Michigan-Ann Arbor-514 East Washington Street Lease - KMD Foundation and First Virtual Holdings Inc.
OFFICE LEASE
THIS LEASE made as of this 19th day of April, 1996, between KMD
FOUNDATION, a Non-Profit, a Massachusetts corporation ("Landlord"), and First
Virtual Holdings, whose address is 11975 El Camino Real, Suite 300, San Diego,
CA 92130-2543, Attention Lewis Silverberg. (Tenant).
WITNESSETH:
ARTICLE 1
PROMISES AND TERM
Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord that certain space known as 514 E. Washington Street, Ann Arbor,
Michigan ("Premises") described or shown on Exhibit A attached hereto,
("Property", as further described in Article 25), subject to the provisions
herein contained. The term ("Term") of this Lease shall commence on the 1st day
of May, 1996 ("Commencement Date"), and end on the 30th day of April, 1999
("Expiration Date") unless sooner terminated as provided herein. The
Commencement Date shall be subject to adjustment as provided in Article 4.
Landlord and Tenant agree that for purposes of this Lease, the Rentable Area of
the Premises is 2,391 square feet.
ARTICLE 2
BASE RENT
Tenant shall pay Landlord monthly Base Rent of Two Thousand Eight
Hundred Eighty-Nine and 13/100 Dollars ($2,889.13) in advance on or before the
first day of each calendar month during the Term, except that Base Rent for the
first full calendar month for which Base Rent shall be due, shall be paid when
Tenant executes this Lease. If the Term commences on a day other than the
first day of a calendar month, or ends on a day other than the last day of the
calendar month, then the Base Rent for such month shall be prorated on the
basis of 1/30th of the monthly Base Rent for each day of such month.
ARTICLE 3
ADDITIONAL RENT
(A) Taxes. Tenant shall pay Landlord an amount equal to Tenant's
Prorata Share of Taxes in excess of the amount of Taxes paid by Landlord during
the calendar year 1996 ("Base Tax Year). The terms "Taxes" and "Tenant's
Prorata Share" shall have the meanings specified therefor in Article 25.
(B) Operating Expenses. Tenant shall pay Landlord an amount equal
to Tenant's Prorata Share of Operating Expenses in excess of the Operating
Expenses paid by Landlord during the calendar year 1996 ("Base Expense Year").
The terms "Operating Expenses" and "Tenant's Prorata Share" shall have the
meanings specified therefor in Article 25.
(C) CPI Escalations. If the CPI on any Adjustment Date shall be
greater than the CPI for the Commencement Date, monthly Base Rent commencing on
the Adjustment Date shall be adjusted by adding an amount (the "CPI Escalation
Amount") equal to the product obtained by multiplying: (a) the monthly Base
Rent, by (b) the percentage increase in the CPI from the Commencement Date
through the Adjustment Date and deducting amounts paid under A and B above in
this Article 3. "Adjustment Date" shall mean each January 1, during the Term.
The term "CPI" shall have the meaning specified therefor in Article 25. Capped
at four percent (4%).
(D) Utilities. Tenant shall pay for all electricity, gas,
telephone and other utilities including any deposits on turn-on charges.
(E) Manner of Payment. CPI Escalation Amounts, Taxes, and
Operating Expenses shall be paid in the following manner:
(i) Landlord may reasonably estimate in advance the
amounts Tenant shall owe for Taxes and Operating Expenses for any full or
partial calendar year of the Term. In such event, Tenant shall pay such
estimated amounts, on a monthly basis, on or before the first day
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of each calendar month, together with Tenant's payment of Base Rent. Such
estimate may be reasonably adjusted from time to time by Landlord.
(ii) Within 120 days after the end of each calendar year,
or as soon thereafter as practicable, Landlord shall provide a statement (the
"Statement") to Tenant showing: (a) the amount of actual Taxes and Operating
Expenses for such calendar year, with a listing of amounts for major categories
of Operating Expenses, and such amounts for the Base Year, (b) any amount paid
by Tenant towards Taxes and Operating Expenses during such calendar year on an
estimated basis, (c) any revised estimate of Tenant's obligations for Taxes and
Operating Expenses for the current calendar year, and (d) any increased CPI
Escalation Amount.
(iii) If the Statement shows that Tenant's estimated
payments were less than Tenant's actual obligations for Taxes and Operating
Expenses for such year, Tenant shall pay the difference. If the Statement
shows an increase in Tenant's estimated payments for the current calendar year,
Tenant shall pay the difference between the new and former estimates, for the
period from January 1 of the current year through the month in which the
Statement is sent. Tenant shall make such payment within thirty (30) days
after Landlord sends the Statement.
(iv) If the Statement shows that Tenant's estimated
payments exceeded Tenant's actual obligations for Taxes and Operating Expenses,
Tenant shall receive a credit for the difference against payments of Rent next
due. If the Term shall have expired and no further Rent shall be due, Tenant
shall receive a refund of such difference, within thirty (30) days after
Landlord sends the Statement.
(v) If the Statement shows an increased net CPI
Escalation Amount, Tenant shall pay the difference between the former CPI
Escalation Amount and the increased CPI Escalation Amount for the period from
January 1 of the year in which Landlord sends the Statement, through the month
in which the Statement is sent, within thirty (30) days after Landlord sends
the Statement. Tenant shall thereafter pay Base Rent, as increased by the CPI
Escalation Amount set forth in the Statement.
(vi) So long as Tenant's obligations hereunder are not
materially adversely affected thereby, Landlord reserves the right to change,
from time to time, the manner or timing of the foregoing payments. In lieu of
providing one Statement covering Taxes, Operating Expenses, and CPI Escalation
Amounts, Landlord may provide separate statements at the same or different
times. No delay by Landlord in providing the Statement (or separate
statements) shall be deemed a default by Landlord or a waiver of Landlord's
right to require payment of Tenant's obligations for actual or estimated Taxes
or Operating Expenses, or CPI Escalation Amounts. In no event shall a decrease
in Taxes or Operating Expenses below the Base Year amounts give rise to a
credit in favor of Tenant, or a decrease in the CPI ever decrease the monthly
Base Rent.
(F) Proration. If the Term commences other than on January 1, or
ends other than on December 31, Tenant's obligations to pay estimated and
actual amounts towards Taxes and Operating Expenses for such first or final
calendar years shall be prorated to reflect the portion of such years included
in the Term. Such proration shall be made by multiplying the total estimated
or actual (as the case may be) Taxes and Operating Expenses, for such calendar
years, as well as the Base Year amounts, by a fraction, the numerator of which
shall be the number of days of the Term during such calendar year, and the
denominator of which shall be 365.
(G) Landlord's Records. Landlord shall maintain records
respecting Taxes and Operating Expenses and determine the same in accordance
with sound accounting and management practices, consistently applied. Although
this Lease contemplates the computation of Taxes and Operating Expenses on a
cash basis, Landlord shall make reasonable and appropriate accrual adjustments
to ensure that each calendar year, including the Base Years, includes
substantially the same recurring items. Landlord reserves the right to change
to a full accrual system of accounting so long as the same is consistently
applied and Tenant's obligations are not materially adversely affected. Tenant
or its representatives shall have the right to examine such records upon
reasonable prior notice specifying such records Tenant desires to examine,
during normal business hours at the place or places where such records are
normally kept by sending such notice no later than forty-five (45) days
following the furnishing of the Statement. Tenant may take exception to
matters included in Taxes or Operating Expenses, or Landlord's computation of
Tenant's Prorata Share of either, by sending notice specifying such exception
and the reasons therefor to Landlord no later than thirty (30) days after
Landlord makes such records available for examination. Such Statement shall be
considered final, except as to matters to which exception is taken after
examination of Landlord's records in the foregoing manner and within the
foregoing times. Tenant acknowledges that Landlord's ability to budget and
incur expenses depends on the finality of
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such Statement, and accordingly agrees that time is of the essence of this
Paragraph. If Tenant takes exception to any matter contained in the Statement as
provided herein, Landlord shall refer the matter to an independent Certified
Public Accountant, whose certification as to the proper amount shall be final
and conclusive as between Landlord and Tenant. Tenant shall promptly pay the
cost of such certification unless such certification determines that Tenant was
over-billed by more than five percent (5%). Pending resolution of any such
exceptions in the foregoing manner, Tenant shall continue paying Tenant's
Prorata Share of Taxes and Operating Expenses in the amounts determined by
Landlord, subject to adjustment after any such exceptions are so resolved.
(H) Rent and Other Charges. Base Rent, Taxes, Operating Expenses,
CPI Escalation Amounts, Late Charges, Default Interest, and any other amounts
which Tenant is or becomes obligated to pay Landlord under this Lease or other
agreement entered in connection herewith, are sometimes herein referred to
collectively as "Rent", and all remedies applicable to the nonpayment of Rent
shall be applicable thereto. Rent shall be paid at any office maintained by
Landlord or its agent at the Property, or at such place as Landlord may
designate.
ARTICLE 4
COMMENCEMENT OF TERM
The Commencement Date set forth in Article I shall be delayed and Rent
shall be abated to the extent that Landlord fails: (i) to substantially
complete any improvements to the Premises required to be performed by Landlord
under any separate agreement signed by both parties, or (ii) to deliver
possession of the Premises for any other reason, including but not limited to
holding over by prior occupants, except to the extent that Tenant, its
contractors, agents, or employees in any way contribute to either such
failures. If Landlord so fails for a ninety (90) day initial grace period, or
such additional time as may be necessary due to fire or other casualty,
strikes, lock-outs or other labor troubles, shortages of equipment or
materials, governmental requirements, power shortages or outages, acts or
omissions of Tenant or other Persons, or other causes beyond Landlord's
control, Tenant shall have the right to terminate this Lease by written notice
to Landlord at any time thereafter up until Landlord substantially completes
any such improvements and delivers the Premises to Tenant. Any such delay in
the Commencement Date shall not subject Landlord to liability for loss or
damage resulting therefrom, and Tenant's sole recourse with respect thereto
shall be the abatement of Rent and right to terminate this Lease described
above. Upon any such termination, Landlord and Tenant shall be entirely
relieved of their obligations hereunder, and any Security Deposit and Rent
payments shall be returned to Tenant. If the Commencement Date is delayed, the
Expiration Date shall be similarly extended. During any period that Tenant
shall be permitted to enter the Promises prior to the Commencement Date other
than to occupy the same (e.g., to perform alterations or improvements), Tenant
shall comply with all terms and provisions of this Lease, except those
provisions requiring the payment of Rent. If Tenant shall be permitted to
enter the Premises prior to the Commencement Date for the purpose of occupying
the same, Rent shall commence on such date, and if Tenant shall commence
occupying only a portion of the Premises prior to the Commencement Date, Rent
shall be prorated based on the number of rentable square feet occupied by
Tenant. Landlord shall permit early entry, provided the Premises are legally
available and Landlord has completed any work required under this Lease or any
separate agreement entered in connection herewith.
ARTICLE 5
CONDITION OF PREMISES
This section intentionally left blank.
ARTICLE 6
USE AND RULES
Tenant shall use the Premises for offices and no other purpose
whatsoever, in compliance with all applicable Laws and without disturbing or
interfering with any other tenant or occupant of the Property. Tenant shall
not use the Premises in any manner so as to cause a cancellation of Landlord's
insurance policies or an increase in the premiums thereunder. Tenant shall
comply with all rules set forth in Rider One attached hereto (the "Rules").
Landlord shall have the right to reasonably amend such Rules and supplement the
same with other reasonable Rules (not expressly inconsistent with this Lease)
relating to the Property, or
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the promotion of safety, care, cleanliness or good order therein, and all such
amendments or new Rules shall be binding upon Tenant after five (5) days notice
thereof to Tenant. All Rules shall be applied on a non-discriminatory basis,
but nothing herein shall be construed to give Tenant or any other Person (as
defined in Article 25) any claim, demand, or cause of action against Landlord
arising out of the violation of such Rules by any other tenant, occupant, or
visitor of the Property, or out of the enforcement or waiver of the Rules by
Landlord in any particular instance.
