EXHIBIT 10.2
THIS LEASE, made and entered into as of the Date of Lease, by and between
NORTH VALLEY TECH LLC, a Delaware limited liability company, hereinafter
referred to as "Landlord", and TANGIBLEDATA, INC., a Colorado corporation,
hereinafter referred to as "Tenant".
W I T N E S S E T H:
In consideration of the covenants and agreements hereinafter set forth to
be performed by the parties hereto, it is agreed by and between Landlord and
Tenant as follows:
1. Definitions and Basic Terms. The following terms, whenever set forth
in initial capitals in this Lease, shall have the meanings set forth
hereinbelow, except as otherwise expressly provided therein, or unless the
context otherwise requires:
(a) Date of Lease: The date on which Landlord executes
the Lease, as set forth on the
signature page hereof.
(b) Landlord's Mailing Address: 000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
(c) Tenant's Mailing Address: TangibleData, Inc.
0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
(d) Building: North Valley Tech Center
000 X. 00xx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
(e) Premises: Suite Number C-1 located on the first
(1st) floor of the Building, containing
approximately 7,679 usable square feet
and 8,370 rentable square feet ("RSF")
(which rentable square footage includes
a proportionate share of the Common
Areas and Facilities based on RSF), as
attached or outlined on the floor plan
attached hereto and made a part hereof
as Exhibit A.
(f) Initial Term: The period commencing on Date of Lease
and terminating on the last day of the
calendar month in which the 10th
anniversary of the Rent Commencement
Date occurs.
(g) Term: The Initial Term and any extensions
thereof thereafter in effect.
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(h) Commencement Date: Date of Lease.
(i) Rent Commencement Date The date that is the earlier of: (i)
date that Tenant first occupies the
Premises for the conduct of the
Permitted Use (rather than for
construction of Tenant Improvements),
or (ii) November 1, 2000.
(j) Termination Date: The last day of the calendar month in
which the 10th anniversary of the Rent
Commencement Date occurs.
(k) Base Rent: The amounts, for the periods, set forth
below, payable in monthly installments
in advance:
Period Annual Monthly Rate Per
(Years) Base Rent Installment Sq. Ft.
1 $150,660.00 $12,555.00 $18.00
2 154,426.50 12,868.88 18.45
3 158,276.70 13,189.13 18.91
4 162,210.60 13,517.55 19.38
5 166,311.90 13,859.33 19.87
6-7 167,400.00 13,950.00 20.00
8-10 171,585.00 14,298.75 20.50
(l) Rent: The Base Rent or Adjusted Base Rent, as
the case may be, and all other charges
or sums payable hereunder.
(m) Security Deposit: Thirty Seven Thousand Six Hundred Sixty
Five and 00/100 Dollars ($37,665.00) or
other security pursuant to paragraph
55.
(n) Tenant's Share: The percentage which the RSF of the
Premises is of the total RSF of the
Building as of the end of the calendar
year, which as of the end of the first
calendar year is agreed to be 1.754%.
Adjustments to the RSF of the Premises
or the Building will result in a
proportionate adjustment to the
Percentage of Tenant's Share.
(o) Permitted Use: General office purposes and internet
data communications and data
duplication services including usage of
multiple servers, computers and
duplication equipment; provided that
the Premises shall not be used as a
"call center" providing high-volume
inbound toll-free customer service and
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technical support services on behalf of
third party customers, or entities
unrelated to such third party
customers, or entities requesting such
services, or (unless Tenant utilizes
fewer than 199 telephone workstations
in the Premises) providing for third
party customers or entities, telephonic
outbound operations relating primarily
to database development, marketing
research, third party telecommuni-
cations carrier call verification
services, or the sale of telecommuni-
cations services and software products,
services and support.
(p) Base Year: The calendar year commencing January 1,
2000, and ending December 31, 2000.
(q) Comparison Year: The first full calendar year following
the Base Year and each subsequent full
calendar year of the Term.
(r) Operating Expenses: All expenses incurred during the Base
Year or the Comparison Year, in the
operation, improvement, repair,
replacement and maintenance of the
Building including, without limitation,
(i) the cost of utilities, heat,
air-conditioning, insurance, labor,
cleaning materials and supplies, and
security, if any; (ii) expenses for
management, maintenance of elevators
and mechanical systems, rubbish
removal, window washing and other
services, and roof repairs; (iii) the
operation, improvement, repair,
replacement and maintenance of the
Building Common Areas and Facilities
including all surfaces, floor and wall
coverings, decorative items, and window
coverings, lighting facilities and
exteriors; and (iv) the cost of any
operation, improvement, repair,
replacement or maintenance which does
not materially add to the value of the
Building nor appreciably prolongs its
life, but merely keeps the Building in
ordinarily efficient operating
condition, except that if such
improvement, repair or replacement
results in a substantial cost, labor or
energy saving, such cost shall be
deemed an Operating Expense. To the
extent Landlord elects to do so, said
costs may be amortized over a
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reasonable number of years, with an
appropriate finance charge, all of
which shall be considered an Operating
Expense. Landlord estimates that
during the Base Year, the amount
included in the Rent for Operating
Expenses will be $4.03 per RSF.
(s) Taxes: Taxes and assessments, special or
otherwise, (including all expenses
incurred in connection with disputing
the amounts thereof) and sewer charges,
if any, levied or assessed upon or with
respect to the Building and the land
upon which it is located, or upon or
against the rent payable hereunder for
the privilege of leasing real property.
Landlord estimates that during the
Base Year, the amount included in the
Rent for Taxes will be $.72 per RSF.
(t) Common Areas and Facilities: The common areas and facilities of the
Building including, but not limited to,
lobbies, vestibules, stairways,
corridors, passenger and freight
elevators, truck docks, parking areas,
drives, aisles, landscaped areas,
planters, and access roads.
(u) Electric service charge: Not Applicable.
(v) Broker: Landlord: CB Xxxxxxx Xxxxx, Inc.
Tenant: Xxxxx & Xxxxx Company
(w) Guarantor: None.
2. Premises; Term.
(a) Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Premises, for the Term and upon the conditions, covenants, and
agreements hereinafter set forth.
(b) Subject to paragraph 17 hereof Tenant shall have a nonexclusive
right to use the Common Areas and Facilities of the Building which lead to and
from the Premises and common restrooms shared with other tenants in the
Building. Nothing herein contained shall be construed as a demise to Tenant
of the roof, exterior walls of the Building, space outside the Premises, air
rights above or outside of the Premises, or of the Common Areas and
Facilities.
(c) Subject to the rights of occupants of the Building and other
parties, Landlord hereby grants to Tenant a non-exclusive right and license,
in common with Landlord and its licensees and permittees, to use portions of
the Building during the Term for the specific uses described below, and to use
existing, available risers and conduit in the Building, and to install
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additional conduit, pipes and related facilities in the Building, for the
purposes of connecting the Premises with the area of the Building leased to
Inflow, Inc., on the Date of the Lease, on the terms, conditions and
provisions that are set forth herein below and are otherwise contained in this
Lease, except that (i) Base Rent shall not be allocable to these areas, (ii)
Tenant's Share shall not include any of these areas, and (iii) Tenant shall
not be obligated to pay Operating Expenses and Taxes attributable to any of
these areas, unless in any case such areas are within the Premises
(collectively, the "Licensed Areas"); and in all cases subject to and in
accordance with applicable laws and the provisions of this Lease, in such
manner as will not disturb or violate the rights of other occupants of the
Building and/or Landlord's permittees or affect in any manner the validity of
any roof or other warranty in effect for the benefit of Landlord, and in each
case subject to and in accordance with Landlord's prior written approval
thereof (which shall include approval of the design, engineering, location,
methods of attachment, and construction thereof); such approval not to be
unreasonably withheld or delayed. All such conduit, pipes, wires, cables,
installations and facilities shall be installed, maintained, repaired,
replaced and insured by Tenant at its sole cost and expense, any such conduit,
pipes, wires, cables, installations and facilities located in the Premises
shall be removed prior to the expiration or earlier termination of the Term,
by Tenant at its sole cost and expense, or at Landlord's election, by Landlord
at Tenant's sole cost and expense with the cost thereof being immediately due
and payable by Tenant to Landlord, it being understood that Tenant shall have
the right, but not the obligation, to remove such conduit, pipes, wires,
cables, installations and facilities within the Licensed Areas.
Notwithstanding the foregoing, Landlord shall have the right, upon written
notice to Tenant, given no later than thirty (30) days prior to the expiration
or earlier termination of the Term, to require Tenant to abandon and leave in
place, without additional payment to Tenant or credit against rent, any and
all telecommunications wiring and related infrastructure or selected
components thereof, whether located in the Premises or Licensed Areas.
