Exhibit 10.5
Cornerstone Suburban Office, L.P.,
A Delaware Limited Partnership
Office Lease
by and between
Cornerstone Suburban Office, L.P., and
▇▇ ▇▇▇▇, Inc., a Delaware corporation
For: First Financial Plaza
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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OFFICE LEASE
THIS LEASE, made as of this 24th day of December, 1999 by and between
CORNERSTONE SUBURBAN OFFICE, L.P., a Delaware limited partnership ("Landlord")
through its agent CORNERSTONE REAL ESTATE ADVISERS, INC., having an address at
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇ ▇▇▇▇,
Inc., a Delaware Corporation ("Tenant"), having its principal office at ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
INDEX
Article Title
1. Basic Provisions
2. Premises, Term and Commencement Date
3. Rent
4. Taxes and Operating Expenses
5. Landlord's Work, Tenant's Work, Alterations and Additions
6. Use
7. Services
8. Insurance
9. indemnification
10. Casualty Damage
11. Condemnation
12. Repair and Maintenance
13. Inspection of Premises
14. Surrender of Premises.
15. Holding Over
16. Subletting and Assignment
17. Subordination, Attornment and Mortgagee Protection
18. Estoppel Certificate
19. Defaults
20. Remedies of Landlord
21. Quiet Enjoyment
22. Accord and Satisfaction
21. Security Deposit
24. Brokerage Commission
25. Force Majeure
26. Parking
27. Hazardous Materials
28. Additional Rights Reserved by Landlord
29. Defined Terms
30. Miscellaneous Provisions
EXHIBITS
Exhibit A Plan Showing Property and Premises
Exhibit B Landlord's Work Letter
Exhibit C Tenant's Work
Exhibit D Building's Rules and Regulations; Janitorial Specifications
Exhibit E Commencement Date Confirmation
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ARTICLE 2.
PREMISES, TERM AND COMMENCEMENT DATE
Landlord hereby leases and demises to the Tenant and Tenant hereby takes
and leases from Landlord that certain space identified in Article I and shown on
a plan attached hereto as Exhibit A ("Premises") for a term ("Term") commencing
on the Commencement Date and ending on the Expiration Date set forth in Article
1, unless sooner terminated as provided herein, subject to the provisions herein
contained. The Commencement Date set forth in Article 1 shall be advanced to
such earlier date as Tenant commences occupancy of the Premises for the conduct
of its business. Such date shall be confirmed by execution of the Commencement
Date Confirmation in the form as set forth in Exhibit E. If Landlord delays
delivering possession of the Premises or substantial completion of any
Landlord's Work under Exhibit B, this Lease shall not be void or voidable,
except as provided in Article 5, and Landlord shall have no liability for loss
or damage resulting therefrom.
ARTICLE 3.
RENT
A. Monthly Rent. Tenant shall pay Monthly Rent in advance on or before the
first day of each month of the Term. The Term shall commence and end on
a day other than the first day of a month, the Monthly Rent for the
first and last partial month shall be prorated on a per diem basis. Upon
the execution of this Lease, Tenant shall pay one installment of Monthly
Rent for the first foil month of the Term and a prorated Monthly Rent
for any partial month which may precede it.
B. Additional Rent. All costs and. expenses. which Tenant assumes or agrees
to pay and any other sum payable by Tenant pursuant to this Lease,
including, without limitation, its share of Taxes and Operating
Expenses, shall be deemed Additional Rent
C. Rent. Monthly Rent, Additional Rent. Taxes and Operating Expenses and
any other amounts which Tenant is or becomes obligated to pay Landlord
under this Lease are herein referred to collectively as "Rent", and all
remedies applicable to the nonpayment of Rent shall be applicable the
Landlord may apply payments received from Tenant to any obligations of
Tenant then accrued, without regard to such obligations as may be
designated by Tenant.
D. Place of Payment, Late Charge, Default Interest. Rent and ether charges
required to be paid under this Lease, no matter how described, shall be
paid by Tenant to Landlord at the Building Manager1s address listed in
Article I, or to such other person and/or address as Landlord may
designate in writings without any prior notice or demand therefor and
without deduction or set-off or counterclaim and without relief from any
valuation or appraisement laws. In the event Tenant fails to pay Rent
due under this Lease within ten (10) days of due date of said Rent,
Tenant shall pay to Landlord a late charge of ten percent (10%) on the
amount overdue. Any Rent not paid when due shall also bear interest at
the Default Rate.
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ARTICLE 4.
TAXES AND OPERATING EXPENSES
A. Payment of Taxes end Operating Expenses. It is agreed that during each
Lease Year beginning with the first month of the second Lease Year and
each month thereafter during the original Lease Term, or any extension
thereof, Tenant shall pay to Landlord as Additional Rent, at the same
time as the Monthly Rent is paid, an amount equal to one-twelfth (1/12)
of Landlord's estimate (as determined by Landlord in Its sole
discretion) of Tenant's Pro Rata Share of any projected increase in the
Taxes or Operating Expenses for the particular Lease Year in excess of
the Tax Base or Operating Expenses Base, as the case may be (the
"Estimated Escalation Increase"). A final adjustment (the "Escalation
Reconciliation") to be made between the parties as soon as practicable
following the end of each Lease Year, but in no event later than ninety
(90) days after the end of each Lease Year. In computing the Estimated
Escalation Increase for any particular Lease Year, Landlord shall take
into account any prior increases in Tenant's Pro ▇▇▇▇ Share of Taxes and
Operating Expenses. If during any Lease Year the Estimated Escalation
Increase is less than the Estimated Escalation Increase for the previous
Lease Year on which Tenant's share of taxes and Operating Expenses were
based for said year, such Additional Rent payments, attributable to
Estimated Escalation increase, to be paid by Tenant for the new tease
Year shall be decreased accordingly; provided, however, in no event will
the Rent paid by Tenant hereunder ever be less than the Monthly Rent
plus all other amounts of Additional Rent.
As soon as practicable following the end of each Lease Year, Landlord
shall submit to Tenant a statement setting forth the Estimated
Escalation Increase, if any. Beginning with said statement for the
second Lease Year, it shall also set forth the Escalation Reconciliation
for the Lease Year just completed. To the extent that the Operating
Expense Escalation is different from the Estimated Escalation Increase
upon which Tenant paid Rent during the Lease Year just completed, Tenant
shall pay Landlord the difference in cash within thirty (30) days
following receipt by Tenant of such statement from Landlord, or receive
a credit on future Rent owing hereunder (or cash if there is no future
Rent owing hereunder) as the case may be. Until Tenant receives such
statement, Tenant's Rent for the new Lease Year shall continue to be
paid at the rate being paid for the particular Lease Year just
completed, but Tenant shall commence payment to Landlord of the monthly
installment of Additional Rent on the basis of said statement beginning
on the first day of the month following the month in which Tenant
receives such statement. In addition to the above, if, during any
particular Lease Year, there is a change in the information on which
Landlord based the estimate upon which Tenant is then making its
estimated payment of Taxes and Operating Expenses so that such Estimated
Escalation Increase furnished to Tenant is no longer accurate, Landlord
shall be permitted to revise such Estimated Escalation Increase by
notifying Tenant, and there shall be such adjustments made in the
Additional Rent on the first day of the month following the serving of
such statement on Tenant as shall be necessary by either increasing or
decreasing, as the case may be, the amount of Additional Rent then being
paid by Tenant for the balance of the Lease Year (but in no event shall
any such decrease result in a reduction of the rent below the Monthly
Rent plus all other amounts of Additional Rent). Landlord's and Tenant's
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responsibilities with respect to the Tax and Operating Expense
adjustments described herein shall survive the expiration or early
termination of this Lease.
If the Building is not fully occupied during any particular Lease Year,
Landlord may adjust those Operating Expenses which are affected by
Building occupancy fur the particular Lease Year, or portion thereof, as
the case may be, to reflect an occupancy of not less than ninety-five
percent (95%) of all such rentable area of the Building.
B. Disputes Over Taxes or Operating Expenses. If Tenant disputes the amount
of an adjustment or the proposed estimated increase or decrease in Taxes
or Operating Expenses, Tenant shall give Landlord written notice of such
dispute within thirty (30) days after Landlord advises Tenant of such
adjustment or proposed increase or decrease. Tenant's failure to give
such notice shall waive its right to dispute the amounts so determined.
If Tenant timely objects, Tenant shall have the right to engage Its own
accountants ("Tenant's Accountants") for the purpose of verifying the
accuracy of the statement in dispute or the reasonableness of the
adjustment or estimated increase or decrease. If Tenant's Accountants
determine that an error has been made, Landlord and Tenant's Accountants
shall endeavor to agree upon the matter, failing which Landlord and
Tenant's Accountants shall jointly select an independent certified
public accounting firm (the "Independent Accountant") which firm shall
conclusively determine whether the adjustment or estimated increase or
decrease is reasonable, and if not, what amount is reasonable. Both
parties shall be bound by such determination. If Tenant's Accountants do
not participate in choosing the Independent Accountant within 20 days
notice by Landlord, then Landlord's determination of the adjustment or
estimated increase or decrease shall be conclusively determined to be
reasonable and Tenant shall be bound thereby. All costs incurred by
Tenant in obtaining Tenant's Accountants and the cost of the Independent
Accountant shall be paid by Tenant unless Tenant's Accountants disclose
an error, acknowledged by Landlord (or found to have conclusively
occurred by the Independent Accountant) of more than ten percent (10%)
in the computation of the total amount of Taxes or Operating Expenses as
set forth in the statement submitted by Landlord with respect to the
matter in dispute; in which event Landlord shall pay the reasonable
costs incurred by Tenant in obtaining such audits. Tenant shall continue
to timely pay Landlord the amount of the prior year's adjustment and
adjusted Additional Rent determined to be incorrect as aforesaid until
the parties have concurred as to the appropriate adjustment or have
deemed to be bound by the determination of the Independent Accountant in
accordance with the preceding terms. Landlord's delay in submitting any
statement contemplated herein for any Lease Year shall not affect the
provisions of this Paragraph, nor constitute a waiver of Landlord's
rights as set forth herein for said Lease Year or any subsequent Lease
Years during the Lease Term or any extensions thereof.
ARTICLE 5.
LANDLORD'S WORK, TENANT'S WORK,
ALTERATIONS AND ADDITIONS
A. Landlords Work. Landlord shall construct the Premises in accordance with
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Landlord's obligations as set forth in the work Letter attached hereto
as Exhibit B, and hereinafter referred to as "Landlord's Work." Landlord
will deliver the Premises to Tenant with all of Landlord's Work
completed (except for minor and non-material punch list items which in
Landlord's reasonable judgment will not delay completion of Tenant's
Work, as defined in subparagraph B of this Article) on or before the
date specified in Exhibit B and Tenant agrees thereupon to commence and
complete Tenant's Work on or before the Commencement Date. If Landlord
is delayed in completing Landlord's Work by strike, shortages of labor
or materials, delivery delays or other matters beyond the reasonable
control of Landlord, then Landlord shall give notice thereof to Tenant
and the date on which Landlord is to turn the Premises over to Tenant
for Tenant's Work and the Commencement Date shall be postponed for an
equal number of days as the delay as set forth in the notice. Providing,
however, if such delays exceed one hundred and twenty (120) days, then
either Landlord or Tenant upon notice to the other shall have the right
to terminate this Lease without liability to either party. If the
Commencement Date is postponed as aforesaid, Tenant agrees upon request
of Landlord to execute a writing confirming the Commencement Date on
such form as set forth in Exhibit E attached hereto.
