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EXHIBIT 10.1
MASSMUTUAL
OFFICE LEASE
by and between
MassMutual and
Source Services Corporation
For: Suites 150 and 300 containing approximately
18,129 rentable square feet located at
5580 LBJ Freeway
A "MassMutual" Property
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MassMutual
Equity File
No.___________
OFFICE LEASE
THIS LEASE, made as of this 23rd day of January, 1995 by and between
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, a Massachusetts corporation having
its principal office at 1295 State Street, Springfield, Massachusetts 01111
("Landlord") and SOURCE SERVICES CORPORATION, a Delaware corporation having its
principal office at 5580 LBJ Freeway, Suite 300, Dallas, Texas 75240
("Tenant").
INDEX
Article Title
1. Basic Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2. Premises, Term and Commencment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3. Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. Operating Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5. Landlord's Work, Tenant's Work, Alterations and Additions . . . . . . . . . . . . . . . . . . . . . 6
6. Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7. Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
9. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
10. Casualty Damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
11. Condemnation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
12. Repair and Maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
13. Inspection of Premises and Repairs by Landlord . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
14. Surrender of Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
15. Holding Over . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
16. Subletting and Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
17. Subordination, Attornment and Mortgagee Protection . . . . . . . . . . . . . . . . . . . . . . . . . 15
18. Estoppel Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
19. Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
20. Remedies of Landlord . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
21. Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
22. Accord and Satisfaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
23. Security Deposit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
24. Brokerage Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
25. Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
26. Parking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
27. Hazardous Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
28. Additional Rights Reserved by Landlord . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
29. Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
30. Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
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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
Exhibit E Commencement Date Confirmation
Exhibit F Option to Extend
Exhibit G Right of First Offer and Refusal
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ARTICLE 1.
BASIC PROVISIONS
A. Tenant's Tradename: SOURCE SERVICES CORPORATION
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B. Tenant's Address: 5580 LBJ Freeway
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Suite 300
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Dallas, Texas 75240
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C. Office Building Name: 5580 LBJ Building
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Address: 5580 LBJ Freeway
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Dallas, Texas 75240
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D. Premises: Suite/Unit No. Suites 150 and 300
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Square feet (Gross/Net): 18,129 rentable square feet
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E. Landlord: Massachusetts Mutual Life Insurance Company
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F. Landlord's Address: c/o Cornerstone Real Estate Advisers, Inc.
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1901 Avenue of the Stars
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Suite 555
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Los Angeles, California 90067,
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ATTN: Managing Director
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G. Building Manager/Address: Fuller-Macfarlan Real Estate Services, Ltd.
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3838 Oak Lawn Avenue, Suite 400
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Dallas, Texas 75219
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H. Commencement Date: March 10, 1995
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I. Expiration Date: May 9, 2000
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J. Options to Extend: One (1) five (5) year option per Exhibit "F"
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K. Security Deposit: $19,095.88. In addition to the Security Deposit
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stated in Section K. above, Tenant agrees to pay a $10.00 deposit per parking
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card. If for any reason a parking card is lost or damaged, Tenant will forfeit
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its deposit and be required to pay an additional $25.00 per replacement card.
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Upon Lease expiration or termination, if Tenant is not in default of its Lease,
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the aforementioned deposit will be refunded.
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L. Monthly Rent: $ Refer to page 2A
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M. Operating Expenses Base: $ 1995 Base Year
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N. Tenant's Pro Rata Share: 20%. Tenant's Pro Rata Share shall be
determined by and adjusted by Landlord from time to time (but shall not be
readjusted sooner than the commencement of the second Lease year), by dividing
the Tenant's Gross Square Feet of the Premises (as identified in Article ID.)
by the rentable area of the Building and multiplying the resulting quotient, to
the second decimal place, by one hundred.
O. Normal Business Hours of Building:
Monday through Friday: 7:00 a.m. to 6:00 p.m.
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Saturday: 8:00 a.m. to 1:00 p.m.
