EXHIBIT 10.19
OFFICE SPACE LEASE
by and between
CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM
as Landlord,
and
MOBILE DATA SOLUTIONS INC.,
as Tenant
XXX XXXXXX XXXXX
XXXXXX, XXXXXXXX
TABLE OF CONTENTS
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SCHEDULE......................................................................1
1. DEMISE AND TERM..........................................................2
2. RENT ....................................................................2
A. Definitions.....................................................2
B. Components of Rent..............................................4
C. Payment of Rent.................................................5
3. USE ................................................................5
4. CONDITION OF PREMISES....................................................6
5. BUILDING SERVICES........................................................6
A. Basic Services..................................................6
B. Electricity.....................................................6
C. Telephones......................................................6
D. Additional Services.............................................7
E. Failure or Delay in Furnishing Services.........................7
6. RULES AND REGULATIONS....................................................7
7. CERTAIN RIGHTS RESERVED TO LANDLORD......................................7
8. MAINTENANCE AND REPAIRS..................................................8
9. ALTERATIONS..............................................................8
A. Requirements....................................................8
B. Liens ........................................................9
10. INDEMNIFICATION AND INSURANCE............................................10
A. Damage or Injury...............................................10
B. Insurance Coverages and Amounts................................10
C. Insurance Requirements.........................................11
D. Waiver of Subrogation..........................................11
E. Landlord's Insurance...........................................11
11. FIRE OR OTHER CASUALTY..................................................12
A. Destruction of the Building....................................12
B. Destruction of the Premises....................................12
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12. CONDEMNATION............................................................14
13. ASSIGNMENT AND SUBLETTING...............................................14
A. Landlord's Consent.............................................14
B. Standards for Consent..........................................14
C. Recapture......................................................15
14. SURRENDER...............................................................16
15. DEFAULTS AND REMEDIES...................................................16
A. Default .......................................................16
B. Right of Re-Entry..............................................17
C. Termination of Right to Possession.............................17
D. Termination of Lease...........................................17
E. Other Remedies.................................................17
F. Bankruptcy.....................................................18
G. Waivers of Jury Trial and Certain Damages......................18
H. Venue .......................................................18
16. HOLDING OVER............................................................18
17. SECURITY DEPOSIT........................................................19
18. SUBSTITUTION OF OTHER PREMISES..........................................19
19. ESTOPPEL CERTIFICATE....................................................20
20. SUBORDINATION...........................................................20
21. QUIET ENJOYMENT.........................................................20
22. BROKER..................................................................21
23. NOTICES.................................................................21
24. MISCELLANEOUS...........................................................21
A. Successors and Assigns.........................................21
B. Entire Agreement...............................................21
C. Time of Essence................................................22
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D. Execution and Delivery.........................................22
E. Severability...................................................22
F. Governing Law..................................................22
G. Attorneys' Fees................................................22
X. Xxxxx in Possession............................................22
I. Joint and Several Liability....................................22
J. Force Majeure..................................................22
K. Captions ......................................................23
L. No Waiver......................................................23
M. Hazardous Materials............................................23
N. Limitation of Liability........................................24
O. Signage .......................................................25
25. PARKING ................................................................25
26. EXISTING LEASE..........................................................25
A. Existing Lease; Termination....................................25
B. Cross-Default..................................................26
27. RIGHT TO TERMINATE......................................................26
28. RIGHT TO EXTEND.........................................................26
A. Option Period..................................................26
B. Market Rate of Base Rent.......................................27
C. Arbitration....................................................27
29. RIGHT OF FIRST REFUSAL..................................................28
X. Xxxxx .......................................................28
B. Landlord's Notice..............................................28
C. Tenant's Notice................................................29
D. Conditions.....................................................29
E. Possession.....................................................29
F. Amendment......................................................29
30. EXPANSION OPTION........................................................30
31. RIGHT OF FIRST OFFER....................................................31
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EXHIBITS
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A. Floor Plan of Premises
A-1 Floor Plan of Expansion Space
B. Workletter
C. Rules and Regulations
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OFFICE SPACE LEASE
THIS OFFICE SPACE LEASE ("Lease") is made as of the 14th day of May, 1999,
between CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM ("Landlord"), and MOBILE
DATA SOLUTIONS INC., a Delaware corporation ("Tenant"), for space in the
building commonly known as Xxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxx (such building,
together with the land upon which it is situated and related common areas,
including sidewalks, parking areas and landscaped areas, being herein referred
to as the "Building"). The Building is situated in a development commonly known
as "The Chancellory" (the "Development"). The following schedule (the
"Schedule") sets forth certain basic terms of this Lease:
SCHEDULE
1. Premises: as depicted on Exhibit A attached
hereto
2. Commencement Date: the earlier to occur of (a) December
1, 1999 and (b) the date the Work
(as defined in the Workletter
attached hereto as Exhibit B (the
"Workletter)) is substantially
completed (as defined in the
Workletter)
3. Expiration Date: November 30, 2009
4. Rentable Square Feet of the Premises: approximately 29,258 square feet
5. Rentable Square Feet of the Building: approximately 525,422 square feet
6. Base Rent:
Period Monthly Annual Base
Base Rent Rent
Commencement Date - 11/30/99 See Section 26 See Section 26
12/1/99 - 11/30/00 $61,197.98 $734,375.76
12/1/00 - 11/30/01 $62,417.07 $749,004.84
12/1/01 - 11/30/02 $63,636.15 $763,633.80
12/1/02 - 11/30/03 $64,855.23 $778,262.76
Period Monthly Annual Base
Base Rent Rent
12/1/03 - 11/30/04 $66,074.32 $792,891.84
12/1/04 - 11/30/05 $67,293.40 $807,520.80
12/1/05 - 11/30/06 $68,512.48 $822,149.76
12/1/06 - 11/30/07 $69,731.57 $836,778.84
12/1/07 - 11/30/08 $70,950.65 $851,407.80
12/1/08 - 11/30/09 $72,169.73 $866,036.76
7. Tenant's Proportionate Share: 5.568%
8. Base Year: 1999
9. Security Deposit: $61,197.98
10. Broker(s): Xxxxx and BKB Commercial
11. Exhibits:
A Floor Plan of Premises
A-1 Floor Plan of Expansion Space
B Workletter
C Rules and Regulations
1. DEMISE AND TERM.
Landlord leases to Tenant and Tenant leases from Landlord the Premises, as
described in Item 1 of the Schedule and shown on the plans attached hereto as
Exhibit A, subject to the covenants and conditions set forth in this Lease, for
a term (the "Term") commencing on the Commencement Date, as described in Item 2
of the Schedule, and expiring on the Expiration Date, as described in Item 3 of
the Schedule, unless extended or terminated earlier as otherwise provided in
this Lease.
2. RENT.
A. Definitions. For purposes of this Lease, the following terms shall
have the following meanings:
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(i) "Base Year" shall mean the year set forth in Item 8 of the
Schedule.
(ii) [intentionally omitted]
(iii) [intentionally omitted]
(iv) "Expenses" shall mean any and all reasonable expenses, costs
and disbursements (other than Taxes) of any kind and nature whatsoever
incurred by Landlord in connection with the ownership, leasing,
management, maintenance, operation and repair of the Building
(including, without limitation, the costs of maintaining and repairing
parking lots, parking structures and easements, property management
fees, increased interest costs as specified below, salaries, fringe
benefits and related costs, insurance costs of every kind and nature,
heating and airconditioning costs, common area utility costs, sewer
and water charges, the costs of routine repairs, maintenance and
decorating and the Building's share of costs and expenses of the
Development) which Landlord shall pay or become obligated to pay in
respect of a calendar year (regardless of when such Expenses were
incurred), except the following: (i) costs of alterations of tenants'
premises; (ii) costs of capital improvements and costs of curing
construction defects; (iii) depreciation; (iv) interest and principal
payments on mortgages, and other debt costs; (v) real estate brokers'
leasing commissions or compensation; (vi) any cost or expenditure (or
portion thereof) for which Landlord is reimbursed, whether by
insurance proceeds or otherwise, and (vii) cost of any service
furnished to any other occupant of the Building which Landlord does
not make available to Tenant hereunder. Notwithstanding anything
contained herein to the contrary, depreciation of any capital
improvements made after the date of this Lease which are intended to
reduce Expenses or which are required under any governmental laws,
regulations, or ordinances which were not applicable to the Building
at the time it was constructed, shall be included in Expenses. The
useful life of any such improvement shall be reasonably determined by
Landlord. In addition, interest on the undepreciated cost of any such
improvement (at the prevailing construction loan rate available to
Landlord on the date the cost of such improvement was incurred) shall
also be included in Expenses. Landlord may, in a reasonable manner,
allocate insurance premiums for so-called "blanket" insurance policies
which insure other properties as well as the Building and said
allocated amount shall be deemed to be an Expenses.
(v) "Rent" shall mean Base Rent, Adjustment Rent and any other
sums or charges due by Tenant hereunder.
(vi) "Taxes" shall mean all taxes, assessments and fees levied
upon the Building, the property of Landlord located therein or the
rents collected therefrom, by any governmental entity based upon the
ownership, leasing, renting or operation of the Building, including
all costs and expenses of protesting any such taxes,
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assessments or fees. Taxes shall not include any net income, capital
stock, succession, transfer, franchise, gift, estate or inheritance
taxes; provided, however, if at any time during the Term, a tax or
excise on income is levied or assessed by any governmental entity, in
lieu of or as a substitute for, in whole or in part, real estate taxes
or other ad valorem taxes, such tax shall constitute and be included
in Taxes. For the purpose of determining Taxes for any given year, the
amount to be included for such year shall be Taxes which are assessed
or become a lien during such year rather than Taxes which are due for
payment or paid during such year.
(vii) "Tenant's Proportionate Share" shall mean the percentage
set forth in Item 7 of the Schedule which has been determined by
dividing the Rentable Square Feet of the Premises by the Rentable
Square Feet of the Building.
B. Components of Rent. Tenant agrees to pay the following amounts to
Landlord at the office of the Building or at such other place as Landlord
designates:
(i) Base rent ("Base Rent") to be paid in monthly installments in
the amount set forth in Item 6 of the Schedule in advance on or before
the first day of each month of the Term, without demand.
(ii) Adjustment rent ("Adjustment Rent") in an amount equal to
Tenant's Proportionate Share of (a) Expenses for any calendar year
which exceed Expenses for the Base Year and (b) Taxes for any calendar
year which exceed Taxes for the Base Year. Prior to each calendar
year, or as soon as reasonably possible, Landlord shall estimate and
notify Tenant of the amount of Adjustment Rent due for such year, and
Tenant shall pay Landlord one-twelfth of such estimate on the first
day of each month during such year. Such estimate may be revised by
Landlord whenever it obtains information relevant to making such
estimate more accurate. After the end of each calendar year, Landlord
shall deliver to Tenant a report setting forth the actual Expenses and
Taxes for such calendar year and a statement of the amount of
Adjustment Rent that Tenant has paid and is payable for such year.
Tenant acknowledges that actual Taxes for a calendar year may not be
determined until after actual Expenses for such calendar year are
determined. Accordingly, Tenant acknowledges that Landlord may report
the actual Expenses and actual Taxes for a calendar year separately.
Within thirty (30) days after receipt of such report or reports,
Tenant shall pay to Landlord the amount of Adjustment Rent due for
such calendar year minus any payments of Adjustment Rent made by
Tenant for such year, it being acknowledged by Tenant that if Landlord
separately reports actual Expenses and actual Taxes for a calendar
year, Landlord may reasonably allocate Adjustment Rent paid by Tenant
for such calendar year between Expenses and Taxes for such calendar
year. If Tenant's estimated payments of Adjustment Rent exceed the
amount due Landlord for such calendar year, Landlord shall apply such
excess as a credit against Tenant's other obligations under this Lease
or promptly refund such excess
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to Tenant if the Term has already expired, provided Tenant is not then
in default hereunder, in either case without interest to Tenant.