ARTICLE 7
SERVICES AND UTILITIES
Landlord shall provide the following services and utilities (the cost
of which shall be included in Operating Expenses unless otherwise stated herein
or in any separate rider hereto):
(A) Electricity for standard office lighting fixtures and
equipment and accessories customary for offices (up to 260 hours per month)
where: (1) the connected electrical load of all of the same does not exceed an
average of 3.25 watts per square foot of the Rentable Area of the Premises (or
such lesser amount as may be available, based on the safe and lawful capacity
of the existing electrical circuit(s) (and facilities serving the Premises),
(2) the electricity will be at nominal 120 volts, single phase (or 110 volts,
depending on available service in the Building), and (3) the safe and lawful
capacity of the existing electrical circuit(s) serving the Premises is not
exceeded.
(B) Heat and air conditioning to provide a temperature required,
in Landlord's reasonable opinion and in accordance with applicable Law, for
occupancy of the Premises under normal business operations, from 8:00 a.m.
until 6:00 p.m., Monday through Friday, 9:00 a.m. until 1 p.m., Saturdays.
Sundays and Holidays (as defined in Article 25) are excepted. Landlord shall
not be responsible for inadequate air-conditioning or ventilation to the extent
the same occurs because Tenant uses any item of equipment consuming more than
500 wafts at rated capacity without providing adequate air conditioning and
ventilation therefor.
(C) Water for drinking, lavatory, and toilet purposes at those
points of supply provided for non-exclusive general use of other tenants at the
Property.
(D) Customary office cleaning and trash removal service Monday
through Friday or Sunday through Thursday in and about the Premises.
(E) Operatorless passenger elevator service (if the Property has
such equipment serving the Premises) and freight elevator service (if the
Property has such equipment serving the Premises, and subject to scheduling by
Landlord) in common with Landlord and other tenants and their contractors,
agents, and visitors.
(F) Landlord shall seek to provide such extra utilities or
services as Tenant may from time to time request, if the same are reasonable
and feasible for Landlord to provide and do not involve modifications or
additions to the Property or existing Systems and Equipment (as defined in
Article 25), and if Landlord shall receive Tenant's request within a reasonable
period prior to the time such extra utilities or services are required.
Landlord may comply with written or oral requests by any officer or employee of
Tenant, unless Tenant shall notify Landlord of, or Landlord shall request, the
names of authorized individuals (up to 3 for each floor on which the Promises
are located) and procedures for written requests. Tenant shall, for such extra
utilities or services, pay such charges as Landlord shall from time to time
reasonably establish. All charges for such extra utilities or services shall
be due at the same time as the installment of Base Rent with which the same are
billed, or if billed separately, shall be due within twenty (20) days after
such billing.
Landlord shall, with respect to electrical services supplied to the
Premises, elect from time to time during the Lease Term: (1) to install
individual meters, in which event all charges for electricity shall be paid
promptly by Tenant before the same become delinquent; (2) to charge Tenant for
electricity as shown by meter at the applicable General Service Rate as
prescribed by the proper regulating authorities then in effect from time to
time covering such services; or (3) to charge Tenant based upon the then
current kilowatt hours charge for electricity on the basis of the product of
3.25 watts per square foot of the Rentable Area of the Premises as set forth in
Article 1 multiplied by the hours of operation per month, which is agreed to be
sixty (60) hours per week and four and one-third (4 1/3) weeks per month. From
time to time during the Lease Term, Landlord may inspect the Leased Premises in
order to evaluate Tenant's kilowatt-hour electric consumption, and if as a
result of such inspection Landlord determines Tenant's use exceeds 3.25 watts
per square foot of the Rentable Area of the Premises, or if Landlord determines
Tenant's hours of operation are in excess of sixty (60)
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hours per week, then Landlord shall so notify Tenant in writing and, commencing
with the first day of the next calendar month, Tenant shall pay a revised
electric charge to reflect such excess use.
Landlord may install and operate meters or any other reasonable system
for monitoring or estimating any services or utilities used by Tenant in excess
of those required to be provided by Landlord under this Article (including a
system for Landlord's engineer to reasonably estimate such excess usage). If
such system indicates such excess services or utilities, Tenant shall pay
Landlord's reasonable charges for installing and operating such system and any
supplementary air-conditioning, ventilation, heat, electrical, or other systems
or equipment (or adjustments or modifications to the existing System and
Equipment), and Landlord's reasonable charges for such amount of excess
services or utilities used by Tenant.
Landlord does not warrant that any services or utilities will be free
from shortages, failures, variations, or interruptions caused by repairs,
maintenance, replacements, improvements, alterations, changes of service,
strikes, lockouts, labor controversies, accidents, inability to obtain
services, fuel, steam, water or supplies, governmental requirements or
requests, or other causes beyond Landlord's reasonable control. None of the
same shall be deemed an eviction or disturbance of Tenant's use and possession
of the Premises or any part thereof, or render Landlord liable to Tenant for
abatement of Rent, or relieve Tenant from performance of Tenant's obligations
under this Lease. Landlord in no event shall be liable for damages by reason
of loss of profits, business interruption, or other consequential damages.
ARTICLE 8
ALTERATIONS AND LIENS
Tenant shall make no additions, changes, alterations, or improvements
(the "Work") to the Premises or the Systems and Equipment (as defined in
Article 25) pertaining to the Premises without the prior written consent of
Landlord. Landlord may impose reasonable requirements as a condition of such
consent, including without limitation the submission of plans and
specifications for Landlord's prior written approval; obtaining necessary
permits; posting bonds; obtaining insurance; prior approval of contractors,
subcontractors, and suppliers; prior receipt of copies of all contracts and
subcontracts; contractor and subcontractor lien waivers; affidavits listing all
contractors, subcontractors, and suppliers; use of union labor (if Landlord
uses union labor); affidavits from engineers acceptable to Landlord stating
that the Work will not adversely affect the Systems and Equipment or the
structure of the Property; and requirements as to the manner and times in which
such Work shall be done. All Work shall be performed in a good and workmanlike
manner and all materials used shall be of a quality comparable to or better
than those in the Premises and Property and shall be in accordance with plans
and specifications approved by Landlord, and Landlord may require that all such
Work be performed under Landlord's supervision. In all cases, Tenant shall pay
Landlord a reasonable fee to cover Landlord's overhead in reviewing Tenant's
plans and specifications and performing any supervision of the Work. If
Landlord consents or supervises, the same shall not be deemed a warranty as to
the adequacy of the design, workmanship, or quality of materials, and Landlord
hereby expressly disclaims any responsibility or liability for the same.
Landlord shall under no circumstances have any obligation to repair, maintain,
or replace any portion of the Work.
Tenant shall keep the Property and Premises free from any mechanic's,
materialman's, or similar liens or other such encumbrances in connection with
any Work on or respecting the Premises not performed by or at the request of
Landlord and shall indemnity and hold Landlord harmless from and against any
claims, liabilities, judgments, or costs (including attorneys' fees) arising
out of the same or in connection therewith. Tenant shall give Landlord notice
at least twenty (20) days prior to the commencement of any Work on the Premises
(or such additional time as may be necessary under applicable Laws) to afford
Landlord the opportunity of posting and recording appropriate notices of
non-responsibility. Tenant shall remove any such lien or encumbrance by bond
or otherwise within thirty (30) days after written notice by Landlord, and if
Tenant shall fail to do so, Landlord may pay the amount necessary to remove
such lien or encumbrance, without being responsible for investigating the
validity thereof. The amount so paid shall be deemed additional Rent under
this Lease payable upon demand, without limitation as to other remedies
available to Landlord under this Lease. Nothing contained in this Lease shall
authorize Tenant to do any act which shall subject Landlord's title to the
Property or Premises to any liens or encumbrances whether claimed by operation
of law or express or implied contract. Any claim to a lien or encumbrance upon
the Property or Premises arising in connection with any Work on or respecting
the Premises not performed by or at the request of Landlord shall be null and
void, or at Landlord's option shall attach only against Tenant's interest in
the Premises and shall in all respects be subordinate to Landlord's title to
the Property and Premises.
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ARTICLE 9
REPAIRS
Except for customary cleaning and trash removal provided by Landlord
under Article 7, and damage covered under Article 10, Tenant shall keep the
Premises in good and sanitary condition, working order, and repair (including
without limitation, carpet, wall covering, doors, plumbing, and other fixtures,
equipment, alterations, and improvements, whether installed by Landlord or
Tenant). In the event that any repairs, maintenance, or replacements are
required, Tenant shall promptly arrange for the same, either through Landlord
for such reasonable charges as Landlord may from time to time establish, or
such contractors as Landlord generally uses at the Property or such other
contractors as Landlord shall first approve in writing, and in a first class,
workmanlike manner approved by Landlord in advance in writing. If Tenant does
not promptly make such arrangements, Landlord may, but need not, make such
repairs, maintenance, and replacements, and the costs paid or incurred by
Landlord therefor shall be reimbursed by Tenant promptly after request by
Landlord. Tenant shall indemnify Landlord and pay for any repairs,
maintenance, and replacements to areas of the Property outside the Premises,
caused, in whole or in part, as a result of moving any furniture, fixtures, or
other property to or from the Premises, or by Tenant or its employees, agents,
contractors, or visitors (notwithstanding anything to the contrary contained in
this Lease). Except as provided in the preceding sentence, or for damage
covered under Article 10, Landlord shall keep the common areas of the Property
in good and sanitary condition, working order, and repair (the cost of which
shall be included in Operating Expenses, as described in Article 25, except as
limited therein).
ARTICLE 10
CASUALTY DAMAGE
If the Premises or any common areas of the Property providing access
thereto shall be damaged by fire or other casualty, Landlord shall use
available insurance proceeds to restore the same. Such restoration shall be to
substantially the condition prior to the casualty, except for modifications
required by zoning and building codes and other Laws or by any Holder (as
defined in Article 25), any other modifications to the common areas deemed
desirable by Landlord (provided access to the Premises is not materially
impaired), and except that Landlord shall not be required to repair or replace
any of Tenant's furniture, furnishings, fixtures, or equipment, or any
alterations or improvements in excess of any work performed or paid for by
Landlord under any separate agreement signed by the parties in connection
herewith. Landlord shall not be liable for any inconvenience or annoyance to
Tenant or its visitors, or injury to Tenant's business resulting in any way
from such damage or the repair thereof. However, Landlord shall allow Tenant a
proportionate abatement of Rent during the time and to the extent the Premises
are unfit for occupancy for the purposes permitted under this Lease and not
occupied by Tenant as a result thereof (unless Tenant or its employees or
agents caused the damage). Notwithstanding the foregoing to the contrary,
Landlord may elect to terminate this Lease by notifying Tenant in writing of
such termination within sixty (60) days after the date of damage (such
termination to include a termination date providing at least ninety (90) days
for Tenant to vacate the Premises) if the Property shall be materially damaged
by Tenant or its employees or agents, or if the Property shall be damaged by
fire or other casualty or cause such that: (a) repairs to the Premises and
access thereto cannot reasonably be completed within 120 days after the
casualty without the payment of overtime or other premiums, (b) more than 25%
of the Premises is affected by the damage, and fewer than 24 months remain in
the Term, or any material damage occurs to the Premises during the last 12
months of the term, (c) any Holder (as defined in Article 25) shall require
that the insurance proceeds or any portion thereof be used to retire the
Mortgage debt (or shall terminate the ground lease, as the case may be), or the
damage is not fully covered by Landlord's insurance policies, or (d) the cost
of the repairs, alterations, restoration, or improvement work would exceed 25%
of the replacement value of the Building, or the nature of such work would make
termination of this Lease necessary or convenient. Tenant agrees that
Landlord's obligation to restore, and the abatement of Rent provided herein,
shall be Tenant's sole recourse in the event of such damage, and waives any
other rights Tenant may have under applicable Law to terminate the Lease by
reason of damage to the Premises or Property. Tenant acknowledges that this
Article represents the entire agreement between the parties respecting damage
to the Premises or Property.