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Sunday: None a.m. to None p.m.
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P. Prepaid Rent: $18,129.00
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MONTHLY RENT SCHEDULE
Months Base Monthly Rental
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1-2 Base Rent Waived
3-12 $18,129.00
13-24 $18,884.38
25-36 $19,639.75
37-48 $20,395.13
49-62 $21,150.50
Page 2A
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Q. Parking Spaces: Thirty-five (35) parking spaces in the garage will be
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provided to the Tenant and the balance shall be surface parking.
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Fee 9parking spaces x rate/per month):no charge so long as the Tenant
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is not in default of this Lease.
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R. Brokers:
Fuller-Macfarlan Real Estate Services, Ltd. and
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Jackson & Cooksey
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The foregoing provisions shall he interpreted and applied in accordance with
the other provisions of this Lease set forth below. The capitalized terms, and
the terms defined in Article 29, shall have the meanings set forth herein or
therein (unless otherwise modified in the Lease) when used as capitalized terms
in other provisions of the Lease.
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 1 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. If 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
full 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 Operating Expenses, shall be deemed
Additional Rent.
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C. RENT. Monthly Rent, Additional Rent 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 thereto. 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. Rent and other charges required to be
paid under this Lease, no matter how described, shall be paid by Tenant to
Landlord at the Building Manager's address listed in Article I, or to such
other person and/or address as Landlord may designate in writing, 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.
ARTICLE 4.
OPERATING EXPENSES
A. PAYMENT OF 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 Operating Expenses for the particular Lease Year
in excess of the Operating Expenses Base (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 Rata Share
of 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 Operating Expenses were based for said year,
such Additional Rent payments, attributable to Estimated Escalation Increase,
to be paid by Tenant for the new Lease Year shall be decreased accordingly;
provided, however, in no event will the Rent paid by Tenant hereunder ever be
less than the Monthly Rent, its Pro Rata Share of the Operating Expenses Base,
plus all other amounts of Additional Rent.
As soon as practicable following the end of each Lease Year during the initial
Lease Term, or any extension thereof, including the first Lease Year, Landlord
shall submit to Tenant a statement prepared by Landlord, in the first year
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
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on 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 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, Tenant's Pro Rata Share of the Operating Expenses Base,
plus all other amounts of Additional Rent), as well as a payment by Tenant or
credit to the Tenant as appropriate based upon the amount theretofore paid by
Tenant during such particular Lease Year pursuant to the prior estimate.
Landlord's and Tenant's responsibilities with respect to the Operating Expense
adjustment 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 shall adjust those Operating Expenses which are affected by Building
occupancy for 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 OPERATING EXPENSES. If Tenant disputes the amount of an
adjustment or the proposed estimated increase or decrease in 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
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amount of 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 he
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. LANDLORD'S WORK. Landlord shall construct the Premises in accordance
with 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 number of days 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 ninety (90) 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
under 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 provided
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.
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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 nonresponsibility. Tenant will
not cause or permit any mechanic's, materialman's or similar liens or
encumbrances to be filed or exist 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 costs incurred by Landlord shall be deemed Additional
Rent under this Lease and payable in full upon demand.
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 entitled to use the same and subject to such rules and regulations as
Landlord in its discretion may impose from time to time to use the Common
Areas.
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 provide climate control 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 climate control 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 conditions of occupancy and connected electrical
load established by Landlord. Use of the Premises or any part thereof in a
manner exceeding the heating, ventilating or air-conditioning ("HVAC") design
conditions (including occupancy and connected electrical load), including
rearrangement of partitioning which interferes with normal operation of the
HVAC in the Premises, or the use of computer or data processing machines or
other machines or equipment, may require changes in the HVAC or plumbing
systems or controls servicing the Premises or portions thereof, in order to
provide comfortable occupancy. Any such required change shall be made by
Landlord at Tenant's expense as alterations in accordance with the provisions
of Article 5, but only to the extent permitted and upon the conditions set
forth in that Article.
