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Exhibit 99.1
LEASE AGREEMENT
Basic Lease Information
Lease Date: November 15, 2006
Landlord: Behringer Harvard TIC Management Services LP, A Texas
limited partnership, on behalf of the tenant in common
owners of the Beau Terre Office Park.
Tenant: Diverse Media Group Corp, a Utah corporation
Premises: Suite No. E507 , containing approximately 1,150 rentable
square feet, in the office complex commonly known as Beau
Terre Office Park (the "Building"), and whose street
address is ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇. The Premises are outlined on the plan attached to
the Lease as Exhibit A. The term "Project" shall
collectively refer to the Building, the Land and the
driveways, parking facilities, and similar improvements and
easements associated with the foregoing or the operation
thereof.
Term: 24 full calendar months, plus any partial month from the
Commencement Date to the end of the month in which the
Commencement Date falls, starting on the Commencement Date
and ending at 5:00 p.m. local time on the last day of the
24th full calendar month following the Commencement Date,
subject to adjustment and earlier termination as provided
in the Lease.
Commencement Date: The earlier of (a) the date on which Tenant occupies any
portion of the Premises and begins conducting business
therein, or (b) December 1, 2006.
Basic Rent: Basic Rent shall be the following amounts for the following
periods of time:
----------- ---------------------- ------------------
Annual Basic Rent Rate Monthly
Lease Month Per Square Foot Basic Rent
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1 - 24 $15.34 $1,470.08
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As used herein, the term "Lease Month" means each calendar
month during the Term (and if the Commencement Date does
not occur on the first day of a calendar month, the period
from the Commencement Date to the first day of the next
calendar month shall be included in the first Lease Month
for purposes of determining the duration of the Term and
the monthly Basic Rent rate applicable for such partial
month).
Security Deposit: $1,470.08.
Rent: Basic Rent, Tenant's share of Additional Rent, and all
other sums Tenant may owe to Landlord or otherwise be
required to pay under the Lease.
Permitted Use: General office use.
Tenant's Proportionate Share: .00311, which is the factor obtained
by dividing (a) the number of square feet in the Premises
as stated above by (b) the 369,039 square feet in the
Building. Landlord and Tenant stipulate the number of
square feet in the Premises and in the Building set forth
above is conclusive and shall be binding upon them.
Expense Stop: Operating Costs for the calendar year 2006.
Initial Liability
Insurance Amount: $1,000,000.
Tenant's Address: Prior to Commencement Date: Following Commencement Date:
Diverse Media Group Diverse Media Group
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
Landlord's Address: For all Notices: With a copy to:
Behringer Harvard TIC Behringer Harvard TIC
Management Services LP, Management Services LP,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ c/o Asset Management
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Attention: Property Manager ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Attention: General Counsel -
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Beau Terre
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
The foregoing Basic Lease Information is incorporated into and made a
part of the Lease identified above. If any conflict exists between any Basic
Lease Information and the Lease, then the Lease shall control.
LANDLORD: Behringer Harvard TIC Management Services LP, a Texas
limited partnership, on behalf of the tenant in common
owners of the Beau Terre Office Park, by ▇▇▇▇▇▇▇▇ ▇▇▇▇
Services, Inc., as agent for the owners.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
TENANT: Diverse Media Group Corp, a Utah Corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
LEASE
This Lease Agreement (this "Lease") is entered into as of November 15th,
2006, between Behringer Harvard TIC Management Services LP, a Texas limited
partnership, on behalf of the tenant in common owners of the Beau Terre Office
Park ("Landlord"), and Diverse Media Group Corp, a Utah corporation ("Tenant").
1. Definitions and Basic Provisions. The definitions and basic provisions
set forth in the Basic Lease Information (the "Basic Lease Information")
executed by Landlord and Tenant contemporaneously herewith are incorporated
herein by reference for all purposes. Additionally, the following terms shall
have the following meanings when used in this Lease: "Affiliate" means any
person or entity which, directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with the
party in question; "Building's Structure" means the Building's exterior walls,
roof, elevator shafts, footings, foundations, structural portions of
load-bearing walls, structural floors and subfloors, and structural columns and
beams; "Building's Systems" means the Building's HVAC, life-safety, plumbing,
electrical, and mechanical systems; "including" means including, without
limitation; "Laws" means all federal, state, and local laws, ordinances, rules
and regulations, all court orders, governmental directives, and governmental
orders and all interpretations of the foregoing, and all restrictive covenants
affecting the Project, and "Law" means any of the foregoing; "Tenant's
Off-Premises Equipment" means any of Tenant's equipment or other property that
may be located on or about the Project (other than inside the Premises); and
"Tenant Party" means any of the following persons: Tenant; any assignees
claiming by, through, or under Tenant; any subtenants claiming by, through, or
under Tenant; and any of their respective agents, contractors, employees,
licensees, guests and invitees.
2. Lease Grant. Subject to the terms of this Lease, Landlord leases to
Tenant, and Tenant leases from Landlord, the Premises.
3. Tender of Possession. Landlord and Tenant presently anticipate that
possession of the Premises will be tendered to Tenant in the condition required
by this Lease on or about December 1, 2006 (the "Estimated Delivery Date"). If
Landlord is unable to tender possession of the Premises in such condition to
Tenant by the Estimated Delivery Date, then a) the validity of this Lease shall
not be affected or impaired thereby, b) Landlord shall not be in default
hereunder or be liable for damages therefor, and c) Tenant shall accept
possession of the Premises when Landlord tenders possession thereof to Tenant.
By occupying the Premises, Tenant shall be deemed to have accepted the Premises
in their condition as of the date of such occupancy, subject to the performance
of punch-list items that remain to be performed by Landlord, if any. Prior to
occupying the Premises, Landlord shall deliver to Tenant for its execution and
delivery a letter substantially in the form of an Acceptance of Premises
Memorandum, however, the failure of the parties to execute such letter shall not
defer the Commencement Date or otherwise invalidate this Lease. Occupancy of the
Premises by Tenant prior to the Commencement Date shall be subject to all of the
provisions of this Lease excepting only those requiring the payment of Basic
Rent and Additional Rent (each as defined herein).
4. Rent.
(a) Payment. Tenant shall timely pay to Landlord Rent, without
notice, demand, deduction or set off (except as otherwise expressly provided
herein), by good and sufficient check drawn on a national banking association,
at Landlord's address provided for in this Lease or as otherwise specified by
Landlord and shall be accompanied by all applicable state and local sales or use
taxes. The obligations of Tenant to pay Basic Rent and other sums to Landlord
and the obligations of Landlord under this Lease are independent obligations.
Basic Rent, adjusted as herein provided, shall be payable monthly in advance.
The first monthly installment of Basic Rent shall be payable contemporaneously
with the execution of this Lease; thereafter, Basic Rent shall be payable on the
first day of each month beginning on the first day of the second full calendar
month of the Term. The monthly Basic Rent for any partial month at the beginning
of the Term shall equal the product of 1/365 of the annual Basic Rent in effect
during the partial month and the number of days in the partial month, and shall
be due on the Commencement Date. Payments of Basic Rent for any fractional
calendar month at the end of the Term shall be similarly prorated. Tenant shall
pay Additional Rent at the same time and in the same manner as Basic Rent.
(b) Operating Costs.
(1) Tenant shall pay to Landlord the amount (per each
square foot in the Premises) ("Additional Rent") by which the annual
Operating Costs (defined below) per square foot in the Building exceed
the Expense Stop (per square foot in the Building). Throughout the Term,
Landlord may make good faith estimates of the Additional Rent to be due
by Tenant for any calendar year or part thereof during the Term. During
each calendar year or partial calendar year of the Term, Tenant shall pay
to Landlord, in advance concurrently with each monthly installment of
Basic Rent, an amount equal to the estimated Additional Rent for such
calendar year or part thereof divided by the number of months therein.
Any amounts paid based on such an estimate shall be subject to adjustment
as herein provided when actual Operating Costs are available for each
calendar year.
(2) The term "Operating Costs" means any and all (1)
utility costs, (2) insurance premium expenses and (3) real estate and
personal property taxes which Landlord and others owning interests in the
Project pay, incur or become obligated to pay in connection with the
ownership and operation of all portions of the Project.
