Exhibit 10.11
12/1/92 SIN
LEASE
---------------------------
RREEF USA FUND-I,
Landlord
WORLD SYSTEMS INC.,
Tenant
TABLE OF CONTENTS
Article Page
------- ----
1. USE AND RESTRICTIONS ON USE ....................................... 1
2. TERM .............................................................. 1
3. RENT .............................................................. 2
4. TAXES ............................................................. 2
5. SECURITY DEPOSIT .................................................. 3
6. ALTERATIONS ....................................................... 3
7. REPAIR ............................................................ 4
8. LIENS ............................................................. 5
9. ASSIGNMENT AND SUBLETTING ......................................... 5
10. INDEMNIFICATION ................................................... 6
11. INSURANCE ......................................................... 7
12. WAIVER OF SUBROGATION ............................................. 7
13. SERVICES AND UTILITIES ............................................ 7
14. HOLDING OVER ...................................................... 8
15. SUBORDINATION ..................................................... 8
16. REENTRY BY LANDLORD ............................................... 8
17. DEFAULT ........................................................... 8
18. REMEDIES .......................................................... 9
19. TENANT'S BANKRUPTCY OR INSOLVENCY ................................. 1l
20. QUIET ENJOYMENT ................................................... 12
21. DAMAGE BY FIRE, ETC ............................................... 12
22. EMINENT DOMAIN .................................................... 13
23. SALE BY LANDLORD .................................................. 13
24. ESTOPPEL CERTIFICATES ............................................. 14
25. SURRENDER OF PREMISES ............................................. 14
26. NOTICES .......................................................... 14
i
27. TAXES PAYABLE BY TENANT ........................................... 15
28. DEFINED TERMS AND HEADINGS ........................................ 15
29. TENANT'S AUTHORITY ................................................ 15
30. COMMISSIONS ....................................................... 15
3l. TIME AND APPLICABLE LAW ........................................... 15
32. SUCCESSORS AND ASSIGNS ............................................ 15
33. ENTIRE AGREEMENT .................................................. 16
34. EXAMINATION NOT OPTION ............................................ 16
35. RECORDATION ....................................................... 16
36. LIMITATION OF LANDLORD'S LIABILITY ................................ 16
EXHIBIT A - PREMISES
EXHIBIT B - INITIAL ALTERATIONS
ii
SINGLE TENANT INDUSTRIAL LEASE
REFERENCE PAGE
BUILDING: 375 Xxxx
Hauppauge, New York
LANDLORD: RREEF USA Fund-I, a California group trust
LANDLORD'S ADDRESS: 000 Xxxxxx Xxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
LEASE REFERENCE DATE: November 8, 1994
TENANT: Worldcomm Systems, Inc.
TENANT'S ADDRESS: 375 Xxxx
(a) As of beginning of Term: Hauppauge, New York
(b) Prior to beginning of Term 00 Xxxxxxxxxx Xxxxx
(if different): Xxxx Xxxxxxxxx, XX 00000
BUILDING RENTABLE AREA: approximately 20,000 sq. ft.
USE: executive and administrative office
SCHEDULED COMMENCEMENT DATE: November 15, 1994
TERMINATION DATE: November 30, 1998
TERM OF LEASE: 4 years, 0 months and 15 days beginning on
the Commencement Date and ending on the
Termination Date (unless sooner terminated
pursuant to the Lease)
INITIAL ANNUAL RENT (Article 3): $ See Rent Schedule, Article 39
INITIAL MONTHLY INSTALLMENT OF
ANNUAL RENT (Article 3): $ See Rent Schedule, Article 39
ASSIGNMENT/SUBLETTING FEE: $ 500.00
SECURITY DEPOSIT: $ 30,000.00 See Rider
REAL ESTATE BROKER DUE COMMISSION: Xxxxxxx-Xxxxx
The Reference Page information is incorporated into and made a part of the
Lease. In the event of any conflict between any Reference Page information and
the Lease, the Lease shall control. This Lease includes Exhibits A through C,
all of which are made a part of this Lease.
LANDLORD: TENANT:
RREEF USA Fund-I, a California
Group Trust Worldcomm Systems, Inc.
------------------------------ ----------------------------------------
By: RREEF Management Company, ----------------------------------------
a California corporation
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------- ------------------------------------
Title: Xxxxx X. Xxxxxxxxx, Title: CEO
District Manager
Dated: 11-15-94 Dateed: 11/14/94
LEASE
By this Lease Landlord leases to Tenant and Tenant leases from Landlord the
Building as set forth and described on the Reference Page (the "Premises"). The
Reference Page, including all terms defined thereon, is incorporated as part of
this Lease.
1. USE AND RESTRICTIONS ON USE.
1.1 The Premises are to be used solely for the purposes stated on the
Reference Page. Tenant shall not do or permit anything to be done in or about
the Premises which will in any way obstruct or interfere with the rights of
other tenants or occupants of the Building or injure, annoy, or disturb them or
allow the Premises to be used for any improper, immoral, unlawful, or
objectionable purpose. Tenant shall not do, permit or suffer in, on, or about
the Premises the sale of any alcoholic liquor without the written consent of
Landlord first obtained, or the commission of any waste. Tenant shall comply
with all governmental laws, ordinances and regulations applicable to the use of
the Premises and its occupancy and shall promptly comply with all governmental
orders and directions for the correction, prevention and abatement of any
violations in or upon, or in connection with, the Premises, all at Tenant's sole
expense. Tenant shall not do or permit anything to be done on or about the
Premises or bring or keep anything into the Premises which will in any way
increase the rate of, invalidate or prevent the procuring of any insurance
protecting against loss or damage to the Building or any of its contents by fire
or other casualty or against liability for damage to property or injury to
persons in or about the Building or any part thereof.
1.2 Tenant shall not, and shall not direct, suffer or permit any of its
agents, contractors, employees, licensees or invitees to at any time handle,
use, manufacture, store or dispose of in or about the Premises or the Building
any (collectively "Hazardous Materials") flammables, explosives, radioactive
materials, hazardous wastes or materials, toxic wastes or materials, or other
similar substances, petroleum products or derivatives or any substance subject
to regulation by or under any federal, state and local laws and ordinances
relating to the protection of the environment or the keeping, use or disposition
of environmentally hazardous materials, substances, or wastes, presently in
effect or hereafter adopted, all amendments to any of them, and all rules and
regulations issued pursuant to any of such laws or ordinances (collectively
"Environmental Laws"), nor shall Tenant suffer or permit any Hazardous Materials
to be used in any manner not fully in compliance with all Environmental Laws, in
the Premises or the Building and appurtenant land or allow the environment to
become contaminated with any Hazardous Materials. Notwithstanding the foregoing,
and subject to Landlord's prior consent, Tenant may handle, store, use or
dispose of products containing small quantities of Hazardous Materials (such as
aerosol cans containing insecticides, toner for copiers, paints, paint remover
and the like) to the extent customary and necessary for the use of the Premises
for general office purposes, provided that Tenant shall always handle, store,
use, and dispose of any such Hazardous Materials in a safe and lawful manner and
never allow such Hazardous Materials to contaminate the Premises, Building and
appurtenant land or the environment. Tenant shall protect, Defend, indemnify and
hold each and all of the Landlord Entities (as defined in Article 28) harmless
from and against any and all loss, Claims, liability or costs (including court
costs and attorney 5 fees) incurred by reason of any actual or asserted failure
of Tenant to fully comply with all applicable Environmental Laws, or the
presence, handling, use or disposition in or from the Premises of any Hazardous
Materials (even though permissible under all applicable Environmental Laws or
the provisions of this Lease), or by reason of any actual or asserted failure of
Tenant to keep, observe, or perform any provision of this Section 1.2.
See Rider
2. TERM.
2.1 The Term of this Lease shall begin on the date ("Commencement Date")
which shall be the later of the Scheduled Commencement Date as shown on the
Reference Page and the date that Landlord shall tender possession of the
Premises to Tenant. Landlord shall tender possession of the Premises with all
the work, if any, to be performed by Landlord pursuant to Exhibit B to this
Lease substantially completed. Tenant shall deliver a punch list
of items not completed within 30 days after Landlord tenders possession of the
Premises and Landlord agrees to proceed with due diligence to perform its
obligations regarding such items. Landlord and Tenant shall execute a memorandum
setting forth the actual Commencement Date and Termination Date.