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ARTICLE 11
INSURANCE, SUBROGATION, AND WAIVER OF CLAIMS
Tenant shall maintain during the Term comprehensive (or commercial)
general liability insurance, with limits of not less than $1,000,000 per person
per occurrence for personal injury, bodily injury, or death, or property damage
or destruction (including loss of use thereof) for any one occurrence. Tenant
shall also maintain during the Term worker compensation insurance as required by
statute, and primary, non-contributory, "all-risk" property damage insurance
covering Tenant's personal property, business records, fixtures, and equipment
for damage or other loss caused by fire or other casualty or cause including,
but not limited to, vandalism and malicious mischief, theft, water damage of any
type, including sprinkler leakage, bursting or stoppage of pipes, explosion,
business interruption, and other insurable risks in amounts not less than the
full insurable replacement value of such property and full insurable value of
such other interests of Tenant (subject to reasonable deductible amounts).
Landlord shall, as part of Operating Expenses, maintain during the Term
comprehensive (or commercial) general liability insurance, with limits of not
less than $1,000,000 per person per occurrence for personal injury, bodily
injury, or death, or property damage or destruction (including loss of use
thereof) for any one occurrence. Landlord shall also, as part of Operating
Expenses, maintain during the Term worker compensation insurance as required by
statute, and primary, non-contributory, extended coverage or "all-risk" property
damage insurance, in an amount equal to at least ninety percent (90%) of the
full insurable replacement value of the Property (exclusive of the costs of
excavation, foundations, and footings, and such risks required to be covered by
Tenant's insurance, and subject to reasonable deductible amounts), or such other
amount necessary to prevent Landlord from being a co-insured, and such other
coverage as Landlord shall deem appropriate or that may be required by any
Holder (as defined in Article 25).
Tenant shall provide Landlord with certificates evidencing such
coverage (and, with respect to liability coverage, showing Landlord and the
Management Company, McKinley Commercial, Inc. as additional insureds) prior to
the Commencement Date, which shall state that such insurance coverage may not
be changed or canceled without at least twenty (20) days' prior written notice
to Landlord, and shall provide renewal certificates to Landlord at least twenty
(20) days prior to expiration of such policies. Landlord may periodically, but
not more often than every five years, require that Tenant reasonably increase
the aforementioned coverage. Except as provided to the contrary herein, any
insurance carried by Landlord or Tenant shall be for the sole benefit of the
party carrying such insurance. Any insurance policies hereunder may be
"blanket policies". All insurance required hereunder shall be provided by
responsible insurers and Tenant's insurer shall be reasonably acceptable to
Landlord. By this Article, Landlord and Tenant intend that their respective
property loss risks shall be borne by responsible insurance carriers to the
extent above provided, and Landlord and Tenant hereby agree to look solely to,
and seek recovery only from, their respective insurance carriers in the event
of a property loss to the extent that such coverage is agreed to be provided
hereunder. The parties each hereby waive all rights and claims against each
other for such losses, and waive all rights of subrogation to their respective
insurers, provided such waiver of subrogation shall not affect the right of the
insured to recover thereunder. The parties agree that their respective
insurance policies are now, or shall be, endorsed such that said waiver of
subrogation shall not affect the right of the insured to recover thereunder, so
long as no material additional premium is charged therefor.
ARTICLE 12
CONDEMNATION
If the whole or any material part of the Premises or Property shall be
taken by power of eminent domain or condemned by any competent authority for
any public or quasi-public use or purpose, or if any adjacent property or
street shall be so taken or condemned, or reconfigured or vacated by such
authority in such manner as to require the use, reconstruction, or remodeling
of any part of the Premises or Property, or if Landlord shall grant a deed or
other instrument in lieu of such taking by eminent domain or condemnation,
Landlord shall have the option to terminate this Lease upon ninety (90) days
notice, provided such notice is given no later than 180 days after the date of
such taking, condemnation, reconfiguration, vacation, deed or other instrument.
Tenant shall have reciprocal termination rights if the whole or any material
part of the Promises is permanently taken, or it access to the Premises is
permanently materially impaired. Landlord shall be entitled to receive the
entire award or payment in connection therewith, except that Tenant shall have
the right to file any separate claim available to Tenant for any taking of
Tenant's personal property and fixtures belonging to Tenant and removable by
Tenant upon expiration of the Term, and for moving expenses (so long as such
claim does not diminish the award available to Landlord or any Holder, and such
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claim is payable separately to Tenant). All Rent shall be apportioned as of
the date of such termination, or the date of such taking, whichever shall first
occur. If any part of the Premises shall be taken, and this Lease shall not be
so terminated, the Rent shall be proportionately abated.
ARTICLE 13
RETURN OF POSSESSION
At the expiration or earlier termination of this Lease or Tenant's
right of possession, Tenant shall surrender possession of the Premises in the
condition required under Article 9, ordinary wear and tear excepted, and shall
surrender all keys, any key cards, and any parking stickers or cards, to
Landlord, and advise Landlord as to the combination of any locks or vaults then
remaining in the Premises, and shall remove all trade fixtures and personal
property. All improvements, fixtures, and other items in or upon the Premises
(except trade fixtures and personal property belonging to Tenant), whether
installed by Tenant or Landlord, shall be Landlord's property and shall remain
upon the Premises, all without compensation, allowance or credit to Tenant.
However, if prior to such termination or within ten (10) days thereafter
Landlord so directs by notice, Tenant shall promptly remove such of the
foregoing items as are designated in such notice and restore the Premises to
the condition prior to the installation of such items; provided, Landlord shall
not require removal of customary office improvements installed pursuant to any
separate agreement signed by both parties in connection with entering this
Lease (except as expressly provided to the contrary therein), or installed by
Tenant with Landlord's written approval (except as expressly required by
Landlord in connection with granting such approval). If Tenant shall fail to
perform any repairs or restoration, or fail to remove any items from the
Premises required hereunder, Landlord may do so, and Tenant shall pay Landlord
the cost thereof upon demand. All property removed from the Premises by
Landlord pursuant to any provisions of this Lease or any Law may be handled or
stored by Landlord at Tenant's expense, and Landlord shall in no event be
responsible for the value, preservation, or safekeeping thereof. All property
not removed from the Premises or retaken from storage by Tenant within thirty
(30) days after expiration or earlier termination of this Lease or Tenant's
right to possession shall, at Landlord's option, be conclusively deemed to have
been conveyed by Tenant to Landlord as if by bill of sale without payment by
Landlord. Unless prohibited by applicable Law, Landlord shall have a lien
against such property for the costs incurred in removing and storing the same.
ARTICLE 14
HOLDING OVER
Unless Landlord expressly agrees otherwise in writing, Tenant shall
pay Landlord one hundred fifty percent (150%) of the amount of Rent then
applicable (or the highest amount permitted by Law, whichever shall be less)
prorated on per them basis for each day Tenant shall retain possession of the
Premises or any part thereof after expiration or earlier termination of this
Lease, together with all damages sustained by Landlord on account thereof. The
foregoing provisions shall not serve as permission for Tenant to hold-over, nor
serve to extend the Term (although Tenant shall remain bound to comply with all
provisions of this Lease until Tenant vacates the Premises, and shall be
subject to the provisions of Article 13). Notwithstanding the foregoing to the
contrary, at any time before or after expiration or earlier termination of the
Lease, Landlord may serve notice advising Tenant of the amount of Rent and
other terms required, should Tenant desire to enter a month-to-month tenancy
(and if Tenant shall hold over more than one full calendar month after such
notice, Tenant shall thereafter be deemed a month-to-month tenant, on the terms
and provisions of this Lease then in effect, as modified by Landlord's notice,
and except that Tenant shall not be entitled to any renewal or expansion rights
contained in this Lease or any amendments hereto).
ARTICLE 15
NO WAIVER
No provision of this Lease will be deemed waived by either party
unless expressly waived in writing signed by the waiving party. No waiver
shall be implied by delay or any other act or omission of either party. No
waiver by either party of any provision of this Lease shall be deemed a waiver
of such provision with respect to any subsequent matter relating to such
provision, and Landlord's consent or approval respecting any action by Tenant
shall not constitute a waiver of the requirement for obtaining Landlord's
consent or approval respecting
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any subsequent action. Acceptance of Rent by Landlord shall not constitute a
waiver of any breach by Tenant of any term or provision of this Lease. No
acceptance of a lesser amount than the Rent herein stipulated shall be deemed a
waiver of Landlord's right to receive the full amount due, nor shall any
endorsement or statement on any check or payment or any letter accompanying
such check or payment be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the full amount due. The acceptance of Rent or of the performance of any other
term or provision from any Person other than Tenant, including any Transferee,
shall not constitute a waiver of Landlord's right to approve any transfer.
ARTICLE 16
ATTORNEY'S FEES AND JURY TRIAL
In the event of any litigation between the parties, the prevailing
party shall be entitled to obtain, as part of the judgment, all reasonable
attorneys' fees, costs, and expenses incurred in connection with such
litigation, except as may be limited by applicable Law. In the interest of
obtaining a speedier and less costly hearing of any dispute, the parties hereby
each irrevocably waive the right to trial by jury.
ARTICLE 17
PERSONAL PROPERTY TAXES, RENT TAXES, AND OTHER TAXES
Tenant shall pay prior to delinquency all taxes, charges or other
governmental impositions assessed against or levied upon Tenants fixtures,
furnishings, equipment, and personal property located in the Premises and any
Work to the Premises under Article 8. Whenever possible, Tenant shall cause all
such items to be assessed and billed separately from the property of Landlord.
In the event any such items shall be assessed and billed with the property of
Landlord, Tenant shall pay Landlord its share of such taxes, charges, or other
governmental impositions within thirty (30) days after Landlord delivers a
statement and a copy of the assessment or other documentation showing the
amount of such impositions applicable to Tenant's property. Tenant shall pay
any rent tax or sales tax, service tax, transfer tax, or value added tax or any
other applicable tax on the Rent or services herein or otherwise respecting
this Lease.
ARTICLE 18
REASONABLE APPROVALS
Whenever Landlord's approval or consent is expressly required under
this Lease (including Article 21) or any other agreement between the parties,
Landlord shall not unreasonably withhold or delay such approval or consent
(reasonableness shall be a condition to Landlord's enforcement of such consent
or approval requirement, and not a covenant), except for matters affecting the
structure, safety or security of the Property, or the appearance of the
Property from any common or public areas.
ARTICLE 19
SUBORDINATION, ATTORNMENT, AND MORTGAGEE PROTECTION
This Lease is subject and subordinate to all Mortgages (as defined in
Article 25) now or hereafter placed upon the Property, and all other
encumbrances and matters of public record applicable to the Property. If any
foreclosure proceedings are initiated by any Holder or a deed in lieu is
granted (or if any ground lease is terminated), Tenant agrees, upon written
request of any such Holder or any purchaser at foreclosure sale, to attorn and
pay Rent to such party and to execute and deliver any instruments necessary or
appropriate to evidence or effectuate such attornment (provided such Holder or
purchaser shall agree to accept this Lease and not disturb Tenant's occupancy,
so long as Tenant does not default and fail to cure within the time permitted
hereunder). However, in the event of attornment, no Holder shall be: (i)
liable for any act or omission of Landlord, or subject to any offsets or
defenses which Tenant might have against Landlord (prior to such Holder
becoming Landlord under such attornment), (ii) liable for any security deposit
or bound by any prepaid Rent not actually received by such Holder, or (iii)
bound by any future modification of this Lease not consented to by such Holder.
Any Holder (as defined in Article 25) may elect to make this Lease prior to the
lien of its Mortgage, by written notice to Tenant, and if the Holder of any
prior Mortgage
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shall require, this Lease shall be prior to any subordinate Mortgage. Tenant
agrees to give any Holder, by certified mail, return receipt requested, a copy
of any notice of default served by Tenant upon Landlord, provided that prior to
such notice Tenant has been notified in writing (by way of service on Tenant,
of a copy of an assignment of leases, or otherwise) of the address of such
Holder. Tenant further agrees that if Landlord shall have failed to cure such
default within the times permitted Landlord for cure under this Lease, any such
Holder whose address has been provided to Tenant shall have an additional
period of thirty (30) days in which to cure (or such additional times as may be
required due to causes beyond such Holder's control, including time to obtain
possession of the Property by power of sale or judicial action). Tenant shall
execute such documentation as Landlord may reasonably request from time to
time, in order to confirm the matters set forth in this Article in recordable
form.
