, lien, or claim of offset
against rent due or to become due, (g) that except as stated in the certificate,
Landlord is not then in default under this Lease, (h) as to the amount of the
Approximate Rentable Area of the Premises then occupied by Tenant, (i) that
there are no renewal or extension options, purchase options, rights of first
refusal or the like in favor of Tenant except as set forth in this Lease, (j)
the amount and nature of accounts payable to Landlord under terms of this Lease,
and (k) as to such other matters as may be requested by Landlord or ground
lessor or the holder of any such deed of trust, mortgage or security agreement.
Any such certificate may be relied upon by any ground lessor, prospective
purchaser, secured party, mortgagee or any beneficiary under any mortgage, deed
of trust on the Building or the Property or any part thereof or interest of
Landlord therein. NOTWITHSTANDING THE FOREGOING, UPON WRITTEN REQUEST BY TENANT,
LANDLORD WILL USE REASONABLE EFFORTS TO OBTAIN A NON-DISTURBANCE, SUBORDINATION
AND ATTORNMENT AGREEMENT FROM LANDLORD'S THEN CURRENT MORTGAGEE ON SUCH
MORTGAGEE'S THEN CURRENT STANDARD FORM OF AGREEMENT WITHIN THIRTY (30) DAYS OF
TENANT'S WRITTEN REQUEST. "REASONABLE EFFORTS" OF LANDLORD SHALL NOT REQUIRE
LANDLORD TO INCUR ANY COST, EXPENSE OR LIABILITY TO OBTAIN SUCH AGREEMENT, IT
BEING AGREED THAT TENANT SHALL BE RESPONSIBLE FOR ANY FEE OR REVIEW COSTS
CHARGED BY THE MORTGAGEE. UPON REQUEST OF LANDLORD, TENANT WILL EXECUTE THE
MORTGAGEE'S FORM OF NON-DISTURBANCE, SUBORDINATION AND ATTORNMENT AGREEMENT AND
RETURN THE SAME TO LANDLORD FOR EXECUTION BY THE MORTGAGEE. LANDLORD'S FAILURE
TO OBTAIN A NON-DISTURBANCE, SUBORDINATION AND ATTORNMENT AGREEMENT FOR TENANT
SHALL HAVE NO EFFECT ON THE RIGHTS, OBLIGATIONS AND LIABILITIES OF LANDLORD AND
TENANT OR BE CONSIDERED TO BE A DEFAULT BY LANDLORD HEREUNDER.
29. NOTICE. Any notice required or permitted to be given under this Lease or by
law shall be deemed to have been given if it is written and delivered in person
or mailed by Registered or Certified mail, postage prepaid, RETURN RECEIPT
REQUESTED or sent by a nationally recognized overnight delivery service to the
party who is to receive such notice at the address specified in Section 1.Y. of
this Lease. When so mailed, the notice shall be deemed to have been given two
(2) business days after the date it was mailed. When sent by overnight delivery
service, the notice shall be deemed to have been given on the next business day
after deposit with such overnight delivery service. The address specified in
Section 1.Y. of this Lease may be changed from time to time by giving written
notice thereof to the other party.
30. LANDLORD'S LIEN. Intentionally Omitted.
31. SURRENDER OF PREMISES. Upon the termination, whether by lapse of time or
otherwise, or upon any termination of Tenant's right to possession without
termination of the Lease, Tenant will at once surrender possession and vacate
the Premises, together with all Leasehold Improvements (except those Leasehold
Improvements Tenant is required to remove pursuant to Section 8 hereof), to
Landlord in good condition and repair, ordinary wear and tear excepted;
conditions existing because of Tenant's failure to perform maintenance, repairs
or replacements as required of Tenant under this Lease shall not be deemed
"reasonable wear and tear." Tenant shall surrender to Landlord all keys to the
Premises and make known to Landlord the explanation of all combination locks
which Tenant is permitted to leave on the Premises. Subject to the Landlord's
rights under Section 23 hereof, if Tenant fails to remove any of Tenant's
Property within one (1) day after the termination of this Lease, or Tenant's
right to possession hereunder, Landlord, at Tenant's sole cost and expenses,
shall be entitled to remove and/or store such Tenant's Property and Landlord
shall be in no event be responsible for the value, preservation or safekeeping
thereof. Tenant shall pay Landlord, upon demand, any and all reasonable expenses
caused by such removal and all storage charges against such property so long as
the same shall be in possession of Landlord or under the control of Landlord. In
addition, if Tenant fails to remove any Tenant's Property from the Premises or
storage, as the case may be, within ten (10) days after written notice from
Landlord, Landlord, at its option, may deem all or any part of such Tenant's
Property to have been abandoned by Tenant and title thereof shall immediately
pass to Landlord under this Lease as by a bill of sale.