B. Tenant's Work. On and after the date specified in the immediately
preceding subparagraph A for delivery of the Premises to Tenant for
Tenant's Work; Tenant; at its sole cost and expense, shall perform and
complete all other improvements to the Premises (herein called "Tenant's
Work") including, but not limited to, all improvements, work and
requirements required of Tenant wider the foregoing work letter. Tenant
shall complete all of Tenant's Work in good and workmanlike manner,
fully paid for and free from liens, in accordance with the plans and
specifications approved by Landlord and Tenant as provide in Exhibit C,
on or prior to the scheduled Commencement Date. Tenant shall also have
the right during this period to come onto the Premises to install its
fixtures and prepare the Premises for the operation of Tenant's
business. Notwithstanding the fact that foregoing activities by Tenant
will occur prior to the scheduled Commencement Date, Tenant agrees that
all of Tenant's obligations provided for in this Lease shall apply
during such period with the exception of any obligation to pay Rent.
C. Alterations. Except as provided in the immediately preceding
subparagraph, Tenant shall make no alterations or additions to the
Premises without the prior written consent of the Landlord, which
consent Landlord may grant or withhold in its sole discretion.
D. Liens. Tenant shall give Landlord at least ten (10) days prior written
notice (or such additional time as may be necessary under applicable
laws) of the commencement of any Tenant's Work, to afford Landlord the
opportunity of posting and recording notices of non-responsibility.
Tenant will not cause or permit any mechanic's, materialman's or similar
liens or encumbrances to be flied or mist against the Premises or the
Building or Tenant's interest in this Lease in connection with work done
under this: Article or in connection with any other work. Tenant shall
remove any such lien or encumbrance by bond or otherwise within twenty
(20) days from the date of their existence. If Tenant fails to do so,
Landlord may pay the amount or take such other action as Landlord deems
necessary to remove any such lien or encumbrance, without being
responsible to investigate the validity thereof The amounts so paid and
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costs incurred by Landlord, shall be deemed Additional Rent under this
Lease and payable in full upon demand.
E. Compliance with ADA. Notwithstanding anything to the contrary contained
in this Lease, Landlord and Tenant agree that responsibility for
compliance with the Americans With Disabilities Act of 1990 (the "ADA")
shall be allocated as follows: (I) Landlord shall be responsible for
compliance with the provisions of Title Ill of the ADA for all Common
Areas, including exterior and interior areas of the Building not
included within the Premises or the premises of other tenants; (II)
Landlord shall be responsible for compliance with the provisions of
Title III of the ADA for any construction, renovations, alterations and
repairs made within the Premises if such construction, renovations,
alterations or repairs are made by Landlord for the purpose of improving
the Building generally or are done as Landlord's Work and the plans and
specifications for the Landlord's Work were prepared by Landlord's
architect or space planner and were not provided by Tenant's architect
or space planner, (iii) Tenant shall be responsible for compliance with
the provisions of Title III of the ADA for any construction,
renovations, alteration and repairs made within the Premises if such
construction, renovations, alterations and repairs are made by Tenant,
its employees, agents or contractors, at the direction of Tenant or done
pursuant to plans and specifications prepared or provided by Tenant or
Tenant's architect or space planner.
ARTICLE 6.
USE
A. Use. Tenant shall use the Premises for general office purposes, and for
no other purpose whatsoever, subject to and in compliance with all other
provisions of this Lease, including without limitation the Building's
Rules and Regulations attached as Exhibit D hereto. Tenant and its
invitees shall also have the non-exclusive right, along with other
tenants of the Building and others authorized by Landlord, to use the
Common Areas subject to such rules and regulations as Landlord in its
discretion may impose from time to time.
B. Restrictions. 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 which: (a) causes or is liable to cause injury
to persons, to the Building or its equipment, facilities or systems; (b)
impairs or tends to impair the character, reputation or appearance of
the Building as a first class office building; (c) impairs or tends to
impair the proper and economic maintenance, operation and repair of the
Building or its equipment, facilities or systems; or (d) annoys or
inconveniences or tends to annoy or inconvenience other tenants or
occupants of the Building.
C. Compliance with Laws. Tenant shall keep and maintain the Premises, its
use thereof and its business in compliance with all, governmental laws,
ordinances, rules and regulations. Tenant shall comply with all Laws
relating to the Premises and Tenant's use thereof, including without
limitation, Laws requiring the Premises to be closed on Sundays or any
other days or hours and Laws in connection with the health, safety and
building codes, and any permit or license requirements. Landlord makes
no representation that the Premises are suitable for Tenant's purposes.
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ARTICLE 7.
SERVICES
A. Climate Control. Landlord shall furnish heat or air conditioning to the
Premises during Normal Business Hours of Building as set forth in
Article 1 as required in Landlord's reasonable judgment for the
comfortable use and occupation of the Premises. If Tenant requires heat
or air conditioning at any other time, Landlord shall use reasonable
efforts to furnish such service upon reasonable notice from Tenant, and
Tenant shall pay all of Landlord's charges therefor on demand.
The performance by Landlord of its obligations under this Article is
subject to Tenant's compliance with the terms at this Lease including
any connected electrical load established by Landlord. Tenant shall not
use the Premises or any part thereof in a manner exceeding the beating,
ventilating or air-conditioning ("HVAC") design conditions (including
any occupancy or connected electrical load conditions), including the
rearrangement of partitioning which may interfere with the normal
operation of the HVAC equipment, or the use of computer or data
processing machines or other machines or equipment in excess of that
normally required for a standard office use of the Premises. If any such
use requires changes in the HVAC or plumbing systems or controls
servicing the Premises or portions thereof in order to provide
comfortable occupancy, such changes may be made by Landlord at Tenant's
expense and Tenant agrees to promptly pay any such amount to Landlord as
Additional Rent.
B. Elevator Service. If the Building is equipped with elevators, Landlord,
during Normal Business Hours of Building, shall furnish elevator service
to Tenant to be used in common with others. At least one elevator shall
remain in service during all other hours. Landlord may designate a
specific elevator for use as a service elevator.
C. Janitorial Services. Landlord shall provide janitorial and cleaning
services to the Premises, substantially as described in Exhibit D
attached hereto. Tenant shall pay to Landlord on demand the reasonable
costs incurred by Landlord for (i) any cleaning of the Premises in
excess of the specifications in Exhibit D for any reason including,
without limitation, cleaning required because of (A) misuse or neglect
on the part of Tenant or Tenant's agents, contractors, invitees,
employees and customers, (B) the use of portions of the Premises for
special purposes requiring greater or more difficult cleaning work than
office areas, (C) interior glass partitions or unusual quantities of
interior glass surfaces, and (D) non-building standard materials or
finishes installed by Tenant or at its request; and (ii) removal from
the Premises of any refuse and rubbish of Tenant in excess of that
ordinarily accumulated in general office occupancy or at times other
than Landlord's standard cleaning times.
D. Water and Electricity. Landlord shall make available domestic water in
reasonable quantities to the common areas of the Building (and to the
Premises if so designated in Exhibit B) and cause electric service
sufficient for lighting the Premises and for the operation of Ordinary
Office Equipment. "Ordinary Office Equipment" shall mean office
equipment wired for 120 volt electric service and rated and using less
than 6 amperes or 750 ▇▇▇▇▇ of electric current or other office
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equipment approved by Landlord in writing. Landlord shall have the
exclusive right to make any replacement of lamps, fluorescent tubes and
lamp ballasts in the Premises. Landlord may adopt a system of relamping
and ballast replacement periodically on a group basis in accordance with
good management practice. Tenant's use of electric energy in the
Premises shall not at any time exceed the capacity of any of the risers,
piping, electrical conductors and other equipment in or serving the
Premises. In order to insure that such capacity is not exceeded and to
avert any possible adverse effect upon the Building's electric system,
Tenant shall not, without Landlord's prior written consent in each
instance, connect appliances or heavy duty equipment, other than
ordinary office equipment, to the Building's electric system or make any
alteration or addition to the Building's electric system. Should
Landlord grant its consent in writing, all additional risers, piping and
electrical conductors or other equipment therefor shall be provided by
Landlord and the cost thereof shall be paid by Tenant within 10 days of
Landlord's demand therefor. As a condition to granting such consent,
Landlord may require Tenant to agree to an increase in Monthly Rent to
offset the expected cost to Landlord of such additional service, that
is, the cost of the additional electric energy to be made available to
Tenant based upon the estimated additional capacity of such additional
risers, piping and electrical conductors or other equipment. If Landlord
and Tenant cannot agree thereon, such cost shall be determined by an
independent electrical engineer, to be selected by Landlord and paid
equally by both parties.
E. Separate Meters. If the Premises are separately metered for any utility,
Tenant shall pay a utility charge to Landlord (or directly to the
utility company, if possible) based upon the Tenant's actual consumption
as measured by the meter. Landlord also reserves the right to install
separate meters for the Premises to register the usage of all or any one
of the utilities and in such event Tenants shall pay for the cost of
utility usage as metered to the Premises and which is in excess of the
usage reasonably anticipated by Landlord for normal office usage of the
Premises. Tenant shall reimburse Landlord for the cost of installation
of meters if Tenant's actual usage exceeds the anticipated usage Level
by more than 10 percent In any event, Landlord may require Tenant to
reduce its consumption to the anticipated usage level. The term
"utility" for purposes hereof may refer to but is not limited to
electricity, gas, water, sewer, steam, fire protection system, telephone
or other communication or alarm service, as well as HVAC, and all taxes
or other charges thereon.
F. Interruptions. Landlord does not warrant that any of the services
referred to above, or any other services which Landlord may supply, will
be free from interruption and Tenant acknowledges that any one or more
of such services may be suspended by reason of accident, repairs,
inspections, alterations or improvements necessary to be made, or by
strikes or lockouts, or by reason of operation of law, or causes beyond
the reasonable control of Landlord. Any interruption or discontinuance
of service shall not be deemed an eviction or disturbance of Tenant's
use and possession of the Premises, or any part thereof, nor render
Landlord liable to Tenant for damages by abatement of the Rent or
otherwise, nor relieve Tenant from performance of Tenant's obligations
under this Lease. Landlord shall however, exercise reasonable diligence
to restore any service so interrupted.
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G. Utilities Provided by Tenant. Tenant shall make application in Tenant's
own name for all utilities not provided by Landlord and shall: (i)
comply with all utility company regulations for such utilities,
including requirements for the installation of meters, and (ii) obtain
such utilities directly from, and pay for the same when due directly to,
the applicable utility company. The term "utilities" for purposes hereof
shall include but not be limited to electricity, gas, water, sewer,
steam, fire protection, telephone and other communication and alarm
services, as well as HVAC, and all taxes or other charges thereon.
Tenant shall install and connect all equipment and lines required to
supply such utilities to the extent not already available at or serving
the Premises, or at Landlord's option shall repair, alter or replace any
such existing items. Tenant shall maintain, repair and replace all such
items, operate the same, so as to exceed the same in good working order
and condition. Tenant shall not install any equipment or fixtures, or
use the same, so as to exceed the safe and lawful capacity of any
utility equipment or Lines serving the same. The installation,
alteration, replacement or connection of any utility equipment and lines
shall be subject to the requirements for alterations of the Premises set
forth in Article 5. Tenant shall ensure that all Tenant's HVAC
equipment, is installed and operated at all times in a manner to prevent
roof leaks, damage, or noise due to vibrations or improper installation,
maintenance or operation.
ARTICLE 8.