Landlord agrees to use reasonable efforts to assist Tenant in
securing the cooperation of other occupants of the Building and/or Landlord's
permittees relative to the exercise of the rights set forth in clauses (i) and
(ii) above, but shall not be obligated to incur any cost or liability in
connection therewith unless Tenant agrees to reimburse or otherwise protect
Landlord against such cost or liability in a manner that is reasonably
acceptable to Landlord.
3. Possession. Landlord shall not be subject to liability for failure
to deliver possession on the Commencement Date, and such failure shall not
affect the validity of this Lease nor the obligations of Tenant hereunder nor
extend the Term hereof. However, unless timely possession of the Premises to
Tenant is rendered impossible due to delays occasioned by Tenant, Rent shall
not accrue until possession of the Premises is tendered to Tenant.
4. Rent. Tenant shall pay Landlord the Rent, without deduction or
offset, in advance, on the first day of each calendar month during the Term,
at Landlord's Mailing Address, or at such other place as Landlord may from
time to time designate in writing. The first month's Base Rent shall be paid
upon execution hereof. The installment of Rent payable for any partial
calendar month shall be pro-rated. Checks delivered in payment of Rent shall
not constitute payment until paid by the drawee. The covenant to pay Rent
hereunder is independent of any other covenant contained in this Lease.
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5. Rent Escalation.
(a) There shall be added to the Base Rent for each Comparison Year,
Tenant's Share of the net aggregate increase, if any, in the amount of
Operating Expenses and Taxes for the Comparison Year over those for the Base
Year. The Base Rent as so increased is herein referred to as the "Adjusted
Base Rent". The Adjusted Base Rent for any Comparison Year shall serve as the
basis for an estimate of Adjusted Base Rent due for the next Comparison Year
until the computation for that Comparison Year has been made. The difference
between the actual increase in Operating Expenses and Taxes for any Comparison
Year and the estimated Adjusted Base Rent for such Comparison Year shall be
promptly paid by Tenant upon Tenant's receipt of a statement of such
adjustment. After the Adjusted Base Rent has been established, it shall
retroactively become payable from the beginning of the calendar year. The
remaining monthly Rent installments shall be adjusted accordingly. Amounts
due for any partial year of the Term in accordance with the foregoing shall be
prorated on a calendar year basis.
With respect to Taxes, the statement of adjustment shall reflect, as
of the date prepared, Taxes incurred for the Base Year and for the Comparison
Year, whether the same shall be definitive or subject to subsequent revision.
Should Taxes for the Base Year or any Comparison Year be subsequently reduced
or increased, Landlord shall recompute the Taxes using the amount of the Taxes
for the Base Year as so reduced or increased for all Comparison Years prior to
the Comparison Year in which the reduction or increase is granted. All
changes to Adjusted Base Rent due from Tenant by reason thereof shall be
payable within thirty (30) days after Tenant's receipt of the statement
therefor.
(b) Landlord shall, during Landlord's regular business hours, make
available to Tenant records, in reasonable detail, of Operating Expenses and
Taxes for the period covered by such statement or statements, for a period of
sixty (60) days after the mailing of such statements to Tenant. If Tenant
shall not dispute any item in any such statement within thirty (30) days
following Tenant's receipt of such statement, Tenant shall be deemed to have
waived any objection thereto.
6. Security Deposit.
(a) Tenant has deposited with Landlord the Security Deposit, the
receipt of which (if by check subject to collection) is hereby acknowledged.
The Security Deposit shall be held by Landlord, without liability for interest
thereon, as security for full performance due of Tenant under this Lease.
Upon expiration of the Term and written request therefor, the Security Deposit
shall be returned to Tenant, unless Landlord has reasonable cause to withhold
all or a portion thereof.
(b) If any Rent shall be overdue and unpaid, or should Landlord
have made payments on behalf of Tenant, or should Tenant fail to perform any
of the covenants or agreements of this Lease, then Landlord may, without
prejudice to any other remedy which Landlord may have, apply all or a portion
of the Security Deposit toward the payment of Rent, or toward any loss, damage
or expense sustained by Landlord resulting therefrom. In such event Tenant
shall forthwith restore the Security Deposit to the original sum.
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(c) In the event bankruptcy, insolvency, reorganization or other
creditor-debtor proceedings shall be instituted by or against Tenant, its
successors or assigns, or any guarantor of Tenant hereunder, the Security
Deposit shall be deemed to be applied first to the payment of Rent due to
Landlord for all periods prior to the institution of such proceedings. The
balance of the Security Deposit, if any, may be retained by Landlord in
partial satisfaction of Landlord's damages.
(d) In the event that Landlord's interest in the Premises is sold,
transferred or assigned, Landlord shall deliver the Security Deposit to the
acquirer of such interest. Thereupon, Landlord shall be discharged and
released from all further liability with respect to the Security Deposit as
and to the extent the Security Deposit has been so delivered and Tenant agrees
to look solely to the new landlord for the return of the Security Deposit.
This provision shall also apply to any subsequent transferees. No holder of a
mortgage or deed of trust or lessor under a ground or underlying lease to
which this Lease is or may be superior or subordinate shall be held
responsible in connection with the Security Deposit, unless it has received
the Security Deposit.
7. Personal Property and Business Taxes. Tenant shall pay, prior to
delinquency, all taxes assessed against or levied upon fixtures and all
property of Tenant located in the Premises. When possible, Tenant shall cause
said fixtures and property to be assessed and billed separately from the real
property of which the Premises form a part. In the event any or all of
Tenant's fixtures and property shall be assessed and taxed against Landlord,
Tenant shall pay said taxes within ten (10) days after receipt of a written
statement setting forth the amount of taxes applicable to Tenant's fixtures
and property. Tenant shall pay, prior to delinquency, all license fees and
taxes imposed upon the business of Tenant.
8. Use. Absent the prior written consent of Landlord, Tenant shall not
use the Premises other than for the Permitted Use. Tenant shall not use the
Premises in violation of any law or of the certificate of occupancy issued for
the Building. Within five (5) days' of receipt of a notice from Landlord,
Tenant shall discontinue any use of the Premises which is declared unlawful or
which imposes any duty upon Landlord. Tenant shall not permit anything to be
done which will invalidate or increase the cost of insurance covering the
Building or property located therein. Tenant shall, upon demand, reimburse
Landlord for any additional premium charged by reason of Tenant's failure to
comply with the provisions hereof.
9. Alterations and Improvements. Landlord shall not be required to
alter or improve the Premises or the Building. Tenant accepts the Premises in
an "as is" condition and agrees to perform alterations or improvements to the
Premises in accordance with plans and specifications prepared by a certified
architect, all at Tenant's sole cost and expense, subject to Landlord's prior
approval, and in accordance with all applicable laws, ordinances, rules and
regulations. Prior to commencing any alteration or improvement to the
Premises, Tenant shall forward to Landlord three (3) sets of blueprints and
one (1) set of sepias of Tenant's proposed work. Landlord may in its sole
discretion impose requirements as to the manner of performance of any work by
or for Tenant in the Premises. All work shall be performed in a good and
workmanlike manner using quality material and shall be promptly completed,
lien-free, by a contractor who is insured, bonded and has been pre-approved by
Landlord. Prior to the commencement of such work, Tenant agrees to deliver to
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Landlord a Certificate of Worker's Compensation insurance in statutory limits
from each contractor and subcontractor as well as evidence of automobile
insurance, including "non-owned" automobiles, covering personal injury, bodily
injury and property damage, including death resulting therefrom, in the
combined single limit amount of $1,000,000.00 and comprehensive general
liability in the combined single limit amount of $1,000,000.00, with Landlord
listed as an additional named insured.
After the date hereof and prior to the Rent Commencement Date, Tenant
shall be permitted access to the Premises for the sole purpose of completing
Tenant's Work (as hereinafter defined). Such access shall be subject to all
of the terms and conditions of this Lease excluding the payment of Rent.
Landlord shall reimburse Tenant for the cost of renovation or
construction work performed by Tenant (excluding all consultation and design
fees), in the amount and manner hereinafter provided. The amount of such
reimbursement being hereinafter referred to as "Tenant's Allowance". It is
understood and agreed that Tenant's Allowance shall cover the cost of the
construction to be completed by Tenant on the Premises and Licensed Areas,
hereinafter referred to as "Tenant's Work", as delineated in the plans and
specifications approved by Landlord.
Tenant's Allowance shall not exceed (i) a total amount of Two and 00/100
Dollars ($2.00) per RSF in connection with Tenant's Work in the Licensed
Areas, and (ii) a total amount of Ten and 00/100 Dollars ($10.00) per RSF in
connection with Tenant's Work in the Premises, and, in no event shall Tenant's
Allowance exceed the actual cost of construction of Tenant's Work as evidenced
by the lowest competitive bid therefore, whichever is less.
