MEMORANDUM CONFIRMING TERM
THIS MEMORANDUM ("Memorandum") is made as of August 28, 1998 between CB
SANLANDO CENTER, INC., a Delaware corporation, ("Landlord"), and Xxxxxx, Inc.
("Tenant"), pursuant to that certain Lease Agreement between Landlord and Tenant
dated as of May 28, 1998 (the "Lease") for the premises located at 0000 Xxxx
Xxxxx Xxxx 000, Xxxxx 0000, Xxxxxxxx, Xxxxxxx 00000 (the "Premises") and more
particularly described in the Lease. All initial-capitalized terms used in this
Memorandum have the meanings ascribed to them in the Lease.
1. Landlord and Tenant hereby confirm that:
(a) The Commencement Date of the Term is August 1, 1998.
(b) The Expiration Date of the Term is July 31, 2003; and
(c) The date rental commences under the Lease is August 1, 1998
(d) The Rent Schedule referenced in Article 39 is hereby shown as
follows:
--------------------------------------------------------------------------------
Annual Rent Monthly
Square per Installment
Period Feet square foot Annual Rent of Rent
--------------------------------------------------------------------------------
Commencement Date: 7/31/99 2,960.00 $17.50 $51,800.00 $4,316.67
--------------------------------------------------------------------------------
8/1/99 - 7/31/2000 2,960.00 $18.00 $53,280.00 $4,440.00
--------------------------------------------------------------------------------
8/1/2000 - 7/31/2001 2,960.00 $18.50 $54,760.00 $4,563.33
--------------------------------------------------------------------------------
8/1/2001 - 7/31/2002 2,960.00 $19.00 $56,240.00 $4,686.67
--------------------------------------------------------------------------------
8/1/2002 - 7/31/2003 2,960.00 $19.75 $58,460.00 $4,871.67
--------------------------------------------------------------------------------
2. Tenant hereby confirms that:
(a) All commitments, arrangements or understandings made to induce
Tenant to enter into the Lease have been satisfied;
(b) All space and improvements have been completed and furnished in
accordance with the provisions of the Lease; and
(c) Tenant has accepted and is in full and complete possession of the
Premises.
3. This Memorandum shall be binding upon and inure to the benefit of the
parties and their permitted successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Memorandum as of the
date first set forth above.
LANDLORD: TENANT:
CB SANLANDO CENTER, INC. XXXXXX, INC.
C/O: RREEF Management Company,
a Delaware Corporation
By: /s/ Xxxxxxxx E. L. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------- ----------------------
Xxxxxxxx E. L. Xxxxxx, Xxxxxxx X. Xxxxxx
District Manager Title: President
Dated: 8/28, 1998 Dated: 8/24, 1998
[LETTERHEAD THE RREEF FUNDS]
TENANT ACCEPTANCE OF PREMISES
TENANT (OR LESSEE) NAME: Xxxxxx, Inc.
LANDLORD (OR LESSOR) NAME: CB Sanlando Center, Inc. a Delaware
Corporation; c/o RREEF Management
Company, a Delaware Corporation
LEASE REFERENCE DATE: May 28, 1998
TERM OF LEASE: 5 years
ADDRESS OF LEASED PREMISES: 0000 X XX 000, XXX 0000
Xxxxxxxx, XX 00000
APPROXIMATE SQUARE FOOTAGE: 2,960
THE ABOVE DESCRIBED PREMISES WERE INITIALLY OCCUPIED AND ACCEPTED BY TENANT ON
August 1, 1998.
THE ABOVE DESCRIBED LEASE TERM BEGINS August 1, 1998 AND EXPIRES July 31, 2003.
BY: ______________________________________________
TITLE: ___________________________________________
DATED: ___________________________________________
[LETTERHEAD THE RREEF FUNDS]
June 29, 1998
Xx. Xxxx Xxxxxx
Xxxxxx, Inc.
0000 X. XX 000, Xxxxx 0000
Xxxxxxxx, Xxxxxxx 00000
Re: Lease and Lease Termination
Dear Dick:
Enclosed please find one fully executed original of each of the above documents
for your files.
We are pleased that you have expanded and renewed your lease, and look forward
to a mutually rewarding relationship over the next five years.
Please do not hesitate to contact me should you have any questions.
Sincerely,
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Building Manager
ksp
enclosure
LEASE TERMINATION AGREEMENT
THIS AGREEMENT is made as of May 28, 1998, by and between CB SANLANDO
CENTER, INC. ("Landlord"), successor in interest to Xxxxxx Development
Corporation ("Xxxxxx"), and XXXXXX INC., formerly known as X.X. Xxxxxx &
Associates, Inc. ("Tenant"), with respect to certain premises located in the
building (the "Building") commonly known as 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxx.
1. RECITALS. This agreement is made with reference to the following facts
and objectives:
(a) Xxxxxx and Tenant entered into a written Lease dated August 12, 1991
for Suite 2160 of the Building, as amended by Amendment Xx. 0 xxxxx
Xxxxxx 00, 0000 (xxxxxxx suite number to 2158), Amendment Number 2
dated April 26, 1994 (changed expiration date to June 30, 1999 and
leased premises to suite 4150), Amendment Number 3 dated February 7,
1995 (changed square footage to 2,091) and Amendment Number 4 dated
August 4, 1995 and a letter dated January 8, 1997 (advising Landlord
that Tenant's name had changed to Xxxxxx, Inc.) said Lease, Amendments
and letter collectively, the "Lease"), pursuant to which Xxxxxx leased
to Tenant leased from Xxxxxx, premises consisting of approximately
2,091 square feet in Suite 4150 of the Building (the "Premises").
(b) Landlord acquired all of Xxxxxx'x right, title and interest in and to
the Lease.
(c) The term of the Lease is scheduled to expire on June 30, 1999.
(d) Landlord and Tenant wish to provide for the earlier termination of the
Lease and to stipulate as to the payment due on termination, all on
the terms and conditions stated herein.
(e) Now, therefore, in consideration of the mutual promises herein
contained and the detriments to be suffered by each of the parties,
the parties wish to terminate the Lease within the time period
provided in this Agreement, and so that Landlord and Tenant can be
released and discharged from
further performance of the Lease provisions, except as otherwise
provided herein.
2. TERMINATION DATE. Provided that Tenant shall have complied with all of
its covenants and agreements under the Lease and hereunder the Lease shall
terminate as of July 31, 1998 ("Termination Date"), in the same manner and with
the same effect as if that date had been originally fixed in the Lease for the
expiration of the term, conditioned on the performance by the parties of the
provisions of this Agreement.
3. OUTSTANDING RENT AND OTHER CHARGES. Tenant shall pay to Landlord all
rent and other charges as specified in the Lease through the Termination Date.
Any charges which cannot be ascertained prior to the Termination Date shall be
estimated by Landlord and Tenant shall pay such estimated amount. All such
amounts shall be used and held by Landlord for payment of such obligations of
Tenant, with Tenant being liable for any additional costs upon demand by
Landlord, or with any excess to be returned to Tenant after all such obligations
have been determined and satisfied.
4. OPTIONS. Any options of Tenant to renew the Lease, whether or not
exercised prior to the date hereof, are null and void and of no further effect.
5. REPRESENTATION OF PARTIES. Each party represents that it has not made
any assignment, sublease, transfer, conveyance, or other disposition of the
Lease, or interest in the Lease, or any claim, demand, obligation, liability,
action, or cause of action arising from the Lease, and that it has full right,
power and authority to enter into this Agreement.
6. ATTORNEY'S FEES. If either party commences an action against the other
party arising out of or in connection with this Agreement, the prevailing party
shall be entitled to recover from the non-prevailing party reasonable attorney's
fees and cost of suit.
7. FURTHER ASSURANCES. Each party agrees to cooperate with the other and to
execute and deliver all such further instruments and documents and do all such
further acts and things as such party may be reasonably requested to do from
time to time by the other party in order to carry out the provisions and
objectives of this Agreement.
8. SUCCESSORS. This Agreement shall be binding on and insure to the benefit
of the parties and their successors.
9. LANDLORD NOT BOUND. Submission of this Agreement to Tenant shall not be
deemed to be an offer. Landlord shall not be bound by this Agreement, and the
Lease shall
2
remain in full force and effect without reference to this Agreement, until it
has received a copy hereof duly executed by Tenant and has delivered to Tenant a
copy hereof duly executed by Landlord, and until such delivery Landlord reserves
the right to nullify this Agreement.
10. LIMITATION OF LANDLORD'S LIABILITY. Redress for any claims against
Landlord under the Lease or this Agreement shall only be made against Landlord
to the extent of Landlord's interest in the Building of which the leased
Premises are a part. The obligations of Landlord under the Lease and this
Agreement are not intended to and shall not be personally binding on, nor shall
any resort be had to the private properties of, any of its trustees or board of
directors and officers, as the case may be, its investment manager, the general
partners thereof, or any beneficiaries, stockholders, employees, or agents of
Landlord or the investment manager.
11. EQUIPMENT REMOVAL. Within fifteen (15) days after the Termination Date,
Tenant must, at its sole cost and expense, properly remove all of Tenant's
antenna, satellite dish and broadcasting equipment from the roof of the Building
and repair and restore the roof of the Building to its original condition,
reasonable wear and tear excepted (collectively "Equipment Removal").
12. MUTUAL RELEASE. Tenant and Landlord shall have, as of the Termination
Date, no further obligation to each other under the Lease, except for
obligations ("Surviving Obligations") which are expressly provided for herein or
which by their nature would survive the
3
scheduled termination of the Lease (including, without limitation and by way of
example, indemnification for claims accrued prior to Lease termination), and
each party hereby releases the other party from any liability, claims or damages
arising out of or related to the Lease, excluding Surviving Obligations.
This Agreement is executed as of the day and year first written above.
LANDLORD: TENANT:
CB SANLANDO CENTER, INC. XXXXXX, INC.
By: RREEF Management Company, a
Delaware corporation
By: /s/ Xxxxxxxx E. L. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------- --------------------
Xxxxxxxx E. L. Xxxxxx, District Manager
Title: President
Dated: 6/18, 1998 Dated: June 10, 1998
Witnesses: Witnesses:
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxx [ILLEGIBLE]
---------------------------- ------------------------
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxx Xxxxxxxx
---------------------------- ------------------------
4
LEASE
-------------------------
CB SANLANDO CENTER, INC.,
Landlord
and
XXXXXX, INC.,
Tenant
TABLE OF CONTENTS
Article Page
1. USE AND RESTRICTIONS ON USE ............................................ 1
2. TERM ................................................................... 1
3. RENT ................................................................... 2
4. RENT ADJUSTMENTS ....................................................... 2
5. SECURITY DEPOSIT ....................................................... 3
6. ALTERATIONS ............................................................ 4
7. REPAIR ................................................................. 4
8. LIENS .................................................................. 5
9. ASSIGNMENT AND SUBLETTING .............................................. 5
10.INDEMNIFICATION ........................................................ 6
00.XXXXXXXXX .............................................................. 6
12.WAIVER OF SUBROGATION .................................................. 7
00.XXXXXXXX AND UTILITIES ................................................. 7
14.HOLDING OVER ........................................................... 7
15.SUBORDINATION .......................................................... 8
16.RULES AND REGULATIONS .................................................. 8
17.REENTRY BY LANDLORD .................................................... 8
18.DEFAULT ................................................................ 8
19.REMEDIES ............................................................... 9
20.TENANT'S BANKRUPTCY OR INSOLVENCY ...................................... 11
21.QUIET ENJOYMENT ........................................................ 12
22.DAMAGE BY FIRE, ETC .................................................... 12
23.EMINENT DOMAIN ......................................................... 13
00.XXXX BY LANDLORD ....................................................... 13
25.ESTOPPEL CERTIFICATES .................................................. 13
26.SURRENDER OF PREMISES .................................................. 13
27.NOTICES ................................................................ 14
28.TAXES PAYABLE BY TENANT ................................................ 14
29.RELOCATION OF TENANT ................................................... 14
30.DEFINED TERMS AND HEADINGS ............................................. 14
31.TENANT'S AUTHORITY ..................................................... 14
32.COMMISSIONS ............................................................ 15
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33.TIME AND APPLICABLE LAW ................................................ 15
34.SUCCESSORS AND ASSIGNS ................................................. 15
35.ENTIRE AGREEMENT ....................................................... 15
36.EXAMINATION NOT OPTION ................................................. 15
37.RECORDATION ............................................................ 15
38.LIMITATION OF LANDLORD'S LIABILITY ..................................... 15
00.XXXX SCHEDULE .......................................................... 16
40.PARKING ................................................................ 16
41.RADON GAS .............................................................. 16
EXHIBIT A - PREMISES
EXHIBIT B - INITIAL ALTERATIONS
EXHIBIT C - RULE AND REGULATIONS
ii
GROSS (BY) OFFICE LEASE
REFERENCE PAGE
BUILDING: 2180 Sanlando Center
0000 Xxxx Xxxxx Xxxx 000
Xxxxxxxx, Xxxxxxx 00000
LANDLORD: CB Sanlando Center, Inc.,
a Delaware corporation
LANDLORD'S ADDRESS: c/o RREEF Management Company
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
LEASE REFERENCE DATE: May 28, 1998
TENANT: Xxxxxx, Inc.
