REGENCY WESTPOINTE
LEASE AGREEMENT
TABLE OF CONTENTS
1. LEASE OF PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. EXHIBITS AND ADDENDA. . . . . . . . . . . . . . . . . . . . . . . . . 2
4. DELIVERY OF POSSESSION. . . . . . . . . . . . . . . . . . . . . . . . 3
5. INTENDED USE OF THE PREMISES. . . . . . . . . . . . . . . . . . . . . 3
6. RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
6.1. PAYMENT OF BASE RENT . . . . . . . . . . . . . . . . . . . . . 3
6.2. ADJUSTED BASE RENT . . . . . . . . . . . . . . . . . . . . . . 3
6.3. ADDITIONAL RENT FOR INCREASES IN TAXES AND PROJECT OPERATING
EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
6.4. DEFINITION OF RENT . . . . . . . . . . . . . . . . . . . . . . 5
6.5. TAXES ON TENANT'S USE AND OCCUPANCY. . . . . . . . . . . . . . 5
7. INTEREST AND LATE CHARGES . . . . . . . . . . . . . . . . . . . . . . 5
8. SECURITY DEPOSIT. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
9. TENANT'S USE OF THE PREMISES. . . . . . . . . . . . . . . . . . . . . 6
9.1. USE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
9.2. OBSERVANCE OF LAW. . . . . . . . . . . . . . . . . . . . . . . 6
9.3. INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
9.4. NUISANCE AND WASTE . . . . . . . . . . . . . . . . . . . . . . 6
9.5. LOAD AND EQUIPMENT LIMITS. . . . . . . . . . . . . . . . . . . 6
9.6. HAZARDOUS MATERIAL . . . . . . . . . . . . . . . . . . . . . . 7
10. SERVICES AND UTILITIES. . . . . . . . . . . . . . . . . . . . . . . . 7
11. REPAIRS AND MAINTENANCE . . . . . . . . . . . . . . . . . . . . . . . 8
11.1. LANDLORD'S OBLIGATIONS . . . . . . . . . . . . . . . . . . . . 8
11.2. TENANT'S OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . 8
11.3. COMPLIANCE WITH LAW. . . . . . . . . . . . . . . . . . . . . . 8
11.4. NOTICE OF DEFECT . . . . . . . . . . . . . . . . . . . . . . . 8
11.5. LANDLORD'S LIABILITY . . . . . . . . . . . . . . . . . . . . . 8
12. CONSTRUCTION, ALTERATIONS AND ADDITIONS . . . . . . . . . . . . . . . 8
12.1. LANDLORD'S CONSTRUCTION OBLIGATIONS. . . . . . . . . . . . . . 8
12.2. TENANT'S CONSTRUCTION OBLIGATIONS. . . . . . . . . . . . . . . 8
12.3. TENANT'S ALTERATIONS AND ADDITIONS . . . . . . . . . . . . . . 8
12.4. PAYMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
12.5. PROPERTY OF LANDLORD . . . . . . . . . . . . . . . . . . . . . 9
13. LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY . . . . . . . . . . . . . . 9
13.1. LEASEHOLD IMPROVEMENTS . . . . . . . . . . . . . . . . . . . . 9
13.2. TENANT'S PROPERTY. . . . . . . . . . . . . . . . . . . . . . . 9
14. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
14.1. TENANT INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . 9
14.2. LANDLORD NOT LIABLE. . . . . . . . . . . . . . . . . . . . . . 9
15. TENANT'S INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . 10
15.1. INSURANCE REQUIREMENT . . . . . . . . . . . . . . . . . . . . 10
15.2. FIRE AND EXTENDED COVERAGE . . . . . . . . . . . . . . . . . . 10
15.3. GENERAL LIABILITY AND PROPERTY DAMAGE. . . . . . . . . . . . . 10
15.4. INCREASES IN INSURANCE POLICY LIMITS . . . . . . . . . . . . . 10
15.5. WORKER'S COMPENSATION INSURANCE. . . . . . . . . . . . . . . . 11
15.6. WAIVER OF SUBROGATION. . . . . . . . . . . . . . . . . . . . . 11
16. DAMAGE OR DESTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . 11
16.1. DAMAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
16.2. REPAIR OF PREMISES IN EXCESS OF ONE HUNDRED EIGHTY DAYS. . . . 11
16.3. REPAIR OUTSIDE PREMISES. . . . . . . . . . . . . . . . . . . . 11
16.4. TENANT REPAIR. . . . . . . . . . . . . . . . . . . . . . . . . 11
16.5. ELECTION NOT TO PERFORM LANDLORD'S WORK. . . . . . . . . . . . 11
16.6. EXPRESS AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . 12
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17. EMINENT DOMAIN. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
17.1. WHOLE TAKING . . . . . . . . . . . . . . . . . . . . . . . . . 12
17.2. PARTIAL TAKING . . . . . . . . . . . . . . . . . . . . . . . . 12
17.3. PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
17.4. LANDLORD'S RESTORATION . . . . . . . . . . . . . . . . . . . . 12
18. ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . . . . . 12
18.1. NO ASSIGNMENT OR SUBLETTING. . . . . . . . . . . . . . . . . . 12
18.2. LANDLORD'S CONSENT . . . . . . . . . . . . . . . . . . . . . . 12
18.3. TENANT REMAINS RESPONSIBLE . . . . . . . . . . . . . . . . . . 13
18.4. PAYMENT OF FEES. . . . . . . . . . . . . . . . . . . . . . . . 13
19. DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
19.1. TENANT'S DEFAULT . . . . . . . . . . . . . . . . . . . . . . . 14
19.2. LANDLORD REMEDIES. . . . . . . . . . . . . . . . . . . . . . . 14
19.3. DAMAGES RECOVERABLE. . . . . . . . . . . . . . . . . . . . . . 15
19.4. LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT. . . . . . . . . . . 15
19.5. LANDLORD'S DEFAULT . . . . . . . . . . . . . . . . . . . . . . 15
19.6. MORTGAGEE PROTECTION . . . . . . . . . . . . . . . . . . . . . 15
19.7. TENANT'S RIGHT TO CURE LANDLORD'S DEFAULT. . . . . . . . . . . 15
20. WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
21. SUBORDINATION AND ATTORNMENT. . . . . . . . . . . . . . . . . . . . . 16
22. TENANT ESTOPPEL CERTIFICATES. . . . . . . . . . . . . . . . . . . . . 16
22.1. LANDLORD REQUEST FOR ESTOPPEL CERTIFICATE. . . . . . . . . . . 16
22.2. FAILURE TO EXECUTE . . . . . . . . . . . . . . . . . . . . . . 16
23. NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
24. TRANSFER OF LANDLORD'S INTEREST . . . . . . . . . . . . . . . . . . . 17
25. SURRENDER OF PREMISES . . . . . . . . . . . . . . . . . . . . . . . . 17
25.1. CLEAN AND SAME CONDITION . . . . . . . . . . . . . . . . . . . 17
25.2. FAILURE TO DELIVER POSSESSION. . . . . . . . . . . . . . . . . 17
25.3. PROPERTY ABANDONED . . . . . . . . . . . . . . . . . . . . . . 17
26. HOLDING OVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
27. RULES AND REGULATIONS . . . . . . . . . . . . . . . . . . . . . . . . 17
28. CERTAIN RIGHTS RESERVED BY LANDLORD . . . . . . . . . . . . . . . . . 17
29. ADVERTISEMENTS AND SIGNS. . . . . . . . . . . . . . . . . . . . . . . 18
30. RELOCATION OF PREMISES. . . . . . . . . . . . . . . . . . . . . . . . 18
31. GOVERNMENT ENERGY OR UTILITY CONTROLS . . . . . . . . . . . . . . . . 18
32. FORCE MAJEURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
33. BROKERAGE FEES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
34. QUIET ENJOYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
35. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
35.1. ACCORD AND SATISFACTION; ALLOCATION OF PAYMENTS. . . . . . . . 19
35.2. ADDENDA. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
35.3. ATTORNEYS' FEES. . . . . . . . . . . . . . . . . . . . . . . . 19
35.4. CAPTIONS AND SECTION NUMBERS . . . . . . . . . . . . . . . . . 19
35.5. CHANGES REQUESTED BY LENDER. . . . . . . . . . . . . . . . . . 19
35.6. CHOICE OF LAW. . . . . . . . . . . . . . . . . . . . . . . . . 19
35.7. CONSENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
35.8. CORPORATE AUTHORITY. . . . . . . . . . . . . . . . . . . . . . 20
35.9. COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . 20
35.10. EXECUTION OF LEASE; NO OPTION. . . . . . . . . . . . . . . . . 20
35.11. FURNISHING OF FINANCIAL STATEMENTS; TENANT'S REPRESENTATIONS . 20
35.12. FURTHER ASSURANCES . . . . . . . . . . . . . . . . . . . . . . 20
35.13. PRIOR AGREEMENTS; AMENDMENTS . . . . . . . . . . . . . . . . . 20
35.14. RECORDING. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
35.15. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . 20
35.16. SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . . . . 20
35.17. TIME OF THE ESSENCE. . . . . . . . . . . . . . . . . . . . . . 20
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LEASE
This lease between Glenborough Fund I, Limited Partnership, a Delaware limited
partnership, (herein Landlord), and Midwest Medical Insurance Holding Company, a
Minnesota corporation (herein Tenant), is dated for reference purposes only as
of this ______ day of ____________, 19__.
1. LEASE OF PREMISES.
In consideration of the Rent (as defined at Section 6.) and the provisions of
this Lease, Landlord leases to Tenant and Tenant leases from Landlord the
Premises shown by diagonal lines on the floor plan attached hereto as
Exhibit "A", and further described at Section 2.13. The Premises are located
within the Building and Project (as described in Sections 2.13. and 2.14.).
Tenant shall have the nonexclusive right (unless otherwise provided herein) in
common with Landlord, other tenants, subtenants and invitees, to use the Common
Area (as defined in Section 2.5.).
2. DEFINITIONS.
As used in this Lease the following terms shall have the following meanings:
2.1. ADJUSTMENT DATE: Each successive anniversary of Tenants' First
Adjustment Date (as described in 2.17.).
2.2. ANNUAL BASE RENT:
Lease Year 1: $ 21,852.00
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Lease Year 2: $ 22,416.00
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Lease Year 3: $ 22,980.00
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Lease Year 4: $
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Lease Year 5: $
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2.3. BASE YEAR (Section 6.3.): 1997.
2.4. COMMENCEMENT DATE: December 1, 1997. If the Commencement Date is
other than the first day of a month, then the Expiration Date of
the Lease shall be extended to the last day of the month in which
the Lease expires.
2.5. COMMON AREA: The building lobbies, common corridors and hallways,
restrooms, garage and parking areas, stairways, elevators and other
generally understood public or common areas. Landlord shall have
the right to regulate or restrict the use of the Common Area.
2.6. EXPIRATION DATE: November 30, 2000, unless otherwise sooner
terminated in accordance with the provisions of this Lease.
2.7
2.8. LANDLORD'S MAILING ADDRESS:
c/o Glenborough Corporation
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
RENT PAYMENT ADDRESS:
Glenborough Fund I
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▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Drive
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Suite 304
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▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
TENANT'S MAILING ADDRESS:
Midwest Medical Insurance Holding Company
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▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ South
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Suite 245
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▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
1
2.9. LISTING AND LEASING AGENT(S): NA.
2.10. MONTHLY INSTALLMENTS OF BASE RENT:
Lease Year 1: $ 1,821.00 per month
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Lease Year 2: $ 1,868.00 per month
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Lease Year 3: $ 1,915.00 per month
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Lease Year 4: $ per month
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Lease Year 5: $ per month
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2.11. NOTICE: Except as otherwise provided herein, Notice shall mean any
notices, approvals and demands permitted or required to be given
under this Lease. Notice shall be given in the form and manner set
forth in Section 23.
2.12. PARKING: Tenant shall be entitled to the nonexclusive use of all
parking spaces and the exclusive use of 0 parking spaces located on
the Property. The charge for parking shall be 0 per month per
parking space for the first year of this Lease. Commencing with
Lease Year Two (2), the charge for parking may be adjusted by
Landlord any time.
2.13. PREMISES: That portion of the Building containing approximately
1,249 square feet of Usable Area, shown by diagonal lines on
Exhibit "A", located on the 3rd floor of the Building located at
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and known as
Suite 301.
2.14. PROJECT: The building of which the Premises are a part (the
Building) and any other buildings or improvements on the real
property (the Property) located at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and further described at Exhibit "B". The
Project is commonly known as Regency Westpointe.
2.15. SECURITY DEPOSIT (Section 8.): $ 1,915.00*.
2.16. STATE: The State of Nebraska.
2.17.
2.18. TENANT'S PROPORTIONATE SHARE: 3.48%. Such share is a fraction,
the numerator of which is the Usable Area of the Premises, and the
denominator of which is the Usable Area of the Project, as
determined by Landlord from time to time. The Project consists of
one building(s) containing a total of 35,937 square feet.
2.19. TENANT'S USE (Section 9.): Offices used for the business of
providing insurance to doctors.
2.20. TERM: The period commencing on the Commencement Date and expiring
at midnight on the Expiration Date.