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 make janitorial and cleaning
services available to the Premises. Tenant shall pay to Landlord on demand the
costs incurred by Landlord for (i) extra cleaning in the Premises 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 portion 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 (and to the Premises if so
designated in Exhibit B) and cause electric service equivalent to the watt load
to be supplied 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 watts of electric current. Landlord shall have the exclusive right to make
any replacement of
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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 by 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 he determined by an independent electrical engineer, to be selected by
Landlord and paid equally by both parties.
E. SEPARATE METERS. Landlord may install separate meters for the
Premises to register the usage of all or any one of the utilities and in such
event Tenant shall pay for the cost of electricity usage as metered which is in
excess of the watt load (as established by the Landlord), or in the case of
other utilities, the metered usage in excess of that usage reasonably
anticipated by Landlord. Tenant shall reimburse Landlord for the cost of
installation of meters if such usage exceeds the watt load (or such anticipated
usage, as the case may be) by more than 10 percent. In any event, Landlord may
require Tenant to reduce its consumption to the watt load or such anticipated
usage.
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 he 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.
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
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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, and keep 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 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 or agent, Tenant and any Mortgagee of Landlord, as their respective
interests may appear, at its own cost and expense including (i) "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) income
loss coverage, (iii) comprehensive general liability insurance on an occurrence
basis with limits of liability in an amount not less than $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 and Landlord's
Building Manager or agent as additional insureds. Renewal certificates shall
be furnished at least thirty (30) days prior to the expiration date of such
insurance policies showing the above coverage to be in full force and effect.
All such insurance shall provide that it cannot be canceled except upon thirty
(30) days prior written notice to Landlord or designated property manager or
agent. Tenant shall comply with all rules and directives of any insurance
board, company or agency 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 increase in such rates.
B. SUBROGATION. The parties mutually waive all rights and claims against
each other for all losses covered by their respective insurance' policies, and
waive all rights of subrogation of their respective insurers.
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C. WAIVER OF CLAIMS. Except for claims arising from Landlord's
intentional or grossly negligent acts that are not covered by Tenant's
insurance 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, out of repair, or failing, 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 from the
criminal activities 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
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any substantial part of the Building is wholly or partially damaged or
destroyed by fire or other casualty, 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 twenty (120) days, in which event Landlord
may, at Landlord's option and by written notice given to Tenant within thirty
(30) days of such damage or destruction, declare this Lease terminated as of
the happening of such damage or destruction. 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 fixed rental
hereunder as the amount of damaged or useless space in the Premises bears to
the gross square footage of the Premises. Landlord, in its sole discretion,
shall reasonably determine the amount of damaged or useless space and the gross
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, Tenant shall be entitled to a separate claim
available to Tenant for loss of leasehold improvements (including fixtures paid
for by Tenant), the taking of Tenant's personal property and for costs of
moving. Notwithstanding the foregoing 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. TENANTS OBLIGATIONS. Tenant shall keep the Premises in good working
order, repair (which repair shall include necessary replacements and capital
expenditures and in compliance with all Laws now or hereafter adopted) and
condition (which condition shall be clean, sanitary,
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sightly and free of pest and rodents). Tenant's obligations hereunder shall
include but not be limited to Tenant's trade fixtures and equipment and
interior decorations.
B. 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 written 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, 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.
C. OUTSIDE SERVICES. Tenant shall not permit, except by a person or
company reasonably satisfactory to and approved by Landlord: (i) 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) the window cleaning, janitorial
services or similar work in the Premises.
ARTICLE 13.
INSPECTION OF PREMISES AND REPAIRS BY LANDLORD
Landlord shall not be required to make any repairs or improvements to the
Building's Common Areas or the Premises except to keep the roof above,
foundation, exterior walls, other than common utility lines to the point of
connection for Tenant, and structural portions of the Premises in good working
order and repair (the cost of which shall be included in Operating Expenses
under Article 4); provided, however, that any damage to such areas shall not
have been caused by any act or omission of, or violation of this Lease by
Tenant or any of Tenant's agents, contractors, employees, invitees or
customers, in which event Landlord may perform or require the Tenant to perform
such repairs as provided above (without limiting Landlord's other remedies
herein).
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 or additions in the Premises or
in the Building of which they are a part as may be necessary or appropriate.
Landlord shall make every effort to perform all such repairs, improvements and
additions in such
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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.
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 fire 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 bill 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.
ARTICLE 15.
HOLDING OVER
Tenant shall pay Landlord 150% of the amount 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 endorsed
thereon, 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 part thereof, or permit the use of Premises by any party other than Tenant.
In the event that during
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the term of this Lease, Tenant desires to sublease and introduces Landlord to a
proposed replacement tenant for Tenant, which replacement tenant 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 Premises 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 due to insufficient
or unsatisfactory documentation furnished to Landlord to establish
Tenant's financial strength and proposed use of and operations upon
Premises.
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
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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
under 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 provided to Tenant
shall have an additional period of thirty (30) days in which to cure (or such
additional time as may be required due to causes beyond such Lender'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, 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 1 of this
Lease. Notwithstanding the presumptions of this Article, Tenant shall not be
relieved of its obligation to deliver said statement.
ARTICLE 19.
DEFAULTS
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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, files 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 filed against Tenant pursuant to
the Bankruptcy Code and said petition is not dismissed within thirty (30) days
after such filing, or if a receiver shall be appointed for its business or its
assets and 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.
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 as provided in paragraph (a)
above:
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(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, free rent, leasing commissions, legal
fees and alteration and remodeling costs;
(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, 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 lease or tenancy by a
Tenant.
ARTICLE 21.
QUIET ENJOYMENT
Landlord covenants that subject to the conditions and limitations set forth in
this Lease, Tenant, upon paying the Rent and performing all of its other
obligations under this Lease, shall peacefully and quietly have, hold and enjoy
the Premises throughout the Term or until this Lease is otherwise terminated as
herein provided.
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
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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:
(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.
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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
1. Tenant represents and warrants to Landlord that (except with respect to the
Broker identified in Article 1 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 fees, 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 1.
ARTICLE 25.
FORCE MAJEURE
Landlord shall be excused for the period of any delay in the performance of any
obligation hereunder when prevented from so doing by a cause or causes beyond
its control, including all labor disputes, civil commotion, war, war-like
operations, invasion, rebellion, hostilities, military or usurped power,
sabotage, governmental regulations or controls, fire 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.
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ARTICLE 26.
PARKING
(a) Landlord hereby grants to Tenant the right to use the Parking
Spaces as identified in Article I and shown on Exhibit A. Landlord, at its
sole election, may designate the types and locations of said Parking Spaces and
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
a Parking Fee, if any, as Additional Rent, payable monthly in advance with the
Monthly Rent. 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 by the
Environmental Protection Agency under 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 plate number, year, make and model of the automobiles entitled to use
the Parking Spaces 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 Spaces. 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 Spaces and additional parking spaces 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 streets,
sidewalks, driveways, property and passageways, or the use thereof by Tenant or
tenant's employees, customers, agents, contractors or invitees.
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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 and licensed disposal
company at a lawful disposal site (subject to scheduling and approval by
Landlord), and (d) any remaining such Hazardous Materials shall he completely,
properly and lawfully removed from the Building upon expiration or earlier
termination of this Lease.
C. NOTICES TO LANDLORD. Tenant shall promptly notify Landlord of: (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 from or to other
property, (ii) any demands or claims made or threatened by any party relating
to any loss or injury resulting from any Hazardous Materials on the Premises,
(iii) any release, discharge or nonroutine, 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 to any governmental 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 such
materials, a copy of any MSDS
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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 this 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:
(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 and
lettering:
(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 reoccupancy, 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;
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(f) On reasonable prior notice to Tenant, to exhibit the Premises
to any prospective purchaser, lender, mortgagee, or assignee
of any mortgage on the Building 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 Landlord shall use its best efforts
(except in an emergency) to minimize interference with
Tenant's business in the Premises;
(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 all kinds in the Premises and
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 1 of which the
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
areas leased to other Tenants) made available and designated by Landlord for
the common and joint use and benefit of Landlord, Tenant and 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
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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.
D. "Hazardous Materials" shall have the meaning set forth in Article 27.
E. "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, and any initial or final partial calendar years shall be "Partial
Lease Years". Notwithstanding the foregoing, at Landlord's option by notice to
Tenant, the term "Lease Year' shall mean each twelve (12) month period
commencing on the Commencement Date as adjusted pursuant to Article 2 (or at
Landlord's option), the first day of the first full calendar month following
the Commencement Date.
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, deeds 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:
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1.1 all real property taxes and assessments levied against the
Building by any governmental or quasigovernmental authority. The foregoing
shall include all federal,7 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,
appurtenances, furniture and other personal property 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 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 assessment," 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. All of the preceding
clause K (1.1) is collectively referred to as the "Tax" or "Taxes".
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.
1.3 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;
1.4 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;
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1.5 costs of water and sanitary and storm drainage services;
1.6 costs of janitorial and security services;
1.7 costs 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;
1.8 costs of maintenance and replacement of landscaping;
1.9 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);
1.10 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;
1.11 professional building management fees required for management
of the Building;
1.12 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;
1.13 the costs of capital improvements or structural repairs or
replacements made in or to the Building in order to conform to changes,
subsequent to 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
Improvements") 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 improvements.
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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 have the meaning set forth in Article
29(K)(l.l).
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 rules and
regulations is attached hereto as Exhibit D.
B. EXECUTION OF LEASE.
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 I.
with copy to:
with an additional copy to: Building Manager at address shown in
Article 1.
Tenant: at address shown in Article 1.
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with copy to:
----------------------------------------------------------
------------------------------------------------------
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 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 not
limited to, lost profits or interruption of business as a result of any alleged
default by Landlord hereunder.
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
and 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. SHORING.
If any excavation or construction is made adjacent to, upon or within the
Building, or any part thereof, Tenant shall afford to any and all persons
causing or authorized to cause such excavation or construction license to enter
upon the Premises for the purpose of doing such work as such persons shall deem
necessary to preserve the Building or any portion thereof from injury or damage
and to support the same by proper foundations, braces and supports, without any
claim for damages or indemnity or abatement of the Rent, or of a constructive
or actual eviction of Tenant.
F. 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.
G. 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
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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.
H. 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.
I. 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.
J. MEMORANDUM OF LEASE.
At the request of either party, the other will execute a memorandum of lease in
recordable form setting forth such provisions of this Lease as Landlord deems
desirable and as may be required by law in order to permit the recording of the
form in the appropriate public office. The party recording the memorandum of
lease shall pay for the cost of recordation.
K. 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. Similarly, this Lease cannot be amended except by a
writing signed by Landlord and Tenant.
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L. 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.
M. GOVERNING LAW.
This Lease shall be governed by the law of the State where the Building is
located.
N. 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.
O. 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.
P. 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.
Q. EXTERIOR SIGNAGE.
Notwithstanding anything in this Lease to the contrary, Tenant shall have the
right to place a Tenant identification sign above the sixth (6th) floor of the
Building on the following terms and conditions:
(i) any and all signs shall require the prior written approval of
Landlord, which shall include, without limitation, the location of the signs,
the size of the signs, the design of the signs and the illumination of the
signs;
(ii) Tenant shall be responsible for obtaining any and all required
license and permits for the signs and shall not be permitted to install any
sign unless and until such approvals are obtained. The cost of obtaining and
maintaining such licenses and permits shall be borne entirely by Tenant. Prior
to commencing the installation of the signs, Tenant shall provide copies of all
licenses and permits to Landlord;
(iii) Tenant shall be responsible for the cost of installation,
maintenance and removal of signs. Prior to the expiration of the Term, Tenant
shall remove the signs and shall repair any and all damage to the Building as a
result thereof. In addition, Tenant shall repair any and all
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damage to the Building arising from the installation and/or maintenance of the
signs. Without limiting any indemnity in this Lease, Tenant hereby agrees to
indemnify and hold Landlord and its agents harmless of and from any and all
loss, cost, expenses, damage and/or liability arising from the installation,
maintenance and/or removal of the signs. This indemnity shall survive the
termination of the Lease.
(iv) Tenant's right to place a sign pursuant to these conditions
shall survive for one (1) year next following the Rental Commencement Date. If
the Tenant fails to do so within the one (1) year period, then the Tenant's
rights to install signage shall be terminated.
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties have duly executed this Lease with the Exhibits attached hereto, this
___ day of ______________, 199____.
Attest or Witness: Landlord:
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
BY: Cornerstone Real Estate Advisers,
Inc., Its Authorized Agent
BY:
- ------------------------------ ---------------------------------------
Name Typed: Jill M. Rossi
Title: Vice President
Date:
TENANT:
Attest or Witness:
SOURCE SERVICES CORPORATION, a Delaware
Corporation
BY:
- ------------------------------ ---------------------------------------
Name Typed: D.L. Ward
Title: President
Date:
Certificate of Tenant
(If A Corporation or Partnership)
I,_________________ Secretary or General Partner of_______________________
____________________________________, Tenant, hereby certify that the officers
executing the foregoing lease on behalf of Tenant is/are duly authorized to act
on behalf of and bind the Tenant.
(Corporate Seal)
------------------------------
Secretary or General Partner
Date:
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EXHIBIT B
LANDLORD'S WORK
It is agreed that Landlord will complete construction of the Premises leased by
Landlord to Tenant in that lease agreement of even date herewith in accordance
with the following:
1. Tenant shall cause to be prepared final working drawings and
specifications of material relating to all improvements that Tenant desires to
be installed in the Premises. Tenant agrees to submit the aforesaid drawings
and specifications to Landlord on or before January 30, 1995. All drawings and
specifications are subject to Landlord's approval, which Landlord will not
unreasonably withhold or delay. Thereafter, Landlord will do the work and
installation contemplated by the final plans, all with reasonable diligence and
in a good and workmanlike manner.
2. Landlord shall obtain "not to exceed" bids on the cost of
providing and installing the improvements contemplated in the final plans as
outlined in Article 1. Said estimates shall be submitted to Tenant for
approval which Tenant agrees it will not unreasonably withhold or delay.
Landlord agrees to pay construction costs up to, but not to exceed $181,290.00
or $10.00 per rentable square foot. It is hereby agreed that if construction
costs, materials and labor, exclusive of architectural fees and construction
management fees, exceed $181,290.00, Tenant shall be responsible for the
overage. However, in the event Landlord receives a "not to exceed" estimate
for an amount greater than $181,290.00, Tenant shall have the right, at its own
cost and expense to revise its final drawings and specifications of materials
relating to the improvements in order to reduce the cost. It is also agreed
that if construction costs are less than $181,290.00, Landlord shall not be
required to pay to Tenant the difference between actual construction costs and
$181,290.00.
3. Any excess of Tenant's costs as outlined in Article 2 hereof
shall be paid by Tenant to Landlord upon demand and shall be subject to a 10%
service charge if not paid within thirty (30) days after demand. The amounts
payable hereunder shall constitute rental due pursuant to the lease at the
times specified herein and failure to make any such payment shall constitute a
default entitling Landlord to all of its remedies hereunder, as well as all
remedies otherwise available to Landlord.
4. All change orders to the contract are to be in writing and
must be approved by both Landlord and Tenant. If Tenant requests any changes
in the approved drawings and specifications for the improvements, Tenant shall
present Landlord with revised drawings and specifications. If Landlord
approves such changes, Landlord shall incorporate such changes in the
improvements; Landlord, however, may require prior to proceeding with any
changes cash advances against the excess in the event Landlord determines that
Tenant's proposed changes will increase the amount of the excess.
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5. Landlord shall at any time retain absolute control over the
exterior appearance of the building and the exterior appearance of the premises
as viewed from public halls and passageways, and Tenant shall not, without
Landlord's prior written consent, install any lighting, decoration, paintings,
drapes, window coverings, blinds, shades, signs, lettering, placards,
decorations or advertising media of any type which can be viewed from the
exterior of the building or from public halls and passageways, nor any sun
reflective or lighting blocking film or coatings to any window surface.
6. If Tenant does not object in writing to any of the work
performed by Landlord hereunder within ten (10) days after taking of possession
of the premises by Tenant, Tenant shall be deemed conclusively to have accepted
the same and it shall be conclusively established that the premises are in the
condition required hereunder, and Tenant agrees upon request of Landlord to
execute letters acknowledging such acceptance.
7. The leased premises shall not be deemed substantially complete
nor shall rent begin to accrue under said lease until:
(i) all ceilings and lighting are in and operative;
(ii) all walls and partitions have been erected, with doors and
hardware installed, and have received final painting or wall
covering;
(iii) all flooring has been installed, cleaned, and buffed;
(iv) air conditioning, plumbing and electrical systems have been
installed and are in good working condition;
(v) debris caused by Landlord's trades has been removed, the
demised leased premises have been cleaned and are in
unblemished condition.
8. The Landlord acknowledges its responsibility for compliance
with the Americans with Disabilities Act (ADA) with respect to the third floor
common area bathrooms
9. Landlord hereby agrees to refinish the walls in the common
area bathrooms located on the third floor at Landlord's sole cost using
Building standard material and labor, prior to the Tenant's Rental Commencement
Date. Landlord shall select the type and color of finishes.
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EXHIBIT C
Tenant's Work
None.
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EXHIBIT D
Building's Rules and Regulations
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 on any window sills.
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 kept, 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 mark, 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 tenant 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.
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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, of any safes, freight,
furniture or bulky matter of any description must take place at such time and
in such manner as 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 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.
14. 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.
15. Landlord reserves the right to exclude from the Building, between the
hours of 6:00 P.M. and 8:00 AM. 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
for whom it requests such passes and shall be liable to Landlord for all acts
of such persons.
16. Each tenant, before closing 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.
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17. 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.
18. No premises shall be used, or permitted to be used for lodging or
sleeping, or for any immoral or illegal purposes.
19. The requirements of tenants 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.
20. Canvassing, soliciting and peddling in the Building are prohibited and
each tenant and occupant shall cooperate in seeking their prevention.
21. 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.
22. 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.
23. 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.
24. No tenant shall clean any window in the Building from the outside.
25. 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.
26. 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
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Landlord. Each tenant shall be allowed one line on such board unless otherwise
agreed to in writing.
27. 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, ceilings, equipment and any other physical portion of the
Building.
28. Landlord shall not be responsible for lost or stolen personal
property, equipment, money, or jewelry from the premises of tenants or public
rooms whether or not such loss occurs when the Building or the premises are
locked against entry.
29. 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
Postal Service.
30. 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.
31. 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.
32. 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 and 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.
33. 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
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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.
34. Landlord reserves the right to rescind any of these rules and make
such other future rules and regulations as in the judgment of Landlord shall
from time to time be needed for the safety, protection, care, and cleanliness
of the Building, the operation thereof, the preservation of good order therein,
and the protection and comfort of its tenants, their agents, employees, and
invitees, which rules when made and notice thereof given to a tenant, shall be
binding upon him in like manner as if originally herein prescribed.
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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 MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY as Landlord, and Source Services Corporation as TENANT.
LANDLORD AND TENANT do hereby declare that possession of the Premises was
accepted by TENANT on the _____ day of _______________, 1995. 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 ______________, 1995. The
Term of this Lease shall terminate on 2000.