2.2 Tenant agrees that in the event of the inability of Landlord to deliver
possession of the Premises on the Scheduled Commencement Date. Landlord shall
not be liable for any damage resulting from such inability. but Tenant shall not
be liable for any rent until the time when Landlord can. after notice to Tenant,
deliver possession of the Premises to Tenant. No such failure to give possession
on the Scheduled Commencement Date shall affect the other obligations of Tenant
under this Lease, except that if Landlord is unable to deliver possession of the
Premises within one hundred twenty (120) days of the Scheduled Commencement Date
(other than as a result of strikes, shortages of materials or similar matters
beyond the reasonable control of Landlord and Tenant is notified by Landlord in
writing as to such delay). Tenant shall have the option to terminate this Lease
unless said delay is as a result of: (a) Tenant's failure to agree to plans and
specifications; (b) Tenant's request for materials, finishes or installations
other than Landlord's standard except those, if any, that Landlord shall have
expressly agreed to furnish without extension of time agreed by Landlord; (c)
Tenant's change in any plans or specifications; or, (d) performance or
completion by a party employed by Tenant. If any delay is the result of any of
the foregoing, the Commencement Date and the payment of rent under this Lease
shall be accelerated by the number of days of such delay.
2.3 In the event Landlord shall permit Tenant to occupy the Premises prior
to the Commencement Date, such occupancy shall be subject to all the provisions
of this Lease. Said early possession shall not advance the Termination Date.
3. RENT.
3.1 Tenant agrees to pay to Landlord the Annual Rent in effect from time to
time by paying the Monthly Installment of Rent then in effect on or before the
first day of each full calendar month during the Term, except that the first
month's rent shall be paid upon the execution of this Lease. The Monthly
Installment of Rent in effect at any time shall be one-twelfth of the Annual
Rent in effect at such time. Rent for any period during the Term which is less
than a full month shall be a prorated portion of the Monthly Installment of Rent
based upon a thirty (30) day month. Said rent shall be paid to Landlord, without
deduction or offset and without notice or demand, at the Landlord's address, as
set forth on the Reference Page, or to such other person or at such other place
as Landlord may from time to time designate in writing.
3.2 Tenant recognizes that late payment of any rent or other sum due under
this Lease will result in administrative expense to Landlord, the extent of
which additional expense is extremely difficult and economically impractical to
ascertain. Tenant therefore agrees that if rent or any other sum is not paid
when due and payable pursuant to this Lease, a late charge shall be imposed in
an amount equal to the greater of: (a) Fifty Dollars ($50.00), or (b) a sum
equal to five percent (5%) per month of the unpaid rent or other payment. The
amount of the late charge to be paid by Tenant shall be reassessed and added to
Tenant's obligation for each successive monthly period until paid. The
provisions of this Section 3.2 in no way relieve Tenant of the obligation to pay
rent or other payments on or before the date on which they are due, nor do the
terms of this Section 3.2 in any way affect Landlord's remedies pursuant to
Article 18 in the event said rent or other payment is unpaid after date due.
4. TAXES.
4.1 Tenant shall pay as additional rent all Taxes incurred on the Building
during the Term. Taxes shall be defined as real estate taxes and any other
taxes, charges and assessments which are levied with respect to the Building or
the land appurtenant to the Building, or with respect to any improvements,
fixtures and equipment or other property of Landlord, real or personal, located
in the Building and used in connection with the operation of the Building and
said land, any payments to any ground lessor in reimbursement of tax payments
made by such lessor; and if a reduction, rebate or refund is obtained, all fees,
expenses and costs incurred by Landlord in investigating, protesting, contesting
or in any way seeking to reduce or avoid increase in any assessments, levies or
the lax rate pertaining to any Taxes to be paid by Landlord in any Lease Year.
Taxes shall not include any corporate franchise, or estate, inheritance or net
income tax, or tax imposed upon any transfer by Landlord of its interest in this
Lease or the Building.
4.2 Prior to the actual determination thereof, Landlord may from time to
time estimate Tenant's liability for Taxes under Section 4.1, Article 6 and
Article 27 for the lease year or portion thereof. Landlord will give Tenant
written notification of the amount of such estimate and Tenant agrees that it
will pay, by increase of its Monthly Installments of Rent due in such lease
year, additional rent in the amount of such estimate. Any such increased rate of
Monthly Installments of Rent pursuant to this Section 4.2 shall remain in effect
until further written notification to Tenant pursuant hereto. Landlord will
provide copies of all tax bills.
4.3 When the above mentioned actual determination of Tenant's liability for
Taxes is made in any lease year and when Tenant is so notified in writing, then:
4.3.1 If the total additional rent Tenant actually paid pursuant to
Section 4.2 is less than Tenant's liability for Taxes, then Tenant shall pay to
Landlord as additional rent in one lump sum within thirty (30) days of receipt
of Landlord's xxxx therefor such deficiency; and
4.3.2 If the total additional rent Tenant actually paid pursuant to
Section 4.2 is more than Tenant's liability for Taxes, then Landlord shall
credit the difference against the then next due payments to be made by Tenant
under this Article 4.
4.4 If the Commencement Date is other than January 1 or if the Termination
Date is other than December 31, Tenant's liability for Taxes for the year in
which said Date occurs shall be prorated based upon a three hundred sixty five
(365) day year.
4.5 Even though the Term has expired and Tenant has vacated the premises,
when the final determination is made of Tenant's liability for Taxes for the
year in which the Lease terminated. Tenant shall pay any difference due over the
estimated Taxes paid; and conversely any overpayment, less any amounts due
Landlord under this Lease, shall be rebated to Tenant.
5. SECURITY DEPOSIT.
Tenant shall deposit the Security Deposit with Landlord upon the execution of
this Lease. Said sum shall be held by Landlord as security for the faithful
performance by Tenant of all the terms, covenants and conditions of this Lease
to be kept and performed by Tenant and not as an advance rental deposit or as a
measure of Landlord's damage in case of Tenant's default. If Tenant defaults
with respect to any provision of this Lease. Landlord may use any part of the
Security Deposit for the payment of any rent or any other sum in default, or for
the payment of any amount which Landlord may spend or become obligated to spend
by reason of Tenant's default, or to compensate Landlord for any other loss or
damage which Landlord may suffer by reason of Tenant's default. If any portion
is so used. Tenant shall within five (5) days after written demand therefor,
deposit with Landlord an amount sufficient to restore the Security Deposit to
its original amount and Tenant's failure to do so shall be a material breach of
this Lease. Except to such extent, if any, as shall be required by law, Landlord
shall not be required to keep the Security Deposit separate from its general
funds, and Tenant shall not be entitled to interest on such deposit. If Tenant
shall fully and faithfully perform every provision of this Lease to be performed
by it, the Security Deposit or any balance thereof shall be returned to Tenant
at such time after termination of this Lease when Landlord shall have determined
that all of Tenant's obligations under this Lease have been fulfilled.
See Rider
6. ALTERATIONS.
6.1 Except for those, if any, specifically provided for in Exhibit B to
this Lease. Tenant shall not make or suffer to be made any alterations.
additions, or improvements;
including, but not limited to, the attachment of any fixtures or equipment in,
on, or to the Premises or any part thereof or the making of any improvements as
required by Article 7. without the prior written consent of Landlord, When
applying for such consent, Tenant shall, if requested by Landlord, furnish
complete plans and specifications for such alterations, additions and
improvements. See Rider
6.2 In the event Landlord consents to the making of any such alteration,
addition or improvement by Tenant, the same shall be made using Landlord's
contractor (unless Landlord agrees otherwise) at Tenant's sole cost and expense.
If Tenant shall employ any Contractor other than Landlord's Contractor and such
other Contractor or any Subcontractor of such other Contractor shall employ any
non-union labor or supplier, Tenant shall be responsible for and hold Landlord
harmless from any and all delays, damages and extra costs suffered by Landlord
as a result of any dispute with any labor unions concerning the wage, hours,
terms or conditions of the employment of any such labor. In any event Landlord
may charge Tenant a reasonable charge to cover its overhead as it relates to
such proposed work.
6.3 All alterations. additions or improvements proposed by Tenant shall be
constructed in accordance with all government laws, ordinances, rules and
regulations and Tenant shall. prior to construction, provide the additional
insurance required under Article II in such case, and also all such assurances
to Landlord, including but not limited to, waivers of lien, surety company
performance bonds Landlord shall require to assure payment of the costs thereof
and to protect Landlord and the Building and appurtenant land against any loss
from any mechanic's, materialmen's or other liens.
6.4 All alterations, additions, and improvements in, on, or to the Premises
made or installed by Tenant, including carpeting, shall be and remain the
property of Tenant during the Term but, excepting furniture, furnishings,
movable partitions of less than full height from floor to ceiling and other
trade fixtures, shall become a part of the realty and belong to Landlord without
compensation to Tenant upon the expiration or sooner termination of the Term, at
which time title shall pass to Landlord under this Lease as by a xxxx of sale,
unless Landlord elects otherwise. Upon such election by Landlord, Tenant shall
upon demand by Landlord, at Tenant's sole cost and expense, forthwith and with
all due diligence remove any such alterations, additions or improvements which
are designated by Landlord to be removed, and Tenant shall forthwith and with
all due diligence, at its sole cost and expense, repair and restore the Premises
to their original condition, reasonable wear and tear and damage by fire or
other casualty excepted.
6.5 Tenant shall pay in addition to any sums due pursuant to Article 4, any
increase in real estate taxes attributable to any such alteration, addition or
improvement for so long, during the Term, as such increase is ascertainable, at
Landlord's election said sums shall be paid in the same way as sums due under
Article 4.