Landlord shall pay Tenant's Allowance to Tenant after the thirty seventh
(37th) month of the Term upon satisfaction of the following conditions:
(a) That Tenant is not in default under any of the conditions,
covenants, or agreements of this Lease;
(b) That Tenant's right and option to terminate this Lease pursuant
to paragraph 55 hereof or otherwise has expired, terminated or is otherwise
null and void and of no further force and effect, and (c)
(c) That Tenant's Work has been completed and that Tenant's
architect has so certified to Landlord, subject, however, to Landlord's
verification that Tenant's Work has been completed;
(d) That Tenant has furnished to Landlord Tenant's affidavit that
Tenant's Work has been completed to its satisfaction and in strict accordance
with the above-referenced plans and specifications, which affidavit may be
relied upon by Landlord; and
(e) That Tenant has furnished to Landlord the affidavit of the
general contractor performing Tenant's Work to the effect that Tenant's Work
has been fully completed in accordance with the plans and specifications
approved by Landlord and that all subcontractors, laborers and materials for
Tenant's Work have been paid in full, and paid bills or paid invoices and
such other evidence of same is forwarded to Landlord;
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Tenant agrees that it will provide a description of all work invoices and
evidence of payment thereof, all in sufficient detail.
Tenant shall provide Landlord with properly completed lien waivers
executed by Tenant's general contractor, and as to labor and materials valued
in excess of $5,000.00, every subcontractor and laborer participating in
Tenant's work, and every material supplier delivering materials directly to
the Premises. Tenant's failure to provide said lien waivers within thirty
(30) days after the completion of renovation work in the Premises may be
deemed a material default of this Lease. Tenant shall also submit a
Certificate of Occupancy to Landlord upon demand therefor.
10. Ownership of Improvements.
(a) All alterations and improvements in the Premises and the
Licensed Areas made by either party (except to Tenant's personal property,
furniture and furnishings, signs and trade fixtures) shall become the property
of Landlord and shall be surrendered with the Premises as provided for herein.
(b) Tenant shall not encumber or assign its trade fixtures or other
property in the Premises without the prior written consent of Landlord, which
shall not be unreasonably withheld or delayed. Any consent hereunder shall
apply solely to the transaction thereby authorized. Any violation of the
terms of this provision may be deemed a Default of this Lease.
Notwithstanding the foregoing, in the event Tenant obtains financing to be
secured by Tenant's personal property, furniture, furnishings and fixtures
located in the Premises, Landlord agrees to subordinate any and all interest
which Landlord may at any time have therein to such financing and to the
extent provided for, in the Form of Landlord's Waiver and Consent attached
hereto and made a part hereof as Exhibit C.
11. Repairs.
(a) Landlord's obligation to make repairs to the Premises shall
pertain only to the structural portions of the floor, ceiling, sprinkler
system and perimeter walls, unless the necessity for such repairs shall have
been occasioned by Tenant or any permitted subtenant or licensee of Tenant, or
their respective employees, agents, contractors or any person, firm or
corporation acting on its behalf, in which event Tenant agrees to make such
repairs at Tenant's sole cost and expense. Except in cases of an emergency,
Landlord shall not be required to commence any repair until after receipt of
written notice from Tenant. Tenant agrees to provide notice to Landlord of
any damage or condition in need of repair of which Tenant is aware. Tenant
shall allow Landlord reasonable time in which to commence and complete such
repairs. Landlord shall use reasonable efforts to make such repairs with a
minimum of inconvenience, disruption, or loss of business to Tenant.
(b) Except as provided in subparagraph (a) of this paragraph,
Tenant agrees to keep and maintain the Premises, the fixtures and equipment
therein and the appurtenances thereto in good repair and condition at Tenant's
own cost and expense, and to make all necessary repairs and replacements
thereto. Tenant shall keep and maintain the Premises in a first-class
condition throughout the Term. Tenant shall replace all damaged glass with
glass of equal quality. In the case of damage or destruction by insurable
casualty or by eminent domain, the obligations of Landlord and Tenant shall be
controlled as hereinafter provided.
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(c) Following initial construction of the Premises Tenant may, at
its own cost, paint, paper or change floor coverings, or otherwise alter the
Premises, provided that (i) the structural integrity or value of the Building
shall not be adversely affected; (ii) the cost of such alteration does not
exceed Five Dollars ($5.00) per square foot; and (iii) the sprinkler system,
if any, is not thereby affected. In all other instances, Tenant shall secure
prior written approval of Landlord. Tenant shall submit to Landlord plans and
specifications for such proposed work, together with the name of the
contractor and a statement of the estimated cost thereof. Prior to starting
such work, Tenant agrees to deliver to Landlord a certificate of worker's
compensation insurance in statutory limits from Tenant's contractor as well as
evidence of insurance coverages to be maintained by Tenant hereunder. Such
work shall be promptly completed in accordance with such approved plans and
specifications, applicable laws and ordinances, and rules and requirements of
Landlord's insurance carriers, subject to the terms of Tenant's indemnity set
forth under paragraph 16 hereof and Tenant's obligation to insure such
liability under paragraph 28 hereof.
(d) The term "repairs" shall include repairs, replacements,
renewals, alterations, additions, improvements and betterments.
(e) If Tenant shall fail or refuse to make repairs as set forth
above, or if Landlord is required to make any repairs because of any act or
omission of Tenant (or Tenant's permitted subtenant, business invitee or
licensee, or their respective employees, agents or contractors, or any person,
firm or corporation acting on Tenant's behalf), Landlord shall have the right,
but not the obligation, upon ten (10) days' notice (except in case of an
emergency), to enter upon the Premises to make such repairs, and add the cost
thereof to the next installment of Rent due.
12. Building Services. Landlord shall furnish to the Premises,
generally during the hours of 6:00 AM through 7:00 PM Monday through Saturday,
excluding usual holidays, reasonable amounts of air conditioning and heat, and
shall furnish at all times elevator service, electric current for normal
lighting and office machines, water for lavatory and drinking purposes, and
janitorial and maintenance services. If Tenant requires air conditioning or
heat prior to 6:00 AM or after 7:00 PM Monday through Saturday, or at any time
on a Sunday or holiday, it will be billed at the standard rate established by
Landlord for additional air conditioning or heat.
Tenant shall comply with all rules and regulations which Landlord
establishes for the protection of Building services. Landlord shall have free
access to all mechanical installations of Landlord at all times. Where
failure to furnish any of said utilities or services is caused by strikes,
accidents, or conditions beyond the control of Landlord, Landlord's failure
shall neither be deemed an eviction or disturbance of Tenant's use or
possession of the Premises, nor shall such failure render Landlord liable to
Tenant, or relieve Tenant of its Lease obligations.
Tenant agrees not to use any apparatus or device which may increase the
amount of such services usually furnished to the Premises without the prior
written consent of Landlord. Landlord reserves the right to charge for such
increased services.
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13. Electrical Current. Electrical service is provided by Landlord on a
submetering basis. Said electrical service shall provide a design load of
600 amps at 480/277 volts, three phase to the Premises throughout the Term.
Tenant shall pay monthly to Landlord, as additional rental, the actual cost of
metered, monthly consumption of electrical service used in the Premises,
calculated at the rate chargeable to Tenant by the local utility company.
Where Paragraph 1(u) of this Lease designates a flat rate fee amount for
electrical service, electrical service is provided by Landlord on a flat rate
fee basis, and Tenant shall pay monthly to Landlord, as additional rental, the
amount set forth thereat as and for Tenant's cost for electric service to the
Premises.
Landlord may change the method of furnishing electric current upon at
least thirty (30) days notice. Thereafter Tenant shall, at Tenant's expense,
make such alternative arrangements as may be approved by Landlord in writing.
Base Rent may be adjusted to equitably reflect the inclusion or deletion of
electric service hereunder.
Tenant covenants and agrees that its use of electric current shall never
exceed the capacity of existing feeders to the Premises, the Building, the
risers or wiring installations. Tenant shall make no alteration to electrical
service equipment in the Premises without obtaining the prior written consent
of Landlord in each instance. Except with Landlord's prior written consent,
Tenant may operate only reasonable quantities of standard household and office
equipment at the Premises. In the event Tenant installs or operates any other
or excessive electrical equipment without Landlord's prior written consent,
Tenant shall pay to Landlord, as and for liquidated damages, a sum equal to
the estimated additional cost to Landlord for the operation of such equipment.
In the event Tenant requests electric current in excess of the existing
electrical system capacity of the Building, and in the event Landlord consents
to any such increase, all work to increase such current shall be done at
Tenant's sole cost and expense, and the Base Rent shall be equitably adjusted
to reflect the additional cost to Landlord. Tenant agrees to promptly execute
an Amendment and Supplement to Lease to reflect any change in the Base Rent
resulting from a change in the method or quantity of electric service used at
the Premises.
