Exhibit 10.8
STANDARD FORM
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INDUSTRIAL BUILDING LEASE
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(MULTI-TENANT)
1. BASIC TERMS. THIS SECTION 1 CONTAINS THE Basic Terms of this Lease
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between Landlord and Tenant, named below. Other Sections of the Lease referred
to in this SECTION 1 explain and define the Basic Terms and are to be read in
conjunction with the Basic Terms.
1.1. Date of Lease: _____________________ (for Landlord's
completion)
1.2. Landlord: First Industrial Development Services, Inc., a
Maryland corporation
1.3. Tenant: DATACALL TECHNOLOGIES
1.4. Premises: Approximately 2,240 rentable square feet in the
building commonly known as
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇-▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the
"BUILDING").
1.5. Property: See EXHIBIT A.
1.6. Lease Term: Three (3) years Three (3) days ("TERM"),
commencing March 29, 2005 ("COMMENCEMENT DATE") and ending March
3 1 2008, subject to Section 2.3 below, ("EXPIRATION DATE").
1.7. Permitted Uses: (See SECTION 4.1) SOFTWARE AND TECHNOLOGIES
PROVIDER.
1.8. TENANT'S GUARANTOR: None.
1.9. Brokers:
(A) Tenant's Broker: None.
(B) Landlord's Broker: First Industrial Realty
Trust, Inc. (▇▇▇▇▇ ▇▇▇▇▇▇)
1.10. Security/Damage Deposit: (See Section 4.4) $1,120.00
1.11. Initial Estimated Additional Rent Payable by Tenant:
$333.76 per month
1.12. Tenant's Proportionate Share: 1.44% of the Project.
1.13. Exhibits to Lease: The following exhibits are attached to
and made a part of this Lease.
(A, A-I, B, C, D, E, F, G & H)
2. LEASE OF PREMISES; RENT.
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2.1. LEASE OF PREMISES FOR LEASE TERM. Landlord hereby leases the
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Premises to Tenant, and Tenant hereby rents the Premises from Landlord, for
the Term and subject to the conditions of this Lease.
2.2. TYPES OF RENTAL PAYMENTS. Tenant shall pay net base rent to
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Landlord in monthly installments, in advance, on the first day of each and
every calendar month during the Term of this Lease (the "BASE RENT") in the
amounts and for the periods set forth below:
LEASE PERIOD MONTHLY NET BASE ESTIMATED TOTAL ESTIMATED
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RENT ADDITIONAL RENT MONTHLY RENT
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March 29, 2005 - March 31, 2005 $0.00 $0.00 $0.00
April 1, 2005 - March 31, 2006 $786.24 $333.76 $1,120.00
April 1, 2006 - March 31, 2008 $831.04 $333.76 $1,164.80
Tenant shall also pay Tenant's Proportionate Share (as set forth in Section
1.12) of Operating Expenses (as hereinafter defined), Tenant's Proportionate
Share of any and all Reserve Expenses (as hereinafter defined) and any other
amounts owed by Tenant hereunder [collectively, "ADDITIONAL RENT"]. In the event
any monthly installment of Base Rent or Additional Rent, or both, is not paid
within 10 days of the date when due, a late charge in an amount equal to 5% of
the then delinquent installment of Base Rent and/or Additional Rent [the "LATE
CHARGE"; the Late Charge, Default Interest (as defined in Section 22.3 below),
Base Rent and Additional Rent shall collectively be referred to as "RENT"] shall
be paid by Tenant to Landlord, FR Development Services, Inc., ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ or if sent by overnight courier,
FR Development Services, Inc., ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., Receipt & Dispatch - ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ #▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: FR Development Services, Inc.,
Suite 1066 (or such other entity designated as Landlord's management agent, if
any, and if Landlord so appoints such a management agent, the "Agent"), or
pursuant to such other directions as Landlord shall designate in this Lease or
otherwise in writing.
2.3. COVENANTS CONCERNIN2 RENTAL PAYMENTS. Tenant shall pay the Rent
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promptly when due, without notice or demand, and without any abatement,
deduction or setoff, except as may otherwise be expressly and specifically
provided in this Lease. No payment by Tenant, or receipt or acceptance by
Agent or Landlord, of a lesser amount than the correct Rent shall be deemed
to be other than a payment on account, nor shall any endorsement or
statement on any check or letter accompanying any payment be deemed an
accord or satisfaction, and Agent or Landlord may accept such payment
without prejudice to its right to recover the balance due or to pursue any
other remedy available to Landlord. If the Commencement Date occurs on a
day other than the first day of a calendar month, the Rent due for the
first calendar month of the Term shall be prorated on a per diem basis
(based on a 360 day, 12 month year) and paid to Landlord on the
Commencement Date, and the Term will be extended to terminate on the last
day of the calendar month in which the Expiration Date stated in Section
1.6 occurs.
3. OPERATING EXPENSES.
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3.1. DEFINITIONAL TERMS RELATING TO ADDITIONAL RENT. For purposes of
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this Section and other relevant provisions of the Lease:
3.1.1. OPERATING EXPENSES. THE term "OPERATING EXPENSES" shall mean all
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costs and expenses paid or incurred with respect to the ownership, repair,
replacement, restoration, maintenance and operation of the Property, including,
without limitation, the following: (i) services provided directly by employees
of Landlord or Agent in connection with the operation, maintenance or rendition
of other services to or for the Property; (ii) to the extent not separately
metered, billed, or furnished, all charges for utilities and services furnished
to either or both of the Property and the Premises (including, without
limitation, the Common Areas [as hereinafter defined]), together with any taxes
on such utilities; (iii) all premiums for casualty, workers' compensation,
liability, boiler, flood and all other types of insurance provided by Landlord
and relating to the Property, all third party administrative costs incurred in
connection with the procurement and implementation of such insurance policies,
and all deductibles paid by Landlord pursuant to insurance policies required to
be maintained by Landlord under this Lease; (iv) the cost of all supplies,
tools, materials and equipment utilized in the ownership and operation of the
Property, and sales and other taxes thereon; (v) amounts charged (including,
without limitation, those costs and expenses set forth in Section 13.2(i) below)
by any or all of contractors, material men and suppliers for services, materials
and supplies furnished to Landlord in connection with any or all of the
operation, repair and maintenance of any part of the Property (together with a
reasonable overhead and administrative fee to Landlord), including, without
limitation, the structural elements of the Property and the Common Areas; (vi)
management fees to Landlord or Agent or other persons or management entities
actually involved in the management and operation of the Property; (vii) any
capital improvements made by, or on behalf of, Landlord to the Property that are
either or both (a) designed to reduce Operating Expenses and (b) required to
keep the Property in compliance with all governmental laws, rules and
regulations applicable thereto, from time to time, the cost of which capital
improvements shall be reasonably amortized by Landlord over the useful life of
the improvement, in accordance with generally accepted accounting principles;
(viii) all professional fees incurred in connection with the operation,
management and maintenance of the Property; and (ix) Taxes, as hereinafter
defined in Section 3.1.2.
3.1.2. TAXES. The term "Taxes," as referred to in Section
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3.l.1(ix) above shall mean (i) all governmental taxes,
assessments, fees and charges of every kind or nature (other than
Landlord's income taxes), whether general, special, ordinary or
extraordinary, due at any time or from time to time, during the
Term and any extensions thereof, in connection with the
ownership, leasing, or operation of the Property, or of the
personal property and equipment located therein or used in
connection therewith; and (ii) any reasonable expenses incurred
by Landlord in contesting such taxes or assessments and/or the
assessed value of the Property. For purposes hereof, Tenant shall
be responsible for any Taxes that are assessed, become a lien, or
accrue during any Operating Year, which obligation shall survive
the termination or expiration of this Lease.
3.1.3. OPERATING YEAR. The term "OPERATING YEAR" shall mean the
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calendar year commencing January 1st of each year (including the
calendar year within which the Commencement Date occurs) during
the Term.
3.2. PAYMENT OF OPERATING EXPENSES. Tenant shall pay, as
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Additional Rent and in accordance with the requirements of
Section 3.3, Tenant's Proportionate Share of the Operating
Expenses as set forth in Section 3.3. Additional Rent commences
to accrue upon the Commencement Date. The Tenant's Proportionate
Share of Operating Expenses payable hereunder for the Operating
Years in which the Term begins and ends shall be prorated to
correspond to that portion of said Operating Years occurring
within the Term. Tenant's Proportionate Share of Operating
Expenses and any other sums due and payable under this Lease
shall be adjusted upon receipt of the actual bills therefore, and
the obligations of this Section 3 shall survive the termination
or expiration of the Lease.
3.3. PAYMENT OF ADDITIONAL RENT. Landlord shall have the right to
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reasonably estimate the Operating Expenses for each Operating
Year. Upon Landlord's or Agent's notice to Tenant of such
estimated amount, Tenant shall pay, on the first day of each
month during that Operating Year, an amount (the "Estimated
ADDITIONAL RENT") equal to the estimate of the Tenant's
Proportionate Share of Operating Expenses divided by 12 (or the
fractional portion of the Operating Year remaining at the time
Landlord delivers its notice of the estimated amounts due from
Tenant for that Operating Year). If the aggregate amount of
Estimated Additional Rent actually paid by Tenant during any
Operating Year is less than Tenant's actual ultimate liability
for Operating Expenses for that particular Operating Year, Tenant
shall pay the deficiency within 30 days of Landlord's written
demand therefore. If the aggregate amount of Estimated Additional
Rent actually paid by Tenant during a given Operating Year
exceeds Tenant's actual liability for such Operating Year, the
excess shall be credited against the Estimated Additional Rent
next due from Tenant during the immediately subsequent Operating
Year, except that in the event that such excess is paid by Tenant
during the final Lease Year, then upon the expiration of the
Term, Landlord or Agent shall pay Tenant the then-applicable
excess promptly after determination thereof. Landlord, for the
purpose of paying for repairs, maintenance and replacements to
the Premises or the Property incurred on a periodic, but less
frequent than annual, basis ("RESERVE EXPENSES") will establish a reserve (the
"MAINTENANCE RESERVE") to which Tenant, simultaneously with the payment of
Estimated Additional Rent each month, shall contribute a monthly deposit in an
amount reasonably determined by Landlord. Such deposits shall be applied on
account of Reserve Expenses incurred by Landlord during the Term; any deficit
shall be paid by Tenant to Landlord upon demand. Upon the expiration or sooner
termination of the Lease, Landlord shall retain such deposits to fund Reserve
Expenses incurred after the Term. No interest shall be payable to Tenant on
account of payments of Estimated Additional Rent or deposits to the Maintenance
Reserve, and such payments may be commingled.
4. USE OF PREMISES AND COMMON AREAS; SECURITY DEPOSIT.
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4.1. USE OF PREMISES AND PROPERTY. The Premises shall be used by the
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Tenant for the purpose(s) set forth in Section 1.7 above and for no other
purpose whatsoever. Tenant shall not, at any time, use or occupy, or suffer
or permit anyone to use or occupy, the Premises, or do or permit anything
to be done in the Premises or the Property, in any manner that may (a)
violate any Certificate of Occupancy for the Premises or the Property; (b)
cause, or be liable to cause, injury to, or in any way impair the value or
proper utilization of, all or any portion of the Property (including, but
not limited to, the structural elements of the Property) or any equipment,
facilities or systems therein; (c) constitute a violation of the laws and
requirements of any public authority or the requirements of insurance
bodies or the rules and regulations of the Property, including any
covenant, condition or restriction affecting the Property; (d) exceed the
load bearing capacity of the floor of the Premises; (e) impair or tend to
impair the character, reputation or appearance of the Property; or (e)
unreasonably annoy, inconvenience or disrupt the operations or tenancies of
other tenants or users of the Property. On or prior to the date hereof,
Tenant has completed and delivered for the benefit of Landlord a "Tenant
Operations Inquiry Form" in the form attached hereto as EXHIBIT D
describing the nature of Tenant's proposed business operations at the
Premises, which form is intended to, and shall be, relied upon by Landlord.