7. REPAIR.
7.1 Landlord shall have no obligation to alter, remodel, improve, repair,
decorate or paint the Premises, except as specified in Exhibit B if attached t
this Lease. By taking possession of the Premises, Tenant accepts them as being
in good order, condition and repair and in the condition in which Landlord is
obligated to deliver them. Tenant acknowledges that it is taking the Premises
"AS IS." It is hereby understood and agreed that no representations respecting
the condition of the Premises or the Building have been made by Landlord to
Tenant, except as specifically set forth in this Lease. Landlord shall not be
liable for any failure to make any repairs or to perform any maintenance unless
such failure shall persist for an unreasonable time after written notice of the
need of such repairs or maintenance is given to Landlord by Tenant. See Rider
7.2 Except for Landlord's obligations under Section 7.1, Tenant shall at
its own cost and expense keep and maintain all parts of the Premises in good
condition, promptly making all necessary repairs and replacements, whether
structural or non-structural, ordinary or extraordinary, with materials and
workmanship of the same character, kind and quality as the original (including,
but not limited to, repair and replacement of all fixtures installed by Tenant,
water heaters serving
the Premises, windows, glass and plate glass, doors, exterior stairs, skylights,
any special office entries, interior walls and finish work, floors and floor
coverings, heating and air conditioning systems, electrical systems and
fixtures, sprinkler systems, dock boards, truck doors, dock bumpers, parking
lots, driveways. landscaping, rail tracks serving the Premises, plumbing work
and fixtures, and performance of regular removal of trash and debris). Tenant as
part of its obligations hereunder shall keep the Premises in a clean and
sanitary condition, Tenant will, as far as possible keep all such parts of the
Premises from deterioration due to ordinary wear and from falling temporarily
out of repair, and upon termination of this Lease in any way Tenant will yield
up the Premises to Landlord in good condition and repair, loss by fire or other
casualty excepted (but not excepting any damage to glass).
7.3 Except as provided in Article 21, there shall be no abatement of rent
and no liability of Landlord by reason of any injury to or interference with
Tenant's business arising from the making of any repairs, alterations or
improvements in or to any portion of the Building or the Premises or to
fixtures, appurtenances and equipment in the Building. However, Landlord shall
use reasonable efforts to minimize interruption of Tenant's business during any
such activities.
7.4 Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
approved by Landlord and Tenant for servicing all heating and air conditioning
systems and equipment serving the Premises (and a copy thereof shall be
furnished to Landlord). The service contract must include all services suggested
by the equipment manufacturer in the operation/maintenance manual and must
become effective within thirty (30) days of the date Tenant takes possession of
the Premises. Landlord may, upon notice to Tenant, enter into such a
maintenance/service contract on behalf of Tenant, or perform the work and in
either case, charge Tenant the cost thereof along with a reasonable amount for
Landlord's overhead.
8. LIENS.
Tenant shall keep the Premises, the Building and appurtenant land and Tenant's
leasehold interest in the Premises free from an liens arising out of any
services, work or materials performed, furnished, or contracted for by Tenant,
or obligations incurred by Tenant. In the event that Tenant shall not, within
thirty (30) days following the imposition of any such lien, either cause the
same to be released of record or provide Landlord with insurance against the
same issued by a major title insurance company or such other protection against
the same as Landlord shall accept, Landlord shall have the right to cause the
same to be released by such means as it shall deem proper, including payment of
the claim giving rise to such lien. All such sums paid by Landlord and all
expenses incurred by it in connection therewith shall be considered additional
rent and shall be payable to it by Tenant on demand.
9. ASSIGNMENT AND SUBLETTING.
9.1 Tenant shall not have the right to assign or pledge this Lease or to
sublet the whole or any part of the Premises whether voluntarily or by operation
of law, or permit the use or occupancy of the Premises by anyone other than
Tenant, and shall not make, suffer or permit such assignment, subleasing or
occupancy without the prior written consent of Landlord, and said restrictions
shall be binding upon any and all assignees of the Lease and subtenants of the
Premises. In the event Tenant desires to sublet, or permit such occupancy of,
the Premises, or any portion thereof, or assign this Lease. Tenant shall give
written notice thereof to Landlord at least ninety (90) days but no more than
one hundred eighty (180) days prior to the proposed commencement date of such
subletting or assignment, which notice shall set forth the name of the proposed
subtenant or assignee, the relevant terms of any sublease or assignment and
copies of financial reports and other relevant financial reports and other
relevant financial information of the proposed subtenant or assignee.
9.2 Notwithstanding any assignment or subletting, permitted or otherwise,
Tenant shall at all times remain directly, primarily and fully responsible and
liable for the payment of the rent specified in this Lease and for compliance
with all of its other obligations under the terms, provisions and covenants of
this Lease. Upon the occurrence of an Event of Default, if the Premises or any
part of them are then assigned or sublet. Landlord, in addition to any other
remedies provided in this Lease or provided by law, may, at its option, collect
directly from such assignee or subtenant all rents due and becoming due to
Tenant under such assignment or sublease and apply such rent against any sums
due to Landlord from Tenant under this Lease, and no such collection shall be
construed to constitute a novation or release of Tenant from the further
performance of Tenant's obligations under this Lease.
9.3 In addition to Landlord's right to approve of any subtenant or
assignee, Landlord shall have the option, in its sole discretion, in the event
of any proposed subletting of more than 50% of the Premises or assignment of the
Lease to terminate this Lease, or in the case of a proposed subletting of less
than he entire Premises, to recapture the portion of the Premises to be sublet,
as of the date the
subletting or assignment is to be effective. The option shall be exercised, if
it all, by Landlord giving Tenant written notice given by Landlord to Tenant
within sixty (60) days following Landlord's receipt of Tenant's written notice
as required above. If this Lease shall be terminated with respect to the entire
Premises pursuant to this Section, the Term of this Lease shall end on the date
stated in Tenant's notice as the effective date, of the sublease or assignment
as if that date had been originally fixed in this Lease for the expiration of
this Term. If Landlord recaptures under this Section only a portion of the
Premises, the rent to be paid from time to time during the unexpired Term shall
xxxxx proportionately based on the proportion by which the approximate square
footage of the remaining portion of the Premises shall be less than that of the
Premises as of the date immediately prior to such recapture. Tenant shall at
Tenant's own cost and expense, discharge in full any outstanding commission
obligation on the part of Landlord with respect to this Lease, and any
commissions which may be due and owing as a result of any proposed assignment or
subletting, whether or not the Premises are recaptured pursuant to this Section
9.3 and rented by Landlord to the proposed tenant or any other tenant.
9.4 In the event that Tenant sells, sublets, assigns or transfers this
Lease, Tenant shall pay to Landlord as additional rent an amount equal to fifty
percent (50%) of any Increased Rent (as defined below) when and as such
Increased Rent is received by Tenant. As used in this Section, "Increased Rent"
shall mean the excess of (i) all rent and other consideration which Tenant is
entitled to receive by reason of any sale, sublease, assignment or other
transfer of this Lease, over (ii) the rent otherwise payable by Tenant under
this Lease at such time. For purposes of the foregoing, any consideration
received by Tenant in form other than cash shall be valued at its fair market
value as determined by Landlord in good faith.
9.5 Notwithstanding any other provision hereof, Tenant shall have no right
to make (and Landlord shall have the absolute right to refuse consent to) any
assignment of this Lease or sublease of any portion of the Premises if at the
time of either Tenant's notice of the proposed assignment or sublease or the
proposed commencement date thereof, there shall exist any uncured default of
Tenant or matter which will become a default of Tenant with passage of time
unless cured; or if the proposed assignee or sublessee is an entity: (a) with
which Landlord is already in negotiation as evidenced by the Issuance of a
written proposal; (b) is already an occupant of the Building unless Landlord is
unable to provide the amount of space required by such occupant; (c) is a
governmental agency; (d) is incompatible with the character of occupancy of the
Building; or (e) would subject the Premises to a use which would: (i) involve
increased personnel or wear upon the Building; (ii) violate any exclusive right
granted to another tenant of the Building; (iii) require any addition to or
modification of the Premises or the Building in order to comply with building
code or other governmental requirements; or, (iv) involves a violation of
Section 1.2. Tenant expressly agrees that Landlord shall have the absolute right
to refuse consent to any such assignment or sublease and that for the purposes
or any statutory or other requirement of reasonableness on the part of Landlord
such refusal shall be reasonable.
9.6 Upon any request to assign, or sublet, Tenant will pay to Landlord the
Assignment/Subletting Fee plus, on demand, a sum equal to all of Landlord's1
actual and reasonable costs, including reasonable attorney's fees, incurred in
investigating and considering any proposed or purported assignment or pledge of
this Lease or sublease of any of the Premises, regardless of whether Landlord
shall consent to, refuse consent, or determine that Landlord's consent is not
required for, such assignment, pledge or sublease. Any purported sale,
assignment, mortgage, transfer of this Lease or sublettIng which does not comply
with the provislons of this Article 9 shall be void.
