Pre-Effective Amendment to Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-3/A Pre-Effective Amendment to Registration Statement 59 370K
for Securities Offered Pursuant to a
Transaction
6: EX-4.11 Stock Purchase Warrant 9 39K
7: EX-4.12 Stock Purchase Warrant 9 39K
2: EX-4.2 Amendment to Warrant Agreement 2 13K
3: EX-4.3 Warrant Agreement Dated October 24, 1996 27 105K
4: EX-4.4 Amendment to Warrant Agreement 2 13K
5: EX-4.8 Class B Warrant Certificate 6 23K
8: EX-5.1 Opinion of Irell & Manella, LLP 1 11K
14: EX-10.10 Office Lease 56 169K
15: EX-10.11 Single Tenant Lease 47 157K
16: EX-10.14 Strategic Alliance Agreement 69 264K
17: EX-10.15 Registration Rights Agreement 16 71K
18: EX-10.16 Amendment to Shareholders' Agreement 4 19K
19: EX-10.17 Agreement - Donald H. Goldman 9 46K
9: EX-10.2 Severance Agreement - Steven Fieldman 9 46K
10: EX-10.4 Employment Agreement - John Alderfer 15 68K
11: EX-10.5 Severance Agreement - Lance Fieldman 9 47K
12: EX-10.7 Amended Intellectual Property License 8 31K
13: EX-10.9 Sublease and Consent 9 46K
20: EX-23.2 Consent of Kpmg Peat Marwick 1 9K
21: EX-23.3 Consent of Richard Eisner 1 9K
22: EX-23.5 Consent of John Pritzker 1 9K
23: EX-23.6 Consent of Adam Aron 1 9K
24: EX-99.1 Letter of Transmittal 21 77K
EXHIBIT 10.10
OFFICE LEASE
THIS LEASE made as of the _____ day of July, 1996 between AGF 4041 LIMITED
PARTNERSHIP, a Texas Limited Partnership ("Landlord") and INTERACTIVE FLIGHT
TECHNOLOGIES, INC., a Delaware corporation whose address is 3070 West Post Road,
Las Vegas, Nevada 89118 (address of principal executive offices of Tenant
("Tenant").
WITNESSETH:
ARTICLE 1
PREMISES AND TERM
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
that certain space known as Suite(s) 2000 ("Premises") described or shown on
Exhibit A attached hereto. In the building known as the 4041 Central Plaza
("Building") located at 4041 North Central Avenue, Phoenix, Arizona 85012
("Property", as further described in Article 25), subject to the provisions
herein contained. The term ("Term") of this Lease shall commence on the 15th day
of July, 1996 ("Commencement Date"), and end on the 31st day of July, 1999
("Expiration Date"), unless sooner terminated as provided herein. The
Commencement Date shall be subject to adjustment as provided in Article 4.
Landlord and Tenant agree that for purposes of this Lease the rentable area of
the Premises is 15,591 square feet and the rentable area of the Property is
392,123 square feet.
ARTICLE 2
BASE RENT
Tenant shall pay Landlord monthly Base Rent of Twenty Two Thousand Seven
Hundred Thirty Six and 88/100 Dollars ($22,736.88), in advance on or before the
first day of each calendar month during the Term, except that Base Rent for the
first full calendar month for which Base Rent shall be due, shall be paid when
Tenant executes this Lease. If the Term commences on a day other than the first
day of a calendar month, or ends on a day other than the last day of a calendar
month, then the Base Rent for such month shall be prorated on the basis of
1/30th of the monthly Base Rent for each day of such month.
ARTICLE 3
Additional Rent
(A) TAXES. Tenant shall pay Landlord an amount equal to Tenant's Prorata
Share of Taxes in excess of the amount of Taxes paid by Landlord during the
calendar year 1996 ("Base Tax Year"). The terms "Taxes" and "Tenant's Prorata
Share" shall have the meanings specified therefor in Article 25.
(B) OPERATING EXPENSES. Tenant shall pay Landlord an amount equal to
Tenant's Prorata Share of Operating Expenses in excess of the amount of
Operating Expenses paid by Landlord during the calendar year 1996 ("Base Expense
Year"). The terms "Operating Expenses" and "Tenant's Prorata Share" shall have
the meanings specified therefor in Article 25.
(C) [INTENTIONALLY LEFT BLANK]
(D) MANNER OF PAYMENT. Taxes and Operating Expenses shall be paid in the
following manner:
(i) Landlord may reasonably estimate in advance the amounts Tenant shall
owe for Taxes and Operating Expenses for any full or partial calendar year of
the Term. In such event, Tenant shall pay such estimated amounts on a monthly
basis, on or before the first day of each calendar month, together with Tenant's
payment of Base Rent. Such estimate may be reasonably adjusted from time to time
by Landlord.
(ii) Within 120 days after the end of each calendar year, or as soon
thereafter as practicable, Landlord shall provide a statement (the "Statement")
to Tenant showing: (a) the amount of actual Taxes and Operating Expenses for
such calendar year, with a listing of amounts for major categories of Operating
Expenses, and such amounts for the Base Years, (b) any amount paid by Tenant
towards Taxes and Operating Expenses during such calendar year on an estimated
basis, (c) any revised estimate of Tenant's obligations for Taxes and Operating
Expenses for the current calendar year, and;
(iii) If the Statement shows that Tenant's estimated payments were less
than Tenant's actual obligations for Taxes and Operating Expenses for such year,
Tenant shall pay the difference. If the Statement shows an increase in Tenant's
estimated payments for the current calendar year, Tenant shall pay the
difference between the new and former estimates for the period from January 1 of
the current calendar year through the month in which the Statement is sent.
Tenant shall make such payments within thirty (30) days after Landlord sends the
Statement.
(iv) If the Statement shows that Tenant's estimated payments exceeded
Tenant's actual obligations for Taxes and
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Operating Expenses, Tenant shall receive a credit for the difference against
payments of Rent next due. If the Term shall have expired and no further Rent
shall be due, Tenant shall receive a refund of such difference within thirty
(30) days after Landlord sends the Statement.
(v) [INTENTIONALLY LEFT BLANK]
(vi) So long as Tenant's obligations hereunder are not materially adversely
affected thereby, Landlord reserves the right to reasonably change, from time to
time, the manner or timing of the foregoing payments. In lieu of providing one
Statement covering Taxes and Operating Expenses, Landlord may provide separate
statements, at the same or different times. No delay by Landlord in providing
the Statement (or separate statements) shall be deemed a default by Landlord or
a waiver of Landlord's right to require payment of Tenant's obligations for
actual or estimated Taxes or Operating Expenses. In no event shall a decrease in
Taxes or Operating Expenses below the Base Year amounts ever decrease the
monthly Base Rent, or give rise to a credit in favor of Tenant.
(E) PRORATION. If the Term commences other than on January 1, or ends
other than on December 31, Tenant's obligations to pay estimated and actual
amounts towards Taxes and Operating Expenses for such first or final calendar
years shall be prorated to reflect the portion of such years included in the
Term. Such proration shall be made by multiplying the total estimated or actual
(as the case may be) Taxes and Operating Expenses, for such calendar years, as
well as the Base Year amounts, by a fraction, the numerator of which shall be
the number of days of the Term during such calendar year, and the denominator of
which shall be 365.
(F) LANDLORD'S RECORDS. Landlord shall maintain records respecting Taxes
and Operating Expenses and determine the same in accordance with sound
accounting and management practices, consistently applied. Although this Lease
contemplates the computation of Taxes and Operating Expenses on a cash basis,
Landlord shall make reasonable and appropriate accrual adjustments to ensure
that each calendar year, including the Base Years, includes substantially the
same recurring items. Landlord reserves the right to change to a full accrual
system of accounting so long as the same is consistently applied and Tenant's
obligations are not materially adversely affected. Tenant or its representative
shall have the right to examine such records upon reasonable prior notice
specifying such records Tenant desires to examine during normal business hours
at the place or places where such records are normally kept by sending such
notice no later than forty-five (45) days following the furnishing of the
Statement. Tenant may take exception to matters included in Taxes or Operating
Expenses, or Landlord's computation of Tenant's Prorata Share of either, by
sending notice specifying such exception and the reasons
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therefor to Landlord no later than thirty (30) days after Landlord makes such
records available for examination. Such Statement shall be considered final,
except as to matters to which exception is taken after examination of Landlord's
records in the foregoing manner and within the foregoing times. Tenant
acknowledges that Landlord's ability to budget and incur expenses depends on the
finality of such Statement and accordingly agrees that time is of the essence of
this Paragraph. If Tenant takes exception to any matter contained in the
Statement as provided herein, Landlord shall refer the matter to an independent
certified public accountant, whose certification as to the proper amount shall
be final and conclusive as between Landlord and Tenant. Tenant shall promptly
pay the cost of such certification unless such certification determines that
Tenant was overbilled by more than 2%. Pending resolution of any such
exceptions in the foregoing manner, Tenant shall continue paying Tenant's
Prorata Share of Taxes and Operating Expenses in the amounts determined by
Landlord, subject to adjustment after any such exceptions are so resolved.
(G) RENT AND OTHER CHARGES. Base Rent, Taxes, Operating Expenses, and any
other amounts which Tenant is or becomes obligated to pay Landlord under this
Lease or other agreement entered in connection herewith, are sometimes herein
referred to collectively as "Rent," and all remedies applicable to the non-
payment of Rent shall be applicable thereto. Rent shall be paid at any office
maintained by Landlord or its agent at the Property, or at such other place as
Landlord may designate.
ARTICLE 4
COMMENCEMENT OF TERM
The Commencement Date set forth in Article 1 shall be delayed and Rent
shall be abated to the extent that Landlord fails: (i) to substantially complete
any improvements to the Premises required to be performed by Landlord under any
separate agreement signed by both parties, or (ii) to deliver possession of the
Premises for any other reason, including but not limited to holding over by
prior occupants, except to the extent that Tenant, its contractors, agents or
employees in any way contribute to either such failures. If Landlord so fails
for a ninety (90) day initial grace period, or such additional time as may be
necessary due to fire or other casualty, strikes, lock-outs or other labor
troubles, shortages of equipment or materials, governmental requirements, power
shortages or outages, acts or omissions of Tenant or other Persons, or other
causes beyond Landlord's reasonable control, Tenant shall have the right to
terminate this Lease by written notice to Landlord any time thereafter up until
Landlord substantially completes any such
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improvements and delivers the Premises to Tenant. Any such delay in the
Commencement Date shall not subject Landlord to liability for loss or damage
resulting therefrom, and Tenant's sole recourse with respect thereto shall be
the abatement of Rent and right to terminate this Lease described above. Upon
any such termination, Landlord and Tenant shall be entirely relieved of their
obligations hereunder, and any Security Deposit and Rent payments shall be
returned to Tenant. If the Commencement Date is delayed, the Expiration Date
shall not be similarly extended, unless Landlord shall so elect (in which case,
the parties shall confirm the same in writing). During any period that Tenant
shall be permitted to enter the Premises prior to the Commencement Date other
than to occupy the same (e.g., to perform alterations or improvements), Tenant
shall comply with all terms and provisions of this Lease, except those
provisions requiring the payment of Rent. If Tenant shall be permitted to enter
the Premises prior to the Commencement Date for the purpose of occupying the
same, Rent shall commence on such date, and if Tenant shall commence occupying
only a portion of the Premises prior to the Commencement Date, Rent shall be
prorated based on the number of rentable square feet occupied by Tenant.