TENANT'S ADDRESS: 0000 XX 000, Xxxxx 0000, Xxxxxxxx, XX 00000
PREMISES IDENTIFICATION: Suites Number 4150 and 4158
(for outline of Premises see Exhibit A)
PREMISES RENTABLE AREA: Approximately 2,960 sq. ft.
SCHEDULED COMMENCEMENT DATE: Xxxxxx 0, 0000
XXXXXXXXXXX DATE: July 31, 2003
TERM OF LEASE: Five (5) years beginning on the Commencement
Date and ending on the Termination Date
(unless sooner terminated pursuant
to the Lease)
INITIAL ANNUAL RENT (Article 3): See Rent Schedule, Article 39
INITIAL MONTHLY INSTALLMENT
OF ANNUAL RENT (Article 3): See Rent Schedule, Article 39
BASE YEAR (DIRECT EXPENSES): 1998
BASE YEAR (TAXES): 1998
TENANT'S PROPORTIONATE SHARE: 1.83%
SECURITY DEPOSIT: $5,846.00
iii
ASSIGNMENT/SUBLETTING FEE: $500.00
REAL ESTATE BROKER DUE PM Realty Group, Inc., representing Landlord
COMMISSION:
The Reference Page information is incorporated into and made a part of the
Lease. In the event of any conflict between any Reference Page information and
the Lease, the Lease shall control. This Lease includes Exhibits A through C,
all of which are made a part of this Lease.
LANDLORD: TENANT:
CB SANLANDO CENTER, INC. XXXXXX, INC.
By: RREEF Management Company,
a Delaware corporation
By: /s/ Xxxxxxxx E. L. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
-------------------------- -----------------------
Xxxxxxxx E. L. Xxxxxx, Xxxxxxx X. Xxxxxx
District Manager Title: President
Dated: 6/18, 1998 Dated: June 10, 1998
Witnesses: Witnesses:
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxx [ILLEGIBLE]
------------------------- ---------------------
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxx Xxxxxxxxx
------------------------- ---------------------
iv
LEASE
By this Lease Landlord leases to Tenant and Tenant leases from Landlord the
Premises in the Building as set forth and described on the Reference Page. The
Reference Page, including all terms defined thereon, is incorporated as part of
this Lease.
1. USE AND RESTRICTIONS ON USE.
1.1 The Premises are to be used solely for general office purposes. Tenant
shall not do or permit anything to be done in or about the Premises which will
in any way obstruct or interfere with the rights of other tenants or occupants
of the Building or injure, annoy, or disturb them or allow the Premises to be
used for any improper, immoral, unlawful, or objectionable purpose. Tenant shall
not do, permit or suffer in, on, or about the Premises the sale of any alcoholic
liquor without the written consent of Landlord first obtained, or the commission
of any waste. Tenant shall comply with all governmental laws, ordinances and
regulations applicable to the use of the Premises and its occupancy and shall
promptly comply with all governmental orders and directions for the correction,
prevention and abatement of any violations in or upon, or in connection with,
the Premises, all at Tenant's sole expense. Tenant shall not do or permit
anything to be done on or about the Premises or bring or keep anything into the
Premises which will in any way increase the rate of, invalidate or prevent the
procuring of any insurance protecting against loss or damage to the Building or
any of its contents by the fire or other casualty or against liability for
damage to property or injury to persons in or about the Building or any part
thereof.
1.2 Tenant shall not, and shall not direct, suffer or permit any of its
agents, contractors, employees, licensees or invitees to at any time handle,
use, manufacture, store or dispose of in or about the Premises or the Building
any (collectively "Hazardous Materials") flammables, explosives, radioactive
materials, hazardous wastes or materials, toxic wastes or materials, or other
similar substances, petroleum products or derivatives or any substance subject
to regulation by or under any federal, state and local laws and ordinances
relating to the protection of the environment or of the keeping, use or
disposition of environmentally hazardous materials, substances, or wastes,
presently in effect or hereafter adopted, all amendments to any of them, and all
rules and regulations issued pursuant to any of such laws or ordinances
(collectively "Environmental Laws"), nor shall Tenant suffer or permit any
Hazardous Materials to be used in any manner not fully in compliance with all
Environmental Laws, in the Premises or the Building and appurtenant land or
allow the environment to become contaminated with any Hazardous Materials.
Notwithstanding the foregoing, and subject to Landlord's prior consent, Tenant
may handle, store, use or dispose of products containing small quantities of
Hazardous Materials (such as aerosol cans containing insecticides, toner for
copiers, paints, paint remover and the like) to the extent customary and
necessary for the use of the Premises for general office purposes; provided that
Tenant shall always handle, store, use, and dispose of any such Hazardous
Materials in a safe and lawful manner and never allow such Hazardous Materials
to contaminate the Premises or the Building and appurtenances/and or the
environment. Tenant shall protect, defend, indemnify and hold each and all of
the Landlord Entities (as defined in Article 30) harmless from and against any
and all loss, claims, liability or costs (including court costs and attorney's
fees) incurred by reason of any actual or asserted failure of Tenant to fully
comply with all applicable Environmental Laws, or the presence, handling, use or
disposition in or from the Premises of any Hazardous Materials (even though
permissible under all applicable Environmental Laws or the provisions of this
Lease), or by reason of any actual or asserted failure of Tenant to keep,
observe, or perform any provision of this Section 1.2.
2. TERM.
2.1 The Term of this Lease shall begin on the date ("Commencement Date")
which shall be the later of the Scheduled Commencement Date as shown on the
Reference Page and the date that the Landlord shall tender possession of the
Premises to Tenant. Landlord shall tender possession of the Premises with all
the work, if any, to be performed by Landlord pursuant to Exhibit B to this
Lease substantially completed. Tenant shall deliver a punch list of items not
completed within 30 days after Landlord tenders possession of the Premises and
Landlord agrees to proceed with due diligence to perform its obligations
regarding such items. Landlord and Tenant shall execute a memorandum setting
forth the actual Commencement Date and Termination Date.
2.2 Tenant agrees that in the event of the inability of Landlord to deliver
possession of the Premises on the Scheduled Commencement Date, Landlord shall
not be liable for any damage resulting from such inability, but Tenant shall not
be liable for any rent until the time when Landlord can, after notice to Tenant,
deliver possession of the Premises to Tenant. No such failure to give possession
on the Scheduled Commencement Date shall affect the other obligations of Tenant
under this Lease, except that if Landlord is unable to deliver possession of the
Premises within one hundred twenty (120) days of the Scheduled Commencement Date
(other than as a result of strikes, shortages of materials or similar matters
beyond the reasonable control of Landlord and Tenant is notified by Landlord in
writing as to such delay), Tenant shall have the option to terminate this Lease
unless said delay is as a result of: (a) Tenant's failure to agree to plans and
specifications; (b) Tenant's request for materials, finishes or
installations other than Landlord's standard except those, if any, that Landlord
shall have expressly agreed to furnish without extension of time agreed by
Landlord; (c) Tenant's change in any plans or specifications; or, (d)
performance or completion by a party employed by Tenant. If any delay is the
result of any of the foregoing, the Commencement Date and the payment of rent
under this Lease shall be accelerated by the number of days of such delay.
2.3 In the event Landlord shall permit Tenant to occupy the Premises prior
to the Commencement Date, such occupancy shall be subject to all the provisions
of this Lease. Said early possession shall not advance the Termination Date.
3. RENT.
3.1 Tenant agrees to pay to Landlord the Annual Rent in effect from time to
time by paying the Monthly Installment of Rent then in effect on or before the
first day of each full calendar month during the Term, except that the first
month's rent shall be paid upon the execution of this Lease. The Monthly
Installment of Rent in effect at any time shall be one-twelfth of the Annual
Rent in effect at such time. Rent for any period during the Term which is less
than a full month shall be a prorated portion of the Monthly Installment of Rent
based upon a thirty (30) day month. Said rent shall be paid to Landlord, without
deduction or offset and without notice or demand, at the Landlord's address, as
set forth on the Reference Page, or to such other person or at such other place
as Landlord may from time to time designate in writing.
3.2 Tenant recognizes that late payment of any rent or other sum due under
this Lease will result in administrative expense to Landlord, the extent of
which additional expense is extremely difficult and economically impractical to
ascertain. Tenant therefore agrees that if rent or any other sum is not paid
when due and payable pursuant to this Lease, a late charge shall be imposed in
an amount equal to the greater of: (a) Fifty Dollars ($50.00), or (b) a sum
equal to five percent (5%) per month of the unpaid rent or other payment. The
amount of the late charge to be paid by Tenant shall be reassessed and added to
Tenant's obligation for each successive monthly period until paid. The
provisions of this Section 3.2 in no way relieve Tenant of the obligation to pay
rent or other payments on or before the date on which they are due, nor do the
terms of this Section 3.2 in any way affect Landlord's remedies pursuant to
Article 19 of this Lease in the event said rent or other payment is unpaid after
date due.
4. RENT ADJUSTMENTS.
4.1 For the purpose of this Article 4, the following terms are defined as
follows:
4.1.1 Lease Year: Each calendar year falling partly or wholly within
the Term.
4.1.2 Direct Expenses: All direct costs of operation, maintenance, repair
and management of the Building (including the amount of any credits which
Landlord may grant to particular tenants of the Building in lieu of providing
any standard services or paying any standard costs described in this Section
4.1.2 for similar tenants), as determined in accordance with generally accepted
accounting principles, including the following costs by way of illustration, but
not limitation: water and sewer charges; insurance charges of or relating to all
insurance policies and endorsements deemed by Landlord to be reasonably
necessary or desirable and relating in any manner to the protection,
preservation, or operation of the Building or any part thereof; utility costs,
including, but not limited to, the cost of heat, light, power, steam, gas, and
waste disposal; the cost of janitorial services; the cost of security and alarm
services; window cleaning costs; labor costs; costs and expenses of managing the
Building including management fees; air conditioning maintenance costs; elevator
maintenance fees and supplies; material costs; equipment costs including the
cost of maintenance, repair and service agreements and rental and leasing costs;
purchase costs of equipment other than capital items; current rental and leasing
costs of items which would be amortizable capital items if purchased; tool
costs; licenses, permits and inspection fees; wages and salaries; employee
benefits and payroll taxes; accounting and legal fees; any sales, use or service
taxes incurred in connection therewith. Direct expenses shall not include
depreciation or amortization of the Building or equipment in the Building except
as provided herein, loan principal payments, costs of alterations of tenants'
premises, leasing commissions, interest expenses on long-term borrowings,
advertising costs or management salaries for executive personnel other than
personnel located at the Building. In addition, Landlord shall be entitled to
amortize and include as an additional rental adjustment: (i) an allocable
portion of the cost of capital improvement items which are reasonably calculated
to reduce operating expenses; (ii) fire sprinklers and suppression systems and
other life safety systems; and (iii) other capital expenses which are required
under any governmental laws, regulations or ordinances which were not applicable
to the Building at the time it was constructed. All such costs shall be
amortized over the reasonable life of such improvements in accordance with such
reasonable life and amortization schedules as shall be determined by Landlord in
accordance with generally accepted accounting principles, with interest on the
unamortized amount at one percent (1%) in excess of the prime lending rate
announced from time to time as such by The Northern Trust Company of Chicago,
Illinois.
2
4.1.3 Taxes: Real estate taxes and any other taxes, charges and
assessments which are levied with respect to the Building or the land
appurtenant to the Building, or with respect to any improvements, fixtures
and equipment or other property of Landlord, real or personal, located in
the Building and used in connection with the operation of the Building and
said land, any payments to any ground lessor in reimbursement of tax
payments made by such lessor; and all fees, expenses and costs incurred by
Landlord in investigating, protesting, contesting or in any way seeking to
reduce or avoid increase in any assessments, levies or the tax rate
pertaining to any Taxes to be paid by Landlord in any Lease Year. Taxes
shall not include any corporate franchise, or estate, inheritance or net
income tax, or tax imposed upon any transfer by Landlord of its interest in
this Lease or the Building.
