Prepared by XXXXXXX CORPORATION xxx.xxxxxxxxxxxxxx.xxx
EXHIBIT 10.16
LEASE AGREEMENT (Multi-Tenant Office)
INDEX
§
|
| Section
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| Page
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| 1.
|
| Summary of Terms and Certain Definitions
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| 1
|
| 2.
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| Premises
|
| 1
|
| 3.
|
| Acceptance of Premises
|
| 2
|
| 4.
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| Use; Compliance
|
| 2
|
| 5.
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| Term
|
| 2
|
| 6.
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| Minimum Annual Rent.
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| 3
|
| 7.
|
| Operation of Property; Payment of Expenses.
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| 3
|
| 8.
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| Signs
|
| 6
|
| 9.
|
| Alterations and Fixtures.
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| 6
|
| 10.
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| Mechanics' Liens.
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| 6
|
| 11.
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| Xxxxxxxx's Right to Relocate Tenant; Right of Entry.
|
| 7
|
| 12.
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| Damage by Fire or Other Casualty.
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| 7
|
| 13.
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| Condemnation.
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| 7
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| 14.
|
| Non-Abatement of Rent
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| 8
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| 15.
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| Indemnification of Landlord
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| 8
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| 16.
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| Waiver of Claims
|
| 8
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| 17.
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| Quiet Enjoyment
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| 8
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| 18.
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| Assignment and Subletting
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| 9
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| 19.
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| Subordination; Mortgagee's Rights
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| 9
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| 20.
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| Recording; Tenant's Certificate
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| 10
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| 21.
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| Surrender; Abandoned Property
|
| 10
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| 22.
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| Curing Tenant's Defaults
|
| 10
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| 23.
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| Defaults—Remedies.
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| 11
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| 24.
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| Representations of Tenant
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| 12
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| 25.
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| Liability of Landlord
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| 12
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| 26.
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| Interpretation; Definitions
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| 13
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| 27.
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| Notices
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| 14
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| 28.
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| Security Deposit
|
| 14
INDEX (RIDER)
§
|
| Section
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| Page
|
| 29.
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| Tenant Improvements; Tenant Allowance
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| R-1
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| 30.
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| Minimum Annual Rent
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| R-2
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| 31.
|
| Operating Expenses
|
| R-2
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| 32.
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| Reconciliation; Access to Landlord's Records
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| R-2
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| 33.
|
| Repairs and Maintenance
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| R-3
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| 34.
|
| Utilities.
|
| R-3
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| 35.
|
| Mechanic's Liens
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| R-3
|
| 36.
|
| Relocation
|
| R-3
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| 37.
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| Casualty
|
| R-3
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| 38.
|
| Condemnation
|
| R-3
|
| 39.
|
| Non-Abatement of Rent
|
| R-3
|
| 40.
|
| Indemnification of Tenant
|
| R-3
|
| 41.
|
| Assignment and Subletting
|
| R-3
|
| 42.
|
| Surrender; Abandoned Property
|
| R-3
|
| 43.
|
| Notices
|
| R-4
THIS LEASE AGREEMENT is made by and between LIBERTY PROPERTY LIMITED PARTNERSHIP, a
Pennsylvania limited partnership ("LANDLORD") with its address at 00000 Xxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxxxxx, Xxxxxxxxx 00000,
and NICOLLET PROCESS ENGINEERING, INC., a Minnesota corporation ("TENANT") with its
address at 000 x. 5TH Street, Suite 0000 Xxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000 and is dated as of the date on which this lease has been fully executed by Landlord and Tenant.