(3) As soon as practicable, Landlord shall furnish to
Tenant a statement of Operating Costs for the previous year (the
"Operating Costs Statement"). If Tenant's estimated payments of Operating
Costs, under this Section 4(b) for the year covered by the Operating
Costs exceed Tenant's Proportionate Share of such items as indicated in
the Operating Costs Statement, then Landlord shall promptly credit or
reimburse Tenant for such excess; likewise, if Tenant's estimated
payments of Operating Costs under this Section 4(b) for such year are
less than Tenant's Proportionate Share of such items as indicated in the
Operating Costs Statement, then Tenant shall promptly pay Landlord such
deficiency.
5. Delinquent Payment; Handling Charges. All past due payments required
of Tenant hereunder shall bear interest from the date due until paid at the
maximum lawful rate of interest permitted by applicable law (such amount is
referred to herein as the "Default Rate"); additionally, Landlord, in addition
to all other rights and remedies available to it, may charge Tenant a fee equal
to five percent of the delinquent payment to reimburse Landlord for its cost and
inconvenience incurred as a consequence of Tenant's delinquency. In no event,
however, shall the charges permitted under this Section 5 or elsewhere in this
Lease, to the extent they are considered to be interest under applicable Law,
exceed the maximum lawful rate of interest.
6. Security Deposit. Contemporaneously with the execution of this Lease,
Tenant shall pay to Landlord the Security Deposit, which shall be held by
Landlord to secure Tenant's performance of its obligations under this Lease. The
Security Deposit is not an advance payment of Rent or a measure or limit of
Landlord's damages upon an Event of Default (as defined herein). Landlord may,
from time to time following an Event of Default and without prejudice to any
other remedy, use all or a part of the Security Deposit to perform any
obligation Tenant fails to perform hereunder. Following any such application of
the Security Deposit, Tenant shall pay to Landlord on demand the amount so
applied in order to restore the Security Deposit to its original amount.
Provided that Tenant has performed all of its obligations hereunder, Landlord
shall, within 60 days after the expiration of the Term and Tenant's surrender of
the Premises in compliance with the provisions of this Lease, return to Tenant
the portion of the Security Deposit which was not applied to satisfy Tenant's
obligations. The Security Deposit may be commingled with other funds, and no
interest shall be paid thereon. If Landlord transfers its interest in the
Premises and the transferee assumes Landlord's obligations under this Lease,
then Landlord may assign the Security Deposit to the transferee and Landlord
thereafter shall have no further liability for the return of the Security
Deposit. The rights and obligations of Landlord and Tenant under this Section 6
are subject to any other requirements and conditions imposed by Laws applicable
to the Security Deposit.
7. Landlord's Obligations.
(a) Services. Landlord shall use all reasonable efforts to furnish
to Tenant i) water; heated and refrigerated air conditioning ("HVAC") as
appropriate; and iii) electrical current during normal business hours for
equipment that does not exceed normal office usage.
(b) Excess Utility Use. Landlord may, at Landlord's sole
discretion, but at Tenant's sole expense, make the necessary arrangements to
supply any excess service needed by Tenant (provided such electricity does not
exceed the capacity of feeders risers or wiring to the Premises) through the
then-existing feeders and risers serving the Building and the Premises, and
Tenant shall pay to Landlord the cost of such service within 30 days after
Landlord has delivered to Tenant an invoice therefor. Tenant shall not install
any electrical equipment requiring voltage in excess of Building capacity unless
approved in advance by Landlord, which approval may be withheld in Landlord's
sole discretion.
(c) Restoration of Services; Abatement. Landlord shall use
reasonable efforts to restore any service required of it that becomes
unavailable; however, such unavailability shall not render Landlord liable for
any damages caused thereby, be a constructive eviction of Tenant, constitute a
breach of any implied warranty, or, except as provided in the next sentence,
entitle Tenant to any abatement of Tenant's obligations hereunder. If, however,
Tenant is prevented from using the Premises because of the unavailability of any
such service for a period of fifteen (15) consecutive business days following
Landlord's receipt from Tenant of a written notice regarding such
unavailability, the restoration of which is within Landlord's reasonable
control, and such unavailability was not caused by a Tenant Party or a
governmental directive, then Tenant shall, as its exclusive remedy be entitled
to a reasonable abatement of Rent for each consecutive day (after such 15-day
period) that Tenant is so prevented from using the Premises.
8. Improvements; Alterations; Repairs; Maintenance.
(a) Improvements; Alterations. Improvements to the Premises shall
be installed at Tenant's expense only in accordance with plans and
specifications which have been previously submitted to and approved in writing
by Landlord. Tenant shall not paint or install lighting or decorations, signs,
window or door lettering, or advertising media of any type visible from the
exterior of the Premises without the prior written consent of Landlord, which
consent may be withheld in Landlord's sole and absolute discretion. All
alterations, additions, and improvements shall be constructed, maintained, and
used by Tenant, at its risk and expense, in accordance with all Laws; Landlord's
consent to or approval of any alterations, additions or improvements (or the
plans therefor) shall not constitute a representation or warranty by Landlord,
nor Landlord's acceptance, that the same comply with sound architectural and/or
engineering practices or with all applicable Laws, and Tenant shall be solely
responsible for ensuring all compliance therewith.
(b) Repairs; Maintenance. Tenant shall, at Tenant's sole expense
and in accordance with all Laws, maintain the Premises in a clean, safe, and
operable condition, and shall not permit or allow to remain any waste or damage
to any portion of the Premises. Additionally, Tenant, at its sole expense, shall
repair, replace and maintain in good condition and in accordance with all Laws
and the equipment manufacturer's suggested service-programs, all portions of the
Premises, Tenant's Off-Premises Equipment and all areas, improvements and
systems exclusively serving the Premises. Tenant shall repair or replace,
subject to Landlord's direction and supervision, any damage to the Building
caused by a Tenant Party. If Tenant fails to make such repairs or replacements
within 15 days after the occurrence of such damage, then Landlord may make the
same at Tenant's cost. If any such damage occurs outside of the Premises, then
Landlord may elect to repair such damage at Tenant's expense, rather than having
Tenant repair such damage. The cost of all maintenance, repair or replacement
work performed by Landlord under this Section 8 shall be paid by Tenant to
Landlord within 30 days after Landlord has invoiced Tenant therefor.
(c) Performance of Work. All work described in this Section 8(c)
shall be performed only by Landlord or by contractors and subcontractors
approved in writing by Landlord. Tenant shall cause all contractors and
subcontractors to procure and maintain insurance coverage naming Landlord,
Landlord's property management company and Landlord's asset management company
as additional insureds against such risks, in such amounts, and with such
companies as Landlord may reasonably require. Tenant shall provide Landlord with
the identities, mailing addresses and telephone numbers of all persons
performing work or supplying materials prior to beginning such construction and
Landlord may post on and about the Premises notices of non-responsibility
pursuant to applicable Laws. All such work shall be performed in accordance with
all Laws and in a good and workmanlike manner so as not to damage the Building
(including the Premises, the Building's Structure and the Building's Systems).
All such work which may affect the Building's Structure or the Building's
Systems must be approved by the Building's engineer of record, at Tenant's
expense and, at Landlord's election, must be performed by Landlord's usual
contractor for such work. All work affecting the roof of the Building must be
performed by Landlord's roofing contractor and no such work will be permitted if
it would void or reduce the warranty on the roof.
(d) Mechanic's Liens. All work performed, materials furnished, or
obligations incurred by or at the request of a Tenant Party shall be deemed
authorized and ordered by Tenant only, and Tenant shall not permit any
mechanic's liens to be filed against the Premises or the Project in connection
therewith. Upon completion of any such work, Tenant shall deliver to Landlord
final lien waivers from all contractors, subcontractors and materialmen who
performed such work. If such a lien is filed, then Tenant shall, within ten days
after Landlord has delivered notice of the filing thereof to Tenant (or such
earlier time period as may be necessary to prevent the forfeiture of the
Premises, the Project or any interest of Landlord therein or the imposition of a
civil or criminal fine with respect thereto), either iv) pay the amount of the
lien and cause the lien to be released of record, or v) diligently contest such
lien and deliver to Landlord a bond or other security reasonably satisfactory to
Landlord. If Tenant fails to timely take either such action, then Landlord may
pay the lien claim, and any amounts so paid, including expenses and interest,
shall be paid by Tenant to Landlord within ten days after Landlord has invoiced
Tenant therefor. Landlord and Tenant acknowledge and agree that their
relationship is and shall be solely that of "landlord-tenant" (thereby excluding
a relationship of "owner-contractor," "owner-agent" or other similar
relationships). Accordingly, all materialmen, contractors, artisans, mechanics,
laborers and any other persons now or hereafter contracting with Tenant, any
contractor or subcontractor of Tenant or any other Tenant Party for the
furnishing of any labor, services, materials, supplies or equipment with respect
to any portion of the Premises, at any time from the date hereof until the end
of the Term, are hereby charged with notice that they look exclusively to Tenant
to obtain payment for same. Nothing herein shall be deemed a consent by Landlord
to any liens being placed upon the Premises, the Project or Landlord's interest
therein due to any work performed by or for Tenant or deemed to give any
contractor or subcontractor or materialman any right or interest in any funds
held by Landlord to reimburse Tenant for any portion of the cost of such work.
