OFFICE LEASE AGREEMENT
This Agreement, made this 2nd day of June, 1997, by and between 3201
Associates, L.P. (hereinafter called Lessor), of the one part, and Pangea
Systems, Inc., a California Corporation having its principal place of business
at 0000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx 00000 (hereinafter
called Lessee), of the other part.
W I T N E S S E T H :
PREMISES, TERM AND RENTAL. Lessor does hereby demise and let unto
Lessee Office space on the northern section of the 2nd floor of the building
commonly known as 0000 Xxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx consisting of
5,705 rentable square feet. See Exhibit "A" which is attached hereto and made a
part hereof for no other purpose, for the term of five (5) years commencing on
_______ ____________, and ending on ______________ (see attached Endorsement to
Office Lease Agreement for specific terms related to Term and Rental).
IT IS HEREBY MUTUALLY COVENANTED AND AGREED by and between Lessor and
Lessee that the premises are demised under and subject to the following
covenants and agreements, all of which are to inure to the benefit of Lessor and
be regarded as strict legal conditions:
1. INABILITY TO GIVE POSSESSION.
If Lessor is unable to give Lessee possession of the demised premises
as herein provided by reason of the premises not being ready for occupancy, or
by reason of the holding over of a previous occupant, or by reason of any cause
beyond the control of Lessor, Lessor shall not be liable in damages to Lessee
therefor, and during the period that Lessee is thus kept out of possession the
rental shall be abated.
2. ADDITIONAL RENT.
(a) DAMAGES BY DEFAULT.
Lessee agrees to pay to Lessor as rent in addition to the fixed rental
herein reserved any and all sums which may become due by reason of the failure
of Lessee to comply with all the covenants of this lease and any and all
damages, costs and expenses which Lessor may suffer or incur by reason of any
default of Lessee or failure on his part to comply with the covenants of this
Lease, and each of them, and also the cost of repairing any and all damages to
the demised premises caused by any act or neglect of Lessee.
(b) REPAIRS.
Lessee further agrees to pay to Lessor all sums due for repairs made to
the demised premises, replacing of glass windows, doors, partitions, electric
wiring and electric lamps, etc., the keeping of waste and drain pipes open and
repairs and replacements to wash basins and plumbing, heating and
air-conditioning apparatus, which are necessitated by or caused by misuse or
abuse by Lessee. The same shall be paid by Lessee to Lessor upon presentation by
Lessor to Lessee of bills therefor.
3. AFFIRMATIVE COVENANTS OF LESSEE.
(a) PAYMENT OF RENT.
Lessee will without any previous demand therefor pay the said fixed and
additional rental at the times and at the place at which the same are hereby
made payable. If Lessor at any time accepts payment of said rental after the
same shall have become due and payable, such acceptance will not excuse any
delay in payment on subsequent occasions nor constitute or be construed as a
waiver of any of Lessor's rights.
(b) CONDITION OF PREMISES.
Lessee will keep the demised premises in the same good order in which
they now are, reasonable wear and tear and damage by accidental fire or other
casualty not occurring through the negligence of Lessee alone excepted. Lessee
acknowledges that the demised premises are in good order, condition and repair
and require no alterations, additions or improvements to be made by Lessor
except as may be expressly specified in writing by the parties hereto.
(c) REQUIREMENTS OF PUBLIC AUTHORITIES.
Lessee will at his own cost and expense comply with any requirements of
any constituted public authority and with the terms of any State or Federal
statute or local ordinance or regulation applicable to Lessee or to Lessee's use
of the demised premises, and save Lessor harmless from penalties, fines, costs
or damages resulting from failure to do so.
(d) RULES AND REGULATIONS.
The rules and regulations in regard to the said building, and the
tenants occupying offices therein, printed upon the fourth page of this Lease,
and such alterations, additions, and modifications thereof as may from time to
time be made by Lessor, shall be deemed a part of this Agreement, with the same
effect as though written herein, and Lessee covenants that said rules and
regulations shall be faithfully observed by Lessee, Lessee's employees, and all
persons visiting the leased premises, or claiming under Lessee, the
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right being hereby expressly reserved by Lessor to add to, alter or rescind,
from time to time, such rules and regulations, which changes in rules and
regulations shall take effect immediately after notice thereof in writing shall
have been served by leaving thew same on the demised premises.
(e) FIRE.
Lessee will use reasonable precaution against fire.
(f) NOTICE OF FIRE, ETC.
Lessee will give to Lessor prompt written notice of any defect,
accident, fire, or damage occurring on or to the demised premises.
(g) JANITORS; DAMAGE TO OR LOSS OF LESSEE'S PROPERTY.
Lessee will permit the janitors and cleaners of Lessor to have access
to and to clean the demised premises. Lessor shall be in no way responsible to
Lessee for any damage done to the furniture or other effects of Lessee by the
janitors or cleaners r other employees of Lessor or by any other person, or for
any loss of property of any kind whatever from the demised premises, however
occurring.
(h) SURRENDER OF POSSESSION.
Lessee will peacefully deliver up and surrender possession of the
demised premises to Lessor at or prior to the expiration or earlier termination
of this Lease or any renewal thereof in the same good order and condition in
which Lessee has herein agreed to keep the same during the continuance of this
Lease. Lessee will at or prior to the expiration or earlier termination of this
Lease or any renewal thereof remove all of his property from the demised
premises so that Lessor may again have and repossess the same not later than
noon on the day on which this Lease or the renewal thereof shall terminate, and
will immediately thereafter deliver to Lessor at the aforesaid office of its
agent all keys for the demised premises.
4. NEGATIVE COVENANTS OF LESSEE.
(a) ASSIGNMENT AND SUBLETTING.
Lessee, under penalty of instant forfeiture, shall not assign, mortgage
or pledge this Lease, nor underlet or sublease said premises or any part thereof
without the written consent of Lessor first had and obtained; nor after such
written consent has been given shall any assignee or sublessee assign, mortgage
or pledge this Lease or such sublease or underlet or sublease said premises or
any part thereof without an additional written consent by Lessor; and in neither
case without such consent shall any such assignment,
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mortgage, pledge, underletting or sublease be valid. An assignment within the
meaning of this Lease is understood and intended to comprehend not only the
voluntary action of Lessee, but also any levy or sale on execution or other
legal process and every assignment for the benefit of creditors, adjudication or
sale in bankruptcy or insolvency or under any other compulsory procedure or
order of court. No assignment or sublease, if consented to in the manner
aforesaid, shall in any way relieve or release Lessee from liability upon any of
the covenants under the terms of this Lease, and notwithstanding any such
assignment or sublease the responsibility and liability of Lessee hereunder
shall continue in full force and effect until the expiration of the terms hereby
created and any renewals thereof. No assignment or sublease shall be valid
unless the assignee of subtenant shall assent to and agree in writing to be
bound by all of the covenants and conditions herein contained.
(b) ALTERATIONS, ADDITIONS.
If Lessee desires to have alterations, improvements or additions made,
he shall submit the plan therefor to Lessor. All alterations, improvements,
additions or fixtures, whether installed, made or placed before or after the
execution of this Lease, shall remain upon the premises at the expiration or
earlier termination of this Lease and become the property of Lessor unless
Lessor shall, prior to the termination of this Lease, have given written notice
to Lessee to remove the same, in which event Lessee shall remove the same and
restore the premises to the same good order and condition in which they now are.
(c) MACHINERY.
Lessee will not use or operate in the demised premises any machinery
that is in Lessor's opinion harmful to the building or disturbing to tenants
occupying other parts thereof.
(d) WEIGHTS.
Lessee will not place any weights in any portion of the demised
premises which are in Lessor's opinion beyond the safe carrying capacity of the
structure.
(e) LOCKS.
Lessee will not place any additional locks upon any doors of the
demised premises or permit any duplicate keys to the lock therein to be made
except with the written approval of Lessor.
(f) INSURANCE.
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Lessee shall not do or suffer to be done any act, matter or thing, or
employ any person as a result of which the fire insurance or any other insurance
now in force or hereafter to be placed on the demised premises, or any part
thereof, or the building of which the demised premises are a part, shall become
void or suspended, or whereby the same shall be rated as a more hazardous risk
than at the date of execution of this Lease, or carry or have any benzine or
explosive matter of any kind in and about the demised premises except in
approved quantities and containers.
(g) REMOVAL OF GOODS.
Lessee will not manifest an intention to terminate this Lease other
than in accordance with the terms thereof, nor remove or attempt to remove
Lessee's goods or property from the demised premises otherwise than in the
ordinary and usual course of business without having first paid and satisfied
Lessor for all rent which may be due or become due during the entire term of
this Lease.
(h) VACATE PREMISES.
Lessee will not vacate or desert the demised premises or permit the
same to become empty and unoccupied during the term of this Lease.
(i) SIGNS AND ADVERTISING MATTER.
Lessee will not erect or place any sign, advertising matter, lettering,
stand, booth, show case, or other matter of any kind in or upon the door-steps,
vestibules, outside walls, outside windows or pavements of the building. Lessee
will not place any sign advertising matter, lettering, or other matter of any
kind upon the doors giving access to the demised premises or upon the interior
walls of the building without the written approval of Lessor.
(j) FLOORS, WALLS, WIRING.
Lessee will not lay any linoleum, oil cloth, rubber or other air-tight
covering upon the floors of the demised premises; nor will Lessee paint, paper
or otherwise cover or in any way xxxx, deface or break said walls or partitions;
nor make any attachment to the electric lighting wires of the building for
storing electricity, running electric fans or motors or other purposes; nor will
Lessee use any method of heating other than that provided by Lessor. If Lessee
desires to have telephone, telegraph or other similar wires and instruments
installed on the demised premises, he shall notify Lessor, and Lessor will
direct where and how the same are to be installed. Lessor reserves at all times
the right to require Lessee to install and use in the demised premises such
electrical protective devices and to change wires and their placing and
arrangement, as Lessor may deem necessary, and further, to require compliance on
the part of all using or seeking access to
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such wires with such rules as Lessor may establish relating thereto; and further
reserves, in the event of noncompliance with such requirements and rules, the
right to cut and prevent the use of any wires to which such noncompliance
relates.
5. LESSEE'S RIGHTS.
Lessee covenants and agrees that Lessor shall have the right to do the
following things and matters in and about the demised premises:
(a) INSPECTION, REPAIRS.
At all reasonable times by himself or his duly authorized agents to
enter and go upon the demised premises (i) to inspect the same and every part
thereof; (ii) for the purpose, at his option, of making repairs, alterations,
additions, or improvements thereto; (iii) for the purpose of making electrical
wiring changes in electric service outlets in floor, ceiling and/or walls; (iv)
for the purpose of making adjustments of any nature to the air-conditioning
system; (v) for the purpose of fighting fire within the demised premises or
elsewhere in the building or for the control or correction of conditions
resulting from flood, either from a broken pipe or from outside sources; (vi)
for the purpose of performing any covenants herein contained which Lessee has
failed to perform; (vii) for the purpose of remedying any matter due to breach
of covenant of Lessee.
(b) RE-LEASING.
At any time after notice properly given by either party to the other of
an intention to terminate this Lease to conduct persons who may be interested in
leasing the demised premises in and about the same.
(c) CONTROL OF BUILDING.
To control and have dominion over the halls, passages, entrances,
elevators, toilets, stairways, balconies and roof of the building, the same
being not for the use of the general public; and Lessor shall in all cases have
the right to control and prevent access thereto of all persons whose presence,
in the judgment of Lessor or his agents, shall be prejudicial to the safety,
character, reputation and interests of the building and its tenants.
(d) RIOT.
To prevent access to the building in the event of invasion, mob, riot,
public excitement or other commotion by closing doors or otherwise for the
safety of tenants and for the protection of property in the building.
(e) DISCONTINUANCE OF SERVICE.
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To discontinue any and all facilities furnished and services rendered
by Lessor which are not expressly covenanted for herein, it being understood
that they constitute no part of the consideration for Lessee's entering into
this Lease.
(f) RULES.