(iii) [intentionally omitted]
C. Payment of Rent. The following provisions shall govern the payment
of Rent: (i) if this Lease commences or ends on a day other than the first
day or last day of a calendar year, respectively, the Rent for the year in
which this Lease so begins or ends shall be prorated and the monthly
installments shall be adjusted accordingly; (ii) except as may be
specifically provided to the contrary elsewhere in this Lease, all Rent
shall be paid to Landlord without offset or deduction, and the covenant to
pay Rent shall be independent of every other covenant in this Lease; (iii)
if during all or any portion of any year the Building is not fully rented
and occupied, Landlord shall make an appropriate adjustment of variable
Expenses for such year to determine the Expenses that would have been paid
or incurred by Landlord had the Building been fully rented and occupied for
the entire year and the amount so determined shall be deemed to have been
the Expenses for such year; (iv) any sum due from Tenant to Landlord which
is not paid when due shall bear interest from the date due until the date
paid at the annual rate of two percentage (2%) points above the rate then
most recently announced by The First National Bank of Chicago, NBD, as its
corporate base lending rate, from time to time in effect, but in no event
higher than the maximum rate permitted by law (the "Default Rate"); and, in
addition, Tenant shall pay Landlord a late charge for any Rent payment
which is paid more than five (5) days after its due date equal to five
percent (5%) of such payment; (v) if changes are made to this Lease or the
Building changing the number of square feet contained in the Premises or in
the Building, Landlord shall make an appropriate adjustment to Tenant's
Proportionate Share; (vi) Tenant shall have the right to inspect Landlord's
accounting records relative to Expenses and Taxes during normal business
hours at any time within thirty (30) days following the furnishing to
Tenant of the annual statement of Adjustment Rent; and, unless Tenant shall
take written exception to any item in any such statement within such thirty
(30) day period, such statement shall be considered as final and accepted
by Tenant; (vii) in the event of the termination of this Lease prior to the
determination of any Adjustment Rent, Tenant's agreement to pay any such
sums and Landlord's obligation to refund any such sums (provided Tenant is
not in default hereunder) shall survive the termination of this Lease;
(viii) no adjustment to the Rent by virtue of the operation of the rent
adjustment provisions in this Lease shall result in the payment by Tenant
in any year of less than the Base Rent shown on the Schedule; (ix) Landlord
may at any time change the fiscal year of the Building; (x) each amount
owed to Landlord under this Lease for which the date of payment is not
expressly fixed shall be due on the same date as the Rent listed on the
statement showing such amount is due; and (xi) if Landlord fails to give
Tenant an estimate of Adjustment Rent prior to the beginning of any
calendar year, Tenant shall continue to pay Adjustment Rent, at the rate
for the previous calendar year until Landlord delivers such estimate, at
which time Tenant shall pay retroactively the increased amount for all
previous months of such calendar year.
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3. USE. Tenant agrees that it shall occupy and use the Premises only as
nongovernmental business offices and for no other purposes. Tenant shall, at its
own cost and expense, comply with all federal, state and municipal laws,
ordinances, rules and regulations issued by any governmental authority and all
covenants, conditions and restrictions of record which relate to the condition,
use or occupancy of the Premises, including, without limitation, any applicable
rules and regulations of the Development.
4. CONDITION OF PREMISES. Tenant shall accept the Premises in their "as
is" condition and Tenant's taking possession of the Premises shall be conclusive
evidence that the Premises were in good order and satisfactory condition when
Tenant took possession. No agreement of Landlord to alter, remodel, decorate,
clean or improve the Premises or the Building (or to provide Tenant with any
credit or allowance for the same), and no representation regarding the condition
of the Premises or the Building, have been made by or on behalf of Landlord or
relied upon by Tenant, except, however, Landlord shall complete the Work in
accordance with the Workletter.
5. BUILDING SERVICES.
A. Basic Services. So long as Tenant is not in default hereunder,
Landlord shall furnish the following services: (i) heating, ventilating and
air conditioning to provide a temperature condition required, in Landlord's
reasonable judgment, for comfortable occupancy of the Premises under normal
business operations, daily from 8:00 A.M. to 6:00 P.M. (Saturday from 8:00
A.M. to 12:00 Noon), Sundays and holidays excepted; (ii) water for
drinking, and, subject to Landlord's approval, water at Tenant's expense
for any private restrooms and office kitchen requested by Tenant; (iii)
men's and women's restrooms at locations designated by Landlord, in common
with other tenants of the Building; (iv) janitor service in the Premises
and common areas of the Building; (v) maintenance of exterior common areas
of the Building, including snow removal as necessary and maintenance of the
landscaped areas; and (vi) elevator service in common with Landlord and
other tenants of the Building.
B. Electricity. The Premises shall be separately metered for
electrical use. Electricity shall be distributed to the Premises by the
electric utility company serving the Building and Landlord shall permit
Landlord's wire and conduits, to the extent available, suitable and safely
capable, to be used for such distribution. Tenant at its cost shall make
all necessary arrangements with the electric utility company for metering
and paying for electric current furnished to the Premises. All electricity
used during the performance of janitor service, or the making of any
alterations or repairs in the Premises, or the operation of any special air
conditioning systems serving the Premises shall be paid for by Tenant.
C. Telephones. Tenant shall arrange for telephone service directly
with one or more of the public telephone companies servicing the Building
and shall be solely responsible for paying for such telephone service. If
Landlord acquires ownership of the telephone cables in the Building at any
time, Landlord shall permit Tenant to connect to such cables on such
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terms and conditions as Landlord may reasonably prescribe. In no event does
Landlord make any representation or warranty with respect to telephone
service in the Building and Landlord shall have no liability with respect
thereto.
D. Additional Services. Landlord shall not be obligated to furnish any
services other than those stated above. If Landlord elects to furnish
services requested by Tenant in addition to those stated above (including
services at times other than those stated above), Tenant shall pay one
hundred twenty percent (120%) of Landlord's actual cost to furnish such
services. If Tenant shall fail to make any such payment, Landlord may,
without notice to Tenant and in addition to all other remedies available to
Landlord, discontinue any additional services. No discontinuance of any
such service shall result in any liability of Landlord to Tenant or be
considered as an eviction or a disturbance of Tenant's use of the Premises.
In addition, if Tenant's concentration of personnel or equipment adversely
affects the temperature or humidity in the Premises or the Building,
Landlord may install supplementary air conditioning units in the Premises,
and Tenant shall pay one hundred twenty percent (120%) of the cost of
installation, operation and maintenance thereof.
E. Failure or Delay in Furnishing Services. Tenant agrees that
Landlord shall not be liable for damages for failure or delay in furnishing
any service stated above if such failure or delay is caused, in whole or in
part, by any one or more of the events stated in Section 24.J. below, nor
shall any such failure or delay be considered to be an eviction or
disturbance of Tenant's use of the Premises, or relieve Tenant from its
obligation to pay any Rent when due or from any other obligations of Tenant
under this Lease.
6. RULES AND REGULATIONS. Tenant shall observe and comply, and shall
cause its subtenants, assignees, invitees, employees, contractors and agents to
observe and comply, with the Rules and Regulations listed on Exhibit C attached
hereto and with such reasonable modifications and additions thereto as Landlord
may make from time to time. Landlord shall not be liable for failure of any
person to obey the Rules and Regulations. Landlord shall not be obligated to
enforce the Rules and Regulations against any person, and the failure of
Landlord to enforce any such Rules and Regulations shall not constitute a waiver
thereof or relieve Tenant from compliance therewith, provided, however, that
Landlord shall not discriminate against Tenant in the enforcement of such Rules
and Regulations.
7. CERTAIN RIGHTS RESERVED TO LANDLORD. Landlord reserves the following
rights, each of which Landlord may exercise without notice to Tenant and without
liability to Tenant, and the exercise of any such rights shall not be deemed to
constitute an eviction or disturbance of Tenant's use or possession of the
Premises and shall not give rise to any claim for set-off or abatement of rent
or any other claim: (a) to change the name or street address of the Building or
the suite number of the Premises; (b) to install, affix and maintain any and all
signs on the exterior or interior of the Building; (c) to make repairs,
decorations, alterations, additions or improvements, whether structural or
otherwise, in and about the Building, and for such purposes to enter upon the
Premises, temporarily close doors, corridors and other areas of the Building and
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interrupt or temporarily suspend services or use of common areas, and Tenant
agrees to pay Landlord for overtime and similar expenses incurred if such work
is done other than during ordinary business hours at Tenant's request; (d) to
retain at all times, and to use in appropriate instances, keys to all doors
within and into the Premises; (e) to grant to any person or to reserve unto
itself the exclusive right to conduct any business or render any service in the
Building; (f) to show or inspect the Premises at reasonable times and, if
vacated or abandoned, to prepare the Premises for reoccupancy; (g) to install,
use and maintain in and through the Premises pipes, conduits, wires and ducts
serving the Building, provided that such installation, use and maintenance does
not unreasonably interfere with Tenant's use of the Premises; (h) to take any
other action which Landlord deems reasonable in connection with the operation,
maintenance, marketing or preservation of the Building; and (i) to approve the
weight, size and location of safes or other heavy equipment or articles, which
articles may be moved in, about or out of the Building or Premises only at such
times and in such manner as Landlord shall direct, at Tenant's sole risk and
responsibility.
8. MAINTENANCE AND REPAIRS. Tenant, at its expense, shall maintain and
keep the Premises in good order and repair at all times during the Term.
Landlord shall perform any maintenance or make any repairs to the Building or
Premises as Landlord shall desire or deem necessary for the safety, operation or
preservation of the Building, or as Landlord may be required or requested to do
by the order or decree of any court or by any other proper authority. Tenant
shall reimburse Landlord for any such maintenance or repairs of the Premises.
9. ALTERATIONS.
A. Requirements. Tenant shall not make any replacement, alteration,
improvement or addition to or removal from the Premises (collectively an
"alteration") without the prior written consent of Landlord, which consent
shall not be unreasonably withheld. Notwithstanding the foregoing, Tenant
may perform an alteration to the interior of the Premises without
Landlord's prior written consent provided such alteration (or the
performance thereof) does not (i) affect the mechanical, electrical, HVAC,
life safety, or other Building operating systems, (ii) affect the
structural components of the Building or require penetration of the floor
or ceiling of the Premises, (iii) involve the use or disturbance of any
Hazardous Material (as hereinafter defined) or (iv) cost more than
$10,000.00 in any one instance, and further provided that Tenant gives
Landlord prior written notice of such alteration and further provided that
such alteration (and the performance thereof) shall otherwise be in
compliance with the provisions of this Article 9 (except for the
requirement of Landlord's consent).
If Tenant proposes to make any alteration, Tenant shall, prior to
commencing such alteration, submit to Landlord for prior written approval:
(i) detailed plans and specifications; (ii) the names, addresses and copies
of contracts for all contractors; (iii) all necessary permits evidencing
compliance with all applicable governmental rules, regulations and
requirements; (iv) certificates of insurance in form and amounts required
by Landlord, naming Landlord, its managing agent and any other parties
designated by Landlord as additional insureds; and
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(v) all other documents and information as Landlord may reasonably request
in connection with such alteration; provided, however, that with respect to
alterations which cost less than $20,000.00, Landlord's charge for review
shall be $100.00 and there shall be no supervisory fee payable to Landlord
in connection with such alteration. Tenant agrees to pay Landlord's
reasonable charges for review (including, without limitation, any
architectural or engineering review) of all such items and supervision of
the alteration. Neither approval of the plans and specifications nor
supervision of the alteration by Landlord shall constitute a representation
or warranty by Landlord as to the accuracy, adequacy, sufficiency or
propriety of such plans and specifications or the quality of workmanship or
the compliance of such alteration with applicable law. Tenant shall pay the
entire cost of the alteration and, if requested by Landlord, shall deposit
with Landlord, prior to the commencement of the alteration, security for
the payment and completion of the alteration in form and amount required by
Landlord. Each alteration shall be performed in a good and workmanlike
manner, in accordance with the plans and specifications approved by
Landlord, and shall meet or exceed the standards for construction and
quality of materials established by Landlord for the Building. In addition,
each alteration shall be performed in compliance with all applicable
governmental and insurance company laws, regulations and requirements. Each
alteration shall be performed by a reputable contractor selected by Tenant,
subject to Landlord's approval, and capable of working in harmony with
Landlord's employees, contractors and other tenants. Each alteration,
whether temporary or permanent in character, made by Landlord or Tenant in
or upon the Premises (excepting only Tenant's furniture, equipment and
trade fixtures) shall become Landlord's property and shall remain upon the
Premises at the expiration or termination of this Lease without
compensation to Tenant; provided, however, that if such alteration is in
Landlord's judgment not a customary office improvement, then Landlord shall
have the right to require Tenant to remove such alteration at Tenant's sole
cost and expense in accordance with the provisions of Section 14 of this
Lease, which required removal shall be specified by Landlord when Landlord
consents to Tenant's requested alterations. Notwithstanding the foregoing,
Landlord shall not have the right to require Tenant to remove such
alterations if such alterations were performed at the request of Landlord
to comply with the requirements of applicable laws or otherwise. The
requirements of this Section 9.A. are not applicable to Landlord's Work
under the Workletter.
B. Liens. Upon completion of any alteration, Tenant shall promptly
furnish Landlord with sworn owner's and contractors' statements and full
and final waivers of lien covering all labor and materials included in such
alteration. Tenant shall not permit any mechanic's lien to be filed against
the Building, or any part thereof, arising out of any alteration performed,
or alleged to have been performed, by or on behalf of Tenant. If any such
lien is filed, Tenant shall within ten (10) days thereafter have such lien
released of record or deliver to Landlord a bond in form, amount, and
issued by a surety satisfactory to Landlord, indemnifying Landlord against
all costs and liabilities resulting from such lien and the foreclosure or
attempted foreclosure thereof. If Tenant fails to have such lien so
released or to deliver such bond to Landlord, Landlord, without
investigating the validity of such lien,
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may pay or discharge the same, and Tenant shall reimburse Landlord upon
demand for the amount so paid by Landlord, including Landlord's expenses
and attorneys' fees.