2.21. USABLE AREA: As to both the Premises and the Project, the
respective measurements of floor area as may from time to time be
subject to lease by Tenant and all tenants of the Project,
respectively, as determined by Landlord and applied on a consistent
basis throughout the Project.
3. EXHIBITS AND ADDENDA.
The exhibits and addenda listed below (unless lined out) are attached hereto and
incorporated by reference in this Lease:
3.1. Exhibit A - Floor Plan showing the Premises.
3.2. Exhibit B - Site Plan of the Project.
3.3. Exhibit C - Building Standard Tenant Improvements.
3.4. Exhibit D - Tenant Work Letter and Drawings.
3.5. Exhibit E - Rules and Regulations.
3.6. Addenda: Attached hereto and made a part of this Lease by reference
are Sections 36.
2
* Landlord hereby acknowledges that Tenant's Security Deposit of $1,486.25 will
be carried over from Tenant's prior Lease for the Premises.
4. DELIVERY OF POSSESSION.
If for any reason Landlord does not deliver possession of the Premises to Tenant
on the Commencement Date, and such failure is not caused by an act or omission
of Tenant, the Expiration Date shall be extended by the number of days the
Commencement Date has been delayed and the validity of this Lease shall not be
impaired nor shall Landlord be subject to any liability for such failure; but
Rent shall be abated until delivery of possession. Provided, however, if the
Commencement Date has been delayed by an act or omission of Tenant then Rent
shall not be abated until delivery of possession and the Expiration Date shall
not be extended. Delivery of possession shall be deemed to occur on the date
Landlord receives a Certificate of Occupancy or upon substantial completion of
the Premises, as certified by Landlord's architect. If Landlord permits Tenant
to enter into possession of the Premises before the Commencement Date, such
possession shall be subject to the provisions of this Lease, including, without
limitation, the payment of Rent.
Within ten (10) days of delivery of possession Landlord shall deliver to Tenant
and Tenant shall execute an Acceptance of Premises in which Tenant shall
certify, among other things, that (a) Landlord has satisfactorily completed
Landlord's Work to the Premises pursuant to Exhibit "D", unless written
exception is set forth thereon, and (b) that Tenant accepts the Premises.
Tenant's failure to execute and deliver the Acceptance of Premises shall be
conclusive evidence, as against Tenant, that Landlord has satisfactorily
completed Landlord's Work to the Premises pursuant to Exhibit "D".
In the event Tenant fails to take possession of the Premises following execution
of this Lease, Tenant shall reimburse Landlord promptly upon demand for all
costs incurred by Landlord in connection with entering into this Lease
including, but not limited to, broker fees and commissions, sums paid for the
preparation of a floor and/or space plan for the Premises, costs incurred in
performing Landlord's Work pursuant to Exhibit "D", loss of rental income,
attorneys' fees and costs, and any other damages for breach of this Lease
established by Landlord.
5. INTENDED USE OF THE PREMISES.
The statement in this Lease of the nature of the business to be conducted by
Tenant in the Premises does not constitute a representation or guaranty by the
Landlord as to the present or future suitability of the Premises for the conduct
of such business in the Premises, or that it is lawful or permissible under the
certificate of occupancy issued for the Building, or is otherwise permitted by
law. Tenant's taking possession of the Premises shall be conclusive evidence, as
against Tenant, that, at the time such possession was taken, the Premises were
satisfactory for Tenant's intended use.
6. RENT.
6.1. PAYMENT OF BASE RENT. Tenant shall pay the Base Rent for the
Premises. Monthly Installments of Base Rent shall be payable in advance on the
first day of each calendar month of the Term. If the Term begins (or ends) on
other than the first (or last) day of a calendar month, the Base Rent for the
partial month shall be prorated based on a thirty (30) day month. The Rent shall
be paid to the Landlord at the Rent Payment Address set forth in Section 2.8.,
or to such other person at such place as Landlord may from time to time
designate in writing, without any prior demand therefor and without deduction or
offset, in lawful money of the United States of America. Tenant shall pay
Landlord the first Monthly Installment of Base Rent upon execution of this
Lease.
6.2.
6.3. ADDITIONAL RENT FOR INCREASES IN TAXES AND PROJECT OPERATING EXPENSES.
If, in any calendar year during the term of this Lease, Landlord's combined Tax
and Project Operating Costs (hereinafter sometimes together referred to as
Direct Costs) shall be higher than in the Base Year specified in Section 2.3.,
Rent payable by Tenant hereunder shall be increased by an amount equal to
Tenant's proportionate share of the difference between Landlord's actual Direct
Costs for the calendar year and the Base Year. However, if at any time during
the Term hereof the occupancy of the Building is less than one hundred percent
3
(100%) then the Direct Costs (as defined hereinbelow) shall be calculated at the
actual percentage of occupancy or as if the Building were ninety percent (90%)
occupied, whichever is greater.
6.3.1. DEFINITIONS. As used in this Section 6.3., the following terms
shall have the following meanings:
6.3.1.1. Tax Costs shall mean any and all real estate taxes,
other similar charges on real property or improvements, assessments,
water and sewer charges, and all other charges assessed, levied,
imposed or becoming a lien upon part or all of the Project or the
appurtenances thereto, or attributable thereto, or on the rents,
issues, profits or income received or derived therefrom which may be
imposed, levied, assessed or charged by the United States or the
state, county or city in which the Project is located, or any other
local government authority or agency or political subdivision thereof.
Tax Costs for each tax year shall be apportioned to determine the Tax
Costs for the subject calendar years.
6.3.1.2. Operating Expenses shall mean any and all expenses
incurred by Landlord in connection with the maintenance, operation,
and repair of the Project, the equipment, adjacent walks, common
areas, parking areas, malls and landscaped areas, including, but not
limited to, salaries, wages, fringe benefits, pension payments,
payroll taxes, worker's compensation, and other costs related to
employees engaged in the operation, maintenance and/or repair of the
Project; the cost of all charges to Landlord for electricity, natural
gas, air conditioning, steam, water, and other utilities furnished to
the Project including any taxes thereon; the cost and expense for
third-party consultants, accountants and attorneys; a management fee
not to exceed five percent (5%) of the gross rents actually received
from the Project; reasonable reserves for replacements as may be
customary in the geographical area in which the Project is located;
the cost of license fees related to the Project; the cost of all
charges for fire and extended coverage, liability, rent loss and all
other insurance for the Project to the extent that such insurance is
required to be carried by Landlord under any lease, mortgage or deed
of trust covering the whole or a substantial part of the Project or
the Building, or, if not required under any such lease, mortgage or
deed of trust, then to the extent such insurance is carried by owners
or properties comparable to the Project; the cost of all building and
cleaning supplies and materials; the cost of all charges for security
services, cleaning, maintenance and service contracts, snow and ice
removal and other services with independent contractors, including but
not limited to the maintenance, operation and repair of all elevator,
electrical, plumbing and mechanical systems of the Project; and the
cost of any janitorial, utility or other services to be provided by
Landlord.
Notwithstanding the foregoing, the following shall not be
included within Operating Expenses: interest or rent paid to any
Lender; the cost of constructing tenant improvements for Tenant or any
other tenant of the Building or Project; Operating Expenses charged to
and paid by any other tenant of the Building or Project; the cost of
special services, goods or materials provided to any other tenant of
the Building or Project; repairs covered by proceeds of insurance or
from funds provided by Tenant or any other tenant of the Building or
Project.
6.3.2. DETERMINATION AND PAYMENT OF TAX COSTS AND OPERATING EXPENSES.
6.3.2.1. On or before the last day of each December during
the Term of this Lease, Landlord shall furnish to Tenant a written
statement showing in reasonable detail Landlord's projected Tax Costs
and Operating Expenses for the succeeding calendar year. If such
statement of projected Direct Costs indicates the Direct Costs will be
higher than the Base Year, then the Rent due from Tenant hereunder for
the next succeeding year shall be increased by an amount equal to
Tenant's proportionate share of the difference between the projected
Direct Costs for the calendar year and the Base Year. On the next
payment date of Monthly Installments of Rent following Tenant's
receipt of such statement, if such statement indicates that an
estimated rent increase is due, Tenant shall pay to Landlord an amount
equal to such monthly rent increase adjustment (as set forth on
Landlord's statement). Thereafter, the monthly rent adjustment
payments becoming due shall be in the amount set forth in such
projected rent adjustment statement from Landlord. Neither Landlord's
failure to deliver nor late delivery of such statement shall
constitute a default by Landlord or a waiver of Landlord's right to
any rent adjustment provided for herein.
6.3.2.2. On or before the first day of each April during the
Term of this Lease, Landlord shall furnish to Tenant a written
statement of reconciliation (the Reconciliation) showing in reasonable
detail Landlord's actual Direct Costs for the prior year, together
with a full statement of any adjustments necessary to reconcile any
sums paid as estimated rent adjustments during the prior year with
those sums actually payable for such prior year. In the event such
Reconciliation shows that additional sums are due from Tenant, Tenant
shall
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pay such sums to Landlord within ten (10) days of receipt of such
Reconciliation. In the event such Reconciliation shows that a credit
is due Tenant, such credit shall be credited against the next sums
becoming due from Tenant, unless this Lease has expired or been
terminated pursuant to the terms hereof (and all sums due Landlord
have been paid), in which event such sums shall be refunded to
Tenant. Neither Landlord's failure to deliver nor late delivery of
such Reconciliation to Tenant by April first shall constitute a
default by Landlord or operate as a waiver of Landlord's right to
collect all Additional Rent or sums due hereunder. Tenant agrees
that no written request of such Reconciliation shall be made until
the Reconciliation for such period shall be due. Within thirty (30)
days after receipt of Tenant's written request therefor, Landlord
shall deliver such Reconciliation to Tenant.
6.3.2.3. TENANT'S INSPECTION OF RECONCILIATION ACCOUNTING
RECORDS. Provided Tenant is not in default under the terms of the
Lease and following prior written request to Landlord, Tenant
shall have the right to inspect Landlord's Reconciliation
Accounting Records relating to Direct Costs at Landlord's
corporate office, during normal business hours, within thirty (30)
days of receipt of any annual Reconciliation of Direct Costs, for
the purpose of verifying the charges contained in such statement.
Tenant may not withhold any payment due Landlord pending
completion of such inspection.
6.4. DEFINITION OF RENT. All costs and expenses which Tenant assumes or
agrees or is obligated to pay to Landlord under this Lease shall be deemed
Additional Rent (which, together with the Base Rent is sometimes referred to as
the Rent).
6.5. TAXES ON TENANT'S USE AND OCCUPANCY. In addition to the Rent and any
other charges to be paid by Tenant hereunder, Tenant shall reimburse Landlord
upon demand for any and all taxes payable by Landlord (other than net income
taxes) which are not otherwise reimbursable under this Lease, whether or not now
customary or within the contemplation of the parties, where such taxes are upon,
measured by or reasonably attributable to (a) the cost or value of Tenant's
equipment, furniture, fixtures and other personal property located in the
Premises, or the cost or value of any leasehold improvements made in or to the
Premises by or for Tenant, other than Building Standard Tenant Improvements made
by Landlord, regardless of whether title to such improvements is held by Tenant
or Landlord; (b) the gross or net Rent payable under this Lease, including,
without limitation, any rental or gross receipts tax levied by any taxing
authority with respect to the receipt of the Rent hereunder; (c) the possession,
leasing, operation, management, maintenance, alteration, repair, use or
occupancy by Tenant of the Premises or any portion thereof; or (d) this
transaction or any document to which Tenant is a party creating or transferring
an interest or an estate in the Premises. If it becomes unlawful for Tenant to
reimburse Landlord for any costs as required under this Lease, the Base Rent
shall be revised to net Landlord the same net Rent after imposition of any tax
or other charge upon Landlord as would have been payable to Landlord but for the
reimbursement being unlawful.
7. INTEREST AND LATE CHARGES.
If Tenant fails to pay when due any Rent or Additional Rent or other amounts or
charges which Tenant is obligated to pay under the terms of this Lease, then
Tenant shall pay Landlord a late charge equal to six percent (6%) of such
installment if any such installment is not received by Landlord within five (5)
days from the date it is due. Tenant acknowledges that the late payment of any
Rent or Additional Rent will cause Landlord to lose the use of that money and
incur costs and expenses not contemplated under this Lease including, without
limitation, administrative and collection costs and processing and accounting
expenses, the exact amount of which is extremely difficult to ascertain.
Landlord and Tenant agree that this late charge represents a reasonable estimate
of such costs and expenses and is fair compensation to Landlord for the loss
suffered from such nonpayment by Tenant. Acceptance of any late charge shall not
constitute a waiver of Tenant's default with respect to such nonpayment by
Tenant nor prevent Landlord from exercising any other rights or remedies
available to Landlord under this Lease. In addition, Tenant shall be obligated
to pay interest at the maximum applicable rate then allowed by law on any unpaid
monies from the date the monies became due until payment is received by
Landlord. Late charges and interest shall be deemed Additional Rent and are
included collectively in the term Rent.
In no event shall this provision for the imposition of a late charge be deemed
to grant to Tenant a grace period or an extension of time within which to pay
any Rent or Additional Rent due hereunder or prevent Landlord from exercising
any right or remedy available to Landlord upon Tenant's failure to pay such Rent
or Additional Rent when due.