1. Summary of Terms and Certain Definitions.
|
| (a)
|
| "PREMISES":
|
| Approximate rentable square feet: 2,593
|
|
|
|
|
|
| Suite
| (Section 2)
|
|
| (b)
|
|
"BUILDING":
|
|
Approximate rentable square feet: 168,000
|
|
|
|
| (§2)
|
| Address:
| 00000 Xxxxxx Xxxxx
|
|
|
|
|
|
|
| Eden Prairie, Minnesota 55344
|
|
| (c)
|
|
"TERM":
|
|
Thirty-six (36) months plus any partial month from the
|
|
|
|
| (§5)
|
| Commencement Date
(i)"COMMENCEMENT DATE": September 15, 1999 (See
Rider)
(ii)"EXPIRATION DATE": See Section 5
(d) Minimum Rent (§6) & Operating Expenses (§7)
(i)"MINIMUM ANNUAL RENT": $41,487.96 (Forty-one
Thousand Four Hundred Eighty-seven and 96/100 Dollars), payable in monthly installments of $3,457.33 (Three Thousand Four Hundred Fifty-seven and 33/100 Dollars), increased as follows:
Lease Year
|
|
Annual
|
|
Monthly
|
| 2
|
| $42,317.76
|
| $3,5262.48
|
| 3
|
| 43,164.00
|
| 3,597.00
(ii)Estimated "ANNUAL OPERATING EXPENSES": $17,295.31
(Seventeen Thousand Two Hundred Ninety-five and 31/100 Dollars), payable in monthly installments of $1,441.28 (One Thousand Four
Hundred Forty-one and 28/100 Dollars), based on 1999 estimated annual operating expenses of $6.67 per rentable square foot, subject to adjustment (§7(a))
(e) "PROPORTIONATE SHARE" (§7(a)): 1.5% (Ratio of approximate rentable square feet in the
Premises to approximate rentable square feet in the Building)
(f) "USE" (§4): General office purposes
(g) "SECURITY DEPOSIT" (§28): $9,797.22
(h) CONTENTS: This lease consists of the Index, pages 1 through 11 containing Sections 1 through
28 and the following, all of which are attached hereto and made a part of this lease:
|
|
Rider with Sections 29 through 43
|
|
|
|
|
Exhibits:
|
|
"A"—Plan showing Premises
|
|
"D"—Cleaning Schedule
|
|
|
|
| "B"—Commencement Certificate Form
|
| "E"—Estoppel Certificate Form
|
|
|
|
| "C"—Building Rules
|
| "F"— Plans
2. Premises. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the
Premises as shown on attached Exhibit "A" within the Building (the Building and the lot on which it is located, the "PROPERTY"), together with the
non-exclusive right with Landlord and other occupants of the Building to use all areas and facilities provided by Landlord for the use of all tenants in the Property including any lobbies, hallways,
driveways, sidewalks and parking, loading and landscaped areas (the "COMMON AREAS").
3. Acceptance of Premises. Tenant has examined and knows the condition of the Property, the
zoning, streets, sidewalks, parking areas, curbs and access ways adjoining it, visible easements, any surface conditions and the present uses, and Tenant accepts them in the condition in which they
now are, without relying on any representation, covenant or warranty by Landlord. Tenant and its agents shall have the right, at Xxxxxx's own risk, expense and responsibility, at all reasonable times
prior to the Commencement Date, to enter the Premises for the purpose of taking measurements and installing its furnishings and equipment; provided that the Premises are vacant and Tenant obtains
Landlord's prior written consent.
4. Use; Compliance.
(a) Permitted Use. Tenant shall occupy and use the Premises for and only for the Use specified in
Section 1(f) above and in such a manner as is lawful, reputable and will not create any nuisance or otherwise interfere with any other tenant's normal operations or the management of the
Building. Without limiting the foregoing, such Use shall exclude any use that would cause the Premises or the Property to be deemed a "place of public accommodation" under the Americans with
Disabilities Act (the "ADA") as further described in the Building Rules (defined below). All Common Areas shall be subject to Xxxxxxxx's
exclusive control and management at all times. Tenant shall not use or permit the use of any portion of the Common Areas for other than their intended use.