4.2. USE OF COMMON AREAS. As used herein, "COMMON AREAS" shall mean
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all areas within the Property that are available for the common use of
tenants of the Property and that are not leased or held for the exclusive
use of Tenant or other tenants or licensees, including, but not limited to,
parking areas, driveways, sidewalks, loading areas, access roads,
corridors, landscaping and planted areas. Tenant shall have the
nonexclusive right to use the Common Areas for the purposes intended,
subject to such reasonable rules and regulations as Landlord may uniformly
establish from time to time. Tenant shall not interfere with the rights of
any or all of Landlord, other tenants or licensees, or any other person
entitled to use the Common Areas. Without limitation of the foregoing,
Tenant shall not park or store any vehicles or trailers on, or conduct
truck loading and unloading activities in, the Common Areas in a manner
that unreasonably disturbs, disrupts or prevents the use of the Common
Areas by Landlord, other tenants or licensees or other persons entitled to
use the Common Areas. Landlord, from time to time, may change any or all of
the size, location, nature and use of any of the Common Areas although such
changes may result in inconvenience to Tenant, so long as such changes do
not materially and adversely affect Tenant's use of the Premises. In
addition to the foregoing, Landlord may, at any time, close or suspend
access to any Common Areas to perform any acts in the Common Areas as, in
Landlord's reasonable judgment, are desirable to improve or maintain either
or both of the Premises and the Property, or are required in order to
satisfy Landlord's obligations under either or both of Sections 13.2 and
18; provided, however, that Landlord shall use reasonable efforts to limit
any disruption of Tenant's use and operation of the Premises in connection
therewith.
4.3. SIGNAGE. Tenant shall not affix any sign of any size or character
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to any portion of the Property, without prior written approval of Landlord,
which approval shall not be unreasonably withheld or delayed. Tenant shall
remove all signs of Tenant upon the expiration or earlier termination of
this Lease and immediately repair any damage to either or both of the
Property and the Premises caused by, or resulting from, such removal.
4.4. SECURITY/DAMAGE DEPOSIT. Simultaneously with the execution and
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delivery of this Lease, Tenant shall deposit with Landlord or Agent the sum
set forth in SECTION 1.10 ABOVE, in cash (the "Security"), representing
security for the performance by Tenant of the covenants and obligations
hereunder, the amount of which Security was determined by ad4ii+g the first
two installments of monthly Base Rent. The Security shall be held by
Landlord or Agent, without interest, in favor of Tenant; provided, however,
that no trust relationship shall be deemed created thereby and the Security
may be commingled with other assets of Landlord. If Tenant defaults in the
performance of any of its covenants hereunder, Landlord or Agent may,
without notice to Tenant, apply all or any part of the Security, to the
extent required for the payment of any Rent or other sums due from Tenant
hereunder, in addition to any other remedies available to Landlord. In the
event the Security is so applied, Tenant shall, upon demand, immediately
deposit with Landlord or Agent a sum equal to the amount so used. If Tenant
fully and faithfully complies with all the covenants and obligations
hereunder, the Security (or any balance thereof) shall be returned to
Tenant within 30 days after the last to occur of (i) the date the Term
expires or terminates or (ii) delivery to Landlord of possession of the
Premises. Landlord may deliver the Security to any purchaser of Landlord's
interest in the Premises [or any Successor Landlord (defined below), if
applicable], and thereupon Landlord and Agent shall be discharged from any
further liability with respect to the Security.
5. CONDITION AND DELIVERY OF PREMISES.
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5.1. CONDITION OF PREMISES. Tenant agrees that Tenant is familiar with
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the condition of both the Premises and the Property, and Tenant hereby
accepts the foregoing on an "AS-IS," "WHERE-IS" basis. Tenant acknowledges
that neither Landlord nor Agent, nor any representative of Landlord, has
made any representation as to the condition of the foregoing or the
suitability of the foregoing for Tenant's intended use. Tenant represents
and warrants that Tenant has made its own inspection of the foregoing.
Neither Landlord nor Agent shall be obligated to make any repairs,
replacements or improvements (whether structural or otherwise) of any kind
or nature to the foregoing in connection with, or in consideration of, this
Lease, except (a) as set forth in Sections 13.2 and 18 and (b) with respect
to all (if any) repairs and improvements expressly and specifically
described in EXHIBIT B attached hereto ("LANDLORD WORK ITEMS"). Landlord
agrees to make reasonable efforts to enforce, or cause Agent to enforce,
upon Tenant's request, all manufacturer's or contractor's warranties, if
any, issued in connection with any of the Landlord Work Items.
5.2. DELAY IN COMMENCEMENT. Landlord shall not be liable to
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Tenant if Landlord does not deliver possession of the Premises to
Tenant on the Commencement Date. The obligations of Tenant under
the Lease shall not be affected thereby, except that the
Commencement Date shall be delayed until Landlord delivers
possession of the Premises to Tenant, and the Lease Term shall be
extended by a period equal to the number of days of delay in
delivery of possession of the Premises to Tenant, plus the number
of days necessary to end the Lease Term on the last day of a
month.
6. SUBORDINATION; NOTICES TO SUPERIORLESSORS ANDMORTGAGEES:
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ATTORNMENT.
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6.1. SUBORDINATION. Provided that Tenant is provided with a
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reasonable and customary subordination, nondisturbance and
attornment agreement duly executed by the holder of any mortgage
or deed of trust or the landlord pursuant to any ground lease,
this Lease shall be subject and subordinate at all times to (a)
all ground leases or underlying leases that may now exist or
hereafter be executed affecting either or both of the Premises
and the Property and (b) any mortgage or deed of trust that may
now exist or hereafter be placed upon, and encumber, any or all
of(x) the Property; (y) any ground leases or underlying leases
for the benefit of the Property; and (z) all or any portion of
Landlord's interest or estate in any of said items.
Notwithstanding the foregoing, Landlord shall have the right to
subordinate or cause to be subordinated any such ground leases or
underlying leases that benefit the Property or any such mortgage
or deed of trust liens to this Lease. Tenant shall execute and
deliver, upon demand by Landlord and in the form reasonably
requested by Landlord, any additional documents evidencing the
priority of subordination of this Lease with respect to any such
ground leases or underlying leases for the benefit of the
Property or any such mortgage or deed of trust.
6.2. ESTOPPEL Certificates. Tenant agrees, from time to time and
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within 10 days after request by Landlord, to deliver to Landlord,
or Landlord's designee, an estoppel certificate stating such
matters pertaining to this Lease as may be reasonably requested
by Landlord. Failure by Tenant to timely execute and deliver such
certificate shall constitute an acceptance of the Premises and
acknowledgment by Tenant that the statements included therein are
true and correct without exception. Landlord and Tenant intend
that any statement delivered pursuant to this section may be
relied upon by any prospective purchaser or mortgagee of the
Property or of any interest therein or any other Landlord
designee.
6.3. TRANSFER FOR LANDLORD. In the event of a sale or conveyance
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by Landlord of the Property, the same shall operate to release
Landlord from any future liability for any of the covenants or
conditions, expressed or implied, herein contained in favor of
Tenant, and in such event Tenant agrees to look solely to
Landlord's successor in interest with respect thereto and agrees
to attorn to such successor.
7. QUIET ENJOYMENT. Subject to the provisions of this
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Lease, so long as Tenant pays all of the Rent and performs
all of its other obligations hereunder, Tenant shall not be
disturbed in its possession of the Premises by Landlord,
Agent or any other person lawfully claiming through or under
Landlord; provided, however, in addition to Landlord's
rights under SECTION 16 and elsewhere in this Lease,
Landlord and Landlord's agents, employees, contractors and
representatives shall be provided reasonable access to the
Premises such that Landlord and Landlord's agents,
employees, contractors and representatives may perform the
General Maintenance Services (as hereinafter defined)
without undue interruption, delay or hindrance. This
covenant shall be construed as a covenant running with the
Property and is not a personal covenant of Landlord. Tenant
shall not unreasonably interrupt, delay, prevent or hinder
the performance of the General Maintenance Services by or on
behalf of Landlord. Notwithstanding the foregoing, however,
Tenant acknowledges and agrees that Landlord shall have the
unfettered and unilateral right to use portions of the
Common Areas (inclusive of the roof of the Building) for
such purposes and uses as Landlord may desire; provided,
however, that in all events and under all circumstances,
Landlord's use of any portion of the Common Areas shall not
interfere, in any material respect, with any or all of(a)
Tenant's rights to occupy and use the Common Areas (in the
manner and for the purposes contemplated hereunder); (b)
Tenant's right to utilize the vehicular parking areas
located on the Common Areas; and (c) Tenant's right of
access, ingress and egress to and from the Common Areas.
8. ASSIGNMENT, SUBLETTING AND MORTGAGING.
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8.1. PROHIBITION. Tenant acknowledges that this Lease and the
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Rent due under this Lease have been agreed to by Landlord in
reliance upon Tenant's reputation and creditworthiness and upon
the continued operation of the Premises by Tenant for the
particular use described in Section 4.1 above; therefore, Tenant
shall not, whether voluntarily, or by operation of law, or
otherwise: (a) assign or otherwise transfer this Lease; (b)
sublet the Premises or any part thereof, or allow the same to be
used or occupied by anyone other than Tenant; or (c) mortgage,
pledge, encumber, or otherwise hypothecate this Lease or the
Premises, or any part thereof, in any manner whatsoever, without
in each instance obtaining the prior written consent of Landlord,
which consent may be given or withheld in Landlord's sole, but
reasonable, discretion. Any purported assignment, mortgage,
transfer, pledge or sublease made without the prior written
consent of Landlord shall be absolutely null and void. No
assignment of this Lease shall be effective and valid unless and
until the assignee executes and delivers to Landlord any and all
documentation reasonably required by Landlord in order to
evidence assignee's assumption of all obligations of Tenant
hereunder. Any consent by Landlord to a particular assignment,
sublease or mortgage shall not constitute consent or approval of
any subsequent assignment, sublease or mortgage, and Landlord's
written approval shall be required in all such instances. No
consent by Landlord to any assignment or sublease shall be deemed
to release Tenant from its obligations hereunder and Tenant shall
remain fully liable for performance of all obligations under this
Lease.
8.2. RIGHTS OF LANDLORD. If this Lease is assigned, or if the
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Premises (or any part thereof) are sublet or used or occupied by
anyone other than Tenant, whether or not in violation of this
Lease, Landlord or Agent may (without prejudice to, or waiver of
its rights), collect Rent from the assignee, subtenant or
occupant. Landlord or Agent may apply the net amount collected to
the Rent herein reserved, but no such assignment, subletting,
occupancy or collection shall be deemed a waiver of any of the
provisions of this Section 8. With respect to the allocable
portion of the Premises sublet, in the event that the total rent
and any other considerations received under any sublease by
Tenant is greater than the total Rent required to be paid, from
time to time, under this Lease, Tenant shall pay to Landlord one
hundred percent (100%) of such excess as received from any
subtenant and such amount shall be deemed a component of the
Additional Rent.
8.3. PERMITTED TRANSFERS. The provisions of Section 8.1(A) shall
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apply to a transfer of a majority (i.e. greater than 50%
interest) of the voting stock of Tenant or to any other change in
voting control of Tenant (if Tenant is a corporation), or to a
transfer of a majority of the general partnership or membership
interests in Tenant (if Tenant is a partnership or a limited
liability company) or to a change in the managerial control of
Tenant, or to any comparable transaction involving any other form
of business entity, whether effectuated in one or more
transactions, as if such transfer were an assignment of this
Lease; but said provisions shall not apply to such a transfer,
provided, in any of such events, the successor to Tenant (or any
party remaining liable for the obligations of Tenant hereunder):
(i) has a net worth at least equal to the net worth of Tenant as
of the Commencement Date or (ii) is capable of satisfying
Tenant's obligations hereunder, in Landlord's reasonable
judgment. Any such permitted transferee shall execute and deliver
to Landlord any and all documentation reasonably required by
Landlord in order to evidence assignee's assumption of all
obligations of Tenant hereunder. Notwithstanding anything to the
contrary contained in this Section 8.3, in no event may Tenant
assign, mortgage, transfer, pledge or sublease this Lease to any
entity whatsoever if, at the time of such assignment, mortgage,
transfer, pledge or sublease, Tenant is in default under this
Lease.