8. SECURITY DEPOSIT.
Tenant agrees to deposit with Landlord the Security Deposit set forth in Section
2.15. upon execution of this Lease as security for Tenant's faithful performance
of its obligations under this Lease. Landlord and Tenant agree that the Security
Deposit may be commingled with funds of Landlord and Landlord shall have no
obligation or liability for payment of interest
5
on such deposit. Tenant shall not mortgage, assign, transfer or encumber the
Security Deposit without the prior written consent of Landlord and any attempt
by Tenant to do so shall be void, without force or effect and shall not be
binding upon the Landlord.
If Tenant fails to pay any Rent or other amount when due and payable under this
Lease, or fails to perform any of the terms hereof, Landlord may, at its option
and without prejudice to any other remedy which Landlord may have on account
thereof, appropriate and apply or use all or any portion of the Security Deposit
for Rent payments or any other amount then due and unpaid, for payment of any
amount for which Landlord has become obligated as a result of Tenant's default
or breach, and for any loss or damage sustained by Landlord as a result of
Tenant's default or breach. If Landlord so uses any of the Security Deposit,
Tenant shall, within ten (10) days after written demand therefor, restore the
Security Deposit to the full amount originally deposited. Tenant's failure to do
so shall constitute an act of default hereunder and Landlord shall have the
right to exercise any remedy provided for at Section 19. hereof.
If Tenant complies with all of the terms and conditions of this Lease, and
Tenant is not in default on any of its obligations hereunder, then within the
time period statutorily prescribed after Tenant vacates the Premises, Landlord
shall return to Tenant (or, at Landlord's option, to the last subtenant or
assignee of Tenant's interest hereunder) the Security Deposit less any
expenditures made by Landlord to repair damages to the Premises caused by Tenant
and to clean the Premises upon expiration or earlier termination of this Lease.
In the event of bankruptcy or other debtor-creditor proceedings against Tenant,
such Security Deposit shall be deemed to be applied first to the payment of Rent
and other sums due Landlord for all periods prior to the filing of such
proceedings.
9. TENANT'S USE OF THE PREMISES.
The provisions of this Section are for the benefit of the Landlord and are not
nor shall they be construed to be for the benefit of any tenant of the Building
or Project.
9.1. USE. Tenant shall use the Premises solely for the purposes set
forth in Section 2.19.
9.2. OBSERVANCE OF LAW. Tenant shall not use or occupy the Premises or
permit anything to be done in or about the Premises in violation of any
covenant, condition or restriction, or law, statute, ordinance or governmental
rules, regulations or requirements now in force or which may hereafter be
enacted or promulgated. Tenant shall, at its sole cost and expense, upon Notice
from Landlord, immediately discontinue any use of the Premises which is declared
by any governmental authority having jurisdiction to be a violation of law or
the Certificate of Occupancy and promptly comply with all laws, statutes,
ordinances and governmental rules, regulations or requirements now in force or
which may hereafter be in force which shall by reason of the nature of Tenant's
use or occupancy of the Premises, impose any duty upon Tenant or Landlord with
respect to the nature of Tenant's use or occupation. The judgment of any court
of competent jurisdiction or the admission by Tenant in any action or proceeding
against Tenant, whether Landlord is a party thereto or not, that Tenant has
violated any such law, statute, ordinance, or governmental regulation, rule or
requirement in the use of the Premises shall be conclusive of the fact as
between Landlord and Tenant.
9.3. INSURANCE. Tenant shall not do or permit to be done anything which
will invalidate or increase the cost of any fire, extended coverage or other
insurance policy covering the Building or Project and/or property located
therein, and shall comply with all rules, orders, regulations, requirements and
recommendations of Landlord's insurance carrier(s) or any board of fire
insurance underwriters or other similar body now or hereafter constituted,
relating to or affecting the condition, use or occupancy of the Premises,
excluding structural changes not related to or affected by Tenant's improvements
or acts. Tenant shall promptly upon demand reimburse Landlord for any additional
premium charged for violation of this Section.
9.4. NUISANCE AND WASTE. Tenant shall not do or permit anything to be done
in or about the Premises which will in any way obstruct or interfere with the
rights of other tenants or occupants of the Building or Project, or injure or
annoy them, or use or allow the Premises to be used for any improper, immoral,
unlawful or objectionable purpose, nor shall Tenant cause, maintain or permit
any nuisance in, on or about the Premises. Tenant shall not commit or suffer to
be committed any waste in or upon the Premises.
9.5. LOAD AND EQUIPMENT LIMITS. Tenant shall not place a load upon any
floor of the Premises which exceeds the load per square foot which such floor
was designed to carry as determined by Landlord or Landlord's structural
engineer. The cost of any such determination made by Landlord's structural
engineer in connection with Tenant's occupancy shall be paid by Tenant upon
Landlord's demand. Tenant shall not install business machines or mechanical
equipment which will in any manner cause noise objectionable to other tenants or
injure, vibrate or shake the Premises or Building.
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9.6. HAZARDOUS MATERIAL.
Unless Tenant obtains the prior written consent of Landlord, Tenant shall not
create, generate, use, bring, allow, emit, dispose, or permit on the Premises,
Building or Shopping Center any toxic or hazardous gaseous, liquid, or solid
material or waste, or any other hazardous material defined or listed on any
applicable federal, state or local law, rule, regulation or ordinance. Tenant
shall indemnify and hold Landlord harmless from any claims, liabilities, costs
or expenses incurred or suffered by Landlord arising from such bringing,
allowing, using, permitting, generating, creating, emitting, or disposing of
toxic or hazardous material whether or not consent to same has been granted by
Landlord. Tenant's hold-harmless and indemnity obligations hereunder shall
survive the expiration or termination of this Lease.
10. SERVICES AND UTILITIES.
Landlord agrees to furnish services and utilities to the Premises during normal
business hours on generally recognized business days subject to the Rules and
Regulations of the Building or Project and provided that Tenant is not in
default hereunder. Services and utilities shall include reasonable quantities of
electricity, heating, ventilation and air conditioning (HVAC) as required in
Landlord's reasonable judgment for the comfortable use and occupancy of the
Premises; lighting replacement for building standard lights; window washing and
janitor services in a manner that such services are customarily furnished to
comparable office buildings in the area. Landlord shall supply common area water
for drinking, cleaning and restroom purposes only. Landlord shall also maintain
and keep lighted the common stairs, common entries and restrooms in the Building
and shall furnish elevator service and restroom supplies. If Tenant desires HVAC
at any other time, Landlord shall use reasonable efforts to furnish such
service upon reasonable notice from Tenant and Tenant shall pay Landlord's
charges therefor on demand.
Landlord shall not be in default hereunder or be liable for any damages directly
or indirectly resulting from, nor shall the Rent be abated by reason of (a) the
installation, use or interruption of use of any equipment in connection with the
furnishing of any of the foregoing services, (b) failure to furnish or delay in
furnishing any such services where such failure or delay is caused by accident
or any condition or event beyond the reasonable control of Landlord, or by the
making of necessary repairs or improvements to the Premises, Building or
Project, or (c) the limitation, curtailment or rationing of, or restrictions on,
use of water, electricity, gas or any other form of energy serving the Premises,
Building or Project. Landlord shall not be liable under any circumstances for a
loss of or injury to property or business, however occurring, through, in
connection with or incidental to the failure to furnish any such services.
Tenant shall not, without the prior written consent of Landlord, use any
apparatus or device in the Premises, including, without limitation, electronic
data processing machines, punch card machines, word processing equipment,
personal computers, or machines using in excess of 120 volts, which consumes
more electricity than is usually furnished or supplied for the use of desk top
office equipment and photocopy equipment ordinarily in use in premises
designated as general office space, as determined by Landlord. Tenant shall not
connect any apparatus to electric current except through existing electrical
outlets in the Premises.
Tenant shall not consume electric current in excess of that usually furnished or
supplied for the use of premises as general office space (as determined by
Landlord), without first procuring the written consent of Landlord, which
Landlord may refuse. In the event of consent, electrical current shall be
separately metered in Tenant's name and paid for by Tenant. The cost of any such
meter and its installation, maintenance and repair shall be paid by Tenant.
Nothing contained in this Section shall restrict Landlord's right to require at
any time separate metering of utilities furnished to the Premises. If the
separate metering of utilities furnished to the Premises is due to Tenant's
excessive use of electric current, then the cost of any such meter and its
installation, maintenance and repair shall be paid by Tenant. If Landlord
requires separate metering for reasons other than Tenant's excessive consumption
of electric current, then the cost of any such meter and its installation,
maintenance and repair shall be paid by Landlord. In either event, accounts for
all such separately metered utilities shall be in Tenant's name and paid for by
Tenant and Landlord shall reduce Base Rent by the amount Landlord reasonably
estimates to be attributable to the utilities so separately metered.
If Tenant uses heat generating machines or equipment in the Premises which
effect the temperature otherwise maintained by the HVAC system, Landlord
reserves the right to install supplementary air conditioning units in the
Premises and the cost thereof, including the cost of installation, operation and
maintenance thereof, shall be paid by Tenant to Landlord upon demand therefor.
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11. REPAIRS AND MAINTENANCE.
11.1. LANDLORD'S OBLIGATIONS. Landlord shall make all structural repairs
except as specified herein and shall maintain in good order, condition and
repair the Building and all other portions of the Premises not the obligation of
Tenant or of any other tenant in the Building.
11.2. TENANT'S OBLIGATIONS.
11.2.1. Tenant shall, at Tenant's sole expense and except for
services furnished by Landlord pursuant to Section 10. hereof, maintain
the Premises in good order, condition and repair. For the purposes of
this Section 11.2.1, the term Premises shall be deemed to include all
items and equipment installed by or for the benefit of or at the expense
of Tenant, including without limitation the interior surfaces of the
ceilings, walls and floors; all doors; all interior windows; dedicated
heating, ventilating and air conditioning equipment; all plumbing, pipes
and fixtures; electrical switches and fixtures; and Building Standard
Tenant Improvements. In addition, Tenant shall be responsible for any
and all damage to the exterior windows caused by Tenant, its guests or
invitees.
11.2.2. Tenant shall be responsible for all repairs and
alterations in and to the Premises, Building and Project and the
facilities and systems thereof to the satisfaction of Landlord, the need
for which arises out of (a) Tenant's use or occupancy of the Premises,
(b) the installation, removal, use or operation of Tenant's Property (as
defined in Section 13.) in the Premises, (c) the moving of Tenant's
Property into or out of the Building, or (d) the act, omission, misuse or
negligence of Tenant, its agents, contractors, employees or invitees.
11.2.3. If Tenant fails to maintain the Premises in good order,
condition and repair, Landlord shall give Notice to Tenant to do such
acts as are reasonably required to so maintain the Premises. If Tenant
fails to promptly commence such work and diligently prosecute it to
completion, then Landlord shall have the right to do such acts and expend
such funds at the expense of Tenant as are reasonably required to perform
such work.
11.3. COMPLIANCE WITH LAW. Landlord and Tenant shall each do all acts
necessary to comply with all applicable laws, statutes, ordinances, and rules of
any public authority relating to their respective maintenance obligations as set
forth herein.
11.4. NOTICE OF DEFECT. If it is Landlord's obligation to repair, Tenant
shall give Landlord prompt Notice of any damage to or defective condition,
regardless of the nature or cause, in any part or appurtenance of the Building's
mechanical, electrical, plumbing, HVAC or other systems serving, located in, or
passing through the Premises.
11.5. LANDLORD'S LIABILITY. Except as otherwise expressly provided in
this Lease, Landlord shall have no liability to Tenant nor shall Tenant's
obligations under this Lease be reduced or abated in any manner by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's making any repairs or changes which Landlord is required or permitted
by this Lease or by any other tenant's lease or required by law to make in or to
any portion of the Project, Building or Premises. Landlord shall nevertheless
use reasonable efforts to minimize any interference with Tenant's conduct of its
business in the Premises.
12. CONSTRUCTION, ALTERATIONS AND ADDITIONS.
12.1. LANDLORD'S CONSTRUCTION OBLIGATIONS Landlord shall perform
Landlord's Work to the Premises as described in Exhibit "D".
12.2. TENANT'S CONSTRUCTION OBLIGATIONS. Tenant shall perform Tenant's
Work to the Premises as described in Exhibit "D" and shall comply with all of
the provisions of this Section 12.
12.3. TENANT'S ALTERATIONS AND ADDITIONS. Except as provided in Section
12.2. above, Tenant shall not make any other additions, alterations or
improvements to the Premises without obtaining the prior written consent of
Landlord. Landlord's consent may be conditioned on Tenant removing any such
additions, alterations or improvements upon the expiration of the Term and
restoring the Premises to the same condition as on the date Tenant took
possession. All work with respect to any addition, alteration or improvement
shall comply with all applicable laws, ordinances, codes and rules of any public
authority and shall be done in a good and workmanlike manner by properly
qualified and licensed personnel approved by Landlord, and such work shall be
diligently prosecuted to completion. The work shall be performed in a manner
that will not interfere with the quiet enjoyment of the other tenants in the
Building in which the Premises is located.
Landlord may require, in Landlord's sole discretion and at Tenant's
sole cost and expense, that Tenant provide Landlord with a lien and
completion bond in an amount equal to at least one and one-half (1-1/2) times
the total estimated cost of any additions, alterations or improvements to be
made in or to the Premises. Nothing contained in this Section 12.3. shall
8
relieve Tenant of its obligation under Section 12.4. to keep the Premises,
Building and Project free of all liens.
12.4. PAYMENT. Tenant shall pay the costs of any work done on the
Premises pursuant to Sections 12.2. and 12.3., and shall keep the Premises,
Building and Project free and clear of liens of any kind. Tenant hereby
indemnifies, and agrees to defend against and keep Landlord free and harmless
from all liability, loss, damage, costs, attorneys' fees and any other expense
incurred on account of claims by any person performing work or furnishing
materials or supplies for Tenant or any person claiming under Tenant.
Tenant shall give Notice to Landlord at least ten (10) business days prior to
the expected date of commencement of any work relating to alterations, additions
or improvements to the Premises. Landlord retains the right to enter the
Premises and post such notices as Landlord deems proper at any reasonable time.
12.5. PROPERTY OF LANDLORD. Unless their removal is required by Landlord
as provided in Section 12.3., all additions, alterations and improvements made
to the Premises shall become the property of Landlord and be surrendered with
the Premises upon the expiration of the Term; provided, however, Tenant's
equipment, machinery and trade fixtures shall remain the Property of Tenant and
may be removed, subject to the provisions of Section 13.2.
13. LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY.
13.1. LEASEHOLD IMPROVEMENTS. All fixtures, equipment (including
air-conditioning or heating systems), improvements and appurtenances attached to
or built into the Premises at the commencement or during the Term of the Lease
(Leasehold Improvements), whether or not by or at the expense of Tenant, shall
be and remain a part of the Premises, shall be the property of Landlord and
shall not be removed by Tenant, except as expressly provided in Section 13.2.,
unless Landlord, by Notice to Tenant not later than thirty (30) days prior to
the expiration of the Term, elects to have Tenant remove any Leasehold
Improvements installed by Tenant. In such case, Tenant, at Tenant's sole cost
and expense and prior to the expiration of the Term, shall remove the Leasehold
Improvements and repair any damage caused by such removal.
13.2. TENANT'S PROPERTY. All signs, notices, displays, movable partitions,
business and trade fixtures, machinery and equipment (excluding air-conditioning
or heating systems, whether installed by Tenant or not), communications
equipment and office equipment located in the Premises and acquired by or for
the account of Tenant, without expense to Landlord, which can be removed without
structural damage to the Building, and all furniture, furnishings and other
articles of movable personal property owned by Tenant and located in the
Premises (collectively, Tenant's Property) shall be and shall remain the
property of Tenant and may be removed by Tenant at any time during the Term;
provided that if any of Tenant's Property is removed, Tenant shall promptly
repair any damage to the Premises or to the Building resulting from such
removal, including without limitation repairing the flooring and patching and
painting the walls where required by Landlord to Landlord's reasonable
satisfaction, all at Tenant's sole cost and expense.
14. INDEMNIFICATION.
14.1. TENANT INDEMNIFICATION. Tenant shall indemnify and hold Landlord
harmless from and against any and all liability and claims of any kind for loss
or damage to any person or property arising out of: (a) Tenant's use and
occupancy of the Premises, or the Building or Project, or any work, activity or
thing done, allowed or suffered by Tenant in, on or about the Premises, the
Building or the Project; (b) any breach or default by Tenant of any of Tenant's
obligations under this Lease; or (c) any negligent or otherwise tortious act or
omission of Tenant, its agents, employees, subtenants, licensees, customers,
guests, invitees or contractors. At Landlord's request, Tenant shall, at
Tenant's expense, and by counsel satisfactory to Landlord, defend Landlord in
any action or proceeding arising from any such claim. Tenant shall indemnify
Landlord against all costs, attorneys' fees, expert witness fees and any other
expenses or liabilities incurred in such action or proceeding. As a material
part of the consideration for Landlord's execution of this Lease, Tenant hereby
assumes all risk of damage or injury to any person or property in, on or about
the Premises from any cause and Tenant hereby waives all claims in respect
thereof against Landlord, except in connection with damage or injury resulting
solely from the gross negligence or willful misconduct of Landlord or its
authorized agents.
14.2. LANDLORD NOT LIABLE. Landlord shall not be liable for injury or
damage which may be sustained by the person or property of Tenant, its
employees, invitees or customers, or any other person in or about the Premises,
caused by or resulting from fire, steam, electricity, gas, water or rain which
may leak or flow from or into any part of the Premises, or from the breakage,
leakage, obstruction or other defects of pipes, sprinklers, wires, appliances,
plumbing, air conditioning, lighting fixtures or mechanical or electrical
systems, whether such damage or injury results from conditions arising upon the
Premises or upon other portions of the Building or Project or from other
sources, unless the condition was the sole result of Landlord's gross negligence
or willful misconduct. Landlord shall not be liable for any
9
damages arising from any act or omission of any other tenant of the Building or
Project or for the acts of persons in, on or about the Premises, Building or the
Project who are not the authorized agents of Landlord.
Tenant acknowledges that Landlord's election to provide mechanical surveillance
or to post security personnel in the Building or on the Project is solely within
Landlord's discretion; Landlord shall have no liability in connection with the
decision whether or not to provide such services and Tenant hereby waives all
claims based thereon. Landlord shall not be liable for losses due to theft,
vandalism or like causes. Tenant shall defend, indemnify and hold Landlord
harmless from any such claims made by any employee, licensee, invitee,
contractor, agent or other person whose presence in, on, or about the Premises,
Building or Project is attendant to the business of Tenant.
15. TENANT'S INSURANCE.
15.1. INSURANCE REQUIREMENT. All insurance required to be carried by
Tenant hereunder shall be issued by responsible insurance companies acceptable
to Landlord and Landlord's lender and qualified to do business in the State.
Each policy shall name Landlord, and any parties designated by Landlord, as
additional insureds, as their respective interests may appear. The issuing
companies shall have a rating of not less than "A" in the latest edition of
Best's Insurance Guide and shall be at least a Class XII company. Each policy
shall contain (a) a cross-liability endorsement, (b) a provision that such
policy and the coverage evidenced thereby shall be primary and noncontributing
with respect to any policies carried by Landlord and that any coverage carried
by Landlord shall be excess insurance, and (c) a waiver by the insurer of any
right of subrogation against Landlord, its agents, employees and
representatives, which arises or might arise by reason of any act or omission of
Landlord, its agents, employees or representatives. A copy of each paid up
policy (authenticated by the insurer) or the certificate of the insurer
evidencing the existence and amount of each insurance policy required hereunder
shall be delivered to Landlord before the date Tenant is first given the right
of possession of the Premises, and thereafter within thirty (30) days after any
demand by Landlord therefor. Landlord may, at any time and from time to time,
inspect and/or copy any insurance policies required to be maintained by Tenant
hereunder. No such policy shall be cancelable or subject to reduction of
coverage or other modification or cancellation except after thirty (30) days
prior written notice to Landlord and Landlord's lender by the insurer. Tenant
shall furnish Landlord with renewals or "binders" of any such policy at least
twenty (20) days prior to the expiration thereof. Tenant agrees that if Tenant
does not take out and maintain such insurance, Landlord may (but shall not be
required to) procure said insurance on Tenant's behalf and charge the Tenant the
cost thereof together with a twenty-five percent (25%) handling charge, payable
upon demand with interest from the date such sums are extended at the rate set
forth in Section 7. hereof. Tenant shall have the right to provide such
insurance coverage pursuant to blanket policies obtained by Tenant, provided
such blanket policies expressly afford coverage to the Premises, Landlord,
Landlord's mortgagee and Tenant as required by this Lease.
15.2. FIRE AND EXTENDED COVERAGE. Beginning on the date Tenant is given
access to the Premises for any purpose and continuing until expiration of the
Term, Tenant shall procure, pay for and maintain in effect policies of property
insurance covering (a) all Leasehold Improvements (including any alterations,
additions or improvements as may be made by Tenant pursuant to the provisions of
Section 12. hereof), and (b) trade fixtures, merchandise and other personal
property from time to time in, on or about the Premises, in an amount not less
than one hundred percent (100%) of their actual replacement cost from time to
time, providing protection against any peril included with the classification
Fire and Extended Coverage insurance with vandalism and malicious mischief and
all risk endorsements subject to the standard exclusions among which are
earthquake and flood. The proceeds of such insurance shall be used for the
repair or replacement of the property so insured. Upon termination of this Lease
following a casualty as set forth herein, the proceeds under (a) shall be paid
to Landlord, and the proceeds under (b) above shall be paid to Tenant. Landlord
shall, during the term hereof, maintain in effect similar insurance on the
Common Area, including but not limited to insurance for sprinkler damage,
vandalism and malicious mischief, as well as, all risk, fire and extended
coverage.
15.3. GENERAL LIABILITY AND PROPERTY DAMAGE. Beginning on the date
Tenant is given access to the Premises for any purpose and continuing until
expiration of the Term, Tenant shall procure, pay for and maintain in effect
comprehensive general liability and property damage insurance with respect to
the construction of improvements on the Premises, the use, operation or
condition of the Premises and the operations of Tenant in, on or about the
Premises, providing personal injury and broad form property damage coverage of
not less than One Million and 00/100 Dollars ($1,000,000.00) combined single
limit for bodily injury, death and property damage liability. Landlord shall,
during the term hereof, maintain in effect similar insurance coverage on the
Common Area.
15.4. INCREASES IN INSURANCE POLICY LIMITS. Not less than every five (5)
years, if, in the opinion of Landlord or Landlord's lender, the amount of
Tenant's insurance policy limits for all insurance to be carried by Tenant as
set forth in this Section 15. is not adequate,
10
Tenant shall increase the insurance coverage as recommended by either Landlord
or Landlord's lender.
15.5. WORKER'S COMPENSATION INSURANCE. Beginning on the date Tenant is
given access to the Premises for any purpose and continuing until expiration of
the Term, Tenant shall procure, pay for and maintain in effect worker's
compensation insurance as required by law.
15.6. WAIVER OF SUBROGATION. Notwithstanding any other provision in this
Lease, Landlord and Tenant each hereby waive all rights of recovery against the
other and against the officers, employees, agents and representatives,
contractors, and invitees of the other, on account of loss by or damage to the
waiving party or its property or the property of others under its control, to
the extent that such loss or damage is insured against under any insurance
policy which may have been in force at the time of such loss or damage. Tenant
shall, upon obtaining the policies of insurance required under this Lease, give
written notice to its insurance carrier or carriers that the foregoing mutual
waiver of subrogation is contained in this Lease. In the event either party is
unable to obtain a waiver of subrogation from its insurer, this Section 15.6.
shall become void and of no force or effect.
16. DAMAGE OR DESTRUCTION.
16.1. DAMAGE. If, during the term of this Lease, the Premises or the
portion of the Building necessary for Tenant's occupancy is damaged by fire or
other casualty covered by fire and extended coverage insurance carried by
Landlord, Landlord shall promptly repair the damage provided (a) such repairs
can, in Landlord's opinion, be completed, under applicable laws and regulations,
within one hundred eighty (180) days of the date a permit for such construction
is issued by the governing authority, (b) insurance proceeds are available to
pay eighty percent (80%) or more of the cost of restoration, and (c) Tenant
performs its obligations pursuant to Section 16.4. hereof. In such event, this
Lease shall continue in full force and effect, except that if such damage is not
the result of the negligence or willful misconduct of Tenant or Tenant's agents,
employees, contractors, licensees or invitees, Tenant shall be entitled to a
proportionate reduction of Rent to the extent Tenant's use of the Premises is
impaired, commencing with the date of damage and continuing until completion of
the repairs required of Landlord under Section 16.4. If the damage is due to the
fault or neglect of Tenant or its employees, there shall be no abatement of
Rent.
16.2. REPAIR OF PREMISES IN EXCESS OF ONE HUNDRED EIGHTY DAYS. If in
Landlord's opinion, such repairs to the Premises or portion of the Building
necessary for Tenant's occupancy cannot be completed under applicable laws and
regulations within one hundred eighty (180) days of the date a permit for such
construction is issued by the governing authority, Landlord may elect, upon
Notice to Tenant given within thirty (30) days after the date of such fire or
other casualty, to repair such damage, in which event this Lease shall continue
in full force and effect, but the Base Rent shall be partially abated as
provided in Section 16.1. If Landlord does not so elect to make such repairs,
this Lease shall terminate as of the date of such fire or other casualty.
16.3. REPAIR OUTSIDE PREMISES. If any other portion of the Building or
Project is totally destroyed or damaged to the extent that in Landlord's opinion
repair thereof cannot be completed under applicable laws and regulations within
one hundred eighty (180) days of the date a permit for such construction is
issued by the governing authority, Landlord may elect upon Notice to Tenant
given within thirty (30) days after the date of such fire or other casualty, to
repair such damage, in which event this Lease shall continue in full force and
effect, but the Base Rent shall be partially abated as provided in Section 16.1.
If Landlord does not elect to make such repairs, this Lease shall terminate as
of the date of such fire or other casualty.
16.4. TENANT REPAIR. If the Premises are to be repaired under this
Section 16., Landlord shall repair at its cost any injury or damage to the
Building and Building Standard Tenant Improvements, if any. Notwithstanding
anything contained herein to the contrary, Landlord shall not be obligated to
perform work other than Landlord's Work performed previously pursuant to Section
12.1. hereof. Tenant shall be responsible at its sole cost and expense for the
repair, restoration and replacement of any other Leasehold Improvements and
Tenant's Property. Landlord shall not be liable for any loss of business,
inconvenience or annoyance arising from any repair or restoration of any portion
of the Premises, Building or Project as a result of any damage from fire or
other casualty.
16.5. ELECTION NOT TO PERFORM LANDLORD'S WORK. Notwithstanding anything
to the contrary contained herein, Landlord shall provide Notice to Tenant of its
intent to repair or replace the Premises, and, within five (5) days of its
receipt of such Notice, Tenant shall provide Notice to Landlord of its intent to
reoccupy the Premises. Should Tenant fail to provide such Notice to Landlord,
then such failure shall be deemed an election by Tenant not to re-occupy the
Premises and Landlord may elect not to perform the repair or replacement of the
Premises. Such election shall not result in a termination of this Lease and all
obligations of Tenant hereunder shall remain in full force and effect,
including the obligation to pay Rent.
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16.6. EXPRESS AGREEMENT. This Lease shall be considered an express
agreement governing any case of damage to or destruction of the Premises,
Building or Project by fire or other casualty, and any present or future law
which purports to govern the rights of Landlord and Tenant in such circumstances
in the absence of express agreement shall have no application.
17. EMINENT DOMAIN.
17.1. WHOLE TAKING. If the whole of the Building or Premises is
lawfully taken by condemnation or in any other manner for any public or
quasi-public purpose, this Lease shall terminate as of the date of such taking,
and Rent shall be prorated to such date.
17.2. PARTIAL TAKING. If less than the whole of the Building or
Premises is so taken, this Lease shall be unaffected by such taking, provided
that (a) Tenant shall have the right to terminate this Lease by Notice to
Landlord given within ninety (90) days after the date of such taking if twenty
percent (20%) or more of the Premises is taken and the remaining area of the
Premises is not reasonably sufficient for Tenant to continue operation of its
business, and (b) Landlord shall have the right to terminate this Lease by
Notice to Tenant given within ninety (90) days after the date of such taking. If
either Landlord or Tenant so elects to terminate this Lease, the Lease shall
terminate on the thirtieth (30th) calendar day after either such Notice. The
Rent shall be prorated to the date of termination. If this Lease continues in
force upon such partial taking, the Base Rent and Tenant's Proportionate Share
shall be equitably adjusted according to the remaining Usable Area of the
Premises and Project.
17.3. PROCEEDS. In the event of any taking, partial or whole, all of
the proceeds of any award, judgment or settlement payable by the condemning
authority shall be the exclusive property of Landlord, and Tenant hereby assigns
to Landlord all of its right, title and interest in any award, judgment or
settlement from the condemning authority; however, Tenant shall have the right,
to the extent that Landlord's award is not reduced or prejudiced, to claim from
the condemning authority (but not from Landlord) such compensation as may be
recoverable by Tenant in its own right for relocation expenses and damage to
Tenant's Property and damage to Leasehold Improvements installed at the sole
expense of Tenant.
17.4. LANDLORD'S RESTORATION. In the event of a partial taking of the
Premises which does not result in a termination of this Lease, Landlord shall
restore the remaining portion of the Premises as nearly as practicable to its
condition prior to the condemnation or taking; provided however, Landlord shall
not be obligated to perform work other than Landlord's Work performed previously
pursuant to Section 12.1. hereof. Tenant shall be responsible at its sole cost
and expense for the repair, restoration and replacement of Tenant's Property and
any other Leasehold Improvements.
18. ASSIGNMENT AND SUBLETTING.
No assignment of this Lease or sublease of all or any part of the Premises shall
be permitted, except as provided in this Section 18.
18.1. NO ASSIGNMENT OR SUBLETTING. Tenant shall not, without the prior
written consent of Landlord, assign or hypothecate this Lease or any interest
herein or sublet the Premises or any part thereof, or permit the use of the
Premises by any party other than Tenant. Any of the foregoing acts without such
consent shall be voidable and shall, at the option of Landlord, constitute a
default hereunder. This Lease shall not, nor shall any interest of Tenant
herein, be assignable by operation of law without the prior written consent of
Landlord.
18.1.1. For purposes of this Section 18., the following shall be
deemed an assignment:
18.1.1.1. If Tenant is a partnership, any withdrawal or
substitution (whether voluntary, involuntary, or by operation of
law, and whether occurring at one time or over a period of time) of
any partner(s) owning twenty-five (25%) or more (cumulatively) of
any interest in the capital or profits of the partnership, or the
dissolution of the partnership;
18.1.1.2. If Tenant is a corporation, any dissolution,
merger, consolidation, or other reorganization of Tenant, any sale
or transfer (or cumulative sales or transfers) of the capital stock
of Tenant in excess of twenty-five percent (25%), or any sale (or
cumulative sales) of fifty-one (51%) or more of the value of the
assets of Tenant provided, however, the foregoing shall not apply
to corporations the capital stock of which is publicly traded.
18.2. LANDLORD'S CONSENT. If, at any time or from time to time during
the Term hereof, Tenant desires to assign this Lease or sublet all or any part
of the Premises and Tenant is not in default under the term of the Lease, Tenant
shall submit to Landlord a written request for approval setting forth the terms
and provisions of the proposed assignment or sublease and the identity of the
proposed assignee or subtenant. Tenant shall promptly supply
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Landlord with such information concerning the business background and financial
condition of such proposed assignee or subtenant as Landlord may reasonably
request. Landlord shall have the right to approve such proposed assignee or
subtenant, which approval shall not be unreasonably withheld. Landlord's consent
to any assignment shall not be construed as a consent to any subsequent
assignment, subletting, transfer of partnership interest or stock, occupancy or
use.
18.2.1. Landlord's approval shall be conditioned, among other
things, on Landlord's receiving adequate assurances of future
performance under this Lease and any sublease or assignment. In
determining the adequacy of such assurances, Landlord may base its
decision on such factors as it deems appropriate, including but not
limited to:
18.2.1.1. that the source of rent and other consideration due
under this Lease, and, in the case of assignment, that the
financial condition and operating performance of the proposed
assignee and its guarantors, if any, shall be similar to the
financial condition and operating performance of Tenant and its
guarantors, if any, as of the time Tenant became the lessee under
this Lease;
18.2.1.2. that any assumption or assignment of this Lease
will not result in increased cost or expense, wear and tear,
greater traffic or demand for services and utilities provide by
Landlord pursuant to Section 10. hereof and will not disturb or be
detrimental to other tenants of Landlord;
18.2.1.3. whether the proposed assignee's use of the Premises
will include the use of Hazardous Material, or will in any way
increase any risk to Landlord relating to Hazardous Material; and
18.2.1.4. that assumption or assignment of such lease will
not disrupt any tenant mix or balance in the Project.
18.2.2. The assignment or sublease shall be on the same terms and
conditions set forth in the written request for approval given to
Landlord, or, if different, upon terms and conditions consented to by
Landlord;
18.2.3. No assignment or sublease shall be valid and no assignee
or sublessee shall take possession of the Premises or any part thereof
until an executed counterpart of such assignment or sublease has been
delivered to Landlord;
18.2.4. No assignee or sublessee shall have a further right to
assign or sublet except on the terms herein contained;
18.2.5. Any sums or other economic considerations received by
Tenant as a result of such assignment or subletting, however denominated
under the assignment or sublease, which exceed, in the aggregate (a) the
total sums which Tenant is obligated to pay Landlord under this Lease
(prorated to reflect obligations allocable to any portion of the Premises
subleased), plus (b) any real estate brokerage commissions or fees
payable to third parties in connection with such assignment or
subletting, shall be shared equally by Tenant and Landlord as Additional
Rent under this Lease without effecting or reducing any other obligations
of Tenant hereunder.
18.3. TENANT REMAINS RESPONSIBLE. No subletting or assignment shall
release Tenant of Tenant's obligations under this Lease or alter the primary
liability of Tenant to pay the Rent and to perform all other obligations to be
performed by Tenant hereunder. The acceptance of Rent by Landlord from any other
person shall not be deemed to be a waiver by Landlord of any provision hereof.
Consent to one assignment or subletting shall not be deemed consent to any
subsequent assignment or subletting. In the event of default by an assignee or
subtenant of Tenant or any successor of Tenant in the performance of any of the
terms hereof, Landlord may proceed directly against Tenant without the necessity
of exhausting remedies against such assignee, subtenant or successor. Landlord
may consent to subsequent assignments of the Lease or sublettings or amendments
or modifications to the Lease with assignees of Tenant, without notifying
Tenant, or any successor of Tenant, and without obtaining its or their consent
thereto and any such actions shall not relieve Tenant of liability under this
Lease.
18.4. PAYMENT OF FEES. If Tenant assigns the Lease or sublets the
Premises or requests the consent of Landlord to any assignment or subletting,
then Tenant shall, upon demand, pay Landlord, whether or not consent is
ultimately given, an administrative fee of Two Hundred Fifty and 00/100 Dollars
($250.00) plus costs and other expenses incurred by Landlord in connection with
each such act or request.
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19. DEFAULT.
19.1. TENANT'S DEFAULT. The occurrence of any one or more of the
following events shall constitute a default and breach of this Lease by Tenant:
19.1.1. If Tenant abandons or vacates the Premises; or
19.1.2. If Tenant fails to pay any Rent or Additional Rent or any
other charges required to be paid by Tenant under this Lease and such
failure continues for three (3) days after receipt of Notice thereof from
Landlord to Tenant; or
19.1.3. If Tenant fails to promptly and fully perform any other
covenant, condition or agreement contained in this Lease and such failure
continues for thirty (30) days after Notice thereof from Landlord to
Tenant; or
19.1.4. If a writ of attachment or execution is levied on this
Lease or on any of Tenant's Property; or
19.1.5. If Tenant makes a general assignment for the benefit of
creditors, or provides for an arrangement, composition, extension or
adjustment with its creditors; or
19.1.6. If Tenant files a voluntary petition for relief or if a
petition against Tenant in a proceeding under the federal bankruptcy laws
or other insolvency laws is filed and not withdrawn or dismissed within
forty-five (45) days thereafter, or if under the provisions of any law
providing for reorganization or winding up of corporations, any court of
competent jurisdiction assumes jurisdiction, custody or control of Tenant
or any substantial part of its property and such jurisdiction, custody or
control remains in force unrelinquished, unstayed or unterminated for a
period of forty-five (45) days; or
19.1.7. If in any proceeding or action in which Tenant is a party,
a trustee, receiver, agent or custodian is appointed to take charge of
the Premises or Tenant's Property (or has the authority to do so) for the
purpose of enforcing a lien against the Premises or Tenant's Property; or
19.1.8. If Tenant is a partnership or consists of more than one
(1) person or entity, if any partner of the partnership or other person
or entity is involved in any of the acts or events described in Sections
19.1.4. through 19.1.7. above.
19.2. LANDLORD REMEDIES. In the event of Tenant's default hereunder,
then, in addition to any other rights or remedies Landlord may have under any
law or at equity, Landlord shall have the right, at Landlord's option and
without further notice or demand of any kind, to do the following:
19.2.1. Terminate this Lease and Tenant's right to possession of
the Premises and reenter the Premises and take possession thereof, and
Tenant shall have no further claim to the Premises or under this Lease;
or
19.2.2. Continue this Lease in effect, reenter and occupy the
Premises for the account of Tenant, and collect any unpaid Rent or other
charges which have or thereafter become due and payable; or
19.2.3. Reenter the Premises under the provisions of Section
19.2.2., and thereafter elect to terminate this Lease and Tenant's right
to possession of the Premises.
If Landlord reenters the Premises under the provisions of Sections 19.2.1. or
19.2.3. above, Landlord shall not be deemed to have terminated this Lease or the
obligation of Tenant to pay any Rent or other charges thereafter accruing unless
Landlord notifies Tenant in writing of Landlord's election to terminate this
Lease. Acts of maintenance, efforts to relet the Premises or the appointment of
a receiver on Landlord's initiative to protect Landlord's interest under this
Lease shall not constitute a termination of Tenant's right to possession. In the
event of any reentry or retaking of possession by Landlord, Landlord shall have
the right, but not the obligation, to remove all or any part of Tenant's
Property in the Premises and to place such property in storage at a public
warehouse at the expense and risk of Tenant. If Landlord elects to relet the
Premises for the account of Tenant, the rent received by Landlord from such
reletting shall be applied as follows: first, to the payment of any indebtedness
other than Rent due hereunder from Tenant to Landlord; second, to the payment of
any costs of such reletting; third, to the payment of the cost of any
alterations or repairs to the Premises; fourth to the payment of Rent due and
unpaid hereunder; and the balance, if any, shall be held by Landlord and applied
in payment of future Rent as it becomes due. If that portion of rent received
from the reletting which is applied against the Rent due hereunder is less than
the amount of the Rent due, Tenant shall pay the deficiency to Landlord promptly
upon demand by Landlord. Such deficiency shall be calculated and paid monthly.
Tenant shall also pay to Landlord, as soon as determined, any costs and expenses
incurred by Landlord in connection with such reletting or in making alterations
and repairs to the Premises which are not covered by the rent received from the
reletting.