4.2 If in any Lease Year, (i) Direct Expenses paid or incurred shall exceed
Direct Expenses paid or incurred in the Base Year (Direct Expenses) and/or (ii)
Taxes paid or incurred by Landlord in any Lease Year shall exceed the amount of
such Taxes which became due and payable in the Base Year (Taxes), Tenant shall
pay as additional rent for such Lease Year Tenant's Proportionate Share of such
excess.
4.3 The annual determination of Direct Expenses shall be made by Landlord
and if certified by a nationally recognized firm of public accountants selected
by Landlord shall be binding upon Landlord and Tenant. Tenant may review the
books and records supporting such determination in the office of Landlord, or
Landlord's agent, during normal business hours, upon giving Landlord five (5)
days advance written notice within sixty (60) days after receipt of such
determination, but in no event more often than once in any one year period. In
the event that during all or any portion of any Lease Year, the Building is not
fully rented and occupied Landlord may make any appropriate adjustment in
occupancy-related Direct Expenses for such year for the purpose of avoiding
distortion of the amount of such Direct Expenses to be attributed to Tenant by
reason of variation in total occupancy of the Building, by employing sound
accounting and management principles to determine Direct Expenses that would
have been paid or incurred by Landlord had the Building been fully rented and
occupied, and the amount so determined shall be deemed to have been Direct
Expenses for such Lease Year.
4.4 Prior to the actual determination thereof for a Lease Year, Landlord
may from time to time estimate Tenant's liability for Direct Expenses and/or
Taxes under Section 4.2, Article 6 and Article 29 for the Lease Year or portion
thereof. Landlord will give Tenant written notification of the amount of such
estimate and Tenant agrees that it will pay, by increase of its Monthly
Installments of Rent due in such Lease Year, additional rent in the amount of
such estimate. Any such increased rate of Monthly Installments of Rent pursuant
to this Section 4.4 shall remain in effect until further written notification to
Tenant pursuant hereto.
4.5 When the above mentioned actual determination of Tenant's liability for
Direct Expenses and/or Taxes is made for any Lease Year and when Tenant is so
notified in writing, then:
4.5.1 If the total additional rent Tenant actually paid pursuant to
Section 4.3 on account of Direct Expenses and/or Taxes for the Lease Year
is less than Tenant's liability for Direct Expenses and/or Taxes, then
Tenant shall pay such deficiency to Landlord as additional rent in one lump
sum within thirty (30) days of receipt of Landlord's xxxx therefor; and
4.5.2 If the total additional rent Tenant actually paid pursuant to
Section 4.3 on account of Direct Expenses and/or Taxes for the Lease Year
is more than Tenant's liability for Direct Expenses and/or Taxes, then
Landlord shall credit the differences against the then next due payments to
be made by Tenant under this Article 4. Tenant shall not be entitled to a
credit by reason of actual Direct Expenses and/or Taxes in any Lease Year
being less than Direct Expenses and/or Taxes in the Base Year (Direct
Expenses and/or Taxes).
4.6 If the Commencement Date is other than January 1 of if the Termination
Date is other than December 31, Tenant's liability for Direct Expenses and Taxes
for the Lease Year in which said Date occurs shall be prorated based upon a
three hundred sixty-five (365) day year.
5. SECURITY DEPOSIT. Tenant shall deposit the Security Deposit with
Landlord upon the execution of this Lease. Said sum shall be held by Landlord as
security for the faithful performance by Tenant of all the terms, covenants and
conditions of this Lease to be kept and performed by Tenant and not as an
advance rental deposit or as a measure of Landlord's damage in case of Tenant's
default. If Tenant defaults with respect to any provision of this Lease,
Landlord may use any part of the Security Deposit for the payment of any rent or
any other sum in default, or for the payment of any amount which Landlord may
spend or become obligated to spend by reason of Tenant's default, or to
compensate Landlord for any other loss or damage which Landlord may suffer by
reason of Tenant's default. If any portion is so used, Tenant shall within five
(5) days after written demand therefor, deposit with Landlord an amount
sufficient to restore the Security Deposit to its original amount and Tenant's
failure to do so shall be a material breach of this Lease. Except to such
extent, if any, as shall be required by law, Landlord shall not be required to
keep the Security Deposit separate from its general funds, and Tenant shall not
be entitled to interest on such deposit. If Tenant shall fully and faithfully
perform every provision of this Lease to be performed by it, the Security
Deposit or any balance thereof shall be returned to Tenant at such time after
termination of this Lease when Landlord shall have determined that all of
Tenant's obligations under this Lease have been fulfilled.
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6. ALTERATIONS.
6.1 Except for those, if any, specifically provided for in Exhibit B to
this Lease, Tenant shall not make or suffer to be made any alterations,
additions, or improvements, including, but not limited to, the attachment of any
fixtures or equipment in, on, or to the Premises or any part thereof or the
making of any improvements as required by Article 7, without the prior written
consent of Landlord. When applying for such consent, Tenant shall, if requested
by Landlord, furnish complete plans and specifications for such alterations,
additions and improvements.
6.2 In the event Landlord consents to the making of any such alteration,
addition or improvement by Tenant, the same shall be made using Landlord's
contractor (unless Landlord agrees otherwise) at Tenant's sole cost and expense.
If Tenant shall employ any Contractor other than Landlord's Contractor and such
other Contractor or any Subcontractor of such other Contractor shall employ any
non-union labor or supplier, Tenant shall be responsible for and hold Landlord
harmless from any and all delays, damages and extra costs suffered by Landlord
as a result of any dispute with any labor unions concerning the wage, hours,
terms or conditions of the employment of any such labor. In any event Landlord
may charge Tenant a reasonable charge to cover its overhead as it relates to
such proposed work.
6.3 All alterations, additions or improvements proposed by Tenant shall be
constructed in accordance with all government laws, ordinances, rules and
regulations and Tenant shall, prior to construction, provide the additional
insurance required under Article 11 in such case, and also all such assurances
to Landlord, including but not limited to, waivers of lien, surety company
performance bonds and personal guarantees of individuals of substance as
Landlord shall require to assure payment of the costs thereof and to protect
Landlord and the Building and appurtenant land against any loss from any
mechanic's, materialmen's or other liens. Tenant shall pay in addition to any
sums due pursuant to Article 4, any increase in real estate taxes attributable
to any such alteration, addition or improvement for so long, during the Term, as
such increase is ascertainable; at Landlord's election said sums shall be paid
in the same way as sums due under Article 4.
6.4 All alterations, additions, and improvements in, on, or to the Premises
made or installed by Tenant, including carpeting, shall be and remain the
property of Tenant during the Term but, excepting furniture, furnishings,
movable partitions of less than full height from floor to ceiling and other
trade fixtures, shall become a part of the realty and belong to Landlord without
compensation to Tenant upon the expiration or sooner termination of the Term, at
which time title shall pass to Landlord under this Lease as by a xxxx of sale,
unless Landlord elects otherwise. Upon such election by Landlord, Tenant shall
upon demand by Landlord, at Tenant's sole cost and expense, forthwith and with
all due diligence remove any such alterations, additions or improvements which
are designated by Landlord to be removed, and Tenant shall forthwith and with
all due diligence, at its sole cost and expense, repair and restore the Premises
to their original condition, reasonable wear and tear and damage by fire or
other casualty excepted.
7. REPAIR.
7.1 Landlord shall have no obligation to alter, remodel, improve, repair,
decorate or paint the Premises, except as specified in Exhibit B if attached to
this Lease and except that Landlord shall repair and maintain the structural
portion of the Building, including the basic plumbing, air conditioning, heating
and electrical systems installed or furnished by Landlord. By taking possession
of the Premises, Tenant accepts them as being in good order, condition and
repair and in the condition in which Landlord is obligated to deliver them. It
is hereby understood and agreed that no representations respecting the condition
of the Premises or the Building have been made by Landlord to Tenant, except as
specifically set forth in this Lease.
7.2 Tenant shall, at all times during the Term, keep the Premises in good
condition and repair excepting damage by fire, or other casualty, and in
compliance with all applicable governmental laws, ordinances and regulations,
promptly complying with all governmental orders and directives for the
correction, prevention and abatement of any violations or nuisances in or upon,
or connected with, the Premises, all at Tenant's sole expense.
7.3 Landlord shall not be liable for any failure to make any repairs or to
perform any maintenance unless such failure shall persist for an unreasonable
time after written notice of the need of such repairs or maintenance is given to
Landlord by Tenant.
7.4 Except as provided in Article 22, there shall be no abatement of rent
no liability of Landlord by reason of any injury to or interference with
Tenant's business arising from the making of any repairs, alterations or
improvements in or to any portion of the Building or the Premises or to
fixtures, appurtenances and equipment in the Building. Except to the extent, if
any, prohibited by law, Tenant waives the right to make repairs at Landlord's
expense under any law, statute or ordinance now or hereafter in effect.
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8. LIENS. Tenant shall keep the Premises, the Building and appurtenant land and
Tenant's leasehold interest in the Premises free from any liens arising out of
any services, work or materials performed, furnished, or contracted for by
Tenant, or obligations incurred by Tenant. In the event that Tenant shall not
within ten (10) days following the imposition of any such lien, either cause the
same to be released of record or provide Landlord with insurance against the
same issued by a major title insurance company or such other protection against
the same as Landlord shall accept, Landlord shall have the right to cause the
same to be released by such means as it all shall deem proper, including payment
of the claim giving rise to such lien. All such sums paid by Landlord and all
expenses incurred by it in connection therewith shall be considered additional
rent and shall be payable to it by Tenant on demand.
9. ASSIGNMENT AND SUBLETTING.
9.1 Tenant shall not have the right to assign or pledge this Lease or to
sublet the whole or any part of the Premises whether voluntarily or by operation
of law, or permit the use or occupancy of the Premises by anyone other than
Tenant, and shall not make, suffer or permit such assignment, subleasing or
occupancy without the prior written consent of Landlord, and said restrictions
shall be binding upon any and all assignees of the Lease and subtenants of the
Premises. In the event Tenant desires to sublet, or permit such occupancy of,
the Premises, or any portion thereof, or assign this Lease, Tenant shall give
written notice thereof to Landlord at least ninety (90) days but no more than
one hundred eighty (180) days prior to the proposed commencement date of such
subletting or assignment, which notice shall set forth the name of the proposed
subtenant or assignee, the relevant terms of any sublease or assignment and
copies of financial reports and other relevant financial reports and other
relevant financial information of the proposed subtenant or assignee.
9.2 Notwithstanding any assignment or subletting, permitted or otherwise,
Tenant shall at all times remain directly, primarily and fully responsible and
liable for the payment of the rent specified in this Lease and for compliance
with all of its other obligations under the terms, provisions and covenants of
this Lease. Upon the occurrence of an Event of Default, if the Premises or any
part of them are then assigned or sublet, Landlord, in addition to any other
remedies provided in this Lease or provided by law, may, at its option, collect
directly from such assignee or subtenant all rents due and becoming due to
Tenant under such assignment or sublease and apply such rent against any sums
due to Landlord from Tenant under this Lease, and no such collection shall be
construed to constitute a novation or release of Tenant from the further
performance of Tenant's obligations under this Lease.
9.3 In addition to Landlord's right to approve of any subtenant or
assignee, Landlord shall have the option, in its sole discretion, in the event
of any proposed subletting or assignment, to terminate this Lease, or in the
case of a proposed subletting of less than the entire Premises, to recapture the
portion of the Premises to be sublet, as of the date the subletting or
assignment is to be effective. The option shall be exercised, if at all, by
Landlord giving Tenant written notice given by Landlord to Tenant within sixty
(60) days following Landlord's receipt of Tenant's written notice as required
above. If this Lease shall be terminated with respect to the entire Premises
pursuant to this Section, the Term of this Lease shall end on the date stated in
Tenant's notice as the effective date of the sublease or assignment as if that
date had been originally fixed in this Lease for the expiration of the Term. If
Landlord recaptures under this Section only a portion of the Premises, the rent
to be paid from time to time during the unexpired Term shall xxxxx
proportionately based on the proportion by which the approximate square footage
of the remaining portion of the Premises shall be less than that of the Premises
as of the date immediately prior to such recapture. Tenant shall, at Tenant's
own cost and expense, discharge in full any outstanding commission obligation on
the part of Landlord with respect to this Lease, and any commissions which may
be due and owing as a result of any proposed assignment or subletting, whether
or not the Premises are recaptured pursuant to this Section 9.3 and rented by
Landlord to the proposed tenant or any other tenant.
