Exhibit 10.45
OFFICE LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease"), made and entered into as of the
16th day of July, 2007, between Fairways 2001
Office Partners, Ltd., a Texas limited partnership and Ascendant
Solutions, Inc., a Delaware corporation.
WITNESSETH:
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1.
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DEFINITIONS. For the purposes of this Lease, the
following definitions shall govern:
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(a)
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" Landlord ": Fairways 2001 Office Partners, Ltd., a Texas
limited partnership.
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(b)
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" Tenant ": Ascendant Solutions, Inc., a Delaware
corporation.
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(c)
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" The Property ": The real property known as
16250 Dallas Parkway, Dallas, Texas, more particularly described in
Exhibit "A" attached hereto and incorporated
herein.
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(d)
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" Building ": The office building located on and
constituting a part of the Property.
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(e)
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" Premises ": Suite No. 111 in the Building,
being the offices located on the first and second
floor(s) as outlined on the floor plan attached to this Lease as
Exhibit "B" and incorporated herein. The
Premises on the date hereof are stipulated for all purposes to
contain a total of 2,401 square feet of Rentable Area.
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(f)
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" Base Rental ": See Exhibit E.
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(g)
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" Commencement Date ": August 15, 2007.
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(h)
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" Lease Term ": A term commencing on the
Commencement Date and continuing for a period of sixty (60)
months.
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(i)
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" Expense Stop ": The Expense Stop will be
established during the 12-month period of 2007 (hereinafter
referred to as the " Base Year "). During the
Base Year, Tenant shall pay only Base Rental; Tenant shall have no
liability for any adjustments to Base Rental pursuant to Section 6
of this Lease for the Base Year. At the conclusion of
the Base Year, the Expense Stop per square foot of Rentable Area
will be determined for the remaining Lease Term, including any
extension of the Lease Term in accordance with the provisions of
this Lease, by dividing the Operating Expenses for the Base Year as
determined in Section 1(j) below, by 34,520 (the square feet of
Rentable Area in the Building).
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(j)
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" Operating Expenses ": The sum of the
following:
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(2)
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The Insurance Costs; plus
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(3)
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All direct and indirect costs and expenses (including charges for
water, waste water, refuse removal, and electricity used or
consumed) that are incurred in operating, maintaining, repairing,
administrating, managing and owning the Exterior Common Areas;
plus
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(4)
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All expenses and disbursements of every kind (subject to the
limitations set forth below) which Landlord incurs, pays or
becomes obligated to pay in connection with the ownership,
operation, and maintenance of the Building (including the Service
Areas and Common Areas), determined in accordance with generally
accepted federal income tax basis accounting principles
consistently applied, increased to the amount which would have been
incurred had the Building been occupied to the extent of
ninety-five percent (95%) of the Rentable Area in the Building, and
specifically includes but is not limited to the
following:
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(i) Wages and salaries (including management fees) of
all employees engaged in the operation, repair, replacement,
maintenance, and security of the Building, including taxes,
insurance and benefits relating thereto;
(ii) All supplies and materials used in the operation,
maintenance, repair, replacement, and security of the Building and
all parking areas, enclosed or otherwise, and all streets,
sidewalks and landscaped areas.
(iii) Annual cost of all capital improvements made to
the Building which although capital in nature can reasonably be
expected to reduce the normal operating costs of the Building, as
well as all capital improvements made in order to comply with
any law hereafter promulgated by any governmental authority
relating to energy, conservation, public safety or security,
as amortized over the useful economic life of such improvements as
determined by Landlord in its reasonable discretion (without regard
to the period over which such improvements may be depreciated or
amortized for federal income tax purposes);
(iv) Cost of all utilities, other than the cost of
utilities actually reimbursed to Landlord by the Building's
tenants;
(v) Cost of repairs, replacements, and general
maintenance of the Building, other than repair, replacement,
and general maintenance of the roof, foundation and exterior
walls of the Building; and
(vi) Cost of service or maintenance contracts with
independent contractors for the operation, maintenance, repair,
replacement, or security of the Building (including, without
limitation, alarm service and window cleaning).