9. COMPLIANCE WITH LAWS.
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9.1. COMPLIANCE WITH LAWS. TENANT shall, at its sole expense
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(regardless of the cost thereof), comply with all local, state
and federal laws, rules, regulations and requirements now or
hereafter in force and all judicial and administrative decisions
in connection with the enforcement thereof (collectively,
"Laws"), pertaining to either or both of the Premises and
Tenant's use and occupancy thereof. If any license or permit is
required for the conduct of Tenant's business in the Premises,
Tenant, at its expense, shall procure such license prior to the
Commencement Date, and shall maintain such license or permit in
good standing throughout the Term. Tenant shall give prompt
notice to Landlord of any written notice it receives of the
alleged violation of any Law or requirement of any governmental
or administrative authority with respect to either or both of the
Premises and the use or occupation thereof. The judgment of any
court of competent jurisdiction, or the admission of Tenant in
any action or proceeding against Tenant, whether Landlord is a
party thereto or not, that any such Law pertaining to the
Premises has been violated, shall be conclusive of that fact as
between Landlord and Tenant.
9.2. HAZARDOUS MATERIALS. If, at any time or from time to time
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during the Term (or any extension thereof), any Hazardous
Material (defined below) is generated, transported, stored, used,
treated or disposed of at, to, from, on or in either or both of
the Premises and the Property by, or as a result of any act or
omission of, any or all of Tenant and any or all of Tenant's
Parties (defined below): (i) Tenant shall, at its own cost, at
all times comply (and cause all others to comply) with all laws
(federal, state or local) relating to Hazardous Materials,
including, but not limited to, all Environmental Laws (defined
below), and Tenant shall further, at its own cost, obtain and
maintain in full force and effect at all times all permits and
other approvals required in connection therewith; (ii) Tenant
shall promptly provide Landlord or Agent with complete copies of
all communications, permits or agreements with, from or issued by
any governmental authority or agency (federal, state or local) or
any private entity relating in any way to the presence, release,
threat of release, or placement of Hazardous Materials on or in
the Premises or any portion of the Property, or the generation,
transportation, storage, use, treatment, or disposal at, on, in
or from the Premises, of any Hazardous Materials; (iii) Landlord,
Agent and their respective agents and employees shall have the
right to either or both (x) enter the Premises and (y) conduct
appropriate tests for the purposes of ascertaining Tenant's
compliance with all applicable laws (including Environmental
Laws), rules or permits relating in any way to the generation,
transport, storage, use, treatment, disposal or presence of
Hazardous Materials on, at, in or from all or any portion of
either or both of the Premises and the Property; and (iv) upon
written request by Landlord or Agent, Tenant shall provide
Landlord with the results of reasonably appropriate tests of air,
water or soil to demonstrate that Tenant complies with all
applicable laws, rules or permits relating in any way to the
generation, transport, storage, use, treatment, disposal or
presence of Hazardous Materials on, at, in or from all or any
portion of either or both of the Premises and the Property. This
Section 9.2 does not authorize the generation, transportation,
storage, use, treatment or disposal of any Hazardous Materials
at, to, from, on or in the Premises in contravention of this
Section 9. Tenant covenants to investigate, clean up and
otherwise remediate, at Tenant's sole expense, any release of
Hazardous Materials caused, contributed to, or created by any or
all of (A) Tenant and (B) any or all of Tenant's officers,
directors, members, managers, partners, invitees, agents,
employees, contractors or representatives ("TENANT PARTIES")
during the Term. Such investigation and remediation shall be
performed only after Tenant has obtained Landlord's prior written
consent; provided, however, that Tenant shall be entitled to
respond immediately to an emergency without first obtaining such
consent. All remediation shall be performed in strict compliance
with Environmental Laws and to the reasonable satisfaction of
Landlord. Tenant shall be liable for any and all conditions
covered hereby, and for all costs relating thereto, that are
caused or created by any or all of Tenant and any or all of
Tenant's Parties. Tenant shall not enter into any settlement
agreement, consent decree or other compromise with respect to any
claims relating to any Hazardous Materials in any way connected
to the Premises without first obtaining Landlord's written
consent (which consent may be given or withheld in Landlord's
sole, but reasonable, discretion) and affording Landlord the
reasonable opportunity to participate in any such proceedings. As
used herein, the term (x) "ENVIRONMENTAL LAWS" shall mean any and
all laws pertaining to Hazardous Materials or that otherwise deal
with, or relate to, air or water quality, air emissions, soil or
ground conditions or other environmental matters of any kind; and
(y) "HAZARDOUS Materials" shall mean any waste, material or
substance (whether in the form of liquids, solids or gases, and
whether or not airborne) that is or may be deemed to be or
include a pesticide, petroleum, asbestos, polychlorinated
biphenyl, radioactive material, urea formaldehyde or any other
pollutant or contaminant that is or may be deemed to be
hazardous, toxic, ignitable, reactive, corrosive, dangerous,
harmful or injurious, or that presents a risk to public health or
to the environment, and that is or becomes regulated by any
Environmental Law. The undertakings, covenants and obligations
imposed on Tenant under this Section 9.2 shall survive the
termination or expiration of this Lease.
10. INSURANCE.
---------
10.1. INSURANCE TO BE MAINTAINED BY LANDLORD. Landlord shall maintain
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(a) "all-risk" property insurance policy covering the Property (at its full
replacement cost), but excluding Tenant's Property (defined below), and (b)
commercial general public liability insurance covering Landlord for claims
arising out of liability for bodily injury, death, personal injury,
advertising injury and property damage occurring in and about the Property
and otherwise resulting from any acts and operations of Landlord, its
agents and employees, and (c) rent loss insurance, all of the above with
limits that are required by any lender(s) of Landlord, or as are otherwise
reasonably determined by Landlord.
10.2. INSURANCE TO BE MAINTAINED BY TENANT. Tenant shall purchase, at
------------------------------------
its own expense, and keep in force at all times during this Lease the
policies of insurance set forth below in Sections 10.2.1 and 10.2.2
(collectively, "Tenant's Policies"). All Tenant's Policies shall (a) be
issued by an insurance company with a Best rating of A-X or better and
otherwise reasonably acceptable to Landlord and shall be licensed to do
business in the state in which the Property is located; (b) provide that
said insurance shall not be canceled or materially modified unless 30 days'
prior written notice shall have been given to Landlord; and (c) otherwise
be in such form, and include such coverages, as Landlord may reasonably
require. All Tenant's Policies (or, at Landlord's option, Certificates of
Insurance, in a form reasonably acceptable to Landlord, evidencing said
Tenant's Policies), shall be delivered to Landlord by Tenant upon
commencement of the Lease and renewals thereof shall be delivered at least
30 days prior to the expiration of each Tenant's Policy. Tenant shall give
prompt notice to Landlord and Agent of any bodily injury, death, personal
injury, advertising injury or property damage occurring in and about the
Property.
10.2.1. GENERAL LIABILITY AND AUTO INSURANCE. Tenant shall
----------------------------------------
purchase and maintain, throughout the Term, a Tenant's
Policy(ies) of (i) commercial general or excess liability
insurance, including personal injury and property damage, in the
amount of not less than $2 $1,000,000.00 per occurrence, and $~
-------------
$2.000,000.00 annual general aggregate, per location; (ii)
-------------
comprehensive automobile liability insurance covering Tenant
against any losses arising out of liability for personal injuries
or deaths of persons and property damage occurring in or about
the Premises in the amount of not less than $1,000,000, combined
single limit. The Tenant's Policies required by this Section
10.2.1 shall (a) name Landlord, Agent, and any party holding an
interest to which this Lease may be subordinated as additional
insured; (b) provide coverage on an occurrence basis; (c) provide
coverage for the indemnity obligations of Tenant under this
Lease; (d) contain a severability of insured parties provision
and/or a cross liability endorsement; (e) be primary, not
contributing with, and not in excess of, coverage that Landlord
may carry; and (f) provide coverage with no exclusion for a
pollution incident arising from a hostile fire.
10.2.2. PROPERTY AND WORKERS' COMPENSATION INSURANCE. Tenant
------------------------------------------------
shall purchase and maintain, throughout the Term a Tenant's
Policy or Policies of (i) "all-risk" property insurance covering
Tenant's Property (at its full replacement cost), and damage to
other property resulting from any acts or operations of Tenant,
and (ii) workers' compensation insurance per the applicable state
statutes covering all employees of Tenant.
10.3. WAIVER OF SUBROGATION. To the extent permitted by law, and
-----------------------
without affecting the coverage provided by insurance required to be
maintained hereunder, Landlord and Tenant each waive any right to recover
against the other for (a) damages to property, (b) damages to all or any
portion of either or both of the Premises and the Property, (c) claims
arising by reason of the foregoing, to the extent such damages and claims
are insured against, or required to be insured against, by Landlord or
Tenant under this Lease, or (d) claims paid by Tenant's workers'
compensation carrier. This provision is intended to waive, fully and for
the benefit of each party, any rights and/or claims which might give rise
to a right of subrogation by any insurance carrier. The coverage obtained
by each party pursuant to this Lease shall include, without limitation, a
waiver of subrogation by the carrier which conforms to the provisions of
this section.
11. ALTERATIONS.
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11.1. PROCEDURAL REQUIREMENTS. Tenant may, from time to time, at its
------------------------
expense, make alterations or improvements in and to the Premises
(hereinafter collectively referred to as "ALTERATIONS"), PROVIDED that
Tenant first obtains the written consent of Landlord in each instance.
Landlord's consent to Alterations shall not be unreasonably withheld,
provided that: (a) the Alterations are non-structural and the structural
integrity of the Property shall not be affected; (b) the Alterations are to
the interior of the Premises; (c) the proper functioning of the mechanical,
electrical, heating, ventilating, air-conditioning ("HVAC"), sanitary and
other service systems of the Property shall not be affected and the usage
of such systems by Tenant shall not be increased; (d) the Alterations have
no adverse effect on other leased premises in the Property; (e) Tenant
shall have appropriate insurance coverage reasonably satisfactory to
Landlord, regarding the performance and installation of the Alterations;
(f) the Alterations shall conform with all other requirements of this
Lease; and (g) Tenant shall have provided Landlord with reasonably detailed
plans for such Alterations in advance of requesting Landlord's consent.
Additionally, before proceeding with any Alterations, Tenant shall (i) at
Tenant's expense, obtain all necessary governmental permits and
certificates for the commencement and prosecution of Alterations; (ii)
submit to Agent, for Landlord's written approval, working drawings, plans
and specifications and all permits for the work to be done and Tenant shall
not proceed with such Alterations until it has received said approval; and
(iii) cause those contractors, materialmen and suppliers engaged to perform
the Alterations to deliver to Landlord certificates of insurance (in a form
reasonably acceptable to Landlord) evidencing policies of commercial
general liability insurance (providing the same coverages as required in
SECTION 10.2.1 above) and workers' compensation insurance. Such insurance
policies shall satisfy the obligations imposed under SECTION 10.2.1(A)
through (d) and (f). After obtaining Landlord's approval to the
Alterations, Tenant shall give Landlord at least five days' prior written
notice of the commencement of any Alterations at the Premises, and Landlord
may elect to record and post notices of non-responsibility at the Premises.
11.2. PERFORMANCE OF ALTERATIONS. Tenant shall cause the
----------------------------
Alterations to be performed in compliance with all applicable
permits, laws and requirements of public authorities, and with
Landlord's reasonable rules and regulations or any other
restrictions that Landlord or Agent may impose on the
Alterations. Tenant shall cause the Alterations to be diligently
performed in a good and workmanlike manner, using new materials
and equipment at least equal in quality and class to the
standards for the Property established by Landlord or Agent.