(b) Compliance. From and after the Commencement Date, Tenant shall comply promptly, at its sole
expense, (including making any alterations or improvements) with all laws (including the ADA), ordinances, notices, orders, rules, regulations and requirements regulating the Property during the Term
which impose any duty upon Landlord or Tenant with respect to Tenant's use, occupancy or alteration of, or Tenant's installations in or upon, the Property including the Premises, (as the same may be
amended, the "LAWS AND REQUIREMENTS") and the building rules attached as Exhibit "C", as amended by Landlord from time to time, (the
"BUILDING RULES"). Provided, however, that Tenant shall not be required to comply with the Laws and Requirements with respect to the footings,
foundations, structural steel columns and girders forming a part of the Property unless the need for such compliance arises out of Tenant's use, occupancy or alteration of the Property, or by any act
or omission of Tenant or any employees, agents, contractors, licensees or invitees ("AGENTS") of Tenant. With respect to Tenant's obligations as to the
Property, other than the Premises, at Landlord's option and at Tenant's expense, Landlord may comply with any repair, replacement or other construction requirements of the Laws and Requirements and
Tenant shall pay to Landlord all costs thereof as additional rent.
(c) Environmental. Tenant shall comply, at its sole expense, with all Laws and Requirements as set
forth above, all manufacturers' instructions and all requirements of insurers relating to the treatment, production, storage, handling, transfer, processing, transporting, use, disposal and release of
hazardous substances, hazardous mixtures, chemicals, pollutants, petroleum products, toxic or radioactive matter (the "RESTRICTED ACTIVITIES"). Tenant
shall deliver to Landlord copies of all Material Safety Data Sheets or other written information prepared by manufacturers, importers or suppliers of any chemical and all notices, filings, permits and
any other written communications from or to Tenant and any entity regulating any Restricted Activities.
(d) Notice. If at any time during or after the Term, Xxxxxx becomes aware of any inquiry, investigation
or proceeding regarding the Restricted Activities or becomes aware of any claims, actions or investigations regarding the ADA, Tenant shall give Landlord written notice, within 5 days after first
learning thereof, providing all available information and copies of any notices.
5. Term. The Term of this lease shall commence on the Commencement Date and shall end at
11:59 p.m. on the last day of the Term (the "EXPIRATION DATE"), without the necessity for notice from either party, unless sooner terminated in
accordance with the terms hereof. At Landlord's request, Tenant shall confirm the Commencement Date and Expiration Date by executing a lease commencement certificate in the form attached as Exhibit
"B".
6. Minimum Annual Rent. Tenant agrees to pay to Landlord the Minimum Annual Rent in equal
monthly installments in the amount set forth in Section 1(d) (as increased at the beginning of each lease year as set forth in Section 1(d)), in advance, on the first day of each calendar month
during the Term, without notice, demand or setoff, at Landlord's address designated at the beginning of this lease unless Landlord designates otherwise; provided that rent for the first full month
shall be paid at the signing of this lease. If the Commencement Date falls on a day other than the first day of a calendar month, the rent shall be apportioned pro rata on a per diem basis for the
period from the Commencement Date until the first day of the following calendar month and shall be paid on or before the Commencement Date. As used in this lease, the term
"lease year" means the period from the Commencement Date through the succeeding 12 full calendar months (including for the first lease year any partial
month from the Commencement Date until the first day of the first full calendar month) and each successive 12 month period thereafter during the Term.
7. Operation of Property; Payment of Expenses.
(a) Payment of Operating Expenses. Tenant shall pay to Landlord the Annual Operating Expenses in equal
monthly installments in the amount set forth in Section 1(d) (prorated for any partial month), from the Commencement Date and continuing throughout the Term on the first day of each calendar
month during the Term, as additional rent, without notice, demand or setoff, provided that the monthly installment for the first full month shall be paid at the signing of this lease. Landlord shall
apply such payments to the annual operating costs to Landlord of operating and maintaining the Property during each calendar year of the Term, which costs may include by way of example rather than
limitation: insurance premiums, fees, impositions, costs for repairs, maintenance, service contracts, management and administrative fees, governmental permits, overhead expenses, costs of furnishing
water, sewer, gas, fuel, electricity, other utility services, janitorial service, trash removal, security services, landscaping and grounds maintenance, and the costs of any other items attributable
to operating or maintaining any or all of the Property excluding any costs which under generally accepted accounting principles are capital expenditures; provided, however, that annual operating costs
also shall include the annual amortization (over an assumed useful life of ten years) of the costs (including financing charges) of building improvements made by Landlord to the Property that are
required by any governmental authority or for the purpose of reducing operating expenses or directly enhancing the safety of tenants in the Building generally. The amount of the Annual Operating
Expenses set forth in Section 1(d) represents Landlord's estimate of Xxxxxx's share of the estimated operating costs during the first calendar year of the Term on an annualized basis; from time
to time Landlord may adjust such estimated amount if the estimated operating costs increase. Tenant's obligation to pay the Annual Operating Expenses pursuant to this Section 7 shall survive the
expiration or termination of this lease.