10. INDEMNIFICATION AND INSURANCE.
A. Damage or Injury. Landlord shall not be liable to Tenant, and
Tenant hereby waives all claims against Landlord or its agents, officers,
employees or contractors (each a "Landlord Party"), for any damage to or
loss or theft of any property or for any bodily or personal injury, illness
or death of any person in, on or about the Premises or the Building arising
at any time and from any cause whatsoever, except to the extent caused by
the negligence or wilful misconduct of the respective Landlord Party.
Tenant shall indemnify and defend each Landlord Party against and hold each
Landlord Party harmless from all claims, demands, liabilities, damages,
losses, costs and expenses, including reasonable attorneys' fees and
disbursements, arising from or related to any use or occupancy of the
Premises, or any condition of the Premises, or any default in the
performance of Tenant's obligations under this Lease, or any damage to any
property (including property of employees and invitees of Tenant) or any
bodily or personal injury, illness or death of any person (including
employees of Tenant) occurring in, on or about the Premises or any part
hereof arising at any time and from any cause whatsoever (except to the
extent caused by the negligence or willful misconduct of the respective
Landlord Party) or occurring in, on or about any part of the Building other
than the Premises when such damage, bodily or personal injury, illness or
death is caused by any act or omission of Tenant or its agents, officers,
employees or contractors. This Section 10.A. shall survive the termination
of this Lease with respect to any damage, bodily or personal injury,
illness or death occurring prior to such termination.
B. Insurance Coverages and Amounts. Tenant shall, at all times during
the term of this Lease and at Tenant's sole cost and expense, obtain and
keep in force the insurance coverages and amounts set forth in this Section
10.B. Tenant shall maintain commercial general liability insurance,
including contractual liability, broad form property damage liability, fire
legal liability, premises and completed operations, with limits not less
than one million dollars ($1,000,000) per occurrence and aggregate, with
additional umbrella liability coverage of not less than eighteen million
dollars ($18,000,000.00) general aggregate, insuring against claims for
bodily injury, personal injury and property damage arising from the use,
occupancy or maintenance of the Premises and the Building. The policy shall
contain an exception to any pollution exclusion which insures damage or
injury arising out of heat, smoke or fumes from a hostile fire. Tenant
shall maintain business auto liability insurance with limits not less than
one million dollars ($1,000,000) per accident covering owned, hired . and
non-owned vehicles used by Tenant. Tenant shall maintain umbrella excess
liability insurance on a following form basis in excess of the required
commercial general liability, business auto and employers liability
insurance with limits not less than five million dollars ($5,000,000) per
occurrence and aggregate. Tenant shall maintain workers' compensation
insurance for all of its employees in statutory limits in the state in
which the Building is located and employers liability insurance which
affords not less than five hundred thousand
10
dollars ($500,000) for each coverage. Tenant shall maintain all risk
property insurance for all personal property of Tenant and improvements,
fixtures and equipment constructed or installed by Tenant in the Premises
in an amount not less than the full replacement cost, which shall include
extra expense coverage with limits not less than four (4) months Rent
obligation of Tenant under this Lease. If required by Landlord, Tenant
shall maintain boiler and machinery insurance against loss or damage from
an accident from the equipment in the Premises in an amount determined by
Landlord and plate glass insurance coverage against breakage of plate glass
in the Premises. Any deductibles selected by Tenant shall be the sole
responsibility of Tenant.
C. Insurance Requirements. All insurance and all renewals thereof
shall be issued by companies with a rating of at least "A-" "VIII" or
better in the current edition of Best's Insurance Reports and be licensed
to do and doing business in the state in which the Building is located.
Each policy shall expressly provide that the policy shall not be canceled
or materially altered without thirty (30) days prior written notice to
Landlord and shall remain in effect notwithstanding any such cancellation
or alteration until such notice shall have been given to Landlord and such
period of thirty (30) days shall have expired. All liability insurance
(except employers liability) shall name Landlord, Landlord's lender, if
any, and Landlord's property manager as additional insureds, shall be
primary and noncontributing with any insurance which may be carried by
Landlord, shall afford coverage for all claims arising out of any insured
act, omission, event or condition that occurred or arose (or the onset of
which occurred or arose) during the policy period, and shall expressly
provide that Landlord, although named as an insured, shall nevertheless be
entitled to recover under the policy for any loss, injury or damage to
Landlord. All property insurance shall name Landlord as loss payee as
respects Landlord's interest in any improvements and betterments. Tenant
shall deliver certificates of insurance, acceptable to Landlord, to
Landlord at least ten (10) days before the Commencement Date and at least
ten (10) days before expiration of each policy. If Tenant fails to insure
or fails to furnish any such insurance certificate, Landlord shall have the
right from time to time to effect such insurance for the benefit of Tenant
or Landlord or both of them, and Tenant shall pay to Landlord on written
demand, as additional rent, all premiums paid by Landlord.
D. Waiver of Subrogation. Each party hereto hereby waives all claims
for recovery from the other party for any loss or damage to any of its
property insured under valid and collectible insurance policies to the
extent of any recovery collectible under such insurance, subject to the
limitation that this waiver shall apply only when it is either permitted
or, by the use of such good faith efforts, could have been so permitted by
the applicable policy of insurance. Tenant shall cause its fire and
extended coverage policy to include a provision or endorsement by which the
insurer expressly waives all rights of subrogation which such insurers
might have had against Landlord.
E. Landlord's Insurance. Landlord shall, during the term of this
Lease, procure and maintain such property and liability insurance with
respect to the Building as is from time
11
to time customarily maintained by owners of similar office buildings in the
Itasca/Schaumburg, Illinois area. Landlord may provide such coverages
through blanket policies of insurance or through programs of
self-insurance.
11. FIRE OR OTHER CASUALTY.
A. Destruction of the Building. If the Building should be
substantially destroyed (which, as used herein, means destruction or damage
to at least 50% of the Building) by fire or other casualty, either party
hereto may, at its option, terminate this Lease by giving written notice
thereof to the other party within thirty (30) days of such casualty. In
such event, the Rent shall be apportioned to and shall cease as of the date
of such casualty. If neither party exercises this option, then the Premises
shall be reconstructed and restored, at Landlord's expense, to
substantially the same condition as they were prior to the casualty.
B. Destruction of the Premises. If the Premises are damaged, in whole
or in part, by fire or other casualty, but the Building is not
substantially destroyed as provided above, or if a portion of the Building
is destroyed, but the Building is not substantially destroyed as provided
above, such that the Premises are inaccessible or otherwise the Premises
cannot be used for the conduct of business, then the parties hereto shall
have the following options:
(i) If, in Landlord's reasonable judgment, the Premises or such
portion of the Building cannot be reconstructed or restored within one
hundred twenty (120) days of such casualty to substantially the same
condition as they were in prior to such casualty, Landlord may
terminate this Lease by written notice given to Tenant within thirty
(30) days of the casualty. If, in Landlord's reasonable judgment, the
Premises or such portion of the Building cannot be reconstructed or
restored within one hundred twenty (120) days of such casualty to
substantially the same condition as they were in prior to such
casualty, but nonetheless Landlord does not so elect to terminate this
Lease, then Landlord shall notify Tenant, within thirty (30) days
after the casualty, of the amount of time necessary, as reasonably
estimated by Landlord, to reconstruct or restore the Premises. After
receipt of such notice from Landlord, Tenant may elect to terminate
this Lease. This election shall be made by Tenant by giving written
notice to Landlord within thirty (30) days after the date of
Landlord's notice. If neither party terminates this Lease pursuant to
the foregoing, Landlord shall proceed with all due diligence to
reconstruct and restore the Premises or portions of the Building
sufficient to permit Tenant access to the Premises and use thereof, as
applicable, to substantially the same condition as they were in prior
to the casualty. In such event this Lease shall continue in full force
and effect to the balance of the term, upon the same terms, conditions
and covenants as are contained herein; provided, however, that the
Rent shall be abated in the proportion which the approximate area of
the damaged or unused portions of the Premises portion bears to the
total area in the Premises, from the date of the casualty until
substantial
12
completion of the reconstruction of the Premises or applicable
portions of the Building.
Notwithstanding the above, if the casualty occurs during the last
twelve (12) months of the term of this Lease, either party hereto
shall have the right to terminate this Lease as of the date of the
casualty, which right shall be exercised by written notice to be given
by either party to the other party within thirty (30) days therefrom.
If this right is exercised, Rent shall be apportioned to and shall
cease as of the date of the casualty. After a casualty occurs during
the last twelve (12) months of the term of the Lease, Tenant may not
exercise any renewal options without first obtaining Landlord's
written consent.
Additionally, notwithstanding anything contained herein to the
contrary, Landlord shall have no duty to repair or restore the
Premises or Building if the damage is due to an uninsurable casualty,
or if insurance proceeds are insufficient to pay for such repair or
restoration, or if the holder of any mortgage, deed of trust or
similar instrument applies proceeds of insurance to reduce its loan
balance and the remaining proceeds, if any, available to Landlord are
not sufficient to pay for such repair or restoration. If Landlord
elects not to repair or restore the Premises or the Building as
provided above, Landlord shall provide written notice of such election
to Tenant within thirty (30) days after the date of the casualty.
(ii) If, in Landlord's reasonable judgment, the Premises are able
to be restored within one hundred twenty (120) days of such casualty
to substantially the same condition as they were prior to such
casualty, Landlord shall so notify Tenant within thirty (30) days of
the casualty, and Landlord shall then proceed with all due diligence
to reconstruct and restore the damaged portion of the Premises, at
Landlord's expense, to substantially the same condition as it was
prior to the casualty, Rent shall be abated in the proportion which
the approximate area of the damaged portion bears to the total area in
the Premises from the date of the casualty until substantial
completion of the reconstruction repairs, and this Lease shall
continue in full force and effect for the balance of the term, upon
the same terms, conditions and covenants as are contained herein.
(iii) If Landlord undertakes reconstruction or restoration of the
Premises pursuant to subparagraph (i) or (ii) above, Landlord shall
use reasonable diligence in completing such reconstruction repairs,
but if Landlord fails to substantially complete the same within one
hundred eighty (180) days from the date of the casualty (except
however, if under subparagraph (i) above Landlord notified Tenant that
it would take longer than one hundred twenty (120) days to reconstruct
or restore the Premises, but Tenant nonetheless elected not to
terminate the Lease but require Landlord to reconstruct or restore the
Premises, then the foregoing one hundred and eighty (180) day period
shall be extended to the time period set forth in Landlord's notice
plus
13
sixty (60) days), except as a result of any of the occurrences set
forth in Section 24.J. below, Tenant may, at its option, terminate
this Lease upon giving Landlord written notice to that effect,
whereupon both parties shall be released from all further obligations
and liability hereunder.
12. CONDEMNATION. If the Premises or the Building is rendered untenantable
by reason of a condemnation (or by a deed given in lieu thereof), then either
party may terminate this Lease by giving written notice of termination to the
other party within thirty (30) days after such condemnation, in which event this
Lease shall terminate effective as of the date of such condemnation. If this
Lease so terminates, Rent shall be paid through and apportioned as of the date
of such condemnation. If such condemnation does not render the Premises or the
Building untenantable, this Lease shall continue in effect and Landlord shall
promptly restore the portion not condemned to the extent reasonably possible to
the condition existing prior to the condemnation. In such event, however,
Landlord shall not be required to expend an amount in excess of the proceeds
received by Landlord from the condemning authority. Landlord reserves all rights
to compensation for any condemnation. Tenant hereby assigns to Landlord any
right Tenant may have to such compensation, and Tenant shall make no claim
against Landlord or the condemning authority for compensation for termination of
Tenant's leasehold interest under this Lease or interference with Tenant's
business.
13. ASSIGNMENT AND SUBLETTING.
A. Landlord's Consent. Tenant shall not, without the prior
written consent of Landlord: (i) assign, convey, mortgage or otherwise
transfer this Lease or any interest hereunder, or sublease the
Premises, or any part thereof, whether voluntarily or by operation of
law; or (ii) permit the use of the Premises by any person other than
Tenant and its employees. Any such transfer, sublease or use described
in the preceding sentence (a "Transfer") occurring without the prior
written consent of Landlord shall be void and of no effect. Landlord's
consent to any Transfer shall not constitute a waiver of Landlord's
right to withhold its consent to any future Transfer. Landlord's
consent to any Transfer or acceptance of rent from any party other
than Tenant shall not release Tenant from any covenant or obligation
under this Lease. Landlord may require as a condition to its consent
to any assignment of this Lease that the assignee execute an
instrument in which such assignee assumes the obligations of Tenant
hereunder. For the purposes of this paragraph, the transfer (whether
direct or indirect) of all or a majority of the capital stock in a
corporate Tenant (other than the shares of the capital stock of a
corporate Tenant whose stock is publicly traded) or the merger,
consolidation or reorganization of such Tenant, the transfer of all or
any general partnership interest in any partnership Tenant and any
change in the manager of any limited liability company Tenant shall be
considered a Transfer.