ARTICLE 20
ESTOPPEL CERTIFICATE
Tenant shall from time to time, within tan (10) days after written
request from Landlord, execute, acknowledge, and deliver a statement (i)
certifying that this Lease is unmodified and in full force and effect or, if
modified, stating the nature of such modification and certifying that this
Lease as so modified, is in full force and effect (or if this lease is claimed
not to be in force and effect, specifying the ground therefor) and any dates to
which the Rent has been paid in advance, and the amount of any Security
Deposit, (ii) acknowledging that there are not, to Tenants knowledge, any
uncured defaults on the part of Landlord hereunder, or specifying such defaults
if any are claimed, and (iii) certifying such other matters as Landlord may
reasonably request, or as may be requested by Landlord's current or prospective
Holders, insurance carriers, auditors, and prospective purchasers. Any such
statement may be relied upon by any such parties. If Tenant shall fail to
execute and return such statement within the time required herein, Tenant shall
be deemed to have agreed with the matters set forth therein.
ARTICLE 21
ASSIGNMENT AND SUBLETTING
(A) TRANSFERS. Tenant shall not, without the prior written
consent of Landlord, which consent shall not be unreasonably withheld, as
further described below: (i) assign, mortgage, pledge, hypothecate, encumber,
or permit any lien to attach to, or otherwise transfer, this Lease or any
interest hereunder, by operation of law or otherwise, (ii) sublet the Premises
or any part thereof, or (iii) permit the use of the Premises by any Persons (as
defined in Article 25) other than Tenant and its employees (all of the
foregoing are hereinafter sometimes referred to collectively as "Transfers" and
any Person to whom any Transfer is made or sought to be made is hereinafter
sometimes referred to as a "Transferee"). If Tenant shall desire Landlord's
consent to any Transfer, Tenant shall notify Landlord in writing, which notice
shall include: (a) the proposed effective date (which shall not be less than 30
nor more than 180 days after Tenant's notice), (b) the portion of the Premises
to be Transferred (herein called the "Subject Space"), (c) the terms of the
proposed Transfer and the consideration therefor, the name and address of the
proposed Transferee, and a copy of all documentation pertaining to the proposed
Transfer, and (d) current financial statements of the proposed Transferee
certified by an officer, partner, or owner thereof, and any other information
to enable Landlord to determine the financial responsibility, character, and
reputation of the proposed Transferee, nature of such Transferee's business and
proposed use of the Subject Space, and such other information as Landlord may
reasonably require. Any Transfer made without complying with this Article
shall, at Landlord's option, be null, void, and of no effect, or shall
constitute a Default under this Lease. Whether or not Landlord shall grant
consent, Tenant shall pay $300.00 toward Landlord's review and processing
expenses, as well as any reasonable legal fees incurred by Landlord, within
thirty (30) days after written request by Landlord.
(B) APPROVAL. Landlord will not unreasonably withhold its consent
(as provided in Article 18) to any proposed Transfer of the Subject Space to
the Transferee on the terms specified in Tenant's notice. The parties hereby
agree that it shall be reasonable under this Lease and under any applicable Law
for Landlord to withhold consent to any proposed Transfer where one or more of
the following applies (without limitation as to other reasonable grounds for
withholding consent): (i) the Transferee is of a character or reputation or
engaged in a business which is not consistent with the quality of the Property,
or would be a significantly less prestigious occupant of the Property than
Tenant, (ii) the Transferee intends to use the Subject Space for purposes which
are not permitted under this Lease, (iii) the Subject Space is not regular in
shape with appropriate means of ingress and egress suitable for normal renting
purposes, (iv) the Transferee is either a government (or agency or
instrumentality thereof) or an occupant of the Property, (v) the proposed
Transferee does not have a reasonable financial
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condition in relation to the obligations to be assumed in connection with the
Transfer, or (vi) Tenant has committed and failed to cure a Default at the time
Tenant requests consent to the proposed Transfer.
(C) TRANSFER PREMIUM. If Landlord consents to a Transfer, and as
a condition thereto which the parties hereby agree is reasonable, Tenant shall
pay Landlord fifty percent (50%) of any Transfer Premium derived by Tenant from
such Transfer. "Transfer Premium" shall mean all rent, additional rent, or
other consideration paid by such Transferee in excess of the Rent payable by
Tenant under this Lease (on a monthly basis during the Term, and on a per
rentable square foot basis, if less than all of the Promises is transferred),
after deducting the reasonable expenses incurred by Tenant for any changes,
alterations, and improvements to the Premises, any other economic concessions
or services provided to the Transferee, and any customary brokerage commissions
paid in connection with the Transfer. If part of the consideration for such
Transfer shall be payable other than in cash, Landlord's share of such non-cash
consideration shall be in such form as is reasonably satisfactory to Landlord.
The percentage of the Transfer Premium due Landlord hereunder shall be paid
within ten (10) days after Tenant receives any Transfer Premium from the
Transferee.
(D) RECAPTURE. This section intentionally left blank.
(E) TERMS OF CONSENT. If Landlord consents to a Transfer (a) the
terms and conditions of this Lease, including among other things Tenant's
liability for the Subject Space, shall in no way be deemed to have been waived
or modified, (b) such consent shall not be deemed consent to any further
Transfer by either Tenant or a Transferee, (c) no Transferee shall succeed to
any rights provided in this Lease or any amendment hereto to extend the Term of
this Lease, expand the Premises, or lease additional space, any such rights
being deemed personal to Tenant, (d) Tenant shall deliver to Landlord promptly
after execution, an original executed copy of all documentation pertaining to
the Transfer in form reasonably acceptable to Landlord, and (e) Tenant shall
furnish upon Landlord's request a complete statement, certified by an
independent Certified Public Accountant, or Tenant's chief financial officer,
setting forth in detail the computation of any Transfer Premium Tenant has
derived and shall derive from such Transfer. Landlord or its authorized
representatives shall have the right at all reasonable times to audit the
books, records, and papers of Tenant relating to any Transfer, and shall have
the right to make copies thereof. If the Transfer Premium respecting any
Transfer shall be found understated, Tenant shall within thirty (30) days after
demand pay the deficiency, and if understated by more than 2%, Tenant shall pay
Landlord's costs of such audit. Any sublease hereunder shall be subordinate
and subject to the provisions of this Lease, and if this Lease shall be
terminated during the term of any sublease, Landlord shall have the right to:
(i) treat such sublease as canceled and repossess the Subject Space by any
lawful means, or (ii) require that such subtenant attorn to and recognize
Landlord as its landlord under any such sublease. If Tenant shall Default and
fail to cure within the time permitted for cure under Article 23(A), Landlord
is hereby irrevocably authorized, as Tenant's agent and attorney-in-fact, to
direct any Transferee to make all payments under or in connection with the
Transfer directly to Landlord (which Landlord shall apply toward Tenant's
obligations under this Lease) until such Default is cured.
(F) CERTAIN TRANSFERS. For purposes of this Lease, the term
"Transfer" shall also include (a) if Tenant is a partnership, the withdrawal or
change, voluntary, involuntary, or by operation of law, of a majority of the
partners, or a transfer of a majority of partnership interests, within a twelve
month period, or the dissolution of the partnership, and (b) if Tenant is a
closely held corporation (i.e., whose stock is not publicly held and not traded
through an exchange or over the counter), the dissolution, merger,
consolidation, or other reorganization of Tenant, or within a twelve month
period: (i) the sale or other transfer of more than an aggregate of 50% of the
voting shares of Tenant (other than to immediate family members by reason of
gift or death) or (ii) the sale, mortgage, hypothecation, or pledge of more
than an aggregate of 50% of Tenant's net assets.
ARTICLE 22
RIGHTS RESERVED BY LANDLORD
Except to the extent expressly limited herein, Landlord reserves full
rights to control the Property (which rights may be exercised without
subjecting Landlord to claims for constructive eviction, abatement of Rent,
damages, or other claims of any kind), including more particularly, but without
limitation, the following rights:
(A) To change the name or street address of the Property; install
and maintain signs on the exterior and interior of the Property; retain at all
times, and use in appropriate instances, keys to all doors within and into the
Premises; grant to any Person the right to conduct any business or render any
service at the Property, whether or not it is the same or similar to the
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use permitted Tenant by this Lease; and have access for Landlord and other
tenants of the Property to any mail chutes located on the Premises according to
the rules of the United States Postal Service.
(B) To enter the Premises at reasonable hours for reasonable
purposes, including inspection and supplying clearing service or other services
to be provided Tenant hereunder, to show the Premises to current and
prospective mortgage lenders, ground lessors, insurers, and prospective
purchasers, tenants, and brokers, at reasonable hours, and if Tenant shall
abandon the Premises at any time, or "shall vacate the same during the last 3
months of the Term, to decorate, remodel, repair, or alter the Premises.
(C) To limit or prevent access to the Property, shut down elevator
service, activate elevator emergency controls, or otherwise take such action or
preventative measures deemed necessary by Landlord for the safety of tenants or
other occupants of the Property or the protection of the Property and other
property located thereon or therein, in case of fire, invasion, insurrection,
dot, civil disorder, public excitement, or other dangerous condition, or threat
thereof.
(D) To decorate and make alterations, additions, and improvements,
structural or otherwise, in or to the Property or any part thereof, and any
adjacent building, structure, parking facility, land, street, or alley
(including without limitation changes and reductions in corridors, lobbies,
parking facilities, and other public areas and the installation of kiosks,
planters, sculptures, displays, escalators, mezzanines, and other structures,
facilities, amenities and features therein, and changes for the purpose of
connection with or entrance into or use of the Property in conjunction with any
adjoining or adjacent building or buildings, now existing or hereafter
constructed). In connection with such matters, or with any other repairs,
maintenance, improvements, or alterations, in or about the Property, Landlord
may erect scaffolding and other structures reasonably required, and during such
operations may enter upon the Premises and take into and upon or through the
Premises, all materials required to make such repairs, maintenance,
alterations, or improvements, and may close public ways, other public areas,
rest rooms, stairways, or corridors.
(E) This section intentionally left blank.
In connection with entering the Premises to exercise any of the
foregoing rights, Landlord shall: (a) provide reasonable advance written or
oral notice to Tenant's on-site manager or other appropriate person (except in
emergencies, or for routine cleaning or other routine matters), and (b) take
reasonable steps to minimize any interference with Tenant's business.
ARTICLE 23
LANDLORD'S REMEDIES
(A) Default. The occurrence of any one or more of the following
events shall constitute a "Default" by Tenant, which if not cured within any
applicable time permitted for cure below, shall give rise to Landlord's
remedies set forth in Paragraph (B), below: (i) failure by Tenant to make when
due any payment of Rent, unless such failure is cured within ten (10) days
after notice; (ii) failure by Tenant to observe or perform any of the terms or
conditions of this Lease to be observed or performed by Tenant other than the
payment of Rent, or as provided below, unless such failure is cured within
thirty (30) days after such notice, or such shorter period expressly provided
elsewhere in this Lease (provided, if the nature of Tenant's failure is such
that more time is reasonably required in order to cure, Tenant shall not be in
Default if Tenant commences to cure within such period and thereafter
diligently seeks to cure such failure to completion); (iii) failure by Tenant
to comply with the Rules, unless such failure is cured within five (5) days
after notice (provided, if the nature of Tenant's failure is such that more than
five (5) days time is reasonably required in order to cure, Tenant shall not be
in Default if Tenant commences to cure within such period and thereafter
diligently seeks to cure such failure to completion); (iv) vacation of all or a
substantial portion of the Premises for more than thirty (30) consecutive days,
or the failure to take possession of the Premises within sixty (60) days after
the Commencement Date; (v) (a) making by Tenant or any guarantor of this Lease
("Guarantor") of any general assignment for the benefit of creditors, (b)
filing by or against Tenant or any Guarantor of a petition to have Tenant or
such Guarantor adjudged a bankrupt or a petition for reorganization or
arrangement under any Law relating to bankruptcy (unless, in the case of a
petition filed against Tenant or such Guarantor, the same is dismissed within
sixty (60) days), (c) appointment of a trustee or receiver to take possession
of substantially all of Tenant's assets located on the Premises or of Tenant's
interest in this Lease, (e) Tenant's or any Guarantor's convening of a meeting
of its creditors or any class thereof for the purpose of effecting a moratorium
upon or composition of its debts, or (f) Tenant's or any Guarantor's insolvency
or admission of an inability to pay its debts as they mature; (vi) any material
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misrepresentation herein, or material misrepresentation or omission in any
financial statements or other materials provided by Tenant or any Guarantor in
connection with negotiating or entering this Lease or in connection with any
Transfer under Article 21; (vii) cancellation of any guaranty of this Lease by
any Guarantor. Failure by Tenant to comply with the same term or condition of
this Lease on three occasions during any twelve month period shall cause any
failure to comply with such term or condition during the succeeding twelve
month period, at Landlord's option, to constitute an incurable Default, if
Landlord has given Tenant notice of each such failure within ten (10) days
after each such failure occurs. The notice and cure periods provided herein
are in lieu of, and not in addition to, any notice and cure periods provided by
Law.