INSURANCE
A. Required Insurance. Tenant shall maintain insurance policies, with
responsible companies licensed to do business in the state where the
Building is located and satisfactory to Landlord, naming Landlord,
Landlord's Building Manager, Cornerstone Real Estate Advisers, Inc.,
Tenant and any Mortgagee of Landlord, as their respective interests may
appear, at its own cost and expense including (1) "all risk" property
insurance which shall be primary on the lease improvements referenced in
Article 5 and Tenant's property, including its goods, equipment and
inventory, in an amount adequate to cover their replacement cost; (ii)
business interruption insurance, (iii) comprehensive general liability
insurance on an occurrence basis with limits of liability in an amount
not less than S 1,000,000 (One Million Dollars) combined single limit
for each occurrence. The comprehensive general liability policy shall
include contractual liability which includes the provisions of Article 9
herein.
On or before the Commencement Date of the Lease, Tenant shall furnish to
Landlord and its Building Manager, certificates of insurance evidencing
the aforesaid insurance coverage, including naming Landlord, Cornerstone
Real Estate Advisers, Inc. and Landlord Building Manager as additional
insureds. Renewal certificates must be furnished to Landlord at least
thirty (30) days prior to the expiration date of such insurance policies
showing the above coverage to be in final force and effect.
All such insurance shall provide that it cannot be canceled except upon
thirty (30) days prior written notice to Landlord. Tenant shall comply
with all rules and directives of any insurance board, company or agency
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determining rates of hazard coverage for the Premises, including but not
limited to the installation of any equipment and/or the correction of
any condition necessary to prevent any incense in such rates.
B. Waiver of Subrogation. Landlord and Tenant each agree that neither
Landlord nor Tenant will have any claim against the other for any toss,
damage or injury which is covered by insurance carried by either party
and for which recovery from such insurer is made, notwithstanding the
negligence of either party in causing the loss. This release shall be
valid only if the insurance policy in question permits waiver of
subrogation or if the insurer agrees in writing that such waiver of
subrogation will not affect coverage under said policy. Each party
agrees to use its best efforts to obtain such an agreement from its
insurer if the policy does not expressly permit a waiver of subrogation.
C. Waiver of Claims. Except for claims arising from Landlord's willful
misconduct that are not covered by Tenant's insurance required
hereunder, Tenant waives all claims against Landlord for injury or death
to persons, damage to property or to any other interest of Tenant
sustained by Tenant or any party claiming, through Tenant resulting
from: (i) any occurrence in or upon the Premises, (ii) leaking of roofs,
bursting, stoppage or leaking of water, gas, sewer or steam pipes or
equipment, including sprinklers, (iii) wind, rain, snow, ice, flooding,
freezing, fire, explosion, earthquake, excessive heat or cold, or other
casualty, (iv) the Building, Premises, or the operating and mechanical
systems or equipment of the Building, being defective, or filling, and
(v) vandalism, malicious mischief, theft or other acts or omissions of
any other parties including without limitation, other tenants,
contractors and invitees at the Building. Tenant agrees that Tenant's
property loss risks shall be borne by its insurance, and Tenant agrees
to look solely to and seek recovery only from its insurance carriers in
the event of such losses. For purposes hereof, any deductible amount
shall be treated as though it were recoverable under such policies.
ARTICLE 9.
INDEMNIFICATION
Tenant shall indemnify and hold harmless Landlord and its agents,
successors and assigns, including its Building Manager, from and against all
injury, loss, costs, expenses, claims or damage (including attorney's fees and
disbursements) to any person or property arising from, related to, or in
connection with any use or occupancy of the Premises by or any act or omission
(including, without limitation, construction and repair of the Premises arising
out of Tenant's Work or subsequent work) of Tenant, its agents, contractors,
employees, customers, and invitees, which indemnity extends to any and all
claims arising from any breach or default in the performance of any obligation
on Tenant's part to be performed under the terms of this Lease. This
indemnification shall survive the expiration or termination of the Lease Term.
Landlord shall not be liable to Tenant for any damage by or from any act or
negligence of any co-tenant or other occupant of the Building, or by any owner
or occupants of adjoining or contiguous property. Landlord shall not be liable
for any injury or damage to persons or property resulting in whole or in part
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from the criminal activities or willful misconduct of others. To the extent not
covered by all risk property insurance, Tenant agrees to pay for all damage to
the Building, as well as all damage to persons or property of other tenants or
occupants thereof, caused by the negligence, fraud or willful misconduct of
Tenant or any of its agents, contractors, employees, customers and invitees.
Nothing contained herein shall be construed to relieve Landlord from liability
for any personal injury resulting from its gross negligence, fraud or willful
misconduct.
ARTICLE 10.
CASUALTY DAMAGE
Tenant shall promptly notify Landlord or the Building Manager of any fire
or other casualty to the Premises or to the extent it knows of damage, to the
Building. In the event the Premises or any substantial part of the Building is
wholly or partially damaged or destroyed by fire or other casualty which is
covered by Landlord's insurance, the Landlord will proceed to restore the same
to substantially the same condition existing immediately prior to such damage or
destruction unless such damage or destruction is incapable of repair or
restoration within one hundred eighty (180) days, in which event Landlord may,
at Landlord's option and by written notice given to Tenant within sixty (60)
clays of such damage or destruction, declare this Lease terminated as of the
happening of such damage or destruction. If in Landlord's sole opinion the net
insurance proceeds recovered by reason of the damage or destruction will not be
adequate to complete the restoration of the Building, Landlord shall have the
right to terminate this Lease and all unaccrued obligations of the parties
hereto by sending a notice of such termination to Tenant To the extent after
fire or other casualty that Tenant shall be deprived of the use and occupancy of
the Premises or any portion thereof as a result of any such damage, destruction,
or the repair thereof, providing Tenant did not cause the fire or other
casualty, Tenant shall be relieved of the same ratable portion of the Monthly
Rent hereunder as the amount of damaged or useless Space in the Premises bears
to the rentable square footage of the Premises until such time as the Premises
may be restored. Landlord shall reasonably determine the amount of damaged or
useless space and the square footage of the Premises referenced in the prior
sentence.
ARTICLE 11.
CONDEMNATION
In the event of a condemnation, or taking of the entire Premises by a
public or quasi-public authority, this Lease shall terminate as of the date
title vests in the public or quasi-public authority. In the event of a taking or
condemnation of fifteen percent (15%) or more (but less than the whole) of the
Building and without regard to whether the Premises are part of such taking or
condemnation, Landlord may elect to terminate this Lease by giving notice to
Tenant within sixty (60) days of Landlord receiving notice of such condemnation.
All compensation awarded for any condemnation shall be the property of Landlord,
whether such damages shall be awarded as a compensation for diminution in the
value of the leasehold or to the fee of the Premises, and Tenant hereby assigns
to Landlord all of Tenant's right, title and interest in and to any and all such
compensation. Providing however that in the event this Lease is terminated,
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Tenant shall be entitled to make a separate claim for the taking of Tenant's
personal property (including fixtures paid for by Tenant), and for costs of
moving. Notwithstanding anything herein to the contrary, any condemnation award
to Tenant shall be available only to the extent such award is payable separately
to Tenant and does not diminish the award available to Landlord or any Lender of
Landlord and such award shall be limited to the amount of Rent actually paid by
Tenant to Landlord for the period of time for which the award is given. Any
additional portion of such award shall belong to Landlord.
ARTICLE 12.
REPAIR AND MAINTENANCE
A. Tenant's Obligations. Tenant shall keep the Premises in good working
order, repair (and in compliance with all Laws now or hereafter adopted)
and condition (which condition shall be neat; clean and sanitary, and
free of pests and rodents) and shall make all necessary non-structural
repairs thereto and any repairs to non-Building standard mechanical,
HVAC, electrical and plumbing systems or components in or serving the
Premises. Tenant's obligations hereunder shall include but not be
limited to Tenant's trade fixtures and equipment, security systems,
signs, interior decorations, floor-coverings, wall-coverings, entry and
interior doors, interior glass, light fixtures and bulbs, keys and
locks, and alterations to the Premises whether installed by Tenant or
Landlord.
B. Landlord's Obligations. Landlord shall make all necessary structural
repairs to the Building and any necessary repairs to the Building
standard mechanical, HVAC, electrical, and plumbing systems in or
servicing the Premises (the cost of which shall be included in Operating
Expenses under Article 4), excluding repairs required to be made by
Tenant pursuant to this Article. Landlord shall have no responsibility
to make any repairs unless and until Landlord receives written notice of
the need for such repair. Landlord shall not be liable for any failure
to make repairs or to perform any maintenance unless such failure shall
persist for an unreasonable time after written notice of the need for
such repairs or maintenance is received by landlord from Tenant.
Landlord shall make every reasonable effort to perform all such repairs
or maintenance in such a manner (in its judgment) so as to cause minimum
interference with Tenant and the Premises but Landlord shall not be
liable to Tenant for any interruption or loss of business pertaining to
such activities Landlord shall have the right to require that any damage
caused by the willful misconduct of Tenant or any of Tenant's agents,
contractors, employees, invitees or customers, be paid for and performed
by the Tenant (without limiting Landlord's other remedies herein).
C. Signs and Obstructions. Tenant shall not obstruct or permit the
obstruction of light, halls, Common Areas, roofs, parapets, stairways or
entrances to the Building or the Premises and will not affix, paint,
erect or inscribe any sign, projection, awning, signal or advertisement
of any kind to any part of the Building or the Premises, including the
inside or outside of 'the windows or doors without the willful consent
of Landlord. Landlord shall have the right to withdraw such consent at
any time and to require Tenant to remove any sign, projection, awning,
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signal or advertisement to be affixed to the Building or the Premises.
If such work is done by Tenant through any person, firm or corporation
not designated by Landlord, or without the express written consent of
Landlord, Landlord shall have the right to remove such signs,
projections, awnings, signals or advertisements without being liable to
the Tenant by reason thereof and to charge the cost of such removal to
Tenant as Additional Rent, payable within ten (10) days of Landlord's
demand therefor.
D. Outside Services. Tenant shall not permit, except by Landlord or a
person or company reasonably satisfactory to and approved by Landlord
(1) the extermination of vermin in, on or about the Premises; (ii) the
servicing of heating ventilating and air conditioning equipment, (iii)
the collection of rubbish and trash other than in compliance with local
government health requirements and in accordance with the rules and
regulations established by Landlord, which shall minimally provide that
Tenant's rubbish and trash shall be kept in containers located so as not
to be visible to members of the public and in a sanitary and neat
condition; or (iv) window cleaning, janitorial services or similar work
in the Premises.
ARTICLE 13.
INSPECTION OF PREMISES
Tenant shall permit the Landlord, the Building Manager and its authorized
representatives to enter the Premises to show the Premises during Normal
Business Hours of Building and at other reasonable times to inspect the Premises
and to make such repairs, improvements, alterations or additions in the Premises
or in the Building of which they are a part as Landlord may deem necessary or
appropriate.
ARTICLE 14.
SURRENDER OF PREMISES
Upon the expiration of the Term, or sooner termination of the Lease, Tenant
shall quit and surrender to Landlord the premises, broom clean, in good order
and condition, normal wear and tear and damage by tire and other casualty
excepted. All leasehold improvements and other fixtures, such as light fixtures
and HVAC equipment, wall coverings, carpeting and drapes, in or serving the
Premises, whether installed by Tenant or Landlord, shall be Landlord's property
and shall remain, all without compensation, allowance or credit to Tenant. Any
property not removed shall be deemed to have been abandoned by Tenant and may be
retained or disposed of by Landlord at Tenant's expense free of any and all
claims of Tenant, as Landlord shall desire. All property not removed from the
Premises by Tenant may be handled or stored by Landlord at Tenant's expense and
Landlord shall not be liable for the value, preservation or safekeeping thereof.