Landlord shall not be deemed guilty of an eviction or disturbance of
Tenant's use and possession of the Premises nor shall Landlord be liable for
the failure of any supply in the electric current unless caused by Landlord's
sole gross negligence.
Notwithstanding anything to the contrary, Tenant may operate business
electrical equipment as necessary for the Permitted Use as long as Tenant does
not interfere with electrical service to other tenants of the Building.
14. Access. Upon 24 hour notice to Tenant (where practicable to provide
such notice), Landlord and its agents shall have the right to enter the
Premises at all reasonable times for the purpose of inspecting the Premises,
showing the Premises to prospective mortgagees or purchasers of the Building,
and making alterations, repairs, improvements or additions to the Premises or
to the Building for any purpose relating to the safety, protection or
preservation of the Premises, the Building or Landlord's interest. During the
six (6) months prior to the end of the Term, Landlord may show the Premises to
prospective tenants. If Tenant's representative shall not be present when
such an entry by Landlord is necessary or permitted hereunder, Landlord may
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enter by means of a master key or may, after reasonable attempts to notify
Tenant, enter forcibly without liability to Tenant, except for any failure to
exercise due care for Tenant's property. Landlord shall neither be deemed
guilty of an eviction or disturbance of Tenant's use and possession of the
Premises nor shall Landlord be liable to Tenant in any manner on account of
any entry permitted hereunder.
15. Inability to Perform. This Lease and the obligations of Tenant
hereunder shall not be affected because Landlord is unable to fulfill any of
its obligations hereunder or is delayed in doing so, if such inability or
delay is caused by reason of any cause beyond the control of Landlord.
16. Indemnification. Tenant shall defend, indemnify and hold Landlord
harmless, from any loss, cost, damage, expense (including reasonable attorney
fees) and liability of any nature arising out of the use or occupancy of the
Premises by Tenant, its agents and employees in or on the Premises, and the
approaches thereto, or arising or alleged to have arisen out of the acts or
omissions of Tenant's officers, agents, employees or invitees. Tenant, upon
notice from Landlord, shall defend the same, at Tenant's expense, by counsel
reasonably satisfactory to Landlord. Tenant hereby assumes all risk of damage
to property or injury to persons, in, upon or about the Premises from any
cause other than Landlord's gross negligence or that of Landlord's agents or
employees.
Tenant releases Landlord from all liability for any damage to property
entrusted to employees of the Building, and for injury to persons or for loss
of or damage to any property by theft or otherwise, unless caused by or due to
the gross negligence of Landlord, its agents, or employees. Neither Landlord
nor its agents shall be liable for interference with light or other intangible
rights, nor for any latent defect in the Premises or in the Building.
Landlord shall defend, indemnify and hold Tenant harmless from any loss,
cost, damage, or expense (including reasonable attorney fees) and liability of
any nature arising out of the gross negligence or willful misconduct of
Landlord, its agents and employees in connection with Landlord's obligations
hereunder. Landlord upon notice from Tenant, shall defend the same at
Landlord's expense by counsel selected by Landlord and reasonably satisfactory
to Tenant.
17. Rights of Landlord. Landlord reserves the following rights: (a) to
change the name of the Building without notice or liability to Tenant; (b) to
designate all sources furnishing sign painting or lettering and toilet
supplies used on the Premises; (c) if Tenant vacates the Premises at any time
during the last ninety (90) days of the Term, to decorate, remodel, repair,
alter or otherwise prepare the Premises for reoccupancy; (d) constantly to
have pass keys to the Premises; (e) to grant to anyone the exclusive right to
conduct any particular business in the Building; and (f) at any time, at
Landlord's expense, to decorate or make repairs, alterations, additions or
improvements, in or to the Building or any part thereof, including the
Premises, including specifically the right to alter, improve or rebuild the
lobby of the Building. Except where resulting from the gross negligence or
willful misconduct of Landlord, Landlord shall not be liable to Tenant for any
expense, injury, loss or damage resulting from any work so done in or about
the Premises or the Building.
Page 12
In connection with making repairs, alterations or additions hereunder,
Landlord shall have right to post necessary notices on the Premises, and shall
have right of access through the Premises, as well as the right to take
materials that may be required to perform the foregoing into and through the
Premises, as well as the right in the course of such work to close entrances,
doors, corridors, elevators, or other Building facilities or temporarily to
xxxxx the operations of such facilities, without being deemed or held guilty
of an eviction of Tenant and without liability to Tenant. Rent shall not
xxxxx while the foregoing is being performed and Tenant shall not be entitled
to maintain any offset or counterclaim for damages of any kind against
Landlord by reason thereof, all such claims being hereby expressly released by
the Tenant. All such work shall be done in such manner as to cause Tenant the
least inconvenience practicable
18. Assignment and Subletting. Tenant shall not, without the prior
written consent of Landlord assign, convey, mortgage or sublet this Lease or
any interest herein, or allow any transfer hereof. Any assignment,
conveyance, mortgage or sublease shall be subject to terms and conditions
acceptable to Landlord.
Notwithstanding the foregoing, this Lease may be assigned, in whole or in
part, without the prior written consent of Landlord, to any corporation with
which Tenant may be merged or consolidated whereby Tenant shall be the
surviving corporation provided that the net worth of the surviving corporation
is equal to or greater than that of Tenant as of the Date of Lease, or upon
the sale of substantially all of the assets of Tenant to an entity whose net
worth is equal to or greater than that of Tenant as of the Date of Lease.
19. Damage or Destruction. If the Premises or the Building are damaged
by fire or other casualty insured under policies of insurance carried by
Landlord, the damage to the Building shall be repaired by and at the expense
of Landlord and the damage to the Premises shall be repaired by and at the
expense of Landlord and Tenant to the extent of their respective obligations
to maintain and repair the Premises pursuant to paragraph 11 hereof, provided
such repairs can, in Landlord's opinion, be made within fifteen (15) days
after the occurrence of such damage without the payment of overtime or other
premiums. There shall be no abatement of Rent by reason of any portion of the
Premises being unusable for a period of fifteen (15) days or less. If the
damage is due to the fault or neglect of Tenant or its employees, agents, or
contractors there shall be no abatement of Rent.
If repairs cannot, in Landlord's opinion, be made within fifteen (15)
days, Landlord may, following ten (10) days notice, afford a reasonable time
within which they are to be made.
Notwithstanding anything to the contrary, if repairs cannot, in Tenant's
opinion, be made within one hundred eighty (180) days, Tenant may terminate
this Lease upon ten (10) days prior written notice to Landlord. In such
event, the Rent and all other charges due under this Lease shall be prorated,
and Tenant shall be liable for all such prorated rent and other charges, the
amounts of which may have not yet been determined by Landlord as of the date
this Lease is terminated. In the event any portion of the Premises is
unusable, in Tenant's judgment reasonably exercised, for a period of more than
fifteen (15) days, there shall be an abatement of Rent until the Lease is
terminated in accordance with this paragraph or, the Premises is repaired and
restored by Landlord as provided in this Section 19.
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A total destruction of the Building in which the Premises are located
shall automatically terminate this Lease.
20. Eminent Domain. If the Premises, or so much thereof as to render
the balance unusable for the Permitted Use, shall be taken under power of
eminent domain, this Lease shall automatically terminate as of the later of
the date of such condemnation, or the date possession is taken by the
condemning authority, or as otherwise herein provided. Tenant hereby assigns
to Landlord any award which may be made in such taking or condemnation. In
the event of a partial taking which does not result in a termination of this
Lease, Base Rent shall be proportionately adjusted. Landlord may without any
obligation or liability to Tenant stipulate with any condemning authority for
a judgment of condemnation, and the date of taking under this clause shall
then be deemed the date agreed to under the terms of said stipulation.
21. Default. The occurrence of any of the following shall constitute an
event of Default:
(a) The vacation, abandonment or desertion of the Premises by
Tenant.
(b) A failure by Tenant to have made any payment hereunder for five
(5) days after the date such payment was due.
(c) A failure by Tenant to observe or perform any provision of this
Lease for fifteen (15) days after notice thereof from Landlord; provided that
if such Default cannot reasonably be cured within such period, and Tenant
promptly commences to cure such Default and thereafter diligently prosecutes
the same to completion, Tenant shall not be deemed in Default.
(d) The making by Tenant of any general assignment for the benefit
of creditors, or the attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease.
If an event of Default shall occur, Landlord may, at any time:
(i) re-enter the Premises and take possession thereof and of all
property of Tenant therein and remove Tenant and all other parties from the
Premises without terminating this Lease, and at any time relet the Premises,
or any part thereof, upon such conditions and at such rental as Landlord deems
proper. In such event Landlord may receive and collect the rent from such
reletting and apply it against any amounts due from Tenant hereunder, (plus
expenses Landlord incurs in recovering possession of the Premises, placing the
same in good condition, preparing the same for reletting, and all other
related expenses, commissions and charges). Rent or other charges collected
from a tenant to whom the Premises have been relet shall be applied to reduce
any indebtedness due hereunder. Landlord shall not be deemed to have
terminated this Lease or the liability of Tenant for the total liability
hereunder by re-entry or any other act unless Landlord shall have specifically
notified Tenant of Landlord's election to terminate this Lease.