(i) Computation of Tenant's Share of Annual Operating Costs. After the end of each calendar year of the
Term, Landlord shall compute Tenant's share of the annual operating costs described above incurred during such calendar year by (A) calculating an appropriate adjustment, using generally
accepted accounting principles, to avoid allocating to Tenant or to any other tenant (as the case may be) those specific costs which Tenant or any other tenant has agreed to pay;
(B) calculating an appropriate adjustment, using generally accepted accounting principles, to avoid allocating to any vacant space
those specific costs which were not incurred for such space; and (C) multiplying the adjusted annual operating costs by Tenant's Proportionate Share.
(ii) Reconciliation. By April 30th of each year (and as soon as practical after the expiration or
termination of this lease or at any time in the event of a sale of the Property), Landlord shall provide Tenant with a statement of the actual amount of such annual operating costs for the preceding
calendar year or part thereof. Landlord or Tenant shall pay to the other the amount of any deficiency or overpayment then due from one to the other or, at Landlord's option, Landlord may credit
Tenant's account for any overpayment. Tenant shall have the right to inspect the books and records used by Landlord in calculating the annual operating costs within 60 days of receipt of the statement
during regular business hours after having given Landlord at least 48 hours prior written notice; provided, however, that Tenant shall make all payments of additional rent without delay; and that
Tenant's obligation to pay such additional rent shall not be contingent on any such right.
(b) Impositions. As used in this lease the term "impositions" refers to all levies, taxes (including
sales taxes and gross receipt taxes) and assessments, which are applicable to the Term, and which are imposed by any authority or under any law, ordinance or regulation thereof, or pursuant to any
recorded covenants or agreements, and the reasonable cost of contesting any of the foregoing, upon or with respect to the Property or any part thereof, or any improvements thereto. Tenant shall pay to
Landlord with the monthly payment of Minimum Annual Rent any imposition imposed directly upon this lease or the Rent (defined in Section 7(g)) or amounts payable by any subtenants or other occupants
of the Premises, or against Landlord because of Xxxxxxxx's estate or interest herein.
(i) Nothing herein contained shall be interpreted as requiring Tenant to pay any income, excess profits or corporate
capital stock tax imposed or assessed upon Landlord, unless such tax or any similar tax is levied or assessed in lieu of all or any part of any imposition or an increase in any imposition.
(ii) If it shall not be lawful for Tenant to reimburse Landlord for any of the impositions, the Minimum Annual Rent
shall be increased by the amount of the portion of such imposition allocable to Tenant, unless prohibited by law.
(c) Insurance.
(i) Property. Landlord shall keep in effect insurance against loss or damage to the Building or the
Property by fire and such other casualties as may be included within fire, extended coverage and special form insurance covering the full replacement cost of the Building (but excluding coverage of
Tenants personal property in, and any alterations by Tenant to, the Premises), and such other insurance as Landlord may reasonably deem appropriate or as may be required from time-to-time by any
mortgagee.