At Landlord's option all or part of such property may be conclusively deemed to
have been conveyed by Tenant to Landlord as if by ▇▇▇▇ of sale without payment
by Landlord. The Tenant hereby waives to the maximum extent allowable the
benefit of all laws now or hereafter in force in this state or elsewhere
exempting property from liability for rent or for debt.
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ARTICLE 15.
HOLDING OVER
Tenant shall pay Landlord 200% of the amount of Rent then applicable
prorated on a per diem basis for each day Tenant shall retain possession of the
Premises or any part thereof after expiration or earlier termination of this
Lease, together with all damages sustained by Landlord on account thereof. The
foregoing provisions shall not serve as permission for Tenant to hold-over, nor
serve to extend the Term (although Tenant shall remain bound to comply with all
provisions of this Lease until Tenant vacates the Premises and Landlord shall
have the right at any time thereafter to enter and possess the Premises and
remove all property and persons therefrom.
ARTICLE 16.
SUBLETTING AND ASSIGNMENT
Tenant shall not, without the prior written consent of Landlord, list the
Premises or any part thereof as available for assignment or sublease with any
broker or agent or otherwise advertise, post, communicate or solicit prospective
assignees or subtenants through any direct or indirect means nor assign this
Lease or any interest thereunder, or sublet Premises or any pert thereof, or
permit the use of Premises by any party other than Tenant In the event that
during the term of this Lease, Tenant desires to sublease and introduces
Landlord to a proposed replacement tenant for Tenant, which replacement tenant
has a good reputation, is of financial strength at Least equal to that of Tenant
(as determined by Landlord in its sole discretion, and has a use for Premises
and a number of employees reasonably consistent with that of Tenant's operation,
the Landlord may consider such replacement tenant and notify Tenant with
reasonable promptness as to Landlord's choice, at Landlord's sole discretion, of
the following:
(1) That Landlord consents to a subleasing of the Premises or assignment of
the Lease to such replacement tenant provided that Tenant shall remain
fully liable for all of its obligations and liabilities under this Lease
and provided further that Landlord shall be entitled to any profit
obtained by Tenant from such subletting or assignment; or
(2) That upon such replacement tenant's entering into a mutually
satisfactory new Lease for the Premises with Landlord, then Tenant shall
be released from all further obligations and liabilities under this
Lease (excepting only any unpaid rentals or any unperformed covenants
then past due under this Lease or any guarantee by Tenant of replacement
tenant's obligations); or
(3) That Landlord declines to consent to such sublease or assignment due to
insufficient or unsatisfactory documentation furnished to Landlord to
establish Tenant's reputation, financial strength and proposed use of
and operations upon Premises; or
(4) That Landlord elects to cancel the Lease and recapture the Premises (in
the case of an assignment) or if Landlord elects to cancel the Lease as
to the portion thereof that Tenant had wished to sublease. In either
such event Tenant shall surrender possession of the Premises, or the
portion thereof which is the subject of Tenant's request on the date set
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forth in a notice from Landlord in accordance with the provisions of
this lease relating to the surrender of the Premises. If this Lease
shall be canceled as to a portion of the Premises only, the Rent payable
by Tenant hereunder shall be abated proportionately according to the
ratio that the area of the portion of the Premises surrendered (as
computed by Landlord) bears to the area of the Premises immediately
prior to such surrender. If Landlord shall cancel this Lease, Landlord
may relet the Premises, or the applicable portion of the Premises, to
any other party (including, without limitation, the proposed assignee or
subtenant of Tenant), without any liability to Tenant.
In no case may Tenant assign any options to sublessee(s) or assignee(s)
hereunder, all such options being deemed personal to Tenant only. Consent by
Landlord hereunder shall in no way operate as a waiver by Landlord of, or to
release or discharge Tenant from, any liability under this Lease or be construed
to relieve Tenant from obtaining Landlord's consent to any subsequent
assignment, subletting, transfer, use or occupancy.
ARTICLE 17.
SUBORDINATION, ATTORNMENT AND MORTGAGEE PROTECTION
This Lease is subject and subordinate to all Mortgages now or hereafter
placed upon the Building, and all other encumbrances and matters of public
record applicable to the Building, including without limitation, any reciprocal
easement or operating agreements, covenants, conditions and restrictions and
Tenant shall not act or permit the Premises to be operated in violation thereof
if any foreclosure or power of sale proceedings are initiated by any Lender or a
deed in lieu is granted (or if any ground lease is terminated), Tenant agrees,
upon written request of any such Lender or any purchaser at such foreclosure
sale, to attorn and pay Rent to such party and to execute and deliver any
instruments necessary or appropriate to evidence or effectuate such attornment.
In the event of attornment, no Lender shall be: (i) liable for any act or
omission of Landlord, or subject to any offsets or defenses which Tenant might
have against Landlord (prior to such Lender becoming Landlord under such
attornment), (ii) liable for any security deposit or bound by any prepaid Rent
not actually received by such Lender, or (iii) bound by any future modification
of this Lease not consented to by such Lender. Any Lender may elect to make this
Lease prior to the lien of its Mortgage, and if the Lender wider any prior
Mortgage shall require, this Lease shall be prior to any subordinate Mortgage;
such elections shall be effective upon written notice to Tenant. Tenant agrees
to give any Lender by certified mail, return receipt requested, a copy of any
notice of default served by Tenant upon Landlord, provided that prior to such
notice Tenant has been notified in writing (by way of service on Tenant of a
copy of an assignment of leases, or otherwise) of the name and address of such
Lender. Tenant further agrees that if Landlord shall have failed to cure such
default within the time permitted Landlord for cure under this Lease, any such
Lender whose address has been so provide to Tenant shall have an additional
period of thirty (30) days in which to cure (or such additional time as may be
required due en causes beyond such Lendex's control, including time to obtain
possession of the Building by power of sale or judicial action or deed in lieu
of foreclosure). The provisions of this Article shall be self-operative;
however, Tenant shall execute such documentation as Landlord or any Lender may
request from time to time in order to confirm the matters set forth in this
Article in recordable form. To the extent not expressly prohibited by Law,
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Tenant waives the provisions of any Law now or hereafter adopted which may give
or purport to give Tenant any right or election to terminate or otherwise
adversely affect this Lease or Tenant's obligations hereunder if such
foreclosure or power of sale proceedings are initiated, prosecuted or completed.
ARTICLE 18.
ESTOPPEL CERTIFICATE
Tenant shall from time to time, upon written request by Landlord or Lender,
deliver to Landlord or Lender, within ten (10) days after from receipt of such
request, a statement in writing certifying (i) that this Lease is unmodified and
in full force and effect (or if there have been modifications, identifying such
modifications and certifying that the Lease, as modified, is in full force and
effect); (ii) the dates to which the Rent has been paid, (iii) that Landlord is
not in default under any provision of this Lease (or if Landlord is in default,
specifying each such default); and, (iv) the address to which notices to Tenant
shall be sent, it being understood that any such statement so delivered may be
relied upon in connection with any lease, mortgage or transfer.
Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant that: (i) this Lease is in full force and effect and not
modified except as Landlord may represent; (ii) not more than one month's Rent
has been paid in advance; (iii) there are no defaults by Landlord; and, (iv)
notices to Tenant shall be sent to Tenant's Address as set forth in Article I of
this Lease. Notwithstanding the presumptions of this Article, Tenant shall not
be relieved of its obligation to deliver said statement.
ARTICLE 19.
DEFAULTS
If Tenant: (i) fails to pay when due any installment or other payment of
Rent, or to keep in effect any insurance required to be maintained; or (ii)
vacates or abandons the Premises, or (iii) becomes insolvent, makes an
assignment for the benefit of creditors, tiles a voluntary bankruptcy or an
involuntary petition in bankruptcy is filed against Tenant which petition is not
dismissed within sixty (60) days of its filing, or (iv) fails to perform or
observe any of the other covenants, conditions or agreements contained herein on
Tenant's part to be kept or performed and such failure shall continue for thirty
(30) days after notice thereof given by or on behalf of Landlord, or (v) if the
interest of Tenant shall be offered for sale or sold under execution or other
legal process if Tenant makes any transfer, assignment, conveyance, sale,
pledge, disposition of all or a substantial portion of Tenant's property, then
any such event or conduct shall constitute a "default" hereunder.
If Tenant shall file a voluntary petition pursuant to the United States
Bankruptcy Reform Act of 1978, as the same may be from time to time be amended
(the "Bankruptcy Code," or take the benefit of any insolvency act or be
dissolved, or if an involuntary petition be flied against Tenant pursuant to the
Bankruptcy Code and said petition is not dismissed within thirty (30) days after
such tiling, or if a receiver shall be appointed for its business or its assets
arid the appointment of such receiver is not vacated within thirty (30) days
after such appointment, or if it shall make an assignment for the benefit of its
creditors, then Landlord shall have all of the rights provided for in the event
of nonpayment of the Rent.
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If any alleged default on the' part of the Landlord hereunder occurs,
Tenant shall give written notice to Landlord in the manner herein set forth and
shall afford Landlord a reasonable opportunity to cure any such default In
addition, Tenant shall send notice of such default by certified or registered
mail, postage prepaid, to the holder of any Mortgage whose address Tenant has
been notified of in writing, and shall afford such Mortgage holder a reasonable
opportunity to cure any alleged default on Landlord's behalf In no event will
Landlord be responsible for any damages incurred by Tenant including but nor
limited to, lost profits or interruption of business as a result of any alleged
default by Landlord hereunder.
ARTICLE 20.
REMEDIES OF LANDLORD
The remedies provided Landlord under this Lease are cumulative.
(a) Upon the occurrence of any default, Landlord may serve notice on Tenant
that the Term and the estate hereby vested in Tenant and any and all
other rights of Tenant hereunder shall cease on the date specified in
such notice and on the specified date this Lease shall cease and expire
as fully and with the effect as if the Term had expired for passage of
time.
(b) Without terminating this Lease in case of a default or if this Lease
shall be terminated for default as provided herein, Landlord may
re-enter the Premises, remove Tenant, or cause Tenant to be removed from
the Premises in such manner as Landlord may deem advisable, with or
without legal process, and using such reasonable force as may be
necessary. In the event of re-entry without terminating this Lease,
Tenant shall continue to be liable for all Rents and other charges
accruing or coming due under this Lease.
(c) If Landlord, without terminating this Lease, shall re-enter the Premises
or if this Lease shall be terminated provided in paragraph (a) above:
(i) All Rent due from Tenant to Landlord shall thereupon become due
and shall be paid up to the time of re-entry, dispossession or
expiration, together with reasonable costs and expenses
(including, without limitation, attorney's fees) of Landlord;
(ii) Landlord, without any obligation to do so, may relet the Premises
or any part thereof for a term or terms which may at Landlord's
option be less than or exceed the period which would otherwise
have constituted the balance of the Term and may grant such
concessions in reletting as Landlord, in the exercise of its
reasonable business judgment, deems desirable. In connection with
such reletting, Tenant shall be liable for all costs of the
reletting including, without limitation, rent concessions,
leasing commissions, legal fees and alteration and remodeling
costs; and
(iii) If Landlord shall have terminated this Lease. Tenant shall also
be liable to Landlord for all damages provided for in law and
under this Lease resulting from Tenant's breach including,
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without limitation, the difference between the aggregate rentals
reserved under the terms of this Lease for the balance of the
Term together with all other sums payable hereunder as Rent for
the balance of the Term, less the fair rental value of the
Premises for that period determined as of the date of such
termination. For purposes of this paragraph, Tenant shall be
deemed to include any guarantor or surety of the Lease.