B. Standards for Consent. If Tenant desires the consent of
Landlord to a Transfer, Tenant shall submit to Landlord, at least
thirty (30) days prior to the proposed effective date of the Transfer,
a written notice which includes such information as Landlord
14
may require about the proposed Transfer and the transferee, together
with a non-refundable processing fee in the amount of one hundred
dollars ($100.00). If Landlord does not terminate this Lease, in whole
or in part, pursuant to Section 13.C, Landlord shall not unreasonably
withhold its consent to any assignment or sublease, which consent or
lack thereof shall be provided within fifteen (15) days of receipt of
Tenant's notice. Landlord shall not be deemed to have unreasonably
withheld its consent if, in the judgment of Landlord: (i) the
transferee is of a character or engaged in a business which is not in
keeping with the standards or criteria used by Landlord in leasing the
Building; (ii) the financial condition of the transferee is such that
it may not be able to perform its obligations in connection with this
Lease; (iii) the transferee is a tenant of the Building, unless,
however, Landlord cannot accommodate the space needs of such proposed
transferee in the Building; (iv) the transferee and Landlord have
executed a written letter of intent for the lease of space in the
Building; (v) the transferee is a governmental unit; (vi) Tenant is in
Default under this Lease; (vii) in the judgment of Landlord, such a
Transfer would violate any term, condition, covenant or agreement of
the Landlord involving the Building or any other tenant's lease within
it; or (viii) any other basis which Landlord reasonably deems
appropriate. If Landlord wrongfully withholds its consent to any
Transfer, Tenant's soleand exclusive remedy therefor shall be to seek
specific performance of Landlord's obligation to consent to such
Transfer; provided, however, that notwithstanding the foregoing, if it
is determined by a court of competent jurisdiction that Landlord
wilfully and maliciously withheld its consent to a proposed Transfer,
then, in addition to such remedy of specific performance, Tenant shall
be entitled to direct damages suffered by Tenant as a result of such
withholding.
C. Recapture. Landlord shall have the right to terminate this
Lease as to that portion of the Premises covered by a Transfer.
Landlord may exercise such right to terminate by giving notice to
Tenant at any time within fifteen (15) days after the date on which
Tenant has furnished to Landlord all of the items required under
Section 13.B; provided, however, that if Landlord so elects to
terminate this Lease as to that portion of the Premises covered by a
proposed transfer, then Tenant shall have the right, by written notice
given to Landlord within three (3) days after receipt of Landlord's
election, to revoke Tenant's request for consent to the proposed
Transfer, in which event Landlord's termination of this Lease shall be
of no further force and effect and Tenant shall not enter into such
Transfer. If Landlord exercises such right to terminate, Landlord
shall be entitled to recover possession of, and Tenant shall surrender
such portion of, the Premises (with appropriate demising partitions
erected at the expense of Tenant) on the later of (i) the effective
date of the proposed Transfer, or (ii) sixty (60) days after the date
of Landlord's notice of termination. If Landlord exercises such right
to terminate, Landlord shall have the right to enter into a lease with
the proposed transferee without incurring any liability to Tenant on
account thereof. Notwithstanding the foregoing, however, Landlord
shall not have such right to terminate this Lease as to a portion of
the Premises covered by a proposed Transfer if the proposed Transfer
is a sublease with a term of less than two (2) years and for less than
7,000 square feet. If Landlord consents to any Transfer, Tenant shall
pay to Landlord all rent and other consideration received by Tenant in
excess of the Rent paid by Tenant hereunder for the
15
portion of the Premises so transferred. Such rent shall be paid as and
when received by Tenant. In addition, Tenant shall pay to Landlord any
reasonable attorneys' or other fees and expenses incurred by Landlord
in connection with any proposed Transfer, whether or not Landlord
consents to such Transfer.
D. Assignment or Sublet to Affiliate. Notwithstanding anything to
the contrary in this Section 15, Landlord's consent shall not be
required for an assignment or sublet to an Affiliate (as hereinafter
defined), and the provisions of Section 15.C above shall not be
applicable to such assignment or sublet, as long as (a) Tenant
provides to Landlord evidence, in form and substance satisfactory to
Landlord, that such Affiliate has a net worth greater than or equal to
that of Tenant as of the date hereof, (b) Tenant is not in default
under this Lease, and (c) Tenant gives reasonable advance notice to
Landlord of the proposed assignment or sublet and reasonable evidence
of the net worth of the Affiliate. No such transfer to an Affiliate,
however, shall release Tenant from any liability or obligation under
this Lease. As used herein, "Affiliate" shall mean any corporation (i)
which then owns and controls Tenant; (ii) is then owned and controlled
by Tenant; (iii) is then owned and controlled by an entity described
in (i); (iv) with which Tenant may merge or consolidate; or (v) which
acquires all or substantially all of the capital stock or assets of
Tenant.
14. SURRENDER. Upon termination of the Term or Tenant's right to
possession of the Premises, Tenant shall return the Premises to Landlord in good
order and condition, ordinary wear and damage by fire or other casualty
excepted. If Landlord requires Tenant to remove any alterations pursuant to
Section 9, then such removal shall be done in a good and workmanlike manner, and
upon such removal Tenant shall restore the Premises to its condition prior to
the installation of such alterations. If Tenant does not remove such alterations
after request to do so by Landlord, Landlord may remove the same and restore the
Premises, and Tenant shall pay the cost of such removal and restoration to
Landlord upon demand. Tenant shall also remove its furniture, equipment, trade
fixtures and all other items of personal property from the Premises prior to
termination of the Term or Tenant's right to possession of the Premises. If
Tenant does not remove such items, Tenant shall be conclusively presumed to have
conveyed the same to Landlord without further payment or credit by Landlord to
Tenant, or at Landlord's sole option such items shall be deemed abandoned, in
which event Landlord may cause such items to be removed and disposed of at
Tenant's expense, which shall be 120% of Landlord's actual cost of removal,
without notice to Tenant and without obligation to compensate Tenant.
15. DEFAULTS AND REMEDIES.
A. Default. The occurrence of any of the following shall constitute a
default (a "Default") by Tenant under this Lease: (i) Tenant fails to pay
any Rent when due and such failure is not cured within five (5) days after
notice from Landlord given in accordance with Article 23 below (which
notice may be in the form of a Landlord statutory five (5) day notice);
(ii) Tenant fails to perform any other provision of this Lease and such
failure is not cured within thirty (30) days (or immediately if the failure
involves a hazardous
16
condition) after notice from Landlord given in accordance with Article 23
below; (iii) the leasehold interest of Tenant is levied upon or attached
under process of law; or (iv) any voluntary or involuntary proceedings are
filed by or against Tenant or any guarantor of this Lease under any
bankruptcy, insolvency or similar laws and, in the case of any involuntary
proceedings, are not dismissed within thirty (30) days after filing.
B. Right of Re-Entry. Upon the occurrence of a Default, Landlord may
elect to terminate this Lease or, without terminating this Lease, terminate
Tenant's right to possession of the Premises. Upon any such termination,
Tenant shall immediately surrender and vacate the Premises and deliver
possession thereof to Landlord. Tenant grants to Landlord the right to
enter and repossess the Premises and to expel Tenant and any others who may
be occupying the Premises and to remove any and all property therefrom,
without being deemed in any manner guilty of trespass and without
relinquishing Landlord's rights to Rent or any other right given to
Landlord hereunder or by operation of law.
C. Termination of Right to Possession. If Landlord terminates Tenant's
right to possession of the Premises without terminating this Lease,
Landlord may relet the Premises or any part thereof. In such case, Landlord
shall use reasonable efforts to relet the Premises on such terms as
Landlord shall reasonably deem appropriate; provided, however, Landlord may
first lease Landlord's other available space and shall not be required to
accept any tenant offered by Tenant or to observe any instructions given by
Tenant about such reletting. Tenant shall reimburse Landlord for the costs
and expenses of reletting the Premises including, but not limited to, all
brokerage, advertising, legal, alteration, redecorating, repairs and other
expenses incurred to secure a new tenant for the Premises. In addition, if
the consideration collected by Landlord upon any such reletting, after
payment of the expenses of reletting the Premises which have not been
reimbursed by Tenant, is insufficient to pay monthly the full amount of the
Rent, Tenant shall pay to Landlord the amount of each monthly deficiency as
it becomes due. If such consideration is greater than the amount necessary
to pay the full amount of the Rent, the full amount of such excess shall be
retained by Landlord and shall in no event be payable to Tenant.
D. Termination of Lease. If Landlord terminates this Lease, Landlord
may recover from Tenant and Tenant shall pay to Landlord, on demand, as and
for liquidated and final damages, an accelerated lump sum amount equal to
the amount by which Landlord's estimate of the aggregate amount of Rent
owing from the date of such termination through the Expiration Date plus
Landlord's estimate of the aggregate expenses of reletting the Premises,
exceeds Landlord's estimate of the fair rental value of the Premises for
the same period (after deducting from such fair rental value the time
needed to relet the Premises and the amount of concessions which would
normally be given to a new tenant) both discounted to present value at the
rate of five percent (5%) per annum.
E. Other Remedies. Landlord may, but shall not be obligated to,
perform any obligation of Tenant under this Lease, and, if Landlord so
elects, all costs and expenses paid
17
by Landlord in performing such obligation, together with interest at the
Default Rate, shall be reimbursed by Tenant to Landlord on demand. Any and
all remedies set forth in this Lease: (i) shall be in addition to any and
all other remedies Landlord may have at law or in equity; (ii) shall be
cumulative; and (iii) may be pursued successively or concurrently as
Landlord may elect. The exercise of any remedy by Landlord shall not be
deemed an election of remedies or preclude Landlord from exercising any
other remedies in the future.
F. Bankruptcy. If Tenant becomes bankrupt, the bankruptcy trustee
shall not have the right to assume or assign this Lease unless the trustee
complies with all requirements of the United States Bankruptcy Code, and
Landlord expressly reserves all of its rights, claims and remedies
thereunder.
G. Waivers of Jury Trial and Certain Damages. Except as specifically
provided in Section 16 below, Landlord and Tenant each hereby expressly,
irrevocably, fully and forever releases, waives and relinquishes any and
all right to trial by jury and any and all right to receive punitive,
exemplary and consequential damages from the other (or any past, present or
future board member, trustee, director, officer, employee, agent,
representative or advisor of the other) in any claim, demand, action, suit,
proceeding or cause of action in which Landlord and Tenant are parties,
which in any way (directly or indirectly) arises out of, results from or
relates to any of the following, in each case whether now existing or
hereafter arising and whether based on contract or tort or any other legal
basis: this Lease; any past, present or future act, omission, conduct or
activity with respect to this Lease; any transaction, event or occurrence
contemplated by this Lease; the performance of any obligation or the
exercise of any right under this Lease; or the enforcement of this Lease.
Landlord and Tenant reserve the right to recover actual or compensatory
damages, with interest, attorneys' fees, costs and expenses as provided in
this Lease, for any breach of this Lease.
H. Venue. If either Landlord or Tenant desires to bring an action
against the other in connection with this Lease, such action shall be
brought in the federal courts located in Chicago, Illinois, or state courts
located in DuPage County, Illinois. Landlord and Tenant consent to the
jurisdiction of such courts and waive any right to have such action
transferred from such courts on the grounds of improper venue or
inconvenient forum.
16. HOLDING OVER. If Tenant retains possession of the Premises after the
expiration or termination of the Term or Tenant's right to possession of the
Premises, Tenant shall be deemed a tenant at sufferance and Tenant shall pay
Rent during such holding over at 150% times the rate in effect immediately
preceding such holding over computed on a monthly basis for each month or
partial month that Tenant remains in possession. Tenant shall also pay,
indemnify and defend Landlord from and against all claims and damages,
consequential as well as direct, sustained by reason of Tenant's holding over.
If requested by Tenant in writing immediately prior to the expiration of this
Lease, Landlord shall inform Tenant of any agreements or on-going negotiations
with a tenant or tenants proposing to lease the Premises after expiration or
earlier termination of this Lease. The provisions of this section do not waive
Landlord's right of re-entry or right to regain possession by
18
actions at law or inequity or any other rights hereunder, and any receipt of
payment by Landlord shall not be deemed a consent by Landlord to Tenant's
remaining in possession or be construed as creating or renewing any lease or
right of tenancy between Landlord and Tenant.
17. SECURITY DEPOSIT. Upon execution of this Lease, Tenant shall deposit
the security deposit set forth in Item 9 of the Schedule (the "Security
Deposit") with Landlord as security for the performance of Tenant's obligations
under this Lease. Notwithstanding the foregoing, Landlord and Tenant acknowledge
that Landlord is holding a security deposit under the Existing Lease (as
hereinafter defined) and that such security deposit under the Existing Lease
shall be applied against and held by Landlord as a portion of the Security
Deposit hereunder and, accordingly, upon execution of this Lease, Tenant shall
only be responsible for depositing the balance of the Security Deposit set forth
in Item 9 of the Schedule. Upon the occurrence of a Default, Landlord may use
all or any part of the Security Deposit for the payment of any Rent or for the
payment of any amount which Landlord may pay or become obligated to pay by
reason of such Default, or to compensate Landlord for any loss or damage which
Landlord may suffer by reason of such Default. If any portion of the Security
Deposit is used, Tenant shall within five (5) days after written demand therefor
deposit cash with Landlord in an amount sufficient to restore the Security
Deposit to its original amount. Landlord shall not be required to keep the
Security Deposit separate from its general funds, and Tenant shall not be
entitled to interest on the Security Deposit. In no event shall the Security
Deposit be considered an advanced payment of Rent, and in no event shall Tenant
be entitled to use the Security Deposit for the payment of Rent. If no default
by Tenant exists hereunder, the Security Deposit or any balance thereof shall be
returned to Tenant within thirty (30) days after the expiration of the Term and
vacation of the Premises by Tenant. Landlord shall have the right to transfer
the Security Deposit to any purchaser of the Building. Upon such transfer,
Tenant shall look solely to such purchaser for return of the Security Deposit,
and Landlord shall be relieved of any liability with respect to the Security
Deposit. Notwithstanding anything contained herein to the contrary, if Tenant
does not exercise its termination right under Section 27 below and, accordingly,
Tenant has no further rights to terminate this Lease under said Section 27, then
within thirty (30) days after expiration of such time period for exercise of
Tenant's termination right, Landlord shall return the security deposit to
Tenant, provided, however, that Tenant is not then in default under this Lease
as of the date such termination right expired.