There are specifically excluded from the definition of the term
"Operating Expenses" costs (1) for capital improvements made to the
Building, other than capital improvements described in subparagraph
(iii) above and except for items which, though capital for
accounting purposes, are properly considered maintenance and repair
items, such as painting of common areas, replacement of carpet in
the lobbies, and the like; (2) for repair, replacements and general
maintenance paid by proceeds of insurance or by Tenant or other
third parties, and alterations attributable solely to tenants of
the Building other than Tenant; (3) for interest, amortization or
other payments on loans to Landlord; (4) for depreciation of the
Building; (5) for leasing commissions; (6) for legal expenses; (7)
for renovating or otherwise improving space for occupants of the
Building or vacant space in the Building; (8) for correcting
defects in the construction of the Building; (9) for overtime or
other expenses of Landlord in curing defaults or performing work
expressly provided in this Lease to be borne at Landlord's expense;
and (10) for federal income taxes imposed on or measured by the
income of Landlord from the operation of the Building.
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(k)
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" Taxes ": means all taxes, assessments and governmental
charges, whether federal, state, county or municipal, and whether
they be by taxing districts or authorities presently taxing the
Property or by others, subsequently created or otherwise and any
other taxes, association dues and assessments attributable to the
Property or its operation, including taxes on Landlord attributable
to revenues from the operation of the Property, excluding, however,
federal and state income taxes, franchise taxes, inheritance,
estate, gift, corporation, net profits or any similar tax for which
Landlord becomes liable and/or which may be imposed upon or
assessed against Landlord; provided, however, if, at any
time during the Lease Term, the present method of taxation changes
such that a business tax, margin tax or increased franchise tax
(such business, margin or franchise tax is referred to herein as a
“ Margin Tax ”) is imposed on Landlord in lieu
of or in addition to real estate taxes imposed against the
Property, then the first full calendar year of the Lease Term
following the imposition of the Margin Tax, the Expense Stop shall
be increased by the difference, if any, between (i) the real estate
taxes for the Base Year, and (ii) the sum of the real estate taxes
and the Margin Tax applicable to the first full calendar year that
the Margin Tax is in effect.
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(l)
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" Insurance Costs ": All costs incurred by
Landlord associated with the insurance required to be maintained by
Landlord pursuant to this Lease, including premiums and any
deductible required to be paid by Landlord under any such
policy.
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(m)
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" Tenant's Prorata Share ": A fraction, the
numerator of which is the number of square feet of Rentable Area in
the Premises and the denominator of which is the number of square
feet of Rentable Area in the Building. Tenant's Prorata
Share at the beginning of the Lease Term shall be 6.955%,
calculated on the basis of the initial Rentable Area of the
Premises on the date hereof. Tenant's Prorata Share
shall be adjusted each time the Rentable Area in the Premises is
increased.
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(n)
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" Common Areas ": Those areas of the Building
devoted to corridors, restrooms, mechanical rooms, janitorial
closets, electrical and telephone closets, vending areas and other
facilities provided for the common use or benefit of tenants
generally and/or the public.
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(o)
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" Service Areas ": Those areas of the Building
within the outside walls used for mechanical rooms, building
stairs, fire towers (but shall not include any such areas for the
exclusive use of the particular tenant).
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(p)
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" Usable Area " of the Premises: The gross area
within the inside surface of the outer glass of the exterior walls,
to the mid-point of any walls separating portions of the Premises
from those of adjacent tenants and to the inside surface of walls
separating the Premises from Common Areas and Service
Areas.
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(
q
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"
Rentable
Area " of the Premises: The
sum of the Usable Area plus the prorata part of the Common Areas
allocated to the floor(s) leased to Tenant in the
Building. Rentable Area shall include any columns and/or
projection(s) which protrude into the Premises and/or the Common
Areas. The "Rentable Area" shall be calculated in accordance with
ANSI Z65.1-1996 , as promulgated by the Building Owners
and Managers Association (BOMA). The initial Rentable
Area of the Premises is 2,401 square feet and the Common Area
factor for the first floor is 1.1670%. The Common Area
factor shall remain constant throughout the initial term of the
Lease unless Tenant expands the Premises or reconfigures the
Premises in accordance with this Lease, in which event the Common
Area factor will be adjusted only to the extent necessary to take
into consideration Tenant’s expansion or
reconfiguration.
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(r)
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" Exterior Common Areas ": Those areas which are
not located within the Building and which are provided and
maintained for the common use and benefit of Landlord and tenants
of the Building generally and the employees, invitees and licensees
of Landlord and such tenants; including without limitation, all
parking areas, enclosed or otherwise, and all streets, sidewalks
and landscaped areas.