9.4 In the event that Tenant sells, sublets, assigns or transfers this
Lease, Tenant shall pay to Landlord as additional rent an amount equal to one
hundred percent (100%) of any Increased Rent (as defined below) when and as such
Increased Rent is received by Tenant. As used in this Section, "Increased Rent"
shall mean the excess of (i) all rent and other consideration which Tenant is
entitled to receive by reason of any sale, sublease, assignment or other
transfer of this Lease, over (ii) the rent otherwise payable by Tenant under
this Lease at such time. For purposes of the foregoing, any consideration
received by Tenant in form other than cash shall be valued at its fair market
value as determined by Landlord in good faith.
9.5 Notwithstanding any other provision hereof, Tenant shall have no right
to make (and Landlord shall have the absolute right to refuse consent to) any
assignment of this Lease or sublease of any portion of the Premises
if at the time either Tenant's notice of the proposed assignment or sublease or
the proposed commencement date thereof, there shall exist any uncured default of
Tenant or matter which will become a default of Tenant with passage of time
unless cured, or if the proposed assignee or sublessee is an entity: (a) with
which Landlord is already in negotiation as evidenced by the issuance of a
written proposal; (b) is already an occupant of the Building unless Landlord is
unable to provide the amount of space required by such occupant; (c) is a
governmental agency; (d) is incompatible with the character of occupancy of the
Building; or (e) would subject the Premises to a use which would: (i) involve
increased personnel or wear upon the Building; (ii) violate any exclusive right
granted to another tenant of the Building; (iii) require any addition to or
modification of the Premises or the Building in order
5
to comply with building code or other governmental requirements; or, (iv)
involve a violation of Section 1.2. Tenant expressly agrees that Landlord shall
have the absolute right to refuse consent to any such assignment or sublease and
that for the purposes of any statutory or other requirement of reasonableness on
the part of Landlord such refusal shall be reasonable.
9.6 Upon any request to assign or sublet, Tenant will pay to Landlord the
Assignment/Subletting Fee plus, on demand, a sum equal to all of Landlord's
costs, including attorney's fees, incurred in investigating and considering any
proposed or purported assignment or pledge of this Lease or sublease of any of
the Premises, regardless of whether Landlord shall consent to, refuse consent,
or determine that Landlord's consent is not required for, such assignment,
pledge or sublease. Any purported sale, assignment, mortgage, transfer of this
Lease or subletting which does not comply with the provisions of this Article 9
shall be void.
9.7 If Tenant is a corporation, partnership or trust, any transfer or
transfers of or change or changes within any twelve month period in the number
of the outstanding voting shares of the corporation, the general partnership
interests in the partnership or the identity of the persons or entities
controlling the activities of such partnership or trust resulting in the persons
or entities owning or controlling a majority of such shares, partnership
interests or activities of such partnership or trust at the beginning of such
period no longer having such ownership or control shall be regarded as
equivalent to an assignment of this Lease to the persons or entities acquiring
such ownership or control and shall be subject to all the provisions of this
Article 9 to the same extent and for all intents and purposes as though such an
assignment.
10. INDEMNIFICATION. None of the Landlord Entities shall be liable and Tenant
hereby waives all claims against them for any damage to any property or any
injury to any person in or about the Premises or the Building by or from any
cause whatsoever (including without limiting the foregoing, rain or water
leakage of any character from the roof, windows, walls, basement, pipes,
plumbing works or appliances, the Building not being in good condition or
repair, gas, fire, oil, electricity or theft), except to the extent caused by or
arising form the gross negligence or willful misconduct of Landlord or its
agents, employees or contractors. Tenant shall protect, indemnify and hold the
Landlord Entities harmless from and against any and all loss, claims, liability
or costs (including court costs and attorney's fees) incurred by reason of (a)
any damage to any property (including but not limited to property of any
Landlord Entity) or any injury (including but not limited to death) to any
person occurring in, on or about the Premises or the Building to the extent that
such injury or damage shall be caused by or arise from any actual or alleged
act, neglect, fault, or omission by or of Tenant, its agents, servants,
employees, invitees, or visitors to meet any standards imposed by any duty with
respect to the injury or damage; (b) the conduct or management of any work or
thing whatsoever done by the Tenant in or about the Premises or from
transactions of the Tenant concerning the Premises; (c) Tenant's failure to
comply with any and all governmental laws, ordinances and regulations applicable
to the condition or use of the Premises or its occupancy; or (d) any breach or
default on the part of Tenant in the performance of any covenant or agreement on
the part of the Tenant to be performed pursuant to this Lease. The provisions of
this Article shall survive the termination of this Lease with respect to any
claims or liability accruing prior to such termination.
11. INSURANCE.
11.1 Tenant shall keep in force throughout the Term: (a) a Commercial
General Liability insurance policy or policies to protect the Landlord Entities
against any liability to the public or to any invitee of Tenant or a Landlord
Entity incidental to the use of or resulting from any accident occurring in or
upon the Premises with a limit of not less than $1,000,000.00 per occurrence and
not less than $2,000,000.00 in the annual aggregate, or such larger amount as
Landlord may prudently require from time to time, covering bodily injury and
property damage liability and $1,000,000 products/completed operations
aggregate; (b) Business Auto Liability covering owned, non-owned and hired
vehicles with a limit of not less than $1,000,000 per accident; (c) insurance
protecting against liability under Worker's Compensation Laws with limits at
least as required by statute; (d) Employers Liability with limits of $500,000
each accident, $500,000 disease policy limit, $500,000 disease--each employee;
(e) All Risk or Special Form coverage protecting Tenant against loss of or
damage to Tenant's alterations, additions, improvements, carpeting, floor
coverings, panelings, decorations, fixtures, inventory and other business
personal property situated in or about the Premises to the full replacement
value of the property so insured; and, (f) Business Interruption Insurance with
limit of liability representing loss of at least approximately six months of
income.
11.2 Each of the aforesaid policies shall (a) be provided at Tenant's
expense; (b) name the Landlord Entities as additional insureds; (c) be issued by
an insurance company with a minimum Best's rating of "A:VII" during the Term;
and (d) provide that said insurance shall not be canceled unless thirty (30)
days prior written notice (ten days for non-payment of premium) shall have been
given to Landlord; and said policy or policies or certificates thereof shall be
delivered to Landlord by Tenant upon the Commencement Date and at least thirty
(30) days prior to each renewal of said insurance.
6
11.3 Whenever Tenant shall undertake any alterations, additions or
improvements in, to or about the Premises ("Work") the aforesaid insurance
protection must extend to and include injuries to persons and damages to
property arising in connection with such Work, without limitation including
liability under any applicable structural work act, and such other insurance as
Landlord shall require; and the policies of or certificates evidencing such
insurance must be delivered to Landlord prior to commencement of any such Work.
12. WAIVER OF SUBROGATION. So long as their respective insurers so permit,
Tenant and Landlord hereby mutually waive their respective rights of recovery
against each other for any loss insured by fire, extended coverage, All Risks or
other insurance now or hereafter existing for the benefit of the respective
party but only to the extent of the net insurance proceeds payable under such
policies. Each party shall obtain any special endorsements required by their
insurer to evidence compliance with the aforementioned waiver.
13. SERVICES AND UTILITIES.
13.1 Provided Tenant shall not be in default under this Lease, and subject
to the other provisions of this Lease, Landlord agrees to furnish to the
Premises during ordinary business hours on generally recognized business days
(but exclusive in any event of Sundays and legal holidays), the following
services and utilities subject to the rules and regulations of the Building
prescribed form time to time: (a) water suitable for normal office use of the
Premises; (b) heat and air conditioning required in Landlord's judgment for the
use and occupation of the Premises; (c) cleaning and janitorial service; (d)
elevator service by nonattended automatic elevators; (e) such window washing as
may from time to time in Landlord's judgment be reasonably required; and, (f)
equipment to bring to Tenant's meter, electricity for lighting, convenience
outlets and other normal office use. To the extent that Tenant is not billed
directly by a public utility, Tenant shall pay, upon demand, as additional rent,
for all electricity used by Tenant in the premises. The charge shall be at the
rates charged for such services by the local public utility. Landlord shall not
be liable for, and Tenant shall not be entitled to, any abatement or reduction
of rental by reason of Landlord's failure to furnish any of the foregoing,
unless such failure shall persist for an unreasonable time after written notice
of such failure is given to Landlord by Tenant and provided further that
Landlord shall not be liable when such failure is caused by accident, breakage,
repairs, labor disputes of any character, energy usage restrictions or by any
other cause, similar or dissimilar, beyond the reasonable control of Landlord.
Landlord shall use reasonable efforts to remedy any interruption in the
furnishing of services and utilities.
13.2 Should Tenant require any additional work or service, as described
above, including services furnished outside ordinary business hours specified
above, Landlord may, on terms to be agreed, upon reasonable advance notice by
Tenant, furnish such additional service and Tenant agrees to pay Landlord such
charges as may be agreed upon, including any tax imposed thereon, but in no
event at a charge less than Landlord's actual cost plus overhead for such
additional service and, where appropriate, a reasonable allowance for
depreciation of any systems being used to provide such service.
13.3 Wherever heat-generating machines or equipment are used by Tenant in
the Premises which affect the temperature otherwise maintained by the air
conditioning system, Landlord reserves the right to install supplementary air
conditioning units in or for the benefit of the Premises and the cost thereof,
including the cost of installation and the cost of operations and maintenance,
shall be paid by Tenant to Landlord upon demand as such additional rent.
13.4 Tenant will not, without the written consent of Landlord, use any
apparatus or device in the Premises, including but not limited to, electronic
data processing machines and machines using current in excess of 200 xxxxx or
110 volts, which will in any way increase the amount of electricity or water
usually furnished or supplied for use of the Premises for normal office use, nor
connect with electric current, except through existing electrical outlets in the
Premises, or water pipes, any apparatus or device for the purposes of using
electrical current or water. If Tenant shall require water or electric current
in excess of that usually furnished or supplied for use of the Premises as
normal office use, Tenant shall procure the prior written consent of Landlord
for the use thereof, which Landlord may refuse, and if Landlord does consent,
Landlord may cause a water meter or electric current meter to be installed so as
to measure the amount of such excess water and electric current. The cost of any
such meters shall be paid for by Tenant. Tenant agrees to pay as additional rent
to Landlord promptly upon demand therefor, the cost of all such excess water and
electric current consumed (as shown by said meters, if any, or, if none, as
reasonable estimated by Landlord) at the rates charged for such services by the
local public utility or agency, as the case may be, furnishing
the same, plus any additional expense incurred in keeping account of the water
and electric current so consumed.
14. HOLDING OVER. Tenant shall pay Landlord for each day Tenant retains
possession of the Premises or part of them after termination of this Lease by
lapse of time or otherwise at the rate ("Holdover Rate") which shall be 200% of
the greater of: (a) the amount of the Annual Rent for the last period prior to
the date of such termination plus all Rent Adjustments under Article 4; and, (b)
the then market rental value of the Premises as determined by Landlord assuming
a new lease of the Premises of the then usual duration and other terms, in
either case prorated on
7
a daily basis, and also pay all damages sustained by Landlord by reason of such
retention. If Landlord gives notice to Tenant of Landlord's election to that
effect, such holding over shall constitute renewal of this Lease for a period
from month to month or one year, whichever shall be specified in such notice, in
either case at the Holdover Rate, but if the Landlord does not so elect, no such
renewal shall result notwithstanding acceptance by Landlord of any sums due
hereunder after such termination; and instead, a tenancy at sufferance at the
Holdover Rate shall be deemed to have been created. In any event, no provision
of this Article 14 shall be deemed to waive Landlord's right of reentry or any
other right under this Lease or at law.
15. SUBORDINATION. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, this Lease
shall be subject and subordinate at all times to ground or underlying leases and
to the lien of any mortgages or deeds of trust now or hereafter placed on,
against or affecting the Building, Landlord's interest or estate in the
Building, or any ground or underlying lease; provided, however, that if the
lessor, mortgagee, trustee, or holder of any such mortgage or deed of trust
elects to have Tenant's interest in this Lease be superior to any such
instrument, then, by notice to Tenant, this Lease shall be deemed superior,
whether this Lease was executed before or after said instrument. Notwithstanding
the foregoing, Tenant covenants and agrees to execute and deliver upon demand
such further instruments evidencing such subordination or superiority of this
Lease as may be required by Landlord.
16. RULES AND REGULATIONS. Tenant shall faithfully observe and comply with all
the rules and regulations as set forth in Exhibit C to this Lease and all
reasonable modifications of and additions to them form time to time put into
effect by Landlord. Landlord shall not be responsible to Tenant for the
non-performance by any other tenant or occupant of the Building of any such
rules and regulations.