Landlord shall permit early entry, provided the Premises are legally available
and Landlord has completed any work required under this Lease or any separate
agreement entered in connection herewith.
ARTICLE 5
CONDITION OF PREMISES
Tenant has inspected the Premises, Property, Systems and Equipment (as
defined in Article 25), or has had an opportunity to do so, and agrees to accept
the same "as is" without any agreements, representations, understandings or
obligations on the part of Landlord to perform any alterations, repairs or
improvements except as expressly provided in any separate agreement that may be
signed by the parties.
ARTICLE 6
USE AND RULES
Tenant shall use the Premises for offices and no other purpose whatsoever,
in compliance with all applicable Laws, and without disturbing or interfering
with any other tenant or occupant of the Property. Tenant shall not use the
Premises in any manner so as to cause a cancellation of Landlord's insurance
policies, or an increase in the premiums thereunder. Tenant shall comply with
all rules set forth in Rider One attached hereto (the "Rules"). Landlord shall
have the right
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to reasonably amend such Rules and supplement the same with other reasonable
Rules (not expressly inconsistent with this Lease) relating to the Property, or
the promotion of safety, care, cleanliness or good order therein, and all such
amendments or new Rules shall be binding upon Tenant after five (5) days notice
thereof to Tenant. All Rules shall be applied on a non-discriminatory basis,
but nothing herein shall be construed to give Tenant or any other Person (as
defined in Article 25) any claim, demand or cause of action against Landlord
arising out of the violation of such Rules by any other tenant, occupant or
visitor of the Property, or out of the enforcement or waiver of the Rules by
Landlord in any particular instance.
ARTICLE 7
SERVICES AND UTILITIES
Landlord shall provide the following services and utilities (the cost of
which shall be included in Operating Expenses unless otherwise stated herein or
in any separate rider hereto):
(A) Electricity for standard office lighting fixtures, and equipment and
accessories customary for offices (up to 280 hours per month) where: (1) the
connected electrical load of all of the same does not exceed an average of 4
watts per square foot of the Premises (or such lesser amount as may be
available, based on the safe and lawful capacity of the existing electrical
circuit(s) and facilities serving the Premises), (2) the electricity will be at
nominal 120 volts, single phase (or 110 volts, depending on available service in
the Building), and (3) the safe and lawful capacity of the existing electrical
circuit(s) serving the Premises is not exceeded.
(B) Heat and air-conditioning to provide a temperature required, in
Landlord's reasonable opinion and in accordance with applicable Law, for
occupancy of the Premises under normal business operations, from 8:00 a.m. until
6:00 p.m. Monday through Friday and Saturdays from 8:00 a.m. until 1:00 p.m.
except on Holidays (as defined in Article 25). Landlord shall not be responsible
for inadequate air-conditioning or ventilation to the extent the same occurs
because Tenant uses any item of equipment consuming more than 500 watts at rated
capacity without providing adequate air-conditioning and ventilation therefor.
(C) Water for drinking, lavatory and toilet purposes at those points of
supply provided for nonexclusive general use of other tenants at the Property.
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(D) Customary office cleaning and trash removal service Monday through
Friday or Sunday through Thursday in and about the Premises.
(E) Operatorless passenger elevator service (if the Property has such
equipment serving the Premises) and freight elevator service (if the Property
has such equipment serving the Premises, and subject to scheduling by Landlord)
in common with Landlord and other tenants and their contractors, agents and
visitors.
(F) Landlord shall seek to provide such extra utilities or services as
Tenant may from time to time request, if the same are reasonable and feasible
for Landlord to provide and do not involve modifications or additions to the
Property or existing Systems and Equipment (as defined in Article 25), and if
Landlord shall receive Tenant's request within a reasonable period prior to the
time such extra utilities or services are required. Landlord may comply with
written or oral requests by any officer or employee of Tenant, unless Tenant
shall notify Landlord of, or Landlord shall request, the names of authorized
individuals (up to 3 for each floor on which the Premises are located) and
procedures for written requests. Tenant shall, for such extra utilities or
services, pay such charges as Landlord shall from time to time reasonably
establish. All charges for such extra utilities or services shall be due at the
same time as the installment of Base Rent with which the same are billed, or if
billed separately, shall be due within twenty (20) days after such billing.
Landlord may install and operate meters or any other reasonable system for
monitoring or estimating any services or utilities used by Tenant in excess of
those required to be provided by Landlord under this Article (including a system
for Landlord's engineer to reasonably estimate any such excess usage). If such
system indicates such excess services or utilities, Tenant shall pay Landlord's
reasonable charges for installing and operating such system and any
supplementary air-conditioning, ventilation, heat, electrical or other systems
or equipment (or adjustments or modifications to the existing Systems and
Equipment), and Landlord's reasonable charges for such amount of excess services
or utilities used by Tenant.
Landlord does not warrant that any services or utilities will be free from
shortages, failures, variations, or interruptions caused by repairs,
maintenance, replacements, improvements, alterations, changes of service,
strikes, lockouts, labor controversies, accidents, inability to obtain services,
fuel, steam, water or supplies, governmental requirements or requests, or other
causes beyond Landlord's reasonable control. None of the same shall be deemed an
eviction or disturbance of Tenant's use and possession of the Premises or any
part thereof, or render Landlord liable to
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Tenant for abatement of Rent, or relieve Tenant from performance of Tenant's
obligations under this Lease. Landlord in no event shall be liable for damages
by reason of loss of profits, business interruption or other consequential
damages.
ARTICLE 8
ALTERATIONS AND LIENS
Tenant shall make no additions, changes, alterations or improvements (the
"Work") to the Premises or the Systems and Equipment (as defined in Article 25)
pertaining to the Premises without the prior written consent of Landlord.
Landlord may impose reasonable requirements as a condition of such consent
including without limitation the submission of plans and specifications for
Landlord's prior written approval, obtaining necessary permits, posting bonds,
obtaining insurance, prior approval of contractors, subcontractors and
suppliers, prior receipt of copies of all contracts and subcontracts, contractor
and subcontractor lien waivers, affidavits listing all contractors,
subcontractors and suppliers, use of union labor (if Landlord uses union labor),
affidavits from engineers acceptable to Landlord stating that the Work will not
adversely affect the Systems and Equipment or the structure of the Property, and
requirements as to the manner and times in which such Work shall be done. All
Work shall be performed in a good and workmanlike manner and all materials used
shall be of a quality comparable to or better than those in the Premises and
Property and shall be in accordance with plans and specifications approved by
Landlord, and Landlord may require that all such Work be performed under
Landlord's supervision. In all cases, Tenant shall pay Landlord a reasonable fee
to cover Landlord's overhead in reviewing Tenant's plans and specifications and
performing any supervision of the Work. If Landlord consents or supervises, the
same shall not be deemed a warranty as to the adequacy of the design,
workmanship or quality of materials, and Landlord hereby expressly disclaims any
responsibility or liability for the same. Landlord shall under no circumstances
have any obligation to repair, maintain or replace any portion of the Work.
Tenant shall keep the Property and Premises free from any mechanic's,
materialman's or similar liens or other such encumbrances in connection with any
Work on or respecting the Premises not performed by or at the request of
Landlord, and shall indemnify and hold Landlord harmless from and against any
claims, liabilities, judgments, or costs (including attorneys' fees) arising out
of the same or in connection therewith. Tenant shall give Landlord notice at
least twenty (20) days prior to the commencement of any Work on the Premises (or
such additional time as may be necessary under
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applicable Laws), to afford Landlord the opportunity of posting and recording
appropriate notices of non-responsibility. Tenant shall remove any such lien or
encumbrance by bond or otherwise within thirty (30) days after written notice by
Landlord, and if Tenant shall fail to do so, Landlord may pay the amount
necessary to remove such lien or encumbrance, without being responsible for
investigating the validity thereof. The amount so paid shall be deemed
additional Rent under this Lease payable upon demand, without limitation as to
other remedies available to Landlord under this Lease. Nothing contained in this
Lease shall authorize Tenant to do any act which shall subject Landlord's title
to the Property or Premises to any liens or encumbrances whether claimed by
operation of law or express or implied contract. Any claim to a lien or
encumbrance upon the Property or Premises arising in connection with any Work on
or respecting the Premises not performed by or at the request of Landlord shall
be null and void, or at Landlord's option shall attach only against Tenant's
interest in the Premises and shall in all respects be subordinate to Landlord's
title to the Property and Premises.
ARTICLE 9
REPAIRS
Except for customary cleaning and trash removal provided by Landlord under
Article 7, and damage covered under Article 10, Tenant shall keep the Premises
in good and sanitary condition, working order and repair (including without
limitation, carpet, wall-covering, doors, plumbing and other fixtures,
equipment, alterations and improvements whether installed by Landlord or
Tenant). In the event that any repairs, maintenance or replacements are
required, Tenant shall promptly arrange for the same either through Landlord for
such reasonable charges as Landlord may from time to time establish, or such
contractors as Landlord generally uses at the Property or such other contractors
as Landlord shall first approve in writing, and in a first class, workmanlike
manner approved by Landlord in advance in writing. If Tenant does not promptly
make such arrangements, Landlord may, but need not, make such repairs,
maintenance and replacements, and the costs paid or incurred by Landlord
therefor shall be reimbursed by Tenant promptly after request by Landlord.
Tenant shall indemnify Landlord and pay for any repairs, maintenance and
replacements to areas of the Property outside the Premises, caused, in whole or
in part, as a result of moving any furniture, fixtures, or other property to or
from the Premises, or by Tenant or its employees, agents, contractors, or
visitors (notwithstanding anything to the contrary contained in this Lease).
Except as provided in the preceding sentence, or for damage covered under
Article 10, Landlord shall keep the common areas of the Property in good
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and sanitary condition, working order and repair (the cost of which shall be
included in Operating Expenses, as described in Article 25, except as limited
therein).