18. SUBSTITUTION OF OTHER PREMISES. At any time hereafter, Landlord may
upon thirty (30) days' prior notice to Tenant substitute for the Premises other
premises in the Building (the "New Premises"), provided that the New Premises
shall be reasonably usable for Tenant's business hereunder, and, if Tenant is
already in occupancy of the Premises, then in addition Landlord shall pay all
reasonable expenses incurred by Tenant in connection with such relocation,
including but not limited to costs of moving, door lettering, telephone
relocation, reasonable quantities of new stationery and for improving the New
Premises so that they are substantially similar to the Premises. Notwithstanding
anything contained herein to the contrary, the New Premises shall be contiguous
space on a single floor of the Building and shall be no lower than the fifth
(5th) floor of the Building.
19
19. ESTOPPEL CERTIFICATE. Tenant agrees that, from time to time upon not
less than ten (10) days' prior request by Landlord, Tenant shall execute and
deliver to Landlord a written certificate certifying: (i) that this Lease is
unmodified and in full force and effect (or if there have been modifications, a
description of such modifications and that this Lease as modified is in full
force and effect); (ii) the dates to which Rent has been paid; (iii) that Tenant
is in possession of the Premises, if that is the case; (iv) that Landlord is not
in default under this Lease, or, if Tenant believes Landlord is in default, the
nature thereof in detail; (v) that Tenant has no off-sets or defenses to the
performance of its obligations under this Lease (or if Tenant believes there are
any off-sets or defenses, a full and complete explanation thereof); (vi) that
the Premises have been completed in accordance with the terms and provisions
hereof, that Tenant has accepted the Premises and the condition thereof and of
all improvements thereto and has no claims against Landlord or any other party
with respect thereto; and (vii) such additional matters as may be requested by
Landlord, it being agreed that such certificate may be relied upon by any
prospective purchaser, mortgagee, or other person having or acquiring an
interest in the Building. If Tenant fails to execute and deliver any such
certificate within ten days after request, Tenant shall be deemed to have
irrevocably appointed Landlord and Landlord's beneficiaries as Tenant's
attorneys-in-fact to execute and deliver such certificate in Tenant's name.
20. SUBORDINATION. This Lease is and shall be expressly subject and
subordinate at all times to (i) any ground or underlying lease of the Building,
now or hereafter existing, and all amendments, renewals and modifications to any
such lease, and (ii) the lien of any mortgage or trust deed now or hereafter
encumbering fee title to the Building and/or the leasehold estate under any such
lease, unless such ground lease or ground lessor, or mortgage or mortgagee,
expressly provides or elects that the Lease shall be superior to such lease or
mortgage. If any such mortgage or trust deed is foreclosed, or if any such lease
is terminated, upon request of the mortgagee, holder or lessor, as the case may
be, Tenant will attorn to the purchaser at the foreclosure sale or to the lessor
under such lease, as the case may be. The foregoing provisions are declared to
be self-operative and no further instruments shall be required to effect such
subordination and/or attornment; provided, however, that Tenant agrees upon
request by any such mortgagee, holder, lessor or purchaser at foreclosure, to
execute and deliver such subordination and/or attornment instruments as may be
required by such person to confirm such subordination and/or attornment, or any
other documents required to evidence superiority of the ground lease or
mortgage, should ground lessor or mortgage elect such superiority. If Tenant
fails to execute and deliver any such instrument or document within ten (10)
days after request, Tenant shall be deemed to have irrevocably appointed
Landlord and Landlord's beneficiaries as Tenant's attorneys-in-fact to execute
and deliver such instrument or document in Tenant's name.
21. QUIET ENJOYMENT. As long as no Default exists, Tenant shall peacefully
and quietly have and enjoy the Premises for the Term, free from interference by
Landlord, subject, however, to the provisions of this Lease. The loss or
reduction of Tenant's light, air or view will not be deemed a disturbance of
Tenant's occupancy of the Premises nor will it affect Tenant's obligations under
this Lease or create any liability of Landlord to Tenant.
20
22. BROKER. Tenant represents to Landlord that Tenant has dealt only with
the broker(s) set forth in Item 10 of the Schedule (collectively, the "Broker")
in connection with this Lease and that, insofar as Tenant knows, no other broker
negotiated this Lease or is entitled to any commission in connection herewith.
Tenant agrees to indemnify, defend and hold Landlord and Landlord's
beneficiaries and agents harmless from and against any claims for a fee or
commission made by any broker, other than the Broker, claiming to have acted by
or on behalf of Tenant in connection with this Lease. Landlord agrees to pay the
Broker a commission in accordance with a separate agreement between Landlord and
the Broker.
23. NOTICES. All notices and demands to be given by one party to the other
party under this Lease shall be given in writing, mailed or delivered to
Landlord or Tenant, as the case may be, at the following address:
If to Landlord: California Public Employees' Retirement System
c/x Xxxxx Interest Limited Partnership
Three First National Plaza
00 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx
If to Tenant: Mobile Data Solutions Inc.
Xxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx
or at such other address as either party may hereafter designate. Notices shall
be delivered by hand or by United States certified or registered mail, postage
prepaid, return receipt requested, or by a nationally recognized overnight air
courier service. Notices shall be considered to have been given upon the earlier
to occur of actual receipt or two (2) business days after posting in the United
States mail.
24. MISCELLANEOUS.
A. Successors and Assigns. Subject to Section 13 of this Lease, each
provision of this Lease shall extend to, bind and inure to the benefit of
Landlord and Tenant and their respective legal representatives, successors
and assigns, and all references herein to Landlord and Tenant shall be
deemed to include all such parties.
B. Entire Agreement. This Lease, and the riders and exhibits, if any,
attached hereto which are hereby made apart of this Lease, represent the
complete agreement between Landlord and Tenant, and Landlord has made no
representations or warranties except as
21
expressly set forth in this Lease. No modification or amendment of or
waiver under this Lease shall be binding upon Landlord or Tenant unless in
writing signed by Landlord and Tenant.
C. Time of Essence. Time is of the essence of this Lease and each and
all of its provisions.
D. Execution and Delivery. Submission of this instrument for
examination or signature by Tenant does not constitute a reservation of
space or an option for lease, and it is not effective until execution and
delivery by both Landlord and Tenant. Execution and delivery of this Lease
by Tenant to Landlord shall constitute an irrevocable offer by Tenant to
lease the Premises on the terms and conditions set forth herein, which
offer may not be revoked for thirty (30) days after such delivery.
E. Severability. The invalidity or unenforceability of any provision
of this Lease shall not affect or impair any other provisions.
F. Governing Law. This Lease shall be governed by and construed in
accordance with the laws of the State of Illinois.
G. Attorneys' Fees. In any action or proceeding hereunder, the
prevailing party shall be entitled to recover from the other party the
prevailing party's reasonable costs and expenses in such action or
proceeding, including reasonable attorneys' fees, costs and expenses. If
either party is sued by a third party as a result of a violation of a
covenant or warranty herein contained by the other party hereto, then the
party who has violated the covenant or warranty shall be responsible for
the reasonable costs and expenses in such action or proceeding incurred by
the other party, including reasonable attorneys' fees, costs and expenses.
X. Xxxxx in Possession. In no event shall Landlord be liable to Tenant
if Landlord is unable to deliver possession of the Premises to Tenant on
the Commencement Date for causes outside Landlord's reasonable control. If
Landlord is unable to deliver possession of the Premises to Tenant by the
Commencement Date, the Commencement Date shall be deferred until Landlord
can deliver possession to Tenant. As more fully provided under Article 26
above, the term of the Existing Lease shall be extended in the event the
Commencement Date hereof does not occur until after the scheduled
expiration date of the Existing Lease.
I. Joint and Several Liability. If Tenant is comprised of more than
one party, each such party shall be jointly and severally liable for
Tenant's obligations under this Lease.
J. Force Majeure. Landlord shall not be in default hereunder and
Tenant shall not be excused from performing any of its obligations
hereunder if Landlord is prevented from
22
performing any of its obligations hereunder due to any accident, breakage,
strike, shortage of materials, acts of God or other causes beyond
Landlord's reasonable control.
K. Captions. The headings and titles in this Lease are for convenience
only and shall have no effect upon the construction or interpretation of
this Lease.
L. No Waiver. No receipt of money by Landlord from Tenant after
termination of this Lease or after the service of any notice or after the
commencing of any suit or after final judgment for possession of the
Premises shall renew, reinstate, continue or extend the Term or affect any
such notice or suit. No waiver of any default of Tenant or Landlord shall
be implied from any omission by Landlord or Tenant, respectively, to take
any action on account of such default if such default persists or be
repeated, and no express waiver shall affect any default other than the
default specified in the express waiver and then only for the time and to
the extent therein stated.
M. Hazardous Materials.
(i) Tenant shall not cause or permit any Hazardous Material (as
defined in Section 24.M(iii) below) to be brought, kept or used in or
about the Building by Tenant, its agents, employees, contractors or
invitees. Tenant hereby indemnifies Landlord from and against any
breach by Tenant of the obligations stated in the preceding sentence,
and agrees to defend and hold Landlord harmless from and against any
and all loss, damage, cost and/or expenses (including, without
limitation, diminution in value of the Building, damages for the loss
or restriction on use of rentable or usable space or of any amenity of
the Building, damages arising from any adverse impact on marketing of
space in the Building, and fees, and expert fees) which arise during
or after the term of this Lease as a result of such breach. This
indemnification of Landlord by Tenant includes, without limitation,
costs incurred in connection with any investigation of site conditions
or any cleanup, remedial, removal or restoration work required by any
federal, state or local governmental agency or political subdivision
because of Hazardous Material present in the soil or ground water on
or under the Building which results form such a breach. Without
limiting the foregoing, if the presence of any Hazardous Material in
the Building caused or permitted by Tenant results in any
contamination of the Building, Tenant shall promptly take all actions
at its sole expenses as are necessary to return the Building to the
condition existing prior to the introduction of such Hazardous
Material to the Building; provided that Landlord's approval of such
actions, and the contractors to be used by Tenant in connection
therewith, shall first be obtained.
(ii) It shall not be unreasonable for Landlord to withhold its
consent to any proposed transfer, assignment or subletting of the
Premises if (a) the proposed transferee's anticipated use of the
Premises involves the generation, storage, use, treatment or disposal
of Hazardous Material; (b) the proposed transferee has been
23
required by any prior landlord, lender or governmental authority to
take remedial action in connection with Hazardous Material
contaminating a property if the contamination resulted from such
transferee's actions or use of the property in questions; or (c) the
proposed transferee is subject to an enforcement order issued by any
governmental authority in connection with the use, disposal or storage
of a Hazardous Material.
(iii) As used herein, the term "Hazardous Material" means any
hazardous or toxic substance, material or waste which is or becomes
regulated by any local governmental authority or the United States
Government. The term "Hazardous Material" includes, without
limitation, any material or substance which is (a) defined as a
"hazardous waste, "extremely hazardous waste," or "restricted hazards
waste" or similar term under the law of the jurisdiction where the
property is located or (b) designated as a "hazardous substance"
pursuant to Section 311 of the Federal Water Pollution Control Act (33
X.X.X.xx. 1317), (c) defined as a "hazardous waste" pursuant to
Section 1004 of the Federal Resource Conservation and Recovery Act, 42
X.X.X.xx. 6901 Extension Term seq. (45 X.X.X.xx. 6903), or (d) defined
as a "hazardous substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation and Liability Act,
42 X.X.X.xx. 9601 Extension Term seq. (42 X.X.X.xx. 9601).
(iv) As used herein, the term "Laws" means any applicable
federal, state or local laws, ordinances or regulations relating to
any Hazardous Material affecting the Building, including, without
limitation, the laws, ordinances, and regulations referred to in
Section 24.M(iii) above.
(v) Landlord and its employees, representatives and agent shall
have access to the Building during reasonable hours and upon
reasonable notice to Tenant in order to conduct periodic environmental
inspections and tests of Hazardous Waste contamination of the
Building.