17. REENTRY BY LANDLORD.
17.1 Landlord reserves and shall at all times have the right to re-enter
the Premises to inspect the same, to supply janitor service and any other
service to be provided by Landlord to Tenant under this Lease, to show said
Premises to prospective purchasers, mortgagees or tenants, and to alter, improve
or repair the Premises and any portion of the Building, without abatement of
rent, and may for that purpose erect, use and maintain scaffolding, pipes,
conduits and other necessary structures and open any wall, ceiling or floor in
and through the Building and Premises where reasonably required by the character
of the work to be performed, provided entrance to the Premises shall not be
blocked thereby, and further provided that the business of Tenant shall not be
interfered with unreasonably.
17.2 Landlord shall have the right at any time to change the arrangement
and/or locations of entrances, or passageways, doors and doorways, and
corridors, windows, elevators, stairs, toilets or other public parts of the
Building and to change the name, number or designation by which the Building is
commonly known. In the event that Landlord damages any portion of any wall or
wall covering, ceiling, or floor or floor covering within the Premises, Landlord
shall repair or replace the damaged portion to match the original as nearly as
commercially reasonable but shall not be required to repair or replace more than
the portion actually damaged.
17.3 Tenant hereby waives any claim for damages for any injury or
inconvenience to or interference with Tenant's business, any loss of occupancy
or quiet enjoyment of the Premises, any other loss occasioned by any action of
Landlord authorized by this Article 17. Tenant agrees to reimburse Landlord, on
demand, as additional rent, for any expenses which Landlord may incur in thus
effecting compliance with Tenant's obligations under this Lease.
17.4 For each of the aforesaid purposes, Landlord shall at all times have
and retain a key with which to unlock all of the doors in the Premises,
excluding Tenant's vaults and safes or special security areas (designated in
advance), and Landlord shall have the right to use any and all means which
Landlord may deem proper to open said doors in an emergency to obtain entry to
any portion of the Premises. As to any portion to which access cannot be had by
means of a key or keys in Landlord's possession, Landlord is authorized to gain
access by such means as Landlord shall elect and the cost of repairing any
damage occurring in doing so shall be borne by Tenant and paid to Landlord as
additional rent upon demand.
18. DEFAULT.
18.1 Except as otherwise provided in Article 20, the following events shall
be deemed to be Events of Default under this Lease:
18.1.1 Tenant shall fail to pay when due any sum of money becoming due
to be paid to Landlord under this Lease, whether such sum be any
installment of the rent reserved by this Lease, any other amount treated
8
as additional rent under this Lease, or any other payment or reimbursement
to Landlord required by this Lease, whether or not treated as additional
rent under this Lease, and such failure shall continue for a period of five
days after written notice that such payment was not made when due, but if
any such notice shall be given, for the twelve month period commencing with
the date of such notice, the failure to pay within five days after due any
additional sum of money becoming due to be paid to Landlord under this
Lease during such period shall be an Event of Default, without notice.
18.1.2 Tenant shall fail to comply with any term, provision or
covenant of this Lease which is not provided for in another Section of this
Article and shall not cure such failure within twenty (20) days (forthwith,
if the failure involves a hazardous condition) after written notice of such
failure to Tenant.
18.1.3 Tenant shall fail to vacate the Premises immediately upon
termination of this Lease, by lapse of time or otherwise, or upon
termination of Tenant's right to possession only.
18.1.4 Tenant shall become insolvent, admit in writing its inability
to pay its debts generally as they become due, file a petition in
bankruptcy or a petition to take advantage of any insolvency statute, make
an assignment for the benefit of creditors, make a transfer in fraud of
creditors, apply for or consent to the appointment of a receiver of itself
or of the whole or any substantial part of its property, or file a petition
or answer seeking reorganization or arrangement under the federal
bankruptcy laws, as now in effect or hereafter amended, or any other
applicable law or statute of the United States or any state thereof.
18.1.5. A court of competent jurisdiction shall enter an order,
judgment or decree adjudicating Tenant bankrupt, or appointing a receiver
of Tenant, or of the whole or any substantial part of its property, without
the consent of Tenant, or approving a petition filed against Tenant seeking
reorganization or arrangement of Tenant under the bankruptcy laws of the
United States, as now in effect or hereafter amended, or any state thereof,
and such order, judgment or decree shall not be vacated or set aside or
stayed within thirty (30) days from the date of entry thereof.
19. REMEDIES.
19.1 Except as otherwise provided in Article 20, upon the occurrence of any
of the Events of Default described or referred to in Article 18, Landlord shall
have the option to pursue any one or more of the following remedies without any
notice or demand whatsoever, concurrently or consecutively and not
alternatively:
19.1.1 Landlord may, at its election, terminate this Lease or
terminate Tenant's right to possession only, without terminating the Lease.
19.1.2 Upon any termination of this Lease, whether by lapse of time or
otherwise, or upon any termination of Tenant's right to possession without
termination of the Lease, Tenant shall surrender possession and vacate the
Premises immediately, and deliver possession thereof to Landlord, and
Tenant hereby grants to Landlord full and free license to enter into and
upon the Premises in such event and to repossess Landlord of the premises
as of Landlord's former estate and to expel or remove Tenant and any others
who may be occupying or be within the Premises and to remove Tenant's signs
and other evidence of tenancy and all other property of Tenant therefrom
without being deemed in any manner guilty of trespass, eviction or forcible
entry or detainer, and without incurring any liability for any damage
resulting therefrom, Tenant waiving any right to claim damages for such
re-entry and expulsion, and without relinquishing Landlord's right to rent
or any other right given to Landlord under this Lease or by operation of
law.
19.1.3 Upon any termination of this Lease, whether by lapse of time or
otherwise, Landlord shall be entitled to recover as damages, all rent,
including any amounts treated as additional rent under this Lease, and
other sums due and payable by Tenant on the date of termination, plus as
liquidated damages and not as penalty, an amount equal to the sum of: (a)
an amount equal to the then present value of the rent reserved in this
Lease for the residue of the stated Term of this Lease including any
amounts treated as additional rent under this Lease and all other sums
provided in this Lease to be paid by Tenant, minus the fair rental value of
the Premises for such residue; (b) the value of the time and expense
necessary to obtain a replacement tenant or tenants, and the estimated
expenses described in Section 19.1.4 relating to recovery of the Premises,
preparation for reletting and for reletting [ILLEGIBLE]
itself; and (c) the cost of performing any other covenants which would have
otherwise been performed by Tenant.
19.1.4 Upon any termination of Tenant's right to possession only
without termination of the Lease:
19.1.4.1 Neither such termination of Tenant's right to possession
nor Landlord's taking and holding possession thereof as provided in
Section 19.1.2 shall terminate the Lease or release Tenant, in whole
or in part, from any obligation, including Tenant's obligation to pay
the rent, including any amounts treated as additional rent, under this
Lease for the full Term, and if Landlord so elects Tenant shall pay
forthwith to Landlord
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the sum equal to the entire amount of the rent, including any amounts
treated as additional rent under this Lease, for the remainder of the
Term plus any other sums provided in this Lease to be paid by Tenant
for the remainder of the Term.
19.1.4.2 Landlord may, but need not, relet the Premises or any
part thereof for such rent and upon such terms as Landlord, in its
sole discretion, shall determine (including the right to relet the
premises for a greater or lesser term than that remaining under this
Lease, the right to relet the Premises as a part of a larger area, and
the right to change the character or use made of the Premises). In
connection with or in preparation for any reletting, Landlord may, but
shall not be required to, make repairs, alterations and additions in
or to the Premises and redecorate the same to the extent Landlord
deems necessary or desirable, and Tenant shall, upon demand, pay the
cost thereof, together with Landlord's expenses of reletting,
including, without limitation, any commission incurred by Landlord. If
Landlord decides to relet the Premises or a duty to relet is imposed
upon Landlord by law, Landlord and Tenant agree that nevertheless
Landlord shall at most be required to use only the same efforts
Landlord then uses to lease premises in the Building generally and
that in any case that Landlord shall not be required to give any
preference or priority to the showing or leasing of the Premises over
any other space that Landlord may be leasing or have available and may
place a suitable prospective tenant in any such other space regardless
of when such other space becomes available. Landlord shall not be
required to observe any instruction given by Tenant about any
reletting or accept any tenant offered by Tenant unless such offered
tenant has a creditworthiness acceptable to Landlord and leases the
entire Premises upon terms and conditions including a rate of rent
(after giving effect to all expenditures by Landlord for tenant
improvements, brokers's commissions and other leasing costs) all no
less favorable to Landlord than as called for in this Lease, nor shall
Landlord be required to make or permit any assignment or sublease for
more than the current term or which Landlord would not be required to
make or permit under the provisions of Article 19.
19.1.4.3 Until such times as Landlord shall elect to terminate
the Lease and shall thereupon be entitled to recover the amounts
specified in such case in Section 19.1.3, Tenant shall pay to Landlord
upon demand the full amount of all rent, including any amounts treated
as additional rent under this Lease and other sums reserved in this
Lease for the remaining Term, together with the costs of repairs,
alterations, additions, redecorating and Landlord's expenses of
reletting and the collection of the rent accruing therefrom (including
attorney's fees and broker's commissions), as the same shall then be
due or become due from time to time, less only such consideration as
Landlord may have received from any reletting of the Premises; and
Tenant agrees that Landlord may file suits from time to time to
recover any sums falling due under this Article 19 as they become due.
Any proceeds of reletting by Landlord in excess of the amount then
owed by Tenant to Landlord from time to time shall be credited against
Tenant's future obligations under this Lease but shall not otherwise
be refunded to Tenant or inure to Tenant's benefit.
19.2 Landlord may, at Landlord's option, enter into and upon the Premises
if Landlord determines in its sole discretion that Tenant is not acting within a
commercially reasonable time to maintain, repair or replace anything for which
Tenant is responsible under this Lease and correct the same, without being
deemed in any manner guilty of trespass, eviction or forcible entry and detainer
and without incurring any liability for any damage or interruption of Tenant's
business resulting therefrom. If Tenant shall have vacated the Premises,
Landlord may at Landlord's option re-enter the Premises at any time during the
last six months of the then current Term of this Lease and make any and all such
changes, alterations, revisions, additions and tenant and other improvements in
or about the Premises as Landlord shall elect, all without any abatement of any
of the rent otherwise to be paid by Tenant under this Lease.
19.3 If, on account of any breach or default by Tenant in Tenant's
obligations under the terms and conditions of this Lease, it shall become
necessary or appropriate for Landlord to employ or consult with an attorney
concerning or to enforce or defend any of Landlord's rights or remedies arising
under this Lease, Tenant agrees to pay all Landlord's attorney's fees so
incurred. Tenant expressly waives any right to: (a) trial by jury; and (b)
service of any notice required by any present or future law or ordinance
applicable to landlords or tenants but not required by the terms of this Lease.
19.4 Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of the other remedies provided in this Lease or any other remedies provided
by law (all such remedies being cumulative), nor shall pursuit of any remedy
provided in this Lease constitute a forfeiture or waiver of any rent due to
Landlord under this Lease or of any damages accruing to Landlord by reason of
the violation of any of the terms, provisions and covenants contained in this
Lease.
19.5 No act or thing done by Landlord or its agents during the Term shall
be deemed a termination of this Lease or an acceptance of the surrender of the
Premises, and no agreement to terminate this Lease or accept a surrender of said
Premises shall be valid, unless in writing signed by Landlord. No waiver by
Landlord of any violation or breach of any of the terms, provisions and
covenants contained in this Lease shall be deemed or construed to constitute a
waiver of any other violation or breach of any of the terms, provisions and
covenants contained in this Lease, Landlord's acceptance of the payment of
rental or other payments after the occurrence of an Event of Default shall not
be construed as a waiver of such Default, unless Landlord so notifies Tenant in
writing.
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Forbearance by Landlord in enforcing one or more of the remedies provided in
this Lease upon an Event of Default shall not be deemed or construed to
constitute a waiver of such Default or of Landlord's right to enforce any such
remedies with respect to such Default or any subsequent Default.
19.6 To secure the payment of all rentals and other sums of money becoming
due from Tenant under this Lease, Landlord shall have and Tenant grants to
Landlord a first lien upon the leasehold interest of Tenant under this Lease,
which lien may be enforced in equity, and a continuing security interest upon
all goods, wares, equipment, fixtures, furniture, inventory, accounts, contract
rights, chattel paper and other personal property of Tenant situated on the
Premises, and such property shall not be removed therefrom without the consent
of Landlord until all arrearages in rent as well as any and all other sums of
money then due to Landlord under this Lease shall first have been paid and
discharged. In the event of a default under this Lease, Landlord shall have, in
addition to any other remedies provided in this Lease or by law, all rights and
remedies under the Uniform Commercial Code, including without limitation the
right to sell the property described in this Section 19.6 at a public or private
sale upon five (5) days' notice to Tenant. Tenant shall execute all such
financing statements and other instruments as shall be deemed necessary or
desirable in Landlord's discretion to perfect the security interest hereby
created.