ARTICLE 10
CASUALTY DAMAGE
If the Premises or any common areas of the Property providing access
thereto shall be damaged by fire or other casualty, Landlord shall use available
insurance proceeds to restore the same. Such restoration shall be to
substantially the condition prior to the casualty, except for modifications
required by zoning and building codes and other Laws or by any Holder (as
defined in Article 25), any other modifications to the common areas deemed
desirable by Landlord (provided access to the Premises is not materially
impaired), and except that Landlord shall not be required to repair or replace
any of Tenant's furniture, furnishings, fixtures or equipment, or any
alterations or improvements in excess of any work performed or paid for by
Landlord under any separate agreement signed by the parties in connection
herewith. Landlord shall not be liable for any inconvenience or annoyance to
Tenant or its visitors, or injury to Tenant's business resulting in any way from
such damage or the repair thereof. However, Landlord shall allow Tenant a
proportionate abatement of Rent during the time and to the extent the Premises
are unfit for occupancy for the purposes permitted under this Lease and not
occupied by Tenant as a result thereof (unless Tenant or its employees or agents
caused the damage). Notwithstanding the foregoing to the contrary, Landlord may
elect to terminate this Lease by notifying Tenant in writing of such termination
within sixty (60) days after the date of damage (such termination notice to
include a termination date providing at least ninety (90) days for Tenant to
vacate the Premises), if the Property shall be materially damaged by Tenant or
its employees or agents, or if the Property shall be damaged by fire or other
casualty or cause such that: (a) repairs to the Premises and access thereto
cannot reasonably be completed within 120 days after the casualty without the
payment of overtime or other premiums, (b) more than 25% of the Premises is
affected by the damage, and fewer than 24 months remain in the Term, or any
material damage occurs to the Premises during the last 12 months of the Term,
(c) any Holder (as defined in Article 25) shall require that the insurance
proceeds or any portion thereof be used to retire the Mortgage debt (or shall
terminate the ground lease, as the case may be), or the damage is not fully
covered by Landlord's insurance policies, or (d) the cost of the repairs,
alterations, restoration or improvement work would exceed 25% of the replacement
value of the Building, or the nature of such work would make termination of this
Lease necessary or convenient. Tenant agrees that Landlord's obligation to
restore, and the abatement of Rent provided herein, shall be Tenant's sole
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recourse in the event of such damage, and waives any other rights Tenant may
have under any applicable Law to terminate the Lease by reason of damage to the
Premises or Property. Tenant acknowledges that this Article represents the
entire agreement between the parties respecting damage to the Premises or
Property.
ARTICLE 11
INSURANCE, SUBROGATION, AND WAIVER OF CLAIMS
Tenant shall maintain during the Term comprehensive (or commercial) general
liability insurance, with limits of not less than $1,000,000 combined single
limit for personal injury, bodily injury or death, or property damage or
destruction (including loss of use thereof) for any one occurrence. Tenant shall
also maintain during the Term worker compensation insurance as required by
statute, and primary, noncontributory, "all-risk" property damage insurance
covering Tenant's personal property, business records, fixtures and equipment,
for damage or other loss caused by fire or other casualty or cause including,
but not limited to, vandalism and malicious mischief, theft, water damage of any
type, including sprinkler leakage, bursting or stoppage of pipes, explosion,
business interruption, and other insurable risks in amounts not less than the
full insurable replacement value of such property and full insurable value of
such other interests of Tenant (subject to reasonable deductible amounts).
Landlord shall, as part of Operating Expenses, maintain during the Term
comprehensive (or commercial) general liability insurance, with limits of not
less than $1,000,000 combined single limit for personal injury, bodily injury or
death, or property damage or destruction (including loss of use thereof) for any
one occurrence. Landlord shall also, as part of Operating Expenses, maintain
during the Term worker compensation insurance as required by statute, and
primary, non-contributory, extended coverage or "all-risk" property damage
insurance, in an amount equal to at least ninety percent (90%) of the full
insurable replacement value of the Property (exclusive of the costs of
excavation, foundations and footings, and such risks required to be covered by
Tenant's insurance, and subject to reasonable deductible amounts), or such other
amount necessary to prevent Landlord from being a co-insured, and such other
coverage as Landlord shall deem appropriate or that may be required by any
Holder (as defined in Article 25).
Tenant shall provide Landlord with certificates evidencing such coverage
(and, with respect to liability coverage, showing Landlord and EAGLE WESTERN
MGMT. as additional insureds) prior to the Commencement Date, which shall state
that such insurance coverage may not be changed or cancelled without at least
twenty (20) days' prior written
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notice to Landlord, and shall provide renewal certificates to Landlord at least
twenty (20) days prior to expiration of such policies. Landlord may
periodically, but not more often than every five years, require that Tenant
reasonably increase the aforementioned coverage. Except as provided to the
contrary herein, any insurance carried by Landlord or Tenant shall be for the
sole benefit of the party carrying such insurance. Any insurance policies
hereunder may be "blanket policies." All insurance required hereunder shall be
provided by responsible insurers and Tenant's insurer shall be reasonably
acceptable to Landlord. By this Article, Landlord and Tenant intend that their
respective property loss risks shall be borne by responsible insurance carriers
to the extent above provided, and Landlord and Tenant hereby agree to look
solely to, and seek recovery only from, their respective insurance carriers in
the event of a property loss to the extent that such coverage is agreed to be
provided hereunder. The parties each hereby waive all rights and claims against
each other for such losses, and waive all rights of subrogation of their
respective insurers, provided such waiver of subrogation shall not affect the
right of the insured to recover thereunder. The parties agree that their
respective insurance policies are now, or shall be, endorsed such that said
waiver of subrogation shall not affect the right of the insured to recover
thereunder, so long as no material additional premium is charged therefor.
ARTICLE 12
CONDEMNATION
If the whole or any material part of the Premises or Property shall be
taken by power of eminent domain or condemned by any competent authority for any
public or quasi-public use or purpose, or if any adjacent property or street
shall be so taken or condemned, or reconfigured or vacated by such authority in
such manner as to require the use, reconstruction or remodeling of any part of
the Premises or Property, or if Landlord shall grant a deed or other instrument
in lieu of such taking by eminent domain or condemnation, Landlord shall have
the option to terminate this Lease upon ninety (90) days notice, provided such
notice is given no later than 180 days after the date of such taking,
condemnation, reconfiguration, vacation, deed or other instrument. Tenant shall
have reciprocal termination rights if the whole or any material part of the
Premises is permanently taken, or if access to the Premises is permanently
materially impaired. Landlord shall be entitled to receive the entire award or
payment in connection therewith, except that Tenant shall have the right to file
any separate claim available to Tenant for any taking of Tenant's personal
property and fixtures belonging to Tenant and removable by Tenant upon
expiration of the Term, and for moving expenses
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(so long as such claim does not diminish the award available to Landlord or any
Holder, and such claim is payable separately to Tenant). All Rent shall be
apportioned as of the date of such termination, or the date of such taking,
whichever shall first occur. If any part of the Premises shall be taken, and
this Lease shall not be so terminated, the Rent shall be proportionately abated.
ARTICLE 13
RETURN OF POSSESSION
At the expiration or earlier termination of this Lease or Tenant's right of
possession, Tenant shall surrender possession of the Premises in the condition
required under Article 9, ordinary wear and tear excepted, and shall surrender
all keys, any key cards, and any parking stickers or cards, to Landlord, and
advise Landlord as to the combination of any locks or vaults then remaining in
the Premises, and shall remove all trade fixtures and personal property. All
improvements, fixtures and other items in or upon the Premises (except trade
fixtures and personal property belonging to Tenant), whether installed by Tenant
or Landlord, shall be Landlord's property and shall remain upon the Premises,
all without compensation, allowance or credit to Tenant. However, if prior to
such termination or within ten (10) days thereafter Landlord so directs by
notice, Tenant shall promptly remove such of the foregoing items as are
designated in such notice and restore the Premises to the condition prior to the
installation of such items; provided, Landlord shall not require removal of
customary office improvements installed pursuant to any separate agreement
signed by both parties in connection with entering this Lease (except as
expressly provided to the contrary therein), or installed by Tenant with
Landlord's written approval (except as expressly required by Landlord in
connection with granting such approval). If Tenant shall fail to perform any
repairs or restoration, or fail to remove any items from the Premises required
hereunder, Landlord may do so, and Tenant shall pay Landlord the cost thereof
upon demand. All property removed from the Premises by Landlord pursuant to any
provisions of this Lease or any Law may be handled or stored by Landlord at
Tenant's expense, and Landlord shall in no event be responsible for the value,
preservation or safekeeping thereof. All property not removed from the Premises
or retaken from storage by Tenant within thirty (30) days after expiration or
earlier termination of this Lease or Tenant's right to possession, shall at
Landlord's option be conclusively deemed to have been conveyed by Tenant to
Landlord as if by bill of sale without payment by Landlord. Unless prohibited by
applicable Law, Landlord shall have a lien against such property for the costs
incurred in removing and storing the same.
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ARTICLE 14
HOLDING OVER
Unless Landlord expressly agrees otherwise in writing, Tenant shall pay
Landlord 150% of the amount of Rent then applicable (or the highest amount
permitted by Law, whichever shall be less) prorated on per diem basis for each
day Tenant shall retain possession of the Premises or any part thereof after
expiration or earlier termination of this Lease, together with all damages
sustained by Landlord on account thereof. The foregoing provisions shall not
serve as permission for Tenant to hold-over, nor serve to extend the Term
(although Tenant shall remain bound to comply with all provisions of this Lease
until Tenant vacates the Premises, and shall be subject to the provisions of
Article 13). Notwithstanding the foregoing to the contrary, at any time before
or after expiration or earlier termination of the Lease, Landlord may serve
notice advising Tenant of the amount of Rent and other terms required, should
Tenant desire to enter a month-to-month tenancy (and if Tenant shall hold over
more than one full calendar month after such notice, Tenant shall thereafter be
deemed a month-to-month tenant, on the terms and provisions of this Lease then
in effect, as modified by Landlord's notice, and except that Tenant shall not be
entitled to any renewal or expansion rights contained in this Lease or any
amendments hereto).
ARTICLE 15
NO WAIVER
No provision of this Lease will be deemed waived by either party unless
expressly waived in writing signed by the waiving party. No waiver shall be
implied by delay or any other act or omission of either party. No waiver by
either party of any provision of this Lease shall be deemed a waiver of such
provision with respect to any subsequent matter relating to such provision, and
Landlord's consent or approval respecting any action by Tenant shall not
constitute a waiver of the requirement for obtaining Landlord's consent or
approval respecting any subsequent action. Acceptance of Rent by Landlord shall
not constitute a waiver of any breach by Tenant of any term or provision of this
Lease. No acceptance of a lesser amount than the Rent herein stipulated shall be
deemed a waiver of Landlord's right to receive the full amount due, nor shall
any endorsement or statement on any check or payment or any letter accompanying
such check or payment be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the full amount due. The acceptance of Rent or of the performance of any other
term or provision from any Person other than Tenant, including any Transferee,
shall not
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constitute a waiver of Landlord's right to approve any Transfer.
ARTICLE 16
ATTORNEYS' FEES AND JURY TRIAL
In the event of any litigation between the parties, the prevailing party
shall be entitled to obtain, as part of the judgment, all reasonable attorneys'
fees, costs and expenses incurred in connection with such litigation, except as
may be limited by applicable Law. In the interest of obtaining a speedier and
less costly hearing of any dispute, the parties hereby each irrevocably waive
the right to trial by jury.
ARTICLE 17
PERSONAL PROPERTY TAXES, RENT TAXES AND OTHER TAXES
Tenant shall pay prior to delinquency all taxes, charges or other
governmental impositions assessed against or levied upon Tenant's fixtures,
furnishings, equipment and personal property located in the Premises, and any
Work to the Premises under Article 8. Whenever possible, Tenant shall cause all
such items to be assessed and billed separately from the property of Landlord.