N. Limitation of Liability. The term Landlord as used in this Lease so
far as covenants or obligations on the part of Landlord are concerned shall
be limited to mean and include only the owner or owners at the time in
question of the Landlord's interest in the Building. Tenant acknowledges
and agrees, for itself and its successors and assigns, that no trustee,
director, officer, employee or agent of Landlord shall be personally liable
for any of the terms, covenants or obligations of Landlord hereunder, and
Tenant shall look solely to Landlord's interest in the Building for the
collection of any judgment (or enforcement of any other judicial process)
requiring the payment of money by Landlord with respect to any of the
terms, covenants and conditions of this Lease to be observed or performed
by Landlord and no other property or assets of Landlord shall be subject to
levy, execution or other enforcement procedures for the satisfaction of any
obligation by Tenant or its successors or assigns.
24
O. Signage. Tenant shall be allocated a reasonable number of lines on
the Building directory to identify Tenant and Tenant's employees located in
the Building. Additionally, Tenant shall have the right, at its sole cost
and expense, to place and maintain identifying signage on the two (2)
existing Building exterior monuments. The design and placement of such
signage shall be subject to the prior approval of Landlord. Notwithstanding
the foregoing, if at any time Tenant occupies less than 25,000 rentable
square feet of the space in the Building, Landlord shall have the right to
require Tenant, at Tenant's sole cost and expense, to remove such
identifying signage. Upon the expiration or earlier termination of this
Lease, Tenant shall, at Tenant's sole cost and expense, remove such signage
from the monuments and repair any damage caused by such signage and its
removal.
25. PARKING. So long as Tenant is not in default under this Lease and this
Lease is in full force and effect, Tenant complies with the rules and
regulations applicable thereto and Tenant has not assigned this Lease or
subleased all or any portion of the Premises, Tenant shall be entitled to twenty
(20) parking access card for unreserved parking in the Building's underground
parking garage free of charge during the Term hereof. Upon the request of
Landlord, Tenant shall execute a Building standard agreement for use of such
parking access cards.
26. EXISTING LEASE.
A. Existing Lease; Termination. Landlord and Tenant hereby acknowledge
that (i) Tenant currently leases from Landlord certain other premises in
the Building (the "Existing Premises"), pursuant to that certain Lease
Agreement dated April 2, 1993, as amended by that certain First Amendment
to Lease Agreement dated August 27, 1993, that certain Second Amendment to
Lease Agreement dated September 1, 1994, that certain Third Amendment to
Lease Agreement dated February 16, 1995, that certain Fourth Amendment to
Lease Agreement dated October 23, 1995, that certain Fifth Amendment to
Lease Agreement dated March 18, 1996, that certain letter agreement dated
June 16, 1997, that certain Seventh Amendment to Lease Agreement dated
December 17, 1997, and that certain Eighth Amendment to Lease Agreement
dated June 1, 1998 (collectively, the "Existing Lease"), and (ii) the
Existing Lease is scheduled to expire on November 30, 1999. Notwithstanding
anything to the contrary contained in the Existing Lease, the parties
hereby acknowledge and agree that, concurrent with the Commencement Date,
the Existing Lease shall be deemed to have expired by lapse of time;
provided, however, that all obligations of Tenant (including, without
limitation, the payment of all rent and other charges) which accrue under
the Existing Lease on or before the Commencement Date shall survive such
early termination of the Existing Lease. Additionally, notwithstanding such
termination of the Existing Lease, from the Commencement Date of the Term
of this Lease through November 30, 1999, Tenant shall pay as Base Rent and
Adjustment Rent hereunder an amount equal to the Base Rent and Tenant's
proportionate share of taxes and Operating Costs for the Building payable
pursuant to the terms and conditions of the Existing Lease for such period
as if such Existing Lease had not terminated. Without limiting the
generality of the foregoing, the provisions of the Existing Lease regarding
year end reconciliation of Tenant's
25
proportionate share of taxes and Operating Costs shall survive such early
termination of the Existing Lease.
B. Cross-Default. If Tenant shall default under the Existing Lease and
fail to cure such default within the applicable cure periods thereunder,
such fact shall constitute a Default by Tenant hereunder, thereby enabling
Landlord to pursue all of its rights and remedies under this Lease. If,
from and after the date of this Lease, Tenant shall Default hereunder, such
fact shall constitute a default by Tenant under the Existing Lease (without
any right of Tenant to cure same), thereby enabling Landlord to pursue all
of its rights and remedies under the Existing Lease.
27. RIGHT TO TERMINATE. Tenant shall have the option, to be exercised as
hereinafter provided, to terminate the term of this Lease effective as of
November 30, 2004 (the "Termination Date"). Such option shall be exercised, if
at all, time being of the essence, by written notice given by Tenant to Landlord
("Termination Notice") no later than November 30, 2003, and subject to payment
by Tenant to Landlord of the sum of (a) $396,445.90, plus (b) $72,075.00 if
Tenant exercises its Expansion Option (as hereinafter defined) under Section 30
below, plus (c) such additional amount as may be payable for the First Refusal
Space (as hereinafter defined) as set forth in Section 29 below, plus (d) such
additional amount as may be payable for the Expansion Space if Tenant does not
exercise its Expansion Option under Section 30 below but leases the Expansion
Space pursuant to the Right of First Offer set forth in Section 31 below and if
Landlord and Tenant mutually agree that Tenant is granted the right to terminate
the lease with respect to the Expansion Space pursuant to Section 31 below
(collectively, the "Termination Fee"). The Termination Fee shall be paid on or
before May 31, 2004. Payment of the Termination Fee shall be made in cash or by
certified or cashier's check, subject to collection. Tenant may not, unless
Landlord otherwise agrees, exercise its option to terminate this Lease pursuant
to this Section 27 at any time at which a default by Tenant exists under this
Lease, and no such termination shall be effective if such default exists unless
Landlord otherwise agrees. Any notice of exercise of Tenant's option to
terminate the term of this Lease pursuant to this Section 27 shall be
irrevocable by Tenant once given. If Tenant so exercises its option to terminate
the term of this Lease and pays to Landlord the Termination Fee as above
provided, then effective as of the Termination Date, this Lease shall be deemed
to have expired by lapse of time, and Tenant shall return the Premises to
Landlord on the Termination Date in accordance with the requirements of this
Lease. All obligations of Tenant which accrue under this Lease on or before the
Termination Date shall survive such termination.
28. RIGHT TO EXTEND.
A. Option Period. Provided that the Lease is then in full force and
effect, that Tenant is not then in default under the Lease and that Tenant
is then occupying all of the Premises having been leased to the Tenant in
the Building, Landlord hereby grants to Tenant an option to extend the term
of the Lease, on the same terms and conditions set forth in the Lease,
except that Tenant shall have no further right to extend and except as set
forth below, for one (1) additional five (5) year term (the "Option
Period"). Tenant's right to exercise its
26
option to extend shall be conditioned upon Landlord's receipt, no later
than July 31, 2009, of Tenant's then current certified financial statements
showing a creditworthiness at least equal to the creditworthiness
demonstrated to Landlord by Tenant prior to execution of the Lease. The
option to extend shall be exercised, if at all, by written notice ("Option
Notice") to Landlord given not earlier than June 1, 2008, and not later
than November 30, 2008, time being of the essence. Once the Option Notice
is given, Tenant's exercise of such option shall be irrevocable. If the
option hereby granted is not so exercised, Tenant shall have no further
right to extend the term of this Lease. The Base Rent during the Option
Period shall be the greater of (i) the Base Rent in effect as of the
Expiration Date, and (ii) the annual rate of Base Rent determined to be the
Market Rate of Base Rent (as hereinafter defined). Landlord shall have no
obligation to make improvements, decorations, repairs, alterations or
additions to the leased premises as a condition to Tenant's obligation to
pay rent for the Option Period.
B. Market Rate of Base Rent. As used in this Lease, the term "Market
Rate of Base Rent" shall mean the then prevailing annual rental rate per
square foot of rentable area of space in the Itasca/Schaumburg, Illinois,
market area, comparable in area and location to the space for which the
Market Rate of Base Rent is being determined and being leased for a
duration comparable to the period for which such space is to be leased for
periods commencing on or about the commencement of the term of such space.
The Market Rate of Base Rent shall be determined by taking into
consideration comparable fact situations in comparable buildings in the
Itasca/Schaumburg, Illinois, market area. In determining the Market Rate of
Base Rent, the following shall be taken into consideration: whether or not
the lease is a renewal of an existing lease, use, location and floor level
within the applicable building, the tenant improvements already in the
space for which the Market Rate of Base Rent is being determined, the
location, quality, age and reputation of the building, the definition of
rentable area or net rentable area, as the case may be, with respect to
which such rental rates are computed, leasehold improvements being provided
(if any), rental concessions, abatements or other monetary inducements (if
any), the term of the lease under consideration and the extent of services
provided thereunder, applicable distinctions between "gross" leases and
"net" leases, base year figures (if any) for escalation purposes and other
adjustments (including by way of indexes) to base rental (if any); and may
take into consideration any other relevant term or condition in making such
evaluation.
C. Arbitration. Landlord shall notify Tenant of Landlord's
determination of the Market Rate of Base Rent within thirty (30) days after
receipt of Tenant's Option Notice. If Tenant disagrees with Landlord's
determination of the Market Rate of Base Rent, Tenant shall notify Landlord
of such disagreement within ten (10) days after receipt of Landlord's
determination of the Market Rate. If Tenant fails to so notify Landlord of
Tenant's disagreement within the required time period, Landlord's
determination of the Market Rate of Base Rent shall be binding on Tenant.
If Tenant so notifies Landlord that Landlord's determination of the Market
Rate of Base Rent is not acceptable to Tenant, Landlord and Tenant shall,
during the thirty (30) day period after Tenant's notice, attempt to agree
on the Market Rate of Base Rent. If Landlord and Tenant are unable to
agree, Tenant shall either
27
(i) accept Landlord's determination of the Market Rate of Base Rent or (ii)
submit the determination to binding arbitration as provided below. If
Tenant fails to so notify Landlord of Tenant's election under the preceding
sentence within said thirty (30) day period, Tenant shall deemed to have
accepted Landlord's determination. If Tenant elects to submit to
arbitration the determination of the Market Rate of Base Rent, Landlord and
Tenant shall select an expert within fifteen (15) days after Tenant's
election to arbitrate. Such expert shall be experienced in leasing similar
office real estate and be familiar with similar office buildings in
Itasca/Schaumburg, Illinois, area. If Landlord and Tenant are unable to
agree upon an expert within said fifteen (15) day period, then Landlord and
Tenant shall each select an expert within five (5) days after the
expiration of said fifteen (15) day period. Each such expert shall meet the
same qualifications. If two (2) experts are so selected, then both experts
so selected shall within fifteen (15) days after their selection select a
third expert who shall also meet the same qualifications. The expert or
experts, as the case may be, so selected shall within fifteen (15) days
after the selection independently formulate its or their opinion of the
Market Rate. If one expert is selected, the determination of the Market
Rate of Base Rent by such expert shall be binding upon Landlord and Tenant.
If three (3) experts are selected, then the three (3) opinions shall then
be averaged and such average shall be the Market Rate of Base Rent and such
determination of the Market Rate of Base Rent by the three experts shall be
binding upon Landlord and Tenant. If one (1) expert is selected, Landlord
and Tenant shall share equally the costs of such expert. If three (3)
experts are selected, Landlord and Tenant shall each pay for the services
of its expert and shall share equally the costs of the third expert.
29. RIGHT OF FIRST REFUSAL.
X. Xxxxx. Landlord hereby grants Tenant the option to lease, upon the
terms and conditions hereinafter set forth, all or any portion of the 12th
floor of the Building (the "First Refusal Space") under the terms and
conditions of this Section 29. Tenant acknowledges and agrees, however,
that its rights hereunder are subject and subordinate to any and all
previous rights granted to other tenants of the Building with respect to
the First Refusal Space.
B. Landlord's Notice. If during the Term hereof Landlord reaches
substantial agreement on the basic business terms of a lease with a
prospective tenant (the "Prospective Tenant") to lease all or any portion
of the First Refusal Space, then Landlord shall notify Tenant in writing (a
"Landlord's Notice") setting forth (i) the location, (ii) the availability
date (a "Refusal Space Commencement Date"), (iii) the term; (iv) the net
rentable area, (v) the rental rate and (vi) all other economic terms upon
which Landlord is prepared to lease such portion of the First Refusal Space
to the Prospective Tenant. In addition to the foregoing terms, if
applicable, Landlord's Notice shall set forth the additional Termination
Fee which will be payable by Tenant for such offered First Refusal Space
under Section 27 above.
28
C. Tenant's Notice. Tenant's right to lease the portion of the First
Refusal Space described in Landlord's Notice upon the terms and conditions
set forth therein shall be exercisable by written notice from Tenant to
Landlord given not less than five (5) days after the giving of Landlord's
Notice, time being of the essence. Tenant may exercise its option only with
respect to all of the premises described in Landlord's Notice, and not
portions thereof. If Tenant exercises its option with respect to such
portion of the First Refusal Space, such space shall be rented in the
condition contemplated by the applicable Landlord's Notice. If Tenant fails
to notify Landlord in writing that it will lease the designated First
Refusal Space within the prescribed five (5) day period, Tenant's rights
under this Section as to such portion of the First Refusal Space described
in said Landlord's Notice shall terminate, and Landlord shall have no
further obligation under this Section with respect to such portion of the
First Refusal Space.