At any time and from time to time to make such rules and regulations as
in his judgment may be necessary for the safety, care and cleanliness of the
building and the demised premises and for the preservation of good order
therein. Such rules and regulations shall, when notice thereof is given to
Lessee, form a part of this Lease.
6. RESPONSIBILITY OF LESSEE.
Lessee agrees to indemnify and to relieve and hereby indemnifies and
relieves Lessor from all liability and expense by reason of any loss, damage or
injury to Lessee or any other person or to any property of Lessee or any other
person which may arise from any cause whatsoever on the demised premises. Lessee
further agrees to indemnify and to relieve and hereby indemnifies and relieves
Lessor from all liability and expense by reason of any loss, damage or injury to
Lessee or to any Lessor business invitee of Lessee, or to any property of Lessee
or any employee or business invitee of Lessee which may occur on the pavement,
curb, roof, elevators, hallways, passages or other portions (other than the
demised premises) of the building of which the demised premises are a part,
unless caused by the negligence of the Lessor, his servants or agents.
7. RESPONSIBILITY OF LESSOR.
(a) ELEVATORS.
Lessor will keep in operation in the building during ordinary business
hours, except on Sundays and legal holidays, as many of the passenger elevators
as may in Lessor's judgment be necessary to maintain adequate elevator service.
In case of accident, strike, repairs, renewals or improvements to the building
or machinery therein, or for any other cause whatsoever deemed sufficient by
Lessor, the operation of said elevators may be changed or suspended.
(b) HEAT, ELECTRICITY.
Lessor will keep in operation in said building heating and
air-conditioning apparatus for the use of tenants during such periods as may in
Lessor's judgment be necessary, except on Sundays and legal holidays, and will
cause the demised premises to be cleaned and cared for by janitors and will also
furnish a reasonable amount of electricity, solely for lighting said premises
during regular business hours and operating business machines, reserving the
right, however, in case Lessee, in the judgment of
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Lessor, uses electricity for such purposes in an extravagant or unreasonable
manner, to require Lessee at his expense to put in electricity meters and pay
for the amount used by him, or in default thereof to cut off the supply of
electricity to the demised premises In consideration of the fact that no extra
charge is made by Lessor for light, except as aforesaid, or for heat, air
conditioning, janitor services and elevator service, Lessor shall not be liable
for any failure to supply the same not due to negligence on Lessor's part.
(c) DESTRUCTION OF OR DAMAGE TO PREMISES.
In the event that the demised premises are totally destroyed or
rendered unfit for occupancy or are so damaged by fire or other casualty not
occurring through fault or negligence of Lessee or of those employed by or
acting for him that the same cannot be repaired and restored within a time which
Lessor shall deem reasonable, this Lease shall absolutely cease and terminate as
of the date of occurrence of said destruction or damage, and the rental shall
thereafter xxxxx for the balance of the term.
If the damage caused as above be only partial and such that the demised
premises can be repaired and restored to their former condition within a time
which Lessor shall deem reasonable, Lessor may, at his option repair and restore
the same with reasonable promptness. The rental shall be apportioned and
suspended during the time Lessor is in possession for the purpose of such repair
and restoration, taking into account the proportion of the demised premises
rendered untenantable and the duration of Lessor's possession.
(d) LIABILITY FOR TERMINATION OR INTERRUPTION OF USE.
Lessor shall not be liable for any damages, compensation or claim by
reason of inconvenience, annoyance, injury or loss resulting from the
termination of this Lease by reason of the destruction of the demised premises,
from the making of repairs, alterations, additions or improvements to any
portion of the demised premises, the building or the facilities thereof, from
any of the services or facilities supplied by Lessor, or from the leaking of
rain, snow, water, steam or gas into, in or about the demised premises or the
building of which the demised premises are a part.
8. MISCELLANEOUS AGREEMENTS AND CONDITIONS.
(a) EFFECT OF REPAIRS ON RENTAL AND MODIFICATION OF TERMS BY
WAIVER OR CUSTOM.
It is hereby covenanted and agreed, any law, usage or custom to the
contrary notwithstanding, that Lessor shall have the right at all times to
enforce the covenants and provisions of this Lease in strict accordance with the
terms hereof, notwithstanding any conduct on the part of Lessor in refraining
from so doing at any time or times; and,
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further, that the failure of Lessor at any time or times to enforce his rights
under said covenants and provisions strict in accordance with the same shall not
be construed as having created a custom in any way or manner contrary to the
specific terms, conditions and covenants of this Lease or as having in any way
or manner modified the same.
9. DEFAULT.
If the Lessee during this Lease or any renewal thereof:
(a) NON-PAYMENT.
Does not pay in full when due and payable any and all rental, fixed and
additional, herein agreed to be paid by Lessee; or
(b) BREACH OF COVENANT.
Violates or fails to perform or otherwise defaults with respect to any
term, condition or covenant herein contained on his part to be performed; or
(c) VACATING PREMISES.
Vacates the demised premises or leaves them locked so as to prevent
entry therein by Lessor, or manifests an intention to terminate this Lease other
than in accordance with the terms thereof, or removes or attempts to remove or
manifests an intention to remove any goods or property from the demised premises
without having first paid and satisfied Lessor in full for all rentals, fixed
and additional, then due or that may thereafter become due until the full end
and expiration of the then current term; or
(d) FINANCIAL EMBARRASSMENT, BANKRUPTCY, LEVY, ETC.
Becomes financially embarrassed or insolvent or makes an assignment for
the benefit of creditors, or if any petition in bankruptcy or for reorganization
of Lessee or for an arrangement with creditors of Lessee under any State or
Federal law is filed by or against Lessee, or if any proceedings under any State
or Federal insolvency or bankruptcy laws are instituted by or against Lessee or
if any property of Lessee is levied upon or sold by any Sheriff, Marshal or
Constable, or if a trustee in bankruptcy or a receiver is appointed for Lessee;
10. REMEDIES OF LESSOR.
Then and in any said event, at the sole option of Lessor,
(a) ACCELERATION OF RENT.
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The whole balance of rent, fixed and additional, or any part thereof,
shall be taken to be due and payable and in arrears as if by the terms and
provisions of this Lease said balance of rent, fixed and additional, or any part
thereof were on that date payable in advance; and
(b) TERMINATION
This Lease and the term hereby created, or any renewal term thereof,
shall at the sole option of Lessor and without waiver of any other rights of
Lessor contained herein terminate and become absolutely void without any right
on the part of Lessee to save the forfeiture by payment of any sum due or by
performance of any condition, term or covenant broken, AND ALSO
11. FURTHER REMEDIES OF LESSOR.
In the event of any default as above set forth in Section 9, Lessor, at
its option:
(a) ENTRY AND POSSESSION.
May, without notice or demand, enter the demised premises, breaking
open locked doors if necessary to effect entrance and may change the bolts,
locks and fastenings, without liability to criminal or civil action for such
entry or for the manner thereof, for the purpose of distraining or levying and
for any other purposes, and may take possession of and sell all goods and
chattels at auction on three days' notice served in person on Lessee, or left on
the premises, and pay to Lessor out of the proceeds, after deducting all costs
of such sale, all sums which may then be due and owing from Lessee to Lessor
hereunder.
(b) DISTRESS.
May enter the premises, and without demand proceed by distress and sale
of the goods there found to levy the rent and/or other charges herein payable as
rent, and all costs and officers' commissions, including watchman's wages and a
constable's commission of 5%, may be included in the levy and shall be paid by
Lessee, and in such case all costs, officers' commissions and other charges
shall immediately attach and become part of the claim of Lessor for rent, and
any tender of rent without said costs, commissions and charge made after the
issue of a warrant of distress shall not be sufficient to satisfy the claim of
Lessor; and
(c) COLLECT RENT FROM SUB-LESSEE.
If this Lease or any part thereof is with Lessor's written consent
assigned or if the premises, or any part thereof is with Lessor's written
consent sub-let, Lessee hereby irrevocably constitutes and appoint Lessor.
Lessee's agents to collect the rents due by
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such assignee or sub-lessee and apply the same to the rent due hereunder without
in any way affecting Lessee's obligation to pay any unpaid balance of rent due
hereunder; and
(d) LEASE.
Lessor may lease said premises or any part or parts thereof to such
person or persons and for such term or terms as may in Lessor's discretion seem
best, and the Lessee shall be liable for any loss of rent, fixed and additional,
for the balance of the then current term; and
(e) CONFESSION OF JUDGMENT.
If the aforementioned shall remain unpaid on any day when the same
ought to be paid, Lessee hereby empowers any attorney of the Court of Common
Pleas of Philadelphia County, Commonwealth of Pennsylvania, or any other Court
there or elsewhere to appear as attorney for Lessee in any and all actions which
may be brought for said arrears of rent, fixed and/or additional, and to sign
for Lessee an agreement for entering in any competent Court, an amicable actin
or actions for the recovery of all arrears of rent, fixed and/or additional, and
in said suits or in said amicable action or actions to confess judgment against
Lessee for the recovery of all arrears of rent, fixed and/or additional, as
aforesaid, and for interest and costs, together with an attorney's commission of
5%. Such authority shall not be exhausted by one exercise thereof, but may be
exercised from time to time as often as any of said rent fixed and/or
additional, shall fall due or be in arrears; and
(f) EJECTMENT.
When this Lease shall be determined by the breach of term, condition or
covenant hereof, either during the original term of this Lease or any renewal
thereof, and also when and as soon as the term hereby created or any renewal
thereof shall have expired, it shall be lawful for and Lessee hereby authorizes
and empowers any attorney of the Court of Common Pleas of Philadelphia County,
Commonwealth of Pennsylvania, or of any other Court there or elsewhere, to
appear as attorney for Lessee, as well as for all persons claiming by, through
or under Lessee, and to sign an agreement for entering in any competent Court an
amicable action in ejectment against Lessee and all persons claiming by, through
or under Lessee, and therein confess judgment for the recovery by Lessor of
possession of the herein demised premises, for which this Lease shall be his
sufficient warrant' whereupon, if Lessor so desires, a Writ of Habere Facias
Possessionem may be issued forthwith, without any prior writ or proceedings
whatsoever; and provided that if for any reason after such action shall have
been commenced the same shall be discontinued, marked satisfied of record or
determined or possession of the premises hereby demised remain in or be restored
to Lessee, Lessor shall have the right for the same default or upon any
subsequent default or defaults, or upon the termination of this
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Lease as hereinbefore set forth, to bring one or more further amicable action or
actions as hereinbefore set forth to recover possession of the demised premises
as hereinabove provided.
(g) AFFIDAVIT OF DEFAULT.
In any amicable action of ejectment or for rent in arrears, Lessor
shall first cause to be filed in such action an affidavit made by his setting
forth the facts necessary to authorize the confession of judgment, of which
facts such affidavit shall be conclusive evidence, and if a true copy of this
Lease, and of the truth of the copy such affidavit shall be sufficient evidence,
be filed in such action, it shall not be necessary to file the original as a
warrant of attorney, any rule of Court, custom or practice to the contrary
notwithstanding.
12. RELEASE OF LESSOR IN EXERCISE OF REMEDIES.
Lessee hereby releases and discharges Lessor from all claims, actions,
suits and penalties, for or by reason or on account of any entry, ejectment,
confession of judgment, distraint, levy, appraisement or sale, or the loss of
goods and chattels left on the premises.
13. WAIVERS OF LESSEE.
Lessee hereby expressly releases and agrees to release Lessor, and any
and all attorneys who may appear for Lessee, from all errors and defects
whatsoever of a procedural nature in entering such actions or judgments or in
causing such Writ or Writs to be issued or in any proceeding thereon or
concerning the same, and from all liability therefor. Lessee expressly waives
the benefits of all laws, now or hereafter in force, exempting any goods on the
demised premises, or elsewhere from distraint, levy or sale in any legal
proceedings taken by the Lessor to enforce any rights under this Lease. Lessee
hereby expressly waives in favor of Lessor the benefit of all laws now made or
which may hereafter be made regarding any limitation as to the goods upon which,
or the time within which, distress is to be made after the removal of goods, and
further relieves the Lessor of the obligation of proving or identifying such
goods, it being the purpose and intent of this provision that all goods of
Lessee, whether upon the demised premises or not, shall be liable to distress
for rent. Lessee waives in favor of Lessor all rights under the act of Assembly
of April 5, 1951, No. 20 (P.I. 79), known as the Landlord, and Tenant Act of
1951, and all supplements and amendments thereto that have been or may hereafter
be passed, and authorizes the sale of any goods distrained for rent at any time
after five days from said distraint without any appraisement and condemnation
thereof. The Lessee further waives the right to issue a Writ of Replevin under
the Act of April 19, 1901 (P.I. 88), of the laws of the Commonwealth of
Pennsylvania, or under the aforesaid Landlord and Tenant Act of 1951, or under
any other law heretofore enacted and now in force or which may be hereafter
enacted, and/or under Pennsylvania Rules of Civil
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Procedure No. 1071 et seq., and/or any similar or corresponding rules which may
hereafter be in force for the recovery of any articles, household goods,
furniture and office equipment seized under a distress for rent or levy upon an
execution for rent, damages or otherwise; all waivers hereinbefore mentioned are
hereby extended to apply to any such action.
Lessee further waives the right of inquisition on any real estate that
may be levied upon to collect any amount which may become due under the terms
and conditions of this Lease, and does hereby voluntary condemn the same and
authorizes the Prothonotary to issue a writ of execution or other process upon
Lessee's voluntary condemnation, and further agrees that the sale real estate
may be sold on a writ of execution or other process. If proceedings shall be
commenced by Lessor to recover possession under the Acts of Assembly, either at
the end of the term or sooner termination f this Lease, or for nonpayment of
rent or any other reason, Lessee specifically waives the right to the three
months' notice, and to the fifteen or thirty days' notice required by the
aforesaid Landlord and Tenant At of 1951, and agrees that five days' notice
shall be sufficient in either or any such case.
14. RIGHT OF ASSIGNEE OF LESSOR.
The right to confess judgment and to proceed with any amicable action
and confession of judgment therein, and to the issuance of a write of habere
facias possessionem against Lessee and to enforce all of the other provisions of
this Lease hereinabove provided for may, at the option of any assignee of Lessor
of this Lease, be exercised as aforesaid by any assignee of the Lessor's right,
title and interest in this Lease in said assignee's own name, notwithstanding
the fact that any or all assignments of the said right, title and interest may
not be executed and/or witnessed in accordance with the Act of Assembly of May
28, 1715, 1 Sm. L. 99, and all supplements and amendments thereto that have been
or may hereafter be passed and Lessee hereby expressly waives the requirements
of said Act of Assembly and any and all laws regulating the manner and form in
which such assignment shall be executed and witnessed.
15. REMEDIES CUMULATIVE.
All of the remedies hereinbefore given to Lessor and all rights and
remedies given to him by law and equity shall be at Lessor's option cumulative
and concurrent. No termination of this Lease or the taking or recovering of the
premises shall deprive Lessor of any of his remedies or actions against Lessee
for rent due at the time or which, under the terms hereof, would in the future
become due as if there had been no determination, or for sums due at the time or
which, under the terms hereof, would in the future become due as if there had
been no determination, nor shall the bringing of any action for rent or breach
of covenant, or the resort to any other remedy herein provided for the recovery
of rent be construed as a waiver of the right to obtain possession of the
premises.
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16. TERMINATION OF LEASE.
It is hereby mutually agreed that either party hereto may terminate
this Lease at the end of said term by giving to the other party written notice
thereof at least sixty (60) days prior thereto, but in default of such notice
this Lease shall continue upon the a terms and conditions governing the same as
are in force immediately prior to the expiration of the term hereof for a
further period of one (1) month and so on from month to month unless or until
terminated by either party hereto, giving the other thirty (30) days written
notice thereof previous to the expiration of the then current term; provided,
however, that if Lessor shall have given such written notice prior to the
expiration of any term hereby created of his intention to change the terms and
conditions of this Lease, and Lessee shall hold over the expiration of the time
mentioned in such notice, Lessee shall be considered and shall be Lessee under
the terms and conditions mentioned in such notice for a further term or terms as
above provided. In the event that Lessee shall at any time give notice, as
stipulated in this Lease, of his intention to terminate the lease at the end of
the then current term and shall fail or refuse so to vacate the premises on the
date of such termination, then it is expressly agreed that Lessor shall have the
option either (a) to disregard the notice so given as having no effect, in which
case, upon Lessor giving Lessee notice thereof, all the terms and conditions of
this Lease shall continue thereafter in full force precisely as if such notice
by Lessee had not been given, or (b) to exercise any of the rights and remedies
herein contained as if Lessee were in default under the terms, covenants and
conditions hereof.
CONDEMNATION. In the event that the demised premises or any part
thereof are taken or condemned for a public or quasi-public use, this Lease
shall, as to the part so taken, terminate as of the date title shall vest in the
condemnor, and the rental reserved hereunder shall xxxxx proportionately to the
area of the demised premises so taken or condemned or shall cease if the entire
demised premises be so taken. Lessee hereby waives all claims arising out of
such event against Lessor and as against the condemnor, and it is agreed that
Lessee will make no claim by reason of the complete or partial taking of the
demised premises, and it is further agreed that Lessee shall not be entitled to
any notice whatsoever of the partial or complete termination of this Lease by
reason of the aforesaid.
SUBORDINATION. This Lease shall be subject and subordinate at all times
to the lien of any mortgages and/or rents and/or other encumbrances now or
hereafter placed on the land and building of which the demised premises are a
part without the necessity of any further act or instrument on the part of
Lessee to effectuate such subordination, but Lessee agrees to execute and
deliver upon demand such further instrument or instruments evidencing such
subordination of this Lease to the lien of any such mortgage and/or rent and/or
other encumbrance as shall be desired by the mortgagee or proposed mortgagee or
any other person. Lessee hereby irrevocably appoints Lessor the attorney in fact
of
14
Lessee to execute and deliver any such instrument or instruments for and in the
name of Lessee.
NOTICES. All notices required hereunder to be given by either party to
the other must be given by registered or certified mail, and the only admissible
proof that such notice has been given to either party by the other shall be a
registry return receipt signed by or on behalf of such party.
TITLES NOT TO AFFECT CONSTRUCTION. It is expressly agreed that the
titles contained in the margins of this Lease are merely for the convenience of
the parties and are not in any manner or respect to aid in or affect the
interpretation of the respective paragraphs beside such titles or of any parts
of this Lease. The said titles do not and are not intended to give notice of all
of the provisions in the sections beside the respective titles.
LEASE CONTAINS ALL AGREEMENTS. It is expressly understood and agreed by
and between the parties hereto that this Lease and the riders attached hereto
and forming a part hereof set forth all the promises, agreements, conditions and
understandings between Lessor or his Agent and Lessee relative to the demised
premises, and that there are no promises, agreements, conditions or
understandings, either oral or written, between them other than as herein set
forth. It is further understood and agreed that, except as herein otherwise
provided, no subsequent alteration, amendment, change or addition to this Lease
shall be binding upon Lessor or Lessee unless reduced to writing and signed by
them.
HEIRS AND ASSIGNEES - RIGHTS AND DUTIES. All rights, remedies, powers,
responsibilities and liabilities herein given to, or imposed upon, the
respective parties hereto shall extend to and bind the several and respective
heirs, executors, administrators, successors and assigns of said parties, as
well during any extensions of the original term of this Lease as during the
original term itself; and if there shall be more than one Lessee, they shall all
be bound jointly and severally by the terms, covenants and agreements herein,
and the word "Lessee" shall be deemed and taken to mean each and every person or
party mentioned as Lessee herein, be the same one or more; and if there shall be
more than one Lessee, any notice required or permitted by the terms of this
Lease may be given by or to any one thereof, and shall have the same force and
effect as if given by or to all thereof. No rights, however, shall inure to the
benefit of any assignee of Lessee unless the assignment to such assignee has
been approved by Lessor in writing as aforesaid.
Where used herein to Lessor or Lessee, the third person, singular and
masculine personal pronoun shall be understood to be and shall be read as the
feminine or neuter gender and the plural number, if appropriate in the light of
the party or parties mentioned as Lessor or Lessee herein.
15
See Endorsement to Office Lease Agreement and First Addendum which are
attached hereto and made a part hereof.
IN WITNESS WHEREOF, the parties hereto have executed these presents the
day and year first above written, and expressly intend to be legally bound
hereby,
SEALED AND DELIVERED IN THE PRESENCE OF:
/s/ (Agent)
------------------------------- ----------------------------------
3201 Associates, L.P.
------------------------------- ----------------------------------
General Partner
ATTEST, Pangea Systems, Inc.
/s/ Xxxxxxx Xxxxx /s/ Xxxxxxx Xxxxx
------------------------------- ----------------------------------
Xxxxxxx Xxxxx, Secretary Xxxxxxx Xxxxx, President
16
COMMENCEMENT DATE AGREEMENT
DATE: JULY 23, 1997
LANDLORD: 3201 ASSOCIATES LIMITED PARTNERSHIP
TENANT: PANGEA SYSTEMS, INC.
LEASE DATE: JUNE 2, 1997
LEASED PREMISES: APPROXIMATELY 5,705 RENTABLE SQUARE FEET
LOCATED ON THE SECOND FLOOR OF THE BUILDING
KNOWN AS 0000 XXXX XXXXXX, XXXXXXXXXXXX,
XXXXXXXXXXXX, AS MORE PARTICULARLY DESCRIBED
IN THE LEASE.
This Agreement is made on the Date set forth above by and between
Landlord and Tenant.
WHEREAS, Landlord and Tenant have entered into a Lease on the Lease
Date for the Leased Premises;
WHEREAS, the Commencement Date, as defined in Section 1 of the
Endorsement to Office Lease Agreement; and
WHEREAS, Pursuant to the Lease, Landlord and Tenant desire to confoirm
various dates relating to the Lease.
NOW, THEREFORE, Landlord and Tenant agree and acknowledge that the
information set forth below is true and accurate.
INITIAL TERM
COMMENCEMENT DATE: July 16, 1997
INITIAL TERM
EXPIRATION DATE: July 31, 2002
EXTENSION OPTION
EXERCISE DATE: February 1, 2002
EXTENSIOIN PERIOD
COMMENCEMENT DATE: August 1, 2002
17
EXTENSION PERIOD
TERMINATION DATE: July 31, 2007
TERMINATION OPTION
EXERCISE DATE: February 1, 2002
TERMINATION OPTION
EFFECTIVE DATE: July 31, 2002
The execution of this Agreement shall not sonstitute an exercise by
Tenant of its option with respect to the Extension Period.
EXECUTED as a sealed instrument on the date first set forth above.
LANDLORD: 3201 ASSOCIATES LIMITED PARTNERSHIP,
a Pennsylvania limited partnership
BY: ACADEMIC PROPERTIES, INC., a
Pennsylvania corporation, its sole
general parnter
BY:/s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
NAME: Xxxxxxx X. Xxxxxxxxx
-------------------------------
TITLE: Executive Director
------------------------------
TENANT: Pangea Systems, Inc., a California
Corporation
BY:/s/ Xxxxxxxx Xxxxxxxxx
---------------------------------
NAME: Xxxxxxxx Xxxxxxxxx
-------------------------------
TITLE: Vp Business Development
------------------------------
18
FIRST ADDENDUM TO LEASE
THIS FIRST ADDENDUM TO LEASE ("Addendum") is dated for reference
purposes as of June 2, 1997, and is made between 3201 Associates, L.P.
("Lessor") and Pangea Systems, Inc. ("Lessee") to be a part of that certain
Office Lease Agreement and Endorsement to Office Lease Agreement, of even date
herewith between Lessor and Lessee (herein the "Lease Form") concerning 5705
square feet of space, located at 0000 Xxxx Xxxxxx (xxx "Xxxxxxxx"),
Xxxxxxxxxxxx, Xxxxx of Pennsylvania (the "Premises"). Lessor and Lessee agree
that the Lease Form is modified and supplemented by this Addendum.
1. COMMENCEMENT DATE: Notwithstanding anything to the contrary
in the Lease Form:
A. The Lease shall commence ("Commencement Date") on the
earlier of the date by which Lessor has substantially completed the Lessee
Improvements (defined below) in accordance with Paragraph 3 of this Addendum or
the date by which Lessee commences the beneficial use of the Premises.
B. Notwithstanding the foregoing, all rent shall be abated for
a period of fifteen (15) days following the Commencement Date so that Lessee may
install its equipment, data, telecommunications and cabling systems and trade
fixtures. Such occupancy shall otherwise be subject to all of the terms and
provisions of the Lease.
C. If the Commencement Date has not occurred for any reason
whatsoever on or before September 1, 1997, then in addition to Lessee's other
rights or remedies, Lessee may terminate this Lease by written notice to Lessor.
2. LESSOR PROVISION OF SPACE: In consideration of the mutual covenants
and conditions contained in the Lease Form and this Addendum, upon the execution
of this Lease, Lessor agrees to make sufficient office space available for use
by two employees of Lessee complete with telephone service ("Pre-lease Space").
Lessee shall not pay any rental (including, but not limited to any Minimum Rent
or OMC Sum) for such space, but Lessee shall reimburse Lessor for the reasonable
costs relating to the phone service provided by Lessor.
3. LESSEE IMPROVEMENTS: Notwithstanding anything to the contrary in the
Lease Form, at Lessor's sole cost and expense, Lessor shall construct the
improvements (the "Lessee Improvements") described in the plans and
specifications, which are attached hereto as "Exhibit A." The Lessee
Improvements shall be constructed in accordance with the attached plans and
specifications, in a good and workmanlike manner, and using new materials and
equipment of good quality.
4. ACCEPTANCE OF PREMISES: Notwithstanding anything to the contrary in
the Lease Form:
A. Lessee's acceptance of the Premises shall not be deemed a
waiver of Lessee's right to have defects in the Lessee Improvements or the
Premises repaired at Lessor's sole expense. Lessee shall give notice to Lessor
whenever any such defect becomes reasonably apparent, and Lessor shall repair
such defect as soon as practicable. Lessor also hereby assigns to Lessee all
warranties with respect to the Premises which would reduce Lessee's maintenance
obligations hereunder and shall cooperate with Lessee to enforce all such
warranties.
X. Xxxxxx warrants and represents that as of the Commencement
Date the Premises will be in good condition and repair (exclusive of defects
caused by Lessee, its employees or agents) and the roof, electrical, mechanical,
HVAC, plumbing elevator and other systems serving the Premises and the Building
will be in good condition and repair.
5. COMPLIANCE WITH LAWS: Notwithstanding anything to the contrary in
the Lease Form, at the Commencement Date, the Premises and the Building shall
conform to all requirements of covenants, conditions, restrictions and
encumbrances ("CC&R's"), all underwriter's requirements, and all rules,
regulations, statutes, ordinances, laws and building codes, (collectively,
"Laws") applicable thereto. Lessee shall not be required to construct or pay the
cost of complying with any CC&R's, underwriter's requirements or Laws requiring
construction of improvements in the Premises which are properly capitalized
under general accounting principles, unless such compliance is necessitated
solely because of Lessee's particular use of the Premises.
6. ALTERATIONS, ADDITIONS AND IMPROVEMENTS: Notwithstanding anything to
the contrary in the Lease Form:
A. NONSTRUCTURAL: Lessee may construct nonstructural
alterations, additions and improvements ("Alterations") in the Premises without
Lessor's prior approval, if the cost of such work does not exceed Five Thousand
Dollars ($5,000). Lessor's approval to any other alteration, addition or
improvement including, but not limited to, those listed in paragraph 4(j) of the
Lease Form, shall not be unreasonably withheld.
B. REMOVAL: In no event, shall Lessee be required to remove,
at the end of the Lease term, any improvements made on behalf on the Lessee at
the cost or expense of the Lessor (including, but not limited to, those
improvements identified on Exhibit A attached hereto, as well as any
improvements made by Lessor for the Expansion Space). Upon request, Lessor shall
advise Lessee in writing whether it reserves the right to
2
require Lessee to remove any Alterations from the Premises upon termination of
the Lease.
C. LESSEE'S PROPERTY: All Alterations, trade fixtures and
personal property installed in the Premises at Lessee's expense ("Lessee's
Property") shall at all times remain Lessee's property and Lessee shall be
entitled to all depreciation, amortization and other tax benefits with respect
thereto. Except for Alterations which cannot be removed without structural
injury to the Premises, at any time Lessee may remove Lessee's Property from the
Premises, provided Lessee repairs all damage caused by such removal.
X. XXXX WAIVER: Except as resulting from a default of Lessee
which extends beyond any period for cure, Lessor shall have no lien or other
interest whatsoever in any item of Lessee's Property, or any portion thereof or
interest therein located in the Premises or elsewhere, and Lessor hereby waives
all such liens and interests.
E. INSURANCE: Lessee shall have no obligation to insure any
property in the Premises, other than Lessee's Property, from fire or any other
casualty and Lessee shall be entitled to all insurance proceeds and condemnation
awards and settlements payable with respect to Lessee's Property.
F. SALE OF LESSEE'S PROPERTY: Lessor shall provide Lessee with
at least five (5) days prior written notice of any sale of Lessee's Property.
7. DEFAULT AND LATE CHARGE:
A. Notwithstanding anything to the contrary in the Lease Form,
(i) Lessee shall not be deemed to be in default on account of Lessee's failure
to pay money when due to Lessor, unless Lessee's failure to pay continues for
five (5) days after Lessee's actual receipt of written notice from Lessor of the
delinquency, (ii) Lessee shall not be in default for failing to perform any
covenant of this Lease (other than a covenant to pay money to Lessor) unless
Lessee's failure to perform such covenant continues after Lessee's actual
receipt of written notice for a period of thirty (30) days or if such default
can not reasonably be cured in thirty (30) days, then within seventy-five (75)
days, provided, however, that Lessee has commenced to cure the default within
such thirty (30) day period and is diligently prosecuting such cure to
completion, and (iii) Lessee shall not be in default as a consequence of the
filing of an involuntary bankruptcy petition, the appointment of a receiver, the
attachment of any interest in the Lease or of Lessee's other assets or the
exercise by any third party of any other remedy with respect to Lessee, Lessee's
interest in this Lease or Lessee's other assets, unless the petition, receiver,
attachment or other remedy is not discharged within sixty (60) days.
Notwithstanding the foregoing, if the time required to cure the default in
subsection (ii) above shall require longer than seventy-five days, Lessor shall
not unreasonably withhold an extension of
3
time to cure such default so long as Lessee is diligently prosecuting such cure.
Furthermore, Lessor may not confess judgment against Lessee for payment of rent
or other sums due or for ejectment until the second default of any kind by
Lessee within any twelve (12) month period during the term of this Lease or any
extension or continuation thereof.
B. Notwithstanding anything to the contrary in the Lease,
Lessee may remove its property and fixtures from the Premises at any time, and
Lessee may vacate the Premises at any time, without a default or acceleration of
rent due under the Lease, so long as Lessee provides financial assurances to
Lessor's satisfaction (as reasonably determined by Lessor), that Lessee will
meet its continuing obligations under the Lease.
8. REPAIRS AND MAINTENANCE: Notwithstanding anything to the contrary in
the Lease Form:
A. LESSOR MAINTENANCE: Lessor shall make, at its sole cost and
expense, all structural repairs to the Building, including the roof and
foundation thereof, and Lessor shall make, at its sole cost and expense, all
(except to the extent included in the OMC Sum) repairs necessary to maintain the
plumbing, HVAC and electrical systems, windows, floors and all other basic
Building Standard items which constitute a part of the Premises and are
installed or furnished by Lessor. Lessor shall not be obligated for any of such
repairs until the expiration of a reasonable period of time after written notice
from Lessee that such repair is needed. In no event shall Lessor be obligated
under this Section 8 to repair Lessee's personal property or any damage caused
by any act, omission, accident or negligence of the Lessee or its invitees or
sublessees. Lessor shall not be liable by reason of any damage or injury to or
interference with Lessee's business arising from any repairs, alterations,
additions, improvements or other work in accordance with this Lease in or to the
Premises or the Building or to any appurtenances or equipment therein. Lessor
shall interfere as little as reasonably practicable with the conduct of Lessee's
business. There will be no abatement of rent because of such repairs or
alterations, additions, improvements or other work unless the Premises are made
untenantable as a result of such repairs, alterations, additions or
improvements.
B. LESSEE MAINTENANCE: Except for repairs which Lessor is
obligated to make under Subsection 0.X, Xxxxxx shall perform all work, repairs
and replacements, at Lessee's sole cost and expense, necessary to maintain the
Premises and shall keep the Premises and the fixtures therein in good, clean,
neat and orderly condition, normal wear and tear excepted. All such work shall
be in quality at least equal to the original work and installations. If the
Lessee refuses or neglects to do such work, or fails to diligently prosecute the
same to completion after written notice to Lessee of the need therefor, Lessor
may do such work at the sole cost and expense of Lessee and such cost and
4
expense shall be collectible as additional rent, together with a ten percent
(10%) supervisory charge.
C. CAPITAL IMPROVEMENTS: If any of Lessee's obligations under
OMC Sum provisions of the Lease (excluding Lessee Improvements made to the
Premises which are amortized over the term of the Lease and included in Minimum
Rent) require Lessee to pay all or any portion of any charge which could be
treated as a capital improvement under generally accepted accounting principles,
then Lessee shall pay its share of such expense as follows:
1. The cost of such improvement shall be amortized
over the useful life of the improvement, (as reasonably determined by Lessor)
with interest on the unamortized balance at the then prevailing market rate
Lessor would pay if it borrowed funds to construct such improvements from an
institutional lender, and Lessor shall inform Lessee of the monthly amortization
payment required to so amortize such costs, and shall also provide Lessee with
the information upon which such determination is made.
2. Lessee shall pay its proportionate share (based on
the percentage of the Building or Building leased by Lessee, or other equitable
basis) of such amortization payment for each month after such improvement is
completed until the first to occur of (i) the expiration of the Lease term or
(ii) the end of the term over which such costs were amortized, which amount
shall be due at the same time the base monthly rent is due.
9. EXPENSES: Notwithstanding anything to the contrary in the Lease
Form:
In no event shall Lessee have any obligation to perform or to pay
directly, or to reimburse Lessor for, all or any portion of the following
repairs, maintenance, improvements, replacements, premiums, claims, losses,
fees, charges, costs and expenses (collectively, "Costs"):
A. LOSSES CAUSED BY OTHERS: Costs occasioned by the act,
omission or violation of Law by Lessor, any other occupant of the Building, or
their respective agents, employees or contractors.
B. CASUALTIES AND CONDEMNATIONS: Costs occasioned by fire,
acts of God, or other casualties or by the exercise of the power of eminent
domain.
C. CAPITAL IMPROVEMENTS: Costs relating to repairs,
alterations, improvements, equipment and tools which could properly be
capitalized under generally accepted accounting principles, except to the extent
that (i) the foregoing reduces the expenses otherwise payable by Lessee under
the Lease and (ii) Lessee's share of such
5
Cost during any twelve-month period of the Lease is equitably determined based
on Lessee's usage and amortized over the useful life of the capital item in
question.
D. REAL ESTATE TAXES: Taxes (as defined in paragraph 7.B. of
the Lease Form Endorsement).
E. HAZARDOUS MATERIALS: Costs incurred to investigate the
presence of any Hazardous Material (defined in the Lease Form), Costs to respond
to any claim of Hazardous Material contamination or damage, Costs to remove any
Hazardous Material from the Building and any judgments or other Costs incurred
in connection with any Hazardous Material exposure or releases, except to the
extent caused by the storage, use or disposal of the Hazardous Material in
question by Lessee.
F. MANAGEMENT: Any fee, profit or compensation retained by
Lessor or its affiliates for management and administration of the Building in
excess of the management fee which would be charged by a professional management
services for operation of comparable Buildings in the vicinity.
G. ART: Costs of sculptures, fountains, paintings and other
art objects.
10. RELEASE: Notwithstanding anything to the contrary in the Lease
Form, Lessee shall neither release Lessor from, nor indemnify Lessor with
respect to: (i) the negligence or willful misconduct of Lessor, the other
occupants of the Building, or their respective agents, contractors, licensees or
invitees; or (ii) a breach of Lessor's obligations or representations under this
Lease.
11. HAZARDOUS MATERIALS:
A. For purposes of this Section 11, the following definitions
shall apply:
1. "ENVIRONMENTAL RELEASE": The term Environmental
Release shall mean any intentional or unintentional releasing, spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, disposing, abandoning, discarding or dumping of any Toxic Substance
(hereinafter defined) from, on, into or about the land, water or air of the
Premises, the Building, the common areas in the Building or the real property
surrounding the Building.
2. "TOXIC SUBSTANCE": The term Toxic Substance shall
mean a hazardous substance, hazardous waste, pollutant or contaminant, as such
terms are now or hereafter defined in all applicable federal, state, and local
laws, ordinances or regulations now or hereafter enacted or amended, and any and
all other terms which are
6
or may be used in any or all applicable laws now or hereafter enacted to define
prohibited or regulated substances.
B. Lessee shall not use the Premises the Building, the common
areas in the Building or the real property surrounding the Building (or any part
of the Premises, the Building the common areas or real property) for the purpose
of treating, producing, handling, transferring, processing, transporting,
disposing, using or storing a Toxic Substance.
C. Lessee and its agents, employees. contractors, licensees
and invitees shall not cause or permit to exist, as the result of an action or
omission by one or more of them, an Environmental Release. The occurrence of an
Environmental Release, or a violation of any covenant. representation or
warranty of this Section 11, shall be deemed an Event of Default under this
Lease.
D. Notwithstanding the foregoing, Lessee may use cleaning
materials and office supplies in the ordinary course of Lessee's business, in
reasonable quantities and provided that such materials and supplies are used,
stored and disposed of in compliance with any and all applicable laws,
ordinances and regulations as now or hereafter enacted.
E. Lessee shall dispose, remove and/or arrange for the
disposal and/or removal of its trash by a trash disposal company, approved by
Lessor, which shall be operated in accordance with applicable laws, ordinances
and regulations. Lessee and its agents, employees, contractors, licensees and
invitees shall not place or permit the placement of any Toxic Substance in any
waste receptacle located in the Premises, the Building, the common areas in the
Building, the plumbing or sewer systems of the Building or the real property
surrounding the Building.
F. Lessee shall comply with all applicable laws, ordinances
and regulations of all governmental authorities, as now or hereafter enacted,
including, without limitation, all laws, ordinances and regulations governing a
Toxic Substance.
G. The covenants, representations and warranties provided in
this Section 11 shall survive the expiration or earlier termination of this
Lease.
H. Lessee shall pay, defend, indemnify, and hold harmless
Lessor from and against any all claims, losses, costs, damages, liabilities and
fines arising from or relating to Environmental Releases to the extent caused by
the acts, negligence, misconduct or other fault of Lessee, its agents,
employees, contractors, licensees, invitees or sublessees or failure of Lessee,
or its agents, employees, contractors, licensees, invitees or sublessees to
comply with the provisions of this Section 11.
7
I. Notwithstanding anything to the contrary in the Lease,
Lessor agrees to release and hold Lessee harmless from any costs, claims,
judgements, losses, demands, causes of action, proceedings or hearings,
including Lessor's attorneys fees and court costs, relating in any way to 1)
Hazardous Materials in, on, under or about the Premises (including any
improvements thereon) on the Commencement Date hereof, and 2) any migration of
contamination onto the Premises at any time which does not result from, or is
not caused by the activities of Lessee or its agents.
12. LESSOR'S INSURANCE: Lessor shall at all times maintain "all risk"
property insurance for the full replacement cost of the Building.
13. WAIVER OF SUBROGATION: Notwithstanding anything to the contrary in
the Lease, the parties hereto release each other and their respective agents,
employees, successors, assignees and sublessees from all liability for injury to
any person or damage to any property that is caused by or results from a risk
which is actually insured, which is required to be insured against under this
Lease, or which would normally be covered by "all risk" property insurance,
without regard to the negligence or willful misconduct of the entity so
released.
14. ASSIGNMENT AND SUBLETTING: Notwithstanding anything to the contrary
in the Lease Form:
A. Lessor's consent to an assignment or subletting shall not
be unreasonably withheld.
B. Lessee may, without Lessor's prior written consent and
without any participation by Lessor in assignment and subletting proceeds,
sublet the Premises or assign the Lease to: (i) a subsidiary, affiliate,
division or corporation controlling, controlled by or under common control with
Lessee; (ii) a successor corporation related to Lessee by merger, consolidation,
nonbankruptcy reorganization, or government action; or (iii) a purchaser of
substantially all of Lessee's assets located in the Premises. For the purpose of
this Lease, sale of Lessee's capital stock through any public exchange shall not
be deemed an assignment subletting, or any other transfer of the Lease or the
Premises. Notwithstanding the foregoing, in the event the net worth of any
transferee under sections (i), (ii) or (iii) of this paragraph is less than the
net worth of Lessee on either (1) the Commencement Date hereof, or (2) the time
of such transfer pursuant to paragraph (i), (ii) or (iii) hereof, then Lessor's
consent, pursuant to the Lease and paragraph 14.A. of this Addendum shall be
required. Notwithstanding anything to the contrary in the Lease, any transferee
pursuant to sections (i), (ii) and (iii) of the Lease shall have the right to
exercise Lessees Option and Expansion Rights set forth in paragraphs 3 and 4 of
the Lease Form - Endorsement.
8
C. Except as set forth in paragraph 14.A. above, Lessee shall
pay to Lessor fifty percent (50%) of any rent paid by any assignee or sublessee
in excess of monthly rent payable by Lessee under the Lease, after first
deducting therefrom the costs to Lessee to effectuate the assignment or
sublease, including, without limitation, the unamortized costs of any
alterations installed in the Premises at Lessee's expense, attorneys' fees,
brokerage or leasing commissions, redecorating and remodeling costs.
15. SUBORDINATION: Notwithstanding anything to the contrary in the
Lease Form, Lessor agrees to use reasonable efforts to obtain a recognition and
nondisturbance agreement from any future ground lessor, lender, or other holder
of the interest in the Premises, which agreement (i) provides that this Lease
shall not be terminated so long as Lessee is not in default under this Lease and
(ii) recognizes all of Lessee's rights hereunder.
16. COMMON AREAS: Notwithstanding anything to the contrary in the Lease
Form, if Lessor is permitted to alter any Common Area of the Premises, such
alteration shall not unreasonably interfere with Lessee's use of the Premises or
Lessee's parking rights.
17. APPROVALS: Notwithstanding anything to the contrary in the Lease
Form, whenever the Lease requires an approval, consent, designation,
determination or judgment by either Lessor or Lessee, such approval, consent,
designation, determination or judgment (including, without limiting the
generality of the foregoing, those required in connection with assignment and
subletting) shall not be unreasonably withheld or delayed and in exercising any
right or remedy hereunder, each parry shall at all times act reasonably and in
good faith.
18. ATTORNEY'S FEES: Notwithstanding anything to the contrary in the
Lease Form, if either Lessor or Lessee shall bring any action or legal
proceeding for an alleged breach of any provision of this Lease, to recover
rent, to terminate this Lease or otherwise to enforce, protect or establish any
term or covenant of this Lease, the prevailing party shall be entitled to
recover as a part of such action or proceeding, or in a separate action brought
for that purpose, reasonable attorneys' fees, court costs, and expert fees as
may be fixed by the court. "Prevailing party" as used in this Paragraph includes
a party who dismisses an action for recovery hereunder in exchange for sums
allegedly due, performance of covenants allegedly breached or considerations
substantially equal to the relief sought in the action.
19. OPTION TO EXTEND: Notwithstanding anything to the contrary in the
Lease Form, if Lessee does not, in its sole discretion, approve the rental
amount established by Lessor (pursuant to the Lease Form Paragraph 3 -
Endorsement) for the Option Term, Lessee may rescind its exercise of the Option
by giving Lessor written notice of such election to rescind within ten (10) days
after receipt of Lessor's determination of the
9
Market Rate. If Lessee rescinds its exercise of the Option, then the Lease shall
terminate on the thirtieth (30th) day after Lessee's notice of rescission or on
the date the Lease would have otherwise terminated absent Lessee's exercise of
the Option, whichever date is later.
20. DAMAGE OR DESTRUCTION: Notwithstanding anything to the contrary in
the Lease Form:
A. GENERAL: Subject to the provisions of this Subsection 20.A
and Subsections 20.B and 20.C, if the Premises are damaged by fire or other
casualty, the damaged areas shall be repaired by and at the expense of Lessor to
at least as good a condition as that which existed immediately prior to such
damage, provided that Lessor receives adequate insurance proceeds (excluding
deductibles) including, without limitation, the proceeds of the "Leasehold
Improvement Insurance" (as hereinafter defined) in Subsection 33.A.2. In no
event shall the Lessor be obligated to repair or restore to a condition in
excess of that existing when the Premises were first delivered to Lessee
hereunder, except to the extent further restoration is covered by Leasehold
Improvement Insurance proceeds delivered to Lessor. The rent until such repairs
shall be made shall be apportioned from the date of such fire or other casualty
according to the part of the Premises which is usable by Lessee. Lessor agrees
to repair such damage within a reasonable period of time after receipt from
Lessee of written notice of such damage. Lessor's obligation to repair as
aforesaid is subject to any delays caused by Acts of God, labor strikes or other
events beyond Lessor's control, including without limitation, the failure of any
mortgagee to release insurance proceeds to Lessor sufficient to pay the costs of
any such repairs and Lessor's receipt of the proceeds of the Leasehold
Improvement Insurance. Lessor shall not be liable for any inconvenience or
annoyance to Lessee or injury to the business of Lessee resulting in any way
from such damage or the repair thereof. Lessee acknowledges notice that (1)
Lessor shall not obtain insurance of any kind on Lessee's furniture,
furnishings, equipment or fixtures alterations, improvements and additions, (2)
it is Lessee's obligation to obtain such insurance at Lessee's sole cost and
expense, and (3) Lessor shall not be obligated to repair any damage thereto,
replace the same or otherwise do any work thereto except as set forth in this
Subsection 20.A with respect to those improvements insured with the Leasehold
Improvement Insurance.
B. RECONSTRUCTION: If less than one (1) year would remain of
the Term or any extension thereof, and if, in the reasonable opinion of Lessor,
(1) the Premises are rendered substantially untenantable by reason of such fire
or other casualty, or (2) twenty percent (20%) or more of the Premises is
damaged by said fire or other casualty upon completion of the required repairs
thereto, Lessor shall have the right, to be exercised by notice in writing
delivered to Lessee within ninety (90) days from and after such occurrence, to
elect not to repair the Premises and, in such event, this Lease, the Term
10
and the tenancy hereby created, shall cease as of the date of such occurrence,
the rent to be adjusted as of such date.
C. CONTRIBUTION: Anything in this Section 20 to the contrary
notwithstanding, if the damage resulting from or was contributed directly or
indirectly by the fault, negligence or other conduct of Lessee or its sublessee
or invitees, there shall be no abatement of rent except and to the extent Lessor
received proceeds from Lessor's rental income insurance policy, if any, to
compensate Lessor for loss of rent.
D. INSURED CASUALTY: Lessor shall have the right to terminate
the Lease if damage to or destruction of the Premises or the Building, or both,
results from a casualty ordinarily covered by insurance required to be carried
by Lessor under the Lease, in the event the repair to the Premises, in Lessor's
reasonable judgement, will take longer than one hundred eighty (180) days.
E. LESSEE'S RIGHT TO TERMINATE: Lessor shall notify Lessee
within thirty (30) days following any damage to or destruction of the Premises
(or the Building if such damage or destruction interferes with Lessee's use of
the Premises) the length of time Lessor reasonably estimates to be necessary for
repair or restoration. Lessee shall have the right to terminate the Lease within
fifteen (15) days following receipt of such notice if restoration or repair of
the Premises will take more than one hundred and eighty (180) days.
21. EMINENT DOMAIN:
A. TOTAL OR PARTIAL TAKING: If the whole of the Premises shall
be condemned or taken either permanently or temporarily for any public or
quasi-public use or purpose, under any statute or by right of eminent domain or
by private purchase in lieu thereof, then, in such event, the Term shall cease
and terminate from the date when possession is taken thereunder pursuant to such
proceeding or purchase. The rent shall be adjusted as of the time of such
termination and any rent paid for the period thereafter shall be refunded. If a
portion only of the Premises or a portion of the Building containing same shall
so be taken (even though the Premises may not have been affected by the taking
of some other portion of the Building containing same), Lessor may elect to
terminate this Lease from the date when possession is taken thereunder pursuant
to such proceeding, or purchase or Lessor may elect to repair and restore, at
its own expense, the portion not taken and thereafter the rent shall be reduced
proportionate to the portion of the Premises taken.
B. AWARD: In the event of any total or partial taking of the
Premises or the Building, Lessor shall be entitled to receive the entire award
in any such proceeding and Lessee hereby assigns any and all right, title and
interest or Lessee now or hereafter arising in or to any such award or any part
thereof and hereby waives all rights against
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Lessor and the condemning authority, except that Lessee shall have the right to
claim and prove in a completely separate proceeding and to receive any award
which may be made to Lessee, if any, specifically for damages for loss of good
will, movable trade fixtures, equipment and moving expenses, provided that such
award in no way diminishes or adversely affects Lessor's award.
C. UNSAFE CONDITIONS: If the Premises or the Building are
declared unsafe by any duly constituted authority having the power to make such
determination, or are the subject of a violation notice or notices requiring
work and repair of the Premises or Building could only be completed at
substantial unreimbursable cost to Lessor, Lessor, at its option, may do the
required work or may terminate this Lease and in the latter event, Lessee shall
immediately surrender the Premises to Lessor whereupon this Lease shall
terminate and the rent shall be apportioned as of the date of such termination.
22. NOTICES: Notwithstanding anything to the contrary in the Lease
Form, any notice or report required or desired to be given regarding this Lease
shall be in writing may be given by personal delivery, by facsimile, by courier
service or by mail. Any notice or report addressed to Lessee at the Premises or
to Lessor at the address specified in the Basic Lease Information, as
appropriate, shall be deemed to have been given (i) on the third business day
after mailing if such notice or report was deposited it the United States mail,
certified or registered, postage prepaid, (ii) when delivered if given by
personal delivery, (iii) one day following deposit, cost prepaid, with Federal
Express or similar private carrier, (iv) instantaneously upon confirmation of
receipt of facsimile, and (v) in all other cases when actually received. Either
party may change its address by giving notice of the same in accordance with
this Paragraph.
23. LESSOR'S ENTRY OF PREMISES: Notwithstanding anything to the
contrary in the Lease Form, Lessor and Lessor's agents, except in the case of
emergency, shall provide Lessee with twenty-four (24) hours' notice prior to
entry of the Premises. Any such entry by Lessor and Lessor's agents shall comply
with all reasonable security measures of Lessee and shall not impair Lessee's
operations more than reasonably necessary. During any such entry, Lessor and
Lessor's agents shall at all times be accompanied by Lessee.
24. LESSOR STATUS: Lessor's obligations hereunder shall be binding upon
Lessor only for a period of time that Lessor is in ownership of the Building,
and, upon termination of the ownership and transfer of Lessee's Security Deposit
to the new owner, Lessee, except as to any obligations which have then matured,
shall look solely to Lessor's successor in interest in the Building for the
satisfaction of each and every obligation of Lessor hereunder. Lessor shall have
no personal liability under any of the terms, conditions or covenants of this
Lease and Lessee shall look solely to the equity of
12
the Lessor in the Building of which the Premises form a part and no other assets
for the satisfaction of any claim, remedy or cause of action accruing to Lessee.
25. QUIET POSSESSION: Notwithstanding anything to the contrary in the
Lease Form, Lessee shall peacefully have, hold and enjoy the Premises, subject
to the other terms of this Lease, provided that Lessee pays the Rent and
performs all of Lessee's covenants and agreement contained in this Lease. This
covenant and the other covenants of Lessor contained in this Lease shall be
binding upon Lessor and its successors only with respect to breaches occurring
during its and their respective ownerships of Lessor's interest hereunder.
26. LESSOR'S AUTHORITY TO EXECUTE: Notwithstanding anything to the
contrary in the Lease Form, Lessor warrants and represents to Lessee that Lessor
has the full right, power and authority to enter into this Lease and has
obtained all necessary consents and approvals from its partners, officers, board
of directors or other members required under the documents governing its affairs
in order to consummate the Lease contemplated hereby. The persons executing this
Lease on behalf of Lessor have the full right, power and authority so to do and
affirm the foregoing warranty on behalf of Lessor and on their own behalf.
27. LESSOR'S DEFAULT: Notwithstanding anything to the contrary in the
Lease Form, in the event Lessor fails to perform any of its obligations under
this Lease and (except in case of emergency posing an immediate threat to
persons or property, in which case no prior notice shall be required) fails to
cure such default within thirty (30) days after written notice from Lessee
specifying the nature of such default where such default could reasonably be
cured within said thirty (30) day period, or fails to commence such cure within
said thirty (30) day period and thereafter continuously with due diligence
prosecute such cure to completion where such default could not reasonably be
cured within said thirty (30) day period, then Lessee may proceed in equity or
at law to compel Lessor to perform its obligations and/or to recover damages
proximately caused by such failure to perform (except to the extent Lessee has
waived its right to damages resulting from injury to person or damage to
property as provided herein.
28. MITIGATION: Notwithstanding anything to the contrary in the Lease
Form, Lessor shall use its reasonable efforts to mitigate any damages resulting
from any default by Lessee, and Lessee shall not in any event be liable for any
damages reasonably mitigable by Lessor. Lessor waives any right of distraint,
distress for rent or Lessor's lien that may arise at law.
29. NEW RULES AND REGULATIONS: Notwithstanding the foregoing, Lessee
shall not be required to comply with any rule or regulation unless (i) the OMC
Sum and other costs payable by Lessee under the Lease are not thereby increased,
(ii) such rules and regulations do not materially increase the obligations or
decrease the rights of Lessee
13
under the Lease, (iii) such rules and regulations are nondiscriminatory among
the occupants of the Property, (iv) such rules and regulations are similar to
those in effect at comparable offices in the area; and (v) the same does not
unreasonably interfere with Lessee's use of the Premises or Lessee's parking
rights.
30. SECURITY DEPOSIT: Within thirty (30) days after the expiration or
earlier termination of the Lease term and after Lessee has vacated the Premises,
Lessor shall return to Lessee the entire security deposit except for amounts
that Lessor has deducted therefrom that are needed by Lessor to cure defaults of
Lessee under the Lease or compensate Lessor for damages for which Lessee is
liable pursuant to this Lease.
31. SERVICES:
A. Lessor shall provide, within its standards for each item,
the following services and facilities ("Building Services"):
1. HVAC. Heating, ventilation and air conditioning
("HVAC") during "Ordinary Business Hours" which shall be Monday to Friday from
8:00 AM to 6:00 PM and Saturday from 8:00 AM to 1:00 PM (excluding, however, the
following holidays: New Year's Day, Good Friday, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day, Thanksgiving Friday, Christmas Day and two annual
floating holidays to be determined by Lessor from time to time). Lessee agrees
to cooperate fully with Lessor and to abide by all the regulations and
requirements which Lessor may reasonably prescribe for the proper functioning
and protection of the HVAC systems. Such regulations and requirements include a
prohibition against the use of the Premises or equipment or fixtures which would
generate heat from loads in excess of four (4) xxxxx per usable square foot of
total connected load without the prior consent of Lessor, which consent may be
withheld unless Lessee reimburses Lessor for all costs and expenses relating to
the installation and supply of supplemental HVAC and electrical systems. Lessor
will supply HVAC to the Premises during times other than Ordinary Business Hours
upon reasonable prior notice from the Lessee and the costs of Lessor supplying
the same at rates determined by Lessor from time to time (to recoup costs and
not to earn a profit) shall be paid by Lessee as Additional Rent within 10 days
after receipt of each billing therefor.
2. MAINTENANCE OF COMMON AREAS. Cleaning and
maintenance of common areas of the Building.
3. WATER. Hot and cold water for lavatory purposes at
the core of the Building.
4. WASTE. Sewer and waste pick-up utilities and
services to the Premises and common areas.
14
32. REASONABLE EXPENDITURES: Any expenditure by a party permitted or
required under the Lease, for which such party is entitled to demand and does
demand reimbursement from the other party, shall be limited to the fair market
value of the goods and services involved, shall be reasonably incurred, and
shall be substantiated by documentary evidence available for inspection and
review by the other party or its representative during normal business hours.
33. SIGNAGE : Notwithstanding anything to the contrary in the Lease
Form, Lessee shall be permitted to place one sign measuring two feet in width by
one foot in length with Lessee's logo/name and colors, outside the entrance to
the Building in a space reasonably designated by Lessor. Any sign must be in
conformity with criteria established by Lessor in its reasonable discretion.
Lessee shall pay all costs for such signage.
34. INSURANCE:
A. INSURANCE REQUIREMENTS: During the Term and any extension
thereof, Lessee shall obtain and maintain and promptly pay all premiums for the
following types of insurance in the amounts specified and in the form heretofore
provided for:
1. PUBLIC LIABILITY AND PROPERTY DAMAGE. General
Public Liability Insurance covering the Premises and Lessee's use thereof
against claims for bodily or personal injury or death, and property damage
occurring upon, in or about the Premises, such insurance to afford protection to
the limit of not less than $1,000,000.00 combined single limit in respect of
injury or death to any number of persons arising out of any one occurrence. The
general aggregate limits under the General Public Liability Insurance policy or
policies must apply separately to the Premises. Accordingly, if Lessee obtains
General Public Liability Insurance hereunder in the Commercial General Liability
form of policies, or its equivalent as determined by Lessor, Lessee shall also
obtain Insurance Services Office ("ISO") Endorsement CG-25-04-11-85,
Amendment-Aggregate Limit of Insurance (Per Location) or its equivalent as
determined by Lessor (the "Endorsement"). The certificate of insurance
evidencing the Commercial General Liability form of policies and the Endorsement
shall specify on the face thereof that the limits of such policies apply
separately to the Premises.
2. LESSEE LEASEHOLD IMPROVEMENTS AND PROPERTY.
Insurance covering: (a) all leasehold improvements in the Premises made by
Lessee at Lessee's Cost pursuant to this Lease (such insurance is hereinafter
referred to as the "Leasehold Improvement Insurance") and (b) trade fixtures,
merchandise and personal property from time to time in, on or upon the Premises.
All such insurance coverage shall be in amounts not less than ninety percent
(90%) of the full replacement cost from time to time during the Term, providing
protection against perils included within the standard state form of
15
fire and extended coverage insurance policy, together with insurance against
sprinkler damage, vandalism and malicious mischief. The policy required by
Subsection (a) above shall name Lessor as loss Payee.
3. WORKERS' COMPENSATION AND EMPLOYER'S LIABILITY.
Workers' Compensation and Employer's Liability insurance affording statutory
coverage and containing statutory limits with the Employers Liability portion
thereof to have minimum limits of $1,000,000.00.
B. ADDITIONAL REQUIREMENTS:
All policies of insurance provided for in this Section 33 shall be
issued in form acceptable to Lessor by insurance companies with a financial size
of not less than A+XII (Excellent) as rated in the most current available
"Best's Insurance Reports," and qualified to do business in the state in which
Lessor's Building is located. Each and every such policy:
1. Except for Workers' Compensation and Employees
Liability insurance, shall be issued in the name of Lessee with Lessor and Agent
and Lessor's mortgagee, if requested, as additional insureds and any other
parties in interest from time to time designated in writing by notice from
Lessor to Lessee;
2. shall be for the mutual and joint benefit and
protection of Lessor and Lessee and any such other parties in interest;
3. shall (or a certificate thereof shall) be
delivered to each of Lessor and any such other parties in interest within ten
(10) days after delivery of possession of the Premises to Lessee and thereafter
within thirty (30) days prior to the expiration of each such policy, and, as
often as any such policy shall expire or terminate. Renewal or additional
policies shall be procured and maintained by Lessee in like manner and to like
extent;
4. shall contain a provision that the insurer will
give to Lessor and such other parties in interest at least thirty (30) days
notice in writing in advance of any material change, cancellation, termination
or lapse, or the effective date of any reduction in the amounts of insurance;
and
5. shall be written as a primary policy which does
not contribute to and is not in excess of coverage which Lessor may carry.
C. BLANKET INSURANCE: Any insurance provided for in this
Section may be maintained by means of a policy or policies of blanket insurance,
covering additional items or locations or insureds, provided, however, that:
16
1. Lessor and any other parties in interest from time
to time designated by Lessor to Lessee shall be named as an additional insured
thereunder as its interest may appear;
2. the coverage afforded Lessor and any such other
parties in interest will not be reduced or diminished by reason of the use of
such blanket policy of insurance;
D. INSPECTION OF POLICIES: Lessee agrees to permit Lessor at
all reasonable times to inspect the policies of insurance of Lessee with respect
to the Premises for which policies or copies thereof are not delivered to
Lessor.
35. ESTOPPEL STATEMENT: Lessee shall, at any time and from time to time
within ten (10) days after written request by Lessor, execute, acknowledge and
deliver to Lessor a statement in writing duly executed by Lessee (A) certifying
that this Lease is in full force and effect without modification or amendment
(or, if there have been any modifications and amendments, the nature thereof),
(B) certifying the dates to which annual Minimum Rent and additional rent have
been paid, and (C) either certifying that no default exists under this Lease or
specifying each such default, it being the intention and agreement of Lessor and
Lessee that if Lessee shall fail to respond within the aforesaid ten (10) day
period, Lessee shall be deemed to have given such statement as above provided,
that this Lease is in full force and effect, that no default in Lessor's
performance remains uncured, that the security deposit, if any, is as stated in
this Lease and that not more than one (1) month's rent has been paid in advance.
36. EFFECT OF ADDENDUM: Each term used herein with initial capital
letters shall have the meaning ascribed to such term in the Lease Form unless
specifically otherwise defined herein. In the event of any inconsistency between
this Addendum and the Lease Form, the terms of this First Addendum shall
prevail. As used herein, the term "Lease" shall mean the Lease Form, the
Endorsement thereto, this Addendum and all riders, exhibits, rules, regulations,
covenants, conditions, and restrictions referred to in the Lease Form or this
Addendum.
LESSOR: LESSEE:
3201 Associates, L.P. Pangea Systems, Inc.
a_________________________________ a_________________________________
By:_______________________________ By:_______________________________
17
Printed Printed
Name:_____________________________ Name:_____________________________
Title:____________________________ Title:____________________________
Date:_____________________________ Date:_____________________________
18
ENDORSEMENT TO OFFICE LEASE AGREEMENT
Endorsement to Office Lease Agreement (hereinafter "Lease") between
3201 Associates, L.P. as Lessor and Pangea Systems, Inc. as Lessee for the
Northern Portion of the 2nd floor of the building located at 0000 Xxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx made this 2nd day of June, 1997.
1. TERM. If the Commencement Date occurs on the first day of a calendar
month, the term shall be for a period of five (5) years following the
Commencement Date. If the Commencement Date occurs on a date other than the
first day of a calendar month, the term shall be for a period of five (5) years,
plus a number of days from the Date until the end of the month in which the
Commencement Date occurs.
2. RENT, USE AND OCCUPANCY TAX.
A. Minimum rent shall accrue at the following annual rates for
the following lease years ("Minimum Rent"), subject to abatement as set forth
below:
LEASE YEARS MINIMUM ANNUAL RENT MINIMUM MONTHLY RENT
----------- ------------------- --------------------
1 $41,004.69 $3,417.06
2 $54,190.37 $4,515.86
3 $68,174.76 $5,681.23
4 $69,886.26 $5,823.86
5 $71,312.50 $5,942.71
Minimum Rent shall be payable during the term hereof, in advance, in
equal monthly installments of one-twelfth (1/12) of the annual amount, on the
first day of each calendar month during the term, except that the Minimum Rent
for the first full calendar month of the term shall be paid on the date of the
execution of this Lease.
If the Commencement Date falls on a day other than the first day of a
calendar month, Minimum Rent from such Date until the first day of the next
calendar month shall be prorated and paid on the Commencement Date. In such
case, the installment of Minimum Rent paid at the execution hereof shall be
applied to the Minimum Rent due for the first full calendar month of the term of
this Lease.
All Minimum Rent, "Additional Rent", as provided for elsewhere in this
Lease, and all other sums payable to Lessor in this Lease, whether or not stated
as "Rent", `Minimum Rent" or "Additional Rent" are sometimes referred to as
"Rent."
B. All Rent hereunder shall be paid to Lessor at 0000 Xxxx
Xxxxxx, Xxxxxxxxxxxx, XX 00000, or at such other place as Lessor shall from time
to time direct, without notice or demand (except to the extent demand or notice
shall be expressly provided for herein) and without deduction, set off or
counterclaim. All checks shall be made payable to 3201 Associates L.P.
C. In the event any Rent due from Lessee under the terms of
this Lease is not paid to Lessor within five (5) days of the date due, Lessee
shall also pay as Additional Rent a service, handling and late charge equal to
five percent (5%) of the total payment then due. This provision shall not
prevent the Lessor from exercising any other right or remedy herein provided in
the event of any default by Lessee.
D. If Lessor, at any time or times, shall accept Rent after
same shall become due and payable, such acceptance shall not excuse delay upon
subsequent occasions, or constitute, or be construed as, a waiver of any of
Lessor's rights and remedies hereunder.
E. Lessee shall pay to Lessor any Use and Occupancy Tax (or
its equivalent) imposed on the Premises. Lessor shall have the same rights and
remedies for non-payment of such use and occupancy tax that it has upon the
Lessee's failure to pay Rent hereunder. Lessor agrees to pay the sums collected
by it to the appropriate governmental authorities in a timely manner, and will
pay any penalties or interest occasioned by Lessor's delay in remitting such
sums.
3. OPTION TO RENEW.
A. EXERCISE. Lessee is granted the right and option to extend
the term of this lease for one (1) option term (the "Option Term") of five (5)
years to commence upon the expiration of the initial term of the Lease ,
provided that:
(i) Lessee shall give written notice to Lessor at least six
(6) months prior to the expiration of the initial term of the Lease, stating
that Lessee exercises its option to renew for the option term in question; and
(ii) At the time the option is exercised and at the time such
Option Term commences, this lease shall be in full force and effect and there
shall exist no default by Lessee which remains uncured.
B. TERMS. If the foregoing option is effectively exercised or
deemed exercised, all the terms and conditions contained in this Lease shall
continue to apply during the Option Term except that:
(i) There shall be no further right of renewal beyond the
Option Term;
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(ii) There shall be no further Lessee construction allowances
except that Lessor shall repaint the demised premises and shampoo the carpeting;
(iii) The annual minimum rent then in effect shall be adjusted
beginning on the commencement date of the Option Term to ninety-five percent
(95%) of the "Market Rate", as hereinafter defined, but in any event the
resulting minimum rent during such period shall not be less than the annual
minimum rent in effect for the last year of the original term of the Lease.
C. MARKET RATE. For purposes of this Paragraph 3, "Market
Rate" shall mean the rent charged to new tenants of the Building for comparable
in the Building within one (1) year preceding the last date Lessee is required
to exercise the option to extend. For the purpose of this Paragraph "comparable
space" shall mean tenancies of space in the building of similar size, condition,
quality, term and location (adjusted on a square foot basis in accordance with
the size of the Demised Premises), and if no such "comparable space" exists,
"comparable space" shall mean space of similar size, condition, quality, term
and location in comparable office buildings (based on quality and location).
Lessor's reasonable determination of Market Rate shall be final. Lessor shall
provide Tenant with Lessors written of the Market Rate applicable to the Option
Term within forty-five (45) days after its receipt of notice from Lessee.
4. RIGHT OF FIRST REFUSAL. Lessee is granted a Right of First Refusal
on all space that becomes available on the remainder of the second floor
(hereinafter referred to as "Expansion Space") during the term of the Lease, as
follows:
A. EXERCISE.
(i) Lessor shall provide Lessee with three (3) months written
notice prior to any space becoming available, unless Lessor learns of the
availability within a shorter time period.
(ii) Within fourteen (14) days of Lessor's notice to Lessee as
above, Lessee shall provide Lessor with written notice of its election to lease
said Expansion Space; provided, however, that Lessee's right of first refusal is
conditioned upon this Lease then being in full force and effect and, further,
that there shall exist no default by Lessee which remains uncured.
B. TERMS. If Lessee's right of first refusal is effectively
exercised, then the rental rate for the Expansion Space shall be at the same
rental rate then being paid by Lessee, including an appropriate adjustment for
items of additional rent; provided, however, that said rental amount shall
include costs of the greater of: (i) $1.00 per square foot per year multiplied
by the remaining term attributable to said Expansion Space, or (ii) the amount
per square foot per year spent by Lessor to build-out the Premises
3
multiplied times the remaining term attributable to said Expansion Space. In the
event that the costs to improve said Expansion Space exceeds this amount, the
Lessee shall pay, as rent, the additional improvement costs attributable to said
Expansion Space. In addition, the cost of any improvements to said Expansion
Space shall be amortized over the term then remaining. Lessor shall provide the
Expansion Space to Lessee in the same condition and quality as the Initial
Premises, and the Commencement Date for the Expansion Space shall be the latter
of the time periods set forth in paragraph 1.A. (ii) of the First Addendum to
Lease attached hereto.
The term for said Expansion Space Lease shall be coterminus with
Lessee's original Lease.
5. ELECTRIC. Lessee shall pay for Electric separately based upon usage
and any other charges per the electric meter to the demised premises. However,
with respect to the "Expansion Space", Lessor shall have the option, at its sole
discretion, to either: (i) install a separate meter to said Expansion Space;
(ii) incorporate the electric in the Expansion Space with the meter in the
Premises; or (iii) xxxx separately for electric at the then prevailing rates
during normal business hours. Lessee acknowledges that it shall pay for all
Electric used or consumed within the demised premises including but not limited
to, outlets, lighting and the heat pumps which supply heating and
air-conditioning. Lessee shall not be required to pay any costs associated with
the installation of any electric meters, notwithstanding anything to the
contrary in this Lease.
6. SUBLETTING. Notwithstanding the provisions of Paragraph 4(a) of said
Office Lease Agreement, Lessee shall have the right to sublease or assign all or
a portion of the demised Premises upon receiving Lessor's consent in writing,
which consent Lessor shall not unreasonably withhold.
7. LESSEE'S OPERATION AND MAINTENANCE ("OMC") CHARGE AND LESSEE'S TAX
CHARGE.
A. ANNUAL ADJUSTMENT. During each calendar year or portion
thereof included in the Term and any extension thereof, Lessee shall pay
Landlord as additional rent Lessee's OMC Charge.