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19.3. DAMAGES RECOVERABLE. Should Landlord elect to terminate this
Lease under the provisions of Section 19.2.1 or 19.2.3 above, Landlord may
recover as damages from Tenant the following:
19.3.1. PAST RENT. The worth at the time of the award of any
unpaid Rent which had been earned at the time of termination including
the value of any Rent that was abated during the Term of the Lease; plus
19.3.2. RENT PRIOR TO AWARD. The worth at the time of the award
of the amount by which the unpaid Rent which would have been earned after
termination until the time of award exceeds the amount of such rental
loss that Tenant proves could have been reasonably avoided; plus
19.3.3. RENT AFTER AWARD. The worth at the time of the award of
the amount by which the unpaid Rent for the balance of the Term after the
time of award exceeds the amount of the rental loss that Tenant proves
could be reasonably avoided; plus
19.3.4. PROXIMATELY CAUSED DAMAGES. Any other amount necessary to
compensate Landlord for all detriment proximately caused by Tenant's
failure to perform its obligations under this Lease or which in the
ordinary course of things would be likely to result therefrom, including,
but not limited to, any costs or expenses (including attorneys' fees),
incurred by Landlord in (a) retaking possession of the Premises, (b)
maintaining the Premises after Tenant's default, (c) preparing the
Premises for reletting to a new tenant, including any repairs or
alterations, and (d) reletting the Premises, including brokers'
commissions.
"The worth at the time of the award" as used in items 19.3.1. and 19.3.2. above,
is to be computed by allowing interest at the maximum rate permitted by law to
be charged by an individual. "The worth at the time of the award" as used in
item 19.3.3. above, is to be computed by discounting the amount at the discount
rate of the Federal Reserve Bank situated nearest to the Premises at the time of
the award plus one percent (1%).
19.4. LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT. If Tenant defaults in
the performance of any of its obligations under this Lease, Landlord may (but
shall not be obligated to), without waiving such default, perform the same for
the account and at the expense of Tenant. Tenant shall pay Landlord all costs of
such performance immediately upon written demand therefor, and if paid at a
later date these costs shall bear interest in accordance with Section 7.
19.5. LANDLORD'S DEFAULT. If Landlord fails to perform any covenant,
condition or agreement contained in this Lease within thirty (30) days after
receipt of Notice from Tenant specifying such default, or, if such default
cannot reasonably be cured within thirty (30) days if Landlord fails to commence
to cure within that thirty (30) day period, then Landlord shall be liable to
Tenant for any damages sustained by Tenant as a result of Landlord's breach;
provided, however, it is expressly understood and agreed that if Tenant obtains
a money judgment against Landlord resulting from any default or other claim
arising under this Lease, that judgment shall be satisfied only out of the
rents, issues, profits, and other income actually received on account of
Landlord's right, title and interest in the Premises, Building or Project, and
no other real, personal or mixed property of Landlord (or of any of the partners
which comprise Landlord, if any), wherever situated, shall be subject to levy to
satisfy such judgment.
19.6. MORTGAGEE PROTECTION. Tenant agrees to send by certified or
registered mail to any first mortgagee or first deed of trust beneficiary of
Landlord whose address has been furnished to Tenant, a copy of any notice of
default served by Tenant on Landlord. If Landlord fails to cure such default
within the time provided for in this Lease, then such mortgagee or beneficiary
shall have such additional time to cure the default as is reasonably necessary
under the circumstances.
19.7. TENANT'S RIGHT TO CURE LANDLORD'S DEFAULT. If, after Notice to
Landlord of default, Landlord (or any first mortgagee or first deed of trust
beneficiary of Landlord) fails to cure the default as provided herein, then
Tenant shall have the right to cure that default at Landlord's expense. Tenant
shall not have the right to terminate this Lease or to withhold, reduce or
offset any amount against any payments of Rent or any other charges due and
payable under this Lease except as otherwise specifically provided herein.
Tenant expressly waives the benefits of any statute now or hereafter in effect
which would otherwise afford Tenant the right to make repairs at Landlord's
expense or to terminate this Lease because of Landlord's failure to keep the
Premises in good order, condition and repair.
20. WAIVER.
No delay or omission in the exercise of any right or remedy of Landlord upon any
default by Tenant shall impair such right or remedy or be construed as a waiver
of such default. The receipt and acceptance by Landlord of delinquent Rent shall
not constitute a waiver of
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any other default; it shall constitute only a waiver of timely payment for the
particular Rent payment involved.
No act or conduct of Landlord, including, without limitation, the acceptance of
keys to the Premises, shall constitute an acceptance of the surrender of the
Premises by Tenant before the expiration of the Term. Only written
acknowledgement from Landlord to Tenant shall constitute acceptance of the
surrender of the Premises and accomplish a termination of this Lease.
Landlord's consent to or approval of any act by Tenant requiring Landlord's
consent or approval shall not be deemed to waive or render unnecessary
Landlord's consent to or approval of any subsequent act by Tenant.
Any waiver by Landlord of any default must be in writing and shall not be a
waiver of any other default concerning the same or any other provision of this
Lease.
21. SUBORDINATION AND ATTORNMENT.
This Lease is and shall be subject and subordinate to all ground or underlying
leases which now exist or may hereafter be executed affecting the Building or
the land upon which the Building is situated, or both, and to the lien of any
mortgages or deeds of trust in any amount or amounts whatsoever now or hereafter
placed on or against the Building or on or against Landlord's interest or estate
therein, or on or against any ground or underlying lease, without the necessity
of the execution and delivery of any further instruments on the part of Tenant
to effectuate such subordination.
If any mortgagee, trustee or ground lessor shall elect to have this Lease prior
to the lien of its mortgage, deed of trust or ground lease, and shall give
written notice thereof to Tenant, this Lease shall be deemed prior to such
mortgage, deed of trust or ground lease, whether this Lease is dated prior or
subsequent to the date of said mortgage, deed of trust, or ground lease, or the
date of the recording thereof. Tenant covenants and agrees to execute and
deliver upon demand, without charge therefor, such further instruments
evidencing such subordination of this Lease to such ground or underlying leases,
and to the lien of any such mortgages or deeds of trust as may be required by
Landlord.
In the event of any foreclosure sale, transfer in lieu of foreclosure or
termination of the lease in which Landlord is lessee, Tenant shall attorn to the
purchaser, transferee or lessor as the case may be, and recognize that party as
Landlord under this Lease, provided such party acquires and accepts the Premises
subject to this Lease.
22. TENANT ESTOPPEL CERTIFICATES.
22.1. LANDLORD REQUEST FOR ESTOPPEL CERTIFICATE. Within ten (10) days
after written request from Landlord, Tenant shall execute and deliver to
Landlord or Landlord's designee, in the form requested by Landlord, a written
statement certifying, among other things, (a) that this Lease is unmodified and
in full force and effect, or is in full force and effect as modified and stating
the modifications; (b) the amount of Base Rent and the date to which Base Rent
and Additional Rent have been paid in advance; (c) the amount of any security
deposited with Landlord; and (d) that Landlord is not in default hereunder or,
if Landlord is claimed to be in default, stating the nature of any claimed
default. Any such statement may be conclusively relied upon by a prospective
purchaser, assignee or encumbrancer of the Premises.
22.2. FAILURE TO EXECUTE. Tenant's failure to execute and deliver such
statement within the time required shall at Landlord's election be a default
under this Lease and shall also be conclusive upon Tenant that: (a) this Lease
is in full force and effect and has not been modified except as represented
by Landlord; (b) there are no uncured defaults in Landlord's performance and
that Tenant has no right of offset, counter-claim or deduction against Rent and
(c) not more than one month's Rent has been paid in advance.
23. NOTICE.
Notice shall be in writing and shall be deemed duly served or given if
personally delivered, sent by certified or registered U.S. Mail, postage prepaid
with a return receipt requested, or sent by overnight courier service, fee
prepaid with a return receipt requested, as follows: (a) if to Landlord, to
Landlord's Mailing Address and to the Building manager, and (b) if to Tenant, to
Tenant's Mailing Address; provided, however, Notices to Tenant shall be deemed
duly served or given if delivered or sent to Tenant at the Premises. Landlord
and Tenant may from time to time by Notice to the other designate another place
for receipt of future Notice. Notwithstanding anything contained herein to the
contrary, any notice from Landlord to Tenant arising from Section 19. of the
Lease shall be served or given in accordance with State laws and shall be the
only notice required.
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24. TRANSFER OF LANDLORD'S INTEREST.
In the event of any sale or transfer by Landlord of the Premises, Building or
Project, and assignment of this Lease by Landlord, Landlord shall be and is
hereby entirely freed and relieved of any and all liability and obligations
contained in or derived from this Lease arising out of any act, occurrence or
omission relating to the Premises, Building, Project or Lease occurring after
the consummation of such sale or transfer, provided the purchaser shall
expressly assume all of the covenants and obligations of Landlord under this
Lease. This Lease shall not be affected by any such sale and Tenant agrees to
attorn to the purchaser or assignee provided all Landlord's obligation hereunder
are assumed by such transferee. If any security deposit or prepaid Rent has been
paid by Tenant, Landlord shall transfer the security deposit or prepaid Rent to
Landlord's successor and upon such transfer, Landlord shall be relieved of any
and all further liability with respect thereto.
25. SURRENDER OF PREMISES.
25.1. CLEAN AND SAME CONDITION. Upon the Expiration Date or earlier
termination of this Lease, Tenant shall peaceably surrender the Premises to
Landlord clean and in the same condition as when received, except for (a)
reasonable wear and tear, (b) loss by fire or other casualty, and (c) loss by
condemnation. Tenant shall remove Tenant's Property no later than the Expiration
Date. If Tenant is required by Landlord to remove any additions, alterations, or
improvements under Section 12.3., Tenant shall complete such removal no later
than the Expiration Date. Any damage to the Premises, including any structural
damage, resulting from removal of any addition, alteration, or improvement made
pursuant to Section 12.3. and/or from Tenant's use or from the removal of
Tenant's Property pursuant to Section 13.2. shall be repaired no later than the
Expiration Date by Tenant at Tenant's sole cost and expense. On the Expiration
Date Tenant shall surrender all keys to the Premises.
25.2. FAILURE TO DELIVER POSSESSION. If Tenant fails to vacate and
deliver possession of the Premises to Landlord on the expiration or sooner
termination of this Lease as required by Section 25.1., Tenant shall indemnify
and hold Landlord harmless from all claims, liabilities and damages resulting
from Tenant's failure to vacate and deliver possession of the Premises,
including, without limitation, claims made by a succeeding tenant resulting from
Tenant's failure to vacate and deliver possession of the Premises and rental
loss which Landlord suffers.
25.3. PROPERTY ABANDONED. If Tenant abandons or surrenders the
Premises, or is dispossessed by process of law or otherwise, any of Tenant's
Property left on the Premises shall be deemed to be abandoned, and, at
Landlord's option, title shall pass to Landlord under this Lease as by a ▇▇▇▇ of
sale. If Landlord elects to remove all or any part of such Tenant's Property,
the cost of removal, including repairing any damage to the Premises or Building
caused by such removal, shall be paid by Tenant.
26. HOLDING OVER.
If after expiration of the Term, Tenant remains in possession of the Premises
with Landlord's permission (express or implied), Tenant shall become a tenant
from month to month only, upon all the provisions of this Lease (except as to
the term and Base Rent), but the Monthly Installments of Base Rent payable by
Tenant shall be increased to one hundred fifty percent (150%) of the Monthly
Installments of Base Rent payable by Tenant at the expiration of the Term.
Such monthly rent shall be payable in advance on or before the first day of
each month. If either party desires to terminate such month to month tenancy,
it shall give the other party not less than thirty (30) days advance Notice
of the date of termination.
27. RULES AND REGULATIONS.
Tenant agrees to comply with (and cause its agents, contractors, employees and
invitees to comply with) the rules and regulations attached hereto as Exhibit
"E" and with such reasonable modifications thereof and additions thereto as
Landlord may from time to time make. Landlord shall not be liable for any
violation of said rules and regulations by other tenants or occupants of the
Building or Project.
28. CERTAIN RIGHTS RESERVED BY LANDLORD.
Landlord reserves the following rights, exercisable without (a) liability to
Tenant for damage or injury to property, person or business; (b) causing an
actual or constructive eviction from the Premises; or (c) disturbing Tenant's
use or possession of the Premises:
28.1. To name the Building and Project and to change the name or street
address of the Building or Project;
17
28.2. To install and maintain all signs on the exterior and interior of
the Building and Project;
28.3. To have pass keys to the Premises and all doors within the
Premises, excluding Tenant's files, vaults and safes;
28.4. To stripe or restripe, resurface, enlarge, change the grade or
drainage of and control access to the parking lot; to assign and reassign spaces
for the exclusive or nonexclusive use of tenants (including Tenant); and to
locate or relocate parking spaces assigned to Tenant;
28.5. At any time during the Term, and on prior telephonic notice to
Tenant, to inspect the Premises, and to show the Premises to any person having
an existing or prospective interest in the Project or Landlord, and during the
last six months of the Term, to show the Premises to prospective tenants
thereof; and
28.6. To enter the Premises for the purpose of making inspections,
repairs, alterations, additions or improvements to the Premises or the Building
(including, without limitation, checking, calibrating, adjusting or balancing
controls and other parts of the HVAC system), and to take all steps as may be
necessary or desirable for the safety, protection, maintenance or preservation
of the Premises or the Building or Landlord's interest therein, or as may be
necessary or desirable for the operation or improvement of the Building or in
order to comply with laws, orders or requirements of governmental or other
authority. Landlord agrees to use its best efforts (except in an emergency) to
minimize interference with Tenant's business in the Premises in the course of
any such entry.