19.7 Any and all property which may be removed from the Premises by
Landlord pursuant to the authority of this Lease or of law, to which Tenant is
or may be entitled, may be handled, removed and/or stored, as the case may be,
by or at the direction of Landlord but at the risk, costs and expense of Tenant,
and Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such property
so long as the same shall be in Landlord's possession or under Landlord's
control. Any such property of Tenant not retaken by Tenant from storage within
thirty (30) days after removal from the Premises shall, at Landlord's option, be
deemed conveyed by Tenant to Landlord under this Lease as by a xxxx of sale
without further payment or credit by Landlord to Tenant.
20. TENANT'S BANKRUPTCY OR INSOLVENCY.
20.1 If at any time and for so long as Tenant shall be subjected to the
provisions of the United States Bankruptcy Code or other law of the United
States or any state thereof for the protection of debtors as in effect at such
time (each a "Debtor's Law"):
20.1.1 Tenant, Tenant as debtor-in-possession, and any trustee or
receiver of Tenant's assets (each a "Tenant's Representative") shall have
no greater right to assume or assign this Lease or any interest in this
Lease, or to sublease any of the Premises than accorded to Tenant in
Article 9, except to the extent Landlord shall be required to permit such
assumption, assignment or sublease by the provisions of such Debtor's Law.
Without limitation of the generality of the foregoing, any right of any
Tenant's Representative to assume or assign this Lease or to sublease any
of the Premises shall be subject to the conditions that:
20.1.1.1 Such Debtor's Law shall provide to Tenant's
Representative a right of assumption of this Lease which Tenant's
Representative shall have timely exercised and Tenant's Representative
shall have fully cured any default of Tenant under this Lease.
20.1.1.2 Tenant's Representative or the proposed assignee, as the
case shall be, shall have deposited with Landlord as security for the
timely payment of rent an amount equal to the larger of: (a) three
months' rent and other monetary charges accruing under this Lease; and
(b) any sum specified in Article 5; and shall have provided Landlord
with adequate other assurance of the future performance of the
obligations of the Tenant under this Lease. Without limitation, such
assurances shall include, at least, in the case of assumption of this
Lease, demonstration to the satisfaction of the Landlord that Tenant's
Representative has and will continue to have sufficient unencumbered
assets after the payment of all secured obligations and administrative
expenses to assure Landlord that Tenant's Representative will have
sufficient funds to fulfill the obligations of Tenant under this
Lease; and in the case of assignment, submission of current financial
statements of the proposed assignee, audited by an independent
certified public accountant reasonably acceptable to Landlord and
showing a net worth and working capital in amounts determined by
Landlord to be sufficient to assure the future performance by such
assignee of all of the Tenant's obligations under this Lease.
20.1.1.3 The assumption or any contemplated assignment of this
Lease or subleasing any part of the Premises, as shall be the case,
will not breach any provision in any other lease, mortgage, financing
agreement or other agreement by which Landlord is bound.
20.1.1.4 Landlord shall have, or would have had absent the
Debtor's Law, no right under Article 9 to refuse consent to the
proposed assignment or sublease by reason of the identity or nature of
the proposed assignee or sublessee or the proposed use of the Premises
concerned.
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21. QUIET ENJOYMENT. Landlord represents and warrants that it has full right and
authority to enter into this Lease and that Tenant, while paying the rental and
performing its other covenants and agreements contained in this Lease, shall
peaceably and quietly have, hold and enjoy the Premises for the Term without
hindrance or molestation from Landlord subject to the terms and provisions of
this Lease. Landlord shall not be liable for any interference or disturbance by
other tenants or third persons, nor shall Tenant be released from any of the
obligations of this Lease because of such interference or disturbance.
22. DAMAGE BY FIRE, ETC.
22.1 In the event the Premises or the Building are damaged by fire or other
cause and in Landlord's reasonable estimation such damage can be materially
restored within ninety (90) days, Landlord shall forthwith repair the same and
this Lease shall remain in full force and effect, except that Tenant shall be
entitled to a proportionate abatement in rent from the date of such damage. Such
abatement of rent shall be made pro rata in accordance with the extent to which
the damage and the making of such repairs shall interfere with the use and
occupancy by Tenant of the Premises from time to time. Within forty-five (45)
days from the date of such damage, Landlord shall notify Tenant, in writing, of
Landlord's reasonable estimation of the length of time within which material
restoration can be made, and Landlord's determination shall be binding on
Tenant. For purposes of this Lease, the Building or Premises shall be deemed
"materially restored" if they are in such condition as would not prevent or
materially interfere with Tenant's use of the Premises for the purpose for which
it was being used immediately before such damage.
22.2 If such repairs cannot, in Landlord's reasonable estimation, be made
within ninety (90) days, Landlord and Tenant shall each have the option of
giving the other, at any time within sixty (60) days after such damage, notice
terminating this Lease as of the date of such damage. In the event of the giving
of such notice, this Lease shall expire and all interest of the Tenant in the
Premises shall terminate as of the date of such damage as if such date had been
originally fixed in this Lease for the expiration of the Term. In the event that
neither Landlord nor Tenant exercises its option to terminate this Lease, then
Landlord shall repair or restore such damage, this Lease continuing in full
force and effect, and the rent hereunder shall be proportionately abated as
provided in Section 22.1.
22.3 Landlord shall not be required to repair or replace any damage or loss
by or from fire or other cause to any panelings, decorations, partitions,
additions, railings, ceilings, floor coverings, office fixtures or any other
property or improvements installed on the Premises or belonging to Tenant. Any
insurance which may be carried by Landlord or Tenant against loss or damage to
the Building or Premises shall be for the sole benefit of the party carrying
such insurance and under its sole control.
22.4 In the event that Landlord should fail to complete such repairs and
material restoration within sixty (60) days after the date estimated by Landlord
therefor as extended by this Section 22.4, Tenant may at its option and as its
sole remedy terminate this Lease by delivering written notice to Landlord,
within fifteen (15) days after the expiration of said period of time, whereupon
the Lease shall end on the date of such notice or such later date fixed in such
notice as if the date of such notice was the date originally fixed in this Lease
for the expiration of the Term; provided, however, that if construction is
delayed because of changes, deletions or additions in construction requested by
Tenant, strikes, lockouts, casualties, Acts of God, war, material or labor
shortages, government regulation or control or other causes beyond the
reasonable control of Landlord, the period for restoration, repair or rebuilding
shall be extended for the amount of time Landlord is so delayed.
22.5 Notwithstanding anything to the contrary contained in this Article:
(a) Landlord shall not have any obligation whatsoever to repair, reconstruct, or
restore the Premises when the damages resulting from any casualty covered by the
provisions of this Article 22 occur during the last twelve (12) months of the
Term or any extension thereof, but if Landlord determines not to repair such
damages Landlord shall notify Tenant and if such damages shall render any
material portion of the Premises untenantable Tenant shall have the right to
terminate this Lease by notice to Landlord within fifteen (15) days after
receipt of Landlord's notice; and (b) in the event the holder of any
indebtedness secured by a mortgage or deed of trust covering the Premises or
Building requires that any insurance proceeds be applied to such indebtedness,
then Landlord shall have the right to terminate this Lease by delivering written
notice of termination to Tenant within fifteen (15) days after such requirement
is made by any such holder, whereupon this Lease shall end on the date of such
damage as if the date of such damage were the date originally fixed in this
Lease for the expiration of the Term.
22.6 In the event of any damage or destruction to the Building or Premises
by any peril covered by the provisions of this Article 22, it shall be Tenant's
responsibility to properly secure the Premises and upon notice from Landlord to
remove forthwith, at its sole cost and expense, such portion of all of the
property belonging to Tenant or its licensees from such portion or all of the
Building or Premises as Landlord shall request.
12
23. EMINENT DOMAIN. If all or any substantial part of the Premises shall be
taken or appropriated by any public or quasi-public authority under the power of
eminent domain, or conveyance in lieu of such appropriation, either party to
this Lease shall have the right, at its option, of giving the other, at any time
within thirty (30) days after such taking, notice terminating this Lease, except
that Tenant may only terminate this Lease by reason of taking or appropriation,
if such taking or appropriation shall be so substantial as to materially
interfere with Tenant's use and occupancy of the Premises. If neither party to
this Lease shall so elect to terminate this Lease, the rental thereafter to be
paid shall be adjusted on a fair and equitable basis under the circumstances. In
addition to the rights of Landlord above, if any substantial part of the
Building shall be taken or appropriated by any public or quasi-public authority
under the power of eminent domain or conveyance in lieu thereof, and regardless
of whether the Premises or any part thereof are so taken or appropriated,
Landlord shall have the right, at its sole option, to terminate this Lease.
Landlord shall be entitled to any and all income, rent, award, or any interest
whatsoever in or upon any such sum, which may be paid or made in connection with
any such public or quasi-public use or purpose, and Tenant hereby assigns to
Landlord any interest it may have in or claim to all or any part of such sums,
other than any separate award which may be made with respect to Tenant's trade
fixtures and moving expenses; Tenant shall make no claim for the value of any
unexpired Term.
24. SALE BY LANDLORD. In event of sale or conveyance by Landlord of the
Building, the same shall operate to release Landlord from any future liability
upon any of the covenants or conditions, expressed or implied, contained in this
Lease in favor of Tenant, and in such event Tenant agrees to look solely to the
responsibility of the successor in interest of Landlord in and to this Lease.
Except as set forth in this Article 24, this Lease shall not be affected by any
such sale and Tenant agrees to attorn to the purchaser or assignee. If any
security has been given by Tenant to secure the faithful performance of any of
the covenants of this Lease, Landlord may transfer or deliver any security, as
such, to Landlord's successor in interest and thereupon Landlord shall be
discharged from any further liability with regard to said security.
25. ESTOPPEL CERTIFICATES. Within ten (10) days following any written request
which Landlord may make from time to time, Tenant shall execute and deliver to
Landlord or mortgagee or prospective mortgagee a sworn statement certifying: (a)
the date of commencement of this Lease; (b) the fact that this Lease is
unmodified and in full force and effect (or, if there have been modifications to
this Lease, that this lease is in full force and effect, as modified, and
stating the date and nature of such modifications); (c) the date to which the
rent and other sums payable under this Lease have been paid; (d) the fact that
there are no current defaults under this Lease by either Landlord or Tenant
except as specified in Tenant's statement; and (e) such other matters as may be
requested by Landlord. Landlord and Tenant intend that any statement delivered
pursuant to this Article 25 may be relied upon by any mortgagee, beneficiary or
purchaser and Tenant shall be liable for all loss, cost or expense resulting
from the failure of any sale or funding of any loan caused by any material
misstatement contained in such estoppel certificate. Tenant irrevocably agrees
that if Tenant fails to execute and deliver such certificate within such ten
(10) day period Landlord or Landlord's beneficiary or agent may execute and
deliver such certificate on Tenant's behalf, and that such certificate shall be
fully binding on Tenant.
26. SURRENDER OF PREMISES.
26.1 Tenant shall, at least thirty (30) days before the last day of the
Term, arrange to meet Landlord for a joint inspection of the Premises. In the
event of Tenant's failure to arrange such joint inspection to be held prior to
vacating the Premises, Landlord's inspection at or after Tenant's vacating the
Premises shall be conclusively deemed correct for purposes of determining
Tenant's responsibility for repairs and restoration.
26.2 At the end of the Term or any renewal of the Term or other sooner
termination of this Lease, Tenant will peaceably deliver up to Landlord
possession of the Premises, together with all improvements or additions upon or
belonging to the same, by whomsoever made, in the same conditions received or
first installed, broom clean and free of all debris, excepting only ordinary
wear and tear and damage by fire or other casualty. Tenant may, and at
Landlord's request shall, at Tenant's sole cost, remove upon termination of this
Lease, any and all furniture, furnishings, movable partitions of less than full
height from floor to ceiling, trade fixtures and other property installed by
Tenant, title to which shall not be in or pass automatically to Landlord upon
such termination, repairing all damage caused by such removal. Property not so
removed shall, unless requested to be removed, be deemed abandoned by the Tenant
and title to the same shall thereupon pass to Landlord under this Lease as by a
xxxx of sale. All other alterations, additions and improvements in, on or to the
Premises shall be dealt with and disposed of as provided in Article 6 hereof.