(d) Tenant hereby waives all right to trial by jury in any claim, action
proceeding or counterclaim by either Landlord or Tenant against each
other or any matter arising out of or in any way connected with this
Lease, the relationship of Landlord and Tenant, and/or Tenant's use or
occupancy or the Premises.
(e) In addition to the above, Landlord shall have any and all other rights
provided a Landlord under law or equity for breach of a tease or tenancy
by a Tenant.
ARTICLE 21.
QUIET ENJOYMENT
Landlord covenants and agrees with Tenant that so long as Tenant pays the
Rent and observes and performs all the terms, covenants, and conditions of this
Lease on Tenant's part to be observed and performed, Tenant may peaceably and
quietly enjoy the Premises subject, nevertheless, to the terms and conditions of
this Lease, and Tenant's possession will not be disturbed by anyone claiming by,
through, or under Landlord.
ARTICLE 22.
ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of an amount less than full
payment of Rent then due and payable shall be deemed to be other than on account
of the Rent then due and payable, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as Rent be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such Rent or pursue any
other remedy provided for in this Lease or available at law or in equity.
ARTICLE 23.
SECURITY DEPOSIT
To secure the faithful performance by Tenant of all of the covenants,
conditions and agreements set forth in this Lease to be performed by it,
including, without limitation, foregoing such covenants, conditions and
agreements in this Lease which become applicable upon its termination by
re-entry or otherwise, Tenant has deposited with Landlord the sum shown in
Article 1 as a "Security Deposit" on the understanding:
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(a) that the Security Deposit or any portion thereof may be applied to the
curing of any default that may exist, without prejudice to any other
remedy or remedies which the Landlord may have on account thereof, and
upon such application Tenant shall pay Landlord on demand the amount so
applied which shall be added to the Security Deposit so the same will be
restored to its original amount;
(b) that should the Premises be conveyed by Landlord, the Security Deposit
or any balance thereof may be turned over to the Landlord's grantee, and
if the same be turned over as aforesaid, Tenant hereby releases Landlord
from any and all liability with respect to the Security Deposit and its
application or return, and Tenant agrees to look solely to such grantee
for such application or return; and,
(c) that Landlord may commingle the Security Deposit with other funds and
not be obligated to pay Tenant any interest;
(d) that the Security Deposit shall not be considered as advance payment of
Rent or a measure of damages for any default by Tenant, nor shall it be
a bar or defense to any actions by Landlord against Tenant;
(e) that if Tenant shall faithfully perform all of the covenants and
agreements contained in this Lease on the part of the Tenant to be
performed,, the Security Deposit or any then remaining balance thereof,
shall be returned to Tenant, without interest, within thirty (30) days
after the expiration of the Term. Tenant further covenants that it will
not assign or encumber the money deposited herein as a Security Deposit
and that neither Landlord nor its successors or assigns shall be bound
by any such assignment. encumbrance, attempted assignment or attempted
encumbrance.
ARTICLE 24.
BROKERAGE COMMISSION
Landlord and Tenant represent and warrant to each other that neither has
dealt with any broker, finder or agent except for the Broker(s) identified in
Article I. Tenant represents and warrants to Landlord that (except with respect
to the Broker identified in Article I and with whom Landlord has entered into a
separate brokerage agreement) no broker, agent, commission salesperson, or other
person has represented Tenant in the negotiations for and procurement of this
Lease and of the Premises and that no commissions, fees, or compensation of any
kind are due and payable in connection herewith to any broker, agent commission
salesperson, or other person. Tenant agrees to indemnify Landlord and hold
Landlord harmless from any and all claims, suits, or judgments (including,
without limitation, reasonable attorneys' fees and court costs incurred in
connection with any such claims, suits, or judgments, or in connection with the
enforcement of this indemnity) for any foes, commissions, or compensation of any
kind which arise out of or are in any way connected with any claimed agency
relationship not referenced in Article I.
ARTICLE 25.
FORCE MAJEURE
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Landlord shall be excused for the period of any delay in the performance of
any obligation hereunder when prevented from w doing by a cause or causes beyond
its control, including all labor disputes, civil commotion, war, war4ike
operations, invasion, rebellion, hostilities, military or usurped power,
sabotage, governmental regulations or controls, tire or other casualty,
inability to obtain any material, services or financing, or through acts of God.
Tenant shall similarly be excused for delay in the performance of any obligation
hereunder, provided:
(a) nothing contained in this Section or elsewhere in this Lease shall be
deemed to excuse or permit any delay in the payment of the Rent, or any
delay in the cure of any default which may be cured by the payment of
money;
(b) no reliance by Tenant upon this Section shall limit or restrict in any
way Landlord's right of self-help as provided in this Lease; and
(c) Tenant shall not be entitled to rely upon this Section unless it shall
first have given Landlord notice of the existence of any force majeure
preventing the performance of an obligation of Tenant within five days
after the commencement of the force majeure.
ARTICLE 26.
PARKING
(a) Landlord hereby grants to Tenant the might, in common with others
authorized by Landlord, to use the parking facilities owned by Landlord
and shown on Exhibit A, if any. Landlord, at its sole election, may
designate the types and locations of parking spaces within the parking
facilities which Tenant shall be allowed to use. Landlord shall have the
right, at Landlord's sole election, to change said types and locations
from time to time; provided, however, such designation shall be
uniformly applied and shall not unfairly favor any tenant in the
Building.
(b) Commencing on the Commencement Date, Tenant shall pay Landlord the
Parking Fee, if any, shown in Article 1, as Additional Rent, payable
monthly in advance with the Monthly Rent If there is a Parking Fee shown
in Schedule I, then thereafter, and throughout the Term, the parking
rate for each type of parking space provided to Tenant hereunder shall
be the prevailing parking rate, as Landlord may designate from time to
time, at Landlord's sole election, for each such type of parking space.
In addition to the right reserved hereunder by Landlord to designate the
parking rate from time to time, Landlord shall have the right to change
the parking rate at any time to include therein any amounts levied,,
assessed, imposed or required to be paid to any governmental authority
on account of the parking of motor vehicles, including all sums required
to be paid pursuant to transportation controls imposed b the
Environmental Protection Agency wider the Clean Air Act of 1970, as
amended, or otherwise required to be paid by any governmental authority
with respect to the parking, use, or transportation of motor vehicles,
or the reduction or control of motor vehicle traffic, or motor vehicle
pollution.
(c) If requested by Landlord, Tenant shall notify Landlord of the license
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plate number, year, make and model of the automobiles entitled to use
the parking facilities and if requested by Landlord, such automobiles
shall be identified by automobile window stickers provided by Landlord,
and only such designated automobiles shall be permitted to use the
parking facilities. If Landlord institutes such an identification
procedure, Landlord may provide additional parking, spaces for use by
customers and invitees of Tenant on a daily basis at prevailing parking
rates, if any. At Landlord's sole election, Landlord may make validation
stickers available to Tenant for any such additional parking spaces,
provided, however, if Landlord makes validation stickers available to
any other tenant in the Building, Landlord shall make such validation
stickers available to Tenant.
(d) The parking facilities provided for herein are provided solely for the
accommodation of Tenant and Landlord assumes no responsibility or
liability of any' kind whatsoever from whatever cause with respect to
the automobile parking areas, including adjoining sweets, sidewalks,
driveways, property and passageways, or the use thereof by Tenant or
tenant's employees, customers, agents, contractors or invitees.
ARTICLE 27.
HAZARDOUS MATERIALS
A. Definition of Hazardous Materials. The term "Hazardous Materials" for
purposes hereof shall mean any chemical, substance, materials or waste
or component thereof which is now or hereafter listed, defined or
regulated as a hazardous or toxic chemical, substance, materials or
waste or component thereof by any federal, state or Local governing or
regulatory body having jurisdiction, or which would trigger any employee
or community "right-to-know" requirements adopted by any such body, or
for which any such body has adopted any requirements for the preparation
or distribution of a materials safety data sheet ("MSDS").
B. No Hazardous Materials. Tenant shall not transport, use, store,
maintain, generate, manufacture, handle, dispose, release or discharge
any Hazardous Materials. However, the foregoing provisions shall not
prohibit the transportation to and from, and use, storage, maintenance
and handling within the Premises of Hazardous Materials customarily used
in the business or activity expressly permitted to be undertaken in the
Premises under Article 6, provided: (a) such Hazardous Materials shall
be used and maintained only in such quantities as are reasonably
necessary for such, permitted use of the Premises and the ordinary
course of Tenant's business therein, strictly in accordance with
applicable Law, highest prevailing standards, and the manufacturers'
instructions therefor, (b) such Hazardous Materials shall not be
disposed of, released or discharged in the Building, and shall be
transported to and from the Premises in compliance with all applicable
Laws, and as Landlord shall reasonably require, (c) if any applicable
Law or Landlord's trash removal contractor requires that any such
Hazardous Materials be disposed of separately from ordinary trash,
Tenant shall make arrangements at Tenant's expense for such, disposal
directly with a qualified arid licensed disposal company at a Lawful
disposal site (subject to scheduling and approval by Landlord), and (d)
any remaining such Hazardous Materials shall be completely, properly and
lawfully removed from the Building upon expiration or earlier
termination of this Lease.
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C. Notices To Landlord. Tenant shall promptly notify Landlord at (i) any
enforcement, cleanup or other regulatory action taken or threatened by
any' governmental or regulatory authority with respect to the presence
of any Hazardous Materials on the Premises or the migration thereof on
or to other property, (ii) any demands or claims made or threatened by
any parry relating, to any loss or injury resulting from any Hazardous
Materials on the Premises, (iii) any release, discharge or non-routine,
improper or unlawful disposal or transportation of any Hazardous
Materials on or from the Premises or in violation of this Article, and
(iv) any matters where Tenant is required by Law to give a notice any
government or regulatory authority respecting any Hazardous Materials on
the Premises. Landlord shall have the right (but not the obligation) to
join and participate, as a party, in any legal proceedings or actions
affecting the Premises initiated in connection with any environmental,
health or safety law. At such times as Landlord may reasonably request,
Tenant shall provide Landlord with a written list, certified to be true
and complete, identifying any hazardous Materials then used, stored, or
maintained upon the Premises, the use and approximate quantity of each
stack materials, a copy of any MSDS issued by the manufacturer therefor,
and such other information as Landlord may reasonably require or as may
be required by Law.
D. Indemnification of Landlord. If any Hazardous Materials are released,
discharged or disposed of by Tenant or any other occupant of the
Premises, or their employees, agents, invitees or contractors, on or
about the Building in violation of the foregoing provisions, Tenant
shall immediately, properly and in compliance with applicable Laws clean
up, remediate and remove the Hazardous Materials from the Building and
any other affected property and clean or replace any affected personal
property (whether or not owned by Landlord), at Tenant's expense
(without limiting Landlord's other remedies therefor). Tenant shall
further be required to indemnify and hold Landlord, Landlord's
directors, officers, employees and agents harmless from and against any
and all claims, demands, liabilities, losses, damages, penalties and
judgments directly or indirectly arising out of or attributable to a
violation of the provisions of this Article by Tenant, Tenant's
occupants, employees, contractors or agents. Any clean up, remediation
and removal work shall be subject to Landlord's prior written approval
(except in emergencies), and shall include, without limitation, any
testing, investigation, and the preparation and implementation of any
remedial action plan required by any governmental body having
jurisdiction or reasonably required by Landlord. If Landlord or any
Lender or governmental body arranges for any tests or studies showing
that this Article has been violated, Tenant shall pay for the costs of
such tests. The provisions of Article shall survive the expiration or
earlier termination of this Lease.