Tenant shall defend, indemnify and hold harmless Landlord and its agents and
representatives from and against all claims, demands, causes of action, suits,
judgments, damages and expenses (including attorneys' fees) in any way arising
from or relating to the failure by any Tenant Party to pay for any work
performed, materials furnished, or obligations incurred by or at the request of
a Tenant Party. This indemnity provision shall survive termination or expiration
of this Lease.
9. Use. Tenant shall continuously occupy and use the Premises only for
the Permitted Use and shall comply with all Laws relating to the use, condition,
access to, and occupancy of the Premises and will not commit waste, overload the
Building's Structure or the Building's Systems or subject the Premises to use
that would damage the Premises. Landlord represents and warrants that the
condition of the Premises complies with all applicable ordinances and codes,
including, but not limited to, the American with Disabilities Act (the
"Disabilities Act") and all applicable environmental requirements.
Notwithstanding anything in this Lease to the contrary, as between Landlord and
Tenant, d)Tenant, upon obtaining possession of the Premises, shall take
appropriate action to ensure continued compliance with Title III of the
Disabilities Act, any state laws governing handicapped access or architectural
barriers, and all rules, regulations, and guidelines promulgated under such
laws, as amended from time to time, in the Premises, and e) Landlord shall bear
the risk of complying with the Disabilities Acts in the common areas of the
Building, other than compliance that is necessitated by the use of the Premises
for other than the Permitted Use or as a result of any alterations or additions,
including any initial tenant improvement work, made by or on behalf of a Tenant
Party (which risk and responsibility shall be borne by Tenant). The Premises
shall not be used for any use which is disreputable, creates extraordinary fire
hazards, or results in an increased rate of insurance on the Building or its
contents, or for the storage of any Hazardous Materials (other than typical
office supplies [e.g., photocopier toner] and then only in compliance with all
Laws). If, because of a Tenant Party's acts or because Tenant vacates the
Premises, the rate of insurance on the Building or its contents increases, then
such acts shall be an Event of Default, Tenant shall pay to Landlord the amount
of such increase on demand, and acceptance of such payment shall not waive any
of Landlord's other rights. Tenant shall conduct its business and control each
other Tenant Party so as not to create any nuisance or unreasonably interfere
with other tenants or Landlord in its management of the Building.
10. Assignment and Subletting. Tenant shall not, without the prior
written consent of Landlord: assign, transfer, or encumber this Lease or any
estate or interest herein, whether directly or by operation of law, g) permit
any other entity to become Tenant hereunder by merger, consolidation, or other
reorganization, h) if Tenant is an entity other than a corporation whose stock
is publicly traded, permit the transfer of an ownership interest in Tenant so as
to result in a change in the current control of Tenant, i) sublet any portion of
the Premises, j) grant any license, concession, or other right of occupancy of
any portion of the Premises, or permit the use of the Premises by any parties
other than Tenant (any of the events listed in Section 10(a) through 10(f) being
a "Transfer"). No Transfer shall release Tenant from its obligations under this
Lease, but rather Tenant and its transferee shall be jointly and severally
liable therefor. Landlord's consent to any Transfer shall not waive Landlord's
rights as to any subsequent Transfers.
11. Insurance; Waivers; Subrogation; Indemnity.
(a) Tenant's Insurance. Effective as of the earlier of i) the date
Tenant enters or occupies the Premises, or ii) the Commencement Date, and
continuing throughout the Term, Tenant shall maintain the following insurance
policies: (1) commercial general liability insurance in amounts of $1,000,000
per occurrence or, following the expiration of the initial Term, such other
amounts as Landlord may from time to time reasonably require (and, if the use
and occupancy of the Premises include any activity or matter that is or may be
excluded from coverage under a commercial general liability policy [e.g., the
sale, service or consumption of alcoholic beverages], Tenant shall obtain such
endorsements to the commercial general liability policy or otherwise obtain
insurance to insure all liability arising from such activity or matter
[including liquor liability, if applicable] in such amounts as Landlord may
reasonably require), insuring Tenant, Landlord, Landlord's property management
company, Landlord's asset management company and, if requested in writing by
Landlord, Landlord's Mortgagee, against all liability for injury to or death of
a person or persons or damage to property arising from the use and occupancy of
the Premises and (without implying any consent by Landlord to the installation
thereof) the installation, operation, maintenance, repair or removal of Tenant's
Off-Premises Equipment, (2) insurance covering the full value of all alterations
and improvements and betterments in the Premises, naming Landlord and Landlord's
Mortgagee as additional loss payees as their interests may appear, (3)
contractual liability insurance sufficient to cover Tenant's indemnity
obligations hereunder, (4) worker's compensation insurance and (5) business
interruption insurance in an amount reasonably acceptable to Landlord. Tenant's
insurance shall provide primary coverage to Landlord when any policy issued to
Landlord provides duplicate or similar coverage, and in such circumstance
Landlord's policy will be excess over Tenant's policy. Tenant shall furnish to
Landlord certificates of such insurance and such other evidence satisfactory to
Landlord of the maintenance of all insurance coverages required hereunder at
least ten days prior to the earlier of the Commencement Date or the date Tenant
enters or occupies the Premises, and at least 15 days prior to each renewal of
said insurance, and Tenant shall obtain a written obligation on the part of each
insurance company to notify Landlord at least 30 days before cancellation or a
material change of any such insurance policies. All such insurance policies
shall be in form, and issued by companies with an A.M. Best rating of A- : VII
or better, reasonably satisfactory to Landlord. If Tenant fails to comply with
the foregoing insurance requirements or to deliver to Landlord the certificates
or evidence of coverage required herein, Landlord, in addition to any other
remedy available pursuant to this Lease or otherwise, may, but shall not be
obligated to, obtain such insurance and Tenant shall pay to Landlord on demand
the premium costs thereof, plus an administrative fee of 15% of such cost.
(b) No Subrogation; Waiver of Property Claims. Landlord and Tenant
each waives any claim it might have against the other for any damage to or
theft, destruction, loss, or loss of use of any property, to the extent the same
is insured against under any insurance policy of the types described in this
Section 11 that covers the Project, the Premises, Landlord's or Tenant's
fixtures, personal property, leasehold improvements, or business, or is required
to be insured against under the terms hereof, regardless of whether the
negligence of the other party caused such Loss (defined below). Additionally,
Tenant waives any claim it may have against Landlord for any Loss to the extent
such Loss is caused by a terrorist act. Each party shall cause its insurance
carrier to endorse all applicable policies waiving the carrier's rights of
recovery under subrogation or otherwise against the other party. Notwithstanding
any provision in this Lease to the contrary, Landlord, its agents, employees and
contractors shall not be liable to Tenant or to any party claiming by, through
or under Tenant for (and Tenant hereby releases Landlord and its servants,
agents, contractors, employees and invitees from any claim or responsibility
for) any damage to or destruction, loss, or loss of use, or theft of any
property of any Tenant Party located in or about the Project, caused by
casualty, theft, fire, third parties or any other matter or cause, regardless of
whether the negligence of any party caused such loss in whole or in part. Tenant
acknowledges that Landlord shall not carry insurance on, and shall not be
responsible for damage to, any property of any Tenant Party located in or about
the Project.