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(s)
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" Building Standard Improvements ", when used herein, shall
mean those improvements to the Premises which Landlord shall agree
to provide according to the Work Letter attached hereto as
Exhibit "C" and incorporated herein for all
purposes. " Building Grade " shall mean the type,
brand and/or quality of materials Landlord designates from time to
time to be the minimum quality to be used in the Building or the
exclusive type, grade or quality of material to be used in the
Building.
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2.
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LEASE GRANT. Subject to and upon the terms
herein set forth, Landlord leases to Tenant and Tenant leases from
Landlord the Premises.
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3.
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LEASE TERM. This Lease shall continue in force
during a period beginning on Commencement Date and continuing until
the expiration of the Lease Term, unless this Lease is sooner
terminated or extended to a later date under any other term or
provision hereof. If this Lease is executed before the
Premises become vacant or otherwise available and ready for
occupancy by Tenant, or if any present occupant of the Premises
holds over and Landlord cannot acquire possession of the Premises
before the Commencement Date, then (a) Tenant's obligation to pay
rent hereunder shall be waived until Landlord tenders possession of
the Premises to Tenant, (b) the Lease Term shall be extended by the
time between the scheduled Commencement Date and the date on which
Landlord tenders possession of the Premises to Tenant (which date
will then be defined as the Commencement Date), (c) Landlord shall
not be in default hereunder or be liable for damages therefor, and
(d) Tenant shall accept possession of the Premises when Landlord
tenders possession thereof to Tenant. By occupying the
Premises, Tenant shall be deemed to have accepted the Premises in
their condition as of the date of such occupancy, subject to the
performance of punch-list items that remain to be performed by
Landlord, if any. Tenant shall execute and deliver to
Landlord, within ten (10) days after Landlord has requested same, a
letter confirming (i) the Commencement Date, (ii) that Tenant has
accepted the Premises, and (iii) that Landlord has performed all of
its obligations with respect to the Premises (except for punch-list
items specified in such letter).
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4.
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USE. Tenant shall continuously occupy the
Premises and use the Premises only for general office use and for
no other purpose. Tenant agrees not to use or permit the
use of the Premises for any purpose which is illegal, or which, in
Landlord's opinion, creates a nuisance, interferes with other
tenants or Landlord in its management of the Building, or which
would increase the cost of insurance coverage with respect to the
Building.
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5.
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BASE RENTAL. (a) Tenant agrees to pay during the
Lease Term, to Landlord, without any setoff or deduction
whatsoever, the Base Rental and all such other sums of money as
shall become due hereunder as additional rent, including, without
limitation, any estimated adjustments to Base Rental all of which
are sometimes herein collectively called " rent ", the
nonpayment of which Landlord shall be entitled to exercise all such
rights and remedies as are herein provided in the case of the
nonpayment of Base Rental. The Base Rental, together
with any adjustments thereto pursuant to Section 6 hereof then
in effect, shall be due and
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payable in advance monthly on the first day of each calendar month
during the Lease Term (including any extensions or renewals
thereof), and Tenant hereby agrees to pay such Base Rental and any
adjustments thereto to Landlord at Landlord's address provided
herein (or such other address in Dallas County as may be designated
by Landlord in writing from time to time) monthly, in advance, and
without demand. If the Lease Term commences on a day
other than the first day of a month or terminates on a day other
than the last day of a month, then the installments of Base Rental
and any adjustments thereto for such month or months shall be
prorated, based on the number of days in such month.
(b) If
Tenant shall fail to pay the Base Rental on or before the fifth day
of the calendar month in which such Base Rental is due, Tenant
shall pay to Landlord a late charge equal to ten percent (10%) of
such Base Rental; provided, however, no late charge shall be
imposed under this paragraph (b) with respect to the first two
times during the term of this Lease that Tenant fails to pay Base
Rental on or before the fifth day of the calendar month in which
such Base Rental is due so long as Tenant pays in full such Base
Rental on or before the tenth day of such calendar
month. All installments of rent, including late charges,
not paid when due and payable shall bear interest at the lesser of
the maximum lawful rate or one and one-half percent (1-1/2%) per
month from the date due until paid. Such interest shall
be in addition to the late charge described in this paragraph
(b).
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6.