32. RIGHTS RESERVED TO LANDLORD. Landlord reserves the following rights,
exercisable without notice, except as provided herein, and without liability to
Tenant for damage or injury to property, person or business and without
affecting an eviction or disturbance of Tenant's use or possession or giving
rise to any claim for setoff or abatement of rent or affecting any of Tenant's
obligations under this Lease: (1) upon thirty (30) days prior notice to change
the name or street address of the Building; (2) to install and maintain signs
on the exterior and interior of the Building; (3) to designate and approve
window coverings to present
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a uniform exterior appearance; (4) to make any decorations, alterations,
additions, improvements to the Building or Property, or any part thereof
(including, with prior notice, the Premises) which Landlord shall desire, or
deem necessary for the safety, protection, preservation or improvement of the
Building or Property, or as Landlord may be required to do by law; (5) to have
access to the Premises at reasonable hours to perform its duties and obligations
and to exercise its rights under this Lease; (6) to retain at all times and to
use in appropriate instances, pass keys to all locks within and to the Premises;
(7) to approve the weight, size, or location of heavy equipment, or articles
within the Premises; (8) to close or restrict access to the Building at all
times other than Normal Business Hours subject to Tenant's right to admittance
at all times under such regulations as Landlord may prescribe from time to time,
or to close (temporarily or permanently) any of the entrances to the Building;
provided Landlord shall the right to restrict or prohibit access to the Building
or the Premises at any time Landlord determines it is necessary to do so to
minimize the risk of injuries or death to persons or damage to property; (9) to
change the arrangement and/or location of entrances of passageways, doors and
doorways, corridors, elevators, stairs, toilets and public part of the Building
or Property; (10) to regulate access to telephone, electrical and other utility
closets in the Building and to require use of designated contractors for any
work involving access to the same; (11) if Tenant has vacated the Premises
during the last six (6) months of the Lease Term, to perform additions,
alterations and improvements to the Premises in connection with a reletting or
anticipated reletting thereof without being responsible or liable for the value
or preservation of any then existing improvements to the Premises; and (12) to
grant to anyone the exclusive right to conduct any business or undertaking in
the Building provided Landlord's exercise of its rights under this clause 12,
shall not be deemed to prohibit Tenant from the operation of its business in the
Premises and shall not constitute a constructive eviction. TENANT AGREES THAT,
AS BETWEEN TENANT AND LANDLORD, LANDLORD HAS THE SOLE AND ABSOLUTE RIGHT TO
CONTEST TAXES LEVIED AGAINST THE PREMISES AND THE PROJECT (OTHER THAN TAXES
LEVIED DIRECTLY AGAINST TENANT'S PERSONAL PROPERTY WITHIN THE PREMISES).
THEREFORE, TENANT, TO THE FULLEST EXTENT PERMITTED BY LAW, IRREVOCABLY WAIVES
ANY AND ALL RIGHTS THAT TENANT MAY HAVE TO RECEIVE FROM LANDLORD A COPY OF
NOTICES RECEIVED BY LANDLORD REGARDING THE APPRAISAL OR REAPPRAISAL, FOR TAX
PURPOSES, OF ALL OR ANY PORTION OF THE PREMISES OR THE PROJECT (INCLUDING,
WITHOUT LIMITATION, ANY RIGHTS SET FORTH IN SECTION 41.413 OF THE TEXAS PROPERTY
TAX CODE, AS SUCH MAY BE AMENDED FROM TIME TO TIME). ADDITIONALLY, TENANT, TO
THE FULLEST EXTENT PERMITTED BY LAW, HEREBY IRREVOCABLY ASSIGNS TO LANDLORD ANY
AND ALL RIGHTS OF TENANT TO PROTEST OR APPEAL ANY GOVERNMENTAL APPRAISAL OR
REAPPRAISALS OF THE VALUE OF ALL OR ANY PORTION OF THE PREMISES OR THE PROJECT
(INCLUDING, WITHOUT LIMITATION, ANY RIGHTS SET FORTH IN SECTION 41.413 AND
SECTION 42.015 OF THE TEXAS PROPERTY TAX CODE, AS SUCH MAY BE AMENDED FROM TIME
TO TIME). TENANT AGREES WITHOUT RESERVATION THAT IT WILL NOT PROTEST OR APPEAL
ANY SUCH APPRAISAL OR REAPPRAISAL BEFORE A GOVERNMENTAL TAXING AUTHORITY WITHOUT
THE EXPRESS WRITTEN AUTHORIZATION OF LANDLORD.
33. MISCELLANEOUS
A. If any term or provision of this Lease, or the application thereof to
any person or circumstance shall, to any extent, be invalid or enforceable,
the remainder of this Lease, or the application of such term or provision
to persons or circumstances other than those as to which it is held invalid
or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and enforced to the fullest extent
permitted by law.
B. Tenant agrees not to record this Lease or any short form or memorandum
hereof.
C. This Lease and the rights and obligations of the parties hereto shall be
interpreted, construed, and enforced in accordance with the laws of the
state in which the Building is located.
D. Events of "FORCE MAJEURE" shall include strikes, riots, acts of Go |