26.3 All obligations of Tenant under this Lease not fully performed as of
the expiration or earlier termination of the Term shall survive the expiration
or earlier termination of the Term. In the event that Tenant's failure to
perform prevents Landlord from releasing the Premises, Tenant shall continue to
pay rent pursuant to the provisions of Article 14 until such performance is
complete. Upon the expiration or earlier termination of the Term, Tenant shall
pay to Landlord the amount, as estimated by Landlord, necessary to repair and
restore the Premises as provided in this Lease and/or to discharge Tenant's
obligation for unpaid amounts due or to become due to
13
Landlord. All such amounts shall be used and held by Landlord for payment of
such obligations of Tenant, with Tenant being liable for any additional costs
upon demand by Landlord, or with any excess to be returned to Tenant after all
such obligations have been determined and satisfied. Any otherwise unused
Security Deposit shall be credited against the amount payable by Tenant under
this Lease.
27. NOTICES. Any notice or document required or permitted to be delivered under
this Lease shall be addressed to the intended recipient, shall be transmitted
personally, by fully prepaid registered or certified United States Mail return
receipt requested, or by reputable independent contract delivery service
furnishing a written record of attempted or actual delivery, and shall be deemed
to be delivered when tendered for delivery to the addressee at its address set
forth on the Reference Page, or at such other address as it has then last
specified by written notice delivered in accordance with this Article 27, or if
to Tenant either its aforesaid address or its last known registered office or
home of a general partner or individual owner, whether or not actually accepted
or received by the addressee.
28. TAXES PAYABLE BY TENANT. In addition to rent and other charges to be paid by
Tenant under this Lease, Tenant shall reimburse to Landlord, upon demand, any
and all taxes payable by Landlord (other than net income taxes) whether or not
now customary or within the contemplation of the parties to this Lease: (a)
upon, allocable to, or measured by or on the gross or net rent payable under
this Lease, including without limitation any gross income tax or excise tax
levied by the State, any political subdivision thereof, or the Federal
Government with respect to the receipt of such rent; (b) upon or with respect to
the possession, leasing, operation, management, maintenance, alteration, repair,
use or occupancy of the Premises or any portion thereof, including any sales,
use or service tax imposed as a result thereof; (c) upon or measured by the
Tenant's gross receipts or payroll or the value of Tenant's equipment,
furniture, fixtures and other personal property of Tenant or leasehold
improvements, alterations or additions located in the Premises; or (d) upon this
transaction or any document to which Tenant is a party creating or transferring
any interest of Tenant in this Lease or the Premises. In addition to the
foregoing, Tenant agrees to pay, before delinquency, any and all taxes levied or
assessed against Tenant and which become payable during the term hereof upon
Tenant's equipment, furniture, fixtures and other personal property of Tenant
located in the Premises.
29. RELOCATION OF TENANT. Landlord, at its sole expense, on at least ninety (90)
days prior written notice, may require Tenant to move from the Premises to other
space of comparable size and decor in order to permit Landlord to consolidate
the space leased to Tenant with other adjoining space leased or to be leased to
another tenant. In the event of any such relocation, Landlord will pay all
expenses of preparing and decorating the new premises so that they will be
substantially similar to the Premises from which Tenant is moving, and Landlord
will also pay the expense of moving Tenant's furniture and equipment to the
relocated premises. In such event this Lease and each and all of the terms and
covenants and conditions hereof shall remain in full force and effect and
thereupon be deemed applicable to such new space except that a revised Reference
Page and a revised Exhibit A shall become part of this Lease and shall reflect
the location of the new premises.
30. DEFINED TERMS AND HEADINGS. The Article headings shown in this Lease are for
convenience of reference and shall in no way define, increase, limit or describe
the scope or intent of any provision of this Lease. Any indemnification or
insurance of Landlord shall apply to and inure to the benefit of all the
following "Landlord Entities", being Landlord, Landlord's investment manager,
and the trustees, boards of directors, officers, general partners,
beneficiaries, stockholders, employees and agents of each of them. Any option
granted to Landlord shall also include or be exercisable by Landlord's trustee,
beneficiary, agents and employees, as the case may be. In any case where this
Lease is signed by more than one person, the obligations under this Lease shall
be joint and several. The terms "Tenant" and "Landlord" or any pronoun used in
place thereof shall indicate and include the masculine or feminine, the singular
or plural number, individuals, firms or corporations, and their and each of
their respective successors, executors, administrators and permitted assigns,
according to the context hereof. The term "rentable area" shall mean the
rentable area of the Premises or the Building as calculated by the Landlord on
the basis of the plans and specifications of the Building including a
proportionate share of any common areas. Tenant hereby accepts and agrees to be
bound by the figures for the rentable space footage of the Premises and Tenant's
Proportionate Share shown on the Reference Page.
31. TENANT'S AUTHORITY. If Tenant signs as a corporation each of the persons
executing this Lease on behalf of Tenant represents and warrants that Tenant has
been and is qualified to do business in the state in which the Building is
located, that the corporation has full right and authority to enter into this
Lease, and that all persons signing on behalf of the corporation were authorized
to do so by appropriate corporate actions. If Tenant signs as a partnership,
trust or other legal entity, each of the persons executing this Lease on behalf
of Tenant represents and warrants that Tenant has compiled with all applicable
laws, rules and governmental regulations relative to its right to do business in
the state and that such entity on behalf of the Tenant was authorized to do so
by any and all
14
appropriate partnership, trust or other actions. Tenant agrees to furnish
promptly upon request a corporate resolution, proof of due authorization by
partners, or other appropriate documentation evidencing the due authorization of
Tenant to enter into this Lease.
32. COMMISSIONS. Each of the parties represents and warrants to the other that
it has not dealt with any broker or finder in connection with this Lease, except
as described on the Reference Page.
33. TIME AND APPLICABLE LAW. Time is of the essence of this Lease and all of its
provisions. This Lease shall in all respects be governed by the laws of the
state in which the Building is located.
34. SUCCESSORS AND ASSIGNS. Subject to the provisions of Article 9, the terms,
covenants and conditions contained in this Lease shall be binding upon and inure
to the benefit of the heirs, successors, executors, administrators and assigns
of the parties to this Lease.
35. ENTIRE AGREEMENT. This Lease, together with its exhibits, contains all
agreements of the parties to this Lease and supersedes any previous
negotiations. There have been no representations made by the Landlord or
understandings made between the parties other than those set forth in this Lease
and its exhibits. This Lease may not be modified except by a written instrument
duly executed by the parties to this Lease.
36. EXAMINATION NOT OPTION. Submission of this Lease shall not be deemed to be a
reservation of the Premises. Landlord shall not be bound by this Lease until it
has received a copy of this Lease duly executed by Tenant and has delivered to
Tenant a copy of this lease duly executed by Landlord, and until such delivery
Landlord reserves the right to exhibit and lease the Premises to other
prospective tenants notwithstanding anything contained in this Lease to the
contrary, Landlord may withhold delivery of possession of the Premises from
Tenant until such time as Tenant has paid to Landlord any security deposit
required by Article 5, the first month's rent as set forth in Article 3 and any
sum owed pursuant to this Lease.
37. RECORDATION. Tenant shall not record or register this Lease or a short form
memorandum hereof without the prior written consent of Landlord, and then shall
pay all charges and taxes incident such recording or registration.
38. LIMITATION OF LANDLORD'S LIABILITY. Redress for any claim against Landlord
under this Lease shall be limited to and enforceable only against and to the
extent of Landlord's interest in the Building. The obligations of Landlord under
this Lease are not intended to and shall not be personally binding on, nor shall
any resort be had to the private properties of, any of it trustees or board of
directors and officers, as the case may be, its investment manager, the general
partners thereof, or any beneficiaries, stockholders, employees, or agents of
Landlord or the investment manager.
15
39. RENT SCHEDULE.
===========================================================================================
Period Square Feet Annual Rent Annual Rent Monthly
per square foot Installment of
Rent
===========================================================================================
Commencement Date--7/31/99 2,960.00 $17.50 $51,800.00 $4,316.67
-------------------------------------------------------------------------------------------
8/1/99--7/31/2000 2,960.00 $18.00 $53,280.00 $4,440.00
-------------------------------------------------------------------------------------------
8/1/2000--7/31/2001 2,960.00 $18.50 $54,760.00 $4,563.33
-------------------------------------------------------------------------------------------
8/1/2001--7/31/2002 2,960.00 $19.00 $56,240.00 $4,686.67
-------------------------------------------------------------------------------------------
8/1/2002--7/31/2003 2,960.00 $19.75 $58,460.00 $4,871.67
===========================================================================================
40. PARKING. Free surface parking is available on a non-assigned, non-exclusive
basis, at a ratio of four (4) parking spaces per 1,000 square feet of rentable
area. Tenant shall also be entitled to the use of one (1) reserved parking space
in the covered garage.
41. RADON GAS. As required by (section) 404,056(6), Florida Statutes, the
following notification is made regarding radon gas: Radon is a naturally
occurring radioactive gas that, when it has accumulated in a building in
sufficient quantities, may present health risks to persons who are exposed to it
over time. Levels of radon that exceed federal and state guidelines have been
found in buildings in Florida. Additional information regarding radon and radon
testing may be obtained from your county public health unit.
LANDLORD: TENANT:
CB SANLANDO CENTER, INC. XXXXXX, INC.
By RREEF Management Company, a Delaware
corporation
By: /s/ Xxxxxxxx E.L. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------- --------------------------
Xxxxxxxx E.L. Xxxxxx, District Manager Xxxxxxx X. Xxxxxx
Title: President
-------------------------
Dated: 6/18 1998 Dated: June 10, 1998
----------------------, ------------------------
Witnesses: Witnesses:
/s/ Xxxxx X. Xxxxxxx /s/ ILLEGIBLE
------------------------- -----------------------------
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxx Xxxxxxxxx
----------------------- ------------------------------
16
EXHIBIT A
attached to and made a part of Lease bearing the
Lease Reference Date of May 28, 1998 between
CB Sanlando Center, Inc., as Landlord and
Xxxxxx, Inc., as Tenant
PREMISES
Exhibit A is intended only to show the general layout of the Premises as of the
beginning of the Term of this Lease. It does not in any way supersede any of
Landlord's rights set forth in Section 17.2 with respect to arrangements and/or
locations of public parts of the Building and changes in such arrangements
and/or locations. It is not to be scaled; any measurements or distances shown
should be taken as approximate.
[DIAGRAM]
EXHIBIT B
attached to and made a part of Lease bearing the
Lease Reference Date of May 28, 1998 between
CB Sanlando Center, Inc., as Landlord and
Xxxxxx, Inc., as Tenant
INITIAL ALTERATIONS
1. Landlord's Work. Landlord shall provide design and construction of the work
described in Schedule I attached hereto ("Landlord's Work"). Tenant may not use
or occupy the Premises with a number of personnel greater than is contemplated
in the approved space plans. As further provided herein, Tenant shall be
responsible for the incremental cost of Landlord's Work in excess of the Maximum
TI Allowance (defined below). The certificate of Landlord's architect that the
work to be done by Landlord pursuant to this Exhibit B has been substantially
completed shall be adequate evidence that the Premises have been completed in
accordance with the requirements of the Lease and that possession thereof has
been deemed delivered to Tenant, for all purposes of the Lease, including the
commencement of payment of rent.
2. Cost and Allowance.
2.1 Prior to commencing any of Landlord's Work, Landlord shall submit to
Tenant for Tenant's approval a written estimate of the cost of Landlord's Work
(an "Estimate"). Landlord may require Tenant to deposit that amount of the
amount of the Estimate which exceeds the Maximum TI Allowance with Landlord
within five (5) days after Landlord's written request therefor. Such deposit
shall be held as security for the payment of, and shall be credited, without
interest, against the sums payable by Tenant under this Lease. Landlord shall
not be required to commence its work until such payment is received, and, for
purposes only of determining if Landlord has timely complied with its
construction obligation under Section 2.2, the Scheduled Commencement Date shall
be extended one (1) day for each day that such payment is delayed after such
five day period.
2.2 This Lease and the rental rates provided for herein are premised on a
total cost of Landlord's Work not to exceed $20,720.00 ($7.00 per RSF, the
"Maximum TI Allowance"). The "cost of Landlord's Work" includes, without
limitation:
2.2.1 All costs and expenses actually incurred by Landlord pertaining
to Landlord's Work, including, but not limited to, costs charged by contractors,
subcontractors and general and other conditions costs and expenses in connection
with preparation of the Premises for occupancy;
2.2.2 All costs and expenses of preparation of the plans for such
construction, and site inspection and contract administration by Landlord's
consulting architects and/or engineers;
2.2.3 All costs of permits, licenses and other approvals required for
the performance of Landlord's Work; and
2.2.4 A construction management fee to Landlord of five percent (5%) of
the total of all such costs under the foregoing Paragraphs 2.2.1, 2.2.2 and
2.2.3.