(B) Remedies. If a Default occurs and is not cured within any
applicable time permitted under Paragraph (A), Landlord shall have the rights
and remedies hereinafter set forth, which shall be distinct, separate, and
cumulative with and in addition to any other right or remedy allowed under any
Law or other provisions of this Lease:
(i) Landlord may terminate this Lease, repossess the
Premises by detainer suit, summary proceedings, or other lawful means, and
recover as damages a sum of money equal to: (a) any unpaid Rent as of the
termination date including interest at the Default Rate (as defined in Article
25), (b) any unpaid Rent which would have accrued after the termination date
through the time of award including interest at the Default Rate, less such
loss of Rent that Tenant proves could have been reasonably avoided, (c) any
unpaid Rent which would have accrued after the time of award during the balance
of the Term, less such loss of Rent that Tenant proves could be reasonably
avoided, and (d) any other amounts necessary to compensate Landlord for all
damages proximately caused by Tenant's failure to perform its obligations under
this Lease, including without limitation all Costs of Reletting (as defined in
Paragraph F). For purposes of computing the amount of Rent herein that would
have accrued after the time of award, Tenant's Prorata Share of Taxes and
Operating Expenses, and CPI Escalation Amounts, shall be projected, based upon
the average rate of increase, if any, in such items from the Commencement Date
through the time of award.
(ii) If applicable Law permits, Landlord may terminate
Tenant's right of possession and repossess the Premises by detainer suit,
summary proceedings, or other lawful means, without terminating this Lease (and
if such Law permits, and Landlord shall not have expressly terminated the Lease
in writing, any termination shall be deemed a termination of Tenant's right of
possession only). In such event, Landlord may recover (a) any unpaid Rent as
of the date possession is terminated, including interest at the Default Rate,
(b) any unpaid Rent which accrues during the Term from the date possession is
terminated through the time of award (or which may have accrued from the time
of any earlier award obtained by Landlord through the time of award), including
interest at the Default Rate, less any Net Re-Letting Proceeds (as defined in
Paragraph F) received by Landlord during such period, and less such loss of
Rent that Tenant proves could have been reasonably avoided, and (c) any other
amounts necessary to compensate Landlord for all damages proximately caused by
Tenant's failure to perform its obligations under this Lease, including without
limitation, all Costs of Re-Letting (as defined in Paragraph F). Landlord may
bring suits for such amounts or portions thereof, at any time or times as the
same accrue or after the same have accrued, and no suit or recovery of any
portion due hereunder shall be deemed a waiver of Landlord's right to collect
all amounts to which Landlord is entitled hereunder, nor shall the same serve
as any defense to any subsequent suit brought for any amount not theretofore
reduced to judgment.
(C) Mitigation of Damages. If Landlord terminates this Lease or
Tenant's right to possession, Landlord shall use reasonable efforts to mitigate
Landlord's damages, and Tenant shall be entitled to submit proof of such
failure to mitigate as a defense to Landlord's claims hereunder, if mitigation
of damages by Landlord is required by applicable Law. If Landlord has not
terminated this Lease or Tenant's right to possession, Landlord shall have no
obligation to mitigate, and may permit the Premises to remain vacant or
abandoned; in such case, Tenant may seek to mitigate damages by attempting to
sublease the Premises or assign this Lease (subject to Article 21).
(D) Specific Performance, Collection of Rent, and Acceleration.
Landlord shall at all times have the rights and remedies (which shall be
cumulative with each other and cumulative and in addition to those rights and
remedies available under Paragraph (B), above or any Law or other provision of
this Lease), without prior demand or notice except as required by applicable
Law: (i) to seek any declaratory, injunctive, or other equitable relief, and
specifically enforce this Lease, or restrain or enjoin a violation or breach of
any provision hereof, and (ii) to sue for and collect any unpaid Rent which has
accrued. Notwithstanding anything to the contrary contained in this Lease, to
the extent not expressly prohibited by applicable Law, in the event of any
Default by Tenant not cured within any applicable time for cure hereunder,
Landlord may terminate this Lease or Tenant's right to possession and
accelerate and declare that all Rent reserved for the remainder of the Term
shall be immediately due and payable (in which event, Tenant's Prorata Share of
Taxes and Operating
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Expenses, and CPI Escalation Amounts for the remainder of the Term shall be
projected based upon the average rate of increase, if any, in such items from
the Commencement Date through the date of such declaration); provided, Landlord
shall, after receiving payment of the same from Tenant, be obligated to turn
over to Tenant any actual Net Re-Letting Proceeds thereafter received during
the remainder of the Term, up to the amount so received from Tenant pursuant to
this provision.
(E) Late Charges and Interest. Tenant shall pay, as additional
Rent, a service charge of One Hundred Forty Dollars ($140.00) for bookkeeping
and administrative expenses, if Rent is not received within five (5) days after
its due date. In addition, any Rent paid more than ten (10) days after due
shall accrue interest from the due date at the Default Rate (as defined in
Article 25), until payment is received by Landlord. Such service charge and
interest payments shall not be deemed consent by Landlord to late payments, nor
a waiver of Landlord's right to insist upon timely payments at any time, nor a
waiver of any remedies to which Landlord is entitled as a result of the late
payment of Rent.
(F) Certain Definitions. "Net Re-Letting Proceeds" shall mean the
total amount of rent and other consideration paid by any Replacement Tenants,
less all Costs of Re-Letting, during a given period of time. "Costs of
Re-Letting" shall include without limitation, all reasonable costs and expenses
incurred by Landlord for any repairs, maintenance, changes, alterations, and
improvements to the Premises; brokerage commissions, advertising costs,
attorneys' fees, any customary free rent periods or credits, tenant improvement
allowances, take-over lease obligations; and other customary, necessary, or
appropriate economic incentives required to enter leases with Replacement
Tenants; and costs of collecting rent from Replacement Tenants. "Replacement
Tenants" shall mean any Person (as defined in Article 25) to whom Landlord re-
lets the Premises or any portion thereof pursuant to this Article.
(G) Other Matters. No re-entry or repossession, repairs, changes,
alterations and additions, re-letting, acceptance of keys from Tenant, or any
other action or omission by Landlord shall be construed as an election by
Landlord to terminate this Lease or Tenant's right to possession, or accept a
surrender of the Premises, nor shall the same operate to release the Tenant in
whole or in part from any of Tenant's obligations hereunder, unless express
written notice of such intention is sent by Landlord or its agent to Tenant.
To the fullest extent permitted by Law, all rent and other consideration paid
by any Replacement Tenants shall be applied: first, to the Costs of Re-Letting,
second, to the payment of any Rent theretofore accrued, and the residue, if
any, shall be held by Landlord and applied to the payment of other obligations
of Tenant to Landlord as the same become due (with any remaining residue to be
retained by Landlord). Rent shall be paid without any prior demand or notice
therefor (except as expressly provided herein) and without any deduction,
set-off, or counterclaim, or relief from any valuation or appraisement laws.
Landlord may apply payments received from Tenant to any obligations of Tenant
then accrued, without regard to such obligations as may be designated by
Tenant. Landlord shall be under no obligation to observe or perform any
provision of this Lease on its part to be observed or performed which accrues
after the date of any Default by Tenant hereunder not cured within the times
permitted hereunder. The times set forth herein for the curing of Defaults by
Tenant are of the essence with this Lease. Tenant hereby irrevocably waives
any right otherwise available under any Law to redeem or reinstate this Lease.
ARTICLE 24
LANDLORD'S RIGHT TO CURE
If Landlord shall fail to perform any term or provision under this
Lease required to be performed by Landlord, Landlord shall not be deemed to be
in default hereunder nor subject to any claims for damages of any kind, unless
such failure shall have continued for a period of thirty (30) days after
written notice thereof by Tenant; provided, if the nature of Landlord's failure
is such that more than thirty (30) days are reasonably required in order to
cure, Landlord shall not be in default if Landlord commences to cure such
failure within such thirty (30) day period, and thereafter reasonably seeks to
cure such failure to completion. The aforementioned periods of time permitted
for Landlord to cure shall be extended for any period of time during which
Landlord is delayed in or prevented from, curing due to fire or other casualty,
strikes, lock-outs, or other labor troubles, shortages of equipment or
materials, governmental requirements, power shortages or outages, acts or
omissions by Tenant or other Persons, and other causes beyond Landlord's
reasonable control. If Landlord shall fail to cure within the times permitted
for cure herein, Landlord shall be subject to such remedies as may be available
to Tenant (subject to the other provisions of this Lease); provided, in
recognition that Landlord must receive timely payments of Rent and operate the
Property, Tenant shall have no right of self-help to perform repairs or any
other obligation of Landlord, and shall have no right to withhold, set-off, or
abate Rent.
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ARTICLE 25
CAPTIONS, DEFINITIONS, AND SEVERABILITY
The captions of the Articles and Paragraphs of this Lease are for
convenience of reference only and shall not be considered or referred to in
resolving questions of interpretation. If any term or provision of this Lease
shall be found invalid, void, illegal, or unenforceable with respect to any
particular Person by a court of competent jurisdiction, it shall not affect,
impair, or invalidate any other terms or provisions hereof, or its
enforceability with respect to any other Person, the parties hereto agreeing
that they would have entered into the remaining portion of this Lease
notwithstanding the omission of the portion or portions adjudged invalid, void,
illegal, or unenforceable with respect to such Person.
(A) "Building" shall mean the structure identified in Article 1 of
this Lease.
(B) "CPI" shall mean the Consumer Price Index for all Urban
Consumers, All Items (Base year 1982-1984 = 100) published by the United States
Department of Labor, Bureau of Labor Statistics (or if a separate index is
published by the Bureau of Labor Statistics for a metropolitan area within 100
miles of the Property, then such metropolitan index). If the Bureau of Labor
Statistics substantially revises the manner in which the CPI is determined, an
adjustment shall be made in the revised index which would produce results
equivalent, as nearly as possible to those which would be obtained hereunder if
the CPI were not so revised. If the 1982-1984 average shall no longer be used
as an index of 100, such change shall constitute a substantial revision. If
the CPI becomes unavailable to the public because publication is discontinued,
or otherwise, Landlord shall substitute therefor a comparable index based upon
changes in the cost of living or purchasing power of the consumer dollar
published by a governmental agency, major bank, other financial institution,
university, or recognized financial publisher. If the CPI is available on a
monthly (or alternating monthly) basis, the CPI for the months in which (or
immediately preceding, as the case may be) the Commencement Date and Adjustment
Date respectively occur shall be used.
(C) "Default Rate" shall mean twelve percent (12%) per annum, or
the highest rate permitted by applicable Law, whichever shall be less.
(D) "Holder" shall mean the holder of any Mortgage at the time in
question, and where such Mortgage is a ground lease, such term shall refer to
the ground lessor.
(E) "Holidays" shall mean all federally observed holidays,
including New Year's Day, Presidents' Day, Memorial Day, Independence Day,
Labor Day, Veterans' Day, Thanksgiving Day, Christmas Day, and to the extent of
utilities or services provided by union members engaged at the Property, such
other holidays observed by such unions.