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BASE RENTAL ADJUSTMENTS. The Base Rental payable
hereunder shall be adjusted upward from time to time in accordance
with the following provisions:
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(a)
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Tenant's Base Rental is based, in part, upon the estimate that
annual Operating Expenses for the Building will be equal to the
Expense Stop per square foot of Rentable Area in the
Building. Tenant shall, during the Lease Term, pay as
additional rent Tenant's Prorata Share of the amount by which the
Operating Expenses per square foot of Rentable Area in the Building
for each calendar year exceed the Expense Stop (the amount of such
excess is referred to as the " Excess
"). Landlord may collect such additional rent in arrears
on a yearly basis. Landlord shall also have the option
from time to time to make a good faith estimate of the Excess for
the present, as well as each upcoming calendar year, and upon
thirty (30) days' written notice to Tenant may require the monthly
payment of Base Rental adjusted in accordance with such
estimate. Any amounts paid based on such an estimate
shall be subject to adjustment pursuant to Section 6(b) when actual
Operating Expenses are available for each calendar
year.
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(b)
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By April 1 of each calendar year during Tenant's occupancy, or as
soon thereafter as practical, Landlord shall furnish to Tenant a
statement of Landlord's actual Operating Expenses for the previous
calendar year. If for any calendar year additional Base
Rental collected for the prior year, as a result of Landlord's
estimate of Operating Expenses, is in excess of the additional Base
Rental actually due during such prior
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year, then Landlord shall refund to Tenant any overpayment (or at
Landlord's option, apply such amount against rentals due
hereunder). Likewise, Tenant shall pay to Landlord, on
demand, any underpayment with respect to the prior
year.
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(c)
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Tenant, at its expense, shall have the right no more frequently
than once per calendar year, following prior written notice to
Landlord, to audit Landlord's books and records relating to
Operating Expenses for the immediately preceding calendar year; or
at Landlord's sole discretion, Landlord will provide such audit
prepared by a certified public accountant, in lieu of allowing
Tenant's auditors to inspect such books and records.
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(d)
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All taxes (other than Taxes) allocated or attributed to Tenant, or
Tenant's property shall be paid by Tenant prior to
delinquency.
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7.
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SERVICES TO BE FURNISHED BY LANDLORD. Landlord
agrees to furnish Tenant the following services:
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(a)
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Hot and cold water at those points of supply provided for general
use of other tenants in the Building, central heat and air
conditioning in season, at such temperatures and in such amounts as
are considered by Landlord to be standard or as required by
governmental authority; provided, however, Landlord shall furnish
to Tenant a keyfob which will enable Tenant to activate the heating
and air conditioning for the Premises at times other than for "
Normal Business Hours " for the Building (which are 7:00
a.m. to 6:00 p.m. on Mondays through Fridays and 9:00 a.m. to 1:00
p.m. on Saturdays, exclusive of normal business
holidays). Tenant shall pay to Landlord an amount equal
to $25.00 per hour for central heat and air conditioning services
that are provided to Tenant during other than Normal Business
Hours, which amount shall be due and payable upon presentation of a
statement therefor by Landlord. Tenant acknowledges that
the foregoing hourly rate includes certain administrative expenses
of Landlord in administering such after hour services and an
allocation for the additional wear and tear on the Building HVAC
system attributable to the additional use of such system and only
that portion of such hourly rate that equals the actual amount
charged by the electric utility supplier will be included in the
calculation of Operating Expenses for the purpose of determining
Tenant's obligations under Section 6(a) above.
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(b)
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Routine maintenance and electric lighting service of all Common
Areas and Service Areas of the Building in the manner and to the
extent deemed by Landlord to be standard.
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(c)
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Janitor service, five times weekly, exclusive of normal business
holidays; provided, however, if Tenant's floor covering or other
improvements require special treatment, Tenant shall pay the
additional cleaning cost attributable thereto as additional rent
upon presentation of a statement therefor by Landlord.
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(d)
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Subject to the provisions of Section 12, all electrical current
required by Tenant in its use and occupancy of the
Premises.
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(e)
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All Building standard fluorescent bulb replacement in the Premises
and fluorescent and incandescent bulb replacement in the Common
Areas and Service Areas.
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(f)
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[Intentionally deleted].