In the event any such items shall be assessed and billed with the property of
Landlord, Tenant shall pay Landlord its share of such taxes, charges or other
governmental impositions within thirty (30) days after Landlord delivers a
statement and a copy of the assessment or other documentation showing the amount
of such impositions applicable to Tenant's property. Tenant shall pay any rent
tax or sales tax, service tax, transfer tax or value added tax, or any other
applicable tax on the Rent or services herein or otherwise respecting this
Lease.
ARTICLE 18
REASONABLE APPROVALS
Whenever Landlord's approval or consent is expressly required under this
Lease (including Article 21) or any other agreement between the parties,
Landlord shall not unreasonably withhold or delay such approval or consent
(reasonableness shall be a condition to Landlord's enforcement of such consent
or approval requirement, and not a covenant), except for matters affecting the
structure, safety or security of the Property, or the appearance of the Property
from any common or public areas.
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ARTICLE 19
SUBORDINATION, ATTORNMENT AND MORTGAGEE PROTECTION
This Lease is subject and subordinate to all Mortgages (as defined in
Article 25) now or hereafter placed upon the Property, and all other
encumbrances and matters of public record applicable to the Property. If any
foreclosure proceedings are initiated by any Holder or a deed in lieu is granted
(or if any ground lease is terminated), Tenant agrees, upon written request of
any such Holder or any purchaser at foreclosure sale, to attorn and pay Rent to
such party and to execute and deliver any instruments necessary or appropriate
to evidence or effectuate such attornment (provided such Holder or purchaser
shall agree to accept this Lease and not disturb Tenant's occupancy, so long as
Tenant does not default and fail to cure within the time permitted hereunder).
However, in the event of attornment, no Holder shall be: (i) liable for any act
or omission of Landlord, or subject to any offsets or defenses which Tenant
might have against Landlord (prior to such Holder becoming Landlord under such
attornment), (ii) liable for any security deposit or bound by any prepaid Rent
not actually received by such Holder, or (iii) bound by any future modification
of this Lease not consented to by such Holder. Any Holder (as defined in Article
25) may elect to make this Lease prior to the lien of its Mortgage, by written
notice to Tenant, and if the Holder of any prior Mortgage shall require, this
Lease shall be prior to any subordinate Mortgage. Tenant agrees to give any
Holder by certified mail, return receipt requested, a copy of any notice of
default served by Tenant upon Landlord, provided that prior to such notice
Tenant has been notified in writing (by way of service on Tenant of a copy of an
assignment of leases, or otherwise) of the address of such Holder. Tenant
further agrees that if Landlord shall have failed to cure such default within
the times permitted Landlord for cure under this Lease, any such Holder whose
address has been provided to Tenant shall have an additional period of thirty
(30) days in which to cure (or such additional time as may be required due to
causes beyond such Holder's control, including time to obtain possession of the
Property by power of sale or judicial action). Tenant shall execute such
documentation as Landlord may reasonably request from time to time, in order to
confirm the matters set forth in this Article in recordable form.
ARTICLE 20
ESTOPPEL CERTIFICATE
Tenant shall from time to time, within twenty (20) days after written
request from Landlord, execute, acknowledge and deliver a statement (i)
certifying that this Lease is unmodified and in full force and effect or, if
modified,
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stating the nature of such modification and certifying that this Lease as so
modified, is in full force and effect (or if this Lease is claimed not to be in
force and effect, specifying the ground therefor) and any dates to which the
Rent has been paid in advance, and the amount of any Security Deposit, (ii)
acknowledging that there are not, to Tenant's knowledge, any uncured defaults on
the part of Landlord hereunder, or specifying such defaults if any are claimed,
and (iii) certifying such other matters as Landlord may reasonably request, or
as may be requested by Landlord's current or prospective Holders, insurance
carriers, auditors, and prospective purchasers. Any such statement may be
relied upon by any such parties. If Tenant shall fail to execute and return
such statement within the time required herein, Tenant shall be deemed to have
agreed with the matters set forth therein.
ARTICLE 21
ASSIGNMENT AND SUBLETTING
(A) TRANSFERS. Tenant shall not, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, as further described
below: (i) assign, mortgage, pledge, hypothecate, encumber, or permit any lien
to attach to, or otherwise transfer, this Lease or any interest hereunder, by
operation of law or otherwise, (ii) sublet the Premises or any part thereof, or
(iii) permit the use of the Premises by any Persons (as defined in Article 25)
other than Tenant and its employees (all of the foregoing are hereinafter
sometimes referred to collectively as "Transfers" and any Person to whom any
Transfer is made or sought to be made is hereinafter sometimes referred to as a
"Transferee"). If Tenant shall desire Landlord's consent to any Transfer, Tenant
shall notify Landlord in writing, which notice shall include: (a) the proposed
effective date (which shall not be less than 30 nor more than 180 days after
Tenant's notice), (b) the portion of the Premises to be Transferred (herein
called the "Subject Space"), (c) the terms of the proposed Transfer and the
consideration therefor, the name and address of the proposed Transferee, and a
copy of all documentation pertaining to the proposed Transfer, and (d) current
financial statements of the proposed Transferee certified by an officer, partner
or owner thereof, and any other information to enable Landlord to determine the
financial responsibility, character, and reputation of the proposed Transferee,
nature of such Transferee's business and proposed use of the Subject Space, and
such other information as Landlord may reasonably require. Any Transfer made
without complying with this Article shall, at Landlord's option, be null, void
and of no effect, or shall constitute a Default under this Lease. Whether or not
Landlord shall grant consent, Tenant shall pay $300.00 towards Landlord's review
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and processing expenses, as well as any reasonable legal fees incurred by
Landlord, within thirty (30) days after written request by Landlord.
(B) APPROVAL. Landlord will not unreasonably withhold its consent (as
provided in Article 18) to any proposed Transfer of the Subject Space to the
Transferee on the terms specified in Tenant's notice. The parties hereby agree
that it shall be reasonable under this Lease and under any applicable Law for
Landlord to withhold consent to any proposed Transfer where one or more of the
following applies (without limitation as to other reasonable grounds for
withholding consent): (i) the Transferee is of a character or reputation or
engaged in a business which is not consistent with the quality of the Property,
or would be a significantly less prestigious occupant of the Property than
Tenant, (ii) the Transferee intends to use the Subject Space for purposes which
are not permitted under this Lease, (iii) the Subject Space is not regular in
shape with appropriate means of ingress and egress suitable for normal renting
purposes, (iv) the Transferee is either a government (or agency or
instrumentality thereof) or an occupant of the Property, (v) the proposed
Transferee does not have a reasonable financial condition in relation to the
obligations to be assumed in connection with the Transfer, or (vi) Tenant has
committed and failed to cure a Default at the time Tenant requests consent to
the proposed Transfer.
(C) TRANSFER PREMIUM. If Landlord consents to a Transfer, and as a
condition thereto which the parties hereby agree is reasonable, Tenant shall pay
Landlord fifty percent (50%) of any Transfer Premium derived by Tenant from such
Transfer. "Transfer Premium" shall mean all rent, additional rent or other
consideration paid by such Transferee in excess of the Rent payable by Tenant
under this Lease (on a monthly basis during the Term, and on a per rentable
square foot basis, if less than all of the Premises is transferred), after
deducting the reasonable expenses incurred by Tenant for any changes,
alterations and improvements to the Premises, any other economic concessions or
services provided to the Transferee, and any customary brokerage commissions
paid in connection with the Transfer. If part of the consideration for such
Transfer shall be payable other than in cash, Landlord's share of such non-cash
consideration shall be in such form as is reasonably satisfactory to Landlord.
The percentage of the Transfer Premium due Landlord hereunder shall be paid
within ten (10) days after Tenant receives any Transfer Premium from the
Transferee.
(D) RECAPTURE. Notwithstanding anything to the contrary contained in
this Article, Landlord shall have the option, by giving written notice to Tenant
within thirty (30) days after receipt of Tenant's notice of any proposed
Transfer, to recapture the Subject Space. Such recapture notice shall
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cancel and terminate this Lease with respect to the Subject Space as of the date
stated in Tenant's notice as the effective date of the proposed Transfer (or at
Landlord's option, shall cause the Transfer to be made to Landlord or its agent,
in which case the parties shall execute the Transfer documentation promptly
thereafter). If this Lease shall be cancelled with respect to less than the
entire Premises, the Rent reserved herein shall be prorated on the basis of the
number of rentable square feet retained by Tenant in proportion to the number of
rentable square feet contained in the Premises, this Lease as so amended shall
continue thereafter in full force and effect, and upon request of either party,
the parties shall execute written confirmation of the same.
(E) TERMS OF CONSENT. If Landlord consents to a Transfer: (a) the
terms and conditions of this Lease, including among other things, Tenant's
liability for the Subject Space, shall in no way be deemed to have been waived
or modified, (b) such consent shall not be deemed consent to any further
Transfer by either Tenant or a Transferee, (c) no Transferee shall succeed to
any rights provided in this Lease or any amendment hereto to extend the Term of
this Lease, expand the Premises, or lease additional space, any such rights
being deemed personal to Tenant, (d) Tenant shall deliver to Landlord promptly
after execution, an original executed copy of all documentation pertaining to
the Transfer in form reasonably acceptable to Landlord, and (e) Tenant shall
furnish upon Landlord's request a complete statement, certified by an
independent certified public accountant, or Tenant's chief financial officer,
setting forth in detail the computation of any Transfer Premium Tenant has
derived and shall derive from such Transfer. Landlord or its authorized
representatives shall have the right at all reasonable times to audit the books,
records and papers of Tenant relating to any Transfer, and shall have the right
to make copies thereof. If the Transfer Premium respecting any Transfer shall
be found understated, Tenant shall within thirty (30) days after demand pay the
deficiency, and if understated by more than 2%, Tenant shall pay Landlord's
costs of such audit. Any sublease hereunder shall be subordinate and subject to
the provisions of this Lease, and if this Lease shall be terminated during the
term of any sublease, Landlord shall have the right to: (i) treat such sublease
as cancelled and repossess the Subject Space by any lawful means, or (ii)
require that such subtenant attorn to and recognize Landlord as its landlord
under any such sublease. If Tenant shall Default and fail to cure within the
time permitted for cure under Article 23(A), Landlord is hereby irrevocably
authorized, as Tenant's agent and attorney-in-fact, to direct any Transferee to
make all payments under or in connection with the Transfer directly to Landlord
(which Landlord shall apply towards Tenant's obligations under this Lease) until
such Default is cured.
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(F) CERTAIN TRANSFERS. For purposes of this Lease, the term
"Transfer" shall also include (a) if Tenant is a partnership, the withdrawal or
change, voluntary, involuntary or by operation of law, of a majority of the
partners, or a transfer of a majority of partnership interests, within a twelve
month period, or the dissolution of the partnership, and (b) if Tenant is a
closely held corporation (i.e., whose stock is not publicly held and not traded
through an exchange or over the counter), the dissolution, merger, consolidation
or other reorganization of Tenant, or within a twelve month period: (i) the
sale or other transfer of more than an aggregate of 50% of the voting shares of
Tenant (other than to immediate family members by reason of gift or death).