(c) Indemnity. Subject to Section 11(b), Tenant shall defend,
indemnify, and hold harmless Landlord and its representatives and agents from
and against all claims, demands, liabilities, causes of action, suits,
judgments, damages, and expenses (including reasonable attorneys' fees) arising
from any injury to or death of any person or the damage to or theft,
destruction, loss, or loss of use of, any property or inconvenience (a "Loss")
iii) occurring in or on the Project (other than within the Premises) to the
extent caused by the negligence or willful misconduct of any Tenant Party,
occurring in the Premises, or arising out of the installation, operation,
maintenance, repair or removal of any property of any Tenant Party located in or
about the Project, including Tenant's Off-Premises Equipment. It being agreed
that clauses (2) and (3) of this indemnity are intended to indemnify Landlord
and its agents against the consequences of their own negligence or fault, even
when Landlord or its agents are jointly, comparatively, contributively, or
concurrently negligent with Tenant, and even though any such claim, cause of
action or suit is based upon or alleged to be based upon the strict liability of
Landlord or its agents; however, such indemnity shall not apply to the sole or
gross negligence or willful misconduct of Landlord and its agents. Subject to
Section 11(b), Landlord shall defend, indemnify, and hold harmless Tenant and
its agents from and against all claims, demands, liabilities, causes of action,
suits, judgments, damages, and expenses (including reasonable attorneys' fees)
for any Loss arising from any occurrence in or on the Building's common areas to
the extent caused by the negligence or willful misconduct of Landlord or its
agents. The indemnities set forth in this Lease shall survive termination or
expiration of this Lease and shall not terminate or be waived, diminished or
affected in any manner by any abatement or apportionment of Rent under any
provision of this Lease. If any proceeding is filed for which indemnity is
required hereunder, the indemnifying party agrees, upon request therefor, to
defend the indemnified party in such proceeding at its sole cost utilizing
counsel satisfactory to the indemnified party.
12. Subordination; Attornment; Notice to Landlord's Mortgagee.
(a) Subordination
This Lease shall be subordinate to any deed of trust, mortgage, or other
security instrument (each, a "Mortgage"), or any ground lease, master lease, or
primary lease (each, a "Primary Lease"), that now or hereafter covers all or any
part of the Premises (the mortgagee under any such Mortgage, beneficiary under
any such deed of trust, or the lessor under any such Primary Lease is referred
to herein as a "Landlord's Mortgagee"). Any Landlord's Mortgagee may elect, at
any time, unilaterally, to make this Lease superior to its Mortgage, Primary
Lease, or other interest in the Premises by so notifying Tenant in writing. The
provisions of this Section shall be self-operative and no further instrument of
subordination shall be required; however, in confirmation of such subordination,
Tenant shall execute and return to Landlord (or such other party designated by
Landlord) within ten days after written request therefor such documentation, in
recordable form if required, as a Landlord's Mortgagee may reasonably request to
evidence the subordination of this Lease to such Landlord's Mortgagee's Mortgage
or Primary Lease (including a subordination, non-disturbance and attornment
agreement) or, if the Landlord's Mortgagee so elects, the subordination of such
Landlord's Mortgagee's Mortgage or Primary Lease to this Lease.
(b) Attornment. Tenant shall attorn to any party succeeding to
Landlord's interest in the Premises, whether by purchase, foreclosure, deed in
lieu of foreclosure, power of sale, termination of lease, or otherwise, upon
such party's request, and shall execute such agreements confirming such
attornment as such party may reasonably request.
(c) Landlord's Mortgagee's Protection Provisions. If Landlord's
Mortgagee shall succeed to the interest of Landlord under this Lease, Landlord's
Mortgagee shall not be: vi) liable for any act or omission of any prior lessor
(including Landlord); vii) bound by any rent or additional rent or advance rent
which Tenant might have paid for more than the current month to any prior lessor
(including Landlord), and all such rent shall remain due and owing,
notwithstanding such advance payment; viii) bound by any security or advance
rental deposit made by Tenant which is not delivered or paid over to Landlord's
Mortgagee and with respect to which Tenant shall look solely to Landlord for
refund or reimbursement; ix) bound by any termination, amendment or modification
of this Lease made without Landlord's Mortgagee's consent and written approval,
except for those terminations, amendments and modifications permitted to be made
by Landlord without Landlord's Mortgagee's consent pursuant to the terms of the
loan documents between Landlord and Landlord's Mortgagee; x) subject to the
defenses which Tenant might have against any prior lessor (including Landlord);
and xi) subject to the offsets which Tenant might have against any prior lessor
(including Landlord) except for those offset rights which (1) are expressly
provided in this Lease, (2) relate to periods of time following the acquisition
of the Building by Landlord's Mortgagee, and (3) Tenant has provided written
notice to Landlord's Mortgagee and provided Landlord's Mortgagee a reasonable
opportunity to cure the event giving rise to such offset event. Landlord's
Mortgagee shall have no liability or responsibility under or pursuant to the
terms of this Lease or otherwise after it ceases to own an interest in the
Project. Nothing in this Lease shall be construed to require Landlord's
Mortgagee to see to the application of the proceeds of any loan, and Tenant's
agreements set forth herein shall not be impaired on account of any modification
of the documents evidencing and securing any loan.
(d) Tenant's Right to Quiet Enjoyment. . Notwithstanding anything
to the contrary contained in this Lease, Tenant's right to the quiet enjoyment,
possession, and use of the premises shall not be interrupted or otherwise
negatively affected during the term of the Lease. Tenant's subordination and
attornment are expressly conditioned upon Landlord's warrant of Tenant's
uninterrupted quiet enjoyment, possession and use of the Premises.
13. Rules and Regulations. Tenant shall comply with the rules and
regulations of the Project which are attached hereto as Exhibit B, as amended
from time to time by Landlord. Tenant shall be responsible for the compliance
with such rules and regulations by each Tenant Party.
14. Condemnation. If the entire Building or Premises are taken by right
of eminent domain or conveyed in lieu thereof (a "Taking"), this Lease shall
terminate as of the date of the Taking. If any material portion, but less than
all, of the Building becomes subject to a Taking, or if Landlord is required to
pay any of the proceeds arising from a Taking to a Landlord's Mortgagee, then
Landlord may terminate this Lease by delivering written notice thereof to Tenant
within 30 days after such Taking, and Basic Rent and Additional Rent shall be
apportioned as of the date of such Taking. If Landlord does not so terminate
this Lease, then this Lease will continue, but if any portion of the Premises
has been taken, Rent shall be abated on a reasonable basis as to that portion of
the Premises rendered untenantable by the Taking. If any Taking occurs, then
Landlord shall receive the entire award or other compensation for the Land, the
Building, and other improvements taken; however, Tenant may separately pursue a
claim (to the extent it will not reduce Landlord's award) against the condemnor
for the value of Tenant's personal property which Tenant is entitled to remove
under this Lease, moving costs, loss of business, and other claims it may have.
15. Fire or Other Casualty.
(a) Repair Estimate. If the Premises or the Building are damaged
by fire or other casualty (a "Casualty"), Landlord shall, within forty-five (45)
days after such Casualty, deliver to Tenant a good faith estimate (the "Damage
Notice") of the time needed to repair the damage caused by such Casualty.
(b) Tenant's Rights. If a material portion of the Premises is
damaged by Casualty such that Tenant is prevented from conducting its business
in the Premises in a manner reasonably comparable to that conducted immediately
before such Casualty and Landlord estimates that the damage caused thereby
cannot be repaired within one hundred twenty (120) days after the commencement
of repairs (the "Repair Period"), then Tenant may terminate this Lease by
delivering written notice to Landlord of its election to terminate within 30
days after the Damage Notice has been delivered to Tenant.
(c) Landlord's Rights. If a Casualty damages the Premises or a
material portion of the Building and xii) Landlord estimates that the damage to
the Premises cannot be repaired within the Repair Period, xiii) the damage to
the Premises exceeds 50% of the replacement cost thereof (excluding foundations
and footings), as estimated by Landlord, and such damage occurs during the last
two years of the Term, xiv) regardless of the extent of damage to the Premises,
the damage is not fully covered by Landlord's insurance policies or Landlord
makes a good faith determination that restoring the Building would be
uneconomical, or xv) Landlord is required to pay any insurance proceeds arising
out of the Casualty to a Landlord's Mortgagee, then Landlord may terminate this
Lease by giving written notice of its election to terminate within 30 days after
the Damage Notice has been delivered to Tenant.