9.7 If Tenant is a corporation, partnership or trust, any transfer or
transfers of or change or changes within any twelve month period in the number
of the outstanding voting shares of the corporation, the general partnership
interests in the partnership or the identity of the persons or entities
controlling the activities of such partnership or trust resulting in the xxxxxxx
or entities owning or controlling a majority or such shares, partnership
interests or activities of such partnership or trust at the beginning of such
period no longer having such ownership or control shall be regarded as
equivalent to an assignment of this Lease to the persons or entities acquiring
such ownership or control and shall be subject to all the provisions of this
Article 9 to the same extent and for all intents and purposes as though such an
assignment.
10. INDEMNIFICATION.
None of the Landlord Entities shall be liable and Tenant hereby waives all
claims against them for any damage to any property or any injury to any person
in or about the Premises by or from any cause whatsoever (including without
limiting the foregoing, rain or water leakage
that Landlord will indemnify and hold tenant harmless from such claims of any
character from the roof, windows, walls, basement, pipes, plumbing works or
appliances, the Premises not being in good condition of repair, gas, fire, oil,
electricity or theft), except that landlord will indemnify and hold tenant
harmless from such claims to the extent caused by or arising from the negligence
or willful misconduct of Landlord or its agents, employees or contractors.
Tenant shall protect, indemnify and hold the Landlord Entities harmless from and
against any and all loss, claims, liability or costs (including court costs and
attorney's fees) incurred by reason of (a) any damage to any property (including
but not limited to property of any Landlord Entity) or any injury (including but
not limited to death) to any person occurring in, on or about the Premises to
the extent that such injury or damage shall be caused by or arise from any
actual or alleged act, neglect, fault, or omission by or of Tenant, its agents,
servants, employees, invitees, or visitors to meet any standards imposed by any
duty with respect to the injury or damage; (b) the conduct or management of any
work or thing whatsoever done by the Tenant in or about the Premises or from
transactions of the Tenant concerning the Premises; (c) Tenant's failure to
comply with any and all governmental law, ordinances and regulations applicable
to the condition or use of the Premises or its occupancy, or (d) any breach or
default on the part of Tenant to the performance of any covenant or agreement on
the part of the Tenant to be performed pursuant to this Lease. The provisions of
this Article shall survive the termination of this Lease with respect to any
claims or liability accruing prior to such termination.
11. INSURANCE.
11.1 Tenant shall keep in force throughout the Term: (a) a Commercial
General Liability Insurance policy or policies to protect the Landlord Entities
against any liability to the public or to any invitee of Tenant or a Landlord
Entity incidental to the use of or resulting from any accident occurring in or
upon the Premises with a limit of not less than $1,000,000.00 per occurrence and
not less than $2,000,000.00 in the annual aggregate, or such larger amount as
Landlord may prudently require from time to time, covering bodily injury and
property damage liability and $1,000,000 products/completed operations
aggregate; (b) Business Auto Liability covering owned, non-owned and hired
vehicles with a limit of not less than $1,000,000 per accident; (c) insurance
protecting against liability under Worker's Compensation Laws with limits at
least as required by statute; (d) Employers Liability with limits of $500,000
each accident, $500,000 disease policy limit, $500,000 disease--each employee;
(e) All Risk or Special Form coverage protecting Tenant against loss of or
damage to Tenant's alterations, additions, improvements, carpeting, floor
coverings, panelings, decorations, fixtures, inventory and other business
personal property situated in or about the Premises to the full replacement
value of the property so insured; and, (f) Business Interruption Insurance with
limit of liability representing loss of at least approximately six months of
income.
11.2 Each of the aforesaid policies shall (a) be provided at Tenant's
expense; (b) name the Landlord and the building management company, if any, as
additional insureds; (c) be issued by an insurance company with a minimum Best's
rating of "A:VII" during the Term; and (d) provide that said insurance shall not
be cancelled unless thirty (30) days prior written notice (ten days for
non-payment of premium) shall have been given to Landlord; and said policy or
policies or certificates thereof shall be delivered to Landlord by Tenant upon
the Commencement Date and at least thirty (30) days prior to each renewal of
said insurance. see Rider
11.3 Whenever Tenant shall undertake any alterations, additions or
improvements in, to or about the Premises ("Work") the aforesaid
insurance protection must extend to and include injuries to persons and damage
to property arising in connection with such Work, without limitation including
liability under any applicable structural work act, and such other insurance as
Landlord shall require; and the policies of or certificates evidencing such
insurance must be delivered to Landlord prior to the commencement of any such
Work.
12. WAIVIR OF SUBROGATION.
So long as their respective insurers so permit, Tenant and Landlord hereby
mutually waive their respective rights of recovery against each other for any
loss insured by fire, extended coverage, all Risks or other insurance now or
hereafter existing for the benefit of the respective party but only to the
extent of the net insurance proceeds payable under such policies. Each party
shall obtain any special endorsements required by their insurer to evidence
compliance with the aforementioned waiver.
13. SERVICES AND UTILITIES.
Tenant shall pay for all water, gas, heat, light, power, telephone, sewer,
sprinkler system charges and other utilities and services used on or from the
Premises, including without limitation, the cost of any central station
signaling system installed in the Premises together
with any taxes, penalties, and surcharges or the like pertaining thereto and any
maintenance charges for utilities. Any such charges paid by Landlord and
assessed against Tenant shall be immediately payable to Landlord on demand and
shall be additional rent hereunder. Landlord shall in no event be liable for any
interruption or failure of utility services on or to the Premises.
14. HOLDING OVER.
Tenant shall pay Landlord for each day Tenant retains possession of the Premises
or part of them after termination of this Lease by lapse of time or otherwise at
the rate ("Holdover Rate") which shall be 150% of the greater of: (a) the amount
of the Annual Rent for the last period prior to the date of such termination
plus all Rent Adjustments under Article 4; and, (b) the then market rental value
of the Premises as determined by Landlord assuming a new lease of the Premises
of the then usual duration and other terms, in either case prorated on a daily
basis, and also pay all damages sustained by Landlord by reason of such
retention. If Landlord gives notice to Tenant of Landlord's election to that
effect, such holding over shall constitute renewal of this Lease for a period
from month to month or one year, whichever shall be specified in such notice, in
either case at the Holdover Rate, but if the Landlord does not so elect, no such
renewal shall result notwithstanding acceptance by Landlord of any sums due
hereunder after such termination; and instead, a tenancy at sufferance at the
Holdover Rate shall be deemed to have been created. In any event, no provision
of this Article 14 shall be deemed to waive Landlord's right of reentry or any
other right under this Lease or at law.
15. SUBORDINATION.
Without the necessity of any additional document being executed by Tenant for
the purpose of effecting a subordination, this Lease shall be subject and
subordinate at all times to ground or underlying leases and to the lien of any
mortgages or deeds of trust now or hereafter placed on, against or affecting the
Building, Landlord's interest or estate in the Building, or any ground or
underlying lease; provided, however, that if the lessor, mortgagee, trustee, or
holder of any such mortgage or deed of trust elects to have Tenant's interest in
this Lease be superior to any such instrument, then, by notice to Tenant, this
Lease shall be deemed superior, whether this Lease was executed before or after
said instrument. Notwithstanding the foregoing, Tenant covenants and agrees to
execute and deliver upon demand such further instruments evidencing such
subordination or superiority of this Lease as may be required by Landlord.
16. REENTRY BY LANDLORD.
16.1 Landlord reserves and shall at all times upon reasonable prior notice
(except in emergencies) have the right to re-enter the Premises to inspect the
same, to show said Premises to prospective purchasers, mortgagees or tenants,
and to alter, improve or repair the Premises and any portion of the Building,
without abatement of rent, and may for that purpose erect, use and maintain
scaffolding, pipes, conduits and other necessary structures and open any wall,
ceiling or floor in and through the Building and Premises where reasonably
required by the character of the work to be performed, provided entrance to the
Premises shall not be blocked thereby, and further provided that the business of
Tenant shall not be interfered with unreasonably.
16.2 Except to the extent of Landlord's negligence, Tenant hereby waives
any claim for damages for any injury or inconvenience to or interference with
Tenant's business, any loss of occupancy or quiet enjoyment of the Premises, and
any other loss occasioned by any action of Landlord authorized by this Article
16. Tenant agrees to reimburse Landlord, on demand, as additional rent, for any
expenses which Landlord may incur in thus effecting compliance with Tenant's
obligations under this Lease.
16.3 For each of the aforesaid purposes, Landlord shall at all times have
and retain a key with which to unlock all of the doors in the Premises,
excluding Tenant's vaults and safes or special security areas (designated in
advance), and Landlord shall have the right to use any and all means which
Landlord may deem proper to open said doors in an emergency to obtain entry to
any portion of the Premises. As to any portion to which access can not be had by
means of a key or keys in Landlord's possession. Landlord is authorized to gain
access by such means as Landlord shall elect and the cost of repairing any
damage occurring in doing so shall be borne by Tenant and paid to Landlord as
additional rent upon demand.