Notwithstanding the foregoing, Landlord's consent shall not be
required should more than 50% of the voting shares of Tenant be transferred in
connection with an initial public stock offering (an "IPO"). Landlord's consent
shall also not be required should more than 50% of the voting shares of Tenant
be transferred or sold in order to obtain non-IPO financing, provided that: (i)
Michail Itkis shall continue, after such transfer or sale, to be substantially
involved in and give management and direction to Tenant with respect to its day-
to-day operations and projected operations; (ii) the use of the Premises as
required by this Lease shall not be changed; and (iii) Landlord shall determine,
in its reasonable judgment based upon information provided to Landlord by Tenant
as may be requested by Landlord, that the financial condition and status of the
Tenant after such transfer or sale shall not be worsened or jeopardized so as to
cause Tenant to be or place Tenant in jeopardy of being functionally unable to
pay the rent and the other charges payable under this Lease as and when due.
ARTICLE 22
RIGHTS RESERVED BY LANDLORD
Except to the extent expressly limited herein, Landlord reserves full
rights to control the Property (which rights may be exercised without subjecting
Landlord to claims for constructive eviction, abatement of Rent, damages or
other claims of any kind), including more particularly, but without limitation,
the following rights:
(A) To change the name or street address of the Property; install and
maintain signs on the exterior and interior of the Property; retain at all
times, and use in appropriate instances, keys to all doors within and into the
Premises; grant to any Person the right to conduct any business or render any
service at the Property, whether or not it is the same or similar to the use
permitted Tenant by this Lease; and have access for Landlord and other tenants
of the
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Property to any mail chutes located on the Premises according to the rules of
the United States Postal Service.
(B) To enter the Premises at reasonable hours for reasonable purposes,
including inspection and supplying cleaning service or other services to be
provided Tenant hereunder, to show the Premises to current and prospective
mortgage lenders, ground lessors, insurers, and prospective purchasers, tenants
and brokers, at reasonable hours, and if Tenant shall abandon the Premises at
any time, or shall vacate the same during the last 3 months of the Term, to
decorate, remodel, repair, or alter the Premises.
(C) To limit or prevent access to the Property, shut down elevator
service, activate elevator emergency controls, or otherwise take such action or
preventative measures deemed necessary by Landlord for the safety of tenants or
other occupants of the Property or the protection of the Property and other
property located thereon or therein, in case of fire, invasion, insurrection,
riot, civil disorder, public excitement or other dangerous condition, or threat
thereof.
(D) To decorate and to make alterations, additions and improvements,
structural or otherwise, in or to the Property or any part thereof, and any
adjacent building, structure, parking facility, land, street or alley (including
without limitation changes and reductions in corridors, lobbies, parking
facilities and other public areas and the installation of kiosks, planters,
sculptures, displays, escalators, mezzanines, and other structures, facilities,
amenities and features therein, and changes for the purpose of connection with
or entrance into or use of the Property in conjunction with any adjoining or
adjacent building or buildings, now existing or hereafter constructed). In
connection with such matters, or with any other repairs, maintenance,
improvements or alterations, in or about the Property, Landlord may erect
scaffolding and other structures reasonably required, and during such operations
may enter upon the Premises and take into and upon or through the Premises, all
materials required to make such repairs, maintenance, alterations or
improvements, and may close public entry ways, other public areas, restrooms,
stairways or corridors.
(E) To substitute for the Premises other premises (herein referred to
as the "new premises") at the Property, or another comparable building,
provided: (i) the new premises shall be similar to the Premises in area, (ii)
Landlord shall give Tenant at least thirty (30) days' written notice before
making such change, and the parties shall execute an amendment to the Lease
confirming the change within thirty (30) days after either party shall request
the same; and (iii) if Tenant shall already have taken possession of the
Premises: (a) Landlord shall pay the direct, out-of-pocket, reasonable expenses
of Tenant in moving from the Premises to the new
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premises and improving the new premises so that they are substantially similar
to the Premises, and, (b) such move shall be made during evenings, weekends, or
otherwise so as to incur the least inconvenience to Tenant.
In connection with entering the Premises to exercise any of the
foregoing rights, Landlord shall: (a) provide reasonable advance written or
oral notice to Tenant's on-site manager or other appropriate person (except in
emergencies, or for routine cleaning or other routine matters), and (b) take
reasonable steps to minimize any interference with Tenant's business.
ARTICLE 23
LANDLORD'S REMEDIES
(A) DEFAULT. The occurrence of any one or more of the following
events shall constitute a "Default" by Tenant, which if not cured within any
applicable time permitted for cure below, shall give rise to Landlord's remedies
set forth in Paragraph (B), below: (i) failure by Tenant to make when due any
payment of Rent, unless such failure is cured within ten (10) days after notice;
(ii) failure by Tenant to observe or perform any of the terms or conditions of
this Lease to be observed or performed by Tenant other than the payment of Rent,
or as provided below, unless such failure is cured within thirty (30) days after
notice, or such shorter period expressly provided elsewhere in this Lease
(provided, if the nature of Tenant's failure is such that more time is
reasonably required in order to cure, Tenant shall not be in Default if Tenant
commences to cure within such period and thereafter reasonably seeks to cure
such failure to completion), (iii) failure by Tenant to comply with the Rules,
unless such failure is cured within five (5) days after notice (provided, if the
nature of Tenant's failure is such that more than five (5) days time is
reasonably required in order to cure, Tenant shall not be in Default if Tenant
commences to cure within such period and thereafter reasonably seeks to cure
such failure to completion); (iv) vacation of all or a substantial portion of
the Premises for more than thirty (30) consecutive days, or the failure to take
possession of the Premises within sixty (60) days after the Commencement Date;
(v) (a) making by Tenant or any guarantor of this Lease ("Guarantor") of any
general assignment for the benefit of creditors, (b) filing by or against Tenant
or any Guarantor of a petition to have Tenant or such Guarantor adjudged a
bankrupt or a petition for reorganization or arrangement under any Law relating
to bankruptcy (unless, in the case of a petition filed against Tenant or such
Guarantor, the same is dismissed within sixty (60) days), (c) appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets
located on the Premises or of Tenant's
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interest in this Lease, where possession is not restored to Tenant within thirty
(30) days, (d) attachment, execution or other judicial seizure of substantially
all of Tenant's assets located on the Premises or of Tenant's interest in this
Lease, (e) Tenant's or any Guarantor's convening of a meeting of its creditors
or any class thereof for the purpose of effecting a moratorium upon or
composition of its debts, or (f) Tenant's or any Guarantor's insolvency or
admission of an inability to pay its debts as they mature; (vi) any material
misrepresentation herein, or material misrepresentation or omission in any
financial statements or other materials provided by Tenant or any Guarantor in
connection with negotiating or entering this Lease or in connection with any
Transfer under Article 21; (vii) cancellation of any guaranty of this Lease by
any Guarantor; (viii) failure by Tenant to cure within any applicable times
permitted thereunder any default under any other lease for space at the Property
or any other buildings owned or managed by Landlord or its affiliates, now or
hereafter entered by Tenant (and any Default hereunder not cured within the
times permitted for cure herein shall, at Landlord's election, constitute a
default under any such other lease or leases). Failure by Tenant to comply with
the same term or condition of this Lease on three occasions during any twelve
month period shall cause any failure to comply with such term or condition
during the succeeding twelve month period, at Landlord's option, to constitute
an incurable Default, if Landlord has given Tenant notice of each such failure
within ten (10) days after each such failure occurs. The notice and cure
periods provided herein are in lieu of, and not in addition to, any notice and
cure periods provided by Law.
(B) REMEDIES. If a Default occurs and is not cured within any
applicable time permitted under Paragraph (A), Landlord shall have the rights
and remedies hereinafter set forth, which shall be distinct, separate and
cumulative with and in addition to any other right or remedy allowed under any
Law or other provisions of this Lease:
(i) Landlord may terminate this Lease, repossess the Premises by
detainer suit, summary proceedings or other lawful means, and recover as damages
a sum of money equal to: (a) any unpaid Rent as of the termination date
including interest at the Default Rate (as defined in Article 25), (b) any
unpaid Rent which would have accrued after the termination date through the time
of award including interest at the Default Rate, less such loss of Rent that
Tenant proves could have been reasonably avoided, (c) any unpaid Rent which
would have accrued after the time of award during the balance of the Term, less
such loss of Rent that Tenant proves could be reasonably avoided, and (d) any
other amounts necessary to compensate Landlord for all damages proximately
caused by Tenant's failure to perform its obligations under this Lease,
including without limitation all Costs of Reletting (as
-23-
defined in Paragraph F). For purposes of computing the amount of Rent herein
that would have accrued after the time of award, Tenant's Prorata Share of Taxes
and Operating Expenses, shall be projected, based upon the average rate of
increase, if any, in such items from the Commencement Date through the time of
award.
(ii) If applicable Law permits, Landlord may terminate Tenant's
right of possession and repossess the Premises by detainer suit, summary
proceedings or other lawful means, without terminating this Lease (and if such
Law permits, and Landlord shall not have expressly terminated the Lease in
writing, any termination shall be deemed a termination of Tenant's right of
possession only). In such event, Landlord may recover: (a) any unpaid Rent as of
the date possession is terminated, including interest at the Default Rate, (b)
any unpaid Rent which accrues during the Term from the date possession is
terminated through the time of award (or which may have accrued from the time of
any earlier award obtained by Landlord through the time of award), including
interest at the Default Rate, less any Net Re-Letting Proceeds (as defined in
Paragraph F) received by Landlord during such period, and less such loss of Rent
that Tenant proves could have been reasonably avoided, and (c) any other amounts
necessary to compensate Landlord for all damages proximately caused by Tenant's
failure to perform its obligations under this Lease, including without
limitation, all Costs of Reletting (as defined in Paragraph F). Landlord may
bring suits for such amounts or portions thereof, at any time or times as the
same accrue or after the same have accrued, and no suit or recovery of any
portion due hereunder shall be deemed a waiver of Landlord's right to collect
all amounts to which Landlord is entitled hereunder, nor shall the same serve as
any defense to any subsequent suit brought for any amount not theretofore
reduced to judgment.
(C) MITIGATION OF DAMAGES. As provided in Subparagraph (B), the
amounts of unpaid Rent Landlord may recover thereunder are subject to reduction
by such loss of Rent that Tenant proves could be or could have been reasonably
avoided.
(D) SPECIFIC PERFORMANCE, COLLECTION OF RENT AND ACCELERATION.