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(g)
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Security in the form of limiting the general public's access to the
Building during other than Normal Business Hours shall be provided
in such form as Landlord deems appropriate. Landlord,
however, shall have no liability to Tenant, its employees, agents,
invitees or licensees for losses due to theft or burglary, or for
damages done by unauthorized persons on the Premises and neither
shall Landlord be required to insure against any such
losses. Tenant shall cooperate fully in Landlord's
efforts to maintain security in the Building and shall follow all
regulations promulgated by Landlord with respect
thereto.
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The failure by Landlord to any extent to furnish or the
interruption or termination of the services described above in
whole or in part, resulting from causes beyond the reasonable
control of Landlord shall not render Landlord liable in any respect
nor be construed as an eviction of Tenant, nor work as an abatement
of rent, nor relieve Tenant from the obligation to fulfill any
covenant or agreement hereof. Should any of the
equipment or machinery used in the provision of such services for
any cause cease to function properly, Tenant shall have no claim
for offset or abatement of rent or damages on account of an
interruption in service occasioned thereby or resulting
therefrom.
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8.
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IMPROVEMENTS TO THE PREMISES. Exhibit
"C" attached hereto sets
forth the obligations of Landlord and Tenant with respect to the
initial tenant finish-work for the Premises . Any additional
installations, alterations and improvements hereafter placed on the
Premises shall be for Tenant's account and at Tenant's cost,
subject, however, to Section 11 below.
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9.
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MAINTENANCE AND REPAIR OF PREMISES BY LANDLORD.
Except as otherwise expressly provided herein, Landlord
shall not be required to make any repairs to the
Premises. In the event that the Premises should become
in need of repairs or maintenance required to be made by Landlord
under this Lease, Tenant shall give written notice thereof to
Landlord; and Landlord shall not be responsible in any way for any
failure to make any such repairs until a reasonable time shall have
elapsed after the receipt by Landlord of such written
notice.
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10.
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CARE OF THE PREMISES BY TENANT. Tenant agrees
not to commit or allow any waste to be committed on any portion of
the Premises, and at the termination of this Lease to deliver up
the Premises to Landlord in as good condition as the same existed
on the Commencement Date, ordinary wear and tear
excepted.
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11.
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REPAIRS AND ALTERATIONS BY TENANT. Tenant shall
maintain the Premises in a clean, safe, operable, attractive
condition, and shall not permit or allow to remain any waste or
damage to any portion of the Premises. Tenant covenants
and agrees with Landlord, at Tenant's own cost and expense, to
repair or replace any damage done to the Building, or any part
thereof, caused by Tenant or Tenant's agents, employees, invitees,
or visitors, and such repairs shall restore the Building to as good
a condition as it was in prior to such damage, and shall have been
completed in compliance with all applicable laws; provided,
however, if Tenant fails to make such repairs or replacements
promptly, Landlord may, at its option, make such repairs or
replacements, and Tenant shall pay the cost thereof (plus a
reasonable fee for Landlord's supervision of such repairs or
replacements) to the Landlord on demand as additional
rent. Tenant agrees with Landlord not to make or allow
to be made any alterations to the Premises, or install any vending
machines on the Premises without first obtaining the written
consent of Landlord in each such instance, which consent may be
given on such conditions as Landlord may elect. Tenant
must obtain all permits and comply with applicable laws.
Improvements to the Premises shall be installed at the expense of
Tenant only in accordance with plans and specifications which have
been previously submitted to and approved in writing by
Landlord. After the initial Tenant improvements are
made, no alterations or physical additions in or to the Premises
may be made without Landlord's prior written
consent. Tenant shall not paint or install lighting or
decorations, signs, window or door lettering, or advertising media
of any type on or about the Premises without the prior written
consent of Landlord. All alterations, additions, or
improvements (whether temporary or permanent in character, and
including without limitation all air-conditioning equipment and all
other equipment that is in any manner connected to the Building's
plumbing system) made in or upon the Premises, either by Landlord
or Tenant, shall be Landlord's property at the end of the Lease
Term and shall remain on the Premises without compensation to
Tenant. Approval by Landlord of any of Tenant's drawings
and plans and specifications prepared in connection with any
improvements in the Premises shall not constitute a representation
or warranty of Landlord as to the adequacy or sufficiency of such
drawings, plans and specifications, or the improvements to which
they relate, for any use, purpose, or condition, but such approval
shall merely be the consent of Landlord as required hereunder. Any
and all alterations to the Premises shall become the property of
Landlord upon termination of this Lease (except for movable
equipment, trade fixtures, or furniture owned by
Tenant). Landlord may, nonetheless, require Tenant to
remove any and all fixtures, equipment and other improvements
installed on the Premises. In the event that Landlord so
elects, and Tenant fails to remove such improvements, Landlord may
remove such improvements at Tenant's cost, and Tenant shall pay
Landlord on demand the cost of restoring the Premises to Building
standard.