(F) "Landlord" and "Tenant" shall be applicable to one or more
Persons as the case may be, and the singular shall include the plural, and the
neuter shall include the masculine and feminine; and if there be more than one,
the obligations thereof shall be joint and several. For purposes of any
provisions indemnifying or limiting the liability of Landlord, the term
"Landlord' shall include Landlord's present and future partners, beneficiaries,
trustees, officers, directors, employees, shareholders, principals, agents,
affiliates, successors, and assigns.
(G) "Law" shall mean all federal, state, county, and local
governmental and municipal laws, statutes, ordinances, rules, regulations,
codes, decrees, orders and other such requirements, applicable equitable
remedies and decisions by courts in cases where such decisions are considered
binding precedents in the state in which the Property is located, and decisions
of federal courts applying the Laws of such State.
(H) "Mortgage" shall mean all mortgages, deeds of trust, ground
leases, and other such encumbrances now or hereafter placed upon the Property
or Building, or any part thereof, and all renewals, modifications,
consolidations, replacements, or extensions thereof, and all indebtedness now
or hereafter secured thereby and all interest thereon.
(I) "Operating Expenses" shall mean all expenses, costs, and
amounts (other than Taxes) of every kind and nature which Landlord shall pay
during any calendar year any portion which occurs during the Term, because of
or in connection with the repair, maintenance, and operation of the Property,
including, without limitation, any amounts paid for: (a) utilities for the
Property, including but not limited to electricity, power, gas, steam, oil, or
other fuel; water, sewer, lighting, heating, air conditioning, and ventilating,
(b) permits, licenses, and certificates necessary to operate, manage, and lease
the Property, (c) insurance applicable to the Property, not limited to the
amount of coverage Landlord is required to provide under this Lease, (d)
supplies, tools, equipment, and materials used in the operation, repair, and
maintenance of the Property, (e) wages, salaries, and other compensation and
benefits
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(including the fair value of any parking privileges provided) for all persons
engaged in the operation, maintenance, or security of the Property, and
employer's Social Security taxes, unemployment taxes or insurance, and any other
taxes which may be levied on such wages, salaries, compensation and benefits,
and (f) operation, repair, and maintenance of all Systems and Equipment and
components thereof (including replacement of capital equipment); janitorial
service; alarm and security service; window cleaning; trash removal; elevator
maintenance; cleaning of walks, parking facilities, and building walls; removal
of ice and snow; maintenance of shrubs, trees, grass, sod, and other landscaped
items; irrigation systems; drainage facilities; fences; curbs and walkways. If
the Property is not fully occupied during a portion of any calendar year,
Landlord may, in accordance with sound accounting and management practices,
determine the amount of variable Operating Expenses (i.e. those items which
vary according to occupancy levels) that would have been paid had the Property
been fully occupied, and the amount so determined shall be deemed to have been
the amount of variable Operating Expenses for such year. If Landlord makes
such an adjustment, Landlord shall make a comparable adjustment for the Base
Expense Year. Notwithstanding the foregoing, Operating Expenses shall not,
however, include:
(i) depreciation, interest, and amortization on Mortgages
and other debt costs or ground lease payments, if any; legal fees in connection
with leasing, tenant disputes, or enforcement of leases; real estate brokers'
leasing commissions; improvements or alterations to tenant spaces; the cost of
providing any service directly to and paid directly by, any tenant; any costs
expressly excluded from Operating Expenses elsewhere in this Lease; costs of
any items to the extent Landlord receives reimbursement from insurance proceeds
or from a third party (such proceeds to be deducted from Operating Expenses in
the year in which received); and
(ii) capital expenditures, except for replacements (as
opposed to additions or new improvements) of non-structural items located in
the common areas of the Property required to keep such areas in good condition;
provided, all such permitted capital expenditures (together with reasonable
financing charges) shall be amortized for purposes of this Lease over the
shorter of: (i) their useful lives, (ii) the period during which the reasonably
estimated savings in Operating Expenses equals the expenditures, or (iii) three
(3) years.
(J) "Person" shall mean an individual, trust, partnership, joint
venture, association, corporation, limited liability company, and any other
entity.
(K) "Property" shall mean the Building and any common or public
areas or facilities, easements, corridors, lobbies, sidewalks, loading areas,
driveways, landscaped areas, skywalks, parking garages and lots, and any and
all other structures or facilities operated or maintained in connection with or
for the benefit of the Building; and all parcels or tracts of land on which all
or any portion of the Building or any of the other foregoing items are located;
and any fixtures, machinery, equipment, apparatus, Systems and Equipment,
furniture, and other personal property located thereon or therein and used in
connection therewith, whether title is held by Landlord or its affiliates.
Possession of areas necessary for utilities, services, safety, and operation of
the Property, including the Systems and Equipment (as defined in Article 25),
fire stairways, perimeter walls, space between the finished ceiling of the
Premises and the slab of the floor or roof of the Property there above, and the
use thereof together with the right to install, maintain, operate, repair, and
replace the Systems and Equipment, including any of the same in, through,
under, or above the Premises in locations that will not materially interfere
with Tenant's use of the Premises, are hereby excepted and reserved by
Landlord, and not demised to Tenant.
(L) "Rent" shall have the meaning specified therefor in Article
3(G).
(M) "Systems and Equipment" shall mean any plant, machinery,
transformers, duct work, cable, wires, and other equipment, facilities, and
systems designed to supply heat, ventilation, air conditioning and humidity or
any other services or utilities, or comprising or serving as any component or
portion of the electrical, gas, steam, plumbing, sprinkler, communications,
alarm, security, or fire/life/safety systems or equipment, or any other
mechanical, electrical, electronic, computer, or other systems or equipment for
the Property.
(N) "Taxes" shall mean all federal, state, county, or local
governmental or municipal taxes, fees, charges, or other impositions of every
kind and nature, whether general, special, ordinary or extraordinary (including
without limitation, real estate taxes, general and special assessments, transit
taxes, water and sewer rents, taxes based upon the receipt of rent including
gross receipts or sales taxes applicable to the receipt of rent or service or
value added taxes (unless required to be paid by Tenant under Article 17),
personal property taxes imposed upon the fixtures, machinery, equipment,
apparatus, Systems and Equipment, appurtenances, furniture, and other personal
property used in connection with the Property which Landlord shall pay during
any calendar year, any portion of which occurs during the Term (without regard
to any different fiscal year used by such government or municipal
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authority) because of or in connection with the ownership, leasing, and
operation of the Property. Notwithstanding the foregoing, there shall be
excluded from Taxes all excess profits taxes, franchise taxes, gift taxes,
capital stock taxes, inheritance, and succession taxes, estate taxes, federal
and state income taxes, and other taxes to the extent applicable to Landlord's
general or net income (as opposed to rents, receipts, or income attributable to
operations at the Property). If the method of taxation of real estate
prevailing at the time of execution hereof shall be, or has been altered, so as
to cause the whole or any part of the taxes now, hereafter, or heretofore
levied, assessed, or imposed on real estate to be levied, assessed, or imposed
on Landlord, wholly or partially, as a capital levy or otherwise, or on or
measured by the rents received therefrom, then such new or altered taxes
attributable to the Property shall be included within the term "Taxes", except
that the same shall not include any enhancement of said tax attributable to
other income of Landlord. Any expenses incurred by Landlord in attempting to
protest, reduce, or minimize Taxes shall be included in Taxes in the calendar
year such expenses are paid. Tax refunds shall be deducted from Taxes in the
year they are received by Landlord. If Taxes for the Base Tax Year are reduced
as the result of protest, or by means of agreement, or as the result of legal
proceedings or otherwise, Landlord may adjust Tenant's obligations for Taxes in
all years following the Tax Base Year, and Tenant shall pay Landlord within 30
days after notice any additional amount required by such adjustment for any
such years or portions thereof that have theretofore occurred. If Taxes for
any period during the Term or any extension thereof shall be increased after
payment thereof by Landlord for any reason, including without limitation error
or reassessment by applicable governmental or municipal authorities, Tenant
shall pay Landlord upon demand Tenant's Prorata Share of such increased Taxes.
Tenant shall pay increased Taxes whether Taxes are increased as a result of
increases in the assessments or valuation of the Property (whether based on a
sale, change in ownership, or refinancing of the Property or otherwise),
increases in the tax rates, reduction, or elimination of any rollbacks or other
deductions available under current law, scheduled reductions of any tax
abatement, as a result of the elimination, invalidity, or withdrawal of any tax
abatement, or for any other cause whatsoever. Notwithstanding the foregoing,
if any Taxes shall be paid based on assessments or bills by a governmental or
municipal authority using a fiscal year other than a calendar year, Landlord
may elect to average the assessments or bills for the subject calendar year,
based on the number of months of such calendar year included in each such
assessment or bill.
(O) "Rentable Area of the Premises" under this Lease includes the
usable area, without deduction for columns or projections, multiplied by a load
or conversion factor, to reflect a share of certain areas, which may include
lobbies, corridors, mechanical, utility, janitorial, boiler and service rooms
and closets, rest rooms, and other public, common and service areas. Except as
provided expressly to the contrary herein, the Rentable Area of the Property
shall include all Rentable Area of all space leased or available for lease at
the Property, which Landlord may reasonably re-determine from time to time, to
reflect re-configurations, additions, or modifications to the Property.
(P) "Tenant's Prorata Share" of Taxes and Operating Expenses shall
be the Rentable Area of the Premises divided by the Rentable Area of the
Property on the last day of the calendar year for which Taxes or Operating
Expenses are being determined, excluding any parking facilities.
ARTICLE 26
Conveyance by Landlord and Liability
In case Landlord or any successor owner of the Property or the
Building shall convey or otherwise dispose of any portion thereof in which the
Premises are located, to another Person (and nothing herein shall be construed
to restrict or prevent such conveyance or disposition), such other Person shall
thereupon be and become landlord hereunder and shall be deemed to have fully
assumed and be liable for all obligations of this Lease to be performed by
Landlord which first arise after the date of conveyance, including the return
of any Security Deposit, and Tenant shall attorn to such other Person, and
Landlord or such successor owner shall, from and after the date of conveyance,
be free of all liabilities and obligations hereunder not then incurred. The
liability of Landlord to Tenant for any default by Landlord under this Lease or
arising in connection herewith or with Landlord's operation, management,
leasing, repair, renovation, alteration, or any other matter relating to the
Property or the Premises, shall be limited to the interest of Landlord in the
Property (and the rental proceeds thereof). Tenant agrees to look solely to
Landlord's interest in the Property (and the rental proceeds thereof) for the
recovery of any judgment against Landlord, and Landlord shall not be personally
liable for any such judgment or deficiency after execution thereon. The
limitations of liability contained in this Article shall apply equally and
inure to the benefit of Landlord's present and future partners, beneficiaries,
officers, directors, trustees, shareholders, agents, and employees and their
respective partners, heirs, successors, and assigns. Under no circumstances
shall any present or future general or limited partner of Landlord (if Landlord
is a partnership), or trustee
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or beneficiary (if Landlord or any partner of Landlord is a trust) have any
liability for the performance of Landlord's obligations under this Lease.
ARTICLE 27
Indemnification
Except to the extent arising from the intentional or grossly negligent
acts of Landlord or Landlord's agents or employees, Tenant shall defend,
indemnity, and hold harmless Landlord from and against any and all claims,
demands, liabilities, damages, judgments, orders, decrees, actions,
proceedings, fines, penalties, costs, and expenses, including without
limitation, court costs and attorneys' fees arising from or relating to any
loss of life, damage or injury to person, property, or business occurring in or
from the Premises, or caused by or in connection with any violation of this
Lease or use of the Premises or Property by, or any other act or omission of,
Tenant, any other occupant of the Premises, or any of their respective agents,
employees, contractors, or guests. Without limiting the generality of the
foregoing, Tenant specifically acknowledges that the indemnity undertaking
herein shall apply to claims in connection with or arising out of any "Work" as
described in Article 8, the installation, maintenance, use, or removal of any
"Lines" located in or serving the Premises as described in Article 29, and the
transportation, use, storage, maintenance, generation, manufacturing, handling,
disposal, release or discharge of any "Hazardous Material" as described in
Article 30 (whether or not any of such matters shall have been theretofore
approved by Landlord), except to the extent that any of the same arises from
the intentional or grossly negligent acts of Landlord or Landlord's agents or
employees.