Landlord shall at all times have the rights and remedies (which shall be
cumulative with each other and cumulative and in addition to those rights and
remedies available under Paragraph (B), above or any Law or other provision of
this Lease), without prior demand or notice except as required by applicable
Law: (i) to seek any declaratory, injunctive or other equitable relief, and
specifically enforce this Lease, restrain or enjoin a violation or breach of any
provision hereof, and (ii) to sue for and collect any unpaid Rent which has
accrued. Notwithstanding anything to the contrary contained in this Lease, to
the extent not expressly prohibited by applicable
-24-
Law, in the event of any Default by Tenant not cured within any applicable time
for cure hereunder, Landlord may terminate this Lease or Tenant's right to
possession and accelerate and declare that all Rent reserved for the remainder
of the Term shall be immediately due and payable (in which event, Tenant's
Prorata Share of Taxes and Operating Expenses, for the remainder of the Term
shall be projected based upon the average rate of increase, if any, in such
items from the Commencement Date through the date of such declaration),
provided, Landlord shall, after receiving payment of the same from Tenant, be
obligated to turn over to Tenant any actual Net Re-Letting Proceeds thereafter
received during the remainder of the Term, up to the amount so received from
Tenant pursuant to this provision.
(E) LATE CHARGES AND INTEREST. Tenant shall pay, as additional Rent,
a service charge of Two Hundred Dollars ($200.00) for bookkeeping and
administrative expenses, if Rent is not received within five (5) days after its
due date. In addition, any Rent paid more than five (5) days after due shall
accrue interest from the due date at the Default Rate (as defined in Article
25), until payment is received by Landlord. Such service charge and interest
payments shall not be deemed consent by Landlord to late payments, nor a waiver
of Landlord's right to insist upon timely payments at any time, nor a waiver of
any remedies to which Landlord is entitled as a result of the late payment of
Rent.
(F) CERTAIN DEFINITIONS. "Net Re-Letting Proceeds" shall mean the
total amount of rent and other consideration paid by any Replacement Tenants,
less all Costs of Re-Letting, during a given period of time. "Costs of Re-
Letting" shall include without limitation, all reasonable costs and expenses
incurred by Landlord for any repairs, maintenance, changes, alterations and
improvements to the Premises, brokerage commissions, advertising costs,
attorneys' fees, any customary free rent periods or credits, tenant improvement
allowances, take-over lease obligations and other customary, necessary or
appropriate economic incentives reasonably required to enter leases with
Replacement Tenants, and costs of collecting rent from Replacement Tenants.
"Replacement Tenants" shall mean any Persons (as defined in Article 25) to whom
Landlord re-lets the Premises or any portion thereof pursuant to this Article.
(G) OTHER MATTERS. No re-entry or repossession, repairs, changes,
alterations and additions, reletting, acceptance of keys from Tenant, or any
other action or omission by Landlord shall be construed as an election by
Landlord to terminate this Lease or Tenant's right to possession, or accept a
surrender of the Premises, nor shall the same operate to release the Tenant in
whole or in part from any of Tenant's obligations hereunder, unless express
written notice of such intention is sent by Landlord or its
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agent to Tenant. To the fullest extent permitted by Law, all rent and other
consideration paid by any Replacement Tenants shall be applied: first, to the
Costs of Re-Letting, second, to the payment of any Rent theretofore accrued, and
the residue, if any, shall be held by Landlord and applied to the payment of
other obligations of Tenant to Landlord as the same become due (with any
remaining residue to be retained by Landlord). Rent shall be paid without any
prior demand or notice therefor (except as expressly provided herein) and
without any deduction, set-off or counterclaim, or relief from any valuation or
appraisement laws. Landlord may apply payments received from Tenant to any
obligations of Tenant then accrued, without regard to such obligations as may be
designated by Tenant. Landlord shall be under no obligation to observe or
perform any provision of this Lease on its part to be observed or performed
which accrues after the date of any Default by Tenant hereunder not cured within
the times permitted hereunder. The times set forth herein for the curing of
Defaults by Tenant are of the essence of this Lease. Tenant hereby irrevocably
waives any right otherwise available under any Law to redeem or reinstate this
Lease.
ARTICLE 24
LANDLORD'S RIGHT TO CURE
If Landlord shall fail to perform any term or provision under this
Lease required to be performed by Landlord, Landlord shall not be deemed to be
in default hereunder nor subject to any claims for damages of any kind, unless
such failure shall have continued for a period of thirty (30) days after written
notice thereof by Tenant; provided, if the nature of Landlord's failure is such
that more than thirty (30) days are reasonably required in order to cure,
Landlord shall not be in default if Landlord commences to cure such failure
within such thirty (30) day period, and thereafter reasonably seeks to cure such
failure to completion. The aforementioned periods of time permitted for
Landlord to cure shall be extended for any period of time during which Landlord
is delayed in, or prevented from, curing due to fire or other casualty, strikes,
lock-outs or other labor troubles, shortages of equipment or materials,
governmental requirements, power shortages or outages, acts or omissions by
Tenant or other Persons, and other causes beyond Landlord's reasonable control.
If Landlord shall fail to cure within the times permitted for cure herein,
Landlord shall be subject to such remedies as may be available to Tenant
(subject to the other provisions of this Lease); provided, in recognition that
Landlord must receive timely payments of Rent and operate the Property. Tenant
shall have no right of self-help to perform repairs or any other obligation of
Landlord, and shall have no right to withhold, set-off, or abate Rent.
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ARTICLE 25
CAPTIONS, DEFINITIONS AND SEVERABILITY
The captions of the Articles and Paragraphs of this Lease are for
convenience of reference only and shall not be considered or referred to in
resolving questions of interpretation. If any term or provision of this Lease
shall be found invalid, void, illegal, or unenforceable with respect to any
particular Person by a court of competent jurisdiction, it shall not affect,
impair or invalidate any other terms or provisions hereof, or its enforceability
with respect to any other Person, the parties hereto agreeing that they would
have entered into the remaining portion of this Lease notwithstanding the
omission of the portion or portions adjudged invalid, void, illegal, or
unenforceable with respect to such Person.
(A) "Building" shall mean the structure identified in Article 1 of
this Lease.
(B) [INTENTIONALLY LEFT BLANK]
(C) "Default Rate" shall mean eighteen percent (18%) per annum, or the
highest rate permitted by applicable Law, whichever shall be less.
(D) "Holder" shall mean the holder of any Mortgage at the time in
question, and where such Mortgage is a ground lease, such term shall refer to
the ground lessor.
(E) "Holidays" shall mean all federally observed holidays, including
New Year's Day, President's Day, Memorial Day, Independence Day, Labor Day,
Veterans' Day, Thanksgiving Day, Christmas Day, and to the extent of utilities
or services provided by union members engaged at the Property, such other
holidays observed by such unions.
(F) "Landlord" and "Tenant" shall be applicable to one or more Persons
as the case may be, and the singular shall include the plural, and the neuter
shall include the masculine and feminine; and if there be more than one, the
obligations thereof shall be joint and several. For purposes of any provisions
indemnifying or limiting the liability of Landlord, the term "Landlord" shall
include Landlord's present and future partners, beneficiaries, trustees,
officers, directors, employees, shareholders, principals, agents, affiliates,
successors and assigns.
(G) "Law" shall mean all federal, state, county and local governmental
and municipal laws, statutes, ordinances, rules, regulations, codes, decrees,
orders and other such requirements, applicable equitable remedies and decisions
by courts in cases where such decisions are considered binding
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precedents in the state in which the Property is located, and decisions of
federal courts applying the Laws of such State.
(H) "Mortgage" shall mean all mortgages, deeds of trust, ground leases
and other such encumbrances now or hereafter placed upon the Property or
Building, or any part thereof, and all renewals, modifications, consolidations,
replacements or extensions thereof, and all indebtedness now or hereafter
secured thereby and all interest thereon.
(I) "Operating Expenses" shall mean all expenses, costs and amounts
(other than Taxes) of every kind and nature which Landlord shall pay during any
calendar year any portion of which occurs during the Term, because of or in
connection with the ownership, management, repair, maintenance, restoration and
operation of the Property, including without limitation, any amounts paid for:
(a) utilities for the Property, including but not limited to electricity, power,
gas, steam, oil or other fuel, water, sewer, lighting, heating, air conditioning
and ventilating, (b) permits, licenses and certificates necessary to operate,
manage and lease the Property, (c) insurance applicable to the Property, not
limited to the amount of coverage Landlord is required to provide under this
Lease, (d) supplies, tools, equipment and materials used in the operation,
repair and maintenance of the Property, (e) accounting, legal, inspection,
consulting, concierge and other services, (f) any equipment rental (or
installment equipment purchase or equipment financing agreements), or management
agreements (including the cost of any management fee actually paid thereunder
and the fair rental value of any office space provided thereunder, up to
customary and reasonable amounts), (g) wages, salaries and other compensation
and benefits (including the fair value of any parking privileges provided) for
all persons engaged in the operation, maintenance or security of the Property,
and employer's Social Security taxes, unemployment taxes or insurance, and any
other taxes which may be levied on such wages, salaries, compensation and
benefits, (h) payments under any easement, operating agreement, declaration,
restrictive covenant, or instrument pertaining to the sharing of costs in any
planned development, and (i) operation, repair, and maintenance of all Systems
and Equipment and components thereof (including replacement of components),
janitorial service, alarm and security service, window cleaning, trash removal,
elevator maintenance, cleaning of walks, parking facilities and building walls,
removal of ice and snow, replacement of wall and floor coverings, ceiling tiles
and fixtures in lobbies, corridors, restrooms and other common or public areas
or facilities, maintenance and replacement of shrubs, trees, grass, sod and
other landscaped items, irrigation systems, drainage facilities, fences, curbs,
and walkways, re-paving and re-striping parking facilities, and roof repairs.
If the Property is not fully occupied during all or a portion of any calendar
year, Landlord may, in
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accordance with sound accounting and management practices, determine the amount
of variable Operating Expenses (i.e. those items which vary according to
occupancy levels) that would have been paid had the Property been fully
occupied, and the amount so determined shall be deemed to have been the amount
of variable Operating Expenses for such year. If Landlord makes such an
adjustment, Landlord shall make a comparable adjustment for the Base Expense
Year. Notwithstanding the foregoing, Operating Expenses shall not, however,
include:
(i) depreciation, interest and amortization on Mortgages, and other debt
costs or ground lease payments, if any; legal fees in connection with
leasing, tenant disputes or enforcement of leases; real estate brokers'
leasing commissions, improvements or alterations to tenant spaces; the cost
of providing any service directly to and paid directly by, any tenant; any
costs expressly excluded from Operating Expenses elsewhere in this Lease;
costs of any items to the extent Landlord receives reimbursement from
insurance proceeds or from a third party (such proceeds to be deducted from
Operating Expenses in the year in which received); and
(ii) capital expenditures, except those: (a) made primarily to reduce
Operating Expenses, or to comply with any Laws or other governmental
requirements, or (b) for replacements (as opposed to additions or new
improvements) of non-structural items located in the common areas of the
Property required to keep such areas in good condition; provided, all such
permitted capital expenditures (together with reasonable financing charges)
shall be amortized for purposes of this Lease over the shorter of: (i)
their useful lives, (ii) the period during which the reasonably estimated
savings in Operating Expenses equals the expenditures, or (iii) three (3)
years.
(J) "Person" shall mean an individual, trust, partnership, joint venture,
association, corporation, and any other entity.