(ii) give written notice to Tenant of Landlord's election to
terminate this Lease. In the such event Landlord may recover from Tenant all
damages related to Tenant's Default, including reasonable attorneys' fees, and
in lieu of the damages that may be recoverable under subparagraph (i) above,
Page 14
Landlord shall be entitled to liquidated damages in an amount equal to the
Rent reserved hereunder for the period which otherwise would have constituted
the balance of the Term, discounted at the rate of four percent (4%) per
annum. Such amount shall be immediately due and payable.
In the event of Default, all of Tenant's trade fixtures, improvements and
other personal property shall be left on the Premises and Landlord shall have
the right to use, free of charge, or remove, or store same, at the risk and
expense of Tenant, until all Defaults are cured. If Tenant shall fail to cure
all Defaults and remove said property within ten (10) days of Landlord's
request, said property shall be deemed abandoned by Tenant. In no event shall
Landlord be responsible for the preservation or safekeeping of Tenant's
property.
If Tenant shall Default in the payment of Rent and such Default continues
for two (2) consecutive months, or for a total of four (4) months in any
twenty-four (24) month period, or if Tenant shall Default in the performance
of any other covenant of this Lease more than three (3) times in any
twenty-four (24) month period then, notwithstanding that such Default shall
have been cured, any further similar Default shall be deemed deliberate and
Landlord may terminate this Lease without affording to Tenant an opportunity
to cure such Default.
In the event Tenant fails to timely cure any Default hereunder, Tenant
authorizes any attorney to appear for Tenant and confess judgment in favor of
Landlord for the relief to which Landlord is entitled in accordance with
Paragraph 21 hereof, along with an attorney's fee in the sum of five percent
(5%) of the total sum of such damages, together with costs of suit. A copy of
this Lease shall be sufficient consent and authority for the confession of
judgment.
22. Rules and Regulations. Tenant shall comply with the Rules and
Regulations attached hereto and made a part hereof as Exhibit B, and such
other rules and regulations as Landlord may adopt from time to time. Landlord
shall not be liable to Tenant for the breach of any lease by any other tenant
in the Building.
23. Requirements of Law. Tenant shall, at its sole cost and expense,
promptly comply with all laws, orders, regulations and requirements of all
public authorities and any fire underwriters insurance rating agency or
similar organization which may impose any violation, order or duty upon
Landlord or Tenant with respect to the Premises, or with respect to the
Building if arising out of Tenant's use of the Premises. Tenant shall pay all
costs, expenses, fines, penalties or damages which may be imposed upon
Landlord by reason of Tenant's failure to comply with the provisions of this
paragraph.
Landlord shall, at it sole cost and expense, promptly comply with all
laws, orders, regulations and requirements of all public authorities with
respect to Landlord's ownership of the Building, and that portion of the
Premises required to be maintained by Landlord, as set forth in paragraph 11
hereof.
24. Surrender of Premises. At the termination of this Lease Tenant
shall surrender the Premises (and all keys thereto) to Landlord in good
Page 15
condition, reasonable wear and tear excepted. Tenant shall remove its trade
fixtures, personal property and signs, provided such removal will not damage
the Premises. If Tenant shall fail to remove said trade fixtures, personal
property and signs within five (5) days after termination, said property
shall, at the option of Landlord, either be deemed abandoned, or Landlord
shall have the right to remove and store said property, at Tenant's expense,
without further notice to or demand upon Tenant. Tenant shall be responsible
for any and all charges and expenses incurred by Landlord therefor. Tenant
hereby indemnifies Landlord against all losses, costs, damages, liabilities
and expenses resulting from Tenant's failure or delay in surrendering the
Premises, unless such failure or delay is due to circumstances beyond Tenant's
control, including, without limitation, claims made by any succeeding tenant
founded on such delay. Tenant's obligations under this paragraph shall
survive the Term.
25. Quiet Enjoyment. Tenant, upon paying the Rent and performing the
other conditions, covenants, and agreements of this Lease, shall peaceably and
quietly have, hold and enjoy the Premises during the Term, without any
hindrance from Landlord or any person or persons claiming by, through or under
Landlord, subject to the terms of this Lease, and to any mortgages, ground or
underlying leases, agreements and encumbrances to which this Lease is or may
be subordinated.
26. Landlord's Lien. Landlord shall have a valid and subsisting lien
for the payment of all Rent upon Tenant's signs, fixtures and personal
property situated on the Premises. Such property shall not be removed
therefrom without the written consent of Landlord until all arrearages then
due to Landlord hereunder have been paid. Upon written request therefor,
Tenant agrees to execute such documents as Landlord deems reasonably necessary
to perfect the security interest granted hereby. In the event of Default by
Tenant hereunder, Landlord may, in addition to any other remedies provided
herein or by law, enter upon the Premises and take possession of signs,
fixtures, furniture and other personal property of Tenant without liability
for trespass or conversion, and sell the same with or without notice at public
or private sale, at which Landlord or its assigns may purchase and apply the
proceeds, less expenses connected therewith, as a credit against sums due by
Tenant to Landlord. Any surplus shall be paid to Tenant, and Tenant agrees to
pay any deficiency forthwith, upon demand. Landlord may foreclose said lien
in the manner provided by law. The lien herein granted to Landlord shall be
in addition to any landlord's lien that may at any time be provided by law.
Hereinafter, in the event Tenant obtains financing to be secured by Tenant's
personal property, furniture, furnishings and fixtures located in the
Premises, Landlord shall subordinate the lien herein granted as provided as
and to the extent provided in paragraph 10 hereof.
27. Liens. Tenant shall do all things reasonably necessary to prevent
the filing of any lien against the Building or the interest of the Landlord or
any underlying lessor therein or the interest of any mortgagee or holder of
any deed of trust covering the Building by reason of any services claimed to
have been performed or materials claimed to have been supplied to Tenant, or
anyone holding the Premises, or any part thereof, through or under Tenant.
Tenant shall cause such lien to be vacated and canceled of record within
thirty (30) days after the date of the filing thereof. If Tenant shall fail
to timely vacate or release such lien Landlord may do so, and Tenant shall
repay to Landlord all expenses, including reasonable attorneys' fees, incurred
in connection therewith.
Page 16
28. Insurance.
(a) Liability Insurance Carried by Tenant. Tenant shall obtain and
keep in force during the Term Commercial General Liability insurance
protecting Tenant and Landlord (as an additional insured) against claims for
bodily injury, personal injury and property damage based upon, involving or
arising out of the use, occupancy or maintenance of the Premises and all areas
appurtenant thereto. Such insurance shall be on an occurrence basis providing
single limit coverage in an amount not less than $1,000,000 per occurrence
with an "Additional Insured-Managers or Landlords of Premises" Endorsement and
shall contain an amendment to the Pollution Exclusion to cover damage caused
by heat, smoke or fumes from a hostile fire. The limits of said insurance
shall not serve to limit the liability of Tenant or relieve Tenant of any
obligation hereunder. All insurance to be carried by Tenant shall be primary
and not contributory with any similar insurance carried by Landlord, whose
insurance shall be considered excess insurance only.
(b) Liability Insurance Carried by Landlord. Landlord shall
maintain insurance covering the Building in limits and with coverage generally
deemed acceptable within the real estate industry. Landlord's insurance
coverage shall be excess over Tenant's coverage required hereunder and Tenant
shall not be named as an additional insured therein.
(c) Tenant's Property Insurance. Tenant shall maintain insurance
coverage on all of Tenant's personal property, and Tenant alterations in the
Premises. Such insurance shall be full replacement cost coverage with a
deductible not to exceed $1,000 per occurrence. The proceeds from such
insurance shall be used by Tenant for the replacement of personal property or
the restoration of Tenant alterations. Tenant shall provide Landlord with
written evidence that such insurance is in force.
(d) Insurance Policies. Insurance required hereunder shall be with
a company duly licensed to transact business in the state where the Premises
are located, and maintaining during the policy term a "General Policyholders
Rating" of at least A X (or such other rating as may be required by a lender
having a lien on the Premises) as set forth in the most current issue of
"Best's Insurance Guide." Tenant shall not permit anything which could
invalidate the insurance policies referred to herein. Tenant shall deliver to
Landlord certificates evidencing the existence and amounts of insurance
required hereunder, listing the insureds and loss payable clauses required by
this Lease. Such policy shall be cancelable or subject to modification only
after thirty (30) days written notice to Landlord. At least thirty (30) days
prior to the expiration of such policies, Tenant shall furnish Landlord
evidence of renewals or "insurance binders" evidencing renewal thereof. In
the event Tenant fails to do so, Landlord may order such insurance and charge
the cost thereof to Tenant as Rent.