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12.
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USE OF ELECTRICAL SERVICES BY TENANT. Tenant's
use of electrical services furnished by Landlord shall be subject
to the following:
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(a)
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Tenant's electrical equipment and overhead lighting shall be
restricted to equipment and lighting which does not have either a
rated capacity or an electrical design load greater than that which
is standard for the Building. Tenant shall be
responsible for determining that its electrical equipment and
overhead lighting have rated capacities and design loads within
those limits which are standard for the Building.
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(b)
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If Tenant's consumption of electrical services exceeds either the
rated capacities and/or design loads that are standard for the
Building, then Tenant shall remove such equipment and/or lighting
to achieve compliance within 10 days after receiving notice from
Landlord. Or upon receiving Landlord's prior written
approval, such equipment and/or lighting may remain in the
Premises, subject to the following:
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(i)
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Tenant shall pay for all costs of installation and maintenance of
submeters, wiring, air conditioning and other items required by
Landlord, in Landlord's discretion, to accommodate Tenant's excess
design loads and capacities.
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(ii)
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Tenant shall pay to Landlord, upon demand, the cost of the excess
demand and consumption of electrical service at rates determined by
Landlord which shall be in accordance with any applicable
laws.
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(iii)
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Landlord may, at its option, upon not less than thirty (30) days'
prior written notice to Tenant, discontinue the availability of
such extraordinary utility service. If Landlord gives
any such notice, Tenant will contract directly with the public
utility for the supplying of such utility service to the
Premises.
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13.
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PARKING.
Tenant
shall have the non-exclusive right to use, at no charge, one
parking space for every 333 square feet of Rentable Area in the
Premises, of which 3 of such spaces shall be reserved covered
spaces and the balance shall be uncovered
. Tenant's uncovered parking spaces shall not be
reserved spaces and shall be available to Tenant and its employees
on a first come/first serve basis along with other tenants of the
Building.
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14.
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LAWS AND REGULATIONS. Tenant agrees to comply
with all applicable laws, ordinances, rules, and regulations of any
governmental entity or agency having jurisdiction over the
Premises.
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15.
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BUILDING RULES. Tenant will comply with the
rules of the Building and the Property attached hereto as
Exhibit "D" , as amended and altered by Landlord from time
to time, and will cause all of its agents, employees, invitees and
visitors to so comply. Landlord may, from time to time, change such
rules and regulations for the safety, care, or cleanliness of the
Building and related facilities, provided that such changes are
applicable to all tenants of the Building and will not unreasonably
interfere with Tenant's use of the Premises.
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16.
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ENTRY BY LANDLORD. Tenant agrees to permit
Landlord or its agents or representatives to enter into and upon
any part of the Premises during ordinary business hours, or at such
other times as Landlord deems appropriate to inspect the same, or
to show the Premises to prospective purchasers, mortgagees, or
insurers, to clean or make repairs, alterations or additions
thereto, and Tenant shall not be entitled to any abatement or
reduction of rent by reason thereof.
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17.
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ASSIGNMENT AND SUBLETTING.
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(a)
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Tenant shall not assign, sublease, transfer or encumber this Lease
or any interest therein (any assignment, sublease, transfer, or
encumbrance is referred to herein as a " Transfer ") without
Landlord's prior written consent, which consent shall be given or
withheld in the exercise of Landlord’s commercially
reasonable judgment). If Tenant requests Landlord's
consent to a Transfer, then Tenant shall provide Landlord with a
written description of all terms and conditions of the proposed
Transfer, copies of the proposed documentation, and the following
information about the proposed transferee: name and address;
reasonably satisfactory information about its business and business
history; its proposed use of the Premises; banking, financial, and
other credit information; and general references sufficient to
enable Landlord to determine the proposed transferee's
creditworthiness and character (such request for consent and
accompanying information is referred to herein as the " Consent
Request Package "). The Consent Request Package
shall be delivered to Landlord in a container that is marked
conspicuously on the front cover: "TIME SENSITIVE
MATERIAL-IMMEDIATE RESPONSE REQUIRED". Tenant shall
reimburse Landlord for its attorneys' fees and other expenses
incurred in connection with considering any request for its consent
to a Transfer (limited to $250 per request). If Landlord
consents to a proposed Transfer, then the proposed transferee shall
deliver to Landlord a written agreement whereby it expressly
assumes the Tenant's obligations hereunder (other than Tenant's
obligation to pay Base Rental under this Lease if the transferee is
a sublessee); however, any transferee of less than all of the space
in the Premises shall be liable only for obligations under this
Lease that are properly allocable to the space subject to the
Transfer, and only to the extent of the rent it has agreed to pay
Tenant therefor. Landlord's consent to a Transfer shall
not release Tenant from performing its obligations under this
Lease, but rather Tenant and its transferee shall be jointly and
severally liable therefor. Landlord's consent to any
Transfer shall not waive Landlord's rights as to any subsequent
Transfers. If an Event of Default occurs while the
Premises or any part thereof are subject to a Transfer, then
Landlord, in addition to its other remedies, may collect directly
from such transferee all rents becoming due to Tenant and apply
such rents against Rent. Tenant authorizes its
transferees to make payments of rent directly to Landlord upon
receipt of written notice from Landlord to do
so. Landlord shall, within ten (10) business days after
its receipt of the Consent Request Package, notify Tenant in
writing either (i) that Landlord consents to the proposed Transfer,
or (ii) that Landlord does not consent to the proposed Transfer and
in such rejection notice identify the reasons for Landlord's
decision not to consent to such Transfer. If Landlord
fails to provide Tenant with the written notice described in the
preceding sentence
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within such 10-business day period, Landlord shall be conclusively
deemed to have consented to the proposed Transfer.
(b) With
respect to any assignment and any subletting, Tenant shall pay to
Landlord, immediately upon receipt thereof, one-half of all net
compensation received by Tenant for such Transfer that exceeds the
Base Rental allocable to the portion of the Premises covered
thereby.
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(c)
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If no
Event of Default has occurred and is continuing, Tenant may assign
this Lease without the prior written consent of Landlord to a
parent, subsidiary or affiliate of Tenant or to an acquirer of
substantially all of the assets of Tenant; provided that (i) Tenant
shall have notified Landlord in writing prior to such assignment of
its intent to effect the same, (ii) at the time thereof no Event of
Default has occurred and is continuing, (iii) with respect to a
transferee that is acquiring substantially all of the assets of
Tenant, Landlord has received evidence reasonably acceptable to
Landlord that the transferee has the financial
wherewithal and creditworthiness to satisfy Tenant’s
remaining obligations under this Lease, and (iv) the proposed
transferee shall deliver to Landlord a written agreement whereby it
expressly assumes all of the Tenant's obligations under this Lease
(an assignment that satisfies the requirements of this paragraph
(c) is referred to herein as a " Permitted Transfer
").
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18.
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LIENS. Tenant will not permit any mechanic's
lien or liens to be placed upon the Premises or the Building and
nothing in this Lease shall be deemed or construed in any way as
constituting the consent or request of Landlord, express or
implied, by inference or otherwise, to any person for the
performance of any labor or the furnishing of any materials to the
Premises, or any part thereof, nor as giving Tenant any right,
power, or authority to contract for or permit the rendering of any
services or the furnishing of any materials that would give rise to
any mechanics' or other liens against the Premises. In
the event any such lien is attached to the Premises, then, in
addition to any other right or remedy of Landlord, Landlord may,
but shall not be obligated to, discharge the same. Any
amount paid by Landlord for any of the aforesaid purposes shall be
paid by Tenant to Landlord on demand as additional
rent. Landlord may require, at Landlord's sole option,
that Tenant shall provide to Landlord, at Tenant's sole cost and
expense, a performance and payment bonds in an amount equal to one
and one-half (1-1/2) times the estimated cost of any improvements,
additions, or alterations in the Premises which the Tenant desires
to make to insure Landlord against any liability for mechanic's
liens and materialman's liens and to insure completion of the
work. Tenant shall comply with this Section with respect
to any repairs, improvements or alterations to the Premises that
are otherwise permitted by Section 11 above.
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19.
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PROPERTY INSURANCE. Landlord shall maintain fire
and extended coverage insurance on the Building and the
Pre
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