(K) "Property" shall mean the Building, and any common or public areas or
facilities, easements, corridors, lobbies, sidewalks, loading areas, driveways,
landscaped areas, skywalks, parking garages and lots, and any and all other
structures or facilities operated or maintained in connection with or for the
benefit of the Building, and all parcels or tracts of land on which all or any
portion of the Building or any of the other foregoing items are located, and any
fixtures, machinery, equipment, apparatus, Systems and Equipment, furniture and
other personal property located thereon or therein and used in connection
therewith, whether title is held by Landlord or its affiliates. Possession of
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areas necessary for utilities, services, safety and operation of the Property,
including the Systems and Equipment (as defined in Article 25), fire stairways,
perimeter walls, space between the finished ceiling of the Premises and the slab
of the floor or roof of the Property thereabove, and the use thereof together
with the right to install, maintain, operate, repair and replace the Systems and
Equipment, including any of the same in, through, under or above the Premises in
locations that will not materially interfere with Tenant's use of the Premises,
are hereby excepted and reserved by Landlord, and not demised to Tenant. If the
Building shall be part of a complex, development or group of buildings or
structures collectively owned or managed by Landlord or its affiliates or
collectively managed by Landlord's managing agent, the Property shall, at
Landlord's option also be deemed to include such other of those buildings or
structures as Landlord shall from time to time designate, and shall initially
include such buildings and structures (and related facilities and parcels on
which the same are located) as Landlord shall have incorporated by reference to
the total square footage of the Property in Article 1.
(L) "Rent" shall have the meaning specified therefor in Article 3(G).
(M) "Systems and Equipment" shall mean any plant, machinery, transformers,
duct work, cable, wires, and other equipment, facilities, and systems designed
to supply heat, ventilation, air conditioning and humidity or any other services
or utilities, or comprising or serving as any component or portion of the
electrical, gas, steam, plumbing, sprinkler, communications, alarm, security, or
fire/life/safety systems or equipment, or any other mechanical, electrical,
electronic, computer or other systems or equipment for the Property.
(N) "Taxes" shall mean all federal, state, county, or local governmental or
municipal taxes, fees, charges or other impositions of every kind and nature,
whether general, special, ordinary or extraordinary, including without
limitation, real estate taxes, general and special assessments, transit taxes,
water and sewer rents, taxes based upon the receipt of rent including gross
receipts or sales taxes applicable to the receipt of rent or service or value
added taxes (unless required to be paid by Tenant under Article 17), personal
property taxes imposed upon the fixtures, machinery, equipment, apparatus,
Systems and Equipment, appurtenances, furniture and other personal property used
in connection with the Property which Landlord shall pay during any calendar
year, any portion of which occurs during the Term (without regard to any
different fiscal year used by such government or municipal authority) because of
or in connection with the ownership, leasing and operation of the Property.
Notwithstanding the foregoing, there shall
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be excluded from Taxes all excess profits taxes, franchise taxes, gift taxes,
capital stock taxes, inheritance and succession taxes, estate taxes, federal and
state income taxes, and other taxes to the extent applicable to Landlord's
general or net income (as opposed to rents, receipts or income attributable to
operations at the Property). If the method of taxation of real estate
prevailing at the time of execution hereof shall be, or has been altered, so as
to cause the whole or any part of the taxes now, hereafter, or heretofore
levied, assessed or imposed on real estate to be levied, assessed or imposed on
Landlord, wholly or partially, as a capital levy or otherwise, or on or measured
by the rents received therefrom, then such new or altered taxes attributable to
the Property shall be included within the term "Taxes," except that the same
shall not include any enhancement of said tax attributable to other income of
Landlord. Any expenses incurred by Landlord in attempting to protest, reduce or
minimize Taxes shall be included in Taxes in the calendar year such expenses are
paid. Tax refunds shall be deducted from Taxes in the year they are received by
Landlord, but if such refund shall relate to taxes paid in a prior year of the
Term, and the Lease shall have expired, Landlord shall mail Tenant's Prorata
Share of such net refund (after deducting expenses and attorneys' fees), up to
the amount Tenant paid towards Taxes during such year, to Tenant's last known
address. If Taxes for the Base Tax Year are reduced as the result of protest,
or by means of agreement, or as the result of legal proceedings or otherwise,
Landlord may adjust Tenant's obligations for Taxes in all years following the
Tax Base Year, and Tenant shall pay Landlord within 30 days after notice any
additional amount required by such adjustment for any such years or portions
thereof that have theretofore occurred. If Taxes for any period during the Term
or any extension thereof, shall be increased after payment thereof by Landlord,
for any reason including without limitation error or reassessment by applicable
governmental or municipal authorities, Tenant shall pay Landlord upon demand
Tenant's Prorata Share of such increased Taxes. Tenant shall pay increased
Taxes whether Taxes are increased as a result of increases in the assessments or
valuation of the Property (whether based on a sale, change in ownership or
refinancing of the Property or otherwise), increases in the tax rates, reduction
or elimination of any rollbacks or other deductions available under current law,
scheduled reductions of any tax abatement, as a result of the elimination,
invalidity or withdrawal of any tax abatement, or for any other cause
whatsoever. Notwithstanding the foregoing, if any Taxes shall be paid based on
assessments or bills by a governmental or municipal authority using a fiscal
year other than a calendar year, Landlord may elect to average the assessments
or bills for the subject calendar year, based on the number of months of such
calendar year included in each such assessment or bill.
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(O) "Tenant's Prorata Share" of Taxes and Operating Expenses shall be the
rentable area of the Premises divided by the rentable area of the Property on
the last day of the calendar year for which Taxes or Operating Expenses are
being determined, excluding any parking facilities. Tenant acknowledges that
the "rentable area of the Premises" under this Lease includes the usable area,
without deduction for columns or projections, multiplied by a load or conversion
factor, to reflect a share of certain areas, which may include lobbies,
corridors, mechanical, utility, janitorial, boiler and service rooms and
closets, restrooms, and other public, common and service areas. Except as
provided expressly to the contrary herein, the "rentable area of the Property"
shall include all rentable area of all space leased or available for lease at
the Property, which Landlord may reasonably re-determine from time to time, to
reflect re-configurations, additions or modifications to the Property. If the
Property or any development of which it is a part, shall contain non-office
uses, Landlord shall have the right to determine in accordance with sound
accounting and management principles, Tenant's Prorata Share of Taxes and
Operating Expenses for only the office portion of the Property or of such
development, in which event, Tenant's Prorata Share shall be based on the ratio
of the rentable area of the Premises to the rentable area of such office
portion. Similarly, if the Property shall contain tenants who do not
participate in all or certain categories of Taxes or Operating Expenses on a
prorata basis, Landlord may exclude the amount of Taxes or Operating Expenses,
or such categories of the same, as the case may be, attributable to such
tenants, and exclude the rentable area of their premises, in computing Tenant's
Prorata Share. If the Property shall be part of or shall include a complex,
development or group of buildings or structures collectively owned or managed by
Landlord or its affiliates or collectively managed by Landlord's managing agent,
Landlord may allocate Taxes and Operating Expenses within such complex,
development or group, and between such buildings and structures and the parcels
on which they are located, in accordance with sound accounting and management
principles. In the alternative, Landlord shall have the right to determine, in
accordance with sound accounting and management principles, Tenant's Prorata
Share of Taxes and Operating Expenses based upon the totals of each of the same
for all such buildings and structures, the land constituting parcels on which
the same are located, and all related facilities, including common areas and
easements, corridors, lobbies, sidewalks, elevators, loading areas, parking
facilities and driveways and other appurtenances and public areas, in which
event Tenant's Prorata Share shall be based on the ratio of the rentable area of
the Premises to the rentable area of all such buildings.
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ARTICLE 26
CONVEYANCE BY LANDLORD AND LIABILITY
In case Landlord or any successor owner of the Property or the
Building shall convey or otherwise dispose of any portion thereof in which the
Premises are located to another Person (and nothing herein shall be construed to
restrict or prevent such conveyance or disposition), such other Person shall
thereupon be and become landlord hereunder and shall be deemed to have fully
assumed and be liable for all obligations of this Lease to be performed by
Landlord which first arise after the date of conveyance, including the return of
any Security Deposit, and Tenant shall attorn to such other Person, and Landlord
or such successor owner shall, from and after the date of conveyance, be free of
all liabilities and obligations hereunder not then incurred. The liability of
Landlord to Tenant for any default by Landlord under this Lease or arising in
connection herewith or with Landlord's operation, management, leasing, repair,
renovation, alteration, or any other matter relating to the Property or the
Premises, shall be limited to the interest of Landlord in the Property (and the
rental proceeds thereof). Tenant agrees to look solely to Landlord's interest
in the Property (and the rental proceeds thereof) for the recovery of any
judgment against Landlord, and Landlord shall not be personally liable for any
such judgment or deficiency after execution thereon. The limitations of
liability contained in this Article shall apply equally and inure to the benefit
of Landlord's present and future partners, beneficiaries, officers, directors,
trustees, shareholders, agents and employees, and their respective partners,
heirs, successors and assigns. Under no circumstances shall any present or
future general or limited partner of Landlord (if Landlord is a partnership), or
trustee or beneficiary (if Landlord or any partner of Landlord is a trust) have
any liability for the performance of Landlord's obligations under this Lease.
Notwithstanding the foregoing to the contrary, Landlord shall have personal
liability for insured claims, beyond Landlord's interest in the Property (and
rental proceeds thereof), to the extent of Landlord's liability insurance
coverage available for such claims.
ARTICLE 27
INDEMNIFICATION
Except to the extent arising from the intentional or grossly negligent
acts of Landlord or Landlord's agents or employees, Tenant shall defend,
indemnify and hold harmless Landlord from and against any and all claims,
demands, liabilities, damages, judgments, orders, decrees, actions, proceedings,
fines, penalties, costs and expenses, including without limitation, court costs
and attorneys' fees arising
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from or relating to any loss of life, damage or injury to person, property or
business occurring in or from the Premises, or caused by or in connection with
any violation of this Lease or use of the Premises or Property by, or any other
act or omission of, Tenant, any other occupant of the Premises, or any of their
respective agents, employees, contractors or guests. Without limiting the
generality of the foregoing, Tenant specifically acknowledges that the indemnity
undertaking herein shall apply to claims in connection with or arising out of
any "Work" as described in Article 8, the installation, maintenance, use or
removal of any "Lines" located in or serving the Premises as described in
Article 29, and the transportation, use, storage, maintenance, generation,
manufacturing, handling, disposal, release or discharge of any "Hazardous
Material" as described in Article 30 (whether or not any of such matters shall
have been theretofor approved by Landlord), except to the extent that any of the
same arises from the intentional or grossly negligent acts of Landlord or
Landlord's agents or employees.
ARTICLE 28
SAFETY AND SECURITY DEVICES, SERVICES AND PROGRAMS
The parties acknowledge that safety and security devices, services and
programs provided by Landlord, if any, while intended to deter crime and ensure
safety, may not in given instances prevent theft or other criminal acts, or
ensure safety of persons or property. The risk that any safety or security
device, service or program may not be effective, or may malfunction, or be
circumvented by a criminal, is assumed by Tenant with respect to Tenant's
property and Tenant shall obtain insurance coverage to the extent Tenant desires
protection against such criminal acts and other losses, as further described in
Article 11. Tenant agrees to cooperate in any reasonable safety or security
program developed by Landlord or required by Law.