29. Waiver of Subrogation. Without affecting any other rights or
remedies, Tenant and Landlord each hereby release and relieve each other, and
waive their right to recover damages against the other, for loss of or damage
to the other party's property arising out of or incident to the perils
required to be insured against under Paragraph 28. The effect of such release
and waivers of the right to recover damages shall not be limited by the amount
of insurance carried or required, or by any deductibles applicable thereto.
Page 17
30. Waiver. No waiver by Landlord of any provision of this Lease or
Landlord's consent to any act shall render unnecessary the obtaining of
Landlord's consent to or waiver of any subsequent act of Tenant or provision
of this Lease. No agreement to accept a surrender of the Premises shall be
valid unless in writing and signed by two (2) officers of Landlord.
31. Unavoidable Delays. If Landlord or Tenant (other than as to
Tenant's obligation to pay Rent) shall fail to timely perform any of its
obligations as a result of any labor disputes, inability to obtain labor or
materials, acts of God, governmental restrictions, regulations or controls,
enemy or hostile government action, civil commotion, fire or other casualty,
or any other condition beyond the reasonable control of the party obligated to
perform, then such failure shall not be deemed a breach of this Lease to the
extent of and for the time occasioned by such event. Lack of funds and
inability to procure financing shall not be deemed to be an event beyond the
reasonable control of Tenant. As a condition precedent to Tenant claiming or
relying upon an unavoidable delay, Tenant shall give ten (10) days written
notice to Landlord of such event.
32. Subordination. This Lease is, unless Landlord shall otherwise
elect, subject and subordinate to all covenants, restrictions, easements and
encumbrances now or hereafter affecting the fee title to the Building and to
all ground and underlying leases and mortgages or financings which may be
placed against or affect the real property of which the Premises forms a part.
The term "mortgages" as used herein shall include trust indentures and deeds
of trust. No further instrument shall be necessary unless required by any
such ground or underlying lessor or mortgagee. Should any ground or
underlying lessor or mortgagee lease and/or mortgage the real property of
which the Premises forms a part, or any part thereof, or should Landlord or
any ground or underlying lessor or mortgagee for any other reason desire
confirmation of such subordination, Tenant shall execute and deliver, without
charge, all documents (in form acceptable to such ground or underlying lessor
or mortgagee) subordinating this Lease and Tenant's rights hereunder within
ten (10) days of Landlord's written request therefor. Landlord agrees to
furnish Tenant copies of any such covenants, restrictions, easements and
encumbrances which might materially affect Tenant's use of the Premises.
33. Notice to Mortgagee. Tenant shall not exercise any right to
terminate this Lease by reason of constructive or actual eviction, or in the
event of any act or omission by Landlord which would give Tenant the right to
terminate this Lease, until (i) Tenant shall have given written notice of such
act or omission to the holder of any first mortgage to which this Lease is
subject and subordinate (provided the name and address of such holder shall
previously have been furnished to Tenant) and (ii) a reasonable period of time
for remedying such act or omission shall have elapsed following the giving of
such notice, during which Landlord and/or the holder of such mortgage, or
their agents or employees, shall be entitled to enter the Premises and remedy
such act or omission. During the period between the giving of such notice and
the remedying of such act or omission, Rent shall be abated and apportioned to
the extent that any part of the Premises shall be untenantable.
34. Attornment. In the event of a sale, transfer, or assignment of
Landlord's interest in the Building or any part thereof, or in the event of
any proceedings brought for the foreclosure of, or in the event of the
exercise of any power of sale under any mortgage covering the Building or any
Page 18
part thereof, or in the event of a cancellation or termination of any ground
or underlying lease covering the Building or any part thereof, Tenant will
attorn to and recognize such transferee, purchaser, ground or underlying
lessor or mortgagee as Landlord.
35. Estoppel Certificate.
(a) Tenant shall, upon not less than ten (10) days' written notice
from Landlord, execute, acknowledge and deliver to Landlord 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) and the dates to which
Rent has been paid, and (ii) acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on the part of Landlord hereunder, or
specifying such defaults, if any.
(b) Tenant's failure to deliver such statement within ten (10)
days' of written notice from Landlord shall be conclusive upon Tenant (i) that
this Lease is in full force and effect, without modification except as may be
represented by Landlord, (ii) that there are no uncured defaults in Landlord's
performance, and (iii) that not more than one month's rental has been paid in
advance.
36. Interest on Past Due Obligations. If Tenant shall fail to pay any
Rent after the same becomes due and payable, including bank drafts returned
unpaid, such unpaid amounts shall bear interest from the due date thereof to
the date of receipt of payment at the lesser of eighteen percent (18%) per
annum, or such other rate as is the highest legal rate of interest chargeable
in the state where the Building is located.
37. Transfer of Landlord's Interest. In the event of any transfer of
Landlord's interest in the Premises or in the real property of which the
Premises is a part, the transferor shall be automatically relieved of any and
all obligations and liabilities on the part of Landlord accruing from and
after the date of such transfer. In the event Landlord elects to cease
operation of the Building for any reason, Landlord shall provide Tenant with
at least ninety (90) days prior written notice. In the event of such
election, Landlord may terminate this Lease at anytime after said notice
period has expired, provided Landlord ceases to operate the Building for at
least six (6) months.
38. Holding Over. If Tenant shall hold over beyond the Termination Date
with the consent of Landlord, such holding over shall be construed to be a
month-to-month tenancy, terminable by either party at the end of the month
following at least thirty (30) days' written notice, and shall be subject to
all the terms and conditions of this Lease (so far as same are applicable to a
month-to-month tenancy) except Paragraph 1(i) of the Lease shall be amended to
redefine Base Rent as the amount, payable monthly, in advance, equal to the
greater of 1 )twice the monthly installment of Base Rent or 2)the then
prevailing market rental rate for the Building or 3) the then prevailing
market rental rate for buildings of similar character in the general location
of the Building.
39. Relocation. Intentionally Omitted.
Page 19
40. Accord and Satisfaction. Payment by Tenant or receipt by Landlord
of a lesser amount than that stipulated herein for Rent shall, at the option
of Landlord, be deemed to be on account of the earliest stipulated Rent then
due. No endorsement or statement on a check or letter accompanying any check
or payment shall be deemed an accord and satisfaction; Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such Rent or to pursue any other remedy in this Lease or at law.
41. Attorneys' Fees. In the event that Landlord should bring suit for
possession of the Premises, for recovery of Rent, or because of the breach of
any provision of this Lease, or in the event that Tenant shall bring any
action for against Landlord arising out of this Lease, then all costs and
expenses, including reasonable attorneys' fees, incurred by the prevailing
party therein shall be paid by the other party.
42. Fees or Commissions. The parties, warrant and represent that to the
best of their knowledge, other than the Broker defined at Paragraph 1(t)
hereof, there are no claims for broker's commissions or finder's fees in
connection with this Lease, and the misrepresenting party agrees to indemnify
and hold the other harmless from any liability which arises from any such
claim.
43. Building Name; Relationship. Tenant shall not use the name of the
Building for any purpose other than as the address of the business or
profession to be conducted by Tenant in the Premises. Nothing contained in
this Lease shall be deemed to create any relationship other then that of
Landlord and Tenant. Landlord reserves the right to change the name of the
Building without the consent of Tenant and without incurring any liability to
Tenant therefor.
44. Partial Invalidity. If any provision of this Lease shall be held
void or invalid, the remainder of this Lease shall not be affected thereby,
and each provision of this Lease shall be valid and enforced to the fullest
extent permitted by law.
45. Notices. Every notice to be given under this Lease shall be in
writing and shall be sent by Certified or Registered Mail, postage prepaid,
return receipt requested, or by overnight courier, and shall be addressed:
(a) if to Landlord, to Landlord's Mailing Address, Attention: "Vice President
- Operations", and (b) if to Tenant, to Tenant's Mailing Address. Notice same
shall be deemed given when received or refused by the addressee. Either party
may designate, by written notice to the other party, any other address for
notice purposes. Either party hereto may give the other notice of the need
for emergency repairs by telephone or fax, provided such notice is promptly
confirmed in writing, as set forth above.
46. Time of Essence. Time is of the essence with respect to the
performance of every provision of this Lease.
47. Entire Agreement; Miscellaneous.
(a) This Lease, the exhibits and addenda, if any, attached hereto,
contain all of the agreements and understandings between the parties.
(b) All prior conversations or writings between the parties hereto
or their representatives are merged herein.
Page 20
(c) This Lease shall not be modified except in writing signed by
both parties.