29. ADVERTISEMENTS AND SIGNS.
Tenant shall not affix, paint, erect or inscribe any sign, projection, awning,
signal or advertisement of any kind to any part of the Premises, Building or
Project, including without limitation the inside or outside of windows or doors,
without the prior written consent of Landlord. Landlord shall have the right to
remove any signs or other matter installed without Landlord's permission,
without being liable to Tenant by reason of such removal, and to charge the cost
of removal to Tenant as Additional Rent hereunder, payable within ten (10) days
of written demand by Landlord.
30. RELOCATION OF PREMISES.
Landlord shall have the right to relocate the Premises to another part of the
Building in accordance with the following:
30.1. The new premises shall be substantially the same in size,
dimensions, configuration, decor and nature as the Premises described in this
Lease, and if the relocation occurs after the Commencement Date, shall be placed
in that condition by Landlord at its cost.
30.2. Landlord shall give Tenant at least thirty (30) days Notice of
Landlord's intention to relocate the Premises.
30.3. As nearly as practicable, the physical relocation of the Premises
shall take place on a weekend and shall be completed before the following
Monday. If the physical relocation has not been completed in that time, Base
Rent shall ▇▇▇▇▇ in full from the time the physical relocation commences to the
time it is completed. Upon completion of such relocation, the new Premises shall
become the Premises under this Lease.
30.4. All reasonable costs incurred by Tenant as a result of the
relocation shall be paid by Landlord.
30.5. If the new premises are smaller than the Premises as it existed
before the relocation, Base Rent shall be reduced proportionately.
30.6. The parties hereto shall immediately execute an amendment to this
Lease setting forth the relocation of the Premises and the reduction of Base
Rent, if any.
31. GOVERNMENT ENERGY OR UTILITY CONTROLS.
In the event of imposition of federal, state or local government controls,
rules, regulations, or restrictions on the use or consumption of energy or other
utilities during the Term, both Landlord and Tenant shall be bound thereby. In
the event of a difference in interpretation by Landlord and Tenant of any such
controls, the interpretation of Landlord shall prevail and Landlord shall have
the right to enforce compliance therewith, including the right of entry into the
Premises to effect compliance.
18
32. FORCE MAJEURE.
Any prevention, delay or stoppage of work to be performed by Landlord or Tenant
which is due to strikes, labor disputes, inability to obtain labor, materials,
equipment or reasonable substitutes therefor, acts of God, governmental
restrictions or regulations or controls, judicial orders, enemy or hostile
government actions, civil commotion, fire or other casualty, or other causes
beyond the reasonable control of the party obligated to perform hereunder, shall
excuse performance of the work by that party for a period equal to the duration
of that prevention, delay or stoppage. Nothing in this Section 32. shall excuse
or delay Tenant's obligation to pay Rent or other charges under this Lease.
33. BROKERAGE FEES.
Tenant warrants and represents that it has not dealt with any real estate broker
or agent in connection with this Lease or its negotiation except the Listing and
Leasing Agent(s) set forth in Section 2.9. of this Lease. Tenant shall indemnify
and hold Landlord harmless from any cost, expense or liability (including costs
of suit and reasonable attorneys' fees) for any compensation, commission or fees
claimed by any other real estate broker or agent in connection with this Lease
or its negotiation by reason of any act of Tenant.
34. QUIET ENJOYMENT.
Tenant, upon payment of Rent and performance of all of its obligations under
this Lease, shall peaceably, quietly and exclusively enjoy possession of the
Premises without unwarranted interference by Landlord or anyone acting or
claiming through Landlord, subject to the terms of this Lease and to any
mortgage, lease, or other agreement to which this Lease may be subordinate.
35. MISCELLANEOUS.
35.1. ACCORD AND SATISFACTION; ALLOCATION OF PAYMENTS. No payment by
Tenant or receipt by Landlord of a lesser amount than the Rent provided for in
this Lease shall be deemed to be other than on account of the earliest due Rent,
nor shall any endorsement or statement on any check or letter accompanying any
check or payment as Rent be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the balance of the Rent or pursue any other remedy provided for in this Lease.
In connection with the foregoing, Landlord shall have the absolute right in its
sole discretion to apply any payment received from Tenant to any account or
other payment of Tenant then not current and due or delinquent.
35.2. ADDENDA. If any provision contained in an addendum to this Lease
is inconsistent with any other provision herein, the provision contained in the
addendum shall control, unless otherwise provided in the addendum.
35.3. ATTORNEYS' FEES. If any action or proceeding is brought by either
party against the other pertaining to or arising out of this Lease, the finally
prevailing party shall be entitled to recover all costs and expenses, including
reasonable attorneys' fees, incurred on account of such action or proceeding.
35.4. CAPTIONS AND SECTION NUMBERS. The captions appearing in the body
of this Lease have been inserted as a matter of convenience and for reference
only and in no way define, limit or enlarge the scope or meaning of this Lease.
All references to Section numbers refer to Sections in this Lease.
35.5. CHANGES REQUESTED BY LENDER. Neither Landlord or Tenant shall
unreasonably withhold its consent to changes or amendments to this Lease
requested by the lender on Landlord's interest, so long as such changes do not
alter the basic business terms of this Lease or otherwise materially diminish
any rights or materially increase any obligations of the party from whom consent
to such change or amendment is requested.
35.6. CHOICE OF LAW. This Lease shall be construed and enforced in
accordance with the Laws of the State.
35.7. CONSENT. Notwithstanding anything contained in this Lease to the
contrary, Tenant shall have no claim, and hereby waives the right to any claim
against Landlord for money damages, by reason of any refusal, withholding or
delaying by Landlord of any consent, approval or statement of satisfaction, and,
in such event, Tenant's only remedies therefor shall be an action for specific
performance, injunction or declaratory judgment to enforce any right to such
consent, approval or statement of satisfaction.
19
35.8. CORPORATE AUTHORITY. If Tenant is a corporation, each individual
signing this Lease on behalf of Tenant represents and warrants that he is duly
authorized to execute and deliver this Lease on behalf of the corporation, and
that this Lease is binding on Tenant in accordance with its terms. Tenant shall,
at Landlord's request, deliver a certified copy of a resolution of its board of
directors authorizing such execution.
35.9. COUNTERPARTS. This Lease may be executed in multiple
counterparts, all of which shall constitute one and the same Lease.
35.10. EXECUTION OF LEASE; NO OPTION. The submission of this Lease to
Tenant shall be for examination purposes only and does not and shall not
constitute a reservation of or option for Tenant to Lease, or otherwise create
any interest of Tenant in the Premises or any other premises within the Building
or Project. Execution of this Lease by Tenant and its return to Landlord shall
not be binding on Landlord, notwithstanding any time interval, until Landlord
has in fact signed and delivered this Lease to Tenant.
35.11. FURNISHING OF FINANCIAL STATEMENTS; TENANT'S REPRESENTATIONS. In
order to induce Landlord to enter into this Lease, Tenant agrees that it shall
promptly furnish Landlord, from time to time, upon Landlord's written request,
with financial statements reflecting Tenant's current financial condition.
Tenant represents and warrants that all financial statements, records and
information furnished by Tenant to Landlord in connection with this Lease are
true, correct and complete in all respects.
35.12. FURTHER ASSURANCES. The parties agree to promptly sign all
documents reasonably requested to give effect to the provisions of this Lease.
35.13. PRIOR AGREEMENTS; AMENDMENTS. This Lease and the schedules and
riders attached, if any, form a part of this Lease together with the rules and
regulations set forth on Exhibit "E" attached hereto, and set forth all the
covenants, promises, assurances, agreements, representations, conditions,
warranties, statements, and understandings (Representations) between the
Landlord and Tenant concerning the Premises and the Building and Project, and
there are no Representations, either oral or written, between them other than
those in this Lease.
This Lease supersedes and revokes all previous negotiations, arrangements,
letters of intent, offers to lease, lease proposals, brochures,
representations, and information conveyed, whether oral or in writing, between
the parties hereto or their respective representatives or any other person
purporting to represent the Landlord or Tenant. Tenant acknowledges that it has
not been induced to enter into this Lease by any Representations not set forth
in this Lease, and that it has not relied on any such Representations. Tenant
further acknowledges that no such Representations shall be used in the
interpretation or construction of this Lease, and that Landlord shall have no
liability for any consequences arising as a result of any such Representations.
Except as herein otherwise provided, no subsequent alteration, amendment,
change, or addition to this Lease shall be binding upon Landlord or Tenant
unless in writing and signed by each of the parties.
35.14. RECORDING. Tenant shall not record this Lease without the prior
written consent of Landlord. Tenant, upon the request of Landlord, shall execute
and acknowledge a short form memorandum of this Lease for recording purposes.
35.15. SEVERABILITY. A final determination by a court of competent
jurisdiction that any provision of this Lease is invalid shall not affect the
validity of any other provision, and any provision so determined to be invalid
shall, to the extent possible, be construed to accomplish its intended effect.
35.16. SUCCESSORS AND ASSIGNS. This Lease shall apply to and bind the
heirs, personal representatives, and successors and assigns of the parties.
35.17. TIME OF THE ESSENCE. Time is of the essence of this Lease.
20
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
date first set forth on Page 1.
LANDLORD:
GLENBOROUGH FUND I, LIMITED PARTNERSHIP,
a Delaware limited partnership
By: GRT Financial, Inc.,
a Delaware corporation
Its General Partner
By:
----------------------------------
Its
-----------------------------
TENANT:
MIDWEST MEDICAL INSURANCE HOLDING COMPANY
a MINNESOTA CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Its President
-----------------------------
By:
----------------------------------
Its
-----------------------------
21
ADDENDUM TO LEASE BETWEEN
Glenborough Fund I, L.P. (Landlord)
-----------------------------------
Midwest Medical Insurance
and Holding Company (Tenant)
--------------------------------
DATED , 1997
------------------
TELECOMMUNICATIONS
Section 36.1. adds to and amends the Lease as follows:
(a) Telecommunications Companies. Tenant and Tenant's telecommunications
companies, including but not limited to local exchange telecommunications
companies and alternative access vendor services companies
("Telecommunications Companies"), shall have no right of access to and within
the lands or Buildings comprising Landlord's real property for the
installation and operation of telecommunications systems including but not
limited to voice, video, data, and any other telecommunications services
provided over wire, fiber optic, microwave, wireless and any other
transmission systems, for part or all of Tenant's telecommunications within
the Building and from the Building to any other location (hereinafter
collectively referred to as "Telecommunications Systems"), without Landlord's
prior written consent, which such consent shall not be unreasonably withheld.
Notwithstanding the foregoing, Tenant may perform any installation, repair
and maintenance to its Telecommunications Systems without Landlord's consent
where the equipment being installed, repaired or maintained is not located in
an area in which the Telecommunications Systems or any part thereof of any
other tenant, or of Landlord, are located.
(b) Tenant's Obligations. If at any time, Tenant's Telecommunications
Companies or appropriate governmental authorities relocate the point of
demarcation from the location of Tenant's telecommunications equipment in
Tenant's telephone equipment room or other location, to some other point, or in
any other manner transfer any obligations or liabilities for telecommunications
to Landlord or Tenant, whether by operation of law or otherwise, upon Landlord's
election, Tenant shall, at Tenant's sole expense and cost: (1) within thirty
(30) days after notice is first given to Tenant of Landlord's election, cause to
be completed by an appropriate telecommunications engineering entity approved in
advance in writing by Landlord, all details of the Telecommunications Systems
serving Tenant in the Building which details shall include all appropriate
plans, schematics, and specifications; and (2) immediately undertake the
operation, repair and maintenance of the Telecommunications Systems serving
Tenant in the Building; and (3) upon the termination of the Lease for any
reason, or upon expiration of the Lease, immediately effect the complete removal
of all or any portion or portions of the Telecommunications Systems serving
Tenant in the Building and repair any damage caused thereby (to Landlord's
reasonable satisfaction).
Prior to the commencement of any alterations, additions, or modifications
to the Telecommunications Systems serving Tenant in the Building, except for
minor changes, Tenant shall first obtain Landlord's prior written consent by
written request accompanied by detailed plans, schematics, and specifications
showing all alterations,
1
additions and modifications to be performed, with the time schedule for
completion of the work, and the identity of the entity which will perform the
work, for which, except as otherwise provided in Paragraph (c) below, Landlord
may withhold consent in its sole and absolute discretion.
(c) Landlord's Consent. Without in any way limiting Landlord's right to
withhold its consent to a proposed request for access, or for alterations,
additions or modifications of the Telecommunications Systems serving Tenant in
the Building, Landlord shall consider the following factors in making its
determination:
(i) If the proposed actions of Tenant and its Telecommunications
Companies will impose new obligations on Landlord, or expose Landlord to
liability of any nature or description, or increase Landlord's insurance
premiums for the Building, or create liabilities for which Landlord is
unable to obtain insurance protection, or imperil Landlord's insurance
coverage;
(ii) If Tenant's Telecommunications Companies are unwilling to pay
reasonable monetary compensation for the use and occupation of the Building
for the Telecommunications Systems;
(iii) If Tenant and its Telecommunications Companies would cause any
work to be performed that would adversely affect the land and Building or
any space in the Building in any manner;
(iv) If Tenant encumbers or mortgages its interest in any
telecommunications wiring or cabling; or
(v) If Tenant is in default under this Lease.