ARTICLE 28
Safety and Security Devices, Services, and Programs
The parties acknowledge that safety and security devices, services,
and programs provided by Landlord, if any, while intended to deter crime and
ensure safety, may not in given instances prevent theft or other criminal acts;
or ensure safety of persons or property. The risk that any safety or security
device, service, or program may not be effective, or may malfunction, or be
circumvented by a criminal, is assumed by Tenant with respect to Tenants
property and interests, and Tenant shall obtain insurance coverage to the
extent Tenant desires protection against such criminal acts and other losses,
as further described in Article 11. Tenant agrees to cooperate in any
reasonable safety or security program developed by Landlord or required by Law.
ARTICLE 29
Communications and Computer Lines
Tenant may install, maintain, replace, remove or use any
communications or computer wires, cables, and related devices (collectively the
"Lines") at the Property in or serving the Premises, provided: (a) Tenant shall
obtain Landlord's prior written consent, use an experienced and qualified
contractor approved in writing by Landlord, and comply with all of the other
provisions of Article 8, (b) any such installation, maintenance, replacement,
removal, or use shall comply with all laws applicable thereto and good work
practices, and shall not interfere with the use of any then existing Lines at
the Property, (c) an acceptable number of spare Lines and space for additional
Lines shall be maintained for existing and future occupants of the Property, as
determined in Landlord's reasonable opinion, (d) if Tenant at any time uses any
equipment that may create an electromagnetic field exceeding the normal
insulation ratings of ordinary twisted pair riser cable or cause radiation
higher than normal background radiation, the Lines therefor (including riser
cables) shall be appropriately insulated to prevent such excessive
electromagnetic fields or radiation (e) as a condition to permitting the
installation of new Lines, Landlord may require that Tenant remove existing
Lines located in or serving the Premises, (f) Tenant's rights shall be subject
to the rights of any regulated telephone company, and (g) Tenant shall pay all
costs in connection therewith. Landlord reserves the right to require that
Tenant remove any Lines located in or serving the Premises which are installed
in violation of these provisions, or which are at any time in violation of any
Laws or represent a dangerous or potentially dangerous condition (whether such
Lines were installed by Tenant or any other party), within three (3) days after
written notice.
Landlord may (but shall not have the obligation to): (i) install new
Lines at the Property, (ii) create additional space for Lines at the Property,
and (iii) reasonably direct, monitor, and/or
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supervise the installation, maintenance, replacement, and removal of, the
allocation and periodic re-allocation of available space (if any) for, and the
allocation of excess capacity (if any) on, any Lines now or hereafter installed
at the Property by Landlord, Tenant, or any other party (but Landlord shall
have no right to monitor or control the information transmitted through such
Lines). Such rights shall not be in limitation of other rights that may be
available to Landlord by Law or otherwise. If Landlord exercises any such
rights, Landlord may charge Tenant for the costs attributable to Tenant, or may
include those costs and all other costs in Operating Expenses under Article 25
(including without limitation, costs for acquiring and installing Lines and
risers to accommodate new Lines and spare Lines, any associated computerized
system and software for maintaining records of Line connections, and the fees
of any consulting engineers and other experts); provided, any capital
expenditures included in Operating Expenses hereunder shall be amortized
(together with reasonable finance charges) over the period of time prescribed
by Article 25.
Notwithstanding anything to the contrary contained in Article 13,
Landlord reserves the right to require that Tenant remove any or all Lines
installed by or for Tenant within or serving the Premises upon termination of
this Lease, provided Landlord notifies Tenant prior to or within thirty (30)
days following such termination. Any Lines not required to be removed pursuant
to this Article shall, at Landlord's option, become the property of Landlord
(without payment by Landlord). If Tenant fails to remove such Lines as
required by Landlord, or violates any other provision of this Article, Landlord
may, after twenty (20) days written notice to Tenant, remove such Lines or
remedy such other violation, at Tenant's expense (without limiting Landlord's
other remedies available under this Lease or applicable Law). Tenant shall
not, without prior written consent of Landlord in each instance, grant to any
third party a security interest or lien in or on the Lines, and any such
security interest or lien granted without Landlord's written consent shall be
null and void. Except to the extent arising from the intentional or negligent
acts of Landlord or Landlord's agents or employees, Landlord shall have no
liability for damages arising from, and Landlord does not warrant that the
Tenants use of any Lines will be free from the following (collectively called
"Line Problems"): (x) any eavesdropping or wire-tapping by unauthorized
parties, (y) any failure of any Lines to satisfy Tenant's requirements, or (z)
any shortages, failures, variations, interruptions, disconnections, loss or
damage caused by the installation, maintenance, replacement, use, or removal of
Lines by or for other tenants or occupants at the Property, by any failure of
the environmental conditions or the power supply for the Property to conform to
any requirements for the Lines or any associated equipment, or any other
problems associated with any Lines by any other cause. Under no circumstances
shall any Line Problems be deemed an actual or constructive eviction of Tenant,
render Landlord liable to Tenant for abatement of Rent, or relieve Tenant from
performance of Tenant's obligations under this Lease. Landlord in no event
shall be liable for damages by reason of loss of profits, business
interruption, or other consequential damage arising from any Line Problems.
ARTICLE 30
Hazardous Materials
Tenant shall not transport, use, store, maintain, generate,
manufacture, handle, dispose, release or discharge any "Hazardous Material" (as
defined below) upon or about the Property, or permit Tenants employees, agents,
contractors, and other occupants of the Premises to engage in such activities
upon or about the Property. However, the foregoing provisions shall not
inhibit the transportation to and from, and use, storage, maintenance, and
handling within, the Premises of substances customarily used in offices (or
such other business or activity expressly permitted to be undertaken in the
Premises under Article 6), provided: (a) such substances shall be used and
maintained only in such quantities as are reasonably necessary for such
permitted use of the Premises, strictly in accordance with applicable Law and
the manufacturer's instructions therefor, (b) such substance shall not be
disposed of, released, or discharged on the Property and shall be transported
to and from the Premises in compliance with all applicable Laws, and as
Landlord shall reasonably require, (c) if any applicable Law or Landlord's
trash removal contractor requires that any such substance be disposed of
separately from ordinary trash, Tenant shall make arrangements at Tenant's
expense for such disposal directly with a qualified and licensed disposal
company at a lawful disposal site (subject to scheduling and approval by
Landlord), and shall ensure that disposal occurs frequently enough to prevent
unnecessary storage of such substance in the Premises, and (d) any remaining
such substance shall be completely, properly, and lawfully removed from the
Property upon expiration or earlier termination of this Lease.
Tenant shall promptly notify Landlord of: (i) any enforcement,
cleanup, or other regulatory action taken or threatened by any governmental or
regulatory authority with respect to the presence of any Hazardous Material on
the Premises or the migration thereof from or to other property, (ii) any
demands or claims made or threatened by any party against Tenant or the
Premises relating to any loss or injury resulting from any Hazardous Material,
(iii) any
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release, discharge, or non-routine, improper, or unlawful disposal or
transportation of any Hazardous Material on or from the Premises, and (iv) any
matters where Tenant is required by Law to give notice to any governmental or
regulatory authority respecting any Hazardous Material on the Premises.
Landlord shall have the right (but not the obligation) to join and participate
as a party in any legal proceedings or actions affecting the Premises initiated
in connection with any environmental, health, or safety Law. At such times as
Landlord may reasonably request, Tenant shall provide Landlord with a written
list identifying any Hazardous Material then used, stored, or maintained upon
the Premises, the use and approximate quantity of each such material, a copy of
any material safety data sheet ("MSDS") issued by the manufacturer therefor,
written information concerning the removal, transportation, and disposal of
same, and such other information as Landlord may reasonably require or as may
be required by Law. The term "Hazardous Material" for purposes hereof shall
mean any chemical, substance, material, or waste or component thereof which is
now or hereafter listed, defined, or regulated as a hazardous or toxic
chemical, substance, material, or waste or component thereof by any federal,
state, or local governing or regulatory body having jurisdiction, or which
would trigger any employee or community "right-to-know" requirements adopted by
any such body, or for which any such body has adopted any requirements for the
preparation or distribution of an MSDS.
If any Hazardous Material is released, discharged, or disposed of by
Tenant or any other occupant of the Premises, or their employees, agents, or
contractors, on or about the Property in violation of the foregoing provisions,
Tenant shall immediately, properly, and in compliance with applicable Laws
clean up and remove the Hazardous Material from the Property and any other
affected property and clean or replace any affected personal property (whether
or not owned by Landlord), at Tenant's expense. Such clean up and removal work
shall be subject to Landlord's prior written approval (except in emergencies),
and shall include, without limitation, any testing, investigation, and the
preparation and implementation of any remedial action plan required by any
governmental body having jurisdiction or reasonably required by Landlord. If
Tenant shall fail to comply with the provisions of this Article within five (5)
days after written notice by Landlord, or such shorter time as may be required
by law or in order to minimize any hazard to Persons or property, Landlord may
(but shall not be obligated to) arrange for such compliance directly or as
Tenants agent through contractors or other parties selected by Landlord, at
Tenant's expense (without limiting Landlord's other remedies under this Lease
or applicable Law). If any Hazardous Material is released, discharged, or
disposed of on or about the Property and such release, discharge, or disposal
is not caused by Tenant or other occupants of the Premises, or their employees,
agents, or contractors, such release, discharge, or disposal shall be deemed
casualty damage under Article 10 to the extent that the Premises or common
areas serving the Premises are affected thereby; in such case, Landlord and
Tenant shall have the obligations and rights respecting such casualty damage
provided under Article 10.
ARTICLE 31
Miscellaneous
(A) Each of the terms and provisions of this Lease shall be
binding upon and inure to the benefit of the parties hereto, their respective
heirs, executors, administrators, guardians, custodians, successors, and
assigns, subject to the provisions of Article 21 respecting Transfers.
(B) Neither this Lease nor any memorandum of lease or short form
lease shall be recorded by Tenant.
(C) This Lease shall be construed in accordance with the Laws of
the state in which the Property is located.
(D) All obligations or rights of either party arising during or
attributable to the period ending upon expiration or earlier termination of
this Lease shall survive such expiration or earlier termination.
(E) Landlord agrees that, if Tenant timely pays the Rent and
performs the terms and provisions hereunder, and subject to all other terms and
provisions of this Lease, Tenant shall hold and enjoy the Premises during the
Term, free of lawful claims by any Person acting by or through Landlord.
(F) This Lease does not grant any legal rights to "light and air"
outside the Premises nor any particular view or cityscape visible from the
Premises.
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ARTICLE 32
OFFER
The submission and negotiation of this Lease shall not be deemed an
offer to enter the same by Landlord, but the solicitation of such an offer by
Tenant. Tenant agrees that its execution of this Lease constitutes a firm
offer to enter the same which may not be withdrawn for a period of 30 days
after delivery to Landlord (or such other period as may be expressly provided
in any other agreement signed by the parties). During such period and in
reliance on the foregoing, Landlord may, at Landlord's option (and shall, if
required by applicable Law), deposit any security deposit and Rent, and proceed
with any plans or specifications, and permit Tenant to enter the Premises, but
such acts shall not be deemed an acceptance of Tenant's offer to enter this
Lease, and such acceptance shall be evidenced only by Landlord signing and
delivering this Lease to Tenant.
ARTICLE 33
NOTICES
Except as expressly provided to the contrary in this Lease, every
notice or other communication to be given by either party to the other with
respect hereto or to the Premises or Property, shall be in writing and shall
not be effective for any purpose unless the same shall be served personally or
by national air courier service, or United States certified mail, return
receipt requested, postage prepaid, addressed, if to Tenant, at the address
first set forth in the Lease, until the Commencement Date, and thereafter to
such address and also to the Tenant at the Premises, and if to Landlord, at the
address at which the last payment of Rent was required to be made, or such
other address or addresses as Tenant and Landlord may from time to time
designate by notice given as above provided. Every notice or other
communication hereunder shall be deemed to have been given as of the third
business day following the date of such mailing (or as of any earlier date
evidenced by a receipt from such national air courier service, or United States
Postal Service) or immediately if personally delivered. Notices not sent in
accordance with the foregoing shall be of no force or effect until received by
the foregoing parties at such addresses required herein.