(d) The submission of this Lease to Tenant prior to Landlord's
execution shall be deemed solely for Tenant's consideration. Such submissions
shall have no binding force or effect, shall not constitute an option for the
leasing of the Premises by Tenant and shall not confer any rights or impose
any obligations upon either party.
(e) Any exhibit incorporated into this Lease which is inconsistent
with any printed provision of this Lease shall supersede such printed
provision only to the extent of such inconsistency.
(f) The captions appearing herein are not intended to define,
limit, or describe the intent of any paragraph.
(g) Tenant agrees that Landlord may submit a copy of this Lease to
its lender without obtaining the prior consent of Tenant.
48. Corporate Tenant. The persons executing this Lease warrant that,
if signing on behalf of a corporation, such corporations is duly organized or
qualified (if foreign) under the laws of, and is authorized to do business in,
the state where the Building is located, and that each such person executing
this Lease is authorized to sign and execute this Lease.
49. Successors and Assigns. Except as otherwise provided in this Lease,
all of the conditions, covenants, and agreements of this Lease shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns. Each
provision of this Lease to be performed by Tenant shall be construed as both a
covenant and a condition, and if Tenant shall be comprised of more than one
individual and/or entity, they shall all be bound, jointly and severally, by
the provisions of this Lease.
50. Annual Financial Statement. Upon written request of Landlord,
Tenant agrees to submit to Landlord within fifteen (15) days of each
anniversary of the Commencement Date of this Lease, a statement setting forth
the financial condition of Tenant, and of Tenant's Guarantor, if applicable.
Said statement shall be certified by an independent certified public
accountant.
51. UCC Filing. In the event Tenant is in Default in the payment of
rent, Tenant hereby makes, constitutes and irrevocably appoints Landlord as
its attorney in fact in Tenant's name, place and stead, with full power and
authority to execute UCC Filings recognizing and recording Landlord's
statutory or contractual lien.
52. Hazardous Material. Tenant shall not cause or permit any Hazardous
Material, as defined below, to be brought upon, kept, stored, utilized,
disposed of or used in the Building by Tenant or its agents, employees,
contractors or invitees. This restriction shall survive the termination or
expiration of this Lease. If the presence of Hazardous Material on the
Premises is caused or permitted by Tenant or its agents, employees,
contractors or invitees and results in contamination of the Premises or the
Building, then Tenant shall indemnify, defend and hold Landlord and any owner
Page 21
of the property wherein the Premises are located harmless from all claims,
judgments, damages, penalties, fines, costs, liabilities or losses (including,
without limitation, diminution in value of the Building, damages for the loss
or restriction on use of rentable or usable space or of any amenity of the
Building, damages arising from any adverse impact on marketing of space in the
Building, and sums paid in settlement of claims, attorneys' fees, consultant
fees and expert fees) which arise during or after the Term as a result of such
contamination. This indemnification of Landlord by Tenant includes, without
limitation, costs incurred in connection with any investigation of site
conditions, and clean-up, remedial, removal or restoration work required by
any federal, state or local governmental agency or political subdivision. If
the Hazardous Material results in contamination of any part of the Building,
Tenant shall promptly take all actions at its own expense as are necessary to
remediate, provided that Landlord's approval of such remedial action shall
first be obtained.
The term "Hazardous Material" shall include hazardous or toxic materials,
wastes and substances which are defined, determined or identified as such
pursuant to present and future federal, state or local laws, rules or
regulations and judicial or administrative interpretation thereof. Standard
cleaning and materials and office equipment supplies for use in the normal
course of business shall not be deemed Hazardous Materials hereunder. Upon
reasonable notice, Landlord and its agents shall have the right to inspect the
Premises to determine whether Tenant is in compliance with this paragraph 52.
53. Liability of Trust. Notwithstanding anything to the contrary, this
Lease is made and executed on behalf of Landlord, a business trust organized
under the laws of the State of Ohio, by its officers on behalf of the trustees
thereof, and none of the trustees, nor any additional or successor trustee
hereafter appointed, nor any beneficiary (including preferred shareholders),
officer, employee, or agent of Landlord, shall have any liability in his
personal or individual capacity, but instead, all parties shall look solely to
the property and assets of Landlord for satisfaction of claims of any nature
arising under or in connection with this Lease.
54. Parking and Access. Landlord agrees to provide to Tenant, other
occupants of the Building, and Landlord's permittees, on a non-exclusive
basis, and without charge therefor other than the Rent reserved hereunder,
parking for at least 5.0 passenger automobiles for each 1,000 square feet of
RSF in the Premises, based upon the initial premises.
55. Right to Terminate after 36th month of Term. Provided that Tenant
is not in default under any of the conditions, covenants, or agreements of
this Lease, Tenant shall have an option, exercisable at any time after the
expiration of the thirty second (32nd) month of the Term but prior to the
expiration of the thirty fifth (35th) month of the Term to terminate this
Lease. Said cancellation shall be effective as of the expiration of the
thirty sixth (36th) month of the Term, but actually, and on the condition that
(a) Tenant pays as a termination fee the sum of Eighty One Thousand One
Hundred Five and 30/100 Dollars ($81,105.30); (b) Tenant pays the unamortized
portion of all brokerage commissions paid by Landlord with respect to this
Lease (using an interest rate of twelve percent (12%) per annum and a term of
ten (10) calendar years), (c) Tenant pays all Rent and other sums due and
owing by Tenant to Landlord up to and including the date that said
cancellation is effective within twenty (20) days after said sums are demanded
by Landlord; and (d) Tenant executes a written termination agreement in form
Page 22
and substance satisfactory to Landlord. Tenant agrees that it is liable for,
and that said sums demanded shall include, Rent, utility charges, taxes and
assessments, and Operating Expenses, the amount of which may have not yet been
determined by Landlord as of the date Tenant cancels this Lease, but which
Tenant shall remain liable for to the date of termination notwithstanding any
such termination.
56. Right to Terminate after 72nd month of Term. Provided that Tenant
is not in default under any of the conditions, covenants, or agreements of
this Lease, Tenant shall have an option, exercisable at any time after the
expiration of the sixty eighth (68th) month of the Term but prior to the
expiration of the seventy first (71st) month of the Term to terminate this
Lease. Said cancellation shall be effective as of the expiration of the
seventy second (72nd) month of the Term, but actually, and on the condition
that (a) Tenant pays as a termination fee the sum of Eighty Three Thousand
Seven Hundred and 00/100 Dollars ($83,700.00); (b) Tenant pays the unamortized
portion of all brokerage commissions paid by Landlord with respect to this
Lease (using an interest rate of twelve percent (12%) per annum and a term of
ten (10) calendar years), (c) Tenant pays to Landlord the unamortized portion
of Tenant's Allowance hereunder (using an interest rate of twelve percent
(12%) per annum and a term of ten (10) calendar years); (d) Tenant pays to
Landlord all Rents and other sums due and owing by Tenant to Landlord up to
and including the date that said cancellation is effective within twenty (20)
days after said sums are demanded by Landlord, and (e) Tenant executes a
written termination agreement in form and substance satisfactory to Landlord.
Tenant agrees that it is liable for, and that said sums demanded shall
include, all Rent, utility charges, taxes and assessments, and Operating
Expenses, the amount of which may have not yet been determined by Landlord as
of the date Tenant cancels this Lease, but which Tenant shall remain liable
for to the date of termination notwithstanding any such termination.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Page 23
IN WITNESS WHEREOF, Landlord and Tenant have executed the Lease, in
triplicate, as of the Date(s) set forth below their respective signatures
hereto.
Signed and acknowledged in the
presence of:
/s/ [illegible]
First Witness as to Landlord
/s/ [illegible]
Second Witness as to Landlord
NORTH VALLEY TECH LLC, a Delaware
limited liability company
By:/s/ Xxxxx Schongerber
Xxxxx Xxxxxxxxxxx, Vice President
LANDLORD
Date: 10-11-00
Signed and acknowledged in the
presence of:
/s/ [illegible]
First Witness as to Tenant
/s/ Xxxxx Xxxxxx
Second Witness as to Tenant
TANGIBLEDATA, INC.
By:/s/ Xxxxx Xxxxx
And: /s/ Xxxx Xxxxxxxxx
TENANT
Date: 9-26-00
This Lease must be both Witnessed and Acknowledged
This Lease is being forwarded for your approval and execution on the
understanding that it shall not become effective until it is accepted by
Landlord and its counsel and executed and delivered by Landlord.
EXHIBIT LIST
A Floor Plan
B Rules and Regulations
C Form of Landlord's Waiver and Consent
Page 00
XXXXX XX XXX XXXX )
) SS:
COUNTY OF NEW YORK )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared the above-named NORTH VALLEY TECH LLC, a Delaware limited liability
company, by Xxxxx Xxxxxxxxxxx, its Vice President, personally known to me or
who did furnish satisfactory identification, who being first duly sworn, did
upon oath acknowledge that he did sign the foregoing instrument as such
officer on behalf of said business trust and is duly authorized to do so, and
that the same is the free act and deed of said business trust, and his free
act and deed individually and as such officer.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
11th day of October, 2000.