ARTICLE 28.
ADDITIONAL RIGHTS RESERVED BY LANDLORD
In addition to any other rights provided for herein, Landlord reserves the
following rights, exercisable without liability to Tenant for damage or injury
to property, person or business and without effecting an eviction, constructive
or actual, or disturbance of Tenant's use or possession or giving rise to any
claim:
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(a) To name the Building and to change the name or street address of the
Building;
(b) To install and maintain all signs on the exterior and interior of the
Building;
(c) To designate all sources furnishing sign painting or lettering for use
in the Building:
(d) During the last ninety (90) days of the Term, if Tenant has vacated the
Premises, to decorate, remodel, repair, alter or otherwise prepare the
Premises for occupancy, without affecting Tenant's obligation to pay
Rent for the Premises;
(e) To have pass keys to the Premises and all doors therein, excluding
Tenant's vaults and safes;
(f) On reasonable prior notice to Tenant, to exhibit the Premises to any
prospective purchaser, Lender, mortgagee, or assignee of any mortgage on
the Buil4ing or Land and to others having an interest therein at any
time during the Term, and to prospective tenants during the last six
months of the Term;
(g) To take any and all measures, including entering the Premises for the
purpose of making inspections, repairs, alterations, additions and
improvements to the Premises or to the Building (including for the
purpose of checking. calibrating, adjusting and balancing controls and
other parts of the Building Systems), as may be necessary or desirable
for the operation, improvement, safety, protection or preservation of
the Premises or the Building, or in order to comply with all Laws,
orders and requirements of governmental or other authority or as may
otherwise be permitted or required by this Lease; provided, however,
that during the progress of any work on the Premises or at the Building,
Landlord will attempt not to inconvenience Tenant, but shall not be
liable for inconvenience, annoyance, disturbance, loss of business, or
other damage to Tenant by reason of performing any work or by bringing
or storing materials, supplies, tools or equipment in the Building or
Premises during the performance of any work, and the obligations of
Tenant under this Lease shall not thereby be affected in any manner
whatsoever;
(h) To relocate various facilities within the Building and on the land of
which the Building is a part if Landlord shall determine such relocation
to be in the best interest of the development of the Building and
Property, provided that such relocation shall not materially restrict
access to the Premises; and
(i) To install vending machines of alt kinds in the Building and to receive
all of the revenue derived therefrom, provided, however, that no vending
machines shall be installed by Landlord in the Premises unless Tenant so
requests.
ARTICLE 29.
DEFINED TERMS
A. "Building" shall refer to the Building named in Article I of which the
24
Leased Premises are a part (including all modifications, additions and
alterations made to the Building during the term of this Lease), the
real property on which the same is located, all plazas, common areas and
any other areas located on said real property and designated by Landlord
for use by all tenants in the Building. A plan showing the Building is
attached hereto as Exhibit A and made a part hereof and the Premises is
defined in Article 2 and shown on said Exhibit A by cross-hatched lines.
B. "Common Areas" shall mean and include all areas, facilities, equipment,
directories and signs of the Building (exclusive of the Premises and
area leased to other Tenants) made available and designated by Landlord
for the common and joint use and benefit of Landlord, Tenant arid other
tenants and occupants of the Building including, but not limited to,
lobbies, public washrooms, hallways, sidewalks, parking areas,
landscaped areas and service entrances. Common Areas may further include
such areas in adjoining properties under reciprocal easement agreements,
operating agreements or other such agreements now or hereafter in effect
and which are available to Landlord, Tenant and Tenant's employees and
invitees. Landlord reserves the right in its sole discretion and from
time to time, to construct, maintain, operate, repair, close, limit,
take out of service, alter, change, and modify all or any part of the
Common Areas.
C. "Default Rate" shall mean eighteen percent (18%) per annum, or the
highest rate permitted by applicable law, whichever shall be less. If
the application of the Default Rate causes any provision of this Lease
to be usurious or unenforceable, the Default Rate shall automatically be
reduced so as to prevent such result.
D. "Hazardous Materials" shall have the meaning set forth in Article 27.
B. "Landlord" and "Tenant" shall be applicable to one or more parties as
the case may be, and the singular shall include the plural, and the
neuter shall include the masculine and feminine; and if there be more
than one, the obligations thereof shall be joint and several. For
purposes of any provisions indemnifying or limiting the liability of
Landlord, the term "Landlord" shall include Landlord's present and
future partners, beneficiaries, trustees, officers, directors,
employees, shareholders, principals, agents, affiliates, successors and
assigns.
F. "Law" or "Laws" shall mean all federal, state, county and local
governmental and municipal laws, statutes, ordinances, rules,
regulations, codes, decrees, orders and other such requirements,
applicable equitable remedies and decisions by courts in cases where
such decisions are binding precedents in the state in which the Building
is located, and decisions of federal courts applying the Laws of such
state.
G. "Lease" shall mean this lease executed between Tenant and Landlord,
including any extensions, amendments or modifications and any Exhibits
attached hereto.
H. "Lease Year" shall mean each calendar year or portion thereof during the
Term.
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I. "Lender" shall mean the holder of a Mortgage at the time in question,
and where such Mortgage is a ground lease, such term shall refer to the
ground lessee.
J. "Mortgage" shall mean all mortgages, deed of trust, ground leases and
other such encumbrances now or hereafter placed upon the Building or any
part thereof with the written consent of Landlord, and all renewals,
modifications, consolidations, replacements or extensions thereof, and
all indebtedness now or hereafter secured thereby and all interest
thereon.
K. "Operating Expenses" shall mean all operating expenses of any kind or
nature which are necessary, ordinary or customarily incurred in
connection with the operation, maintenance or repair of the Building as
determined by Landlord.
Operating Expenses shall include, but not be limited to:
1.1 costs of supplies, including, but not limited to, the cost of
relamping all Building standard lighting as the same may be
required from time to time;
1.2 costs incurred in connection with obtaining and providing energy
for the Building, including, but not limited to, costs of
propane, butane, natural gas, steam, electricity, solar energy
and fuel oils, coal or any other energy sources;
1.3 costs of water and sanitary and storm drainage services;
1.4 costs of janitorial and security services;
1.5 cost of general maintenance and repairs, including costs under
HVAC and other mechanical maintenance contracts and maintenance,
repairs and replacement of equipment and tools used in connection
with operating the Building;
1.6 costs of maintenance and replacement of Landscaping;
1.7 insurance premiums, including fire and all-risk coverage,
together with loss of rent endorsements, the part of any claim
required to be paid under the deductible portion of any insurance
policies carried by Landlord in connection with the Building
(where Landlord is unable to obtain insurance without such
deductible from a major insurance carrier at reasonable rates),
public Liability insurance and any other insurance carried by
Landlord on the Building, or any component parts thereof (all
such insurance shall be in such amounts as may be required by any
holder of a Mortgage or as Landlord may reasonably determine);
1.8 labor costs, including wages and other payments, costs to
Landlord of worker's compensation and disability insurance,
payroll taxes, welfare fringe benefits, and all legal fees and
other costs or expenses incurred in resolving any labor dispute;
1.9 professional building management fees required for management of
the Building;
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1.10 Legal, accounting, inspection, and other consultation fees
(including, without limitation, fees charged by consultants
retained by Landlord for services that are designed to produce a
reduction in Operating Expenses or to reasonably improve the
operation, maintenance or state of repair of the Building)
incurred in the ordinary course of operating the Building or in
connection with making the computations required hereunder or in
any audit of operations of the Building;
1.11 the costs of capital improvements or structural repairs, or
replacements made in or to the Building in order to conform to
changes, subsequent in the date of this Lease, in any applicable
laws, ordinances, rules, regulations or orders of any
governmental or quasi-governmental authority having jurisdiction
over the Building (herein "Required Capital") or the costs
incurred by Landlord to install a new or replacement capital item
for the purpose of reducing Operating Expenses (herein "Cost
Savings Improvements"), and a reasonable reserve for all other
capital improvements and structural repairs and replacements
reasonably necessary to permit Landlord to maintain the Building
in its current class. The expenditures for Required Capital
Improvements and Cost Savings Improvements shall be amortized
over the useful life of such capital improvement or structural
repair or replacement (as determined by Landlord). All costs so
amortized shall bear interest on the amortized balance at the
rate of twelve percent (12%) per annum or such higher rate as may
have been paid by Landlord on funds borrowed for the purpose of
constructing these capital improvement.
In making any computations contemplated hereby, Landlord shall also be
permitted to make such adjustments and modifications to the provisions of this
paragraph and Article 4 as shall be reasonable and necessary to achieve the
intention of the parties hereto.
L. "Rent" shall have the meaning specified therefor in Article 3.
M. "Tax" or "Taxes" shall mean:
1.1 All real property taxes and assessments levied against the
Building by any governmental or quasi-governmental authority. The
foregoing shall include all federal, state, county, or local
governmental, special district, improvement district, municipal
or other political subdivision taxes, fees, levies, assessments,
charges or other impositions of every kind and nature, whether
general, special, ordinary or extraordinary respecting the
Building, including without limitation, real estate taxes,
general and special, assessments, interest on any special
assessments paid in installments, transit taxes, water and sewer
rents, taxes based upon the receipt of rent, personal property
taxes imposed upon the fixtures, machinery, equipment, apparatus,
used in connection with the Building which Landlord shall pay
during any calendar year, any portion of which occurs during the
Term (without regard to any different fiscal year used by such
government or municipal authority except as provided below).
Provided, however, any taxes which shall be levied on the rentals
27
of the Building shall be determined as if the Building were
Landlord's only property, and provided further that in no event
shall the term "taxes or assessments," as used herein, include
any net federal or state income taxes levied or assessed on
Landlord, unless such taxes are a specific substitute for real
property taxes. Such term shall, however, include gross taxes on
rentals. Expenses incurred by Landlord for tax consultants and in
contesting the amount or validity of any such taxes or
assessments shall be included in such computations.
1.2 All "assessments," including so-called special assessments,
license tax, business license fee, business license tax, levy,
charge, penalty or tax imposed by any authority having the direct
power to tax, including any city, county, state or federal
government, or any school, agricultural, lighting, water,
drainage, or other improvement or special district thereof,
against the Premises of the Building or any legal or equitable
interest of Landlord therein. For the purposes of this lease, any
special assessments shall be deemed payable in such number of
installments as is permitted by Law, whether or not actually so
paid. If as of the Commencement Date the Building has not been
fully assessed as a completed project, for the purpose of
computing the Operating Expenses for any adjustment required
herein or under Article 4, the Tax shall be adjusted by Landlord,
as of the date on which the adjustment is to be made, to reflect
full completion of the Building including all standard Tenant
finish work if the method of taxation of real estate prevailing
to the time of execution hereof shall be, or has been altered, so
as to cause the whole or any part of the taxes now, hereafter or
theretofore Levied, assessed or imposed on real estate to be
levied, assessed or imposed on Landlord, wholly or partially, as
a capital Levy or otherwise, or on or measured by the rents
received therefrom, then such new or altered taxes attributable
to the Building shall be included within the term real estate
taxes, except that the same shall not include any enhancement of
said tax attributable to other income of Landlord. All of the
preceding clauses K (1.1 and 1.2) are collectively referred to as
the "Tax" or "Taxes."
All other capitalized terms shall have the 'definition set forth in the
Lease.
ARTICLE 30.