(d) Repair Obligation. If neither party elects to terminate this
Lease following a Casualty, then Landlord shall, within a reasonable time after
such Casualty, begin to repair the Premises and shall proceed with reasonable
diligence to restore the Premises to substantially the same condition as they
existed immediately before such Casualty; however, Landlord shall not be
required to repair or replace any alterations or betterments within the Premises
(which shall be promptly and with due diligence repaired and restored by Tenant
at Tenant's sole cost and expense) or any furniture, equipment, trade fixtures
or personal property of Tenant or others in the Premises or the Building, and
Landlord's obligation to repair or restore the Premises shall be limited to the
extent of the insurance proceeds actually received by Landlord for the Casualty
in question. If this Lease is terminated under the provisions of this Section
15, Landlord shall be entitled to the full proceeds of the insurance policies
providing coverage for all alterations, improvements and betterments in the
Premises (and, if Tenant has failed to maintain insurance on such items as
required by this Lease, Tenant shall pay Landlord an amount equal to the
proceeds Landlord would have received had Tenant maintained insurance on such
items as required by this Lease).
(e) Abatement of Rent. If the Premises are damaged by Casualty,
Rent for the portion of the Premises rendered untenantable by the damage shall
be abated on a reasonable basis from the date of damage until the completion of
Landlord's repairs (or until the date of termination of this Lease by Landlord
or Tenant as provided above, as the case may be), unless a Tenant Party caused
such damage, in which case, Tenant shall continue to pay Rent without abatement.
16. Personal Property Taxes. Tenant shall be liable for all taxes levied
or assessed against personal property, furniture, or fixtures placed by Tenant
in the Premises or in or on the Building or Project.
17. Events of Default. Each of the following occurrences shall be an
"Event of Default":
(a) Payment Default. Tenant's failure to pay Rent within five days
after the same is due;
(b) Abandonment. Tenant abandons or vacates the Premises or any
substantial portion thereof;
(c) Estoppel. Tenant fails to provide any estoppel certificate
after Landlord's written request therefor pursuant to Section 25(d) and such
failure shall continue for five days after Landlord's second written notice
thereof to Tenant;
(d) Insurance. Tenant fails to procure, maintain and deliver to
Landlord evidence of the insurance policies and coverages as required under
Section 11(a);
(e) Mechanic's Liens. Tenant fails to pay and release of record,
or diligently contest and bond around, any mechanic's lien filed against the
Premises or the Project for any work performed, materials furnished, or
obligation incurred by or at the request of Tenant, within the time and in the
manner required by Section 8(d).
(f) Other Defaults. Tenant's failure to perform, comply with, or
observe any other agreement or obligation of Tenant under this Lease and the
continuance of such failure for a period of more than 30 days after Landlord has
delivered to Tenant written notice thereof; and
(g) Insolvency. The filing of a petition by or against Tenant (the
term "Tenant" shall include, for the purpose of this Section 17(g), any
guarantor of Tenant's obligations hereunder) xvi) in any bankruptcy or other
insolvency proceeding; xvii) seeking any relief under any state or federal
debtor relief law; xviii) for the appointment of a liquidator or receiver for
all or substantially all of Tenant's property or for Tenant's interest in this
Lease; xix) for the reorganization or modification of Tenant's capital
structure; or xx) in any assignment for the benefit of creditors proceeding;
however, if such a petition is filed against Tenant, then such filing shall not
be an Event of Default unless Tenant fails to have the proceedings initiated by
such petition dismissed within 90 days after the filing thereof.
18. Remedies. Upon any Event of Default, Landlord may, in addition to all
other rights and remedies afforded Landlord hereunder or by law or equity, take
any one or more of the following actions:
(a) Termination of Lease. Terminate this Lease by giving Tenant
written notice thereof, in which event Tenant shall pay to Landlord the sum of
xxi) all Rent accrued hereunder through the date of termination, xxii) all
amounts due under Section 19(a), and xxiii) an amount equal to (A) the total
Rent that Tenant would have been required to pay for the remainder of the Term
discounted to present value at a per annum rate equal to the "Prime Rate" as
published on the date this Lease is terminated by The Wall Street Journal,
Southwest Edition, in its listing of "Money Rates" minus one percent, minus (B)
the then present fair rental value of the Premises for such period, similarly
discounted;
(b) Termination of Possession. Terminate Tenant's right to possess
the Premises without terminating this Lease by giving written notice thereof to
Tenant, in which event Tenant shall pay to Landlord xxiv) all Rent and other
amounts accrued hereunder to the date of termination of possession, xxv) all
amounts due from time to time under Section 19(a), and xxvi) all Rent and other
net sums required hereunder to be paid by Tenant during the remainder of the
Term, diminished by any net sums thereafter received by Landlord through
reletting the Premises during such period, after deducting all costs incurred by
Landlord in reletting the Premises. If Landlord elects to proceed under this
Section 18(b), Landlord may remove all of Tenant's property from the Premises
and store the same in a public warehouse or elsewhere at the cost of, and for
the account of, Tenant, without becoming liable for any loss or damage which may
be occasioned thereby. Landlord shall not be obligated to relet the Premises
before leasing other portions of the Building or Complex and Landlord shall not
be obligated to accept any prospective tenant proposed by Tenant unless such
proposed tenant meets all of Landlord's leasing criteria. Landlord shall not be
liable for, nor shall Tenant's obligations hereunder be diminished because of,
Landlord's failure to relet the Premises or to collect rent due for such
reletting. Tenant shall not be entitled to the excess of any consideration
obtained by reletting over the Rent due hereunder. Reentry by Landlord in the
Premises shall not affect Tenant's obligations hereunder for the unexpired Term;
rather, Landlord may, from time to time, bring an action against Tenant to
collect amounts due by Tenant, without the necessity of Landlord's waiting until
the expiration of the Term. Unless Landlord delivers written notice to Tenant
expressly stating that it has elected to terminate this Lease, all actions taken
by Landlord to dispossess or exclude Tenant from the Premises shall be deemed to
be taken under this Section 18(b). If Landlord elects to proceed under this
Section 18(b), it may at any time elect to terminate this Lease under Section
18(a); or
(c) Perform Acts on Behalf of Tenant. Perform any act Tenant is
obligated to perform under the terms of this Lease (and enter upon the Premises
in connection therewith if necessary) in Tenant's name and on Tenant's behalf,
without being liable for any claim for damages therefor, and Tenant shall
reimburse Landlord on demand for any expenses which Landlord may incur in thus
effecting compliance with Tenant's obligations under this Lease (including, but
not limited to, collection costs and legal expenses), plus interest thereon at
the Default Rate.
19. Payment by Tenant; Non-Waiver; Cumulative Remedies.
(a) Payment by Tenant. Upon any Event of Default, Tenant shall pay
to Landlord all costs incurred by Landlord (including court costs and reasonable
attorneys' fees and expenses) in xxvii) obtaining possession of the Premises,
xxviii) removing and storing Tenant's or any other occupant's property, xxix)
repairing, restoring, altering, remodeling, or otherwise putting the Premises
into condition acceptable to a new tenant, xxx) if Tenant is dispossessed of the
Premises and this Lease is not terminated, reletting all or any part of the
Premises (including brokerage commissions, cost of tenant finish work, and other
costs incidental to such reletting), xxxi) performing Tenant's obligations which
Tenant failed to perform, and xxxii) enforcing, or advising Landlord of, its
rights, remedies, and recourses arising out of the default. To the full extent
permitted by law, Landlord and Tenant agree the federal and state courts of the
state in which the Premises are located shall have exclusive jurisdiction over
any matter relating to or arising from this Lease and the parties' rights and
obligations under this Lease.
(b) No Waiver. Landlord's acceptance of Rent following an Event of
Default shall not waive Landlord's rights regarding such Event of Default. No
waiver by Landlord of any violation or breach of any of the terms contained
herein shall waive Landlord's rights regarding any future violation of such
term. Landlord's acceptance of any partial payment of Rent shall not waive
Landlord's rights with regard to the remaining portion of the Rent that is due,
regardless of any endorsement or other statement on any instrument delivered in
payment of Rent or any writing delivered in connection therewith; accordingly,
Landlord's acceptance of a partial payment of Rent shall not constitute an
accord and satisfaction of the full amount of the Rent that is due.
(c) Cumulative Remedies. Any and all remedies set forth in this
Lease: xxxiii) shall be in addition to any and all other remedies Landlord may
have at law or in equity, xxxiv) shall be cumulative, and xxxv) may be pursued
successively or concurrently as Landlord may elect. The exercise of any remedy
by Landlord shall not be deemed an election of remedies or preclude Landlord
from exercising any other remedies in the future. Additionally, Tenant shall
defend, indemnify and hold harmless Landlord, Landlord's Mortgagee and their
respective representatives and agents from and against all claims, demands,
liabilities, causes of action, suits, judgments, damages and expenses (including
reasonable attorneys' fees) arising from Tenant's failure to perform its
obligations under this Lease.
