THIS LEASE
AGREEMENT dated the 11 th day of August, 2004 and entered into between
REGENCY PARK CORPORATION, a North Carolina corporation having its
principal place of business in Cary, North Carolina (the
“Landlord”), and Cornerstone BioPharma, a Nevada
corporation having its principal place of business in Cary, North
Carolina (the “Tenant”).
The following
definitions shall be deemed to control herein.
ADDITIONAL
RENT: Any adjustments to Annual Rental and other sums due
Landlord from Tenant.
BASE OPERATING
EXPENSES: Means Operating Expenses for the Operating Year
ending November 30, 2004, which amount shall be as certified
by Landlord’s auditors.
BASE REAL
ESTATE TAXES: Means the lesser of:
a. the real
estate taxes levied or imposed for the tax year ending
December 31, 2004, which amount shall be as certified by
Landlord’s auditors; or
b. such
lesser amount as may be fixed, settled, and compromised, consented
to, or determined as a result of contestation or
otherwise.
BUILDING :
2000 Regency Parkway located in Cary, North Carolina.
LEASE:
This Lease Agreement with all Exhibits and Riders attached
thereto.
LEASE
YEAR: As used herein (i) shall mean each and every
12-month period during the term of this Lease, or (ii) (in the
event of Lease expiration or termination) shall mean the period
between the last 12-month period and said expiration or
termination. The first such 12-month period shall commence on the
1 st
day of November, 2004, and end on
the 31 st
day of October, 2005.
OPERATING
EXPENSES: The Landlord’s cost of operating the Building
and Property as more particularly described in
Exhibit E attached hereto and made a part hereof by
this reference.
OPERATING
YEAR: Means a year commencing on December 1, and
terminating on November 30, provided that Landlord shall be
permitted at anytime and from time to time to change the
commencement and termination dates of any operating year of the
Landlord.
PREMISES:
The space as outlined on the floor plan which is attached hereto as
Exhibit A and made a part hereof by this reference. The
Premises constitutes Five Thousand Five Hundred Forty-Three (5,543)
rentable square feet located on the 2 nd floor of the Building and is designated as
Suite 255.
PROPERTY:
The land upon which the Building is located, which land is more
particularly described in Exhibit B attached hereto and
made a part hereof by this reference.
RENTABLE
AREA: Five Thousand Five Hundred Forty-Three (5,543) square
feet located within the Building.
REAL ESTATE
TAXES: Includes (i) personal property taxes (attributable
to the year in which assessed) imposed upon the furniture,
fixtures, machinery, equipment, apparatus, systems, and
appurtenances used in connection with the Building and the Property
for the operating thereof; and (ii) real estate taxes,
assessments, sewer rents, rates and charges, taxes based upon the
receipt of rent and any other federal, state, or local governmental
charge, general, special, ordinary, or extraordinary (but not
including income or franchise taxes or any other taxes imposed upon
or measured by Landlord’s income or profits, unless the same
shall be imposed in lieu of real estate taxes) or any other tax
which may now or hereafter be levied or assessed against the
Property, the Building, any other improvements hereinafter
constructed on the Property, or the rents derived from the
Property, the Building and such other improvements. (In the case of
special taxes or assessments which may be payable in installment,
only the amount of each installment paid during a calendar year
shall be included in the taxes for that year.)
REAL ESTATE
TAX YEAR: Means each successive 12-month period following and
corresponding to the period in respect of which the base real
estate taxes are established irrespective of the period or periods
which may from time to time in the future be established by
competent authority for the purposes of levying or imposing real
estate taxes.
Landlord, for and
in consideration of the rents, covenants, agreements, and
stipulations herein contained, to be paid, kept and performed by
the Tenant, has leased and by these presents leases unto the
Tenant, and Tenant hereby agrees to lease upon the terms and
conditions herein contained, the Premises located in the Building
situate upon the Property.
The Premises shall
be finished by the Landlord at its expense in accordance with the
provisions of Exhibit C which is attached to and forms
a part of this Lease.
All other
improvements to the Premises shall be made at the Tenant’s
expense and must be performed in accordance with accurate working
drawings and specifications that are to be submitted to and
approved by the Landlord in writing prior to the commencement of
such work.
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The term of this
Lease shall be for a period of five (5) years commencing on
the 1 st
day of November, 2004, (hereinafter
referred to as the “Commencement Date”), and ending on
the 31 st
day of October, 2009, inclusive. If,
however, for any reason Landlord is unable to deliver possession of
the Premises to Tenant upon the Commencement Date, Landlord shall
not be liable for any damage caused thereby, nor shall this Lease
become void or voidable but, rather, the term specified herein
shall commence upon the date of delivery of possession of the
Premises to Tenant and shall terminate five (5) years
subsequent to the Commencement Date. Tenant shall not be liable for
any rent hereunder until such time as Landlord shall have delivered
possession of the Premises to Tenant and substantially completed
the work described in Exhibit C unless the delay is caused
by Tenant. If, however, Landlord is unable to deliver possession of
the Premises to Tenant within six (6) months after the
Commencement Date for any reason other than the fault or neglect of
Tenant, then this Lease may be terminated by either party without
liability to the other upon fifteen (15) days prior written
notice to the other party. Should the lease term commence upon any
date other than the Commencement Date hereinabove specified,
Landlord and Tenant shall execute and acknowledge a written
statement setting forth the actual date of commencement of the
lease term, which statement may be recorded by either party and a
copy of which shall be attached as Exhibit D to this
Lease.
2.0 ANNUAL RENTAL AND ADJUSTMENTS
THEREOF
2.01 ANNUAL
RENTAL: Tenant agrees to pay Landlord, at Landlord’s
address above, or at such other place as Landlord may designate in
writing, without demand, deduction, credit or setoff and in lawful
money of the United States of America:
Rental of One
Hundred Two Thousand Five Hundred Forty-Five and 52/100 Dollars
($102,545.52) per year (“Annual Rent”), payable in
equal monthly installments of Eight Thousand Five Hundred
Forty-Five and 46/100 Dollars ($8,545.46), in advance, on or before
the first day of each calendar month for the period
November 1, 2004, up to and including January 31,
2005.
Rental of One
Hundred Five Thousand Three Hundred Seventeen and 04/100 Dollars
($105,317.04) per year (“Annual Rent”), payable in
equal monthly installments of Eight Thousand Seven Hundred
Seventy-Six and 42/100 Dollars ($8,776.42), in advance, on or
before the first day of each calendar month for the period
February 1, 2005, up to and including January 31,
2006.
Rental of One
Hundred Eight Thousand Eighty-Eight and 56/100 Dollars
($108,088.56) per year (“Annual Rent”), payable in
equal monthly installments of Nine Thousand Seven and 38/100
Dollars ($9,007.38), in advance, on or before the first day of each
calendar month for the period February 1,2006, up to and including
January 31, 2007.
Rental of One
Hundred Ten Thousand Eight Hundred Fifty-Nine and 96/100 Dollars
($110,859.96) per year (“Annual Rent”), payable in
equal monthly installments of Nine Thousand Two Hundred
Thirty-Eight and 33/100 Dollars ($9,238.33), in advance, on or
before
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the first day
of each calendar month for the period February 1, 2007, up to
and including January 31, 2008.
Rental of One
Hundred Thirteen Thousand Six Hundred Thirty-One and 48/100 Dollars
($113,631.48) per year (“Annual Rent”), payable in
equal monthly installments of Nine Thousand Four Hundred Sixty-Nine
and 29/100 Dollars ($9,469.29), in advance, on or before the first
day of each calendar month for the period February 1, 2008, up
to and including October 31, 2009.
The Tenant is also
obligated to pay to the Landlord Additional Rent and certain other
sums as provided for herein.
2.02
ADDITIONAL RENT: Any adjustment to Annual Rent and other sums
due Landlord from Tenant shall be referred to collectively as
“Additional Rent.”
2.02.01
OPERATING EXPENSES: Prior to commencement of each Operating
Year or as soon thereafter as is reasonably possible, Landlord will
furnish to Tenant an estimate of the Operating Expenses for such
Operating Year and if the same shall be in excess of the Base
Operating Expenses, the installments of rent payable hereunder in
respect of each month of such Operating Year shall be increased
byway of Additional Rent by an amount equal to one-twelfth (1/12)
of three and forty-nine one hundredths percent (3.49%) of such
excess and Tenant shall make payment thereof to Landlord
accordingly (“Tenant’s Estimated
Share”).
After the end of
each Operating Year, the Landlord shall furnish to Tenant a
statement of Landlord’s actual Operating Expenses for such
Operating Year and Tenant shall pay to Landlord an amount equal to
of three and forty-nine one hundredths percent (3.49%) of the
excess of such Operating Expenses over the Base Operating Expenses
(“Tenant’s Actual Share”). If Tenant’s
Actual Share is greater than the amount paid by Tenant to Landlord
as Tenant’s Estimated Share, then Tenant shall pay this
difference to Landlord within fourteen (14) days after
delivery of such statement. If Tenant’s Actual Share is less
than the amount paid by Tenant to Landlord as Tenant’s
Estimated Share, then Landlord shall refund the excess to Tenant
within fourteen (14) days after delivery of such
statement.
Nothing contained
in this Article shall be construed at any time so as to reduce the
monthly installments of rent payable hereunder below the amount
stipulated in Article 2.01.
If this Lease
shall terminate other than on the expiry of an Operating Year in
any Operating Year, then in computing the amount payable by Tenant
under this Article for the period from the commencement of the
Operating Year in which the Lease terminates until the date of
termination, the Base Operating Expenses shall be deducted from the
Operating Expenses for such Operating Year and Tenant shall pay
one-three hundred sixty-fifth (1/365) of three and forty-nine one
hundredths percent (3.49%) for each day of such Operating Year
during which this Lease shall have been in full force and
effect.
The obligations of
the parties hereto to adjust sums owed pursuant to this Article
shall survive the expiration of the term of this Lease
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Failure of
Landlord to furnish a statement of actual Operating Expenses or to
give notice of an adjustment to Annual Rent under this Article in a
timely manner shall not prejudice or act as a waiver of
Landlord’s right to furnish such statement or give such
notice at a subsequent time or to collect any adjustments to the
Base Rent for any preceding period.
2.02.02 REAL
ESTATE TAXES: If at any time or from time to time during the
term of this Lease, the Real Estate Taxes for or attributable to
any Real Estate Tax Year shall be in excess of the Base Real Estate
Taxes, and/or if any new tax or increase of the effective rate of
present taxes shall become effective after the date hereof but
before the normal tax escalation provision shall take effect, the
rent payable hereunder in respect of such year shall be increased
by an amount equal to of three and forty-nine one hundredths
percent (3.49%) of such excess and/or such new tax or increase (the
“Tenant’s Tax Share”). Tenant shall pay to
Landlord, not later than the sixty (60) days prior to the tax due
date, or such other date as may be specified in writing to Tenant
by Landlord, the Tenant’s Tax Share for such year. Where at
any time such amount has become payable to Landlord hereunder, in
addition to such amount, subsequent monthly installments of rent
shall be increased by an amount equal to one-twelfth (1/12) of the
Tenant’s Tax Share, and such monthly amounts when paid to
Landlord shall be available (without interest) as a credit against
subsequent obligations of Tenant to Landlord under this Article.
Landlord shall furnish to Tenant upon the specific written request
of Tenant copies of all notices of valuation and assessment and all
tax bills received by Landlord.
Tenant shall pay
to Landlord as Additional Rent of three and forty-nine one
hundredths percent (3.49%) of any expenses incurred by Landlord in
obtaining or attempting to obtain a reduction of any Real Estate
Taxes. Real Estate Taxes which are being contested by Landlord
shall nevertheless be included for purposes of the computation of
the liability of Tenant under this Article; provided, however, that
in the event that Tenant shall have paid any amount of increased
rent pursuant to this Article and Landlord shall thereafter receive
a refund of any portion of the Real Estate Taxes on which such
payment shall have been based, Landlord shall pay to Tenant the
appropriate portion of such refund after deduction of the
aforementioned expenses.
Landlord shall
have no obligation to contest, object to or to litigate the levying
or imposition of any Real Estate Taxes and may settle, compromise,
consent to, waive or otherwise determine in its discretion any Real
Estate Taxes without notice to, consent or approval of
Tenant.
Nothing contained
in this Article shall be construed at any time so as to reduce the
monthly installments of rent payable hereunder below the amount
stipulated in Article 2.01.
If the termination
date of the Lease shall not coincide with the end of a Real Estate
Tax Year, then in computing the amount payable under this Article
for the period between the commencement of the applicable Real
Estate Tax Year in question and the termination date of this Lease,
the Base Real Estate Taxes shall be deducted from the Real Estate
Taxes for the applicable Real Estate Tax Year and, if such Real
Estate Taxes exceed the Base Real Estate Taxes, the Tenant shall
pay one-three hundred sixty-fifth (1/365) of three and forty-nine
one hundredths percent (3.49%) for each day of such Real Estate Tax
Year during which the Lease shall have been in full force and
effect.
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Tenant’s
obligation to pay under this Article for the final period of the
Lease shall survive the expiration of the term of this
Lease.
Failure of
Landlord to furnish a statement of actual Tax Expenses or to give
notice of an adjustment to Annual Rent under this Article in a
timely manner shall not prejudice or act as a waiver of
Landlord’s right to furnish such statement or give such
notice as a subsequent time or to collect any adjustments to the
Annual Rent for any preceding period.
2.02.03
INTEREST FOR LATE PAYMENT: Any payment provided for herein to
be made by the Tenant and not received by Landlord on the due date
specified in this Lease shall accrue interest from the due date at
the rate of two percent (2%) above the published prime rate of
First Union National Bank of North Carolina in effect from time to
time (the “Prime Rate”).
For purposes of
computing interest hereunder, changes in the Prime Rate shall be
effective on the date of each change.
2.03 SECURITY
DEPOSIT: Tenant shall pay to the Landlord upon, upon execution
of the Lease Eight Thousand Five Hundred Forty-Five and 46/100
Dollars ($8,545.46), equal to one (1) monthly installment of
Annual Rent (herein called “Security Deposit”), which
amount shall be security for the full and faithful performance and
observance by Tenant of the covenants, terms and conditions of this
Lease, including, without limitation, the payment of Annual Rent
and Additional Rent, on the part of Tenant to be kept and
performed. No interest shall be payable on the Security Deposit.
Tenant acknowledges that the Security Deposit is not an advance
payment of rent or a measure of Landlord’s damages in the
case of default by Tenant. Upon the occurrence of an Event of
Default under the Lease, Landlord may use, apply or retain the
whole or any part of the Security Deposit so deposited to the
extent required for the payment of any Annual Rent and Additional
Rent or any other sum as to which Tenant is in default or for the
payment of any other damage, injury, expense or liability resulting
from any Event of Default. Following any such application of the
Security Deposit, Tenant shall pay to Landlord on demand the amount
necessary to restore the Security Deposit to its original amount.
In the event that Tenant shall fully and faithfully comply with all
of the terms, provisions, covenants and conditions of this Lease,
the Security Deposit shall be returned to Tenant within thirty
(30) days after the termination of this Lease subject to the
retention of an amount estimated by Landlord to be sufficient to
satisfy Tenant’s Additional Rent obligations hereunder. In
the event of a sale of the Building or a lease of the Building,
subject to this Lease, Landlord shall be released from all
liability for the return of the Security Deposit and Tenant shall
look to the new landlord for the return of the Security Deposit.
This provision shall apply to every transfer or assignment made of
the Security Deposit to a new landlord. The Security Deposit shall
not be assigned or encumbered by Tenant without the written consent
of Landlord, and such assignment or encumbrance without
Landlord’s consent shall be void.
The Premises shall
be used and occupied only for general office use and shall not be
used or occupied for any other purpose without the prior written
consent of Landlord. Tenant shall not display any signs on the
Property without prior written consent of Landlord. Tenant shall
not
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conduct, or
allow to be conducted, on the Premises any business, or permit any
act, (i) which constitutes a nuisance, (ii) which is
contrary to or in violation of the laws, statutes, or ordinances of
the United States, or the State or City in which the Premises are
located, or (iii) which is dangerous to persons or property or
which may invalidate (or increase the premium for) any policy of
insurance carried on the Building or the Premises. Tenant will
comply with all police, fire, sanitary and all other laws and
regulations imposed by any governmental or municipal authority or
body or by Landlord’s fire insurance underwriters. Any
violation of this provision by the Tenant shall be an Event of
Default entitling Landlord to exercise any rights or remedies
contained herein or provided by law.
The Landlord shall
provide, at the Landlord’s expense except as otherwise
provided, the following services:
a. Janitorial
service in and about the Premises, Saturdays, Sundays and holidays
excepted.
b. Heat and
air-conditioning, daily from 8:00 a.m. to 6:00 p.m., and 8:00 a.m.
to 1:00 p.m. on Saturdays (if not a holiday), Sundays and holidays
excepted, sufficient to maintain comfortable temperature on the
basis of one person per 100 square feet of space reasonably
subdivided. This paragraph shall conform to any government
regulations preserving limitations thereon and such conformity
shall be deemed to satisfy this Landlord obligation.
Whenever heat
generating machines or equipment which affect the temperature
otherwise maintained by the air-conditioning system are used in the
Premises, Landlord reserves the right, at its option, either to
require Tenant to discontinue the use of such heat generating
machines or equipment or to install supplementary air-conditioning
equipment in the Premises. The cost of such installation shall be
paid by Tenant to Landlord promptly on being billed therefor, and
the cost of operation and maintenance of said supplementary
equipment shall be paid by Tenant to Landlord promptly on the
monthly rent payment dates at such rates as may be agreed on, but
in no event at a rate less than Landlord’s actual cost
therefor of labor, materials and utilities.
c. Water for
drinking, lavatory and toilet purposes.
d. Passenger
elevator service at all times. Any or all elevator service may be
automatic.
e. Window
washing of all exterior windows, both inside and out, weather
permitting.
f. Provision,
installation and replacement of ballasts and tubes for lighting
purposes.
g. Removal of
ice and snow from walks, drives and parking facilities.
h. Electricity
typically provided in general office space, specifically excluding
any extraordinary requirements of the Tenant.
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If Tenant shall
require electric current in excess of that usually furnished or
supplied for use of the Premises as general office space, Tenant
shall first procure the consent of Landlord, (which Landlord may
refuse in its sole discretion), to the use thereof. Landlord may
cause an electric check meter to be installed in the Premises.
Landlord shall also have the right to cause a reputable independent
electrical engineering or consulting firm to survey and determine
the value of the electric service furnished for such excess
electric current. The cost of any such survey or meters and of
installation, maintenance and repair thereof shall be paid for by
Tenant. Tenant agrees to pay to Landlord, promptly upon demand
therefor, for all such electric current consumed as shown by said
meters or by said survey at the rates charged for such services by
the city, or the local public utility, as the case may be,
furnishing the same, plus any additional expense incurred in
monitoring the electric current so consumed.
Tenant covenants
and agrees that at all times its use of electric current shall
never exceed Tenant’s proportionate share of the capacity of
existing feeders to the Building or the risers of wiring
installation. Any riser or risers or wiring to meet Tenant’s
excess electrical requirements, upon written request of Tenant,
will be installed by Landlord, at the sole cost and expense of
Tenant if, in Landlord’s sole judgment, the same are
necessary and will not cause permanent damage or injury to Building
or Premises or cause or create a dangerous or hazardous condition
or entail excessive or unreasonable alteration, repairs or expense
or interfere with or disturb other tenants or occupants.
Should Tenant
require any additional work or service, including but not limited
to the additional work or service described above, including
service furnished outside the stipulated hours, Landlord may, on
terms to be agreed, upon reasonable advance notice by Tenant,
furnish such additional service. Tenant agrees to pay the Landlord
such charges as may be agreed on, but in no event at a charge less
than Landlord’s actual cost plus overhead for the additional
services provided, it being agreed that the cost to the Landlord of
such additional services shall be excluded from Operating
Expenses.
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.
Tenant acknowledges that any one or more of such services may be
suspended by reason of accident or of repairs, alterations or
improvements necessary to be made, or by strikes or lockouts, or by
reason of operation of law, or causes beyond the reasonable control
of Landlord. Any such interruption or discontinuance of service
shall not constitute an eviction or disturbance of Tenant’s
use and possession of the Premises, or any part thereof, or render
Landlord liable to Tenant for damages by abatement of rent or
otherwise, or relieve Tenant from performance of Tenant’s
obligations under this Lease.
5.0 TENANT’S ACCEPTANCE AND
MAINTENANCE OF PREMISES
Tenant, on
occupancy of the Premises, represents to the Landlord that it has
examined and inspected the same, finds them to be as represented by
the Landlord and satisfactory for Tenant’s intended use, and
such occupancy evidences Tenant’s acceptance “AS
IS.” Landlord makes no representation or warranty as to the
condition of said Premises. Tenant shall maintain (and so deliver
at the end of the Lease) each and every part of the Premises in
good repair and condition, and shall make, at Tenant’s sole
cost and expense, such replacements, restorations, renewals or
repairs, in quality equivalent or better than the original work, as
may be required to
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so maintain the
same, ordinary wear and tear only excepted. Tenant, however, shall
make no structural or interior alterations, additions or
improvements to the Premises without Landlord’s prior written
consent, and any work performed by Tenant shall be done in good and
workmanlike manner, and so as not to disturb or inconvenience other
tenants in the Building. Tenant shall not at any time permit any
work to be performed on the Premises except by duly licensed
contractors or artisans, each of whom must carry general public
liability insurance in form and content satisfactory to the
Landlord, certificates of which shall be furnished Landlord. At no
time may Tenant do any work that results in a claim of lien against
Landlord. All alterations, additions or improvements (including,
but not limited to, floor covering, wall covering, wall and ceiling
lighting fixtures, carpet, drapes and drapery hardware) made or
installed by Tenant or by Landlord for Tenant’s benefit to
the Premises, shall become the property of Landlord upon the
termination or earlier expiration of this Lease. Landlord reserves
the right to require Tenant, at Tenant’s expense, (i) to
remove any improvements or additions made to the Premises by
Tenant, or by Landlord for Tenant’s benefit, upon the
expiration or earlier termination of this Lease; and (ii) to
repair all injury done by or in connection with installation or
removal of said improvements or additions. Tenant further agrees to
do so prior to the expiration date of this Lease, or within thirty
(30) days after notice from Landlord, whichever shall be later,
provided that Landlord gives such notice no later than thirty
(30) days prior to the expiration date of this
Lease.
If the sprinkler
system as installed in the Building or any of its appliances shall
be damaged or injured or not in proper working order by reason of
any act or omission of the Tenant, Tenant’s agents, servants,
employees, licensees or visitors, the Tenant shall forthwith
restore the same to good working conditions at its own expense. If
the Board of Fire Underwriters of Fire Insurance Exchange or any
bureau, department or official of the state, county or city
government, require or recommend that any changes, modifications,
alterations or additional sprinkler heads or other equipment be
made or supplied by reason of the Tenant’s business, or the
location of partitions, trade fixtures, or other contents of the
Premises, or if any such changes, modifications, alterations,
additional sprinkler heads or other equipment become necessary to
prevent the imposition of a penalty or charge against the full
allowance for a sprinkler system in the fire insurance rate as
fixed by said Exchange, or by any fire insurance company, Tenant
shall, at the Tenant’s expense, promptly make and supply such
changes, modifications, alterations, additional sprinkler heads or
other equipment.
Tenant shall not
overload the floors, nor shall Tenant install any heavy business
machines or any safes or heavy equipment of any kind without prior
written consent of Landlord, which if granted, may be conditioned
upon moving by skilled licensed handlers, and installation and
maintenance at Tenant’s expense of special reinforcings and
settings adequate to carry the additional weight and to absorb and
prevent noise and vibration.
Landlord shall
have no duty to Tenant to make any repairs or improvements to the
Premises except such repairs as may be deemed necessary by Landlord
for normal maintenance operations of the Building’s plumbing,
heating and air-conditioning and electrical systems, Building
parking lots and grounds, and such structural repairs necessary for
safety and tenantability and then only if not brought about by any
act or neglect of Tenant, its agents,
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employees or
visitors. Tenant agrees to report immediately in writing to
Landlord any defective condition in or about the Premises known to
Tenant, and a failure to so report shall make Tenant liable to
Landlord for any expense or damage to Landlord resulting from such
defective condition. Landlord shall have the right of full access
to the Premises (including entry by use of master key) to make
repairs without reduction or abatement of rent.
7.0 INSURANCE AND INSURANCE
RATES
Landlord shall
carry fire, casualty and liability insurance insuring its interest
in the Building and the Premises. Tenant shall carry fire, casualty
and liability insurance insuring its interest, if any, in
improvements to or in the Premises and its interest in its office
furniture, equipment, supplies and other property. Tenant hereby
waives any claim or right of action which it may have against
Landlord for loss or damage covered by such insurance, and Tenant
covenants and agrees that it will obtain a waiver from the carrier
of such insurance releasing such carrier’s subrogation rights
as against Landlord. Tenant shall maintain a comprehensive
liability policy covering loss to person or property (a) in
the amount of One Million and No/100 Dollars ($1,000,000) bodily
injury per person, and One Hundred Thousand and No/100 Dollars
($100,000) property damage, or (b) in the amount of Three
Million and No/100 Dollars ($3,000,000) single limit for bodily
injury and property damage. Such policies shall name Landlord as an
insured. Tenant shall furnish Landlord a certificate of insurance
indicating (a) current coverage during the term of this Lease,
and (b) a provision requiring a thirty (30) day prior
notice to the Landlord of cancellation.
Tenant shall not
do or cause to be done or permit on the Premises or in the Building
anything deemed extra hazardous on account of fire, and Tenant
shall not use the Premises or the Building in any manner which will
cause an increase in the premium rate for any insurance in effect
on the Building or a part thereof. If, because of anything done by
Tenant, the premium rate for any kind of insurance in effect on the
Building or any part thereof shall be raised, Tenant shall pay
Landlord the amount of any such increase in premium in accordance
with the provisions of this Lease. If Landlord shall demand that
Tenant remedy the condition which caused any such increase in an
insurance premium rate, Tenant shall remedy such condition within
five (5) days after receipt of such demand.
8.0 FIRE OR OTHER
CASUALTY
In the event that
before or during the term of this Lease, the Premises shall be
damaged by fire or other casualty which in the opinion of Landlord
does not render the Premises or a part thereof untenantable
Landlord will, at its option (subject to the other provisions of
this Section 8.0), repair the same with reasonable dispatch upon
receipt of written notice of the damage from Tenant, and there
shall be no abatement of the rent.
In the event that
before or during the term of this Lease the Premises or the
Building shall be damaged by fire or other casualty which in the
opinion of the Landlord renders the Building, the Premises or any
part of the Building or Premises untenantable, Landlord within
twenty (20) days of notice of such fire or casualty or of
receipt of written notice from Tenant of such damage (whichever
shall last occur) shall have the right to and shall either
(i) serve written notice upon Tenant of Landlord’s
intent to repair said damage or (ii) if in Landlord’s
opinion said damage
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renders so much
of either of the Premises or of the Building untenantable that
repair would not be advisable, serve written notice upon Tenant
that this Lease is terminated. If Landlord shall elect to terminate
this Lease aforesaid, such termination shall be effective
immediately upon service of such notice by Landlord upon Tenant if
the term shall not have commenced or on the date specified in such
notice if during the term. In the event of such termination the
rent shall be apportioned and paid up to the time of such fire or
other casualty if the Premises are rendered wholly untenantable as
aforesaid by such fire or other casualty or up to the specified
date of termination if the Premises are not rendered wholly
untenantable by such fire or other casualty. Any obligation of
Tenant to Landlord for any sum of money due under any provisions of
this Lease shall survive any such termination of this Lease by
Landlord. If, on the other hand, Landlord shall elect to repair
such damage, such repairs shall be commenced within forty-five
(45) days of notice to Tenant of such election and the
Landlord shall diligently proceed with such restoration, however,
Landlord’s obligation to repair or rebuild shall be limited
to the availability of insurance proceeds. During the period of
repair the total amount of the rent provided for in
Article 2.0 of this Lease shall be reduced to an amount which
in Landlord’s opinion bears the same ratio to the rent
provided for in said Article 2.0 as the portion of the
Premises then available for use bears to the entire Premises. Upon
completion of such repair, the rent shall thereafter be paid as if
no fire or other casualty had occurred.
Notwithstanding
the foregoing, in the event that before or during the term of this
Lease the Premises or the Building shall be damaged by fire or
other casualty which shall have been occasioned by the act of
Tenant or of its servants, agents, visitors, invitees or licensees,
(i) there shall be no apportionment or abatement of the rent and,
(ii) Landlord shall have the right but shall have no
obligation to repair the Premises or the Building, and
(iii) Tenant shall reimburse and compensate Landlord within
five (5) days of rendition of any statements to Tenant by
Landlord for any expenditures made by Landlord in making any such
repairs. Any such actions shall be without prejudice to any other
rights and remedies of Landlord and without prejudice to any rights
of subrogation of any insurer of Landlord.
The other
provisions of this Article 8.0 notwithstanding, Landlord shall
have no obligation to replace or repair any property in the
Building or on the Premises belonging to Tenant or to anyone
claiming through or under Tenant, nor shall Landlord have any
obligation hereunder to replace or repair any property on the
Premises which Landlord may require Tenant to remove from the
Premises.
9.0 WAIVER OF CERTAIN
CLAIMS
The Tenant, to the
extent permitted by law, waives all claims it may have against the
Landlord, and against the Landlord’s agents and employees for
damage to person or property sustained by the Tenant or by any
occupant of the Premises or by any other person, resulting from any
part of the Property or any equipment or appurtenances becoming out
of repair, or resulting from any accident in or about the Property
or resulting directly or indirectly from any act or neglect of any
tenant or occupant of any part of the Property or of any other
person, unless such damage is a result of the negligence or
contributory negligence of Landlord, or Landlord’s agents or
employees. If any damage results from any act or neglect of the
Tenant, the Landlord may, at the Landlord’s option, repair
such damage and the Tenant shall thereupon pay to the Landlord the
total cost of such repair. All personal property belonging to the
Tenant or any
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occupant of the
Premises that is in or on any part of the Property shall be there
at the risk of the Tenant or of such other person only, and the
Landlord, its agents and employees shall not be liable for any
damage thereto or for the theft or misappropriation thereof unless
such damage, theft or misappropriation is a result of the
negligence or contributory negligence of Landlord or
Landlord’s agents or employees. The Tenant agrees to hold the
Landlord harmless and to indemnify the Landlord against claims and
liability for injuries to all persons and for damage to or loss of
property occurring in or about the Property, due to any act of
negligence or default under this Lease by the Tenant, its agents or
employees.
To the extent that
the Tenant carries hazard insurance on any of its property in the
Premises and to the extent that the Landlord carries hazard
insurance on the Property, each policy of insurance shall contain
(if obtainable from the insurer selected by the Tenant or the
Landlord, as the case may be, without additional expense) a
provision waiving subrogation against the other party to this
Lease. If such provision can be obtained only at additional
expense, the obligation to obtain such provision shall be effective
only if the other party, on notice shall pay the amount of such
additional expense. Each of the parties hereto releases the other
with respect to an
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