MISCELLANEOUS PROVISIONS
A. RULES AND REGULATIONS.
Tenant shall comply with all of the rules and regulations promulgated by
Landlord from time to time for the Building. A copy of the current rule and
regulations is attached hereto as Exhibit D.
B. EXECUTION OF LEASE.
28
If more than one person or entity executes this Lease as: Tenant, each such
person or entity shall be jointly and severally liable for observing and
performing each of the terms, covenants, conditions and provisions to be
observed or performed by Tenant
C. NOTICES.
All notices under this Lease shall be in writing and will be deemed
sufficiently given for all purposes if, to Tenant, by delivery to Tenant at the
Premises during the hours the Building is open for business or by certified
mail, return receipt requested or by overnight delivery service (with one
acknowledged receipt), to Tenant at the address set forth below, and if to
Landlord, by certified mail, return receipt requested or by overnight delivery
service (with one acknowledged receipt), at the addresses set forth below.
Landlord: at address shown in Article 1, item F.
with a copy to: Building Manager at address shown in Article 1, item G.
Tenant: at address shown in Article 1, item B.
with copy to:
D. TRANSFERS.
The term "Landlord" appearing herein shall mean only the owner of the
Building from time to time and, upon a sale or transfer of its interest in the
Building, the then Landlord and transferring party shall have no further
obligations or liabilities for matters accruing after the date of transfer of
that interest arid Tenant, upon such sale or transfer, shall look solely to the
successor owner and transferee of the Building for performance of Landlord's
obligations hereunder.
E. RELOCATION.
Landlord shall be entitled during the Lease Term to cause Tenant to
relocate from the Premises to a comparable space within the Building (a
"Relocation Space") at any time after reasonable notice, which notice shall give
Tenant no Less than sixty (60) days advance notice. Landlord or the third party
tenant replacing Tenant shall pay the expense of moving Tenant to a space within
the Building comparable to the Premises and providing comparable Leasehold
improvements. Such a relocation shall not terminate, modify or otherwise affect
the Lease, except with respect to the location of the Premises front and after
the date of such relocation "Premises", shall, thereafter, refer to the
Relocation Space into which Tenant has been moved, rather than the original
Premises as herein defined.
F. TENANT FINANCIAL STATEMENTS
Upon the written request of Landlord, Tenant shall submit financial
statements for its most recent financial reporting period and for the prior
Lease Year. Landlord shall make such request no more than twice during any Lease
Year.
29
All such financial statements shall be; certified as true and correct by
the responsible officer or partner of Tenant and if Tenant is then in default
hereunder; the financial statements shall be certified by an independent
certified public accountant.
G. RELATIONSHIP OF THE PARTIES.
Nothing contained in this Lease shall be construed by the parties hereto,
or by any third party, as constituting the parties as principal and agent,
partners or joint venturers, nor shall anything herein render either party
(other than a guarantor) liable for the debts and obligations of any other
party, it being understood and agreed that the only relationship between
Landlord and Tenant is that of Landlord and Tenant.
H. ENTIRE AGREEMENT: MERGER.
This Lease embodies the entire agreement and understanding between the
parties respecting the Lease and the Premises and supersedes all prior
negotiations, agreements and understandings between the parties, all of which
are merged herein. No provision of this Lease may be modified, waived or
discharged except by an instrument in writing signed by the party against which
enforcement of such modification, waiver or discharge is sought.
I. NO REPRESENTATION BY LANDLORD.
Neither Landlord nor any agent of Landlord has made any representations,
warranties, or promises with respect to the Premises or the Building except as
expressly set forth herein.
J. LIMITATION OF LIABILITY.
Notwithstanding any provision in this Lease to the contrary, under no
circumstances shall Landlord's liability or that of its directors, officers,
employees and agents for failure to perform any obligations arising out of or in
connection with the Lease or for any breach of the terms or conditions of this
Lease whether written or implied) exceed Landlord's equity interest in the
Building. Any judgments rendered against Landlord shall be satisfied solely out
of proceeds of sale of Landlord's interest in the Building. No personal judgment
shall lie against Landlord upon extinguishment of its rights in the Building and
any judgments so rendered shall not give rise to any right of execution or levy
against Landlord's assets. The provisions hereof shall inure to Landlord's
successors and assigns including any Lender. The foregoing provisions are not
intended to relieve Landlord from the performance of any of Landlord's
obligations under this Lease, but only to limit the personal Liability of
Landlord in case of recovery of a judgment against Landlord; nor shall the
foregoing be deemed to limit Tenant's rights to obtain injunctive relief or
specific performance or other remedy which may be accorded Tenant by Law or
under this Lease. If Tenant claims or asserts that Landlord has violated or
failed to perform a covenant under the Lease, Tenant's sole remedy shall be an
action for specific performance, declaratory judgment or injunction and in no
event shall Tenant be entitled to any money damages in any action or by way of
set off, defense or counterclaim and Tenant hereby specifically waives the right
to any money damages or other remedies for any such violation or failure.
K. MEMORANDUM OF LEASE.
30
Neither party, without the written consent of the other, will execute or
record any this Lease or any summary or memorandum of this Lease in any public
recorders office.
L. NO WAIVERS AMENDMENTS.
Failure of Landlord to insist upon strict compliance by Tenant of any
condition or provision of this Lease shall not be deemed a waiver by Landlord,
of that condition. No waiver shall be effective against Landlord unless in
writing and signed by Landlord. Similarity, this Lease cannot be amended except
by a writing signed by Landlord and Tenant.
M. SUCCESSORS AND ASSIGNS
The conditions, covenants and agreements contained herein shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
N. GOVERNING LAW.
This Lease shall be governed by the Law of the State where the Building is
located.
O. EXHIBITS.
All exhibits attached to this Lease are a part hereof and are incorporated
herein by reference and all provisions of such exhibits shall constitute
agreements, promises and covenants of this Lease.
P. CAPTIONS.
The captions and headings used in this Lease are for convenience only and
in no way define or limit the scope, interpretation or content of this Lease.
Q. COUNTERPARTS.
This Lease may be executed in one (1) or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
31
IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
have duly executed this Lease with the Exhibits attached hereto, as of this -
day of_______________________.
Attest or Witness: LANDLORD:
Cornerstone Suburban Office, L.P.,
a Delaware limited partnership
By: Cornerstone Office Management,
Limited Liability Company, a Delaware LLC,
its general partner
By: Cornerstone Real Estate Advisers, Inc.,
a Massachusetts corporation,
its managing member
By: ___________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
Attest or Witness: TENANT:
▇▇ ▇▇▇▇, Inc.,
a Delaware Corporation
By: ___________________________
Max Sun
President
Date: ___________________________
By: ___________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
Date: ___________________________
32
ADDENDUM TO OFFICE LEASE DATED DECEMBER 24, 1999 BY AND BETWEEN CORNERSTONE
SUBURBAN OFFICE, L.P., A DELAWARE LIMITED PARTNERSHIP ("LANDLORD") AND CB COM,
INC., A DELAWARE CORPORATION ("TENANT"), CONCERNING THE PROPERTY KNOWN AS FIRST
FINANCIAL PLAZA LOCATED AT ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
1. Tenant Improvements:
Landlord to provide tenant improvements in accordance with the attached
plan (Exhibit A).
2. Rental and Tenant Improvement Security Deposit:
In addition to an amount equal to one (1) month's security deposit, Tenant
shall deposit with Landlord an amount equal to the above tenant improvements,
including all costs associated with the improvements, which shall include but
not be limited to the actual costs of construction, design, supervision and
permit fees. As long as Tenant is not in default of the Lease, Landlord shall
return the deposit for the tenant improvements as follows:
January 1, 2001 - one-third
January 1, 2002 - one-third
January 1, 2003 - one-third
AMERICANS WITH DISABILITIES ACT ("ADA") "The parties hereto agree to comply
with all applicable federal, state and local laws, regulations, codes,
ordinances and administrative orders having jurisdiction over the parties,
property of the subject matter of this agreement, including, but not limited to,
the 1964 Civil Rights Act. and all amendments thereto, the Foreign Investment In
Real Property Tax Act, the Comprehensive Environmental Response Compensation and
Liability Act and the Americans with Disabilities Act."
CONSULT YOUR ATTORNEY/ADVISORS - This document has been prepared for
approval by your attorney. No representation is made by CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc.
or the Southern California Chapter of the Society of Industrial and Office
Realtors (S.I.O.R.J., Inc., or the agents or employees of either of them as to
the legal sufficiency, legal effect or tax consequences of this document or the
transaction to which it relates. These are questions for your attorney.
In any real estate transaction, it is recommended that you consult with a
professional, such as a civil engineer, industrial hygienist or other person,
with experience in evaluating the condition of the property, including the
possible presence of asbestos, hazardous materials and underground storage
tanks.
LANDLORD: TENANT:
Cornerstone Suburban Office, LP., ▇▇ ▇▇▇▇, Inc.,
A Delaware Limited Partnership A Delaware Corporation
By: _______________________ By: _______________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Max Sun
Vice President President
By: _______________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
33
EXHIBIT B
Landlord's Work
1. The Premises are leased to Tenant in their "AS IS" but good operating
condition and this Exhibit "B" (sometimes referred to as the "Work
Letter Agreement") is intended to set forth the obligations of Landlord
and Tenant with respect to the preparation of the Premises for Tenant's
occupancy. All improvements described in this Work Letter Agreement to
be constructed in and upon the Premises are hereinafter referred to as
the "Tenant Improvements." It is agreed that construction of the Tenant
Improvements will be completed in accordance with the procedures set
forth in this Work Letter Agreement.
2. Tenant shall devote such time in consultation with Landlord or
Landlord's agent as may be required to provide all necessary information
to Landlord or Landlord's agent as Landlord deems necessary in order to
enable Landlord to complete, and obtain Tenant's written approval of,
the final layout, drawings, and plans for the Premises. If Tenant fails
to furnish any such information, or fails to approve layout, drawings,
or plans prior to January 3, 1997, Landlord may, at its election, be
discharged of its obligations under this Work Letter Agreement, but the
same shall not affect or diminish Tenant's duties and obligations set
forth in the Lease, and Tenant agrees to pay on demand all costs and
expenses and increased unit prices incurred by Landlord on account of
Tenant's failure to furnish such information and approved drawings
within such prescribed times. All of Tenant's plans and specifications
shall be subject to Landlord's consent, the granting or denial of which
shall be in Landlord's sole discretion.
3. Landlord agrees to build Tenant's suite in accordance with the plan
attached hereto and further described as Exhibit "A".
4. Space planning and construction drawings, and when deemed necessary by
Landlord, engineering drawings, shall be prepared by Landlord's
architect. Landlord, shall pay for space planning services for
Landlord's standard construction and engineering drawings covering
Landlords Building Standard materials as defined in Exhibit "B-1",
Tenant shall pay for any nonstandard construction and engineering
drawings, or any additional costs for drawings occasioned by special
improvements, whether installed by Landlord at Tenant's request or
installed by Tenant with Landlord's prior written approval. Tenant shall
use the Building Standard materials unless other materials are expressly
approved in writing by Landlord.