20. Landlord's Lien. In addition to any statutory landlord's lien, now or
hereafter enacted, Tenant grants to Landlord, to secure performance of Tenant's
obligations hereunder, a security interest in all of Tenant's property situated
in or upon, or used in connection with, the Premises or the Project, and all
proceeds thereof (except merchandise sold in the ordinary course of business)
(collectively, the "Collateral"), and the Collateral shall not be removed from
the Premises or the Project without the prior written consent of Landlord until
all obligations of Tenant have been fully performed. Such personalty thus
encumbered includes specifically all trade and other fixtures for the purpose of
this Section 20 and inventory, equipment, contract rights, accounts receivable
and the proceeds thereof. Upon the occurrence of an Event of Default, Landlord
may, in addition to all other remedies, without notice or demand except as
provided below, exercise the rights afforded to a secured party under the
Uniform Commercial Code of the state in which the Premises are located (the
"UCC"). To the extent the UCC requires Landlord to give to Tenant notice of any
act or event and such notice cannot be validly waived before a default occurs,
then five-days' prior written notice thereof shall be reasonable notice of the
act or event. In order to perfect such security interest, Landlord may file any
financing statement or other instrument necessary at Tenant's expense at the
state and county Uniform Commercial Code filing offices.
21. Surrender of Premises. No act by Landlord shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept a
surrender of the Premises shall be valid unless it is in writing and signed by
Landlord. At the expiration or termination of this Lease, Tenant shall deliver
to Landlord the Premises with all improvements located therein in good repair
and condition, free of Hazardous Materials placed on the Premises during the
Term (or Tenant's pre-Term occupancy period), broom-clean, reasonable wear and
tear excepted, and shall deliver to Landlord all keys to the Premises. Provided
that Tenant has performed all of its obligations hereunder, Tenant may remove
all unattached trade fixtures, furniture, and personal property placed in the
Premises or elsewhere in the Building by Tenant (but Tenant may not remove any
such item which was paid for, in whole or in part, by Landlord or any wiring or
cabling unless Landlord requires such removal). Tenant will remove all of its
exterior signage from the Building. Additionally, at Landlord's option, Tenant
shall remove such alterations, additions, improvements, trade fixtures, personal
property, equipment, wiring, conduits, cabling, and furniture (including
Tenant's Off-Premises Equipment) as Landlord may request; however, Tenant shall
not be required to remove any addition or improvement to the Premises or the
Project if Landlord has specifically agreed in writing that the improvement or
addition in question need not be removed. Tenant shall repair all damage caused
by such removal, including any damage caused by the removal of the exterior
signage. All items not so removed shall, at Landlord's option, be deemed to have
been abandoned by Tenant and may be appropriated, sold, stored, destroyed, or
otherwise disposed of by Landlord without notice to Tenant and without any
obligation to account for such items; any such disposition shall not be
considered a strict foreclosure or other exercise of Landlord's rights in
respect of the security interest granted under Section 20. The provisions of
this Section 21shall survive the end of the Term.
22. Holding Over. If Tenant fails to vacate the Premises at the end of
the Term, then Tenant shall be a tenant at sufferance and, in addition to all
other damages and remedies to which Landlord may be entitled for such holding
over, l) Tenant shall pay, in addition to the other Rent, Basic Rent equal to
the greater of i) 200% of the Rent payable during the last month of the Term, or
ii) 125% of the prevailing rental rate in the Building for similar space, and m)
Tenant shall otherwise continue to be subject to all of Tenant's obligations
under this Lease. The provisions of this Section 22 shall not be deemed to limit
or constitute a waiver of any other rights or remedies of Landlord provided
herein or at law. If Tenant fails to surrender the Premises upon the termination
or expiration of this Lease, in addition to any other liabilities to Landlord
accruing therefrom, Tenant shall protect, defend, indemnify and hold Landlord
harmless from all loss, costs (including reasonable attorneys' fees) and
liability resulting from such failure, including any claims made by any
succeeding tenant founded upon such failure to surrender, and any lost profits
to Landlord resulting therefrom.
23. Certain Rights Reserved by Landlord. Provided that the exercise of
such rights does not unreasonably interfere with Tenant's occupancy of the
Premises, Landlord shall have the right to enter the Premises at all reasonable
hours to show the Premises to prospective purchasers or lenders, and at any time
during the last 12 months of the Term (or earlier if Tenant has notified
Landlord in writing that it does not desire to renew the Term) or at any time
following the occurrence of an Event of Default, to enter the Premises at all
reasonable hours to show the Premises to prospective tenants. The rights
reserved by Landlord under this Section 23 are not exhaustive.
24. Substitution Space. Landlord may, at Landlord's expense, relocate
Tenant within the Building or Complex to space which is comparable in size,
utility and condition to the Premises. If Landlord relocates Tenant, Landlord
shall reimburse Tenant for Tenant's reasonable out-of-pocket expenses for moving
Tenant's furniture, equipment, and supplies from the Premises to the relocation
space and for reprinting Tenant's stationery of the same quality and quantity as
Tenant's stationery supply on hand immediately before Landlord's notice to
Tenant of the exercise of this relocation right. Upon such relocation, the
relocation space shall be deemed to be the Premises and the terms of this Lease
shall remain in full force and shall apply to the relocation space. No amendment
or other instrument shall be necessary to effectuate the relocation contemplated
by this Section; however, if requested by Landlord, Tenant shall execute an
appropriate amendment document within ten business days after Landlord's written
request therefor. If Tenant fails to execute such relocation amendment within
such time period, or if Tenant fails to relocate within the time period stated
in Landlord's relocation notice to Tenant (or, if such relocation space is not
available on the date specified in Landlord's relocation notice, as soon
thereafter as the relocation space becomes available and is tendered to Tenant
in the condition required by this Lease), then, in addition to Landlord's other
remedies set forth in this Lease, at law and/or in equity, Landlord may
terminate this Lease by notifying Tenant in writing thereof at least 60 days
prior to the termination date contained in Landlord's termination notice. Time
is of the essence with respect to Tenant's obligations under this Section.
25. Miscellaneous.
(a) Landlord Transfer. Landlord may transfer any portion of the
Project and any of its rights under this Lease. If Landlord assigns its rights
under this Lease, then Landlord shall thereby be released from any further
obligations hereunder arising after the date of transfer, provided that the
assignee assumes in writing Landlord's obligations hereunder arising from and
after the transfer date.
(b) Landlord's Liability. The liability of Landlord (and its
partners, shareholders or members) to Tenant (or any person or entity claiming
by, through or under Tenant) for any default by Landlord under the terms of this
Lease or any matter relating to or arising out of the occupancy or use of the
Premises and/or other areas of the Building shall be limited to Tenant's actual
direct, but not consequential, damages therefor and shall be recoverable only
from the interest of Landlord in the Building, and Landlord (and its partners,
shareholders or members) shall not be personally liable for any deficiency.
(c) Force Majeure. Other than for Tenant's obligations under this
Lease that can be performed by the payment of money (e.g., payment of Rent and
maintenance of insurance), whenever a period of time is herein prescribed for
action to be taken by either party hereto, such party shall not be liable or
responsible for, and there shall be excluded from the computation of any such
period of time, any delays due to strikes, riots, acts of God, shortages of
labor or materials, war, terrorist acts or activities, governmental laws,
regulations, or restrictions, or any other causes of any kind whatsoever which
are beyond the control of such party.
(d) Brokerage. Neither Landlord nor Tenant has dealt with any
broker or agent in connection with the negotiation or execution of this Lease,
other than ▇▇▇▇▇▇▇▇ ▇▇▇▇ Services, Inc., whose commission shall be paid by the
Landlord pursuant to a separate written agreement. Tenant and Landlord shall
each indemnify the other against all costs, expenses, attorneys' fees, liens and
other liability for commissions or other compensation claimed by any broker or
agent claiming the same by, through, or under the indemnifying party.