D. Conditions. Tenant may exercise its option to lease the offered
portion of the First Refusal Space, and an exercise thereof shall be only
effective, if at the time of Tenant's exercise of the option and on the
applicable Refusal Space Commencement Date, this Lease is in full force and
effect and there are no events or circumstances which, with the giving of
notice or the passage of time, or both, could constitute a default by
Tenant under this Lease, and inasmuch as this option is intended only for
the benefit of the original Tenant named in this Lease, the entire Premises
are occupied by the original Tenant (or permitted affiliated sublessee of
Tenant) named herein and the Tenant has neither assigned this Lease nor
sublet all or any portion of the Premises (other than to a permitted
affiliated sublessee of Tenant). Without limitation of the foregoing, no
sublessee or assignee (other than a permitted affiliated sublessee of
Tenant) shall be entitled to exercise any right or option hereunder, and no
exercise of any right or option hereunder by the original Tenant named
herein shall be effective in the event said Tenant assigns this Lease or
subleases all or part of the Premises (other than to a permitted affiliated
sublessee of Tenant) prior to the applicable Refusal Space Commencement
Date.
E. Possession. In the event Landlord is unable to deliver to Tenant
possession of any portion of the First Refusal Space on or before the
applicable Refusal Space Commencement Date for any reason whatsoever,
Landlord shall not be subject to any liability for such failure to deliver
possession. Such failure to deliver possession shall not affect either the
validity of this Lease or the obligation of either Landlord or Tenant
hereunder or be construed to extend the expiration of the Term of this
Lease either as to such portion of the first Refusal Space or the balance
of the Premises.
F. Amendment. If Tenant has validly exercised its right to lease any
First Refusal Space, then, within forty-five (45) days after the request by
either party, Landlord and Tenant shall enter into a written amendment of
this Lease confirming the terms, conditions and provisions applicable to
such portion of the First Refusal Space as determined in accordance
herewith.
29
30. EXPANSION OPTION. Provided that this Lease is then in full force and
effect, that Tenant is not then in default under this Lease and that Tenant is
then occupying all of the Premises having been leased to the Tenant in the
Building, Tenant shall have the option (the "Expansion Option") to lease all,
but not less than all, of the 3,642 square feet of rentable area adjacent to the
initial Premises as depicted on Exhibit A-1 hereto (the "Expansion Space") upon
the following terms and conditions. Tenant may exercise the Expansion Option by
written notice (the "Exercise Notice") given to Landlord no later than August 1,
1999, time being of the essence. Exercise of the Expansion Option shall be
irrevocable. If the Expansion Option is not so exercised, the Expansion Option
shall expire and be of no further force or effect. If Tenant has exercised its
Expansion Option, the Expansion Space shall be included in the Premises and
shall be leased under the terms and conditions set forth in this Lease, except
as follows:
(a) The commencement date for the Lease with respect to the Expansion
Space shall be December 1, 1999.
(b) Base Rent for the Expansion Space (the "Expansion Space Base
Rent") shall be as follows:
Period Monthly Annual Base
Base Rent Rent
12/1/99 - 11/30/00 $3,808.93 $45,707.16
12/1/00 - 11/30/01 $7,769.60 $93,235.20
12/1/01 - 11/30/02 $7,921.35 $95,056.20
12/1/02 - 11/30/03 $8,073.10 $96,877.20
12/1/03 - 11/30/04 $8,224.85 $98,698.20
12/1/04 - 11/30/05 $8,376.60 $100,519.20
12/1/05 - 11/30/01 $8,528.35 $102,340.20
12/1/06 - 11/30/07 $8,680.10 $104,161.20
12/1/07 - 11/30/08 $8,831.85 $105,982.20
12/1/08 - 11/30/09 $8,983.60 $107,803.20
All references in this Lease to Base Rent shall be deemed to include the
Expansion Space Base Rent.
30
(b) The rentable square footage of the Premises shall be increased by
3,642 square feet to 32,900 square feet and Tenant's proportionate share
shall be correspondently increased to 6.262%.
(c) Landlord shall have no obligation to make improvements,
decorations, repairs, alterations or additions to the Expansion Space as a
condition to Tenant's obligation to pay Rent for the Expansion Space,
except, however, Landlord shall provide to Tenant a tenant improvement
allowance equal to $91,050.00 (i.e., $25.00 per rentable square foot of the
Expansion Space). Said allowance shall be provided to Tenant under the same
terms and conditions as Landlord's Contribution is provided to Tenant under
the Workletter. Landlord shall construction Tenant Improvements in the
Expansion Space pursuant to the Workletter attached hereto, except that
Tenant shall provide Tenant's Specifications for the leasehold improvement
work in the Expansion Space within thirty (30) days after delivering the
Exercise Notice to Landlord.
(d) Other than the tenant improvement allowance provided in clause (c)
above, Tenant shall not be entitled to any other monetary inducements in
connection with the Expansion Space notwithstanding anything contained in
this Lease to the contrary.
If Tenant leases the Expansion Space pursuant to this Section 30, Landlord and
Tenant shall execute and deliver an amendment to this Lease reflecting the lease
by Landlord to Tenant of the Expansion Space on the terms provided above, which
amendment shall be executed and delivered promptly after Tenant exercises its
rights under this Section 30.
31. RIGHT OF FIRST OFFER. If Tenant does not exercise its right to lease
the Expansion Space pursuant to Section 30 above, Landlord may thereafter lease
such space or portion or portions thereof. If such space subsequently becomes
available for leasing during the Term of this Lease after the expiration or
earlier termination of such lease of the Expansion Space, Landlord hereby grants
to Tenant the right to lease, on the terms and conditions hereinafter set forth,
the Expansion Space; provided, however, that this Lease is then in full force
and effect, that Tenant is not in default under this Lease and that Tenant is
occupying all of the Premises having been leased to Tenant in the Building. If
after expiration of such existing lease during the Term hereof, Landlord elects
to market the Expansion Space, or applicable portion thereof, to third parties,
Landlord shall give Tenant written notice that the Expansion Space is available
for leasing, which notice shall include Landlord's determination of the then
Market Rate of Base Rent for the Expansion Space, as determined by Landlord,
which determination is not subject to arbitration under Section 28.C. above, the
commencement date and expiration date and all other relevant economic terms.
Tenant shall have the right to lease the Expansion Space under the terms and
conditions set forth in Landlord's notice, including Landlord's determination of
the Market Rate of Base Rent, by written notice given to Landlord within ten
(10) days after Tenant's receipt of Landlord's notice, time being of the
essence. Tenant may only lease the entire, but not less than the entire,
Expansion Space. If Tenant timely elects to exercise its right hereunder to
lease the Expansion Space, then within ten (10) days after such election,
Landlord and Tenant shall enter into a lease of such Expansion Space upon the
terms
31
and conditions set forth in Landlord's notice on Landlord's then standard form
lease for the Building. If Tenant does not timely exercise its right to lease
the Expansion Space hereunder, then this right of first offer shall terminate
and be of no force and effect and Landlord may lease and thereafter release such
space on such terms and conditions as Landlord may desire.
IN WITNESS WHEREOF, the parties hereto have executed this Lease in a manner
sufficient to bind them as of the day and year first above written.
LANDLORD:
XXXXX NATIONAL OFFICE PARTNERS LIMITED PARTNERSHIP,
as agent and authorized representative for STATE OF CALIFORNIA
PUBLIC EMPLOYEES' RETIREMENT SYSTEM
By: Hines Fund Management, L.L.C., a Delaware
limited liability company, its general partner
By: Xxxxx Interests Limited Partnership, a Delaware
limited partnership, its member
By: Xxxxx Holdings, Inc., a Texas corporation,
its general partner
By: /s/ Xxxxxx XxxXxxxxxx
-----------------------------------------
Xxxxxx XxxXxxxxxx, Vice President [illegible]
[illegible]
TENANT:
MOBILE DATA SOLUTIONS INC.,
a Delaware corporation
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------------
Names: Xxxxxxxx Xxxxxxxx
------------------------------
Its: Vice President
--------------------------------
32
EXHIBIT A
FLOOR PLAN OF PREMISES
[Floor Plan of Premises]
One Xxxxxx Place
Xxxx Xxxxx Xxxxx Xxxx
00xx Xxxxx XX
A-1
EXHIBIT A-1
FLOOR PLAN OF EXPANSION SPACE
[Floor Plan of Expansion Space]
One Xxxxxx Place
West Tower Floor Plan
13th Floor SE
A-1-1
EXHIBIT B
WORKLETTER
TO: Mobile Data Solutions Inc.
Re: Xxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxx
Ladies and Gentlemen:
Simultaneously with the execution of this Workletter, you ("Tenant") and the
undersigned ("Landlord") are entering into an Office Space Lease (the "Lease")
pertaining to certain Premises (as defined in the Lease) in the building
referred to above. Capitalized terms used herein shall have the meanings
ascribed to them in the Lease, unless otherwise defined herein.
In consideration of the covenants contained in this Workletter and in the Lease,
Landlord and Tenant agree as follows:
Tenant's
Plans 1. Tenant has indicated that it desires Landlord to perform
certain leasehold improvement work in the Premises (the "Work")
pursuant to plans, drawings, specifications and finish details
(collectively, "Tenant Specifications") which Tenant shall
hereafter deliver to Landlord in sufficient detail to enable
Landlord's architects and engineers to prepare the Working
Drawings (as defined in Paragraph 2 below). Tenant shall deliver
acceptable Tenant's Specifications to Landlord on or before May
14, 1999. The scope of the Work hereunder and the Tenant
Specifications to be furnished by Tenant relative thereto shall
be subject to Landlord's consent and approval, at its sole
discretion. Approval by Landlord of the Work and Tenant's
Specifications shall not constitute any warranty by Landlord to
Tenant of the adequacy of the design for Tenant's intended use of
the leased premises.
Working
Drawings 2. If necessary for the performance of the Work, Landlord
shall prepare final working drawings and specifications for the
Work (the "Working Drawings") based upon Tenant's Specifications
and the additional plans, drawings, specifications, final details
and other information furnished by Tenant to Landlord under
Paragraph 1 above. Tenant shall approve the Working Drawings, or
any revised Working Drawings, within three (3) business days
after receipt of same from Landlord. If Tenant fails to approve
the Working Drawings, or any revised Working Drawings, or fails
to object in writing in sufficient detail to enable Landlord to
revise the Working Drawings, if appropriate, within such time,
such Working Drawings shall be deemed approved, except that as to
revisions requested by Tenant, Tenant
B-1
shall be deemed to have abandoned its request for revisions to
the Working Drawings. If Tenant raises an objection or requests a
modification (other than to bring the Working Drawings into
conformity with the Tenant's Specifications, as Tenant's
Specifications may have been revised to comply with the
requirements of any applicable codes, laws, ordinances or
regulations), then any delay caused by Tenant's failure to
approve the Working Drawings within three (3) days after delivery
of the Working Drawings shall constitute Tenant Delay as defined
in Paragraph 6 below. The requirements of the preceding
provisions of this Paragraph 2 shall be repeated until Tenant
approves the Working Drawings or until the Working Drawings are
deemed approved.
Performance
of the Work 3. Landlord shall perform, and the Work shall include, (i)
any costs associated with Landlord's preparation of the Working
Drawings, (ii) demolition of existing improvements in the leased
premises, (iii) the work shown on the Working Drawings (or on
Tenant's Specifications if no Working Drawings are prepared) and
(iv) any Additional Work which Landlord agrees to perform
pursuant to Paragraph 7.
Payment 4. Landlord shall pay up to a maximum of $438,870.00 toward
the cost of the Work ("Landlord's Contribution"). Tenant shall
pay Landlord, as additional rent under the Lease, all cost of the
Work in excess of Landlord's Contribution (such excess being
referred to as "Tenant's Contribution"). If the cost of the Work
is less than Landlord's Contribution, Tenant shall not be
entitled to any credit or payment for said unused amounts.
Notwithstanding the foregoing, however, up to $146,290.00 of any
unused portion of Landlord's Contribution may be used to pay for
moving expenses incurred by Tenant in moving into the Premises,
up to $87,774.00 of any unused portion of Landlord's Contribution
may be used to pay for furniture to be installed in the Premises
and up to $146,290.00 of the unused portion of Landlord's
Contribution may be used by Tenant at any time prior to November
30, 2004, to reimburse Tenant for additional Alterations in the
Premises. Prior to commencing the Work, Landlord will submit to
Tenant a written estimate of the cost of the Work, which estimate
shall include cost of all labor and materials and insurance
premiums charged by contractors. Tenant agrees, within three (3)
business days after submission of such estimate of costs, to
execute and deliver to Landlord, in the form then in use by
Landlord, an authorization to proceed with the Work and that
portion of the Work to be paid for by Tenant, if any, and Tenant
shall at the same time pay to Landlord the amount set forth in
Landlord's estimate as Tenant's Contribution. No Work shall be
commenced until Tenant has fully complied with the preceding
portions of this Paragraph 4.