17. DEFAULT.
17.1 Except as otherwise provided in Article 19, the following events shall
be deemed to be Events of Default under this Lease:
17.1.1 Tenant shall fail to pay when due any sum of money becoming due
to be paid to Landlord under this Lease, whether such sum be any installment of
the rent reserved by this Lease, any other amount treated as additional rent
under this Lease, or any other payment or reimbursement to Landlord required by
this Lease, whether or not treated as additional rent under this Lease, and such
failure shall continue for a period of five business days after written notice
that such payment was not made when due, but if any such notice shall be given,
for the twelve month period commencing with the date of such notice, the failure
to pay within five business days after due any additional sum of money becoming
due to be paid to Landlord under this Lease during such period shall be an Event
of Default, without notice.
17.1.2 Tenant shall fail to comply with any term, provision or
covenant of this Lease which is not provided for in another Section of this
Article and shall not cure such failure within thirty (30) days (forthwith, if
the failure involves a hazardous condition) after written notice of such failure
to Tenant.
17.1.3 Tenant shall fail to vacate the Premises immediately upon
termination of this Lease, by lapse of time or otherwise, or upon termination of
Tenant's right to possession only.
17.1.4 Tenant shall become insolvent, admit in writing its inability
to pay its debts generally as they become due, file a petition in bankruptcy or
a petition to take advantage of any insolvency statute, make an assignment for
the benefit of creditors, make a transfer in fraud of creditors, apply for or
consent to the appointment of a receiver of itself or of the whole or any
substantial part of its property, or file a petition or answer seeking
reorganization or arrangement under the federal bankruptcy laws, as now in
effect or hereafter amended, or any other applicable law or statute of the
United States or any state thereof. See Rider
17.1.5 A court of competent jurisdiction shall enter an order,
judgment or decree adjudicating Tenant bankrupt, or appointing a receiver of
Tenant, or of the whole or any substantial part of its property, without the
consent of Tenant, or approving a petition filed against Tenant seeking
reorganization or arrangement of Tenant under the bankruptcy laws of the United
States, as now in effect or hereafter amended, or any state thereof, and such
order, judgment or decree shall not be vacated or set aside or stayed within
thirty (30) days from the date of entry thereof.
18. REMEDIES.
18.1 Except as otherwise provided in Article 19, upon the occurrence of any
of the Events of Default described or referred to in Article 17 and after
expiration of all cure and/or grace periods stated there, Landlord shall have
the option to pursue any one or more of the following remedies without any
notice or demand whatsoever, concurrently or consecutively and not
alternatively:
18.1.1 Landlord may, at its election, terminate this Lease or
terminate Tenant's right to possession only, without terminating the Lease.
18.1.2 Upon any termination of this Lease, whether by lapse of time or
otherwise, or upon any termination of Tenant's right to possession without
termination of the Lease, Tenant shall surrender possession and vacate the
Premises immediately, and deliver possession thereof to Landlord, and Tenant
hereby grants to Landlord full and free license to enter into and upon the
Premises in such event and to repossess Landlord of the Premises as of
Landlord's former estate and to expel or remove Tenant and any others who may be
occupying or be within the Premises and to remove Tenant's signs and other
evidence of tenancy and all other property of Tenant therefrom without being
deemed in any manner guilty of trespass, eviction or forcible entry or detainer,
and without incurring any liability for any damage resulting therefrom, Tenant
waiving any right to claim damages for such reentry and expulsion, and without
relinquishing Landlord's right to rent or any other right given to Landlord
under this Lease or by operation of law.
18.1.3 Upon any termination of this Lease, whether by lapse of time or
otherwise, Landlord shall be entitled to recover as damages, all rent, including
any amounts treated as additional rent under this Lease, and other sums due and
payable by Tenant on the date of termination, plus as liquidated damages and not
as a penalty, an amount equal to the sum of: (a) an amount equal to the then
present value of the rent reserved in this Lease for the residue of the stated
Term of this Lease including any amounts treated as additional rent under this
Lease and all other sums provided in this Lease to be paid by Tenant, minus the
fair rental value of the Premises for such residue; (b) the value of the time
and expense necessary to obtain a replacement tenant or tenants, and the
estimated expenses described in Section 18.1.4 relating to recovery of the
Premises, preparation for reletting and for reletting itself;
and (c) the cost of performing any other covenants which would have otherwise
been performed by Tenant.
18.1.4 Upon any termination of Tenant's right to possession only
without termination of the Lease:
18.1.4.1 Neither such termination of Tenant's right to possession nor
Landlord's taking and holding possession thereof as provided in Section 18.1.2
shall terminate the Lease or release Tenant, in whole or in part, from any
obligation, including Tenant's obligation to pay the rent, including any amounts
treated as additional rent, under this Lease for the full Term, and if Landlord
so elects Tenant shall pay forthwith to Landlord the sum equal to the entire
amount of the rent, including any amounts treated as additional rent under this
Lease, for the remainder of the Term plus any other sums provided in this Lease
to be paid by Tenant for the remainder of the Term.
18.1.4.2 Landlord shall use commercially reasonable efforts to relet
the Premises or any part thereof for such rent and upon such terms as Landlord,
in its sole discretion, shall determine (including the right to relet the
premises for a greater or lesser term than that remaining under this Lease, the
right to relet the Premises as a part of a larger area, and the right to change
the character or use made of the Premises). In connection with or in preparation
for any reletting, Landlord may, but shall not be required to, make repairs,
alterations and additions in or to the Premises and redecorate the same to the
extent Landlord deems necessary or desirable, and Tenant shall, upon demand, pay
the cost thereof, together with Landlord's expenses of reletting, including,
without limitation, any broker's commission incurred by Landlord. Landlord and
Tenant agree that nevertheless Landlord shall at most be required to use only
the same efforts Landlord then uses to lease premises in the Building generally
and that in any case that Landlord shall not be required to give any preference
or priority to the showing or leasing of the Premises over any other space that
Landlord may be leasing or have available and may place a suitable prospective
tenant in any such other space regardless of when such other space becomes
available. Landlord shall not be required to observe any instruction given by
Tenant about any reletting or accept any tenant offered by Tenant unless such
offered tenant has a credit-worthiness acceptable to Landlord and leases the
entire Premises upon terms and conditions including a rate of rent (after giving
effect to all expenditures by Landlord for tenant improvements, broker's
commissions and other leasing costs) all no less favorable to Landlord than as
called for in this Lease, nor shall Landlord be required to make or permit any
assignment or sublease for more than the current term or which Landlord would
not be required to permit under the provisions of Article 9.
18.1.4.3 Until such time as Landlord shall elect to terminate the
Lease and shall thereupon be entitled to recover the amounts specified in such
case in Section 18.1.3, Tenant shall pay to Landlord upon demand the full amount
of all rent, including any amounts treated as additional rent under this Lease
and other sums reserved in this Lease for the remaining Term, together with the
costs of repairs, alterations, additions, redecorating and Landlord's expenses
of reletting and the collection of the rent accruing therefrom (including
attorney's fees and broker's commissions), as the same shall then be due or
become due from time to time, less only such consideration as Landlord may have
received from any reletting of the Premises; and Tenant agrees that Landlord may
file suits from time to time to recover any sums falling due under this Article
18 as they become due. Any proceeds of reletting by Landlord in excess of the
amount then owed by Tenant to Landlord from time to time shall be credited
against Tenant's future obligations under this Lease but shall not otherwise be
refunded to Tenant or inure to Tenant's benefit.
18.2 Landlord may, at Landlord's option, enter into and upon the Premises
if Landlord determines in its sole discretion that Tenant is not acting within a
commercially reasonable time to maintain, repair or replace anything for which
Tenant is responsible under this Lease and correct the same, without being
deemed in any manner guilty of trespass, eviction or forcible entry and detainer
and without incurring any liability for any damage or interruption of Tenant's
business resulting therefrom. If Tenant shall have vacated the Premises.
Landlord may at Landlord's option re-enter the Premises at any time during the
last six months of the then current Term of this Lease and make any and all such
changes, alterations, revisions, additions and tenant and other improvements in
or about the Premises as Landlord shall elect, all without any abatement of any
of the rent otherwise to be paid by Tenant under this Lease.
18.3 If, on account of any breach or default by Tenant in Tenant's
obligations under the terms and conditions of this Lease, it shall become
necessary or appropriate for Landlord to employ or consult with an attorney
concerning or to enforce or defend any of Landlord's rights or remedies arising
under this Lease, Tenant agrees to pay all Landlord's attorney's
fees so incurred.
18.4 Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of the other remedies provided in this Lease or any other remedies provided
by Law (all such remedies being cumulative), nor shall pursuit of any remedy
provided in this Lease constitute a forfeiture or waiver of any rent due to
Landlord under this Lease or of any damages accruing to Landlord by reason of
the violation of any of the terms, provisions and covenants contained in this
Lease.
18.5 No act or thing done by Landlord or its agents during the Term shall
be deemed a termination of this Lease or an acceptance of the surrender of the
Premises, and no agreement to terminate this Lease or accept a surrender of said
Premises shall be valid, unless in writing signed by Landlord. No waiver by
Landlord of any violation or breach of any of the terms, provisions and
covenants contained in this Lease shall be deemed or construed to constitute a
waiver of any other violation or breach of any of the terms, provisions and
covenants contained in this Lease. Landlord's acceptance of the payment of
rental or other payments after the occurrence of an Event of Default shall not
be construed as a waiver of such Default, unless Landlord so notifies Tenant in
writing. Forbearance by Landlord in enforcing one or more of the remedies
provided in this Lease upon an Event of Default shall not be deemed or construed
to constitute a waiver of such Default or of Landlord's right to enforce any
such remedies with respect to such Default or any subsequent Default.
18.7 Any and all property which may be removed from the Premises by
Landlord pursuant to the authority of this Lease or of law, to which Tenant is
or may be entitled. may be handled, removed and/or stored, as the case may be,
by or at the direction of Landlord but at the risk, cost and expense of Tenant,
and Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such property
so long as the same shall be in Landlord's possession or under Landlord's
control. Any such property of Tenant not retaken by Tenant from storage within
thirty (30) days after removal from the Premises shall, at Landlord's option, be
deemed conveyed by Tenant to Landlord under this Lease as by a xxxx of sale
without further payment or credit by Landlord to Tenant.
19. TENANT'S BANKRUPTCY OR INSOLVENCY.
19.1 If at any time and for so long as Tenant shall be subjected to the
provisions of the United States Bankruptcy Code or other law of the United
States or any state thereof for the protection of debtors as in effect at such
time (each a "Debtor's Law"):
19.1.1 Tenant, Tenant as debtor-in-possession, and any trustee or
receiver of Tenant's assets (each a "Tenant's Representative") shall have no
greater right to assume or assign this Lease or any interest in this Lease, or
to sublease any of the Premises than accorded to Tenant in Article 9, except to
the extent Landlord shall be required to permit such assumption, assignment or
sublease by the provisions of such Debtor's Law. Without limitation of the
generality of the foregoing, any right of any Tenant's Representative to assume
or assign this Lease or to sublease any of the Premises shall be subject to the
conditions that:
19.1.1.1 Such Debtor's Law shall provide to Tenant's
Representative aright of assumption of this Lease which Tenant's Representative
shall have timely exercised and Tenant's Representative shall have fully cured
any default of Tenant under this Lease.
19.1.1.2 Tenant's Representative or the proposed assignee, as
the case shall be, shall have deposited with Landlord as security for the timely
payment of rent an amount equal to the larger of: (a) three months' Rent and
other monetary charges accruing under this Lease; and (b) any sum specified in
Article 5; and shall have provided Landlord with adequate other assurance of the
future performance of the obligations of the Tenant under this Lease. Without
limitation, such assurances shall include, at least, in the case of assumption
of this Lease, demonstration to the satisfaction of the Landlord that Tenant's
Representative has and will continue to have sufficient unencumbered assets
after the payment of all secured obligations and administrative expenses to
assure Landlord that Tenant's Representative will have sufficient funds to
fulfill the obligations of Tenant under this Lease; and, in the case of
assignment, submission of current financial statements of the proposed assignee,
audited by an independent certified public accountant reasonably acceptable to
Landlord and showing a net worth and working capital in amounts determined by
Landlord to be sufficient to assure the future performance by such assignee of
all of the Tenant's obligations under this Lease.
19.1.1.3 The assumption or any contemplated assignment of this
Lease or subleasing any part of the Premises, as shall be the case, will not
breach any provision in any other lease, mortgage, financing agreement or other
agreement by which Landlord is bound.
19.1.1.4 Landlord shall have. or would have had absent the
Debtor's Law, no right under Article 9 to refuse consent to the proposed
assignment or sublease by reason of the identity or nature of the proposed
assignee or Sublessee or the proposed use of the Premises concerned.
20. QUIET ENJOYMENT.
Landlord represents and warrants that it has full right and authority to enter
into this Lease and that Tenant, while paying the rental and performing its
other covenants and agreements contained in this Lease, shall peaceably and
quietly have, hold and enjoy the Premises for the Term without hindrance or
molestation from Landlord subject to the terms and provisions of this Lease.
Landlord shall not be liable for any interference or disturbance by other
tenants or third persons, nor shall Tenant be released from any of the
obligations of this Lease because of such interference or disturbance.
21. DAMAGE BY FIRE, ETC.
21.1 Landlord shall maintain all insurance policies deemed by Landlord to
be reasonably necessary or desirable and relating in any manner to the
protection, preservation or operation of the Premises, including by not limited
to, standard fire and extended coverage insurance covering the Premises in an
amount not less than ninety percent (90%) of the replacement cost thereof
insuring against the perils of fire and lightning and including extended
coverage or, at Landlord's option, all risk coverage and, if Landlord so elects,
earthquake, flood and wind coverages and Tenant shall pay, as additional rent,
the cost of such policies upon demand by Landlord. Such insurance shall be for
the sole benefit of Landlord and under its sole control. Tenant shall not take
out separate insurance concurrent in form or contributing in the event of loss
with that required to be maintained by Landlord hereunder unless Landlord is
included as a loss payee thereon. Tenant shall immediately notify Landlord
whenever any such separate insurance is taken out and shall promptly deliver to
Landlord the policy or policies of such insurance.
21.2 In the event the Premises or the Building are damaged by fire or other
cause and in Landlord's reasonable estimation such damage can be materially
restored within one hundred eighty (180) days, Landlord shall forthwith repair
the same and this Lease shall remain in full force and effect, except that
Tenant shall be entitled to a proportionate abatement in rent from the date of
such damage. Such abatement of rent shall be made pro rata in accordance with
the extent to which the damage and the making of such repairs shall interfere
with the use and occupancy by Tenant of the Premises from time to time. Within
thirty (30) days from the date of such damage, Landlord shall notify Tenant, in
writing, of Landlord's reasonable estimation of the length of time within which
material restoration can be made, and Landlord's determination shall be binding
on Tenant. For purposes of this Lease, the Building or Premises shall be deemed
materially restored if they are in such condition as would not prevent or
materially interfere with Tenant's use of the Premises for the purpose for which
it was being used immediately before such damage.
21.3 If such repairs cannot, in Landlord's reasonable estimation, be made
within one hundred eighty (180) days, Landlord and Tenant shall each have the
option of giving the other at any time within forty-five (45) days after such
damage, notice terminating this Lease as of the
date of such damage. In the event of the giving of such notice, this Lease shall
expire and all interest of the Tenant in the Premises shall terminate as of the
date of such damage at if such date had been originally fixed in this Lease for
the expiration of the Term. In the event that neither Landlord nor Tenant
exercises its option to terminate this Lease, then Landlord shall repair or
restore such damage, this Lease continuing in full force and effect, and the
rent hereunder shall be proportionately abated as provided in Section 21.2.
21.4 Landlord shall not be required to repair or replace any damage or loss
by or from fire or other cause to any panelings, decorations, partitions,
additions, railings, ceilings, floor coverings, office fixtures or any other
property or improvements installed on the Premises or belonging to Tenant. Any
insurance which may be carried by Landlord or Tenant against loss or damage to
the Building or Premises shall be for the sole benefit of the party carrying
such insurance and under its sole control.
21.5 In the event that Landlord should fail to complete such repairs and
material restoration within forty-five (45) days after the date estimated by
Landlord therefor as extended by this Section 21.5, Tenant may at its option and
as its sole remedy terminate this Lease by delivering written notice to
Landlord, within fifteen (15) days after the expiration of said period of time,
whereupon the Lease shall end on the date of such notice or such later date
fixed in such notice as if the date of such notice was the date originally fixed
in this Lease for the expiration of the Term; provided, however, that if
construction is delayed because of changes, deletions or additions in
construction requested by Tenant, strike, lockouts, casualties, Acts of God,
war, material or labor shortages, government regulation or control or other
causes beyond the reasonable control of Landlord, the period for restoration,
repair or rebuilding shall be extended for the amount or time Landlord is so
delayed.
21.6 Notwithstanding anything to the contrary contained in this Article:
(a) Landlord shall not have any obligation whatsoever to repair, reconstruct, or
restore the Premises when the damages resulting from any casualty covered by the
provisions of this Article 21 occur during the last twelve (12) months of the
Term or any extension thereof, but if Landlord determines not to repair such
damages Landlord shall notify Tenant within 30 days after the casualty and if
such damages shall render any material portion of the Premises untenantable as
determined by Tenant acting reasonably Tenant shall have the right to terminate
this Lease by notice to Landlord within fifteen (15) days after receipt of
Landlord's notice; and (b) in the event the holder of any indebtedness secured
by a mortgage or deed of trust covering the Premises or Building requires that
any insurance proceeds be applied to such indebtedness, then Landlord shall have
the right to terminate this Lease by delivering written notice of termination to
Tenant within fifteen (15) days after such requirement is made by any such
holder, whereupon this Lease shall end on the date of such damage as if the
date of such damage were the date originally fixed in this Lease for the
expiration of the Term.
21.7 In the event of any damage or destruction to the Building or Premises
by any peril covered by the provisions of this Article 21, it shall be Tenant's
responsibility to properly secure the Premises and upon notice from Landlord to
remove forthwith, at its sole cost and expense, such portion of all of the
property belonging to Tenant or its licensees from such portion or all of the
Building or Premises as Landlord shall reasonably request.
22. EMINENT DOMAIN.
If all or any substantial part of the Premises shall be taken or appropriated by
any public or quasi-public authority under the power of eminent domain, or
conveyance in lieu of such appropriation, either party to this Lease shall have
the right, at its option, of giving the other, at any time within thirty (30)
days after such taking, notice terminating this Lease, except that Tenant may
only terminate this Lease by reason of taking or appropriation, if such taking
or appropriation shall be so substantial as to materially interfere with
Tenant's use and occupancy of the Premises. If neither party to this Lease shall
so elect to terminate this Lease, the rental thereafter to be paid shall be
adjusted on a fair and equitable basis under the circumstances. In addition to
the rights of Landlord above, if any substantial part of the Building shall be
taken or appropriated by any public or quasi-public authority under the power of
eminent domain or conveyance in lieu thereof, and regardless of whether the
Premises or any part thereof are so taken or appropriated, Landlord shall have
the right, at its sole option, to terminate this Lease. Landlord shall be
entitled to any and all income, rent, award, or any interest whatsoever in or
upon any such sum, which may be paid or made in connection with any such public
or quasi-public use or purpose, and Tenant hereby assigns to Landlord any
interest it may have in or claim to all or any part of such sums, other than any
separate award which may be made with respect to Tenant's trade fixtures and
moving expenses; Tenant shall make no claim for the value of any unexpired Term.
23. SALE BY LANDLORD.
In event of a sale or conveyance by Landlord of the Building, the same shall
operate to release Landlord from any future liability upon any of the covenants
or conditions, expressed or implied, contained in this Lease in favor of Tenant,
and in such event Tenant agrees to look
solely to the responsibility of the successor in interest of Landlord in and to
this Lease. Except as set forth in this Article 23, this Lease shall not be
affected by any such sale and Tenant agrees to attorn to the purchaser or
assignee. If any security has been given by Tenant to secure the faithful
performance of any of the covenants of this Lease, Landlord may transfer or
deliver said security, as such, to Landlord's successor in interest and
thereupon Landlord shall be discharged from any further liability with regard to
said security.
24. ESTOPPEL CERTIFICATES.
Within ten (10) days following any written request which Landlord may make from
time to time, Tenant shall execute and deliver to Landlord or mortgagee or
prospective mortgagee a sworn statement certifying: (a) the date of commencement
of this Lease; (b) the fact that this Lease is unmodified and in full force and
effect (or, if there have been modifications to this Lease, that this lease is
in full force and effect, as modified, and stating the date and nature of such
modifications); (c) the date to which the rent and other sums payable under this
Lease have been paid; (d) the fact that there are no current material defaults
under this Lease by either Landlord or Tenant except as specified in Tenant's
statement; and (e) such other matters as may be requested by Landlord. Landlord
and Tenant intend that any statement delivered pursuant to this Article 24 may
be relied upon by any mortgagee, beneficiary or purchaser and Tenant shall be
liable for all loss, cost or expense resulting from the failure of any sale or
funding of any loan caused by any material misstatement contained in such
estoppel certificate. Tenant irrevocably agrees that if Tenant fails to execute
and deliver such certificate within such ten (10) day period Landlord or
Landlord's beneficiary or agent may execute and deliver such certificate on
Tenant's behalf, and that such certificate shall be fully binding on Tenant.
25. SURRENDER OF PREMISES.
25.1 Tenant shall, at least thirty (30) days before the last day of the
Term, arrange to meet Landlord for a joint inspection of the Premises. In the
event of Tenant's failure to arrange such joint inspection to be held prior to
vacating the Premises, Landlord's inspection at or after Tenant's vacating the
Premises shall be conclusively deemed correct for purposes of determining
Tenant's responsibility for repairs and restoration.
25.2 At the end of the Term or any renewal of the Term or other sooner
termination of this Lease, Tenant will peaceably deliver up to Landlord
possession of the Premises, together with all improvements or additions upon or
belonging to the same, by whomsoever made, in the same conditions received or
first installed, broom clean and free of all debris, expecting only ordinary
wear and tear and damage by fire or other casualty. Tenant may, and at
Landlord's request shall, at Tenant's sole cost, remove upon termination of this
Lease, any and all furniture, furnishings, movable partitions of less than full
height from floor to ceiling, trade fixtures and other property installed by
Tenant, title to which shall not be in or pass automatically to Landlord upon
such termination, repairing all damage caused by such removal. Property not so
removed shall, unless requested to be removed, be deemed abandoned by the Tenant
and title to the same shall thereupon pass to Landlord under this Lease as by a
xxxx of sale. All other alterations, additions and improvements in, on or to the
Premises shall be dealt with and disposed of as provided in Article 6.
25.3 All obligations of Tenant under this Lease not fully performed as of
the expiration or earlier termination of the Term shall survive the expiration
or earlier termination of the Term. In the event that Tenant's failure to
perform prevents Landlord from releasing the Premises, Tenant shall continue to
pay rent pursuant to the provisions of Article 14 until such performance is
complete. Upon the expiration or earlier termination of the Term, Tenant shall
pay to Landlord the amount, as estimated by Landlord, necessary to repair and
restore the Premises as provided in this Lease and/or to discharge Tenant's
obligation for unpaid amounts due or to become due to Landlord. All such amounts
shall be used and held by Landlord for payment of such obligations of Tenant,
with Tenant being liable for any additional costs upon demand by Landlord, or
with any excess to be returned to Tenant after all such obligations have been
determined and satisfied. Any otherwise unused Security Deposit shall be
credited against the amount payable by Tenant under this Lease.
26. NOTICES.
Any notice or document required or permitted to be delivered under this Lease
shall be addressed to the intended recipient, shall be transmitted personally.
by fully prepaid registered or certified United States Mail return receipt
requested, or by reputable independent contract delivery service furnishing a
written record of attempted or actual delivery, and shall be deemed to be
delivered when tendered for delivery to the addressee at its address set forth
on the Reference Page, or at such other address as it has then last
specified by written notice delivered in accordance with this Article 26, or if
to Tenant at either its aforesaid address or its last known registered office or
home of a general partner or individual owner, whether or not actually accepted
or received by the addressee. See Rider
27. TAXES PAYABLE BY TENANT.
In addition to rent and other charges to be paid by Tenant under this Lease,
Tenant shall reimburse to Landlord, upon demand, any and all taxes payable by
Landlord (other than net income taxes) whether or not now customary or within
the contemplation of the parties to this Lease: (a) upon, allocable to. or
measured by or on the gross or net rent payable under this Lease, including
without limitation any gross income tax or excise tax levied by the State, any
political subdivision thereof, or the Federal Government with respect to the
receipt of such rent; (b) upon or with respect to the possession, leasing,
operation, management, maintenance, alteration, repair, use or occupancy of the
Premises or any portion thereof, including any sales, use or service tax imposed
as a result thereof; (c) upon or measured by the Tenant's gross receipts or
payroll or the value of Tenant's equipment, furniture, fixtures and other
personal property of Tenant or leasehold improvements, alterations or additions
located in the Premises; or (d) upon this transaction or any document to which
Tenant is a party creating or transferring any interest of Tenant in this Lease
or the Premises. In addition to the foregoing, Tenant agrees to pay, before
delinquency, any and all taxes levied or assessed against Tenant and which
become payable during the term hereof upon Tenant's equipment, furniture,
fixtures and other personal property of Tenant located in the Premises.
28. DEFINED TERMS AND HEADINGS.
The Article headings shown in this Lease are for convenience of reference and
shall in no way define, increase, limit or describe the scope or intent of any
provision of this Lease. Any indemnification or insurance of Landlord shall
apply to and inure to the benefit of all the following "Landlord Entities",
being Landlord, Landlord's investment manager, and the trustees, boards of
directors, officers, general partners, beneficiaries, stockholders, employees
and agents of each of them. Any option granted to Landlord shall also include or
be exercisable by Landlord's trustee, beneficiary, agents and employees, as the
case may be. In any case where this Lease is signed by more than one person, the
obligations under this Lease shall be joint and several. The terms "Tenant" and
"Landlord" or any pronoun used in place thereof shall indicate and include the
masculine or feminine, the singular or plural number. Individuals, firms or
corporations, and each of their respective successors, executors, administrators
and permitted assigns, according to the context hereof. The term "rentable area"
shall mean the rentable area of the Premises or the Building as calculated by
the Landlord on the basis of the plans and specifications of the Building
including a proportionate share of any common areas. Tenant hereby accepts and
agrees to be bound by the figures for the rentable space footage of the Premises
and Tenant's Proportionate Share shown on the Reference Page.