2.3 If the total cost of Landlord's Work exceeds the Maximum TI Allowance,
the entire amount of such excess shall be borne by Tenant and shall be paid to
Landlord by Tenant upon demand as additional rent under the Lease.
3. Miscellaneous
3.1 Except as set forth in this Exhibit B, Landlord has no other agreement
with Tenant and has no obligation to do any work with respect to the Premises.
Any other work in the Premises which may be permitted by Landlord pursuant to
the terms and conditions of the Lease shall be done at Tenant's sole cost and
expense and in accordance with the terms and provisions of the Lease.
3.2 All rights and remedies of Landlord herein created or otherwise
existing at law or equity are cumulative, and the exercise of one or more such
rights or remedies shall not be deemed to exclude or waive the right to the
exercise of any other rights or remedies. All such rights and remedies may be
exercised and enforced concurrently and whenever and as often as deemed
desirable.
3.3 This Exhibit B shall not be deemed applicable to any additional space
added to the original Premises at any time or from time to time, whether by any
options under the Lease or otherwise, or to any portion of
the original Premises or any additions thereto in the event of a renewal or
extension of the original term of the Lease, whether by any options under the
Lease or otherwise.
4. Recapture of Concessions. Tenant understands and agrees that in entering into
this Lease, Landlord is relying upon receipt of all the base rent to become due
with respect to all of the Leased Premises over the full term of this Lease for
amortization, including an interest factor of ten (10%) per annum (the "Interest
Rate") of the Concession Amount. For purposes hereof, the "Concession Amount"
shall be defined as the aggregate of the Maximum TI Allowance and the brokers'
commissions becoming due by reason of this Lease.
Accordingly, Tenant agrees that if this Lease or Tenant's right to possession of
the Leased Premises leased hereunder shall be terminated as of any date
("Termination Date") prior to the expiration of the full Term hereof by reason
of a default of Tenant, there shall be due and owing to Landlord as of the day
prior to the Termination Date, as rent in addition to all other amounts owed by
Tenant as of such Date, the amount ("Unamortized Amount") of the Concession
Amount determined as set forth below; provided, however, that in the event that
such amounts are recovered by Landlord pursuant to any other provision of this
Lease, Landlord agrees that it shall not attempt to recover such amounts
pursuant to this paragraph.
For the purposes hereof, the Unamortized Amount shall be determined in the same
manner as the remaining principal balance of a mortgage with the Interest Rate
payable in level payments over the same length of time would be determined; to
illustrate, according to a standard mortgage amortization table the principle
amount outstanding at the end of the fifth year of a loan of $1,000.00 payable
in level payments with interest at 8% over ten years will be $598.00 assuming
all payments to that point are made as due.
SCHEDULE I
LANDLORD'S WORK
Construction per plans and specifications dated 6-10-98 (accepted by Tenant on
6-11-98) prepared by Xxxxx Xxxx Design Associates.
EXHIBIT C
attached to and made a part of Lease bearing the
Lease Reference Date of May 28, 1998 between
CB Sanlando Center, Inc., as Landlord and
Xxxxxx, Inc., as Tenant
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice shall be installed
or displayed on any part of the outside or inside of the Building without the
prior written consent of the Landlord. Landlord shall have the right to remove,
at Tenant's expense and without notice, any sign installed or displayed in
violation of this rule. All approved signs or lettering on doors and walls shall
be printed, painted, affixed or inscribed at the expense of Tenant by a person
or vendor chosen by Landlord. In addition, Landlord reserves the right to change
from time to time the format of the signs or lettering and to require previously
approved signs or lettering to be appropriately altered.
2. If Landlord objects in writing to any curtains, blinds, shades or screens
attached to or hung in or used in connection with any window or door of the
Premises, Tenant shall immediately discontinue such use. No awning shall be
permitted on any part of the Premises. Tenant shall not place anything or allow
anything to be placed against or near any glass partitions or doors or windows
which may appear unsightly, in the opinion of Landlord, from outside the
Premises.
3. Tenant shall not obstruct any sidewalks, halls, passages, exits, entrances,
elevators, escalators or stairways of the Building. The halls, passages, exits
entrances, shopping malls, elevators, escalators and stairways are not for the
general public, and Landlord shall in all cases retain the right to control and
prevent access to the Building of all persons whose presence in the judgment of
Landlord would be prejudicial to the safety, character, reputation and interest
of the Building and its tenants provided that nothing contained in this rule
shall be construed to prevent such access to persons with whom any tenant
normally deals in the ordinary course of its business, unless such persons are
engaged in illegal activities. No tenant and no employee or invitee of any
tenant shall go upon the roof of the Building.
4. The directory of the Building will be provided exclusively for the display of
the name and location of tenants only and Landlord reserves the right to exclude
any other names therefrom.
5. All cleaning and janitorial services for the Building and the Premises shall
be provided exclusively through Landlord. Tenant shall not cause any unnecessary
labor by carelessness or indifference to the good order and cleanliness of the
Premises. Landlord shall not in any way be responsible to any Tenant for any
loss of property on the Premises, however occurring, or for any damage to any
Tenant's property by the janitor or any other employee or any other person.
6. Landlord will furnish Tenant free of charge with two keys to each door in the
Premises. Landlord may make a reasonable charge for any additional keys, and
Tenant shall not make or have made additional keys, and Tenant shall not alter
any lock or install a new or additional lock or bolt on any door of its
Premises. Tenant, upon the termination of its tenancy, shall deliver to Landlord
the keys of all doors which have been furnished to Tenant, and in the event of
loss of any keys so furnished, shall pay Landlord therefor.
7. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's instructions in
their installation.
8. No equipment, materials, furniture, packages, supplies, merchandise or other
property will be received in the Building or carried in the elevators except
between such hours and in such elevators as may be designated by Landlord.
9. Tenant shall not place a load upon any floor which exceeds the load per
square foot which such floor was designed to carry and which is allowed by law.
Landlord shall have the right to prescribe the weight, size and position to all
equipment, materials, furniture or other property brought into the Building.
Heavy objects shall, stand on such platforms as determined by Landlord to be
necessary to properly distribute the weight. Business machines and mechanical
equipment belonging to Tenant which cause noise or vibration that may be
transmitted to the structure of the Building or to any space in the Building to
such a degree as to be objectionable to Landlord or to any tenants shall be
placed and maintained by Tenant, at Tenant's expense, on vibration eliminators
or other devices sufficient to eliminate noise or vibration. The persons
employed to move such equipment in or out of the Building must be acceptable to
Landlord. Landlord will not be responsible for loss of, or damage to, any such
equipment or other property from any cause, and all damage done to the Building
by maintaining or moving such equipment or other property shall be repaired at
the expense of Tenant.
C-1
10. Tenant shall not use any method of heating or air conditioning other than
that supplied by Landlord. Tenant shall not waste electricity, water or air
conditioning. Tenant shall keep corridor doors closed.
11. Landlord reserves the right to exclude from the Building between the hours
of 6 p.m. and 7 a.m. the following day, or such other hours as may be
established from time to time by Landlord, and on Sundays and legal holidays any
person unless that person is known to the person or employee in charge of the
Building and has a pass or is properly identified. Tenant shall be responsible
for all persons for whom it requests passes and shall be liable to Landlord for
all acts of such persons. Landlord shall not be liable for damages for any error
with regard to the admission to or exclusion from the Building of any person.
12. Tenant shall close and lock the doors of its Premises and entirely shut off
all water faucets or other water apparatus and electricity, gas or air outlets
before Tenant and its employees leave the Premises. Tenant shall be responsible
for any damage or injuries sustained by other tenants or occupants of the
Building or by Landlord for noncompliance with this rule.
13. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall not
be used for any purpose other than that for which they were constructed, no
foreign substance of any kind whatsoever shall be thrown into any of them, and
the expense of any breakage, stoppage or damage resulting from the violation of
this rule shall be borne by the Tenant who, or whose employees or invitees,
shall have caused it.
14. Tenant shall not install any radio or television antenna, satellite dish,
loudspeaker or other device on the roof or exterior walls of the Building.
Tenant shall not interfere with radio or television broadcasting or reception
from or in the Building or elsewhere.
15. Except as approved by Landlord, Tenant shall not xxxx, drive nails, screw or
drill into the partitions, woodwork or plaster or in any way deface the
Premises. Tenant shall not cut or bore holes for wires. Tenant shall not affix
any floor covering to the floor of the Premises in any manner except as approved
by Landlord. Tenant shall repair any damage resulting from noncompliance with
this rule.
16. Tenant shall not install, maintain or operate upon the Premises any vending
machine.
17. Tenant shall store all its trash and garbage within its Premises. Tenant
shall not place in any trash box or receptacle any material which cannot be
disposed of in the ordinary and customary manner of trash and garbage disposal.
All garbage and refuse disposal shall be made in accordance with directions
issued from time to time by Landlord.
18. No cooking shall be done or permitted by any Tenant on the Premises, except
by the Tenant of Underwriters' Laboratory approved microwave over or equipment
for brewing coffee, tea, hot chocolate and similar beverages shall be permitted
provided that such equipment and use is in accordance with all applicable
federal, state and city laws, codes, ordinances, rules and regulations.
19. Tenant shall not use in any space or in the public halls of the Building any
hand trucks except those equipped with the rubber tires and side guards or such
other material-handling equipment as Landlord may approve. Tenant shall not
bring any other vehicles of any kind into the Building.
20. Tenant shall not use the name of the Building in connection with or in
promoting or advertising the business of Tenant except as Tenant's address.
21. The requirements of Tenant will be attended to only upon appropriate
application to the office of the Building by an authorized individual. Employees
of Landlord shall not perform any work or do anything outside of their regular
duties unless under special instruction from Landlord, and no employee of
Landlord will admit any person (Tenant or otherwise) to any office without
specific instructions from Landlord.
22. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular tenant or tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of any
other tenant or tenants, nor prevent Landlord from thereafter enforcing any such
Rules and Regulations against any or all of the tenants of the Building.
23. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of any lease of premises in the Building.
24. 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 safety and
security, for care and cleanliness of the Building and for the preservation of
good order in and about the Building. Tenant agrees to abide by all such rules
and regulations in this Exhibit C stated and any additional rules and
regulations which are adopted.
C-2
25. No smoking policy: no smoking is permitted in the Building, except in areas,
if any, specifically designated for smoking by Landlord.
26. Tenant shall be responsible for the observance of all of the foregoing rules
by Tenant's employees, agents, clients, customers, invitees and guests.
C-3
LANDLORD'S CONSENT
The undersigned, as landlord under the Lease dated May 28, 1998, by and
between Magio, Inc. (Tenant) and CB Sanlando Center, Inc. (Landlord), does
hereby consent to the Assignment from Xxxxxx, Inc. to Xxxxxx-Accufacts
Pre-Employment Screening, Inc. under the following terms and conditions:
1. No Waiver. Landlord's consent shall not be deemed to be a waiver of any
restrictions contained in the Lease concerning further assignment,
subleasing or hypothecation of the Lease.
2. Assignor's Liability. Assignor and any guarantor of the Lease obligations
shall remain liable for the performance of all provisions of the Lease, to
the same extent as provided in the Lease.
3. Broker Fees. Assignor and Assignee shall indemnify, defend and hold
Landlord harmless from and against any fees or commissions to any real
estate broker or agent in connection with this assignment of lease.
4. Assignment Cost to Transfer. In connection with this assignment, Assignor
shall pay to Landlord a fee of $500.00 to defray Landlord's cost in
effecting such transfer.
5. Conflicts. In the event of any conflict between the terms and provisions of
the Lease and the Assignment, the terms and provisions of the Lease shall
control.
6. Landlord's Liability. Redress for any claims against Landlord under the
Lease or this Assignment of Lease shall only be made against Landlord to
the extent of Landlord's interest in the property to which the Premises are
a part. The obligations of Landlord under the Lease and this Assignment of
Lease shall not be personally binding on, nor shall any resort be had to
the private properties of, any of its trustees or board of directors and
officers, as the case may be, the general partners thereof or any
beneficiaries, stockholders, employees or agents of Landlord, or its
investment managers.
LANDLORD:
CB Sanlando Center, Inc.
a Delaware corporation
By: RREEF Management Company
a Delaware corporation
By: /s/ Xxxxxxxx E.L. Xxxxxx
------------------------
Xxxxxxxx E.L. Xxxxxx
Title: District Manager
Date: 10/13/99