(ii) Liability. Tenant, at its own expense, shall keep in effect comprehensive general public liability
insurance with respect to the Premises and the Property, including contractual liability insurance, with such limits of liability for bodily injury (including death) and property damage as reasonably
may be required by Landlord from time-to-time, but not less than a combined single limit of $1,000,000 per occurrence and a general aggregate limit of not less than $2,000,000 (which aggregate limit
shall apply separately to each of Tenant's locations if more than the Premises); however, such limits shall not limit the liability of Tenant hereunder. The policy of comprehensive general public
liability insurance also shall name Landlord and Landlord's agent as insured parties with respect to the Premises, shall be written on an "occurrence" basis and not on a "claims made" basis, shall
provide that it is primary with respect to any policies carried by Landlord and that any coverage carried by Landlord shall be excess insurance, shall provide that it shall not be cancelable or
reduced without at least 30 days prior written
notice to Landlord and shall be issued in form satisfactory to Landlord. The insurer shall be a responsible insurance carrier which is authorized to issue such insurance and licensed to do business in
the state in which the Property is located and which has at all times during the Term a rating of no less than A VII in the most current edition of Best's Insurance
Reports. Tenant shall deliver to Landlord on or before the Commencement Date, and subsequently renewals of, a certificate of insurance evidencing such coverage and the waiver
of subrogation described below.
(iii) Waiver of Subrogation. Landlord and Tenant shall have included in their respective property
insurance policies waivers of their respective insurers' right of subrogation against the other party. If such a waiver should be unobtainable or unenforceable, then such policies of insurance shall
state
expressly that such policies shall not be invalidated if, before a casualty, the insured waives the right of recovery against any party responsible for a casualty covered by the policy.
(iv) Increase of Premiums. Tenant agrees not to do anything or fail to do anything which will increase
the cost of Landlord's insurance or which will prevent Landlord from procuring policies (including public liability) from companies and in a form satisfactory to Landlord. If any breach of the
preceding sentence by Tenant causes the rate of fire or other insurance to be increased, Tenant shall pay the amount of such increase as additional rent promptly upon being billed.
(d) Repairs and Maintenance; Common Areas; Building Management.
(i) Tenant at its sole expense shall maintain the Premises in a neat and orderly condition.
(ii) Landlord, shall make all necessary repairs to the Premises, the Common Areas and any other improvements located on
the Property, provided that Landlord shall have no responsibility to make any repair until Landlord receives written notice of the need for such repair. Landlord shall operate and manage the Property
and shall maintain all Common Areas and any paved areas appurtenant to the Property in a clean and orderly condition. Landlord reserves the right to make alterations to the Common Areas from time to
time.
(iii) Notwithstanding anything herein to the contrary, repairs and replacements to the Property including the Premises
made necessary by Xxxxxx's use, occupancy or alteration of, or Tenant's installation in or upon the Property or by any act or omission of Tenant or its Agents shall be made at the sole expense of
Tenant to the extent not covered by any applicable insurance proceeds paid to Landlord. Tenant shall not bear the expense of any repairs or replacements to the Property arising out of or caused by any
other tenant's use, occupancy or alteration of, or any other tenant's installation in or upon, the Property or by any act or omission of any other tenant or any other tenant's Agents.
(e) Utilities.
(i) Landlord will furnish the Premises with electricity, heating and air conditioning for the normal use and occupancy
of the Premises as general offices between 8:00 a.m. and 6:00 p.m., Monday through Friday (legal holidays excepted). If Tenant shall require electricity or install electrical equipment
including but not limited to electrical heating, refrigeration equipment, electronic data processing machines, or machines or equipment using current in excess of 110 volts, which will in any way
increase the amount of electricity usually furnished for use as general office space, or if Tenant shall attempt to use the Premises in such a manner that the services to be furnished by Landlord
would be required during periods other than or in addition to business hours referred to above, Tenant will obtain Landlord's prior written approval and will pay for the resulting additional direct
expense, including the expense resulting from the installation of such equipment and meters, as additional rent promptly upon being
billet Landlord shall not be responsible or liable for any interruption in utility service, nor shall such interruption affect the continuation or validity of this lease.
(ii) If at any time utility services supplied to the Premises are separately metered, the cost of installing Tenant's
meter and the cost of such separately metered utility service shall be paid by Tenant promptly upon being billed.
(f) Janitorial Services. Landlord will provide Tenant with trash removal and janitorial services
pursuant to a cleaning schedule attached as Exhibit "D".