5. In the event Tenant requests any changes to the attached plan described
as Exhibit "A," prior to commencing construction of any changes. to
Exhibit "A," Landlord shall submit to Tenant a written estimate setting
forth the anticipated cost of said changes,, including but not limited
to labor and materials, contractor's fees, Landlord's construction
management fees cm the amount of five percent (5%) of the contract
amount), permit fees, and space planning, construction, and engineering
drawing costs which are the responsibility of Tenant. Within five (5)
Business Days Tenant shall either notify Landlord in writing of its
approval of the cost estimate, or specify its objections thereto and
desired changes to the proposed Tenant Improvements. In the event Tenant
notifies Landlord of such objections and desired changes, Tenant shall
work with Landlord to reach acceptable plans and cost estimate;
provided, however, if Tenant fails to give written approval of a cost
estimate within ten (10) Business Days following delivery to Tenant of
the original cost estimate, Tenant shall be chargeable with one day of
Delay for each day thereafter until Tenant provides to Landlord in
writing its approval of a cost estimate.
EXHIBIT C
Tenant's Work
EXHIBIT D
Building's Rules and Regulations
and Janitorial Specifications
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls of the Building shall not be obstructed or
encumbered or used for any purpose other than ingress and egress to and
from the premises demised to any tenant or occupant.
2. No awnings or other projection shall be attached to the outside walls or
windows of the Building without the prior consent of Landlord. No
curtains, blinds, shades, or screens shall be attached to or hung in, or
used in connection with, any window or door of the premises demised to
any tenant or occupant, without the prior consent of Landlord. Such
awnings, projections, curtains, blinds, shades, screens or other
fixtures must be of a quality, type, design and color, and attached in a
manner, approved by Landlord.
3. No sign, advertisement, object, notice or other lettering shall be
exhibited, inscribed, painted or affixed on any part of the outside or
inside of the premises demised to any tenant or occupant of the Building
without the prior consent of Landlord: Interior signs on doors and
directory tables, if any, shall be of a size, color and style approved
by Landlord.
4. The sashes, sash doors, skylights, windows, and doors that reflect or
admit light and air into the halls, passageways or other public places;
in the Building shall not be covered or obstructed, nor shall any
bottles, parcels, or other articles be placed art any window ▇▇▇▇▇.
5. No show cases or other articles, shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the halls,
corridors,, vestibules or other public parts of the Building.
6. The water and wash closets; and other plumbing, fixtures shall not be
used for any purposes other than those for which they were constructed,
and no sweepings, rubbish, rags, or other substances shall be thrown
therein. No tenant shall bring or keep, or permit to be brought or keep,
any inflammable, combustible, explosive or hazardous fluid, materials,
chemical or substance in or about the premises demised to such tenant.
7. No tenant or occupant shall ▇▇▇▇, paint, drill into, or in any way
deface any part of the Building or the premises demised to such tenant;
or occupant No boring, cutting or stringing of wires shall be permitted,
except with the prior consent of Landlord, and as Landlord may direct.
No or occupant shall install any resilient tile or similar floor
covering in the premises demised to such tenant or occupant except in a
manner approved by Landlord.
8. No bicycles, vehicles, or animals of any kind shall be brought Into or
kept in or about the premises demised to any tenant. No cooking shall be
done or permitted in the Building by any tenant without the approval of
the Landlord. No tenant shall cause or permit any unusual or
objectionable odors to emanate from the premises demised to such tenant.
9. No space in the Building shall be used for manufacturing, for the
storage of merchandise, or for the sale of merchandise, goods, or
property of any kind at auction, without the prior consent of Landlord.
10. No tenant shall make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with other tenants or occupants of the
Building or neighboring buildings or premises whether by the use of any
musical instrument, radio, television set or other audio device,
unmusical noise, whistling, singing, or in any other way. Nothing shall
be thrown out of any doors or window.
11. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows, nor shall any changes be made in locks or the
mechanism thereof. Each tenant must, upon the termination of its
tenancy, restore to Landlord all keys of stores, offices and toilet
rooms, either furnished to, or otherwise procured by, such tenant.
12. All removals from the Building, or the carrying in or out of the
Building or the premises demised to any tenant, any safes, freight,
furniture or bulky matter of any description must take place at such
time and in such manner Landlord or its agents may determine, from time
to time. Landlord reserves the right to inspect all freight to be
brought into the Building and to exclude from the Building all freight
which violates any of the Rules and Regulations or the provisions of
such tenant's lease.
13. No tenant shall use or occupy, or permit any portion of the premises
demised to such tenant to be used or occupied, as an office for a public
stenographer or typist, or to a ▇▇▇▇▇▇ or manicure shop, or as an
employment bureau. No tenant or occupant shall engage or pay any
employees in the Building, except those actually working for such tenant
or occupant in the Building, nor advertise for laborers giving an
address at the Building.
14. No tenant or occupant shall purchase spring water, ice, food, beverage,
lighting maintenance, cleaning towels or other like service, from any
company or person not approved by Landlord. No vending machines of any
description shall be installed, maintained or operated upon the premises
demised to any tenant without the prior consent of Landlord.
15. Landlord shall have the right to prohibit any advertising by any tenant
or occupant which, in Landlord's opinion, tends to impair the reputation
of the Building or its desirability as a building for offices, and upon
notice from Landlord, such tenant or occupant shall refrain from or
discontinue such advertising.
16. Landlord reserves the right to exclude from the Building, between the
hours of 6:00 P.M. and 8:00 A.M. on business days and at all hours on
Saturdays, Sundays and holidays, all' persons who do not present a pass
to the Building signed by Landlord. Landlord will furnish passes to
persons for whom any tenant requests such passes. Each tenant shall be
responsible for all persons from whom it requests such passes and shall
be liable to Landlord for all acts of such persons.
17. Each tenant, before dosing and leaving the premises demised to such
tenant at any time, shall see that all entrance doors are locked and all
windows closed. Corridor doors, when not in use, shall be kept closed.
18. Each tenant shall, at its expense, provide artificial light in the
premises demised to such tenant for Landlord's agents, contractors and
employees while performing janitorial or other cleaning services and
making repairs or alterations in said premises.
19. No premises shall be used, or permitted to be used for lodging or
sleeping, or for any immoral or illegal purposes.
20. The requirements of Tenant will be attended to only upon application at
the office of Landlord. Building employees shall not be required to
perform, and shall not be requested by any tenant or occupant to
perform, and work outside of their regular duties, unless under specific
instructions from the office of Landlord.
21. Canvassing, soliciting and peddling in the Building are prohibited and
each tenant and occupant shall cooperate hi seeking their prevention.
22. There shall not be used in the Building, either by any tenant or
occupant or by their agents or contractors, in the delivery or receipt
of merchandise, freight, or other matter, any hand trucks or other means
of conveyance except those equipped with rubber tires, rubber side
guards and such other safeguards as Landlord may require.
23. If the Premises demised to any tenant become infested with vermin, such
tenant, at its sole cost and expense, shall cause its premises to be
exterminated, from time to time, to the satisfaction of Landlord, and
shall employ such exterminators therefor as shall be approved by
Landlord.
24. No premises shall be used, or permitted to be used, at any time, without
the prior approval of Landlord, as a store for the sale or display of
goods, wares or merchandise of any kind, or as a restaurant, shop,
booth, bootblack or other stand, or for the conduct of any business or
occupation which predominantly involves direct patronage of the general
public in the premises demised to such tenant, or for manufacturing or
for other similar purposes.
25. No tenant shall clean any window in the Building from the outside.
26. No tenant shall move, or permit to be moved, into or out of the Building
or the premises demised to such tenant, any heavy or bulky matter,
without the specific approval of Landlord. If any such matter requires
special handling, only a qualified person shall be employed to perform
such special handling. No tenant shall place, or permit to be placed, on
any part of the floor or floors of the premises demised to such tenant,
a load exceeding the floor load per square foot which such floor was
designed to carry and which is allowed by law. Landlord reserves the
right to prescribe the weight and position of safes and other heavy
matter, which must be placed so as to distribute the weight.
27. Landlord shall provide and maintain an alphabetical directory board in
the first floor (main lobby) of the Building and no other directory
shall be permitted without the prior consent of Landlord. Each tenant
shall be allowed one line on such board unless otherwise agreed to in
writing.
28. With respect to work being performed by a tenant in its premises with
the approval of Landlord, the tenant shall refer all contractors,
contractors' representatives and installation technicians to Landlord
for its supervision, approval and control prior to the performance of
any work or services. This provision shall apply to all work performed
in the Building including installation of telephones, telegraph
equipment, electrical devices and attachments, and installations of
every nature affecting floors, walls, woodwork, trim, ceiling and
equipment and other physical portion of the Building.
29. Landlord shall not be responsible for lost or stolen. personal property,
equipment, money, or jewelry from the premises of tenants or public moms
whether or not such loss occurs when the Building or the premises are
locked against entry.
30. Landlord shall not permit entrance to the premises of tenants by use of
pass keys controlled by Landlord, to any person at any time without
written permission from such tenant, except employees, contractors, or
service personnel directly supervised by Landlord and employees of the
United States Pastel Service.
31. Each tenant and all of tenant's employees and invitees shall observe and
comply with the driving and parking signs and markers on the Land
surrounding the Building, and Landlord shall not be responsible for any
damage to any vehicle towed because of noncompliance with parking
regulations.
32. Without Landlord's prior approval, no tenant shall install any radio or
television antenna, loudspeaker, music system or other device on the
roof or exterior walls of the Building or on common walls with adjacent
tenants.
33. Each tenant shall store all trash and garbage within its premises or in
such other areas specifically designated by Landlord. No materials shall
be placed in the trash boxes or receptacles in the Building unless such
materials may be disposed of in the ordinary arid customary manner of
removing and disposing of trash and garbage and will not result in a
violation of any law or ordinance governing such disposal. All garbage
and refuse disposal shall be only through entryways and elevators
provided for such purposes and at such times as Landlord shall
designate.
34. No tenant shall employ any persons other than the janitor or Landlord
for the purpose of cleaning its premises without the prior consent of
Landlord. No tenant shall cause any unnecessary labor by reason of its
carelessness or indifference in the preservation of good order and
cleanliness. Janitor service shall include ordinary dusting and cleaning
by the janitor assigned to such work and shall not include beating of
carpets or rugs or moving of furniture or other special services.
Janitor service shall be furnished Mondays through Fridays, legal
holidays excepted, janitor service will not be furnished to areas which
are occupied after 9:30 P.M. Window cleaning shall be done only by
Landlord, and only between 6:00 A.M. and 5:00 P.M.
EXHIBIT E
Commencement Date Confirmation
DECLARATION BY LANDLORD AND TENANT AS TO DATE OF DELIVERY
AND ACCEPTANCE OF POSSESSION OF PREMISES
Attached to and made a part of the Lease dated the ____ day of_________
199_____, entered into and by CORNERSTONE SUBURBAN OFFICE, L.P., as LANDLORD,
and _____ as TENANT.
LANDLORD AND TENANT do hereby declare that possession of the Premises was
accepted by TENANT on the ____ day of __________________________________. The
Premises required to be constructed and finished by LANDLORD in accordance with
the provisions of the Lease have been satisfactorily completed by LANDLORD and
accepted by TENANT, the Lease is now in full force and effect, and as of the
date hereof, LANDLORD has fulfilled all of its obligations under the Lease. The
Lease Commencement Date is hereby established as _____ _________ 199___. The
Term of this Lease shall terminate on___________________. 19___.
LANDLORD:
Cornerstone Suburban Office, L.P.
a Delaware Limited partnership
By: Cornerstone Office Management,
Limited Liability Company, a Delaware LLC,
its general partner
By: Cornerstone Real Estate Advisers, Inc.
a Massachusetts Corporation
its managing member
By: ___________________________
▇▇▇ ▇▇▇▇▇▇
Vice President
TENANT:
▇▇ ▇▇▇▇, Inc., A Delaware Corporation
________________________________
By: ________________________________
Max Sun, President
By: ________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer