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EXHIBIT 10.15
OFFICE SPACE LEASE
This lease, made and entered into as of this 6th day of May, 1998, by and
between Raytheon Engineers & Constructors, Inc. ("Landlord"), and Nichols TXEN
Corporation ("Tenant").
Witnesseth:
For and in consideration of the mutual promises and covenants hereinafter set
forth, Landlord and Tenant hereby agree as follows:
ARTICLE I --DEFINITIONS
In addition to other definitions set forth herein, the following terms shall
have the following meanings as used throughout this lease:
1.01 ADDITIONAL RENT. The amounts specified in Sections 3.02 (increases in
base rent) and 3.03 (the monthly estimate and annual payment) payable
by Tenant to Landlord.
1.02 ADJUSTMENT DATE. Intentionally omitted.
1.03 AGENT. Daniel Realty Services, L.L.C. and its successors and assigns.
1.04 AGENT'S MAILING ADDRESS. P.O. Box 385001, Birmingham, AL 35238-5001.
1.05 APPLICABLE RATE. The per annum rate of interest equal to the lesser of
(i) five percent (5%) above the prime or "base" rate of interest
announced or published from time to time by Citibank of New York or
(ii) the maximum interest rate permitted to be charged by law.
1.06 BASE RENT. $343,245.40 per year, being at the rate of $16.30 per
Rentable Square Foot of space in the Premises.
1.07 BASE YEAR. The calendar year 1998.
1.08 BUILDING. Meadow Brook 300 Landlord reserves the right to change the
name of the Building from time to time.
1.09 CASUALTY. Any damage or destruction to the Building or the Premises or
any part thereof (other than to Tenant's Personal Property) caused by
or resulting from any fire, windstorm, tornado, earthquake, or other
casualty.
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1.10 COMMENCEMENT DATE. Subject to the provisions of Section 2.02 hereof,
the first to occur of the following: (a) July 1, 1998, or (b) the date
on which the Tenant occupies the Premises to conduct normal business
operations.
1.11 COMMON AREAS. All areas, improvements, equipment and amenities which,
from time to time may be designated by Landlord for use, in common, by
all tenants of the Building, including, without limitation, all
Building entrances and exits, lobbies, hallways, corridors, elevators,
stairs, restrooms, janitor's closets, parking areas, garage access
roads, driveways, walkways, retaining walls, courtyards, landscaped
areas, loading docks and facilities, service drives, tunnels, ramps,
atriums, signs and trash receptacles.
1.12 EXPIRATION DATE. Nine (9) months following the Commencement Date,
unless otherwise sooner terminated in accordance with the provisions of
this Lease.
1.13 INDEX. Intentionally left blank
1.14 LANDLORD. Raytheon Engineers & Constructors, Inc.
1.15 LANDLORD'S MAILING ADDRESS. 1200 Corporate Drive, Hoover, AL 35242.
1.16 LEASE YEAR. The period of time from January 1 through December 31 of
each calendar year during the Term hereof.
1.17 PREMISES. That portion of the Building containing, for the purposes of
this Lease, 21,058 Rentable Square Feet. The Premises is shown as
outlined on the floor plan attached hereto as Exhibit A and is located
on the third floor of the Building.
1.18 REAL PROPERTY. That certain real property situated at 300 Corporate
Parkway, Hoover, Alabama 35242.
1.19 RENT. Base Rent, Additional Rent and all other sums, charges, and
expenses payable hereunder by Tenant.
1.20 RENTABLE SQUARE FEET (OR FOOT). The area of the Premises or the
Building, as the case may be measured by the national standard adopted
by the Building Owners and Managers Association International for
rentable area.
1.21 RULES AND REGULATIONS. The Rules and Regulations attached hereto as
Exhibit C and all modifications and amendments made from time to time
thereto by Landlord.
1.22 SECURITY DEPOSIT. Intentionally omitted.
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1.23 TAKING. A taking of all or any portion of the Building or the Premises
as a result of, in lieu of or in anticipation of the exercise of the
right of eminent domain, condemnation, nationalization, seizure,
confiscation, or requisition pursuant to any law, general or special,
or by reason of the requisition of the Building, the Premises or any
portion thereof by any governmental authority, civil, military or other
person legally possessing the power of eminent domain or by private
purchase in lieu thereof.
1.24 TENANT. Nichols TXEN Corporation.
1.25 TENANT IMPROVEMENT ALLOWANCE. Intentionally omitted.
1.26 TENANT IMPROVEMENTS. Those leasehold improvements to be made to the
Premises pursuant to Section 4.03.
1.27 TENANT'S MAILING ADDRESS. Nichols TXEN Corporation, 10 Inverness Center
Parkway, Suite 500, Birmingham, AL 35242. On and after the Commencement
Date, Tenant's Mailing Address shall be the address of the Premises.
1.28 TENANT'S PERSONAL PROPERTY. All furniture, furnishings, fixtures,
equipment, machinery and other personal property (other than the Tenant
Improvements) owned or used by Tenant in or about the Premises.
1.29 TENANT'S SHARE. The percentage obtained by dividing the Rentable Square
Feet of space in the Premises by the total Rentable Square Feet of
space in the Building.
1.30 TERM. Nine (9) months, commencing on the Commencement Date and expiring
on the Expiration Date.
1.31 WORK LETTER. Intentionally Omitted.
ARTICLE II -- LEASE AND USE OF PREMISES
2.01 LEASE OF PREMISES. Landlord does hereby lease to Tenant and Tenant does
hereby hire and accept from Landlord the Premises for and during the
Term, subject to the terms and conditions set forth in this Lease.
Subject to the terms and conditions set forth in this Lease, Tenant is
hereby granted the nonexclusive right to use during the Term, in common
with Landlord, other tenants of the Building and their respective
employees, agents, independent contractors, licensees and invitees, all
of the Common Areas. Notwithstanding anything provided in this Lease to
the contrary, no easement for light, air or view is granted to
Tenant hereunder.
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2.02 DELIVERY OF POSSESSION. In the event Landlord is unable for any reason
to deliver possession of the Premises to Tenant on or prior to the
Commencement Date, then:
A. This Lease shall not be voidable or void and Landlord shall
have no liability hereunder for any loss or damages (including
loss of profits) suffered, paid, or incurred by Tenant as a
result thereof.
B. The Commencement Date shall be postponed until such time as
Landlord can deliver to Tenant possession of the Premises and
the Expiration Date shall be extended for an equal period.
Landlord and Tenant agree to execute an amendment to this
Lease on or before the Commencement Date setting forth, if
applicable:
(i) The Commencement Date and Expiration Date.
(ii) The total Rentable Square Feet in the Premises,
including floor plans of the location of the same.
(iii) The actual amount of Base Rent.
(iv) The actual amount of the Tenant Improvement
Allowance.
(v) Such other matters as may be mutually agreed upon.
2.03 USE OF THE PREMISES.
A. Tenant shall use the Premises solely for general office
purposes and for no other purpose. Tenant shall not use or
occupy or permit anything to be done in the Premises in
violation of the Rules and Regulation or any law, covenant,
condition or restriction affecting the Building or the Real
Property or which will invalidate or increase the cost of any
fire, extended coverage or other insurance policy covering the
Building or personal property of Landlord located therein.
Tenant shall, on demand, reimburse Landlord for any penalties,
costs or expenses, including any additional premium charged
under any insurance policy, by reason of Tenant's failure to
comply with the provisions of this Section 2.03. Tenant shall
not do or permit anything to be done in or about the Premises,
the Common Areas or the Building which will in any way injure,
annoy, obstruct or interfere with the rights of other tenants
or occupants of the Building. Tenant shall not commit or
suffer to be committed any waste in or upon the Premises or
the Common Areas.
B. Tenant shall, at Tenant's sole expense, promptly abide by and
comply with the Rules and Regulations (and all amendments
thereto) and all present and future laws, ordinances,
regulations and rules of any local, county, state, federal and
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other governmental authority and any agency, bureau or
department thereof, and of any board of fire underwriters or
any other body exercising similar functions which may be
applicable to the Premises.
2.04 QUIET ENJOYMENT. Subject to the terms of this Lease, Tenant shall have
the peaceable and quiet enjoyment and possession of the Premises
without any manner of hindrance or interference by Landlord.
2.05 ENTRY. Landlord or Agent may enter the Premises at reasonable hours to
show the Premises to lenders, prospective purchasers or tenants, to
inspect the Premises or to make repairs required to be made by the
Landlord under the terms hereof or repairs to adjoining space within
the Building. Such entry by Landlord or Agent shall not entitle Tenant
to any abatement of Rent.
2.06 PARKING. Tenant is granted the nonexclusive right, in common with
Landlord, other tenants of the Building and their respective employees,
agents, independent contractors, licensees and invitees, to use the
parking facilities situated on the Real Property; provided, however,
that, (i) Tenant, its agents, employees, independent contractors,
invitees and licensees shall not utilize more than four (4) parking
spaces per 1,000 Rentable Square Feet of space within the Premises,
(ii) Tenant shall cause its agents, employees, independent contractors,
invitees and licensees to park only in those areas designated from time
to time by Landlord and (iii) Tenant, its agents, employees,
contractors, invitees and licensees shall abide by all parking rules
and regulations adopted from time to time by Landlord.
ARTICLE III -- RENT
3.01 BASE RENT. Tenant shall pay the Base Rent in twelve (12) equal monthly
installments in advance on the first day of each month throughout the
Term hereof. Base Rent shall be increased on each Adjustment Date as
provided in Section 3.02 below.
3.02 INCREASES IN BASE RENT. On each Adjustment Date throughout the Term,
Base Rent shall be adjusted based on increases in the Index by
multiplying the Base Rent paid by Tenant immediately prior to such
Adjustment Date by a fraction, the numerator of which shall be the
Index for the month and year of the then applicable Adjustment Date and
the denominator of which shall be the Index for the month and year in
which the Commencement Date occurs. Notwithstanding anything provided
herein to the contrary, in no event shall the Base Rent payable by
Tenant as a result of such adjustment be less than the Base Rent paid
by Tenant immediately prior to the then applicable Adjustment Date.
3.03 INCREASES IN OPERATING EXPENSES.
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A. As used in this Section 3.03, the following terms shall have
the following meanings:
(i) ANNUAL PAYMENT. Tenant's Share of the difference
between the Operating Expenses paid or incurred
during the immediately preceding Lease Year and the
Operating Expenses paid or incurred during the Base
Year, reduced by the amount, if any, paid by Tenant
as the Monthly Estimate during the immediately
preceding Lease Year.
(ii) MONTHLY ESTIMATE. Tenant's Share of the amount
determined by Landlord and payable by Tenant as the
estimated increase in Operating Expenses for the
ensuing Lease Year over the Operating Expenses for
the Base Year which amount is payable in advance in
twelve (12) monthly installments as provided in
Sections 3.03 B (i) and (ii) below.
(iii) OPERATING EXPENSES. All costs and expenses paid or
incurred by Landlord or Agent each Lease Year in the
management, operation, repair and maintenance of the
Premises, the Building and the Real Property
(hereinafter collectively referred to as the
"Project"), including, without limitation:
(1) All wages, salaries and compensation
(including fringe benefits) paid or incurred
for employees of Landlord or Agent
performing any services in connection with
the Project;
(2) The costs of all materials, supplies,
equipment and tools (whether purchased or
leased) utilized with respect to the
Project;
(3) The costs of all services rendered by third
parties with respect to the Project,
including all costs paid or incurred by
Landlord in providing any of the services to
be provided by Landlord pursuant to the
terms of the Lease;
(4) Utility costs and services paid or incurred
with respect to the Project, including,
without limitation, costs for electricity,
gas, telephone, sewage, refuse or garbage
collection and fire protection for the
Project;
(5) All insurance premiums and policy
deductibles paid with respect to the
Project, including, without limitation, fire
and extended coverage insurance, rent loss
and public liability insurance coverage;
(6) Management fees and expenses for the
Project;
(7) Taxes, hereinafter defined;
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(8) Accounting, legal and advertising costs
relating to the Project;
(9) Common area maintenance charges and ground
rents, if any, levied or assessed against or
payable with respect to the Project; and
(10) Costs of all capital improvements to the
Project which are either required under any
governmental law or regulation or which
reduce Operating Expenses; provided,
however, that the costs of any such capital
improvements shall be amortized over the
useful life of such improvements, as
determined by Landlord, with interest
thereon at the Applicable Rate in effect at
the time such capital improvements were
made.
(11) ALL COSTS, CHARGES, AND EXPENSES INCURRED BY
LANDLORD IN CONNECTION WITH ANY CHANGE OF
ANY COMPANY PROVIDING ELECTRICITY SERVICE,
INCLUDING, WITHOUT LIMITATION, MAINTENANCE,
REPAIR, INSTALLATION, AND SERVICE COSTS
ASSOCIATED THEREWITH.
Operating Expenses shall not include depreciation or
amortization (except as otherwise provided above),
debt service or interest paid or accrued or leasing
commissions or brokerage fees. Operating Expenses for
the first and last Lease Year of the Term shall be
prorated by Landlord to reflect what the Operating
Expenses would have been had the Commencement Date
been January 1 and the Expiration Date December 31.
If, in determining the Operating Expenses in the Base
Year or any subsequent Lease Year thereafter, less
than ninety-five percent (95%) of the Building is
fully occupied during such year, then Landlord shall
adjust the Operating Expenses for such Lease Year to
reflect what the Operating Expenses would have been
had the Building been ninety-five percent (95%)
occupied at all times during such Lease Year.
(iv) TAXES. All real estate taxes, drainage assessments
(whether for drainage, sewage or public
improvements), taxes on rent or the occupancy or use
of the Project and similar governmental impositions,
whether general or special, levied, assessed, charged
or imposed by federal, state, county or local
governmental authorities against the Project or any
part thereof or the rents therefrom (excluding,
however, any income, franchise or similar tax imposed
directly on Landlord or the income derived by
Landlord from the Project unless the same are levied
or assessed in lieu of any of the foregoing),
including all increases in such taxes whether
resulting by special levy, annexation or otherwise,
together with all costs incurred by Landlord in
contesting the same. If, in determining the Taxes in
the Base Year or any subsequent Lease Year, the
Building and Real Property are not fully assessed
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as a completed and fully occupied structure, then
Landlord shall adjust the Taxes for such Lease Year
to reflect what the Taxes would have been for such
calendar year and had the Building and Real Property
been fully assessed as a completed, fully occupied
structure.
B. In addition to the payment of Base Rent, Tenant shall also pay
throughout the Term the Monthly Estimate and the Annual
Payment, which amounts shall be payable as follows:
(i) During December of each Lease Year, including the
Base Year, or as soon as possible thereafter,
Landlord shall provide Tenant with written notice of
Landlord's estimate of Operating Expenses for the
ensuing Lease Year and the amount to be paid by
Tenant as the Monthly Estimate. In the event such
estimate indicates that Operating Expenses for the
ensuing Lease Year shall exceed the Operating
Expenses for the Base Year, then Tenant shall pay to
Landlord the Monthly Estimate in advance on the first
day of each month during the ensuing Lease Year;
provided, however, that if such estimate is not given
on or prior to January I of the ensuing Lease Year,
then (1) Tenant shall continue paying the Monthly
Estimate paid during the prior Lease Year until such
time as Landlord provides Tenant with such notice for
the ten current Lease Year and (2) at such time as
Tenant is given notice of the Monthly Estimate for
the then current Lease Year, Tenant shall pay any
amounts then owing as provided in such notice. If at
any time during a Lease Year, Landlord determines
that the Monthly Estimate then being paid by Tenant
will not be sufficient to pay the Annual Payment due
from Tenant for such Lease Year, then Landlord shall
have the right to increase the amount of the Monthly
Estimate payable by Tenant and Tenant agrees to pay
the increased amount of the Monthly Estimate;
(ii) Within ninety (90) days after the end of each Lease
Year or as soon as possible thereafter, Landlord
shall deliver to Tenant a statement setting forth (1)
the amount of Operating Expenses paid or incurred in
the immediately preceding Lease Year in excess of the
Operating Expenses for the Base Year, (2) the amount
paid by Tenant as the Monthly Estimate during the
immediately preceding Lease Year and (3) the amount,
if any, owing by Tenant as the Annual Payment. If the
statement indicates that an Annual Payment is due
from Tenant, then Tenant shall pay such amount in
full within thirty (30) days after such statement is
given to Tenant. If the statement indicates that the
amount paid by Tenant during the preceding Lease Year
as the Monthly Estimate is in excess of Tenant's
Share of increases in Operating Expenses for the then
applicable Lease Year, then the excess shall be
applied as a credit to the Monthly Estimate due from
Tenant for the then current Lease Year and/or the
Annual Payment due from Tenant in any future Lease
Year.
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Notwithstanding anything provided herein to the
contrary, in no event shall the amount of Rent
payable by Tenant in any Lease Year be less than the
Base Rent.
C. Tenant may review Landlord's books pertaining to the
determination of the Monthly Estimate and the Annual Payment
during regular business hours in Landlord's or Agent's office
on or before 90 days after Landlord delivers its statement of
amounts due from Tenant; provided, however, that all
reasonable expenses incurred by Landlord or Agent in
connection with such review shall be paid by Tenant and such
review by Tenant shall not postpone or alter the liability and
obligation of Tenant to pay the Monthly Estimate or Annual
Payment.
D. If, for any reason, the Expiration Date of this Lease shall be
on a day other than December 31, then the Monthly Estimate
shall continue to be paid by Tenant through the Expiration
Date, and upon determination of the actual Operating Expenses
for the Lease Year in which the Expiration Date occurs, as
provided in Section 3.03 B (ii) above, Tenant shall pay to
Landlord the Annual Payment or Landlord shall refund to Tenant
any excess amounts paid by Tenant as the Monthly Estimate, as
the case may be.
3.04 PERSONAL PROPERTY, RENTAL AND OTHER TAXES. Tenant shall be solely
responsible for the payment of all taxes, income, ad valorem or
otherwise, levied upon, measured by or reasonably attributable to
Tenant's business, all Rent payable hereunder or the cost or value of
Tenant's Personal Property in the Premises. In the event Landlord is
assessed or charged with any such tax which is attributable to
Tenant's business, the Rent payable hereunder or Tenant's Personal
Property, then Tenant shall reimburse Landlord upon demand for any and
all such taxes by Landlord. The provisions of this Section 3.04 shall
specifically include the obligation of Tenant to pay to Landlord (or to
whomsoever Landlord directs that payment should be made) all rent or
sales taxes assessed upon any Rent paid hereunder at such times
required by the governmental authority levying the same.
3.05 PAYMENT OF RENT, LATE FEES AND LANDLORD CURE RIGHTS.
A. All Rent shall be due and payable by Tenant in all events and
Tenant agrees to pay said Rent without notice, demand, offset
or deduction to Agent at Agent's Mailing Address or at such
other address or to such other person as Landlord may from
time to time provide in writing to Tenant. All unpaid Rent
shall bear interest at the Applicable Rate from and after the
tenth day that said Rent was payable until the same has been
paid in full.
B. In addition to interest at the Applicable Rate, Tenant shall
pay to Landlord a late charge of five percent (5%) of the
amount of any Rent not paid within ten (10) days of its due
date. Landlord and Tenant agree that such charge is a
reasonable
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estimate of the administrative costs and expenses to be
incurred by Landlord in the event any Rent is not paid within
ten (10) days of its due date.
C. If Tenant fails or refuses to perform any of its obligations
under this Lease, then Landlord shall have the right, but not
the obligation, to perform such obligations of Tenant without
waiving or releasing any other rights or remedies of Landlord
provided herein or otherwise affecting Tenant's obligations
hereunder. Any amounts paid or incurred by Landlord in
performing any of the obligations of Tenant shall constitute
Rent and shall be due and payable by Tenant on demand with
interest thereon at the Applicable Rate from the date Landlord
incurred such costs or expenses.
D. If the Term of this Lease commences on a date other than the
first day of a month or terminates on a date other than the
last day of a month, then in either event, Rent for such month
shall be prorated on the basis of a thirty (30) day calendar
month.
ARTICLE IV -- SERVICES, REPAIRS, ALTERATIONS, TENANT'S PERSONAL PROPERTY AND
UTILITIES
4.01 SERVICES.
A. Landlord shall furnish electric current to the Premises for
lighting and for small business machinery only,(e.g.,
typewriters, word processing equipment, small personal
computers and other small office equipment) during the days
and hours specified in Section 4.01 B below. Tenant shall not,
without Landlord's prior written consent, (i) use any
equipment or machinery in the Premises which, in Landlord's
opinion, will over load the wiring installations or the
electrical distribution system for the Premises or the
Building or interfere with the reasonable use thereof by other
tenants of the Building or (ii) connect any additional items
to the electrical distribution system for the Premises or the
Building or make any alteration or addition to such system.
Any such consent granted by Landlord may be conditioned upon
(1) Landlord's approval of all plans and specifications for
such use and Landlord's determination that such proposed use
will not materially or adversely affect the operation or use
of the Building, (2) separate meters being installed at
Tenant's expense (or Tenant paying the excess costs for such
electrical usage as may be established by an engineer hired by
Landlord at Tenant's expense), and (3) Tenant reimbursing
Landlord for all costs incurred by Landlord in connection
therewith.
B. Landlord shall also furnish heating, ventilation and air
conditioning ("HVAC") service to the Premises during the hours
from 8:00 a.m. until 6:00 p.m. (except for
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recognized holidays Monday through Friday and from 8:00 a.m.
until 12:00 p.m. on Saturdays, as required in Landlord's
judgment for the comfortable used and occupancy of the
Premises. If Tenant desires HVAC or electrical service at any
other time, Landlord shall use reasonable efforts to provide
such services provided that Tenant shall pay all costs
incurred by Landlord as a result thereof.
C. If, in the opinion of Landlord's electrical engineer or
consultant, Tenant's use of business machines in or on the
Premises (including, without limitation, the use of computers,
including main-frame or personal computers, copy machines and
word processing equipment) results in the consumption of more
electric current than is usually furnished or supplied
(without additional charge) to other tenants in the Building
or affects the temperature in the Premises otherwise
maintained by the HVAC system for the Building, then Landlord
shall have the right, at its option, to install (i) separate
electric meters in the Premises to measure the excessive
electric current usage by Tenant and/or (ii) supplemental air
conditioning systems in the Premises. In the event separate
metering and/or supplemental air conditioning systems are
installed by Landlord, then all costs incurred by Landlord in
installing, servicing, operating, maintaining and repairing
the same, including utility usage fees and charges and the
fees and expenses of Landlord's electrical engineer or
consultant, shall be payable by Tenant to Landlord on demand.
If separate metering or the installation of supplemental air
conditioning is not undertaken, then the costs of excessive
electric current usage, as determined by Landlord's electrical
engineer or consultant, shall be payable by Tenant to Landlord
on demand. Landlord shall have no liability for and Tenant
hereby releases Landlord from any liability of any nature
arising from Landlord's election not to install supplemental
air conditioning in the Premises and Tenants excessive use of
electric current in the Premises.
D. Landlord shall also furnish elevator service, restroom
supplies water for toilet, lavatory facilities and public
drinking fountains and janitorial services with such companies
and in such manner as are customarily furnished in comparable
office buildings in the area as Landlord shall, in its
discretion, determine; provided, however, that (i) Landlord
shall not have and Tenant hereby releases Landlord from any
liability for damage, injury, loss or theft to Tenant,
Tenant's employees or to any of Tenant's Personal Property or
the personal property of any of Tenants employees resulting
from the performance of such services and (ii) such services
shall be limited to the services customarily provided to all
other tenants in the Building. Any additional services
required by Tenant shall be paid solely by Tenant.
E. Landlord shall not be in default hereunder or liable for the
quality, interruption, cessation or any failure to provide any
of the above services nor for any injury or
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damage to person (including death) or property (including loss
of profits) caused by or resulting therefrom.
4.02 REPAIRS.
A. By entry upon the Premises either for commencement of the
construction of the Tenant Improvements (if Tenant is
constructing the same) or on the Commencement Date (if
Landlord is constructing the Tenant Improvements), Tenant
shall be deemed to have accepted the Premises in their then
current condition, "as is". No representations or warranties
concerning the condition of the Premises or the Building or
the title to the same have been made to Tenant by Landlord or
Agent except as specifically set forth in this Lease.
B. Tenant shall, throughout the Term, at Tenant's sole expense,
keep and maintain the Premises and every part thereof and all
of Tenant's Personal Property in good order, condition and
repair. Tenant shall be responsible and pay for all repairs
and alterations in and to the Premises, the Tenant
Improvements, the Common Areas, the Building and the
facilities and systems thereof arising out of (i) the
installation, removal, use or operation or Tenant' s Personal
Property in or upon the Premises or the Building and (ii) any
act, omission, misuse or negligence of Tenant, its agents,
employees, contractors, invitees and licensees.
C. Landlord shall, subject to the provisions of this Section
4.02, maintain all of the Common Areas and the structural
portions of the Premises and the Building. Except as
specifically provided herein, Landlord shall not be
responsible for any maintenance, repairs, services or the
making of any alteration of any kind for or upon the Premises,
the Common Area, the Building or the Real Property. Landlord
shall have no liability to Tenant nor shall Tenant's
obligations under this Lease be reduced or abated in any
manner whatsoever by reason of any inconvenience, annoyance,
interruption or injury to business arising from any repairs or
alterations which Landlord is required or permitted to make
under this Lease, any other tenant lease or as may be required
by applicable law for any portion of the Building or the
Premises. Landlord shall nevertheless use reasonable efforts
to minimize any interference with Tenant's business in the
Premises.
D. Tenant expressly waives the benefits of any statute now or
hereafter in effect which would otherwise afford Tenant the
right to withhold the payment of Rent, make repairs at
Landlord's expense or terminate this Lease as a result of
Landlord's failure to keep the Real Property, the Building or
the Premises in good order, condition and repair.
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4.03 ALTERATIONS AND IMPROVEMENTS. Tenant shall not, without Landlord's
prior written consent, make any alterations, additions or improvements
in or about the Premises. The Tenant Improvements and all alterations,
additions or improvements made or installed by Tenant in or to the
Premises shall, when installed, immediately become the property of
Landlord. Landlord reserves the right to require Tenant to remove any
improvements or additions made to the Premises by Tenant and Tenant
agrees to do so on or prior to the Expiration Date. Tenant shall keep
the Premises and this Lease free from any liens and does hereby
indemnify Landlord against and from any and all claims or liens against
Landlord, the Building, the Real Property and the Premises arising out
of any work performed, materials furnished or obligations incurred by
Tenant.
4.04 TENANT'S PERSONAL PROPERTY. All of Tenant's Personal Property brought
into the Building or Premises shall be at the sole risk of Tenant and
Landlord shall not be liable to Tenant, its employees, agents,
contractors, licensees and invitees for any theft or damage thereto. No
later than the Expiration Date, Tenant shall remove all of Tenant's
Personal Property from the Premises and repair all injury or damage
resulting from such removal and surrender the Premises (together with
all keys to Premises) in as good a condition as they were at the
Commencement Date, reasonable wear and tear excepted. All of Tenants
Personal Property remaining on or in the Premises after the Expiration
Date shall be deemed conclusively abandoned, may be removed by Landlord
and Tenant shall reimburse Landlord for the cost of removing the same.
4.05 UTILITIES. Notwithstanding anything provided in this Lease to the
contrary, Landlord shall have the right, at any time, to require Tenant
to meter all water, gas, electricity and other utilities serving the
Premises in which event:
A. Tenant shall pay all such utility costs directly to the
appropriate utility company providing such services.
B. Tenant shall continue to be obligated to pay the Monthly
Estimate and the Annual Payment without reduction, abatement
or apportionment of the same.
4.06 UTILITY DEREGULATION.
A. LANDLORD HAS ADVISED TENANT THAT PRESENTLY ALABAMA POWER
COMPANY ("ELECTRIC SERVICE PROVIDER") IS THE UTILITY COMPANY
SELECTED BY LANDLORD TO PROVIDE ELECTRICITY SERVICE FOR THE
BUILDING. NOTWITHSTANDING THE FOREGOING, IF PERMITTED BY LAW,
LANDLORD SHALL HAVE THE RIGHT AT ANY TIME AND FROM TIME TO
TIME DURING THE LEASE TERM TO EITHER CONTRACT FOR SERVICE FROM
A DIFFERENT COMPANY OR COMPANIES PROVIDING ELECTRICITY SERVICE
(EACH SUCH COMPANY
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SHALL HEREINAFTER BE REFERRED TO AS AN "ALTERNATE SERVICE
PROVIDER") OR CONTINUE TO CONTRACT FOR SERVICE FROM THE
ELECTRIC SERVICE PROVIDER.
B. TENANT SHALL COOPERATE WITH LANDLORD, THE ELECTRIC SERVICE
PROVIDER, AND ANY ALTERNATE SERVICE PROVIDER AT ALL TIMES AND,
AS REASONABLY NECESSARY, SHALL ALLOW LANDLORD, ELECTRIC
SERVICE PROVIDER, AND ANY ALTERNATE SERVICE PROVIDER
REASONABLE access TO THE BUILDING'S ELECTRIC LINES, FEEDERS,
RISERS, wiring, AND ANY OTHER MACHINERY WITHIN THE PREMISES.
C. LANDLORD SHALL IN NO WAY BE LIABLE OR RESPONSIBLE FOR ANY
LOSS, DAMAGE, OR EXPENSE THAT TENANT MAY SUSTAIN OR INCUR BY
REASON OF ANY CHANGE, FAILURE, INTERFERENCE, DISRUPTION, OR
DEFECT IN THE SUPPLY OR CHARACTER OF THE ELECTRIC ENERGY
FURNISHED TO THE PREMISES, OR IF THE QUANTITY OR CHARACTER OF
THE ELECTRIC ENERGY SUPPLIED BY THE ELECTRIC SERVICE PROVIDER
OR ANY ALTERNATE SERVICE PROVIDER IS NO LONGER AVAILABLE OR
SUITABLE FOR TENANT'S REQUIREMENTS, AND NO SUCH CHANGE,
FAILURE, DEFECT, UNAVAILABILITY, OR UNSUITABILITY SHALL
CONSTITUTE AN ACTUAL OR CONSTRUCTIVE EVICTION, IN WHOLE OR IN
PART, OR ENTITLE TENANT TO ANY ABATEMENT OR DIMINUTION OF
RENT, OR RELIEVE TENANT FROM ANY OF ITS OBLIGATIONS UNDER THE
LEASE.
ARTICLE V -- INDEMNITY AND INSURANCE
5.01 INDEMNITY. Tenant hereby waives and releases any and all claims against
Landlord and Agent for damages to person or property occurring in, on,
about or upon the Premises, the Building or the Real Property. Tenant
does hereby indemnify and hold Landlord and Agent harmless from and
against any and all claims, demands, liabilities, losses, damages,
costs and expenses (including reasonable attorney's fees) of any nature
arising out of or in connection with:
A. Any penalty, damages or charges imposed or levied against
Landlord, Agent, the Premises, the Building or the Real
Property by any governmental authority as a result of Tenant's
failure to comply with all applicable governmental
requirements.
B. Any injury or damage to person or property occurring in, on or
about the Premises, the Building or the Real Property caused
by or resulting from any negligent act or omission or any
willful act or omission of Tenant, its agents, employees,
contractors, licensees and invitees.
Tenant shall, at Tenant's expense, and by counsel satisfactory
to Landlord, defend Landlord in any action or proceeding
arising from any such claim and shall indemnify Landlord
against any and all costs and expenses, including attorneys'
fees, suffered,
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paid or incurred by Landlord in any such action or proceeding. The
provisions of this Section 5.01 shall survive the Expiration Date of
this Lease.
5.02 INSURANCE.
A. Tenant shall, at Tenant's sole expense, obtain and maintain in
full force and effect throughout the Term fire and extended
coverage insurance insuring all of Tenant's Personal Property
and any improvements to the Premises (including the
replacement cost of all Tenant Improvements made to the
Premises in excess of the Tenant Improvement Allowance) in
such amounts determined by Tenant to be necessary. Said
insurance coverage shall also insure against damages
attributable to water damage, utility interruption, vandalism,
theft, and malicious mischief.
B. Tenant shall, at Tenant! s expense, obtain and maintain
throughout the Term, comprehensive public liability and
property damage insurance, providing personal injury and broad
form property damage insurance coverage for not less than $
1,000,000 combined single limit for bodily injury, death and
property damage.
C. All insurance required to be maintained hereunder by Tenant
shall:
(i) Be issued by insurance companies reasonably
acceptable to Landlord.
(ii) Name Landlord and, if required by Landlord,
Landlord's lender, if any, as additional insureds.
(iii) Contain a provision that such insurance coverage will
not be terminated or canceled without ten (10) days
prior written notice to Landlord.
(iv) Provide that no claims affecting Landlord or to which
Landlord is a party may be settled without the prior
written approval of Landlord.
All insurance policies or certificates thereof evidencing the
insurance to be maintained hereunder by Tenant shall be
deposited with Landlord prior to Tenants access to the
Premises. At least fifteen (15) days prior to the expiration
date of any such policies renewal policies or certificates
thereof shall be deposited with Landlord. Tenant shall have
the right to provide the insurance coverage required hereunder
pursuant to blanket policies acceptable to Landlord.
D. Tenant does hereby waive and release Landlord and Agent from
any and all liabilities or responsibilities or for any other
claim by or through Tenant, by way of subrogation or
otherwise, for any loss or damage covered by (or which should
be covered by) the insurance policies required to be
maintained hereunder by Tenant, even if the loss or damage
shall have been caused by the fault or
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negligence of Landlord or Agent. Tenant agrees to obtain from
its respective insurance carriers waiver of subrogation
endorsements to all such policies in form reasonably
acceptable to Landlord.
ARTICLE VI -- CASUALTY AND EMINENT DOMAIN
6.01 DAMAGE OR DESTRUCTION.
A. In the event of any Casualty, Landlord shall, subject to the
provisions of this Section 6.01, promptly repair such damage;
provided, however, that if (i) such Casualty results in all or
substantially all of the Building being destroyed, then this
Lease shall automatically terminate as of the date of such
Casualty or (ii) such Casualty results in damage to the
Building or the Premises which cannot be repaired within one
hundred eighty (180) days from the date of such Casualty,
Landlord shall notify Tenant of the same and Landlord or
Tenant shall have the right, at their option, to terminate
this Lease upon notice to the other given at any time on or
before forty-five (45) days following the date of such
Casualty.
B. In the event the amount of insurance proceeds received by
Landlord from any such Casualty (less the costs of collecting
the same) is insufficient to rebuild or restore the Building
or the Premises to their respective conditions as existed
immediately prior to such Casualty, then Landlord shall have
the option to terminate this Lease upon notice to Tenant given
at any time on or before forty-five (45) days following the
date of such Casualty. Landlord's obligation to restore the
Tenant Improvements shall be limited to the amount of the
Tenant Improvement Allowance. Tenant shall restore, at its
sole cost and expense, all Tenant Improvements to the
Premises, the costs of which exceed the Tenant Improvement
Allowance, and all of Tenant's Personal Property.
C. In the event this Lease is terminated in the manner provided
in this Section 6.01, all Rent shall be apportioned to the
date of such Casualty and Tenant shall have no right or claim
against Landlord or the insurance proceeds received by
Landlord as a result of such Casualty. In the event this Lease
is not terminated and Landlord elects to repair and restore,
then all Rent shall be equitably abated for that portion of
the Premises rendered untenantable by such Casualty until such
time as the Landlord reasonably determines that the Premises
have been restored.
6.02 EMINENT DOMAIN.
A. In the event of a Taking of all or substantially all of the
Premises, the Building or the Real Property, then this Lease
shall terminate on the date that title to the Building or the
Real Property has vested in the condemning or purchasing
party.
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B. In the event of a Taking of only a portion of the Premises,
the Building or the Real Property, then, subject to the
provisions of this Section 6.02, Landlord shall rebuild and
restore the remaining structural portions of the Premises, the
Building and the Real Property as nearly as possible to their
respective conditions as existed immediately prior to such
Taking; provided, however, that (i) Landlords obligation to
restore the Tenant Improvements in the Premises shall be
limited to the amount of the Tenant Improvement Allowance
prorated on the basis that the Rentable Square Feet in the
Premises subject to such Taking bears to the Rentable Square
Feet in the Premises immediately prior to such Taking and (ii)
Tenant shall restore, at its sole cost and expense, all
tenants Improvements made to the Premises, the costs of which
exceed the Tenant Improvement Allowance, and all of Tenant's
Personal Property.
C. In the event the condemnation award received by Landlord from
any such Taking (less expenses incurred in collecting the
same), is insufficient to rebuild or restore the Premises, the
Building or the Real Property to their respective conditions
as existed immediately prior to such Taking, then Landlord
shall have the option to terminate this Lease upon notice to
Tenant given at any time on or before one hundred eighty (180)
days following the date of such Taking.
D. In the event this Lease is terminated in the manner set forth
in this Section 6.02, all Rent shall be apportioned to the
time that title to the Building or the Real Property has
vested in the condemning or purchasing party. In the event
this Lease is not terminated and Landlord elects to repair and
restore, then, to the extent any portion of the Premises is
subject to the Taking, all Rent shall be equitably abated (on
the basis of the Rentable Square Feet in the Premises
remaining after such Taking) as of the date that title to that
portion of the Premises has vested in the condemning authority
or purchasing party.
E. All compensation awarded or paid upon any total or partial
Taking shall belong to and be the property of Landlord. Tenant
shall have no right or claim to any part of any condemnation
award made to or received by Landlord; provided, however, that
Tenant shall have the right, to the extent Landlord's award is
not reduced or prejudiced thereof, to seek and obtain from the
condemning authority such compensation as may be recoverable
by Tenant for the costs of Tenant Improvements made by Tenant
to the Premises in excess of the Tenant Improvement Allowance,
relocation expenses and for the Taking of any Tenant's
Personal Property. In no event shall Tenant have any right to
claim or receive any portion of the condemnation award
attributable to Tenant's leasehold interest in this Lease,
Tenant Improvements to the Premises paid for by Landlord or
the value of the unexpired Term of this Lease.
ARTICLE VII -- DEFAULT AND REMEDIES
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7.01 DEFAULT. The occurrence of any one or more of the following events
shall constitute a default ("Default") by Tenant:
A. If Tenant fails to pay when due Rent or any other charges or
sums required to be paid hereunder by Tenant and such failure
continues for ten (10) days after written notice is given to
Tenant by Landlord;
B. If Tenant fails to promptly and fully perform any other
covenant, condition or agreement contained herein and such
failure to perform continues for thirty (30) days after
written notice is given to Tenant by Landlord;
C. If Tenant vacates or abandons the Premises;
D. If Tenant is adjudicated a bankrupt or files or consents to
the filing of a voluntary or involuntary petition in
bankruptcy or a petition for relief, reorganization or
arrangement in any proceeding under the federal bankruptcy
laws, which petition is not withdrawn or dismissed within
sixty (60) days thereafter; or
E. If Tenant (i) seeks, consents to, or acquiesces in the
appointment of a receiver of all or substantially all of the
Tenant's property or of Tenant's interest in this Lease, (ii)
makes an assignment for the benefit of its creditors, (iii)
fails to lift promptly any execution, garnishment or
attachment which impair its ability to carry on its operations
in the Premises or (iv) is dissolved, ceases the active
conduct of business or makes a bulk sale of all or
substantially all of its assets.
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B. If at any time during the Term, Tenant desires to assign this
Lease or sublet all or any part of the Premises, then Tenant
shall notify Landlord (the "Tenant's Notice") of the terms of
the proposed assignment or subletting, the location of the
space and all other terms of the proposed assignment or
subletting, together with such information concerning the
proposed use and creditworthiness of such proposed assignee or
subtenant as Landlord may request. Landlord shall have the
option, exercisable by notice given to Tenant within thirty
(30) days after receipt of Tenant's Notice, to enter into a
new lease with the proposed assignee or subtenant in
accordance with the terms set forth in Tenant's Notice, in
which event this Lease shall be deemed terminated for the term
and that portion of the Premises subject to such new lease and
all rent and other sums payable pursuant to such new lease
shall belong to Landlord, without further claim or interest
therein by Tenant. If Landlord does not exercise the option
set forth above, then the provisions of
Section 8.01 A above shall then be applicable. If Landlord
consents to such proposed assignment or subletting, then
Tenant shall be entitled to assign this Lease or sublet the
Premises in accordance with the terms set forth in Tenant's
Notice; provided, however, that (i) such assignment or
subletting shall not alter any of the terms and conditions of
this Lease, (ii) Tenant shall remain primarily liable for the
payment and performance of all obligations of Tenant hereunder
and (iii) all sums or other economic consideration of any
nature received by Tenant from such assignment or subletting
which exceed, in the aggregate, the Rent payable by Tenant
hereunder (prorated to reflect only that portion of the
Premises covered by such assignment or subletting), shall be
payable to Landlord as Rent under this Lease.
8.02 SUBSTITUTION OF SPACE. In the event the Premises constitute
less than four thousand (4,000) Rentable Square Feet of floor
space, Landlord reserves the right, at its option, upon thirty
(30) days prior written notice to Tenant, to transfer and
remove Tenant from the Premises to any other available space
of substantially equal size and area in the Building. Landlord
shall bear the expense of said removal as well as the expense
of any renovations or alterations necessary to make the new
space substantially conform in layout and appointment with the
original Premises.
8.03 SUBORDINATION. This Lease is and shall be subject and
subordinate to all ground leases, mortgages and other matters
of title which may now or hereafter affect or encumber the
Building, the Real Property or any portion thereof. Landlord
reserves the right to place additional liens, encumbrances and
mortgages on the Building, the Real Property or any part
thereof which shall in all cases be superior to this Lease and
Tenant's interest herein. The subordination of this Lease as
provided herein shall be self-operative without the necessity
of the execution and delivery of any further instruments on
the part of Tenant to effect such subordination.
Notwithstanding the
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foregoing, Tenant covenants and agrees to execute, without charge or
expense, any and all further instruments or certificates in such form
as Landlord may request from time to time to confirm this
subordination. Tenant's failure to execute and deliver any instruments
or certificates confirming such subordination within ten (10) days
after request therefor by Landlord shall constitute a Default
hereunder.
8.04 ESTOPPEL CERTIFICATES. Tenant agrees to execute and deliver to Landlord
estoppel certificates in such form as Landlord may request certifying,
among other things (i) whether there exist any defaults by Landlord or
Tenant hereunder, (ii) the amount and dates through which all Rent and
other sums due hereunder have been paid (iii) whether this Lease has
been modified or amended, (iv) that no rights of offset or termination
exist unto Tenant hereunder and (v) as to any such other matters as
Landlord (or Landlord's purchasers or lenders) may request. Tenants
failure to execute and deliver any such certificate within ten (10)
days after request therefor by Landlord shall constitute a Default
hereunder. All estoppel certificates shall be in such form and content
as Landlord may require.
ARTICLE IX -- MISCELLANEOUS
9.01 HOLDING OVER. If after the Expiration Date, Tenant remains in
possession of the Premises without Landlord's express written
permission, Tenant shall become a tenant at sufferance subject to and
upon all the provisions of this Lease (except as to Term and Rent), but
the Rent payable by Tenant shall be increased to two hundred percent
(200%) of the Rent payable by Tenant immediately prior to the
Expiration Date.
9.02 ASSIGNMENT BY LANDLORD; SUCCESSORS. The provisions of this Lease shall
bind and inure to the benefit of Landlord and Tenant, and their
respective successors, heirs, legal representatives, and where
permitted, assigns or subtenants. In the event of any sale or transfer
of the Building and Real Property, the Landlord named herein shall be
entirely freed and relieved of all covenants and obligations of
Landlord hereunder accruing after the date of such sale or transfer and
Tenant agrees to look solely to the new owner of the Building and Real
Property for the performance of all covenants and obligations to be
performed by Landlord herein from and after the date of such transfer
or sale. Tenant shall be bound to any succeeding party of Landlord for
the performance of all the terms, covenants and conditions hereof and
shall execute any attornment agreement not in conflict herewith at the
request of any succeeding party of Landlord.
9.03 SECURITY DEPOSIT. Intentionally left blank.
9.04 LIMITATION OF LIABILITY. Notwithstanding anything to the contrary
provided in this Lease or by law, it is specifically agreed and
understood between the parties hereto that there shall be absolutely no
personal liability on the part of the Landlord, Agent
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or any successors in interest or designees thereof, with respect to any
of the terms, covenants and conditions of this Lease and Tenant or any
other party claiming by, through or under the Tenant:
A. Agrees to look solely to the interest of the Landlord in the
Building and Real Property, as its interest may appear, for
the collection of any claim, demand, cost, expense, judgement
or any judicial process requiring the payment of money for any
default or breach by Landlord or Agent of any of their
obligations under this Lease.
B. Waives all rights of recovery for any special, indirect,
incidental, consequential, or punitive damages against (i) the
stockholders, officers, and directors of Landlord and Agent if
Landlord or Agent is a corporation or if a corporation serves
as a general or limited partner of Landlord or Agent and, (ii)
the partners, both general and limited, of Landlord and Agent,
if Landlord or Agent is a general or limited partnership. No
other assets of Landlord or Agent shall be subject to levy,
execution, or other judicial process for the satisfaction of
any claim of Tenant.
9.05 NOTICES. Any notice by either party to the other shall be valid only if
in writing and shall be deemed to have been given only if delivered
personally, sent by registered or certified mail, return receipt
requested, or by guaranteed overnight courier delivery service (e.g.,
Federal Express), postage or delivery charges prepaid, addressed to
Landlord (with a copy to Agent) or Tenant, as the case may be, at the
respective addresses specified in Article I of this Lease or at such
other address as any such party may designate by notice to the other.
Notices shall be deemed to have been given (i) upon personal delivery
of the same or (ii) upon deposit of such notice in the U.S. mail or
with the guaranteed overnight courier delivery service.
9.06 CAPTIONS. Captions and headings in this Lease are included for
convenience of reference only and shall not be taken into consideration
in any construction or interpretation of this Lease or any of its
provisions.
9.07 ENTIRE AGREEMENT AND ENFORCEABILITY. This Lease contains the entire
agreement between Landlord and Tenant and no representations,
inducements, promises or agreements, oral or otherwise, between
Landlord (or Agent) and Tenant not embodied herein shall be of any
force or effect. This Lease may be amended only in a writing duly
executed by both Landlord and Tenant. No oral agreements between
Landlord or Agent and Tenant, whether made prior or subsequent to the
execution of this Lease, shall be binding on any of the parties hereto.
If any term or provision of this Lease or the application thereof to
any person or circumstance shall to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such
term or provision to persons or circumstances other than those as to
which it is held invalid or
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unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and enforceable to the fullest
extent permitted by law.
9.08 GENDER. Words of any neuter gender used in this Lease shall include
both the masculine and feminine gender and words in the singular tense
shall include the plural, and vice versa.
9.09 BROKERS. Landlord and Tenant each warrant and represent to the other
that no broker, finder, real estate agent or other person is entitled
to a commission, fee or other compensation in connection with or as a
result of this Lease or the transactions contemplated hereby or
hereunder except such compensation might be due to Agent, which shall
be the sole obligation of Landlord. Landlord and Tenant each indemnify
and hold the other harmless from any and all claims, loss, costs and
damages (including reasonable attorneys' fees) arising in connection
with any claims against the other for broker fees. In the event Tenant
leases additional space in the Building or exercise any expansion right
granted herein, then Landlord agrees to pay to Agent an amount equal to
four percent (4%) of the gross rents payable during the term of the
lease for such additional space or expansion space, cashed out and
payable upon execution of such lease agreement or at the time notice of
the exercise of such expansion rights is given. In the event this Lease
is renewed or extended, Landlord agrees to pay to Agent an amount equal
to two percent (2%) of the gross rents payable during the extended
term(s), cashed out and payable upon execution of any renewal or
extension agreement. The provisions of this Section 9.09 shall be
binding on any successor in interest to Landlord.
9.10 NO PARTNERSHIP CREATED. The parties hereto have not and do not intend
to create by this Lease a joint venture or partnership relation between
them.
9.11 TIME OF ESSENCE. Time is of the essence in the performance of each and
every covenant and obligation set forth in this Agreement.
9.12 GOVERNING LAW. This Lease and the rights and obligations of Landlord
and Tenant hereunder shall be interpreted, construed and enforced in
accordance with the laws of the State of Alabama.
9.13 EXHIBITS. The following exhibits attached to this Lease are hereby
incorporated herein by reference as if fully set forth herein:
(i) Exhibit A: Floor Plan
(ii) Exhibit B: Rules and Regulations
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9.14 SPECIAL STIPULATIONS.
9.14(A) Landlord agrees to provide the following prior to the Commencement
Date.
(i) Remove the demountable partitions in the Premises as directed
by Tenant.
(ii) Reconfigure the open office partitions in the Premises as
directed by Tenant.
(iii) Landlord agrees to leave substantially all of the existing
furniture (or substantially comparable furniture) in the
Premises.
In Witness Whereof, the parties have executed this Lease as of the day
and year first above written.
LANDLORD: Raytheon Engineers & Constructors, Inc.
/s/
- ----------------------------------
By: /s/
---------------------------
Its: Vice President
--------------------------
TENANT: Nichols TXEN Corporation
/s/
- ----------------------------------
By: /s/
---------------------------
Its: President
--------------------------
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EXHIBIT "A"
[Floor Plan]
25
EXHIBIT B
RULES AND REGULATIONS
1. Tenant shall keep the Premises and all Common Areas utilized by Tenant,
its agents, employees, independent contractors, licensees and invitees,
clean and shall not allow debris from the Premises to collect in any of
the corridors, halls, stairs, ventilators, elevators, lobbies or other
areas of the Building. All trash, refuse and debris shall be placed in
appropriate containers designated for trash collection by Landlord from
time to time. Tenant shall not place in any trash receptacle any
material which cannot be disposed of in the ordinary and customary
manner of trash and garbage disposal. Tenant shall use its best efforts
to require its agents, employees, independent contractors, invitees and
licensees to deposit cigarettes and all tobacco products only in ash
trays within the Building or Premises and to refrain from littering any
portion of the Building or the Real Property with trash or other
debris. Tenant shall comply with and enforce all governmental rules and
regulations concerning smoking policies which affect any portion of the
Premises or the Building.
2. Hallway doors to the Premises opening into Common Areas or public
corridors shall have no signs, door hardware, kickplates or other
fixtures attached thereto unless approved in writing by Landlord and
shall be kept closed at all times except for those limited periods when
actually used for entry to and exit from the Premises. No signs
(including name plates or signage identifying the Tenant as the tenant
of the Premises), banners, flags, placards, pictures, advertisements or
notices shall be installed or displayed upon the interior or exterior
portions of the Building or within those portions of the Premises which
are visible from the exterior of the Building or any of the Common Area
without Landlord's prior written approval. Informational signage
identifying Tenant's office space and lobby area building directories
shall be of a standard and uniform size and of color and style approved
by Landlord.
3. No birds, pets or animals of any kind shall be permitted in the
Premises, the Building or on the Real Property.
4. Toilets, sinks, urinals, or other apparatus in the Building shall not
be used for any purposes other than those for which they were
constructed, and no sweepings, rubbish, rags, or other foreign
substance of any kind shall be deposited therein. Any damage resulting
from misuse of any toilets, sinks, urinals or other apparatus in the
Building shall be repaired and paid for by the tenant whose employees,
subtenants, assignees or any of their servants, employees, agents,
visitors, licensees, or invitees may have caused such damage.
5. Tenant shall furnish Landlord or its agent with keys to all locked
offices, washrooms, and
26
other rooms within the Premises and shall promptly furnish Landlord
with new keys if those locks are supplemented or changed. In the event
Landlord elects to provide a card access entry system for the Building
and Premises, Tenant shall be furnished with the standard allotment of
such access cards and all additional access cards required by Tenant
shall be made available at Tenant's cost. Tenant shall assume full
responsibility for protecting the Premises and the contents thereof
from theft, robbery, pilferage, vandalism, and other loss, except to
the extent caused by the gross negligence or willful and deliberate
acts of Landlord. Tenant shall, upon the termination of the Lease,
return to Landlord all keys (or access cards) to the Premises and the
Building and all offices, washrooms, storage rooms and other locked
areas within the Premises. Tenant shall pay to Landlord the cost of
replacing any lost keys or access cards or of changing the lock or
locks as a result of the loss of such keys or access cards.
6. The parking garage (or parking lots), elevators, lobbies, restrooms,
courts, vestibules, paths, walkways, sidewalks, entrances, stairways,
landings, corridors, and halls of the Premises, the Building and the
Real Property (a) shall not be obstructed or used for any purpose other
than ingress and egress and (b) are not for the use of the general
public. Landlord shall in all cases retain the right to control and
prevent access to the Premises, the Building and the Real Property by
all persons whose presence, in the judgment of Landlord, shall be
prejudicial to the safety, character, reputation and interests of the
Building; provided, however, that nothing herein contained shall be
construed to prevent such access to persons with whom Tenant normally
deals in the conduct of its business within the Premises (such as
clients, customers, office suppliers and equipment vendors, and the
like) unless such persons are engaged in illegal activities. Neither
Tenant nor any employee of Tenant shall go upon the roof of the
Building without the prior written consent of Landlord.
7. Tenant assumes the risk and responsibility of moving its property in
and out of the Building and the Premises. Landlord shall not be
responsible for loss or damage of any nature or from whatever cause to
any of Tenant's Personal Property.
8. Supplies, goods and packages of any kind shall be delivered only
through designated service areas or through the loading dock areas of
the Building. All deliveries (including the moving of Tenant's
Personal Property in and out of the Building and the Premises) shall be
made through freight elevators designated by Landlord and only during
such hours as designated from time to time by Landlord. No deliveries
shall be made through the main lobbies of the Building or which impede
or interfere with the use of the Building by other tenants, the
operation of the Building or which may in any way damage any of the
Common Areas.
9. Landlord may take all reasonable measures it deems necessary for the
safety and security of the Building or Real Property, including,
without limitation, evacuation for cause, suspected cause, or temporary
denial of Building access. There shall be no abatement of
27
Rent and Landlord shall not be responsible for any damages resulting to
Tenant from such action. Landlord reserves the right to exclude or
expel from the Building any person who, in the Landlord's judgment, is
intoxicated, under the influence of alcohol or drugs, commits any act
in violation of these Rules and Regulations or constitutes a security
risk to the Premises, the Building or the Real Property.
10. Except with the prior written approval of Landlord, Tenant's employees
and invitees shall not gather in any of the Common Areas of the
Building or Real Property.
11. No cooking shall be permitted within the Building, except that the
preparation of coffee, tea, hot chocolate, and similar items for Tenant
and its employees and the use of microwave ovens by Tenant or its
employees within the Premises shall be permitted provided that electric
current for such use shall not exceed that amount which can be provided
by a 30 amp circuit. The Premises shall not be used for manufacturing
or for the storage of merchandise except as such storage may be
incidental to the permitted use of the Premises. Tenant shall not
occupy or permit any portion of the Premises to be occupied or used in
violation of any applicable governmental law or the restrictions set
forth in the Lease, for the manufacture, sale, storage or use of
alcohol, narcotics or tobacco or as a medical office, barber or
manicure shop or as an employment bureau without the express written
consent of Landlord. Tenant shall not engage or pay any employees on
the Premises except those actually working for Tenant on the Premises
nor advertise for laborers giving an address at the Premises. The
Premises shall not be used for lodging or sleeping or for any improper,
objectionable, immoral or illegal purposes, as determined in Landlord's
sole discretion.
12. Tenant shall not permit or keep in the Premises any flammable,
combustible, or explosive material, chemical or substance nor shall
Tenant allow any smoke, dust, fumes, odors, gases, vapors or heat to be
emitted from the Premises. Tenant shall not allow or permit any
materials or chemicals to be produced, manufactured, generated,
refined, transported, used, stored or disposed on or from the Premises
which could or would be deemed hazardous or toxic waste or which would
result in the violation of any applicable federal, state or local
environmental or other law, statute, ordinance, rule or regulation,
including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42
U.S.C.ss.ss.6901, et seq), the Hazardous Materials Transportation Act,
as amended (49 U.S.C.ss.ss.1801, et.seq.) and the Resource Conservation
and Recovery Act of 1976, as amended (42 U.S.C.ss.ss.6901, et.seq).
13. No vehicle (including bicycles and motorcycles) belonging to Tenant or
to Tenant's agents, employees, or invitees shall be parked so as to
impede or prevent ready access to any loading dock or any entrance to
or exit from the Building, the Real Property or the parking garage (or
parking lots) for the Building. Except as otherwise specifically
provided in the Lease Agreement, all parking for the Building is
provided on a nonexclusive basis. All vehicles of any nature shall be
parked only in areas within the
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parking garage (or parking lots) designated by Landlord. No vehicles of
any nature shall be parked or left unattended for more than seven (7)
consecutive days, unless in the ordinary course of Tenant's business
and approved in writing by Landlord. The parking of motor homes,
trailers, boats or delivery trucks in the garage (or parking lots) for
the Building is prohibited. No bicycles or motorcycles shall be
permitted inside the Building or the Premises nor shall bicycles or
motorcycles be parked in a manner which would interfere with access to
the Building or obstruct sidewalks or walkways on the Real Property.
14. No vending machine or machines of any kind shall be installed,
maintained, or operated upon the Premises or Common Areas without
Landlord's prior written consent, which may be given or withheld in
Landlord's reasonable discretion. Tenant shall not purchase or contract
to be furnished to the Premises spring water, ice, towels, janitorial,
security, maintenance or other services without Landlord's prior
written consent.
15. Canvassing, soliciting, peddling and distribution of handbills or any
other written material in the Building or on the Real Property are
prohibited.
16. Tenant shall not place anything or allow anything to be placed near the
glass of any window, door, partition, or wall of the Premises which
may, in Landlord's opinion, appear unsightly from outside the Building.
All drywall and wall partitions abutting the exterior portions of the
Building shall be installed in such a manner that said drywall and wall
partitions shall abut the mullions of the Building and not the glass
windows of the Building. No electric or other outlets or switches shall
be installed on any of the window walls of the Building or on any of
the vertical penetrations of the Building. Tenant shall not mark, drive
nails, screw or drill into the partitions, doors, woodwork or plaster
or in any way deface the Premises of the Building, or any part thereof,
except in accordance with the provisions of the Lease pertaining to
alterations and except for usual and customary interior decorating and
the installation of furniture, fixtures and telephones and electrical
equipment. Landlord reserves the right to direct electricians as to
where and how telephone and telegraph wires are to be introduced to the
Premises. Tenant shall not cut or bore holes in the floors, ceilings or
walls for wiring. Tenant shall not affix any floor covering to the
floor of the Premises in any manner except as approved by Landlord.
17. Tenant shall not install any sunscreening, curtains, blinds, shades,
screens, or other objects on any window or door of the Premises without
Landlord's prior written consent, which may be given or withheld in
Landlord's reasonable discretion. All electric ceiling fixtures hung in
offices or spaces along the perimeter of the Building must be
fluorescent and of a quality, type, design, and bulb color approved by
Landlord.
18. Tenant shall (i) not waste electricity, water, or air conditioning and
agrees to cooperate fully with Landlord to assure the most effective
operation of heating and air conditioning services for the Building,
(ii) comply with any governmental energy saving rules, laws
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or regulations, (iii) refrain from tampering with or changing the
setting of any thermostats, temperature control valves, or other
controls affecting the heating and air conditioning system for the
Building, (iv) not permit anything to be done or brought onto the
Premises which would impair or interfere with the utility or other
services to be provided by Landlord, (v) not utilize any other form or
type of heating or cooling source within the Premises other than that
provided by Landlord (e.g., space heaters, fans, window air
conditioners) and (vi) promptly notify Landlord of any accidents,
defects or malfunction in any of the utility services provided to the
Premises. All lights and all of Tenant's office equipment in the
Premises shall be turned off at night when such areas are not in use.
19. Tenant shall not install or attach any radio or television antenna,
loudspeaker, or other devices or projections on the roof or exterior
walls of the Building or to any part of the Premises which would, in
Landlord's opinion, interfere with the communication facilities
utilized by other tenants of the Building or be unsightly.
20. Landlord shall have the right to prohibit advertising by Tenant which,
in Landlord's discretion, tends to impair the reputation of the
Building or its desirability as an office location.
21. Landlord reserves the right to exclude from the Building between the
hours of 6:00 p.m. and 7:30 a.m. and at all hours on Saturday, Sunday,
and legal holidays all persons who are not known to the Building
watchman, if any, and who do not present a pass to the Building
approved by the Landlord. In the event a card access system is
installed for the Building, only authorized employees of Tenant shall
be provided with access cards. Tenant shall be solely responsible for
the acts and omissions of all persons for whom it requests passes and
all persons utilizing access cards provided by Landlord to Tenant.
Landlord shall in no case be liable for damages for any error with
regard to the admission to or the exclusion from the Building or the
Premises of any person, including any malfunction or defect in any card
access system for the Building.
22. Only hand trucks equipped with rubber tires and rubber side guards
shall be used by Tenant in the Building.
23. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, Tenant shall first obtain, and comply with, Landlord's
instructions regarding their installation.
24. Tenant's use and occupancy of the Premises are subject and subordinate
to all applicable governmental laws and regulations.
25. Should Tenant desire to place any unusually heavy equipment, including,
but not limited to, large files, safes and electronic data processing
equipment on the Premises, it shall first obtain written approval of
the Landlord to place such items within the Premises, for the
30
use of elevators within the Building, and for the proposed location for
the installation of the same. Landlord shall have the right to
prescribe the weight and position of any equipment that may exceed the
weight load limits for the Building, and may further require, at
Tenant's expense, the reinforcement of any flooring on which such
equipment may be placed, and/or to have an engineering study performed
to determine such weight and position of equipment, to determine added
reinforcement required and/or determine whether or not such equipment
can be safely placed within the Building.
26. Tenant shall cooperate fully with the life safety plans for the
Building as established and administered by the Landlord, including
participation by Tenant and employees of Tenant in exit drills, fire
inspections, life safety orientations and other programs relating to
fire safety required or directed by Landlord.
27. These Rules and Regulations are in addition to, and shall not be
construed in any way to modify or amend, in whole or in part, the
terms, covenants, agreements and conditions of the Lease.
28. Landlord reserves the right to rescind, alter or waive any of the
provisions of these Rules and Regulations or add thereto when, in its
judgment, the same is necessary or desirable for the reputation,
safety, care or appearance of the Building, the operation and
maintenance of the Building or the comfort of tenants of the Building.
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7.02 REMEDIES.
A. In the event of any Default by Tenant, then in addition to all other
rights and remedies of Landlord as may now or hereafter be provided
at law or in equity, Landlord may, at its option, either:
(i) Annul and terminate this Lease and thereupon re-enter and take
possession of the Premises;
(ii) Without terminating this Lease, re-enter and re-let the
Premises from time to time as agent of Tenant, it being agreed
by Tenant that such re-entry and/or reletting shall not
constitute an election by Landlord to terminate this Lease
(unless Landlord provides Tenant with written notice of such
termination) or discharge Tenant from any liability or
obligation hereunder (nothing herein, however, shall be
construed to require Landlord to re-enter and re-let in such
event); or
(iii) Declare all Rent for the remainder of the Term to be
immediately due and payable.
B. If Landlord re-enters the Premises under the provisions of Section
7.02 A (ii) above, Landlord shall not be deemed to have terminated
this Lease or the obligation of Tenant to pay any Rent or other
charges thereafter accruing, unless Landlord notifies Tenant in
writing of Landlord's election to terminate this Lease. In the event
of any re-entry or retaking of possession by Landlord, Landlord
shall have the right, but not the obligation, to remove all or any
part of Tenant's Personal Property and to place the same in storage
at a public warehouse at the expense and risk of Tenant. If Landlord
elects to relet the Premises for the account of Tenant, the rent
received by Landlord from such reletting shall be applied as
follows: first, to the payment of any indebtedness other than Rent
due hereunder from Tenant to Landlord; second, to the payment of
reasonable costs of such reletting, including rent concessions,
moving allowances and brokerage fees, if any; third, to the payment
of the costs of any alterations, repairs or leasehold improvements
to the Premises; fourth to the payment of Rent due and unpaid
hereunder; and the balance, if any, shall be held by Landlord and
applied in payment of future Rent as it becomes due. If that portion
of rent received from the reletting is insufficient to pay the Rent
due hereunder, then Tenant shall pay the deficiency to Landlord
promptly upon demand by Landlord. Such deficiency shall be
calculated and paid monthly. Tenant shall also pay to Landlord, as
soon as determined, costs and expenses incurred by Landlord in
connection with such reletting or in making alterations, repairs or
leasehold improvements to the Premises which are not covered by the
rent received from the reletting.
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C. IF TENANT IS IN DEFAULT UNDER THIS LEASE MORE THAN TWO (2) TIMES
WITHIN ANY TWELVE-MONTH PERIOD, IRRESPECTIVE OF WHETHER OR NOT SUCH
DEFAULT IS CURED, THEN, WITHOUT LIMITING LANDLORD'S OTHER RIGHTS AND
REMEDIES PROVIDED FOR IN THIS LEASE OR AT LAW OR EQUITY, THE
SECURITY DEPOSIT SHALL AUTOMATICALLY BE INCREASED BY AN AMOUNT EQUAL
TO THE GREATER OF.
(I) THREE (3) TIMES THE ORIGINAL SECURITY DEPOSIT, OR
(II) THREE (3) MONTHS' MINIMUM RENT, WHICH SHALL BE PAID BY TENANT
TO LANDLORD FORTHWITH ON DEMAND.
7.03 WAIVER. The failure by Landlord to insist in any instance on strict
performance of any covenant or condition hereof or to exercise any option
herein contained shall not be construed as a waiver of such covenant,
condition or option in any other instance.
7.04 ATTORNEY'S FEES AND HOMESTEAD. In any action or proceeding brought by
Landlord as a result of any Default hereunder by Tenant or if any Rent
owing under this Lease is collected by or through an attorney at law
(regardless of whether any action or proceeding is commenced by Landlord),
Tenant agrees to pay all costs and expenses, including court costs and
reasonable attorneys' fees, incurred by Landlord in connection therewith.
Tenant waives all homestead rights and exemptions which it may have under
applicable state or federal law with respect to any obligation owing under
this Lease.
ARTICLE VIII - ASSIGNMENT AND SUBLETTING, SUBSTITUTION OF SPACE SUBORDINATION
AND ESTOPPEL CERTIFICATES
8.01 ASSIGNMENT AND SUBLETTING.
A. Tenant shall not, without the prior written consent of Landlord,
which consent may be withheld for any reason, assign, transfer,
mortgage, pledge or hypothecate this Lease or sublet the Premises or
any portion thereof. As used herein, the term "transfer" shall also
mean and include the transfer of fifty-one percent (51%) or more
of the beneficial interest in or the control of Tenant, regardless
of whether such transfer is made in one (1) single transaction or in
a series of transactions during the Term of this Lease. Each and
every transfer or assignment by Tenant of this Lease or any interest
therein and each and every subletting by Tenant of the Premises
shall be null and void unless expressly consented to in writing by
Landlord. Any assignment, transfer or subletting by Tenant which is
consented to by Landlord shall not relieve or release Tenant from
any liability hereunder, whether such assignment, transfer or
subletting be called an assignment or sublease.
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