(e) Estoppel Certificates. From time to time, Tenant shall furnish
to any party designated by Landlord, within ten days after Landlord has made a
request therefor, a certificate signed by Tenant confirming and containing such
factual certifications and representations as to this Lease as Landlord may
reasonably request. If Tenant does not deliver to Landlord the certificate
signed by Tenant within such required time period, Landlord, Landlord's
Mortgagee and any prospective purchaser or mortgagee, may conclusively presume
and rely upon the following facts: i) this Lease is in full force and effect;
ii) the terms and provisions of this Lease have not been changed except as
otherwise represented by Landlord; iii) not more than one monthly installment of
Basic Rent and other charges have been paid in advance; iv) there are no claims
against Landlord nor any defenses or rights of offset against collection of Rent
or other charges; and v) Landlord is not in default under this Lease. In such
event, Tenant shall be estopped from denying the truth of the presumed facts.
(f) Notices. All notices and other communications given pursuant
to this Lease shall be in writing and shall be vi) mailed by first class, United
States Mail, postage prepaid, certified, with return receipt requested, and
addressed to the parties hereto at the address specified in the Basic Lease
Information, vii) hand delivered to the intended addressee, viii) sent by a
nationally recognized overnight courier service, or ix) sent by facsimile
transmission during normal business hours followed by a confirmatory letter sent
in another manner permitted hereunder. All notices shall be effective upon
delivery to the address of the addressee (even if such addressee refuses
delivery thereof). The parties hereto may change their addresses by giving
notice thereof to the other in conformity with this provision.
(g) Separability. If any clause or provision of this Lease is
illegal, invalid, or unenforceable under present or future laws, then the
remainder of this Lease shall not be affected thereby and in lieu of such clause
or provision, there shall be added as a part of this Lease a clause or provision
as similar in terms to such illegal, invalid, or unenforceable clause or
provision as may be possible and be legal, valid, and enforceable.
(h) Amendments; Binding Effect; No Electronic Records. This Lease
may not be amended except by instrument in writing signed by Landlord and
Tenant. No provision of this Lease shall be deemed to have been waived by
Landlord unless such waiver is in writing signed by Landlord, and no custom or
practice which may evolve between the parties in the administration of the terms
hereof shall waive or diminish the right of Landlord to insist upon the
performance by Tenant in strict accordance with the terms hereof. Landlord and
Tenant hereby agree not to conduct the transactions or communications
contemplated by this Lease by electronic means, except by facsimile transmission
as specifically set forth in Section 25(f); nor shall the use of the phrase "in
writing" or the word "written" be construed to include electronic communications
except by facsimile transmissions as specifically set forth in Section 25(f).
The terms and conditions contained in this Lease shall inure to the benefit of
and be binding upon the parties hereto, and upon their respective successors in
interest and legal representatives, except as otherwise herein expressly
provided. This Lease is for the sole benefit of Landlord and Tenant, and, other
than Landlord's Mortgagee, no third party shall be deemed a third party
beneficiary hereof.
(i) Quiet Enjoyment. Provided Tenant has performed all of its
obligations hereunder, Tenant shall peaceably and quietly hold and enjoy the
Premises for the Term, without hindrance from Landlord or any party claiming by,
through, or under Landlord, but not otherwise, subject to the terms and
conditions of this Lease.
(j) No Offer. The submission of this Lease to Tenant shall not be
construed as an offer, and Tenant shall not have any rights under this Lease
unless Landlord executes a copy of this Lease and delivers it to Tenant.
(k) Entire Agreement. This Lease constitutes the entire agreement
between Landlord and Tenant regarding the subject matter hereof and supersedes
all oral statements and prior writings relating thereto. Except for those set
forth in this Lease, no representations, warranties, or agreements have been
made by Landlord or Tenant to the other with respect to this Lease or the
obligations of Landlord or Tenant in connection therewith. The normal rule of
construction that any ambiguities be resolved against the drafting party shall
not apply to the interpretation of this Lease or any exhibits or amendments
hereto.
(l) Waiver of Jury Trial. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
LANDLORD AND TENANT EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LITIGATION OR
TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE ARISING OUT OF OR WITH
RESPECT TO THIS LEASE OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO.
(m) Governing Law. This Lease shall be governed by and construed
in accordance with the laws of the state in which the Premises are located.
(n) Recording. Tenant shall not record this Lease or any
memorandum of this Lease without the prior written consent of Landlord, which
consent may be withheld or denied in the sole and absolute discretion of
Landlord, and any recordation by Tenant shall be a material breach of this
Lease. Tenant grants to Landlord a power of attorney to execute and record a
release releasing any such recorded instrument of record that was recorded
without the prior written consent of Landlord.
(o) Joint and Several Liability. If Tenant is comprised of more
than one party, each such party shall be jointly and severally liable for
Tenant's obligations under this Lease. All unperformed obligations of Tenant
hereunder not fully performed at the end of the Term shall survive the end of
the Term, including payment obligations with respect to Rent and all obligations
concerning the condition and repair of the Premises.
(p) Landlord's Fees. Whenever Tenant requests Landlord to take any
action not required of it hereunder or give any consent required or permitted
under this Lease, Tenant will reimburse Landlord for Landlord's reasonable,
out-of-pocket costs payable to third parties and incurred by Landlord in
reviewing the proposed action or consent, including reasonable attorneys',
engineers' or architects' fees, within 30 days after Landlord's delivery to
Tenant of a statement of such costs. Tenant will be obligated to make such
reimbursement without regard to whether Landlord consents to any such proposed
action.
(q) Telecommunications. Tenant and its telecommunications
companies, including local exchange telecommunications companies and alternative
access vendor services companies, shall have no right of access to and within
the Building, for the installation and operation of telecommunications systems,
including voice, video, data, Internet, and any other services provided over
wire, fiber optic, microwave, wireless, and any other transmission systems
("Telecommunications Services"), for part or all of Tenant's telecommunications
within the Building and from the Building to any other location without
Landlord's prior written consent. All providers of Telecommunications Services
shall be required to comply with the rules and regulations of the Building,
applicable Laws and Landlord's policies and practices for the Building. Tenant
acknowledges that Landlord shall not be required to provide or arrange for any
Telecommunications Services and that Landlord shall have no liability to any
Tenant Party in connection with the installation, operation or maintenance of
Telecommunications Services or any equipment or facilities relating thereto.
Tenant, at its cost and for its own account, shall be solely responsible for
obtaining all Telecommunications Services.
(r) Confidentiality. Tenant acknowledges that the terms and
conditions of this Lease are to remain confidential for Landlord's benefit, and
may not be disclosed by Tenant to anyone, by any manner or means, directly or
indirectly, without Landlord's prior written consent; however, Tenant may
disclose the terms and conditions of this Lease if required by Law or court
order, and to its attorneys, accountants, employees and existing or prospective
financial partners provided same are advised by Tenant of the confidential
nature of such terms and conditions and agree to maintain the confidentiality
thereof (in each case, prior to disclosure). Tenant shall be liable for any
disclosures made in violation of this Section by Tenant or by any entity or
individual to whom the terms of and conditions of this Lease were disclosed or
made available by Tenant. The consent by Landlord to any disclosures shall not
be deemed to be a waiver on the part of Landlord of any prohibition against any
future disclosure.
(s) Authority. Tenant (if a corporation, partnership or other
business entity) hereby represents and warrants to Landlord that Tenant is a
duly formed and existing entity qualified to do business in the state in which
the Premises are located, that Tenant has full right and authority to execute
and deliver this Lease, and that each person signing on behalf of Tenant is
authorized to do so, and that Tenant's organizational identification number
assigned by the Arkansas Secretary of State is _________________. Landlord
hereby represents and warrants to Tenant that Landlord is a duly formed and
existing entity qualified to do business in the state in which the Premises are
located, that Landlord has full right and authority to execute and deliver this
Lease, and that each person signing on behalf of Landlord is authorized to do
so.
(t) Hazardous Materials. The term "Hazardous Materials" means any
substance, material, or waste which is now or hereafter classified or considered
to be hazardous, toxic, or dangerous under any Law relating to pollution or the
protection or regulation of human health, natural resources or the environment,
or poses or threatens to pose a hazard to the health or safety of persons on the
Premises or in the Project. Tenant shall not use, generate, store, or dispose
of, or permit the use, generation, storage or disposal of Hazardous Materials on
or about the Premises or the Project except in a manner and quantity necessary
for the ordinary performance of Tenant's business, and then in compliance with
all Laws. If Tenant breaches its obligations under this Section 25(t), Landlord
may immediately take any and all action reasonably appropriate to remedy the
same, including taking all appropriate action to clean up or remediate any
contamination resulting from Tenant's use, generation, storage or disposal of
Hazardous Materials. Tenant shall defend, indemnify, and hold harmless Landlord
and its representatives and agents from and against any and all claims, demands,
liabilities, causes of action, suits, judgments, damages and expenses (including
reasonable attorneys' fees and cost of clean up and remediation) arising from
Tenant's failure to comply with the provisions of this Section 25(t). This
indemnity provision shall survive termination or expiration of this Lease.