B. PROCEDURES.
(1) During December of each calendar year, or as soon
thereafter as practicable, Lessor shall give Lessee written notice of its
estimate of the amounts of Lessee's OMC payable for the ensuing calendar year.
On or before the first day of each month during each calendar year, Lessee shall
pay to Lessor one-twelfth (1/12) of the amounts estimated as afore-said,
provided that if such notice is not given in December, Lessee shall continue to
pay on the basis of one hundred five percent (105%) of the then
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applicable sums of Lessee's OMC until the month after such notice is given. If
at any time or times if it appears to Lessor that the sum payable under
subsection 7A above for the current calendar year will vary from its estimate by
more than five Percent (5%), Lessor shall by notice to Lessee, revise its
estimate for such year, and payments by Lessee for such year shall be based upon
such revised estimate.
(2) Within ninety(90) days after the close of each
calendar year or as soon after such ninety (90) day period as practicable,
Lessor shall deliver to Lessee a statement of the adjustments to be made
pursuant to subsection 7A. If on the basis of such statement Lessee owes less
than the payments for such calendar year previously made by Lessee on account of
Lessee's OMC, Lessor shall credit such excess to Lessee. If on the basis of such
statement Lessee owes sums more than the estimated payments for such calendar
year previously made by Lessee, on account of Lessee's OMC, Lessee shall pay the
deficiency to the Lessor within fifteen (15) days after delivery of the
statement. Lessee's obligations hereunder shall survive the expiration of the
Term or the termination of the Lease.
(3) In determining Lessee's OMC payable pursuant to
subsection 7A for any calendar year during the Term:
(a) if less than ninety-five percent (95%)
of the Building rentable area shall have been occupied by tenants and fully used
by them, at any time during the year, the OMC Sum shall be deemed to be an
amount equal to the OMC Sum which would normally be expected to be incurred had
such occupancy been ninety-five percent (95%) and had such full utilization been
made during the entire period: and,
(b) Lessor agrees that the OMC Sum is a
"pass-thru" expense and is not intended to generate profit for the Lessor.
8. DEFINITIONS: OPERATION AND MAINTENANCE CHARGE.
In this Lease, the following terms shall have the meanings hereinafter
provided:
A. Operations and Maintenance Charge Sum ("OMC Sum") shall
mean all sums incurred (even if not yet payable) in connection with the
operation and maintenance of the Building as deemed by Lessor to be reasonable,
appropriate and in the best interests of the Building including, without
limitation, sums incurred for the following items: storm drainage, water
(domestic and fire protection) and sewer, steam, gas, telephone and other
utility services and systems; heating, ventilation, air conditioning, plumbing,
electrical, fire detection and suppression, life safety, security protection,
illumination, vertical transportation, and other Building services and systems;
salaries, wages, benefits and other compensation to or for personnel engaged in
the cleaning, care, or other operation and maintenance of the building and
payments and
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other charges for contributions, assessments, worker's compensation,
unemployment compensation, health, accident and life insurances and other
impositions or charges related thereto; outfitting and otherwise providing
building service personnel; service, repair, replacement and other elements,
systems and amenities; charges for utilities or utility services; rentals for
provision of Building services; snow, ice, trash and garbage removal and pest
control; identification and directional signs and other traffic control items;
parking, loading and unloading areas and other common areas, facilities or
equipment; fire and other casualty liability, plate glass, theft, worker's
compensation, pressure vessel and rent insurances and all deductibles payable in
connection with all of the foregoing rent coverages; depreciation of machinery
and other equipment for the Building services and interior and exterior areas
finished and amenities; janitorial services, cleaning the property, including
maintenance of windows and other glass surfaces, Building facade, sidewalks,
parking, loading and unloading areas; sales, use excise tax and fees; management
fees and charges; costs required by the application or enforcement of federal,
state and local statutes, codes, regulations and rulings, modifications of the
HVAC and other Building systems by which Lessor provides Building services; the
fair rental value of any office space in the Building used as an office for the
on-site property manager; legal fees and other fees of consultants, engineers
and other design professionals, appraisers, accountants and auditors; gazebos,
fountains, sculptures, art features, fencing, screening and similar items
located within or outside the Building, interior or exterior planting,
replanting and replacing flowers, shrubbery, plants, trees and other
landscaping, awnings and other Building amenities; fees, licenses, permits and
charges by governmental and quasi-governmental bodies or agencies; supplies,
tools, reserve, parts, postage, deliveries, business machines and equipment; all
other sums necessarily and reasonably incurred by Lessor in the proper operation
and maintenance of the Building EXCLUDING, HOWEVER, depreciation (other than as
above specified), the cost of any utilities which are directly metered or
submetered to tenants of the Building the expenses incurred in leasing or
procuring new tenants, legal expenses in enforcing the terms of any lease,
interest or amortization payments on any' mortgage or mortgages, capital
improvements specifically for a tenant within such tenant's space (other than
specified below).
B. "Taxes" or "Tax" shall mean all assessment and charges,
whether federal, state, county or municipal including any special services,
district fees or levies, and whether general or special, ordinary or
extraordinary, foreseen or unforeseen, imposed upon the Building (to the extent
allocable, to the office portion of the Building), all computed in accordance
with the terms and conditions of this Lease, including the reasonable cost and
expenses (including attorney and appraisal fees) of contesting Taxes. It is
agreed between Lessor and Lessee that Taxes shall not include any taxes,
including income taxes (other than business privilege and gross receipts taxes)
imposed on the gross or net income of Lessor from the operation of the Building.
It is further agreed between Lessor and Lessee that taxes shall be allocable to
the office portion, of the
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Building by means of a written appraisal of the Building to be prepared at
Lessor's request. Additionally, in the event that the Building or the uses
thereof are altered or modified at any time during the Term or extension thereof
so that the original allocation of total taxes assessed against the Building
among the retail portion, office portion, and hotel portion of the Building
becomes inequitable, Lessor shall equitably determine a reallocation of Taxes in
light of such alteration or modification. If at any time during the Term and the
present system of taxation of property shall be assessed on Lessor or the
Building any tax of any nature which it imposes in whole or in part, in
substitution for or in lieu of any tax which would otherwise constitute a Tax,
such shall be deemed to be included within the term Taxes, but only to the
extent that the same would be payable if the Building was the only property of
Lessor.
C. "Lessee's OMC Percentage" ten and two-tenths percent
(10.2%).
D. "Lessee's OMC" means the OMC Sum for a calendar year
included within the Term and any extension thereof, less the OMC Sum for the
Base Year of 1997, multiplied by Lessee's OMC Percentage.
9. IMPROVEMENT OF THE PREMISES.
A. AS-IS. Lessor shall, prior to the Commencement Date and at
its sole cost and expense, perform the improvements listed on Exhibit "B"
attached hereto ("Lessor's Work").
B. ACCESS BY LESSEE. Lessor shall afford Lessee and its
employees, agents and contractors access to the Premises prior to the
Commencement Date, at reasonable times and at Lessee's sole risk and expense,
for purposes of inspecting and verifying the performance of "Lessor's Work".
Lessee shall inspect the performance of such work regularly and diligently and
shall advise Lessor promptly of any objections in the performance of such work.
C. ALTERATIONS. Lessee shall not make any alterations,
additions, decorations or other improvements to the Premises or install any
fixtures or equipment thereto (collectively "Alterations"), without the Lessor's
prior written approval. All Alterations to the Premises shall be performed at
Lessee's sole cost and expense by Lessee in accordance with drawings and
specifications prepared at Lessee's sole cost and expense. So long as Lessee is
not in default hereunder, Lessee shall have the right, except as stated in the
succeeding sentence, but not the obligation to remove any of said Alterations
which constitute trade fixtures during and at the expiration of the Term and any
extension thereof, provided that Lessee repairs any damage caused by said
removal. Lessor by notice to Lessee in writing at least one (1) month prior to
the expiration of the Term and any extension thereof, may request the Lessee to
remove any of said Alterations, and, if Lessor makes said request, Lessee shall
remove on or before the date
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on which the Term ends such Alterations as are stated in such request and repair
any damage caused by such removal. In the event that Lessor requests such
removal and Lessee fails to remove same or to repair damage caused thereby,
Lessee agrees to reimburse and pay Lessor for the reasonable cost of removing
same, including, without limitation, reasonable charges for overhead and damage.
All of the Alterations remaining on the Premises after the date on which the
term ends, or at such sooner termination date shall become the property of
Lessor. In doing any work of installation, removal, alteration or relocation,
Lessee shall not harm the premises or the Building and shall repair all damage
or injury that may occur to the Premises or to the Building in connection with
such work. Lessee agrees in doing any such work in or about the Premises to
engage only such labor as will not conflict with or cause strikes or other labor
disturbances among the Building service employees. In all events all such
contractors shall be required to employ only labor acceptable to Lessor in the
performance of such work, carry worker's compensation insurance, public
liability insurance and property damage insurance in amounts, form and content,
and with companies satisfactory to Lessor prior to the commencement by Lessee of
any work, Lessee must obtain, at its sole cost and expense, all necessary
permits, authorizations, licenses and other approvals required by the various
authorities.
D. LIENS. Prior to Lessee performing any construction or other
work to, on or about the Premises for which a lien or claim could be filed
against Lessor, the Premises, the Building or Lessor's interest therein, Lessee
shall have contractor execute a Waiver of Liens satisfactory to Lessor and
provide Lessor with the original of same. Notwithstanding the foregoing, if any
mechanics, or other lien or claim shall be filed against Lessor, the Premises,
the Building or Landlord's interest therein purporting to be for labor or
material furnished or to be furnished at the request of Lessee, then Lessee
shall, at its sole cost and expense cause same to be discharged by payment, bond
or otherwise, without investigation as to the validity thereof or as to cause
any counterclaims, offsets, or defenses thereto. Lessee shall defend, indemnify
and hold Lessor harmless against any and all claims, costs, damages, liabilities
and expenses (including reasonable attorneys' fees which may be brought or
imposed against or incurred by Lessor by reason of any such lien or claim
discharge thereof.
10. JANITORIAL SERVICES. Lessee shall provider at its sole cost and
expense, any and all janitorial services/cleaning services for the demised
premises.
11. SECURITY DEPOSIT. Upon the execution of this Lease, Lessee agrees
to deposit with a security deposit in the amount of Three Thousand Four Hundred
Seventeen Dollars and Six Cents ($3,417.06) (the "Security Deposit"). Lessor
shall hold the security Deposit for the faithful performance of all terms and
conditions of the Lease, it being understood that Lessee shall in no event be
entitled to any interest accrued or accruing thereon.
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If Lessor shall assign or otherwise transfer its interest in the Lease,
Lessor shall have the right, at any time and without notice to Lessee, to
transfer the Security Deposit to the assignee or other transferee of such
interest (with like right of transfer to any assignee or other transferee) and
upon such transfer, Lessor shall be released and relieved from all liability and
responsibility with respect thereof.
12. PARKING. Lessee shall be provided with two (2) spaces in the lot
adjoining the Building and two parking spaces in the secured lot on the
northwest corner of 32nd and Cherry Streets at no cost to Lessee.
In addition, Lessee shall have use of one (1) additional space at the
lot at 32nd and Cherry Streets at a cost of Fifty Dollars ($50.00) per month.
13. REAL ESTATE COMMISSION. Lessor, its successors and assigns, agrees
to pay a real estate commission to Xxxxxx X. Xxxx Company in accordance with a
separate Agreement dated November 11, 1996 and accepted by Lessor on January 28,
1997 as well as all commissions owed to Lessee's Broker, Xxxxxxx and Wakefield.
Lessor and Lessee, agreeing to be legally bound hereby, have executed
this Endorsement to Lease Agreement on the day and year first above written.
ATTEST: LESSEE:
PANGEA SYSTEMS, INC.
/S/ XXXXXXX XXXXX
---------------------------------- ------------------------------------
President & Secretary
WITNESS: LESSOR:
3201 ASSOCIATES, L.P.
/S/
---------------------------------- ------------------------------------
GENERAL PARTNER
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