(g) "Rent." The term "RENT" as used in this lease means
the Minimum Annual Rent, Annual Operating Expenses and any other additional rent or sums payable by Tenant to Landlord pursuant to this lease, all of which shall be deemed rent for purposes of
Landlord's rights and remedies with respect thereto. Tenant shall pay all Rent to Landlord within 30 days after Tenant is billed, unless otherwise provided in this lease, and interest shall accrue on
all sums due but unpaid.
8. Signs. Landlord, at Xxxxxxxx's expense, will place Tenant's name and suite number on the
Building standard sign and on or beside the entrance door to the Premises. Except for signs which are located wholly within the interior of the Premises and not visible from the exterior of the
Premises, no signs shall be placed on the Property without the prior written consent of Landlord. All signs installed by Tenant shall be maintained by Tenant in good condition and Tenant shall remove
all such signs at the termination of this lease and shall repair any damage caused by such installation, existence or removal.
9. Alterations and Fixtures.
(a) Subject to Section 10, Tenant shall have the right to install its trade fixtures in the Premises, provided that no
such installation or removal thereof shall affect any structural portion of the Property nor any utility lines, communications lines, equipment or facilities in the Building serving any tenant other
than Tenant. At the expiration or termination of this lease and at the option of Landlord or Tenant, Tenant shall remove such installation(s) and, in the event of such removal, Tenant shall repair any
damage caused by such installation or removal; if Tenant, with Landlord's written consent, elects not to remove such installation(s) at the expiration or termination of this lease, all such
installations shall remain on the Property and become the property of Landlord without payment by Landlord.
(b) Except for non-structural changes which do not exceed $5000 in the aggregate, Tenant shall not make or permit to be
made any alterations to the Premises without Landlord's prior written consent. Tenant shall pay the costs of any required architectural/engineering reviews. In making any alterations,
(i) Tenant shall deliver to Landlord the plans, specifications and necessary permits, together with certificates evidencing that Tenant's contractors and subcontractors have adequate insurance
coverage naming Landlord and Landlord's agent as additional insureds, at least 10 days prior to commencement thereof, (ii) such alterations shall not impair the structural strength of the
Building or any other improvements or reduce the value of the Property or affect any utility lines, communications lines, equipment or facilities in the Building serving any tenant other than Tenant,
(iii) Tenant shall comply with Section 10 and (iv) the occupants of the Building and of any adjoining property shall not be disturbed thereby. All alterations to the Premises by Tenant
shall be the property of Tenant until the expiration or termination of this lease; at that time all such alterations shall remain on the Property and become the property of Landlord without payment by
Landlord unless Xxxxxxxx gives written notice to Tenant to remove the same, in which event Tenant will remove such alterations and repair any resulting damage. At Tenant's request prior to Tenant
making any alterations, Landlord shall notify Tenant in writing, whether Tenant is required to remove such alterations at the expiration or termination of this lease.
10. Mechanics' Liens. Tenant shall pay promptly any contractors and materialmen who supply
labor, work or materials to Tenant at the Property and shall take all steps permitted by law in order to avoid the imposition of any mechanic's lien upon all or any portion of the Property. Should any
such lien or notice of lien be filed for work performed for Tenant other than by Landlord, Tenant shall bond against or discharge the same within 5 days after Xxxxxx has notice that the lien or claim
is filed regardless of the validity of such lien or claim. Nothing in this lease is intended to authorize Tenant to do or cause any work to be done or materials to be supplied for the account of
Landlord, all of the same to be solely for Xxxxxx's account and at Tenants risk and expense. Throughout this lease the term "mechanic's lien" is used to
include any lien, encumbrance or charge levied or imposed upon all or any portion of, interest in or income from the Property on account of any mechanic's, laborer's, materialman's or construction
lien or arising out of any debt or liability to or any claim of any contractor, mechanic, supplier, materialman or laborer and shall include any mechanic's notice of intention to file a lien given to
Landlord or Tenant, any stop order given to Landlord or Tenant, any notice of refusal to pay naming Landlord or Tenant and any injunctive or equitable action brought by any person claiming to be
entitled to any mechanic's lien.