(u) List of Exhibits. All exhibits and attachments attached hereto
are incorporated herein by this reference.
Exhibit A - Outline of Premises
Exhibit B - Building Rules and Regulations
Exhibit C - Tenant Finish Work
(v) Prohibited Persons and Transactions. Tenant represents and
warrants that neither Tenant nor any of its affiliates, nor any of their
respective partners, members, shareholders or other equity owners, and none of
their respective employees, officers, directors, representatives or agents is,
nor will they become, a person or entity with whom U.S. persons or entities are
restricted from doing business under regulations of the Office of Foreign Asset
Control ("OFAC") of the Department of the Treasury (including those named on
OFAC's Specially Designated and Blocked Persons List) or under any statute,
executive order (including the September 24, 2001, Executive Order Blocking
Property and Prohibiting Transactions with Persons Who Commit, Threaten to
Commit, or Support Terrorism), or other governmental action and is not and will
not Transfer this Lease to, contract with or otherwise engage in any dealings or
transactions or be otherwise associated with such persons or entities.
26. Right of First Refusal. Tenant shall have the Right of First Refusal
for any available contiguous lease space throughout the term of this lease based
on availability and the rights of any existing occupants.
TENANT'S OBLIGATION TO PAY RENT HEREUNDER IS NOT DEPENDENT UPON THE CONDITION OF
THE PREMISES OR THE PERFORMANCE BY LANDLORD OF ITS OBLIGATIONS HEREUNDER, AND,
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, TENANT SHALL CONTINUE TO PAY THE
RENT, WITHOUT ABATEMENT, DEMAND, SETOFF OR DEDUCTION, NOTWITHSTANDING ANY BREACH
BY LANDLORD OF ITS DUTIES OR OBLIGATIONS HEREUNDER, WHETHER EXPRESS OR IMPLIED.
This Lease is executed on the respective dates set forth below, but for
reference purposes, this Lease shall be dated as of the date first above
written. If the execution date is left blank, this Lease shall be deemed
executed as of the date first written above.
LANDLORD: Behringer Harvard TIC Management Services
LP, a Texas limited partnership, on behalf
of the tenant in common owners of the Beau
Terre Office Park, by ▇▇▇▇▇▇▇▇ ▇▇▇▇
Services, Inc., as agent for the owners.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
Execution Date: 11-15-06
TENANT: Diverse Media Group Corp, a Utah Corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
Execution Date: 11-13-06
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Exhibit A
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OUTLINE OF PREMISES
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[GRAPHICAL IMAGE OF SUITE E/507]
Exhibit B
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Rules and Regulations
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The following rules and regulations shall apply to the Premises, the
Building, the parking garage associated therewith, and the appurtenances
thereto:
1. Sidewalks, doorways, vestibules, halls, stairways, and other similar
areas shall not be obstructed by tenants or used by any tenant for purposes
other than ingress and egress to and from their respective leased premises and
for going from one to another part of the Building.
2. Plumbing, fixtures and appliances shall be used only for the
purposes for which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or deposited therein. Damage resulting to any such
fixtures or appliances from misuse by a tenant or its agents, employees or
invitees, shall be paid by such tenant.
3. No signs, advertisements or notices (other than those that are not
visible outside the Premises) shall be painted or affixed on or to any windows
or doors or other part of the Building without the prior written consent of
Landlord. No nails, hooks or screws (other than those which are necessary to
hang paintings, prints, pictures, or other similar items on the Premises'
interior walls) shall be driven or inserted in any part of the Building except
by Building maintenance personnel. No curtains or other window treatments shall
be placed between the glass and the Building standard window treatments.
4. Landlord shall provide all door locks in each tenant's leased
premises, at the cost of such tenant, and no tenant shall place any additional
door locks in its leased premises without Landlord's prior written consent.
Landlord shall furnish to each tenant a reasonable number of keys to such
tenant's leased premises, at such tenant's cost, and no tenant shall make a
duplicate thereof.
5. Movement in or out of the Building of furniture or office equipment,
or dispatch or receipt by tenants of any bulky material, merchandise or
materials which require use of elevators or stairways, or movement through the
Building entrances or lobby shall be conducted under Landlord's supervision at
such times and in such a manner as Landlord may reasonably require. Each tenant
assumes all risks of and shall be liable for all damage to articles moved and
injury to persons or public engaged or not engaged in such movement, including
equipment, property and personnel of Landlord if damaged or injured as a result
of acts in connection with carrying out this service for such tenant.
6. Landlord may prescribe weight limitations and determine the
locations for safes and other heavy equipment or items, which shall in all cases
be placed in the Building so as to distribute weight in a manner acceptable to
Landlord which may include the use of such supporting devices as Landlord may
require. All damages to the Building caused by the installation or removal of
any property of a tenant, or done by a tenant's property while in the Building,
shall be repaired at the expense of such tenant.
7. Corridor doors, when not in use, shall be kept closed. Nothing shall
be swept or thrown into the corridors or halls. No birds or animals (other than
seeing-eye dogs) shall be brought into or kept in, on or about any tenant's
leased premises. No portion of any tenant's leased premises shall at any time be
used or occupied as sleeping or lodging quarters.
8. Tenant shall cooperate with Landlord's employees in keeping its
leased premises neat and clean.
9. Tenant shall not make or permit any vibration or improper,
objectionable or unpleasant noises or odors in the Building or otherwise
interfere in any way with other tenants or persons having business with them.
10. No machinery of any kind (other than normal office equipment) shall
be operated by any tenant on its leased area without Landlord's prior written
consent, nor shall any tenant use or keep in the Building any flammable or
explosive fluid or substance (other than typical office supplies [e.g.,
photocopier toner] used in compliance with all Laws).
11. Landlord will not be responsible for lost or stolen personal
property, money or jewelry from tenant's leased premises or public or common
areas regardless of whether such loss occurs when the area is locked against
entry or not.
12. Tenant shall not conduct any activity on or about the Premises or
Building which will draw pickets, demonstrators, or the like.
13. All vehicles are to be currently licensed, in good operating
condition, parked for business purposes having to do with Tenant's business
operated in the Premises, parked within designated parking spaces, one vehicle
to each space. No vehicle shall be parked as a "billboard" vehicle in the
parking lot. Any vehicle parked improperly may be towed away. Tenant, Tenant's
agents, employees, vendors and customers who do not operate or park their
vehicles as required shall subject the vehicle to being towed at the expense of
the owner or driver. Tenant shall indemnify, hold and save harmless Landlord of
any liability arising from the towing or booting of any vehicles belonging to a
Tenant Party.
14. No tenant may enter into phone rooms, electrical rooms, mechanical
rooms, or other service areas of the Building unless accompanied by Landlord or
the Building manager.
15. Tenant will not permit any Tenant Party to bring onto the Project
any handgun, firearm or other weapons of any kind, illegal drugs or, unless
expressly permitted by Landlord in writing, alcoholic beverages.
16. Tenant shall not permit its employees, invitees or guests to smoke
in the Premises or the lobbies, passages, corridors, elevators, vending rooms,
rest rooms, stairways or any other area shared in common with other tenants in
the Building, or permit its employees, invitees, or guests to loiter at the
Building entrances for the purposes of smoking.
Exhibit C
---------
TENANT FINISH-WORK: WORK OF LIMITED SCOPE (NO PLANS)
----------------------------------------------------
(Landlord Performs the Work)
1. Acceptance of Premises. Except as set forth in this Exhibit, Tenant
accepts the Premises in their "AS-IS" condition on the date that this Lease is
entered into.
2. Scope of Work. Landlord at its expense shall perform the following
work in the Premises (the "Work"):
A. Repaint the existing painted walls and door frames
in the Premises with Building-standard paint in
Building-standard quantities.
B. Professionally clean the existing carpet in the
Premises.
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