Tenant shall obtain all necessary permits and certificates for
final governmental approval of the Alterations and shall provide
Landlord with "as built" plans, copies of all construction
contracts, governmental permits and certificates and proof of
payment for all labor and materials, including, without
limitation, copies of paid invoices and final lien waivers.
11.3. LIEN PROHIBITION. Tenant shall pay when due all claims for
----------------
labor and material furnished to the Premises in connection with
the Alterations. Tenant shall not permit any mechanics or
materialmen's liens to attach to the Premises or the Property.
Tenant, at its expense, shall procure the satisfaction or
discharge of record of all such liens and encumbrances within 30
days after the filing thereof; or, within such thirty (30) day
period, Tenant shall provide Landlord, at Tenant's sole expense,
with endorsements (satisfactory, both in form and substance, to
Landlord and the holder of any mortgage or deed of trust) to the
existing title insurance policies of Landlord and the holder of
any mortgage or deed of trust, insuring against the existence of,
and any attempted enforcement of, such lien or encumbrance. In
the event Tenant has not so performed, Landlord may, at its
option, pay and discharge such liens and Tenant shall be
responsible to reimburse Landlord, on demand and as Additional
Rent under this Lease, for all costs and expenses incurred in
connection therewith, together with interest thereon at the rate
set forth in Section 22.3, which expenses shall include
reasonable fees of attorneys of Landlord's choosing, and any
costs in posting bond to effect discharge or release of the lien
as an encumbrance against the Premises or the Property.
12. LANDLORD'S AND TENANT'S PROPERTY.
-----------------------------------
12.1. LANDLORD'S PROPERTY. Subject to SECTION 12.2, all fixtures,
--------------------
machinery, equipment, improvements and appurtenances attached to,
or built into, the Premises at the commencement of, or during the
Term, whether or not placed there by or at the expense of Tenant,
shall become and remain a part of the Premises; shall be deemed
the property of Landlord (the "LANDLORD'S PROPERTY"), without
compensation or credit to Tenant; and shall not be removed by
Tenant at the Expiration Date unless Landlord requests their
removal. Further, any personal property in the Premises on the
Commencement Date, movable or otherwise, unless installed and
paid for by Tenant, shall be and shall remain the property of
Landlord and shall not be removed by Tenant. In no event shall
Tenant remove any of the following materials or equipment without
Landlord's prior written consent (which consent may be given or
withheld in Landlord's sole discretion): any power wiring or
power panels, lighting or lighting fixtures, wall or window
coverings, carpets or other floor coverings, heaters, air
conditioners or any other HVAC equipment, fencing or security
gates, or other similar building operating equipment and
decorations.
12.2. TENANT'S PROPERTY. All movable non-structural partitions,
------------------
business and trade fixtures, machinery and equipment,
communications equipment and office equipment that are installed
in the Premises by, or for the account of, Tenant and without
expense to Landlord and that can be removed without structural
damage to the Property, and all furniture, furnishings and other
articles of movable personal property owned by Tenant and located
in the Premises (collectively, the "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 Tenant repairs or
pays the cost of repairing any damage to the Premises or to the
Property resulting from the installation and/or removal thereof.
At or before the Expiration Date, or the date of any earlier
termination, Tenant, at its expense, shall remove from the
Premises all of Tenant's Property and any Alterations (except
such items thereof as constitute Landlord's Property; or as
Landlord shall have expressly permitted, in writing, to remain,
which property shall become the property of Landlord), and Tenant
shall repair (to Landlord's reasonable satisfaction) any damage
to the Premises or the Property resulting from any installation
and/or removal of Tenant's Property. Any other items of Tenant's
Property that shall remain in the Premises after the Expiration
Date, or following an earlier termination date, may, at the
option of Landlord, be deemed to have been abandoned, and in such
case, such items may be retained by Landlord as its property or
be disposed of by Landlord, in Landlord's sole and absolute
discretion and without accountability, at Tenant's expense.
Notwithstanding the foregoing, if Tenant is in default under the
terms of this Lease, Tenant may remove Tenant's Property from the
Premises only upon the express written direction of Landlord.
13. REPAIRS AND MAINTENANCE.
-------------------------
13.1. TENANT REPAIRS AND MAINTENANCE.
---------------------------------
13.1.1. TENANT RESPONSIBILITIES. Throughout the Term, Tenant shall, at its
------------------------
sole cost and expense: (i) both (x) maintain and preserve, in first-class
condition (subject to normal and customary wear and tear), and (y) perform any
and all repairs and replacements required in order to so maintain and preserve,
in first class condition, the Premises and the fixtures and appurtenances
therein (including, but not limited to, the Premises' plumbing and HVAC systems,
all doors, overhead or otherwise, glass and levelers located in the Premises or
otherwise available in the Property for Tenant's sole use; and excluding,
however, only those specific components of the Premises for which Landlord is
expressly responsible under Section 13.2); and (ii) except to the extent
Landlord elects to repair and maintain the HVAC systems as part of General
Maintenance Services (as hereinafter defined), maintain, in full force and
effect, a preventative maintenance and service contract with a reputable service
provider for maintenance of the HVAC systems of the Premises (the "H VAC
MAINTENANCE CONTRACT"). The terms and provisions of any such HVAC Maintenance
Contract shall require that the service provider maintain the Premises' HVAC
system in accordance with the manufacturer's recommendations and otherwise in
accordance with normal, customary and reasonable practices in the geographic
area in which the Premises is located and for HVAC systems comparable to the
Premises' HVAC system.
In addition to Tenant's obligations under (i) and (ii) above,
Tenant shall also be responsible for all costs and expenses incurred
to perform any and all repairs and replacements (whether structural or
non-structural; interior or exterior; and ordinary or extraordinary),
in and to the Premises and the Property and the facilities and systems
thereof, if and to the extent that the need for such repairs or
replacements arises directly or indirectly from any or all of: (a) the
performance or existence of any Alterations, (b) the installation, use
or operation of Tenant's Property in the Premises, (c) the moving of
Tenant's Property in or out of the Property, and (d) any act,
omission, misuse, or neglect of Tenant, any of its subtenants, or
others entering into the Premises by act or omission of Tenant or any
subtenant. Any repairs or replacements required to be made by Tenant
to any or all of the structural components of the Property and the
mechanical, electrical, sanitary, HVAC, or other systems of the
Property or Premises shall be performed by appropriately licensed
contractors approved by Landlord, which approval shall not be
unreasonably withheld. All such repairs or replacements shall be
subject to the supervision and control of Landlord, and all repairs
and replacements shall be made with materials of equal or better
quality than the items being repaired or replaced.
13.1.2. GENERALMaintenance Services. Notwithstanding any of the foregoing,
----------------------------
however, from time to time during the Term, Landlord may elect, in its sole
discretion and by delivery of written notice to Tenant, to perform on behalf of
Tenant, all or some portion of the repairs, maintenance, restoration and
replacement in and to the Premises required to be performed by Tenant under this
Lease (any such repairs, maintenance, restoration and/or replacement activities
that Landlord elects to perform on behalf of Tenant are herein collectively
referred to as "GENERAL MAINTENANCE Services"). Tenant shall reimburse Landlord
for the cost or value of all General Maintenance Services provided by Landlord
as Additional Rent, simultaneously with the payment of Operating Expenses as
part of Estimated Additional Rent (On a monthly estimated basis subject to
annual reconciliation, as described in Section 3.3 above). Unless and until
Landlord affirmatively elects to provide General Maintenance Services, nothing
contained herein shall be construed to obligate Landlord to perform any General
Maintenance Services or, except as otherwise expressly provided in SECTION 13.2,
to repair, maintain, restore or replace any portion of the Premises. Landlord
may from time to time, in its sole discretion, (x) reduce or expand the scope of
the General Maintenance Services that Landlord has elected to provide or (y)
revoke its election to provide any or all of the General Maintenance Services,
in either event, upon delivery of not less than thirty (30) days' prior written
notice to Tenant.
13.1.3. HVAC MAINTENANCE CONTRACT. IF LANDLORD DOES not elect to repair
-------------------------
and maintain the HVAC systems as part of General Maintenance Services, or
revokes such election at any time after having made such election, then, within
30 days following either (a) the Commencement Date or (h) the date on which
Landlord advises Tenant that Landlord will no longer provide General Maintenance
Services for the HVAC system, whichever date is applicable, Tenant shall procure
and deliver to Landlord the HVAC Maintenance Contract. Thereafter, Tenant shall
provide to Landlord a copy of renewals or replacements of such HVAC Maintenance
Contract no later than 30 days prior to the then-applicable expiry date of the
existing HVAC Maintenance Contract. If Tenant fails to timely deliver to
Landlord the HVAC Maintenance Contract (or any applicable renewal or replacement
thereof), then Landlord shall have the right to contract directly for the
periodic maintenance of the HVAC systems in the Premises and to charge the cost
thereof back to Tenant as Additional Rent.
13.2. LANDLORD REPAIRS. Notwithstanding anything contrary herein,
-----------------
Landlord shall repair, replace and restore the foundation, exterior and interior
load-bearing walls, roof structure and roof covering and tuckpointing of the
Property; provided, however, that (i) all costs and expenses so incurred by
Landlord to repair, replace and restore the above items shall constitute
Operating Expenses; provided, however, that with respect to any costs incurred
in the replacement context, those costs shall not constitute an Operating
Expense except to the extent that such costs so qualify under Section
3.1.1(vii); and (ii) notwithstanding (i) above, in the event that any such
repair, replacement or restoration is necessitated by any or all of the matters
set forth in Sections 13.1(A) through (d) above (collectively, "TENANT
Necessitated REPAIRS"), then Tenant shall be required to reimburse Landlord for
all costs and expenses that Landlord incurs in order to perform such Tenant
Necessitated Repairs, and such reimbursement shall be paid, in full, within 10
days after Landlord's delivery of demand therefore. Landlord agrees to commence
the repairs, replacements or restoration described in this Section 13.2 within a
reasonable period of time after receiving from Tenant written notice of the need
for such repairs.
14. UTILITIES. Tenant shall purchase all utility services and
---------
shall provide for scavenger, cleaning and extermination services.
As provided in Section 3.1.1. above, utility charges are included
within Operating Expenses; therefore, when and as Tenant pays
estimated Operating Expenses, those estimated monthly payments
shall include monthly estimated installments of utility charges;
nevertheless, at Landlord's election or with Landlord's consent,
Tenant may pay the utility charges for its Premises directly to
the utility or municipality providing such service, and in that
event: (a) all charges shall be paid by Tenant before they become
delinquent; and (b) utility charges for the Premises shall not be
included in estimated Operating Expenses. Tenant shall be solely
responsible for the repair and maintenance of any meters
necessary in connection with such services. Tenant's use of
electrical energy in the Premises shall not, at any time, exceed
the capacity of either or both of (i) any of the electrical
conductors and equipment in or otherwise servicing the Premises;
and (ii) the HVAC systems of either or both of the Premises and
the Property.
15. INVOLUNTARY CESSATION OF SERVICES. Landlord reserves the right,
------------------------------------
without any liability to Tenant and without affecting Tenant's
covenants and obligations hereunder, to stop service of any or all of
the HVAC, electric, sanitary, elevator (if any), and other systems
serving the Premises, or to stop any other services required by
Landlord under this Lease, whenever and for so long as may be
necessary by reason of (i) accidents, emergencies, strikes, or the
making of repairs or changes which Landlord or Agent, in good faith,
deems necessary or (ii) any other cause beyond Landlord's reasonable
control. Further, it is also understood and agreed that Landlord or
Agent shall have no liability or responsibility for a cessation of
services to the Premises or to the Property that occurs as a result of
causes beyond Landlord's or Agent's reasonable control. No such
interruption of service shall be deemed an eviction or disturbance of
Tenant's use and possession of the Premises or any part thereof, or
render Landlord or Agent liable to Tenant for damages, or relieve
Tenant from performance of Tenant's obligations under this Lease,
including, but not limited to, the obligation to pay Rent; provided,
however, that if any interruption of services persists for a period in
excess of five (5) consecutive business days Tenant shall, as Tenant's
sole remedy, be entitled to a proportionate abatement of Rent to the
extent, if any, of any actual loss of use of the Premises by Tenant.