11. Xxxxxxxx's Right to Relocate Tenant; Right of Entry.
(a) Landlord may cause Tenant to relocate from the Premises to a comparable space ("RELOCATION
SPACE") within the Building by giving written notice to Tenant at least 60 days in advance, provided
that Landlord shall pay for all reasonable costs of such relocation. Such a relocation shall not terminate, modify or otherwise affect this lease except that "Premises" shall refer to the Relocation
Space rather than the old location identified in Section 1(a).
(b) Tenant shall permit Landlord and its Agents to enter the Premises at all reasonable times following reasonable
notice (except in the event of an emergency), for the purpose of inspection, maintenance or making repairs, alterations or additions as well as to exhibit the Premises for the purpose of sale or
mortgage and, during the last 12 months of the Term, to exhibit the Premises to any prospective tenant. Landlord will make reasonable efforts not to inconvenience Tenant in exercising the foregoing
rights, but shall not be liable for any loss of occupation or quiet enjoyment thereby occasioned.
12. Damage by Fire or Other Casualty.
(a) If the Premises or Building shall be damaged or destroyed by fire or other casualty, Tenant promptly shall notify
Landlord and Landlord, subject to the conditions set forth in this Section 12, shall repair such damage and restore the Premises to substantially the same condition in which they were immediately
prior to such damage or destruction, but not including the repair, restoration or replacement of the fixtures or alterations installed by Tenant. Landlord shall notify Tenant in writing, within 30
days after the date of the casualty, if Landlord anticipates that the restoration will take more than 180 days from the date of the casualty to complete; in such event, either Landlord or Tenant may
terminate this lease effective as of the date of casualty by giving written notice to the other within 10 days after Xxxxxxxx's notice. Further, if a casualty occurs during the last 12 months of the
Term or any extension thereof, Landlord may cancel this lease unless Tenant has the right to extend the Term for at least 3 more years and does so within 30 days after the date of the casualty.
(b) Landlord shall maintain a 12 month rental coverage endorsement or other comparable form of coverage as part of its
fire, extended coverage and special form insurance. Tenant will receive an abatement of its Minimum Annual Rent and Annual Operating Expenses to the extent the Premises are rendered untenantable as
determined by the carrier providing the rental coverage endorsement.
13. Condemnation.
(a) Termination. If (i) all of the Premises are taken by a condemnation or otherwise for any
public or quasi-public use, (ii) any part of the Premises is so taken and the remainder thereof is insufficient for the reasonable operation of Tenant's business or (iii) any of the
Property is so taken, and, in Landlord's opinion, it would be impractical or the condemnation proceeds are insufficient to restore the remainder of the Property, then this lease shall terminate and
all unaccrued obligations hereunder shall cease as of the day before possession is taken by the condemnor.
(b) Partial Taking. If there is a condemnation and this lease has not been terminated pursuant to this
Section, (i) Landlord shall restore the Building and the improvements which are a part of the Premises to a condition and size as nearly comparable as reasonably possible to the condition and
size thereof immediately prior to the date upon which the condemnor took possession and (ii) the obligations of Landlord and Tenant shall be unaffected by such condemnation except that there
shall be an equitable abatement of the Minimum Annual Rent according to the rental value of the Premises before and after the date upon which the condemnor took possession and/or the date Landlord
completes such restoration.
(c) Award. In the event of a condemnation affecting Tenant, Xxxxxx shall have the right to make a claim
against the condemnor for moving expenses and business dislocation damages to the extent that such claim does not reduce the sums otherwise payable by the condemnor to Landlord. Except as aforesaid
and except as set forth in (d) below, Tenant hereby assigns all claims against the condemnor to Landlord.