(d) Indemnification. Tenant shall indemnify and hold harmless Landlord and
its employees, agents, officers, and directors from and against any claims,
demands, penalties, fines, liabilities, settlements, damages, costs, or expenses
of any kind or nature, known or unknown, contingent or otherwise, arising out of
or in any way related to the acts and omissions of Tenant, Tenant's officers,
directors, employees, agents, contractors, subcontractors, subtenants, and
invitees with respect to (1) any Telecommunications Systems serving Tenant in
the Building which are on, from, or affecting the land and Building; (2) any
personal injury (including wrongful death) or property damage (real or personal)
arising out of or related to any Telecommunications Systems serving Tenant in
the Building which are on, from, or affecting the Building; (3) any lawsuit
brought or threatened, settlement reached, or governmental order relating to
such Telecommunications Systems; (4) any violations of laws, orders,
regulations, requirements, or demands of governmental authorities, or any
reasonable policies or requirements of Landlord, which are based upon or in any
way related to such Telecommunications Systems, including, without limitation,
attorney and consultant fees, court costs, and litigation expenses. This
indemnification and hold harmless agreement will survive this Lease. Under no
circumstances shall Landlord be required to maintain, repair or replace any
Building systems or any portions thereof, when such maintenance, repair or
replacement is caused in whole or in part by the failure of any such system or
any portions thereof, and/or the requirements of any governmental authorities.
Under no circumstances shall Landlord be liable for interruption in
telecommunications services to Tenant or any other entity affected, for
electrical spikes
2
or surges, or for any other cause whatsoever, whether by Act of God or
otherwise, even if the same is caused by the ordinary negligence of Landlord,
Landlord's contractors, subcontractors, or agents or other tenants, subtenants,
or their contractors, subcontractors, or agents.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Addendum to Lease as
of the date first above written.
LANDLORD:
Glenborough Fund I, L.P.
------------------------------------
a Delaware Limited Partnership
------------------------------------
GRT Financial, Inc.
--------------------------------
a Delaware corporation
--------------------------------
Its General Partner
--------------------------------
By:
----------------------------------
Its
-----------------------------
TENANT:
Midwest Medical Insurance Holding Company,
-----------------------------------------
a Minnesota corporation
-----------------------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Its President
-------------------------------
3
EXHIBIT A
[THIRD FLOOR PLAN]
EXHIBIT B
[REGENCY SITE]
EXHIBIT "C"
REGENCY WESTPOINTE
TENANT IMPROVEMENT BUILDING STANDARDS
CARPET: Standard carpeting budget of $12.00 per square yard installed.
BASE: Vinyl base throughout.
WALLS: All interior partition walls to be 25 ga. 3-5/8" metal studs and
24" o.c., 5/8" gypsum board both sides, insulated.
WALL All walls to be painted or covered in available
TREATMENTS: wallcovering to match existing.
LIGHTING: 2' X 4' recessed florescent light fixtures to provide 40 foot
candles of light.
MECHANICAL: Run all ductwork, diffusers, returns to each office, to deliver
conditioned air adequate for heating and cooling space with above
mentioned lighting and normal equipment and occupancy.
DOORS: All doors will be 3' X 6'8" solid core.
FRAMES: All individual office door frames will be wood.
HARDWARE: All hardware to be Schlage D-50-PD or equal Series, oil rubbed
bronze.
SPRINKLER: To meet code requirements for suite.
ELECTRICAL: Standard electrical to meet code requirements.
CEILING: 2' X 4' suspended acoustical ceilings.
RESTROOMS: Public restrooms.
DIRECTORY: To provide building standard directory strip and entry numerals.
EXHIBIT "D"
WORK LETTER AND DRAWING
Landlord shall contribute an allowance of no more than Six Thousand Five Hundred
Dollars ($6,500.00) toward the cost of construction of the Tenant Improvements
("Tenant Improvement Allowance"). The Tenant will be responsible for the balance
of the Tenant Improvements, which shall not exceed Twenty One Thousand Dollars
($21,000.00) without the written approval of the Tenant. Landlord shall pay the
Tenant Improvement Allowance directly to any architects, contractors and/or
subcontractors, hired by the Landlord, performing the Tenant Improvements in the
Premises. If the actual cost of completing the Tenant Improvements is less than
the Tenant Improvement Allowance, then Landlord shall retain the difference and
no credit shall be due Tenant. Any cost of construction of Tenant Improvements
in excess of the Tenant Improvement Allowance shall be paid in cash by Tenant to
Landlord (as "Additional Rent") within ten (10) days of receipt of Landlord's
invoice. The Tenant Improvements are shown on the drawing below and include the
following:
1. Demo walls and construct new walls, as indicated on the drawing below.
2. Furnish and install 7' of upper and lower cabinets with counter in
kitchenette.
3. Install new ceiling tile in open area. Paint all grid throughout the
Premises.
4. Relocate 2 existing doors.
5. Wallpaper all walls. Landlord to approve selection. Paint paneled wall in
northeast office.
6. Install new carpet and vinyl base throughout. Carpet allowance of $12.00
per square yard installed.
7. Electrical as indicated.
8. HVAC will be adjusted to new floor plan to allow for adequate HVAC
distribution.
9. Relocate existing sink to new location.
[FLOOR PLAN]
EXHIBIT E
RULES AND REGULATIONS
REGENCY WESTPOINTE
1. Building Hours: 8:00 a.m. - 5:00 p.m. WEEKDAYS
Glenborough Corporation recognizes the following holidays:
President's Day
Memorial Day
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Day
Independence Day
Labor Day
Thanksgiving
Day after Thanksgiving
Christmas
New Year's Day
Day after New Year's Day
2. Overtime heating, ventilating, and air conditioning is billed on an hourly
basis at Landlord's cost for supplying this service.
3. The sidewalks, passages, exits, and entrances shall not be obstructed by
Tenant or used for any purpose other than for ingress to and egress from
their respective premises. The Landlord shall in all cases retain the right
to control and prevent access by all persons whose presence, in the
judgment of the landlord, shall be prejudicial to the safety, character,
reputation, and interest of the Building and its Tenants, provided that
nothing herein contained shall be construed to prevent such access to
persons with whom the Tenants normally deal in the ordinary course of
Tenant's business, unless such persons are engaged in illegal activities.
No Tenant and no employees or invitees of any Tenant shall go upon the roof
of the Building.
4. The directory of the Building will be provided exclusively for the display
of the name and location of Tenant only, and Landlord reserves the right to
exclude any other names thereon.
5. No signs shall be attached to or placed in windows. No awning or shade
shall be affixed or installed over or in the windows or the exterior of the
Premises. the windows of the Building shall not be covered or obstructed by
Tenant.
6. The toilets and urinals shall not be used for any purpose other than those
for which they were constructed and no rubbish, newspapers or other
substances of any kind shall be thrown into them. Tenants shall not
excessively ▇▇▇▇, drive nails, screw or drill into, paint, nor in any way
deface the walls, ceilings, partitions or floors. The expense of any
breakage, stoppage, or damage resulting from a violation of this rule shall
be borne by the Tenant who has caused such breakage, stoppage, or damage.
7. Electric wiring of any kind shall be introduced and connected as directed
by landlord, and no boring or cutting for wires will be allowed except with
the consent of Landlord. The location of telephones, call boxes, etc.,
shall be prescribed by Landlord.
1
Rules and Regulations
Regency Westpointe
8. Landlord reserves the right to prescribe the weight and position of all
safes and other heavy equipment so as to distribute properly the weight
thereof and to prevent any unsafe condition from arising. Safes or other
heavy objects shall, if considered necessary by Landlord, stand on wood
strips of such thickness as is necessary to properly distribute the weight.
Landlord will be responsible for any loss or damage to any such safe or
property shall be repaired at the expense of Tenant.
9. There shall not be used in any space, or in the public halls of the
Building, either by Tenant or others, any hand trucks, except those
equipped with rubber tires and side guards. All desks must have plastic
chair mats under the desk chairs.
10. No additional lock or locks shall be placed by Tenants on any door in the
Building unless written consent of landlord shall have first been obtained.
Two keys will be furnished by Landlord for entry door or doors only, and
any additional keys required must be obtained from landlord, at Tenant's
cost, and duplicate key made. The Tenant, upon termination of the tenancy,
shall deliver to the landlord the keys of the offices, rooms, and toilet
rooms which shall have been furnished, or shall pay the landlord the cost
of replacing same or changing the lock or locks opened by such lost key if
Landlord deems it necessary to make such changes.
11. The carrying in or out of freight, furniture, or bulky matter of any
description, must take place during such hours as Landlord may from time to
time reasonably determine. The installation and moving of such property
shall be made upon previous notice to the superintendent of the Building,
but Landlord shall not be responsible for loss of or damage to such
property, from any cause.
12. Tenant and Tenant's officers, agents, and employees shall not make or
permit any loud, unusual, or improper noises, nor interfere in any way with
other Tenants or those having business with them, nor bring into nor keep
any animal or bird, or any bicycle, automobile, or other vehicle, except
such vehicles as they are permitted to park in the parking lot, and shall
park in the areas designated from time to time for employee parking.
13. Tenant shall not employ any person or persons for the purpose of cleaning
the Premises unless otherwise agreed to by Landlord. Except with written
consent of landlord, no person other than those approved by Landlord shall
be permitted to enter the Building for the purpose of cleaning same. Tenant
shall not cause any unnecessary labor by reason of Tenant's carelessness or
indifference in the preservation of good order and cleanliness. Landlord
shall in no way be responsible to Tenant for any loss of property on the
premises, however, occurring, or for any damage done to the effects of
Tenant by the janitor or any other employee or any other person. Janitor
service shall include ordinary dusting and cleaning by the janitor assigned
to such work and shall not include cleaning of carpets or rugs, except
normal vacuuming, or moving of furniture and other special services.
14. No machinery of any kind will be allowed in the Premises without the
written consent of Landlord. This shall not apply, however, to customary
office equipment or trade fixtures or package handling equipment.
15. No aerial shall be erected on the roof or exterior walls of the Premises,
or on the grounds, without in each instance, the written consent of
Landlord.
2
Rules and Regulations
Regency Westpointe
16. Tenant shall not lay linoleum, tile, carpet, or other similar floor
covering so that the same shall be affixed to the floor of the Premises in
any manner, except as approved by Landlord. The expense of repairing any
damage resulting from a violation of this rule or removal of any floor
covering shall be borne by the tenant by whom, or by whose contractors,
employees, or invitees, the damage shall have been caused.
17. All garbage, including wet garbage, refuse, or trash shall be placed by the
Tenant in the receptacles provided by the Landlord for the purpose.
18. No vending machine or machines of any description shall be installed,
maintained, or operated upon the Premises without the written consent of
Landlord.
19. Landlord shall have the right, exercisable without notice and without
liability to Tenant, to change the name and the street address of the
Building of which the premises are a part.
20. Tenant agrees that it shall comply with all fire and security regulations
that may be issued from time to time by Landlord, and Tenant also shall
provide Landlord with the name of all designated responsible employee to
represent Tenant in all matters pertaining to such fire or security
regulations.
21. Tenant shall see that the doors of the Premises are closed and securely
locked before leaving the Building and must observe strict care and caution
that all water faucets or water apparatus are entirely shut off before
Tenant or Tenant's employees leave the Building, and that all electricity
shall be likewise carefully shut off, so as to prevent waste or damage, and
for any default or carelessness Tenant shall make good all injuries
sustained by Tenant, other tenants, or occupants of the Building. Landlord
reserves the right to close and keep locked all entrances and exit doors of
the Building before and after the normal hours of operation, and during
such further hours as Landlord may deem advisable for the adequate
protection of said Building and the property of its tenants.
22. The requirements of Tenant will be attended to only upon application at the
Building Office. Employees of landlord shall not perform any work or
anything outside of their regular duties unless under special instructions
from Landlord, and no employees will admit any person (Tenant or otherwise)
to any office without specific instructions from Landlord.
23. Landlord reserves the right by written notice to Tenant to add to, rescind,
alter, or waive these rules and regulations at any time prescribed for the
Building when, in Landlord's reasonable judgment, it is necessary,
desirable or proper for the best interest of the Building and its Tenants.
24. Tenants shall not disturb, solicit, or canvass any occupant of the Building
and shall cooperate to prevent same.
25. Regency Westpointe has been designated a "Smoke Free" building.
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Rules and Regulations
Regency Westpointe
All city and county ordinance shall be observed by Tenants in the use of this
Building and leased Premises.
It is understood and agreed between Tenant and Landlord that no assent or
consent to any waiver of any part hereof by Landlord in spirit or letter shall
be deemed or taken as made except when the same is done in writing and attached
to or endorsed hereon by Landlord.
In the event of any conflict between these rules and regulations or any further
or modified rules and regulations from time to time issued by Landlord and the
lease provisions, the Lease provisions shall govern and control.
GLENBOROUGH FUND I
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