16. LANDLORD'S RIGHTS. LANDLORD, Agent and their respective agents,
------------------
employees and representatives shall have the right to enter and/or
pass through the Premises at any time or times upon reasonable prior
notice (except in the event of emergency): (a) to examine and inspect
the Premises and to show them to actual and prospective lenders,
prospective purchasers or mortgagees of the Property or providers of
capital to Landlord and its affiliates; and (b) to make such repairs,
alterations, additions and improvements in or to all or any portion of
either or both of the Premises and the Property, or the Property's
facilities and equipment as Landlord is required or desires to make.
Landlord and Agent shall be allowed to take all materials into and
upon the Premises that may be required in connection with any repairs,
alterations, additions or improvements, without any liability to
Tenant and without any reduction or modification of Tenant's covenants
and obligations hereunder; provided, however, that Landlord shall use
reasonable efforts to limit interference with Tenant's business
operations and Tenant's occupancy and use of the Premises. During the
period of six months prior to the Expiration Date (or at any time, if
Tenant has vacated or abandoned the Premises or is otherwise in
default under this Lease), Landlord and its agents may exhibit the
Premises to prospective tenants. Additionally, Landlord and Agent
shall have the following rights with respect to the Premises,
exercisable without notice to Tenant, without liability to Tenant, and
without being deemed an eviction or disturbance of Tenant's use or
possession of the Premises or giving rise to any claim for setoff or
abatement of Rent: (i) to designate and approve, prior to
installation, all types of signs; (ii) to have pass keys, access
cards, or both, to the Premises; and (iii) to decorate, remodel,
repair, alter or otherwise prepare the Premises for reoccupancy at any
time after Tenant vacates or abandons the Premises for more than 30
consecutive days or without notice to Landlord of Tenant's intention
to reoccupy the Premises.
17. NON-LIABILITY AND INDEMNIFICATION.
-----------------------------------
17.1. NON-LIABILITY. EXCEPT as provided in SECTION 17.2.2, none of
-------------
Landlord, Agent, any other managing agent, or their respective affiliates,
owners, partners, directors, officers, agents and employees shall be liable to
Tenant for any loss, injury, or damage, to Tenant or to any other person, or to
its or their property, irrespective of the cause of such injury, damage or loss.
Further, except as provided in Section 17.2.2, none of Landlord, Agent, any
other managing agent, or their respective affiliates, owners, partners,
directors, officers, agents and employees shall be liable to Tenant (a) for any
damage caused by other tenants or persons in, upon or about the Property, or
caused by operations in construction of any public or quasi-public work; (b)
with respect to matters for which Landlord is liable, for consequential or
indirect damages purportedly arising out of any loss of use of the Premises or
any equipment or facilities therein by Tenant or any person claiming through or
under Tenant; (c) any defect in the Premises or the Property; (d) injury or
damage to person or property caused by fire, or theft, or resulting from the
operation of heating or air conditioning or lighting apparatus, or from falling
plaster, or from steam, gas, electricity, water, rain, snow, ice, or dampness,
that may leak or flow from any part of the Property, or from the pipes,
appliances or plumbing work of the same.
17.2. Indemnification.
---------------
17.2.1. TENANT INDEMNIFICATION. Tenant hereby indemnities,
-----------------------
defends, and holds Landlord, Agent and their respective
affiliates, owners, partners, directors, officers, agents and
employees (collectively, "LANDLORD INDEMNIFIED PARTIES") harmless
from and against any and all Losses (defined below) arising from
or in connection with any or all of: (a) the conduct or
management of either or both the Property and the Premises or any
business therein, or any work or Alterations done, or any
condition created by any or all of Tenant and Tenant's Parties in
or about the Premises during the Term or during the period of
time, if any, prior to the Commencement Date that Tenant is given
access to the Premises; (b) any act, omission or negligence of
any or all of Tenant and Tenant's Parties; (c) any accident,
injury or damage whatsoever (unless caused by Landlord's
negligence) occurring in, at or upon either or both of the
Property and the Premises and caused by any or all of Tenant and
Tenant's Parties; (d) any breach by Tenant of any of its
warranties and representations under this Lease; (e) any actions
necessary to protect Landlord's interest under this Lease in a
bankruptcy proceeding or other proceeding under the Bankruptcy
Code; (f) any violation or alleged violation by any or all of
Tenant and Tenant's Parties of any Law including, without
limitation, any Environmental Law; (g) any breach of the
provisions of Section 9 by any or all of Tenant and Tenant's
Parties; (h) claims for work or labor performed or materials
supplies furnished to or at the request of any or all of Tenant
and Tenant's Parties; (i) claims arising from any breach or
default on the part of Tenant in the performance of any covenant
contained in this Lease; (j) any Hazardous Materials used,
exposed, emitted, released, discharged, generated, manufactured,
sold, transported, handled, stored, treated, reused, presented,
disposed of or recycled in, at, near or under all or any portion
of the Premises as a result of the acts or omissions of any or
all of Tenant and Tenant's Parties; and (k) the violation of any
Environmental Law or any permit, application or consent required
in connection with any Environmental Law by any or all of Tenant
and Tenant's Parties with respect to the Premises during the
Term, excluding, however, any violation of any Environmental Law
resulting directly from the acts or omissions of Landlord and
Landlord's employees, agents and contractors (collectively,
"TENANT'S INDEMNIFIED MATTERS"). In case any action or proceeding
is brought against any or all of Landlord and the Landlord
Indemnified Parties by reason of any of Tenant's Indemnified
Matters, Tenant, upon notice from any or all of Landlord, Agent
or any Superior Party (defined below), shall resist and defend
such action or proceeding by counsel reasonably satisfactory to,
or selected by, Landlord. The term "Losses" shall mean all
claims, demands, expenses, actions, judgments, damages (actual,
but not consequential), penalties, fines, liabilities, losses of
every kind and nature (including, without limitation, property
damage, diminution in value of Landlord's interest in the
Premises or the Property, damages for the loss or restriction on
use of any space or amenity within the Premises or the Property,
damages arising from any adverse impact on marketing space in the
Property, sums paid in settlement of claims and any costs and
expenses associated with injury, illness or death to or of any
person), suits, administrative proceedings, costs and fees,
including, without limitation attorneys' and consultants'
reasonable fees and expenses, and the costs of cleanup,
remediation, removal and restoration, that are in any way related
to any matter covered by the foregoing indemnity. The provisions
of this Section 17.2.1 shall survive the expiration or
termination of this Lease.
17.2.2. LANDLORD INDEMNIFICATION. Landlord hereby indemnities,
-------------------------
defends and holds Tenant harmless from and against any and all
Losses actually suffered or incurred by Tenant as the sole and
direct result of any negligent, willful or intentional acts or
omissions of any or all of Landlord, Agent and any parties within
the direct and sole control of either or both of Landlord and
Agent. In the event that any action or proceeding is brought
against Tenant, and the foregoing indemnity is applicable to such
action or proceeding, then Landlord, upon notice from Tenant,
shall resist and defend such action or proceeding by counsel
reasonably satisfactory to Tenant. Notwithstanding anything to
the contrary set forth in this Lease, however, in all events and
under all circumstances, the liability of Landlord to Tenant
shall be limited to the interest of Landlord in the Property, and
Tenant agrees to look solely to Landlord's interest in the
Property for the recovery of any judgment or award against
Landlord, it being intended that Landlord shall not be personally
liable for any judgment or deficiency. The provisions of this
Section 17.2.2 shall survive the expiration or termination of
this Lease.
17.3. FORCE MAJEURE. The obligations of Tenant hereunder shall not he
--------------
affected, impaired or excused, and Landlord shall have no liability whatsoever
to Tenant, with respect to any act, event or circumstance arising out of (a)
Landlord's failure to fulfill, or delay in fulfilling any of its obligations
under this Lease by reason of labor dispute, governmental preemption of property
in connection with a public emergency or shortages of fuel, supplies, or labor,
or any other cause, whether similar or dissimilar, beyond Landlord's reasonable
control; or (b) any failure or defect in the supply, quantity or character of
utilities furnished to the Premises, or by reason of any requirement, act or
omission of any public utility or others serving the Property, beyond Landlord's
reasonable control.
18. DAMAGE OR DESTRUCTION.
-----------------------
18.1. NOTIFICATION AND REPAIR. Tenant shall give prompt notice to
-------------------------
Landlord and Agent of(a) any fire or other casualty to the Premises or the
Property, and (b) any damage to, or defect in, any part or appurtenance of
the Property's sanitary, electrical, HVAC, elevator or other systems
located in or passing through the Premises or any part thereof. Tenant
shall be liable for any claim, loss, damage, cost or expense resulting from
Tenant's failure to give Landlord the foregoing notice in a timely manner.
Subject to the provisions of SECTION 18.3 below, if either or both of the
Property and the Premises is damaged by fire or other insured casualty,
Landlord shall repair (or cause Agent to repair) the damage and restore and
rebuild the Property and/or the Premises (except for Tenant's Property)
with reasonable dispatch after (x) notice to it of the damage or
destruction and (y) the adjustment of the insurance proceeds attributable
to such damage. Subject to the provisions of Section 18.3 below, Tenant
shall not be entitled to terminate this Lease and no damages, compensation
or claim shall be payable by Landlord for purported inconvenience, loss of
business or annoyance arising from any repair or restoration of any portion
of the Premises or of the Property pursuant to this Section. Landlord (or
Agent, as the case may be) shall use its diligent, good faith efforts to
make such repair or restoration promptly and in such manner as not to
unreasonably interfere with Tenant's use and occupancy of the Premises, but
Landlord or Agent shall not be required to do such repair or restoration
work except during normal business hours of business days.
18.2. RENTAL ABATEMENT. Provided that any damage to either or both of
----------------
the Property and the Premises is not caused by, or is not the result of
acts or omissions by, any or all of Tenant and Tenant's Parties, if(a) the
Property is damaged by fire or other casualty thereby causing the Premises
to be inaccessible or (b) the Premises are partially damaged by fire or
other casualty, the Rent shall be proportionally abated to the extent of
any actual loss of use of the Premises by Tenant.
18.3. TOTAL DESTRUCTION. If the Property or the Premises shall be
------------------
totally destroyed by fire or other casualty, or if the Property shall be so
damaged by fire or other casualty that (in the reasonable opinion of a
reputable contractor or architect designated by Landlord): (i) its repair
or restoration requires more than 180 days or (ii) such repair or
restoration requires the expenditure of more than 50% of the full insurable
value of the Property immediately prior to the casualty or (iii) the damage
(x) is less than the amount stated in (ii) above, but more than 10% of the
full insurable value of the Property; and (y) occurs during the last two
years of Lease Term, Landlord and Tenant shall each have the option to
terminate this Lease (by so advising the other, in writing) within 10 days
after said contractor or architect delivers written notice of its opinion
to Landlord and Tenant, but in all events prior to the commencement of any
restoration of the Premises or the Property by Landlord. In such event, the
termination shall be effective as of the date upon which either Landlord or
Tenant, as the case may be, receives timely written notice from the other
terminating this Lease pursuant to the preceding sentence. If neither
Landlord nor Tenant timely delivers a termination notice, this Lease shall
remain in full force and effect. Notwithstanding the foregoing, if (A) any
holder of a mortgage or deed of trust encumbering the Property or landlord
pursuant to a ground lease encumbering the Property (collectively,
"Superior PARTIES") or other party entitled to the insurance proceeds fails
to make such proceeds available to Landlord in an amount sufficient for
restoration of the Premises or the Property, or (B) the issuer of any
casualty insurance policies on the Property fails to make available to
Landlord sufficient proceeds for restoration of the Premises or the
Property, then Landlord may, at Landlord's sole option, terminate this
Lease by giving Tenant written notice to such effect within 30 days after
Landlord receives notice from the Superior Party or insurance company, as
the case may be, that such proceeds shall not be made available, in which
event the termination of this Lease shall be effective as of the date
Tenant receives written notice from Landlord of Landlord's election to
terminate this Lease. Landlord shall have no liability to Tenant, and
Tenant shall not be entitled to terminate this Lease by virtue of any
delays in completion of repairs and restoration. For purposes of this
Section 18.3 only, "full insurable value" shall mean replacement cost, less
the cost of footings, foundations and other structures below grade.