ARTICLE 34
REAL ESTATE BROKERS
Tenant represents that Tenant has dealt only with James P. Gartin,
McKinley Commercial, Inc. (whose commission, if any, shall be paid by Landlord
pursuant to separate agreement) as broker, agent, or finder in connection with
this Lease and agrees to indemnify and hold Landlord harmless from all damages,
judgments, liabilities, and expenses (including reasonable attorneys' fees)
arising from any claims or demands of any other broker, agent, or finder with
whom Tenant has dealt for any commission or fee alleged to be due in connection
with its participation in the procurement of Tenant or the negotiation with
Tenant of this Lease.
ARTICLE 35
SECURITY DEPOSIT
Tenant shall deposit with Landlord the amount of Two Thousand Eight
Hundred Eighty-Nine and 12/100 Dollars ($2,889.12) ("Security Deposit"), upon
Tenant's execution and submission of this Lease. The Security Deposit shall
serve as security for the prompt, full, and faithful performance by Tenant of
the terms and provisions of this Lease. In the event that Tenant is in Default
hereunder and fails to cure within any applicable time permitted under this
Lease, or in the event that Tenant owes any amounts to Landlord upon the
expiration of this Lease, Landlord may use or apply the whole or any part of
the Security Deposit for the payment of Tenant's obligations hereunder. The
use or application of the Security Deposit or any portion thereof shall not
prevent Landlord from exercising any other right or remedy provided hereunder
or under any Law and shall not be construed as liquidated damages. In the
event the Security Deposit is reduced by such use or application, Tenant shall
deposit with Landlord within ten (10) days after written notice, an amount
sufficient to restore the full amount of the Security Deposit. Landlord shall
not be required to keep the Security Deposit separate from Landlord's general
funds or pay interest on the Security Deposit. Any remaining portion of the
Security Deposit shall be returned to Tenant within sixty (60) days after
Tenant has vacated the Premises in accordance with Article 13. If the Premises
shall be expanded at
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any time, or if the Term shall be extended at an increased rate of Rent, the
Security Deposit shall thereupon be proportionately increased.
ARTICLE 36
AMERICANS WITH DISABILITY ACT ("ADA")
Notwithstanding anything contained in the Lease to the contrary,
Landlord represents that it is currently making good faith efforts to bring the
common areas into compliance with the requirements of Title III of the ADA.
Tenant represents and covenants that it shall conduct its occupancy and use of
the Premises in accordance with the ADA (including, but not limited to,
modifying its policies, practices, and procedures, and providing auxiliary aids
and services to disabled persons). If the Lease provides that the Tenant is to
complete certain alterations and improvements to the Premises in conjunction
with the Tenant taking occupancy of the Promises, Tenant agrees that all such
work shall comply with the ADA. Furthermore, Tenant covenants and agrees that
any and all future alterations or improvements made by Tenant to the Premises
shall comply with the ADA.
ARTICLE 37
ENTIRE AGREEMENT
This Lease, together with Rider One and Exhibit A (WHICH COLLECTIVELY
ARE HEREBY INCORPORATED WHERE REFERRED TO HEREIN AND MADE A PART HEREOF AS
THOUGH FULLY SET FORTH), contains all the terms and provisions between Landlord
and Tenant relating to the matters set forth herein and no prior or
contemporaneous agreement or understanding pertaining to the same shall be of
any force or effect, except any such contemporaneous agreement specifically
referring to and modifying this Lease, signed by both parties. Without
limitation as to the generality of the foregoing, Tenant hereby acknowledges
and agrees that Landlord's leasing agents and field personnel are only
authorized to show the Premises and negotiate terms and conditions for leases
subject to Landlord's final approval, and are not authorized to make any
agreements, representations, understandings, or obligations, binding upon
Landlord, respecting the condition of the Premises or Property, suitability of
the same for Tenant's business, or any other matter, and no such agreements,
representations, understandings, or obligations not expressly contained herein
or in such contemporaneous agreement shall be of any force or effect. Neither
this Lease, nor any Riders or Exhibits referred to above may be modified,
except in writing signed by both parties.
LANDLORD:
KMD FOUNDATION
By:
-------------------------------- ----------------------------------
Its:
-------------------------------- ----------------------------------
TENANT:
FIRST VIRTUAL HOLDINGS
BY:
----------------------------------
By:
-------------------------------- ----------------------------------
Its:
-------------------------------- ----------------------------------
Name Typed: Lee Stein
Title: President
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any time, or if the Term shall be extended at an increased rate of Rent, the
Security Deposit shall thereupon be proportionately increased.
ARTICLE 36
AMERICANS WITH DISABILITY ACT ("ADA")
Notwithstanding anything contained in the Lease to the contrary,
Landlord represents that it is currently making good faith efforts to bring the
common areas into compliance with the requirements of Title III of the ADA.
Tenant represents and covenants that it shall conduct its occupancy and use of
the Premises in accordance with the ADA (including, but not limited to,
modifying its policies, practices, and procedures, and providing auxiliary aids
and services to disabled persons). If the Lease provides that the Tenant is to
complete certain alterations and improvements to the Premises in conjunction
with the Tenant taking occupancy of the Premises, Tenant agrees that all such
work shall comply with the ADA. Furthermore, Tenant covenants and agrees that
any and all future alterations or improvements made by Tenant to the Premises
shall comply with the ADA.
ARTICLE 37
ENTIRE AGREEMENT
This Lease, together with Rider One and Exhibit A (WHICH COLLECTIVELY
ARE HEREBY INCORPORATED WHERE REFERRED TO HEREIN AND MADE A PART HEREOF AS
THOUGH FULLY SET FORTH), contains all the terms and provisions between Landlord
and Tenant relating to the matters set forth herein and no prior or
contemporaneous agreement or understanding pertaining to the same shall be of
any force or effect, except any such contemporaneous agreement specifically
referring to and modifying this Lease, signed by both parties. Without
limitation as to the generality of the foregoing, Tenant hereby acknowledges and
agrees that Landlord's leasing agents and field personnel are only authorized to
show the Premises and negotiate terms and conditions for leases subject to
Landlord's final approval, and are not authorized to make any agreements,
representations, understandings, or obligations, binding upon Landlord,
respecting the condition of the Premises or Property, suitability of the same
for Tenant's business, or any other matter, and no such agreements,
representations, understandings, or obligations not expressly contained herein
or in such contemporaneous agreement shall be of any force or effect. Neither
this Lease, nor any Riders or Exhibits referred to above may be modified, except
in writing signed by both parties.
LANDLORD:
KMD FOUNDATION
By:
--------------------------------- -----------------------------------
Its:
--------------------------------- -----------------------------------
TENANT:
FIRST VIRTUAL HOLDINGS
By: /s/ [SIG]
-----------------------------------
/s/ [SIG] By: LEE STEIN
--------------------------------- -----------------------------------
/s/ [SIG] Its: PRESIDENT
--------------------------------- -----------------------------------
Name Typed: Lee Stein
Title: President
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CERTIFICATE
(If Tenant is a Corporation)
I, Richard C. DeGolia, Assistant Secretary of First Virtual Holdings,
Tenant, hereby certify that the officer(s) executing the foregoing Lease on
behalf of Tenant was/were duly authorized to act in his/their capacities as
President and _______________________, and his/their action(s) are the action
of Tenant.
(Corporate Seal) /s/ RICHARD C. DEGOLIA
-------------------------
Secretary
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EXHIBIT A
(Floor plan(s) showing Premises cross-hatched)
[FLOOR PLAN]
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<PAGE> 26
GUARANTY
This section intentionally left blank.
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RIDER ONE
RULES AND REGULATIONS
(1) Any sign, lettering, picture, notice, or advertisement installed
within the Premises that is visible from the public corridors within
the Building shall be installed in such manner and be of such
character and style as Landlord shall approve in writing. No sign,
lettering, picture, notice, or advertisement shall be placed on any
outside window or in a position to be visible from outside the
Building, except as specifically approved by Landlord. No window
treatments visible from the public corridors or the outside of the
Building shall be made without the prior written approval of the
Landlord;
(2) Sidewalks, entrances, passages, courts, corridors, halls, elevators,
and stairways in and about the Premises shall not be obstructed nor
shall objects be placed against glass partitions, doors, or windows
that would be unsightly from the Building's corridors or from the
exterior of the Building;
(3) No animals, pets, bicycles, or other vehicles shall be brought or
permitted to be in the Building or the Premises;
(4) Room-to-room canvasses to solicit business from other tenants of the
Building are not permitted;
(5) Tenant shall not waste electricity, water, or air conditioning and
shall cooperate fully with Landlord to assure the most effective and
efficient operation of the Building's heating and air conditioning
systems;
(6) All corridor doors shall remain closed at all times;
(7) No locks or similar devices shall be attached to any door except by
Landlord, and Landlord shall have the right to retain a key to all
such locks;
(8) Tenant assumes full responsibility of protecting the Premises from
theft, robbery, and pilferage. Except during Tenant's normal business
hours, Tenant shall keep all doors to the Premises locked;
(9) Landlord shall have the right to require Tenant and its employees to
produce Tenant identification cards (if issued by Landlord) as a
condition to entering the Premises or for other purposes affecting the
security of the Building;
(10) All cleaning, repairing, decorating, painting, construction or other
services and work in and about the Premises shall be done only by
personnel hired by Tenant, subject to Landlord's reasonable advance
approval;
(11) Safes, furniture, equipment, machines, and other large or bulky
articles shall be brought to the Building and into and out of the
Premises at such times and in such manner as the Landlord shall direct
(including the designation of elevator and the location of such
articles) and at Tenant's sole risk and cost. Prior to Tenant's
removal of such articles from the Building, Tenant shall obtain
written authorization of the Manager of the Building and shall present
such authorization to a designated employee of Landlord;
(12) Tenant shall not in any manner deface or damage the building;
(13) Inflammables such as gasoline, kerosene, naphtha, and benzene, or
explosives or any other articles of an intrinsically dangerous nature,
are not permitted in the Building or the Premises;
(14) Landlord's consent to the installation of any electrical equipment
shall not relieve Tenant from the obligation not to use more
electricity than the safe capacity available to the Premises as
provided in this Lease;
(15) To the extent permitted by law, Tenant shall prohibit picketing or
other union activity involving its employees in the Building, except
in those locations and subject to time and other limitations as to
which Landlord may give prior written consent;
(16) Tenant shall not enter into or upon the roof or those portions of the
Building containing any storage, heating, ventilation, air-
conditioning, mechanical, or elevator machinery housing areas;
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(17) Tenant shall not distribute literature, flyers, handouts, or pamphlets
of any type in any of the common areas of the Building, without the
prior written consent of Landlord;
(18) Tenant shall not cook, otherwise prepare, or sell any food or
beverages in or from the Premises or sell or serve any alcoholic
beverages in or from the Premises;
(19) Tenant shall not permit the use of any apparatus for sound production
or transmission in such manner that the sound so transmitted or
produced shall be audible or vibrations therefrom shall be detectable
beyond the Premises;
(20) Tenant shall keep all electrical and mechanical apparatus free of
vibration, noise, and air waves that may be transmitted beyond the
Premises;
(21) Tenant shall not permit objectionable odors or vapors to emanate from
the Premises;
(22) Tenant shall not place a load upon any floor of the Premises exceeding
the floor load capacity for which such floor was designed or allowed
by law to carry;
(23) No floor covering shall be affixed to any floor in the Premises by
means of glue or other adhesive without Landlord's prior written
consent;
(24) No marking, painting, drilling, boring, cutting, or defacing of the
Premises or the Building will be permitted without the prior written
consent of Landlord and as it may direct; and
(25) Landlord reserves the right to change, add, or modify these rules and
regulations as Landlord deems necessary or advisable.
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