Landlord:
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
BY: Cornerstone Real Estate Advisers, Inc.,
Its Authorized Agent
By:
-----------------------------------------
Name Typed: Jill M. Rossi
Title: Vice President
Date:
TENANT:
SOURCE SERVICES CORPORATION
By:
-----------------------------------------------
Name Typed:
Title:
Date:
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EXHIBIT F
To Lease
By and Between
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, as Landlord
and
SOURCE SERVICES CORPORATION, as Tenant
Option to Extend
Tenant at its option may extend the Lease for an additional five (5)
years commencing May 1, 2000, by serving written notice thereof upon Landlord
at least three hundred sixty-five (365) days before the expiration of the term
hereof, provided that at the time of such notice and at the commencement of
such additional extension, there shall exist no event of default as defined in
this Lease. Upon receipt of said notice, this Lease shall be extended without
the necessity of the execution of any further instrument or document. Such
extended term shall commence on May 1, 2000 and expire on April 30, 2005, and
be upon the same terms, covenants and conditions as provided in the Lease,
except that (a) the Monthly Rent payable during the extended term shall be at
ninety percent (90%) of the Prevailing Market Rate as determined by Landlord
for comparable space in the LBJ Corridor market area, at the commencement of
such extended term.
At Landlords option, Tenant shall, within (30) days of expiration of
the term, execute an amendment to the Lease setting forth the rent for the
extended term. Otherwise, this Lease shall terminate on April 30, 2000.
Payment of excess Operating Costs and other charges required to be
made by Tenant as provided in this Lease for the extended term shall continue
to be made during the extended term. The terms of this option are personal to
the Tenant and will not inure to the benefit of any assignee or subtenant of
Tenant.
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EXHIBIT G
RIGHT OF FIRST OFFER AND REFUSAL
Landlord hereby grants to Tenant the right of first refusal on the terms and
conditions contained in this paragraph to lease the space (the "Refusal Space")
outlined in red on Exhibit "G" to this Lease consisting of approximately 2,466
square feet of rentable area on the first (1st) floor of the Building. In the
event Landlord shall receive a bona fide offer from a third party who desires
to lease the Refusal Space, Landlord shall give notice thereof to Tenant which
notice shall contain the terms under which Landlord is willing to lease the
Refusal Space to Tenant. Alternatively, if Landlord wishes to market the
Refusal Space, Landlord may (but shall not be obligated to) give Tenant a
notice setting forth the terms under which Landlord is willing to lease the
Refusal Space. In the case of either such notice and within seven (7) days of
such notice, time being of the essence, Tenant shall give Landlord a notice
that it either does or does not wish to enter into negotiations with Landlord
to lease the Refusal Space on the terms and conditions contained in Landlord's
notice. In the event that Tenant's notice provides that it does not wish to
enter into negotiations to lease the Refusal Space or if Tenant fails to give
Landlord the notice of its desires respecting the Refusal Space within the
foregoing required seven (7) day period, then Landlord shall be entitled to
proceed to market and/or lease the Refusal Space to a third party free and
clear of Tenant's right of first offer and refusal and such right shall be
deemed terminated in all respects.
In the event that Tenant gives Landlord a notice as required in the preceding
paragraph that it wishes to enter into negotiations with Landlord regarding the
leasing of the Refusal Space on the terms and conditions contained in
Landlord's notice to it, then Landlord and Tenant shall have twenty (20) days
from the date of the notice within which to sign a new lease covering the
Refusal Space on the terms and conditions contained in Landlord's notice or to
amend this Lease by adding the Refusal Space on the terms and conditions
contained in Landlord notice. In the event Landlord and Tenant fail to sign
such a lease or amendment to this Lease within said twenty (20) day period,
time being of the essence, then Landlord shall be entitled to proceed to market
and/or lease the Refusal Space to a third party free and clear of such right
and such right shall be deemed terminated in all respects.
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