/s/Xxxxxxx Xxxxxxx
Notary Public
[Seal]
My commission expires: February 28, 2001
STATE OF )
) SS:
COUNTY OF )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared the above-named TANGIBLEDATA, INC., a Corporation, by Xxxxx Xxxxx,
its CEO, and Xxxx Xxxxxxxxx, its Ass. Sec., who acknowledged that they did
sign the foregoing instrument and that the same is the free act and deed of
said corporation, and their free act and deed personally and as such officers.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
_______________________, this 26th day of September, 2000.
/s/ Xxx Xxxxx
NOTARY PUBLIC
Page 25
EXHIBIT C
FORM OF LANDLORD'S WAIVER AND CONSENT
THIS LANDLORD'S WAIVER AND CONSENT ("Consent"), made and entered into as of
the ___ day of ___________, 2000, by [NORTH VALLEY TECH LLC, a Delaware
limited liability company] ("Landlord") in favor of
__________________________________ ("Lender").
BACKGROUND
A. Landlord is the owner of certain real property located in the City of
Xxxxxxxx, Xxxxx County, Colorado being more particularly described on Exhibit
A attached hereto (the "Premises").
B. The Premises have been leased to TangibleData, Inc. ("Lessee") by [Lease
Agreement dated _______________________________] (the "Lease").
C. Lessee is entering into a Loan and Security Agreement (the "Agreement")
with Lender and the other financial institutions from time to time party
thereto (collectively, "Lenders") for the purpose of financing Lessee's
acquisition, construction, installation, maintenance and operation of a
telecommunications system (the "System "), part of which may be located on
the Premises.
D. As a condition to extending such loans and other financial accommodations,
Lenders have required, among other things, that Lessee grant to Lender, for
its own benefit and the ratable benefit of Lenders, security interests in the
System and in certain of Lessee's property, including, without limitation,
machinery, equipment, furniture, fixtures and inventory, whether now owned or
hereafter acquired ("Collateral"), a portion of which Collateral is and may
hereafter be located on or about the Premises.
NOW, THEREFORE, in order to induce Lenders to extend financial accommodations
to Lessee, which will aid Lessee in meeting its obligations to Landlord, and
for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Landlord hereby agrees with Lender as follows:
1. Landlord consents to Lessee's granting Lender a security interest in the
Collateral. Lender's security interests and liens in the Collateral shall be
superior to any title or interest which the Landlord may at any time have
therein, and, during the term of this Agreement, Landlord will not assert
against any of the Collateral any title or any statutory, common law,
contractual or possessory lien, including, without limitation, rights of levy
or distraint for rent, all of which Landlord hereby subordinates in favor of
Lender and Lenders.
2. Landlord agrees that none of the Collateral is subject to the Lease and
hereby disclaims any and all right, title, interest or claim in or to the
Collateral and any cash or non-cash proceeds of the Collateral (except with
respect to the subordinated landlord lien referred to in Section 1 above).
The Collateral may be affixed to or used in conjunction with the Premises, but
shall remain the Lessee's personal property, subject to Lender's lien, at all
times. Landlord agrees not to impound or remove any of the Collateral from
the Premises as long as this Consent is in effect, except as set forth herein.
Page 1
3. Landlord agrees that Lender and its representatives and invitees may enter
upon the Premises at any time or times, during normal business hours, with
reasonable advance written notice to Landlord, to inspect, repossess, remove
or otherwise deal with the Collateral, without any liability of Lender or any
Lender to Landlord, except for reimbursement for any physical damage (except
ordinary wear and tear) to the Premises caused by such removal. Landlord will
not hinder Lender's actions in enforcing its liens and remedies with respect
to the Collateral. Landlord agrees that Lender may advertise and conduct
public or private sales of the Collateral. Lender or any Lender shall not be
liable for any diminution in value of the Premises caused by the absence of
Collateral removed, and Lender or any Lender shall not have any duty or
obligation to remove or dispose of any Collateral or any other property left
on the Premises by Lessee.
4. In the event that Lessee defaults in its obligations under the Lease,
Landlord agrees to give Lender copies of written notices of default under the
Lease, written notice of termination of the Lease and/or written notice of
termination of Lessee's right of possession at the same time as such notice is
given to Lessee and further agrees that Lender may, but shall not be obligated
to, cure such defaults, at its option, within the applicable notice and cure
periods offered for Lessee under the Lease, plus an additional ten (10) days
in the case of a monetary default or an additional thirty (30) days in the
case of a non-monetary default.
5. If the Lease is terminated, Landlord agrees to allow the Collateral to
remain on the Premises for a reasonable time not less than ninety (90) days,
during which time Lender may, at its discretion, remove, sell or otherwise
dispose of the Collateral as Lender may elect, as long as Landlord receives
all payments due under the Lease, and as long as Lessee's obligations to
maintain the Premises are being fulfilled.
6. Landlord states that the Lease is presently valid and in full force and
effect, that all rentals have been paid up to date, and that as of the date
hereof to the best knowledge of Landlord, Lessee is not in default under the
Lease.
7. Neither Landlord nor, to the best knowledge of Landlord, Lessee is in
default under the terms of the Lease and no event has occurred, or failed to
occur, which with the giving of notice or the passage of time or both would
constitute a default under the Lease.
8. [CONFIRM] Tenant is in possession of the Leased Premises. (If not
accurate, please explain here.)
9. Landlord shall not, without prior written consent of Lender, enter into
any amendment or modification of the Lease that would reduce the original term
of the Lease or would otherwise materially and adversely affect the interest
of Lender in Lessee's interest under the Lease.
10. Upon receipt of a written request from Lender, Landlord shall execute an
estoppel certificate certifying, if true, that the Lease has not been modified
and is in full force and effect or, if the Lease has been modified, that the
Lease is in full force and effect as modified, stating such modifications;
specifying the date to which rent has been paid; stating whether or not, to
Page 2
the best knowledge of Landlord, Lessee is in default and, if so, stating the
nature of such default; stating which options to extend the term of the Lease
have been executed, in any; and any other reasonable information which Lender
may request.
11. Landlord states that it has full right and authority to enter into
thisConsent and that the provisions of this Consent do not and will not
conflict with or violate any provision of any agreement between Landlord and
any third party.
12. This Consent shall remain in full force and effect until all obligations
of Lessee to Lender and the Lenders have been paid and satisfied in full and
Lender and the Lenders have terminated their financing agreements with Lessee
pursuant to the Agreement.
13. The provisions of this Consent may not be modified or terminated orally,
and shall be binding upon the successors and assigns of the Landlord, and upon
any successor owner or transferee of the Premises and shall inure to the
benefit of the Lender and its successors and assigns. Notwithstanding any
other provision of this Consent or the Lease to the contrary, all of Lender's
right, title and interest in and to the Lease and any obligations thereunder
may be assigned and transferred to an affiliate or successor of Lender without
notice to Landlord, and to other parties with notice to Landlord.
14. Notwithstanding anything to the contrary stated in the Lease, the
transfer, assignment or hypothecation of any interest in Lessee shall not be
deemed an assignment of the Lease and Landlord shall not unreasonably withhold
any consent required of Landlord to an assignment of Lessee's interest in the
Lease in connection with a sale or transfer of all or substantially all of
Lessee's assets and business.
15. All notices shall be in writing and shall be mailed by first class
registered or certified mail, return receipt requested, by overnight courier
service maintaining records of receipt, or by facsimile transmission with
confirmation in writing mailed first class, in all cases with charges prepaid,
and any such properly given notice shall be effective upon the earlier of
receipt or (i) the third business day after being mailed; (ii) the following
business day if sent by overnight courier service, or (iii) when sent by
facsimile, answer back received. All notices shall be addressed as follows:
If to Lender: TangibleData, Inc.
0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: _____________________
With a copy to: ________________________________
________________________________
________________________________
Telecopy: ______________________
Attention:______________________
If to Landlord: North Valley Tech LLC
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Vice President Operations
Page 3
With a copy to: Xxxxx & Xxxxxx LLP
0000 Xxxxxxxxxx Xxxxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Telecopy: 000-000-0000
Attention: Xxx X. Xxxxxxxx, Esq.
16. This Consent shall in all respects be governed by and construed in
accordance with the laws of the State in which the Premises are located.
IN WITNESS WHEREOF, Landlord has executed this Landlord's Waiver and
Consent as of the date first above written.
LANDLORD:
NORTH VALLEY TECH LLC,
a Delaware limited liability company
By:______________________________
Xxxxx Xxxxxxxxxxx, Vice President
Page 4
EXHIBIT A
Premises