18.4. INSURANCE PROCEEDS. Landlord shall not be obligated to expend in
------------------
repairs and restoration an amount in excess of the proceeds of insurance
recovered with respect to any casualty. Tenant acknowledges that Landlord
shall be entitled to the full proceeds of any insurance coverage, whether
carried by Landlord or Tenant, for damage to either or both of the Premises
and the Property (excluding any proceeds for damage to Tenant's Property).
In the event that either or both of the Premises and the Property are not
repaired or reconstructed, all proceeds of insurance (excluding any
proceeds covering Tenant's Property), whether carried by Landlord or
Tenant, shall be payable to Landlord. Landlord's duty to repair the
Premises and the Property (excluding Tenant's Property) is limited to
repairing the Premises to the condition existing immediately prior to such
fire or other casualty.
19. EMINENT DOMAIN. If the whole, or any substantial (as reasonably
---------------
determined by Landlord) portion, of the Property is taken or condemned for any
public use under any Law or by right of eminent domain, or by private purchase
in lieu thereof, and such taking would prevent or materially interfere with the
Permitted Use of the Premises, this Lease shall terminate effective when the
physical taking of said Premises occurs. If less than a substantial portion of
the Property is so taken or condemned, or if the taking or condemnation is
temporary (regardless of the portion of the Property affected), this Lease shall
not terminate, but the Rent payable hereunder shall be proportionally abated to
the extent of any actual loss of use of the Premises by Tenant. Landlord shall
be entitled to any and all payment, income, rent or award, or any interest
therein whatsoever, which may be paid or made in connection with such a taking
or conveyance, and Tenant shall have no claim against Landlord for the value of
any unexpired portion of this Lease. Notwithstanding the foregoing, any
compensation specifically and independently awarded to Tenant for loss of
business or goodwill, or for its personal property, shall be the property of
Tenant.
20. SURRENDER AND HOLDOVER. On the last day of the Term, or upon any
------------------------
earlier termination of this Lease, or upon any re-entry by Landlord upon the
Premises, (a) Tenant shall quit and surrender the Premises to Landlord
"broom-clean" and in good order, condition and repair (as defined by EXHIBITC,
--------
attached hereto and incorporated herein by reference), except for ordinary wear
and tear and such damage or destruction as Landlord is required to repair or
restore under this Lease, (b) Tenant shall remove all of Tenant's Property
therefrom, except as otherwise expressly provided in this Lease, and (c) Tenant
shall surrender to Landlord any and all keys, access cards, computer codes or
any other items used to access the Premises. Landlord shall be permitted to
inspect the Premises in order to verify compliance with this Section 20 at any
time prior to (x) the Expiration Date, (y) the effective date of any earlier
termination of this Lease, or (z) the surrender date otherwise agreed to in
writing by Landlord and Tenant. The obligations imposed under the first sentence
of this SECTION 20 shall survive the termination or expiration of this Lease. If
any repairs are required to be performed in, to or at the Premises (pursuant to
the first sentence of this Section 20 or any other applicable provision of this
Lease) upon the expiration or termination of the Term, Tenant shall cause such
repairs to be performed, to Landlord's reasonable satisfaction, within 10
business days after the date on which this Lease is terminated or expired. If
Tenant fails to timely comply with the preceding sentence, then Landlord shall
have the right to cause the repairs to be performed, at Tenant's expense, and
all such expenses so incurred by Landlord shall bear interest (at the rate
specified in the second sentence of Section 22.3) from the date the expense is
incurred until the date paid, in full, by Tenant (inclusive of interest). If
Tenant remains in possession after the Expiration Date hereof or after any
earlier termination date of this Lease or of Tenant's right to possession: (i)
Tenant shall be deemed a tenant-at-will; (ii) Tenant shall pay 200% of the
aggregate of the Base Rent and Additional Rent last prevailing hereunder, and
also shall pay all actual damages sustained by Landlord, directly by reason of
Tenant's remaining in possession after the expiration or termination of this
Lease; (iii) there shall be no renewal or extension of this Lease by operation
of law; and (iv) the tenancy-at-will may be terminated by either party hereto
upon 30 days' prior written notice given by the terminating party to the
non-terminating party. The provisions of this Section 20 shall not constitute a
waiver by Landlord of any re-entry rights of Landlord provided hereunder or by
law.
21. EVENTS OF DEFAULT.
------ -----------
21.1. BANKRUPTCY OF TENANT. It shall be a default by Tenant under this
----------------------
Lease if Tenant makes an assignment for the benefit of creditors, or
files a voluntary petition under any state or federal bankruptcy or
insolvency law, or an involuntary petition alleging an act of
bankruptcy or insolvency is filed against Tenant under any state or
federal bankruptcy or insolvency law that is not dismissed within 90
days, or whenever a petition is filed by or against (to the extent not
dismissed within 90 days) Tenant under the reorganization provisions
of the United States Bankruptcy Code or under the provisions of any
state or federal law of like import, or whenever a petition shall be
filed by Tenant under the arrangement provisions of the United States
Bankruptcy Code or similar state or federal law, or whenever a
receiver of Tenant, or of, or for, the property of Tenant shall be
appointed, or Tenant admits it is insolvent or is not able to pay its
debts as they mature.
21.2. DEFAULT PROVISIONS. Each of the following shall constitute a
-------------------
default by Tenant under this Lease: (a) if Tenant fails to pay Rent or
any other payment when due hereunder within five days after written
notice from Landlord of such failure to pay on the due date; provided,
however, that if in any consecutive 12 month period, Tenant shall, on
two (2) separate occasions, fail to pay any installment of Rent on the
date such installment of Rent is due, then, on the third such occasion
and on each occasion thereafter on which Tenant shall fail to pay an
installment of Rent on the date such installment of Rent is due,
Landlord shall be relieved from any obligation to provide notice to
Tenant, and Tenant shall then no longer have a five day period in
which to cure any such failure; or (b) if Tenant fails, whether by
action or inaction, to timely comply with, or satisfy, any or all of
the obligations imposed on Tenant under this Lease (other than the
obligation to pay Rent) for a period of 30 days after Landlord's
delivery to Tenant of written notice of such default under this
Section 21.2(b); provided, however, that if the default cannot, by its
nature, be cured within such 30 day period, but Tenant commences and
diligently pursues a cure of such default promptly within the initial
30 day cure period, then Landlord shall not exercise its remedies
under Section 22 unless such default remains uncured for more than 60
days after the initial delivery of Landlord's original default notice;
or (c) Tenant vacates or abandons the Premises during the Term.
22. RIGHTS AND REMEDIES.
---------------------
22.1. LANDLORD'S CURE RIGHTS UPON DEFAULT OF TENANT. IF TENANT
---------------------------------------------------
defaults in the performance of any of its obligations under this
Lease, and fails to cure such default on a timely basis (pursuant to
Section 21.2), Landlord, without thereby waiving such default, may
(but shall not be obligated to) perform the same for the account, and
at the expense of, Tenant.
22.2. LANDLORD'S REMEDIES. In the event of any default by Tenant under
--------------------
this Lease, Landlord, at its option, and after any applicable notice
and cure period (as required pursuant to Section 21.2), but without
additional notice or demand from Landlord, if any, as provided in
SECTION 21.2 has expired, may, in addition to all other rights and
remedies provided in this Lease, or otherwise at law or in equity: (a)
terminate this Lease and Tenant's right of possession of the Premises;
or (h) terminate Tenant's right of possession of the Premises without
terminating this Lease; provided, however, that Landlord may, whether
Landlord elects to proceed under Subsections (a) or (b) above, relet
the Premises, or any part thereof for the account of Tenant, for such
rent and term and upon such terms and conditions as are acceptable to
Landlord. In addition, for purposes of any reletting, Landlord is
authorized to decorate, repair, alter and improve the Premises to the
extent deemed necessary by Landlord, in its sole discretion. In the
event of the termination of this Lease by Landlord pursuant to (a)
above, Landlord shall be entitled to recover from Tenant (i) all
damages and other sums that Landlord is entitled to recover under any
provision of this Lease or at law or in equity, including, but not
limited to, all fixed dollar amounts of Base Rent and Additional Rent
accrued and unpaid for the period up to and including such termination
date; (ii) all other additional sums payable by Tenant, or for which
Tenant is liable, or in respect of which Tenant has agreed to
indemnify Landlord, under any of the provisions of this Lease, that
may be then owing and unpaid; (iii) all costs and expenses (including,
without limitation, court costs and attorneys' reasonable fees)
incurred by Landlord in the enforcement of its rights and remedies
under this Lease; and (iv) any damages provable by Landlord as a
matter of law including, without limitation, an amount equal to the
positive difference, if any, between (x) the discounted present value
------------------------
(at 6%per annum) of the Base Rent provided to be paid for the
----------------
remainder of the Term (measured from the effective termination date of
this Lease) and (y) the fair market rental value of the Leased
Premises (determined at the date of termination of this Lease) after
deduction (from such fair market rental value) of the projected costs
and expenses of reletting the Premises (including the anticipated
costs of repairs, alterations, improvements, additions, legal fees and
brokerage commissions) as reasonably estimated by Landlord. If
Landlord elects to pursue its rights and remedies under Subsection (b)
above, and the Premises are relet and a sufficient sum is not realized
therefrom, then to satisfy the payment, when due, of Base Rent and
Additional Rent reserved under the Lease for any monthly period (after
payment of all Landlord's reasonable expenses of reletting), Tenant
shall, in Landlord's sole judgment, either (i) pay any such deficiency
monthly or (ii) pay such deficiency on an accelerated basis, which
accelerated deficiency shall be discounted at a rate of 6% per annum.
If Landlord elects to pursue its rights and remedies under Subsection
(b) above, and Landlord fails to relet the Premises, then Tenant shall
pay to Landlord the sum of (x) the projected costs of Landlord's
expenses of reletting (including the anticipated costs of repairs,
alterations, improvements, additions, legal fees and brokerage
commissions) as reasonably estimated by Landlord and (y) the
accelerated amount of Base Rent and Additional Rent due under the
Lease for the balance of the Term, discounted to present value at a
rate of 6% per annum. Tenant agrees that Landlord may file suit to
recover any sums due to Landlord hereunder from time to time and that
such suit or recovery of any amount due Landlord hereunder shall not
be any defense to any subsequent action brought for any amount not
theretofore reduced to judgment in favor of Landlord. If Landlord
elects to pursue its rights and remedies tinder Subsection (b), then
Landlord shall at any time have the further right and remedy to
rescind such election and pursue its rights and remedies under
Subsection (a). In the event Landlord elects, pursuant to clause (b)
of this Section 22.2, to terminate Tenant's right of possession only,
without terminating this Lease, Landlord may, at Landlord's option,
enter into the Premises, remove Tenant's Property, Tenant's signs and
other evidences of tenancy, and take and hold possession thereof, as
provided in Section 20 hereof; provided, however, that such entry and
possession shall not terminate this Lease or release Tenant, in whole
or in part, from Tenant's obligation to pay the Base Rent and
Additional Rent reserved hereunder for the full Term, or from any
other obligation of Tenant under this Lease. Any and all property that
may be removed from the Premises by Landlord pursuant to the authority
of the Lease or of law, to which Tenant is or may be entitled, may be
handled, removed or stored by Landlord at the sole risk, cost and
expense of Tenant, and in no event or circumstance shall Landlord be
responsible for the value, preservation or safekeeping thereof. Tenant
shall pay to Landlord, upon demand, any and all expenses incurred in
such removal and all storage charges against such property so long as
the same shall be in Landlord's possession or under Landlord's
control. Any such property of Tenant not retaken from storage by
Tenant within 30 days after the end of the Term, however terminated,
shall be conclusively presumed to have been conveyed by Tenant to
Landlord under this Lease as in a ▇▇▇▇ of sale, without further
payment or credit by Landlord to Tenant.