29. TENANT'S AUTHORITY.
If Tenant signs as a corporation each of the persons executing this Lease on
behalf of Tenant represents and warrants that Tenant has been and is qualified
to do business in the state in which the Building is located, that the
corporation has full right and authority to enter into this Lease, and that all
persons signing on behalf of the corporation were authorized to do so by
appropriate corporate actions. If Tenant signs as a partnership, trust or other
legal entity, each of the persons executing this Lease on behalf of Tenant
represents and warrants that Tenant has complied with all applicable laws, rules
and governmental regulations relative to its right to do business in the state
and that such entity on behalf of the Tenant was authorized to do so by any and
all appropriate partnership, trust or other actions. Tenant agrees to furnish
promptly upon request a corporate resolution, proof of due authorization by
partners, or other appropriate documentation evidencing the due authorization of
Tenant to enter into this Lease.
30. COMMISSIONS.
Each of the parties represents and warrants to the other that it has not dealt
with any broker or finder in connection with this Lease, except as described on
the Reference Page.
31. TIME AND APPLICABLE LAW.
Time is of the essence of this Lease and all of its provisions. This Lease shall
in all respects be governed by the laws of the state in which the Building is
located.
32. SUCCESSORS AND ASSIGNS.
Subject to the provisions of Article 9, the terms, covenants and conditions
contained in this Lease shall be binding upon and inure to the benefit of the
heirs, successors, executors, administrators and assigns of the parties to this
Lease.
33. ENTIRE AGREEMENT.
This Lease, together with its exhibits, contains all agreements of the parties
to this Lease and supersedes any previous negotiations. There have been no
representations made by the Landlord or understandings made between the parties
other than those set forth in this Lease and its exhibits. This Lease may not be
modified except by a written instrument duly executed by the parties to this
Lease.
34. EXAMINATION NOT OPTION.
Submission of this Lease shall not be deemed to be a reservation of the
Premises. Landlord shall not be bound by this Lease until it has received a copy
of this Lease duly executed by Tenant and has delivered to Tenant a copy of this
Lease duly executed by Landlord, and until such delivery Landlord reserves the
right to exhibit and lease the Premises to other prospective tenants.
Notwithstanding anything contained in this Lease to the contrary, Landlord may
withhold delivery of possession of the Premises from Tenant until such time as
Tenant has paid to Landlord any security deposit required by Article 5, the
first month's rent as set forth in Article 3 and any sum owed pursuant to this
Lease.
35. RECORDATION.
Tenant shall not record or register this Lease or a short form memorandum hereof
without the prior written consent of Landlord, and then shall pay all charges
and taxes incident such recording or registration.
36. LIMITATION OF LANDLORD'S LIABILITY.
Redress for any claim against Landlord under this Lease shall be limited to and
enforceable only against and to the extent of Landlord's interest in the
Building. The obligations of Landlord under this Lease are not intended to and
shall not be personally binding on, nor shall any resort be had to the private
properties of, any of its trustees or board of directors and officers, as the
case may be, its investment manager, the general partners thereof, or any
beneficiaries, stockholders, employees, or agents of Landlord or the investment
manager. Landlord represents that there currently is no mortgage encumbering the
Premises.
LANDLORD: TENANT:
RREEF USA Fund-I, a California
Group Trust Worldcomm Systems, Inc.
------------------------------ ----------------------------------------
By: RREEF Management Company, ----------------------------------------
a California corporation
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ /s/ Xxxxx X. Xxxxxxxxx
-------------------------- ------------------------------------
Title: Xxxxx X. Xxxxxxxxx, Title: CEO
District Manager
Dated: 11-15-94 Dated: 11/14/94
RIDER
attached to and made a part of Lease bearing the
Lease Reference Date of November 8th, 0000 xxxxxxx
XXXXX XXX Fund-I, as Landlord and
Worldcomm Systems Inc., as Tenant
000 Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx
Addenda to Provisions of the Printed Lease:
Section 1.2. Landlord shall indemnify and hold Tenant harmless from and
against any and all costs of any required or necessary investigation, repair,
cleanup or detoxification and the preparation of any closure or other required
plans in connection therewith, whether voluntary or compelled by governmental
authority, all to the extent resulting from or necessitated by any environmental
conditions in place prior to the Commencement Date. However, in any action to
enforce such indemnity, Tenant will have the burden of proof to show that such
conditions pro-existed the Commencement Date.
Section 5. (a) The amount of the Security Deposit specified on the
Reference Page equals four (4) months' rent at the rate of the Monthly
Installment of Rent first payable hereunder. Upon written demand by Landlord,
Tenant shall deposit with Landlord such additional amount as shall be required
by Landlord to maintain the Security Deposit at an amount equal to four times
the sum of then-current Monthly Installment of Rent. However, effective as of
the third (3rd) anniversary of the Commencement Date, if Tenant is not then in
default, the Security Deposit will be reduced to two (2) times the Monthly
Installment of Rent, as increased from time to time.
(b) Except to the extent Landlord is entitled to retain all or a
portion of the Security Deposit pursuant to this Lease, Landlord shall return
the Security Deposit to Tenant within thirty (30) days after the expiration of
the Term.
Section 6.1. (a) Landlord's consent is not required for any interior
alterations which (i) are not structural; (ii) do not affect the Building's
HVAC, electrical, plumbing, mechanical or other systems; and (iii) do not cost
in excess of $10,000. However, Tenant shall notify Landlord of any such
alterations at least twenty (20) days before effecting the same.
(b) Landlord may condition its approval of any proposed alterations,
additions or improvements upon Tenant's agreement to remove the same at the end
of the Term and restore the Premises to their prior condition, reasonable wear
and tear excepted. At the time Tenant seeks Landlord's approval of any proposed
alterations, additions or improvements, Landlord, at Tenant's request, shall
advise Tenant if Landlord will require such removal and restoration. Landlord
may require, pursuant to Section 6.4, the removal at the end of the Term of any
alterations, additions or improvements installed by Tenant without Landlord's
approval, as permitted under the preceding subparagraph (a).
Section 7.1 (a) Landlord represents that the HVAC systems serving the
Premises will be in good working condition as of the Commencement Date; however,
the inaccuracy of this representation would not give rise to any right of
termination.
R-1
(b) Except as to repairs necessitated by the negligence or breach of
Lease by Tenant, Landlord shall repair and maintain the structural portions of
the roof, walls and foundation of the Building.
Section 11.2. If the proceeds of any Tenant insurance policies are paid by
the insurer to Landlord, and if Landlord has no rightful interest in such
proceeds, Landlord shall immediately endorse or pay such proceeds over to
Tenant.
Section 17.1.4. If an involuntary bankruptcy petition is filed against
Tenant, the same shall not constitute an Event of Default so long as Tenant is
diligently contesting the petition and the petition is dismissed not later than
sixty (60) days after filing.
5ection 26. Landlord shall endeavor to deliver a concurrent copy of any
notice to Tenant to Xxxxxx X. Xxxxxxx, Xxxxxxxx & Xxxxxxx, 000 Xxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxx Xxxx, Xxx Xxxx 00000; but failure to deliver such copy shall
not render defective any notice which is otherwise proper.
Additional Provisions:
39. RENT SCHEDULE.
PERIOD ANNUAL RENT MONTHLY INSTALLMENT
------ ----------- -------------------
11/15/94-11/14/95 $90,000.00 ($4.50 psf/yr) $7,500.00
11/15/95-11/14/96 $100,000.00 ($5.00 psf/yr) $8,333.33
11/15/96-11/14/97 $105,000.00 ($5.25 psf/yr) $8,750.00
11/15/97-11/30/98 $110,000.00 ($5.50 psf/yr) $9,166.67
R-2
EXHIBIT A
attached to and made a part of Lease bearing the
Lease Reference Date of November 8, 0000 xxxxxxx
XXXXX XXX Fund-I, as Landlord and
Worldcomm Systems, Inc., as Tenant
PREMISES
Exhibit A is intended only to show the general layout of the Premises as of the
beginning of the Term of this Lease. It does not in any way supersede any of
Landlord's rights set forth in Section 16.1 with respect to arrangements and/or
locations of public parts of the Building and changes in such arrangements
and/or locations. It is not to be scaled; any measurements or distances shown
should be taken as approximate.
EXHIBIT B
attached to and made a part of Lease bearing the
Lease Reference Date of November 8, 0000 xxxxxxx
XXXXX XXX Fund-I, as Landlord and
Worldcomm Systems, Inc., as Tenant
INITIAL ALTERATIONS