B-2
Substantial
Completion 5. At such time as Landlord considers the Work to be
substantially completed, Landlord or Landlord's architect will
schedule a walk-through of the Premises with Tenant or Tenant's
representative. During such walk-through, Landlord or Landlord's
architect along with Tenant or Tenant's representative will
prepare a list of minor finish-out and punchlist items to be
completed. The Work being performed by Landlord (which for
purposes of determining substantial completion may exclude, at
Landlord's election, any Additional Work) shall be considered
"substantially completed" for all purposes under this Workletter
Agreement and the Lease when (i) Itasca, Illinois, issues a
certificate of occupancy for the Premises, or (ii) Tenant first
takes occupancy of the Premises, whichever first occurs.
Tenant
Delay 6. There shall be no extension of the Commencement Date of
the term of the Lease if the Work has not been substantially
completed by reason of any delay caused by Tenant ("Tenant
Delay"), including without limitation, any delay arising as a
result of:
(a) the failure of Tenant to furnish all plans, drawings,
specifications, finish details or the other information
required under Paragraph 1 above;
(b) the failure of Tenant to approve the Working Drawings
within the period set forth in Paragraph 2 above;
(c) Tenant's requirements for special work or materials
finishes, or installations other then as shown on
Tenant's Specifications;
(d) the performance of any other work in the Premises by
any person, firm or corporation employed by or on
behalf of Tenant, or any failure to complete or delay
in completion of such work; or
(e) any other act or omission of Tenant.
Additional
Work 7. Upon Tenant's request and submission by Tenant (at
Tenant's sole cost and expense) of the necessary information,
and/or plans and specifications for work other than the Work (the
"Additional Work"), Landlord may, at its election, perform the
Additional Work, at Tenant's sole cost and expense. Prior to
commencing any Additional Work requested by Tenant, Landlord
shall submit to Tenant a written statement of the cost of such
Additional Work, which cost shall include the cost of all labor
and materials, insurance premiums charged by contractors, a 5%
add-on charge for Landlord field supervision, administration and
overhead and a 5% add-on charge
B-3
for general conditions and a proposed Tenant Extra Order (the
"TEO") for Additional Work in the standard form then in use by
Landlord. If Tenant shall fail to enter into said TEO within
three (3) days after Tenant's receipt thereof,Landlord shall
proceed to do only the Work specified in the Working Drawings.
Tenant agrees to pay to Landlord, concurrently with its execution
of the TEO, the entire cost of the Additional Work as shown in
the statement delivered by Landlord.
Lease
Provisions
Incorporated 8. The exculpatory provision set forth in Paragraph 24N. of
the Lease as well as all other terms and provisions of the Lease,
insofar as they are applicable to this Workletter Agreement, are
hereby incorporated herein by this reference.
Amounts
to be Rent 9. All amounts payable by Tenant to Landlord hereunder shall
be deemed to be rent under the Lease, and upon any default in the
payment of same, Landlord shall have all of the rights and
remedies provided for in the Lease.
B-4
LANDLORD:
XXXXX NATIONAL OFFICE PARTNERS LIMITED PARTNERSHIP,
as agent and authorized representative for STATE OF CALIFORNIA
PUBLIC EMPLOYEES' RETIREMENT SYSTEM
By: Hines Fund Management, L.L.C., a Delaware
limited liability company, its general partner
By: Xxxxx Interests Limited Partnership, a Delaware
limited partnership, its member
By: Xxxxx Holdings, Inc., a Texas corporation,
its general partner
By: /s/ Xxxxxx XxxXxxxxxx
-----------------------------------------
Xxxxxx XxxXxxxxxx, Vice President [illegible]
[illegible]
TENANT:
MOBILE DATA SOLUTIONS INC.,
a Delaware corporation
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------------
Names: Xxxxxxxx Xxxxxxxx
------------------------------
Its: Vice President
--------------------------------
B-5
EXHIBIT C
RULES AND REGULATIONS
C-1
EXHIBIT C
RULES AND REGULATIONS
1. The sidewalks, halls, passages, elevators and stairways shall not be
obstructed by Tenant or used for any purpose other than for ingress to and
egress from the leased premises. The halls, passages, entrances, elevators,
stairways, balconies and roof are not for the use of the general public,
and Landlord shall be prejudicial to the safety, character, reputation and
interests of the Building and its tenants, provided, that nothing herein
contained shall be construed to prevent such access to persons with whom
Tenant normally deals in the ordinary course of its business unless such
persons are engaged in illegal activities. Tenant and its employees shall
not go upon the roof of the Building without the written consent of the
Landlord.
2. The sashes, sash doors, windows, glass lights, and any lights or skylights
that reflect or admit light into the halls or other places of the Buildings
shall not be covered or obstructed. The toilet rooms, water and wash
closets and other water apparatus shall not be used for any purpose other
than that for which they were constructed, and no foreign substance of any
kind whatsoever shall be thrown therein, and the expense of any breakage,
stoppage or damage, resulting from the violation of the rule shall be borne
by the tenant who, or whose clerk, agents, servants, or visitors, shall
have caused it.
3. If Landlord, by a notice in writing to Tenant, shall object to any curtain,
blind, shade or screen attached to, or hung in, or used in connection with,
any window or door of the leased premises, such use of such curtain, blind,
shade or screen shall be discontinued forthwith by Tenant. No awnings shall
be permitted on any part of the leased premises.
4. No safes or other objects heavier than the lift capacity of the freight
elevators of the Building shall be brought into or installed on the leased
premises. Tenant shall not place a load upon any floor of the leased
premises, which exceeds the load per square foot, which such floor was
designed to carry and which is allowed the law. The moving of safes shall
occur only between such hours as may be designated by, and only upon
previous notice to the manager of the Building, and the person employed to
move sages in or out of the Building must be acceptable to Landlord. No
freight, furniture or bulky matter of any description shall be received
into the Building or carried into the elevators except during hours and in
a manner approved by Landlord.
5. Tenant shall not use, keep, or permit to be used or kept any foul or
noxious gas or substance in the leased premises or permit or suffer the
leased premises to be occupied or used in a manner offensive or
objectionable to Landlord or other occupants of the Building by reason of
noise, odors, and/or vibrations, or interfere in any way with other tenants
or those having business therein, nor shall any animals or birds (except
Seeing Eye Dogs) be brought into or kept in or about the Building. Tenant
shall not place or install any antennae or aerials or similar devices
outside of the leased premises.
6. Tenant shall not use or keep in the Building any inflammables, including
but not limited to kerosene, gasoline, naphtha, and benzene (except
cleaning fluids in small quantities and when in containers approved by the
Board of Underwriters), or explosives or any other articles of
intrinsically dangerous nature, or use any method of heating other than
that supplied by Landlord.
7. If Tenant desires telephone or telegraph connections or alarm systems,
Landlord will direct electricians as to where and how the wires are to be
introduced. No boring or cutting for wires or otherwise shall be made
without specific directions from Landlord.
8. Tenant, upon the termination of the tenancy, shall deliver to the Landlord
all the keys of offices, rooms and toilet rooms which shall have been
furnished Tenant or which Tenant shall have had made, and in the event of
loss of any keys so furnished shall pay the Landlord therefor.
9. Tenant shall not put down any floor covering in the leased premises without
the Landlord's prior approval of the manner and method of applying such
floor covering.
10. On Saturdays, Sundays and legal holidays, and on other days between the
hours of 8 p.m. and 8 a.m., access to the Building, or to the halls,
corridors, elevators or stairways in the Building, or to the leased
premises may be refused unless the person seeking access is known to the
watchman of the Building in charge and has a pass or is properly
identified. Services to be provided to the Tenant as previously outlined in
this lease shall be provided only during those hours in which the Building
is open to the public. Landlord shall in no case be liable for damages for
the admission to or exclusion from the Building of any person whom the
Landlord has the right to exclude under Rule 1 above. In case of invasion,
mob, riot, public excitement, or other commotion, Landlord reserves the
right to prevent access to the Building during the continuance of the same
by closing the doors or otherwise, for the safety of the tenants or
Landlord and protection in the Building.
11. Tenant assumes full responsibility for protecting its space from theft,
robbery and pilferage which includes keeping doors locked and windows and
other means of entry to the leased premises closed.
12. Tenant shall not alter any lock or install a new or additional lock or any
bolt on any door of the leased premises without prior written consent of
Landlord. If Landlord shall give its consent, Tenant shall in each case
furnish Landlord with a key or any such lock.
13. In advertising or other publicity, without Landlord's prior written
consent, Tenant shall not use the name of the Building except as the
address of its business and shall not use pictures of the Building.
14. Tenant shall not make any room-to-room canvass to solicit business from
other tenants in the Building; and shall not exhibit, sell or offer to
sell, use, rent or exchange in or from the leased premises unless
ordinarily embraced within the Tenant's use of the leased premises
specified herein.
15. Tenant shall not waste electricity, water or air conditioning and agrees to
cooperate fully with Landlord to assure most effective operation of the
Building's heating and air conditioning, and shall not allow the adjustment
(except by Landlord's authorized building personnel) of any controls other
than room thermostats installed for Tenant's use. Tenant shall keep
corridor doors closed and shall not open any windows except that if the air
circulation shall not be in operation, windows that are openable may be
opened with Landlord's consent.
16. Tenant shall not do any cooking in the leased premises or engage any coffee
cart service.
17. Any wallpaper or vinyl fabric materials, which Tenant may install on
painted walls, shall be applied with a strippable adhesive. The use of
nonstrippable adhesives will cause damage to the walls when materials are
removed, and repairs made necessary thereby shall be made by Landlord at
Tenant's expense.
18. Tenant shall provide and maintain hard surface protective mats and under
all desk chairs which are equipped with casters to avoid excessive wear and
tear to carpeting. If Tenant fails to provide such mats, the cost of carpet
repair or replacement made necessary by such excessive wear and tear shall
be charged to and paid for by Tenant.
19. Tenant will refer all contractors, contractor's representatives and
installation technicians, rendering any service to Tenant, to Landlord for
Landlord's supervision, approval, and control before performance of any
contractual service. This provision shall apply to all work performed in
the Building including installations of telephones, telegraph equipment,
electrical devices and attachments and installations of any nature
affecting floors, walls, woodwork, trim, windows, ceilings, equipment or
any other physical portion of the Building.
20. Movement in or out of the Building of furniture, office equipment, or other
bulky materials, or movement through the Building entrances or lobby shall
be restricted to hours designated by Landlord. All such movements shall be
under supervision of Landlord and in the manner agreed between Tenant and
Landlord by prearrangement before performance. Such prearrangement
initiated by Tenant will include determination by Landlord and subject to
his decision and control, of the time, method, and routing of movement,
limitations imposed by safety or other concerns which may prohibit any
article, equipment or any other item from being brought into the Building.
Tenant is to assume all risk as to damage to articles moved and injury to
persons or public engaged or not engaged in such movement, including
equipment, property, and personnel or Landlord if damaged or injured as a
result of acts in connection with carrying out this service for Tenant from
time of entering property to completion of work; and Landlord shall not be
liable for acts of any person engaged in, or any damage or loss to any said
property or persons resulting from any act in connection with such service
performed for Tenant and Tenant hereby agrees to indemnify and hold
harmless Landlord from and against any such damage, injury, or loss,
including attorneys' fees.
21. No portion of Tenant's area or any other part of the Building shall at any
time be used or occupied as sleeping or lodging quarters.
22. Landlord will not be responsible for lost or stolen personal property,
equipment, money, or jewelry from Tenant's area or any public rooms
regardless of whether such loss occurs when such area is locked against
entry or not.
23. Employees of Landlord shall not receive or carry messages for or to any
tenant or other person, nor contract with or render free or paid services
to any tenant or tenant's agents, employees, or invitees; in the event of
Landlord's employees perform such services, such employee shall be deemed
the agent of tenant regardless of whether or how payment is arranged for
services and Landlord is expressly relieved from any and all liability in
connection with any such services and any associated injury or damage to
person or property.
24. Tenant and its employees, agents, and invitees shall observe and comply
with the driving and parking signs and markers on the property surrounding
the Building.
25. Tenant shall not place, install, or operate on the leased premises or in
any part of the Building, any coffee making device equipment without the
prior written acknowledgement of Landlord.
26. Tenant shall give prompt notice to Landlord of any accidents to or defects
in plumbing, electrical fixtures, or heating apparatus so that such
accidents or defects may be attended to promptly.
27. The directories of the Building shall be used exclusively for the display
of the name and location of the tenants only and will be provided at the
expense of Landlord. Any additional names requested by Tenant to be
displayed in the directories must be approved by Landlord and, if approved,
will be provided at the sole expense of Tenant.
28. No vending machines of any description shall be installed, maintained or
operated in any part of the Building without written consent of Landlord.
29. Tenant shall comply with the rules and regulations of the Development
attached hereto or delivered to Tenant as provided in Paragraph 7 of the
lease.
30. Landlord reserves the right to make such other and reasonable rules and
regulations as in its judgment may from time to time be needed for the
safety, care and cleanliness of the Building, and for the preservation of
good order therein.