22.3. ADDITIONAL RIGHTS OF LANDLORD. Any and all costs, expenses and
--------------------------------
disbursements, of any kind or nature, incurred by Landlord or Agent in
connection with the enforcement of any and all of the terms and provisions of
this Lease, including attorneys' reasonable fees (through all appellate
proceedings), shall be due and payable (as Additional Rent) upon Landlord's
submission of an invoice therefor. All sums advanced by Landlord or Agent on
account of Tenant under this Section, or pursuant to any other provision of this
Lease, and all Base Rent and Additional Rent, if delinquent or not paid by
Tenant and received by Landlord when due hereunder, shall bear interest at the
rate of 5% per annum above the "prime" or "reference" or "base" rate (on a per
annum basis) of interest publicly announced as such, from time to time by the
Bank One, or its successor ("DEFAULT INTEREST"), from the due date thereof until
paid, and such interest shall be and constitute Additional Rent and be due and
payable upon Landlord's or Agent's submission of an invoice therefor. The
various rights, remedies and elections of Landlord reserved, expressed or
contained herein are cumulative and no one of them shall be deemed to be
exclusive of the others or of such other rights, remedies, options or elections
as are now or may hereafter be conferred upon Landlord by law.
22.4. EVENT OF BANKRUPTCY. In addition to, and in no way limiting the other
------------------
remedies set forth herein, Landlord and Tenant agree that if Tenant ever becomes
the subject of a voluntary or involuntary bankruptcy, reorganization,
composition, or other similar type proceeding under the federal bankruptcy laws,
as now enacted or hereinafter amended, then: (a) "adequate assurance of future
performance" by Tenant pursuant to Bankruptcy Code Section 365 will include (but
not be limited to) payment of an additional/new security deposit in the amount
of three times the then current Base Rent payable hereunder; (b) any person or
entity to which this Lease is assigned, pursuant to the provisions of the
Bankruptcy Code, shall be deemed, without further act or deed, to have assumed
all of the obligations of Tenant arising under this Lease on and after the
effective date of such assignment, and any such assignee shall, upon demand by
Landlord, execute and deliver to Landlord an instrument confirming such
assumption of liability; (c) notwithstanding anything in this Lease to the
contrary, all amounts payable by Tenant to or on behalf of Landlord under this
Lease, whether or not expressly denominated as "Rent", shall constitute "rent"
for the purposes of Section 502(b)(6) of the Bankruptcy Code; and (d) if this
Lease is assigned to any person or entity pursuant to the provisions of the
Bankruptcy Code, any and all monies or other considerations payable or otherwise
to be delivered to Landlord or Agent (including Base Rent, Additional Rent and
other amounts hereunder), shall be and remain the exclusive property of Landlord
and shall not constitute property of Tenant or of the bankruptcy estate of
Tenant. Any and all monies or other considerations constituting Landlord's
property tinder the preceding sentence not paid or delivered to Landlord or
Agent shall be held in trust by Tenant or Tenant's bankruptcy estate for the
benefit of Landlord and shall be promptly paid to or turned over to Landlord.
23. BROKER. Tenant covenants, warrants and represents that the broker set
------
forth in Section 1.9(A) was the only broker to represent Tenant in the
negotiation of this Lease ("TENANT'S BROKER"). LANDLORD covenants, warrants and
represents that the broker set forth in Section 1.9(B) WAS the only broker to
represent Landlord in the negotiation of this Lease ("Landlord's BROKER").
Landlord shall be solely responsible for paying the commission of Landlord's
Broker. Each party agrees to and hereby does defend, indemnify and hold the
other harmless against and from any brokerage commissions or finder's fees or
claims therefor by a party claiming to have dealt with the indemnifying party
and all costs, expenses and liabilities in connection therewith, including,
without limitation, reasonable attorneys' fees and expenses, for any breach of
the foregoing. The foregoing indemnification shall survive the termination or
expiration of this Lease.
24. MISCELLANEOUS.
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24.1. MERGER. All prior understandings and agreements between the parties
------
are merged in this Lease, which alone fully and completely expresses the
agreement of the parties. No agreement shall be effective to modify this Lease,
in whole or in part, unless such agreement is in writing, and is signed by the
party against whom enforcement of said change or modification is sought.
24.2. Notices. Any notice required to be given by either party pursuant
-------
to this Lease, shall be in writing and shall be deemed to have been properly
given, rendered or made only if personally delivered, or if sent by Federal
Express or other comparable commercial overnight delivery service, addressed to
the other party at the addresses set forth below (or to such other address as
Landlord or Tenant may designate to each other from time to time by written
notice), and shall be deemed to have been given, rendered or made on the day so
delivered or on the first business day after having been deposited with the
courier service:
If to Landlord: First Industrial Development Services, Inc.
3 Il ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Executive Vice
President-Operations
With a copy to: First Industrial Realty Trust, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Regional Manager
With a copy to: Barack ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇▇ LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇
If to Tenant: DATACALL TECHNOLOGIES
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
With a copy to: DATACALL TECHNOLOGIES
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇-▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
24.3. NON-WAIVER. The failure of either party to insist, in any one or
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more instances, upon the strict performance of any one or more of the
obligations of this Lease, or to exercise any election herein
contained, shall not be construed as a waiver or relinquishment for
the future of the performance of such one or more obligations of this
Lease or of the right to exercise such election, but the Lease shall
continue and remain in full force and effect with respect to any
subsequent breach, act or omission. The receipt and acceptance by
Landlord or Agent of Base Rent or Additional Rent with knowledge of
breach by Tenant of any obligation of this Lease shall not be deemed a
waiver of such breach.
24.4. LEGAL COSTS. Any party in breach or default under this Lease
------------
(the "DEFAULTING PARTY") shall reimburse the other party (the
"Nondefaulting PARTY") upon demand for any legal fees and court (or
other administrative proceeding) costs or expenses that the
Nondefaulting Party incurs in connection with the breach or default,
regardless whether suit is commenced or judgment entered. Such costs
shall include legal fees and costs incurred for the negotiation of a
settlement, enforcement of rights or otherwise. Furthermore, in the
event of litigation, the court in such action shall award to the party
in whose favor a judgment is entered a reasonable sum as attorneys'
fees and costs, which sum shall be paid by the losing party. Tenant
shall pay Landlord's attorneys' reasonable fees incurred in connection
with Tenant's request for Landlord's consent under provisions of this
Lease governing assignment and subletting, or in connection with any
other act which Tenant proposes to do and which requires Landlord's
consent.
24.5. PARTIES BOUND. Except as otherwise expressly provided for in
--------------
this Lease, this Lease shall be binding upon, and inure to the benefit
of, the successors and assignees of the parties hereto. Tenant hereby
releases Landlord named herein from any obligations of Landlord for
any period subsequent to the conveyance and transfer of Landlord's
ownership interest in the Property. In the event of such conveyance
and transfer, Landlord's obligations shall thereafter be binding upon
each transferee (whether Successor Landlord or otherwise). No
obligation of Landlord shall arise under this Lease until the
instrument is signed by, and delivered to, both Landlord and Tenant.
24.6. RECORDATION OF LEASE. Tenant shall not record or file this Lease
----------------------
(or any MEMORANDUM hereof) in the public records of any county or
state.
24.7. SURVIVAL OF OBLIGATIONS. Upon the expiration or other
-------------------------
termination of this Lease, neither party shall have any further
obligation nor liability to the other except as otherwise expressly
provided in this Lease and except for such obligations as, by their
nature or under the circumstances, can only be, or by the provisions
of this Lease, may be performed after such expiration or other
termination.
24.8. GOVERNING LAW; CONSTRUCTION. This Lease shall be governed by and
-----------------------------
construed in accordance with the laws of the state in which the
Property is located. If any provision of this Lease shall be invalid
or unenforceable, the remainder of this Lease shall not be affected
but shall he enforced to the extent permitted by law. The captions,
headings and titles in this Lease are solely for convenience of
reference and shall not affect its interpretation. This Lease shall be
construed without regard to any presumption or other rule requiring
construction against the party causing this Lease to be drafted. Each
covenant, agreement, obligation, or other provision of this Lease to
be performed by Tenant, shall be construed as a separate and
independent covenant of Tenant, not dependent on any other provision
of this Lease. All terms and words used in this Lease, regardless of
the number or gender in which they are used, shall be deemed to
include any other number and any other gender as the context may
require. This Lease may be executed in counterpart and, when all
counterpart documents are executed, the counterparts shall constitute
a single binding instrument.
24.9. Time. Time is of the essence for this Lease. If the time for
performance hereunder falls on a Saturday, Sunday or a day that is
recognized as a holiday in the state in which the Property is located,
then such time shall be deemed extended to the next day that is not a
Saturday, Sunday or holiday in said state.
24.10. AUTHORITY OF TENANT. IF TENANT is a corporation, partnership, limited
-------------------
liability company, association or any other entity, it shall deliver to
Landlord, concurrently with the delivery to Landlord of an executed Lease,
certified resolutions of Tenant's directors or other governing person or body
(i) authorizing execution and delivery of this Lease and the performance by
Tenant of its obligations hereunder and (ii) certifying the authority of the
party executing the Lease as having been duly authorized to do so.
24.11. WAIVER OF TRIAL BY JURY. THE LANDLORD AND THE TENANT, TO THE
---------------------------
FULLEST EXTENT THAT THEY MAY LAWFULLY DO SO, HEREBY WAIVE TRIAL BY
JURY IN ANY ACTION OR PROCEEDING BROUGHT BY ANY PARTY TO THIS LEASE
WITH RESPECT TO THIS LEASE, THE PREMISES, OR ANY OTHER MATTER RELATED
TO THIS LEASE OR TIlE PREMISES.
24.12. RELOCATION. Landlord shall have the right to relocate Tenant from the
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Premises to comparable (as to size, configuration and improvements) alternative
space in the Property ("REPLACEMENT Premises") upon 90 days' prior written
notice to Tenant. In the event of such a relocation, Landlord shall make
reasonable, good faith efforts to coordinate with Tenant a mutually acceptable
plan (as to scope and timing) for such relocation, and Landlord shall be
responsible for the third party costs incurred to accomplish the physical
relocation of Tenant (e.g. movers and telephone company charges). If the
Replacement Premises are larger in size than the original Premises, there shall
be no adjustment in Tenant's Base Rent; however, Tenant's Proportionate Share
shall be appropriately modified, thereby resulting in a potential increase in
Tenant's Additional Rent. If, however, the Replacement Premises is a smaller
size (as to rentable square feet) than the original Premises, Landlord shall
appropriately adjust both Tenant's Base Rent and its Proportionate Share.
24.13. FINANCIAL INFORMATION. From time to time during the Term, Tenant
----------------------
shall deliver to Landlord information and documentation describing and
concerning Tenant's financial condition and in form and substance reasonably
acceptable to Landlord, within ten (10) days following Landlord's written
request therefor.
24.14. CONFIDENTIAL INFORMATION. TENANT agrees to maintain in strict
-------------------------
confidence the economic terms of this Lease and any or all other materials, data
and information delivered to or received by any or all of Tenant and Tenants'
Parties either prior to or during the Term in connection with the negotiation
and execution hereof. The provisions of this Section 24.14 shall survive the
termination of this Lease.