(d) Temporary Taking. No temporary taking of the Premises shall terminate this lease or give Tenant any
right to any rental abatement. Such a temporary taking will be treated as if Xxxxxx had sublet the Premises to the condemnor and had assigned the proceeds of the subletting to Landlord to be applied
on account of Tenant's obligations hereunder. Any award for such a temporary taking during the Term shall be applied first, to Landlord's costs of collection and, second, on account of sums owing by
Tenant hereunder, and if such amounts applied on account of sums owing by Tenant hereunder should exceed the entire amount owing by Tenant for the remainder of the Term, the excess will be paid to
Tenant.
14. Non-Abatement of Rent. Except as otherwise expressly provided as to damage by fire or other
casualty in Section 12(b) and as to condemnation in Section 13(b), there shall be no abatement or reduction of the Rent for any cause whatsoever, and this lease shall not terminate, and Tenant
shall not be entitled to surrender the Premises.
15. Indemnification of Landlord. Subject to Sections 7(c)(iii) and 16, Tenant will
protect, indemnify and hold harmless Landlord and its agents from and against any and all claims, actions, damages, liability and expense (including fees of attorneys, investigators and experts) in
connection with loss of life, personal injury or damage to property in or about the Premises or arising out of the occupancy or use of the Premises by Tenant or its Agents or occasioned wholly or in
part by any act or omission of Tenant or its Agents, whether prior to, during or after the Term, except to the extent such loss, injury or damage was caused by the negligence of Landlord or its
Agents. In case any action or proceeding is brought against Landlord and/or its Agents by reason of the foregoing, Tenant, at its expense, shall resist and defend such action or proceeding, or cause
the same to be resisted and defended by counsel (reasonably acceptable to Landlord and its Agents) designated by the insurer whose policy covers such occurrence or by counsel designated by Tenant and
approved by Landlord and its Agents. Tenant's obligations pursuant to this Section 15 shall survive the expiration or termination of this lease.
16. Waiver of Claims. Landlord and Tenant each hereby waives all claims for recovery against the
other for any loss or damage which may be inflicted upon the property of such party even if such loss or damage shall be brought about by the fault or negligence of the other party or its Agents;
provided, however, that such waiver by Landlord shall not be effective with respect to any liability of Tenant described in Sections 4(c) and 7(d)(iii).
17. Quiet Enjoyment. Landlord covenants that Tenant, upon performing all of its covenants,
agreements and conditions of this lease, shall have quiet and peaceful possession of the Premises as against anyone
claiming by or through Landlord, subject, however, to the exceptions, reservations and conditions of this lease.
18. Assignment and Subletting.
(a) Limitation. Tenant shall not transfer this lease, voluntarily or by operation of law, without the
prior written consent of Landlord which shall not be withheld unreasonably. However, Xxxxxxxx's consent shall not be required in the event of any transfer by Tenant to an affiliate of Tenant which is
at least as
creditworthy as Tenant as of the date of' this lease and provided Xxxxxx delivers to Landlord the instrument described in Section (c)(iii) below, together with a certification of such
creditworthiness by Tenant and such affiliate. Any transfer not in conformity with this Section 18 shall be void at the option of Landlord, and Landlord may exercise any or all of its rights under
Section 23. A consent to one transfer shall not be deemed to be a consent to any subsequent transfer. "Transfer" shall include any sublease, assignment, license or concession agreement, change in
ownership or control of Tenant, mortgage or hypothecation of this lease or Tenants interest therein or in all or a portion of the Premises.
(b) Offer to Landlord. Tenant acknowledges that the terms of this lease, including the Minimum Annual
Rent, have been based on the understanding that Tenant physically shall occupy the Premises for the entire Term. Therefore, upon Xxxxxx's request to transfer all or a portion of the Premises, at the
option of Landlord, Tenant and Landlord shall execute an amendment to this lease removing such space from the Premises, Tenant shall be relieved of any liability with respect to such space and
Landlord shall have the right to lease such space to any party, including Xxxxxx's proposed transferee.
(c) Conditions. Notwithstanding the above, the following shall apply to any transfer, with or without
Landlord's consent:
(i) As of the date of any transfer, Tenant shall not be in default under this lease nor shall any act or omission have
occurred which would constitute a default with the giving of notice and/or the passage of time.
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