24.15. SUBMISSION OF LEASE. Submission of this Lease to Tenant for signature
-------------------
does not constitute a reservation of space or an option to lease. This Lease is
not effective until execution by and delivery to both Landlord and Tenant.
24.16. JOINT AND SEVERAL LIABILITY. All parties signing this Lease as Tenant
---------------------------
shall be jointly and severally liable for all obligations of Tenant hereunder.
24.17. EXHIBITS. All Exhibits attached hereto shall be deemed to be a part
--------
hereof and hereby incorporated herein.
[Signature Page to Follow]
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of the
day and year first above written.
LANDLORD:
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FIRST INDUSTRIAL DEVELOPMENT SERVICES, INC.,
A MARYLAND CORPORATION
WITNESS: By:
------------------ ---------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
Regional Manager
TENANT:
------
DATACALL TECHNOLOGIES
WITNESS: By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------ --------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
President
Date: 3/23/05
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TAX lD#:
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EXHIBIT A
Legal Description
Being 10.6885 acres of land out of and a part of the Unrestricted Reserve
"C" of Greenbriar North, Section Two, a subdivision recorded in Volume 225, Page
62 in the ▇▇▇▇▇▇ County Map Records, ▇▇▇▇▇▇ County, Texas, said tract also being
out of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Survey, Abstract No. 699, ▇▇▇▇▇▇ County, Texas and
being more particularly described by metes and bounds as follows:
BEGINNING at a found 5/8 inch iron rod marking the more northerly northeast
cutback corner, at the intersection of the east right-of-way line of Hedgecroft
Drive (60 feet wide) and the south right-of-way line of ▇▇▇▇▇▇▇ Drive (60 feet
wide), said point being the north most west corner of the herein described
tract;
THENCE, N 87' 32' 7" E, along the south right-of-way line said ▇▇▇▇▇▇▇
Drive, a distance of 1165.00 feet to a found 5/8 inch iron rod for a point of
curvature;
THENCE, along a curve to the left, and the south right-of-way line of said
▇▇▇▇▇▇▇ Drive, said curve having a radius of 1176.00 feet, a delta of 77' 00'
40", and an arc length of 349.15 feet, said curve also having a tangency of
175.87 feet and a long chord bearing of curvature;
THENCE, N 70' 31' 27" E, along the south right-of-way line of said ▇▇▇▇▇▇▇
Drive, a distance of 11.27 feet to a found 5/8 inch iron rod for corner said
paint also lying on the more westerly southwest cutback corner for the
intersection of the south right-of-way line of said ▇▇▇▇▇▇▇ Drive and the west
right-of-way line of West Hardy Road (varying width);
THENCE, S 65' 22' 48" E, along the more westerly Southwest cutback corner
for the intersection of the south right-of-way line of said ▇▇▇▇▇▇▇ Drive and
the west right-pf-way line of said West Hardy Road, a distance of 14.36 feet to
a found 5/8 Inch Iron rod for corner, said point lying on the west right-of-way
line of said West Hardy Road;
THENCE, S 21' 17' 05" F, along the west right-of-way line of said West
Hardy Road, a distance of 352.03 feet to a found 5/8 inch iron rod;
THENCE 5 87' 32' 07" W, a distance of 1656.17 feet to a found 5/8 inch iron
rod for a corner, said point lying on the east right-of-way line of said
Hedgecroft Drive;
THENCE, N 02' 27' 54" W, along the east right-of-way line of said
Hedgecroft Drive, a distance of 275.00 feet to a found 5/8 Inch Iron rod for
corner, said portion lying on the more easterly southeast outback corner at the
intersection of the east right-of-way line of said Hedgecroft Drive and the
south right-of-way line of said ▇▇▇▇▇▇▇ Drive;
THENCE, N 42' 32' 07" E, along said southeast cutback line a distance of
14.14 feet to a found 5/8 Inch Iron rod for corner, said point being the POINT
OF BEGINNING, and containing 10.6885 acres of land.
EXHIBIT A-I
Space Plan
EXHIBIT B
Landlord's Repairs & Improvements
Tenant accepts the space "As-Is" with the exception of the following, which
Landlord agrees to perform at its sole cost and expense:
I. Service the HVAC units; clean units and change filters.
2. Certify that all plumbing fixtures are in good and working order
within fifteen (15) days of the Lease Commencement Date.
EXHIBIT C
Tenant Move-Out Responsibilities
- First Industrial does not permit decals, stickers or other material
to he affixed to the storefront glass. Should any have been displayed, they
should he removed, without damage to, or residue remaining upon, the glass or
reflective film. Tenant must remove all signs on building.
- All exterior and interior locks and all door hardware should be in
good repair and operating condition. If tenant has rekeyed so that current locks
are not compatible with our master keying system, we will need to rekey the
exterior locks to our master system. at tenant's expense. Also, keys are needed
for each interior lock, including doors. a/c thermostat boxes, towel holders,
etc.
- Interior glass, mullions, ▇▇▇▇▇ and mini-blinds should he cleaned.
Damaged blinds should he repaired, or replaced, if required.
- Alarm system hardware, including control panels, keypads and sensors,
should he deactivated and removed, and any wall or other damage from mounting
should he repaired.
- Air conditioning systems should be in good operating order and free
of any immediate maintenance or repair needs. Air conditioning filters should be
replaced within thirty (30) days prior to vacancy. Tenant must supply landlord
with maintenance records.
- All plumbing should be operational, including hot water heaters, and
free from leaks or stoppages. Fixtures should not he dented, cracked or chipped.
- All ceiling lights should he fully operational.
- All ceiling tile and grid should be complete, intact and undamaged.
- Wall surfaces should be free of mounting brackets, or holes
therefrom. Water or impact damage to walls should he repaired. Patchwork should
be neat, to blend in with existing wall finish. Holes in doors or trim should he
similarly repaired.
- Vinyl or other wood base or molding should he complete, intact and
free from damage.
- Carpets should he thoroughly vacuumed. If heavily soiled, carpet will
require shampooing or other soil-extraction treatment. If stains can be "spot
removed," this may he acceptable. Vinyl or other floor tile should he cleaned.
- Restrooms should he thoroughly cleaned, as in the normal housekeeping
routine for the suite. This includes fixtures, mirrors, vanity and cabinet tops
and interiors.
- All mechanical equipment should be in good operating order. This
includes sump pumps, hoists and lifts, dock levelers. motorized dampers and
exhaust fans.
- Warehouse, shop. plant and other concrete floors should be cleaned of
any sediment adhering to the surface, and then swept clean.
- Holes in warehouse walls should he patched.
- Roll-up doors should he in good repair and operation. interior
surfaces should be reasonably clean and free from dirt or other sediment.
- Any shelving, partitions or other structures within the warehouse
must be in good condition, meeting all building and safety codes, or else he
repaired or removed, at the option of FIRST INDUSTRIAL.
- Cobwebs should be removed from all office and warehouse areas.
- All EXIT and emergency lighting should be fully operational.
- All fire extinguishers should be fully charged, and mounted as per
code.
- All debris must he removed from interior and exterior of suite and
properly disposed of by tenant.
- Any damage tot he exterior of the suite, including the building
structure, light fixtures, dock bumpers, stairs, truck ▇▇▇▇▇, guardrails,
bollards, or air conditioning equipment, caused by the tenant, its agents or
employees, will be repaired by FIRSI INDUSTRIAL at tenant's expense.
- No fixtures of' any type may he removed from the suite without
written permission from FIRST INDUSTRIAL. This includes all fixtures, whether
provided by the landlord or tenant. A Fixture is anything that is attached to
the building or premises.
- Any and all tenant-provided improvements must meet building code
requirements as well as FIRST INDUSTRIAL standards fur construction, be
brought to meet same, or be demolished and removed and the premises
restored, at FIRST INDUSIRIAL'S option.
APPROXIMATE ANNUAL STORAGE CONTAINER(S)
QUANTITY USED OR (I.E. DRUMS, CARTONS, TOTES,
CHEMICALLWASTE GENERATED BAGS, ASTS, USTS, ETC)
EXHIBIT D
EXHIBIT E
Rules and Regulations
1. Landlord agrees to furnish Tenant two keys without charge.
Additional keys will be furnished at a nominal charge.
2. Tenant will refer all contractors, contractor's representatives and
installation technicians rendering any service on or to the leased premises for
Tenant, to Landlord for Landlord's approval and supervision before performance
of any contractual service. This provision shall apply to all work performed on
or about the leased premises or project, including installation of telephones,
telegraph equipment, electrical devices and attachments and installations of any
nature affecting floors, walls, woodwork, trim, windows, ceilings and equipment
or any other physical portion of the leased premises or project.
3. Tenant shall not at any time occupy any part of the leased premises
or project as sleeping or lodging quarters.
4. Tenant shall not place, install or operate on the leased premises or
in any part of the building, any engine, stove or machinery, or conduct
mechanical operations or ▇▇▇▇ thereon or therein, or place or use in or about
the leased premises or project any explosives, gasoline, kerosene, oil, acids,
caustics, or any flammable, explosive or hazardous material without written
consent of Landlord.
5. Landlord will not be responsible for lost or stolen personal
property, equipment, money or jewelry from the leased premises or the project
regardless of whether such loss occurs when the area is locked against entry or
not.
6. No dogs, cats, fowl, or other animals shall be brought into or kept
in or about the leased premises or project.
7. Employees of Landlord shall not receive or carry messages for or to
any Tenant or other person, nor contract with or render free or paid services to
any Tenant or Tenant's agents, employees or invitees.
8. None of the parking plaza, recreation or lawn areas, entries,
passages, doors, elevators, hallways or stairways shall be blocked or obstructed
or any rubbish, litter, trash, or material of any nature placed, emptied or
thrown into these areas or such area be used by Tenant's agents, employees or
invitees at any time for purposes inconsistent with their designation by
Landlord.
9. The water closets and other water fixtures shall not he used for any
purpose other than those for which they were constructed, and any damage
resulting to them from misuse, or by the defacing or injury of any part of the
building shall be borne by the person who shall occasion it. No person shall
waste water by interfering with the faucets or otherwise.
10. No person shall disturb occupants of the building by the use of any
radios, record players, tape recorders, musical instruments, the making of
unseemly noises, or any unreasonable use.
11. Nothing shall be thrown out of the windows of the building or down
the stairways or other passages.
12. Notwithstanding anything contained herein pertaining to use,
Landlord agrees that Tenant will utilize the building for office administration,
package sorting, and will drive and store delivery vehicles within the warehouse
portion of the building.
EXHIBIT F
Termination Option
Provided Tenant has not been in default during the term of this Lease,
Tenant shall have a one-time option to terminate this Lease effective on April
1, 2007. This termination option shall be null and void, and of no further
force, unless Tenant complies with the following provisions for the exercise of
this option: i) at least 180 days prior to the date on which the early
termination would be effective, Tenant shall deliver to Landlord, in the manner
of delivery specified in this Lease for notices, a letter notifying Landlord of
Tenant's intent to terminate; and ii) such letter shall be accompanied by a
check in the amount of $3,365.00 as a penalty which includes two (2) months of
Rent and Operating Expenses and reimbursement of unamortized Commissions.
EXHIBIT G
Signage
Pursuant to and in addition to Section 4.3. (Signage), the sign
specifications for 600 ▇▇▇▇▇▇▇ are as follows:
Dimensions:
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2'X 3', 1" flange, 4" radius corners, PMS 5655C background PMS 343C border
and flange
Material:
Aluminum Pan Sign
Means of Attachment:
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Aluminum angle iron bracketed to the wall (1" aluminum)
Approved Sign Companies:
First Industrial's approved vendors are 4D Graphics and Art Office Signs.
Contact:
▇▇▇▇ ▇▇▇▇▇
Art Office Signs
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Contact:
▇▇▇▇▇ ▇▇▇▇▇
4D Graphics
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT H
Tenant Contact Information
GENERAL/MARKETING CONTACT