ARTICLE 29
COMMUNICATIONS AND COMPUTER LINES
Tenant may install, maintain, replace, remove or use any
communications or computer wires, cables and related devices (collectively the
"Lines") at the Property in or serving the Premises, provided: (a) Tenant shall
obtain Landlord's prior written consent, use an experienced and qualified
contractor approved in writing by Landlord, and comply with all of the other
provisions of Article 8, (b) any such installation, maintenance, replacement,
removal or use shall comply with all Laws applicable thereto and good work
practices, and shall not interfere with the use of any then existing Lines at
the
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Property, (c) an acceptable number of spare Lines and space for additional Lines
shall be maintained for existing and future occupants of the Property, as
determined in Landlord's reasonable opinion, (d) if Tenant at any time uses any
equipment that may create an electromagnetic field exceeding the normal
insulation ratings of ordinary twisted pair riser cable or cause radiation
higher than normal background radiation, the Lines therefor (including riser
cables) shall be appropriately insulated to prevent such excessive
electromagnetic fields or radiation, (e) as a condition to permitting the
installation of new Lines, Landlord may require that Tenant remove existing
Lines located in or serving the Premises, (f) Tenant's rights shall be subject
to the rights of any regulated telephone company, and (g) Tenant shall pay all
costs in connection therewith. Landlord reserves the right to require that
Tenant remove any Lines located in or serving the Premises which are installed
in violation of these provisions, or which are at any time in violation of any
Laws or represent a dangerous or potentially dangerous condition (whether such
Lines were installed by Tenant or any other party), within three (3) days after
written notice.
Landlord may (but shall not have the obligation to): (i) install new
Lines at the Property, (ii) create additional space for Lines at the Property,
and (iii) reasonably direct, monitor and/or supervise the installation,
maintenance, replacement and removal of, the allocation and periodic re-
allocation of available space (if any) for, and the allocation of excess
capacity (if any) on, any Lines now or hereafter installed at the Property by
Landlord, Tenant or any other party (but Landlord shall have no right to monitor
or control the information transmitted through such Lines). Such rights shall
not be in limitation of other rights that may be available to Landlord by Law or
otherwise. If Landlord exercises any such rights, Landlord may charge Tenant
for the costs attributable to Tenant, or may include those costs and all other
costs in Operating Expenses under Article 25 (including without limitation,
costs for acquiring and installing Lines and risers to accommodate new Lines and
spare Lines, any associated computerized system and software for maintaining
records of Line connections, and the fees of any consulting engineers and other
experts); provided, any capital expenditures included in Operating Expenses
hereunder shall be amortized (together with reasonable finance charges) over the
period of time prescribed by Article 25.
Notwithstanding anything to the contrary contained in Article 13,
Landlord reserves the right to require that Tenant remove any or all Lines
installed by or for Tenant within or serving the Premises upon termination of
this Lease, provided Landlord notifies Tenant prior to or within thirty (30)
days following such termination. Any Lines not required to be removed pursuant
to this Article shall, at Landlord's option, become the property of Landlord
(without payment by Landlord).
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If Tenant fails to remove such Lines as required by Landlord, or violates any
other provision of this Article, Landlord may, after twenty (20) days written
notice to Tenant, remove such Lines or remedy such other violation, at Tenant's
expense (without limiting Landlord's other remedies available under this Lease
or applicable Law). Tenant shall not, without the prior written consent of
Landlord in each instance, grant to any third party a security interest or lien
in or on the Lines, and any such security interest or lien granted without
Landlord's written consent shall be null and void. Except to the extent arising
from the intentional or negligent acts of Landlord or Landlord's agents or
employees, Landlord shall have no liability for damages arising from, and
Landlord does not warrant that the Tenant's use of any Lines will be free from
the following (collectively called "Line Problems"): (x) any eavesdropping or
wire-tapping by unauthorized parties, (y) any failure of any Lines to satisfy
Tenant's requirements, or (z) any shortages, failures, variations,
interruptions, disconnections, loss or damage caused by the installation,
maintenance, replacement, use or removal of Lines by or for other tenants or
occupants at the Property, by any failure of the environmental conditions or the
power supply for the Property to conform to any requirements for the Lines or
any associated equipment, or any other problems associated with any Lines by any
other cause. Under no circumstances shall any Line Problems be deemed an actual
or constructive eviction of Tenant, render Landlord liable to Tenant for
abatement of Rent, or relieve Tenant from performance of Tenant's obligations
under this Lease. Landlord in no event shall be liable for damages by reason of
loss of profits, business interruption or other consequential damage arising
from any Line Problems.
ARTICLE 30
HAZARDOUS MATERIALS
Tenant shall not transport, use, store, maintain, generate,
manufacture, handle, dispose, release or discharge any "Hazardous Material" (as
defined below) upon or about the Property, or permit Tenant's employees, agents,
contractors, and other occupants of the Premises to engage in such activities
upon or about the Property. However, the foregoing provisions shall not
prohibit the transportation to and from, and use, storage, maintenance and
handling within, the Premises of substances customarily used in offices (or such
other business or activity expressly permitted to be undertaken in the Premises
under Article 6), provided: (a) such substances shall be used and maintained
only in such quantities as are reasonably necessary for such permitted use of
the Premises, strictly in accordance with applicable Law and the manufacturers'
instructions therefor, (b) such substances shall not be disposed of, released or
discharged on
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the Property, and shall be transported to and from the Premises in compliance
with all applicable Laws, and as Landlord shall reasonably require, (c) if any
applicable Law or Landlord's trash removal contractor requires that any such
substances be disposed of separately from ordinary trash, Tenant shall make
arrangements at Tenant's expense for such disposal directly with a qualified and
licensed disposal company at a lawful disposal site (subject to scheduling and
approval by Landlord), and shall ensure that disposal occurs frequently enough
to prevent unnecessary storage of such substances in the Premises, and (d) any
remaining such substances shall be completely, properly and lawfully removed
from the Property upon expiration or earlier termination of this Lease.
Tenant shall promptly notify Landlord of: (1) any enforcement,
cleanup or other regulatory action taken or threatened by any governmental or
regulatory authority with respect to the presence of any Hazardous Material on
the Premises or the migration thereof from or to other property, (ii) any
demands or claims made or threatened by any party against Tenant or the Premises
relating to any loss or injury resulting from any Hazardous Material, (iii) any
release, discharge or nonroutine, improper or unlawful disposal or
transportation of any Hazardous Material on or from the Premises, and (iv) any
matters where Tenant is required by Law to give a notice to any governmental or
regulatory authority respecting any Hazardous Material on the Premises.
Landlord shall have the right (but not the obligation) to join and participate
as a party in any legal proceedings or actions affecting the Premises initiated
in connection with any environmental, health or safety Law. At such times as
Landlord may reasonably request, Tenant shall provide Landlord with a written
list identifying any Hazardous Material then used, stored, or maintained upon
the Premises, the use and approximate quantity of each such material, a copy of
any material safety data sheet ("MSDS") issued by the manufacturer therefor,
written information concerning the removal, transportation and disposal of the
same, and such other information as Landlord may reasonably require or as may be
required by Law. The term "Hazardous Material" for purposes hereof shall mean
any chemical, substance, material or waste or component thereof which is now or
hereafter listed, defined or regulated as a hazardous or toxic chemical,
substance, material or waste or component thereof by any federal, state or local
governing or regulatory body having jurisdiction, or which would trigger any
employee or community "right-to-know" requirements adopted by any such body, or
for which any such body has adopted any requirements for the preparation or
distribution of an MSDS.
If any Hazardous Material is released, discharged or disposed of by
Tenant or any other occupant of the Premises, or their employees, agents or
contractors, on or about the
-37-
Property in violation of the foregoing provisions, Tenant shall immediately,
properly and in compliance with applicable Laws clean up and remove the
Hazardous Material from the Property and any other affected property and clean
or replace any affected personal property (whether or not owned by Landlord), at
Tenant's expense. Such clean up and removal work shall be subject to Landlord's
prior written approval (except in emergencies), and shall include, without
limitation, any testing, investigation, and the preparation and implementation
of any remedial action plan required by any governmental body having
jurisdiction or reasonably required by Landlord. If Tenant shall fail to comply
with the provisions of this Article within five (5) days after written notice by
Landlord, or such shorter time as may be required by Law or in order to minimize
any hazard to Persons or property, Landlord may (but shall not be obligated to)
arrange for such compliance directly or as Tenant's agent through contractors or
other parties selected by Landlord, at Tenant's expense (without limiting
Landlord's other remedies under this Lease or applicable Law). If any Hazardous
Material is released, discharged or disposed of on or about the Property and
such release, discharge or disposal is not caused by Tenant or other occupants
of the Premises, or their employees, agents or contractors, such release,
discharge or disposal shall be deemed casualty damage under Article 10 to the
extent that the Premises or common areas serving the Premises are affected
thereby; in such case, Landlord and Tenant shall have the obligations and rights
respecting such casualty damage provided under Article 10.
ARTICLE 31
MISCELLANEOUS
(A) Each of the terms and provisions of this Lease shall be binding
upon and inure to the benefit of the parties hereto, their respective heirs,
executors, administrators, guardians, custodians, successors and assigns,
subject to the provisions of Article 21 respecting Transfers.
(B) Neither this Lease nor any memorandum of lease or short form lease
shall be recorded by Tenant.
(C) This Lease shall be construed in accordance with the Laws of the
state in which the Property is located.
(D) All obligations or rights of either party arising during or
attributable to the period ending upon expiration or earlier termination of this
Lease shall survive such expiration or earlier termination.
(E) Landlord agrees that, if Tenant timely pays the Rent and performs
the terms and provisions hereunder, and subject
-38-
to all other terms and provisions of this Lease, Tenant shall hold and enjoy the
Premises during the Term, free of lawful claims by any Person acting by or
through Landlord.
(F) This Lease does not grant any legal rights to "light and air"
outside the Premises nor any particular view of cityscape visible from the
Premises.
(G) If the Commencement Date is delayed in accordance with Article 4
for more than one year, Landlord may declare this Lease null and void, and if
the Commencement Date is so delayed for more than seven years, this Lease shall
thereupon become null and void without further action by either party.
ARTICLE 32
OFFER
The submission and negotiation of this Lease shall not be deemed an
offer to enter the same by Landlord, but the solicitation of such an offer by
Tenant. Tenant agrees that its execution of this Lease constitutes a firm offer
to enter the same which may not be withdrawn for a period of 30 days after
delivery to Landlord (or such other period as may be expressly provided in any
other agreement signed by the parties). During such period and in reliance on
the foregoing, Landlord may, at Landlord's option (and shall, if required by
applicable Law), deposit any security deposit and Rent, and proceed with any
plans, specifications, alterations or improvements, and permit Tenant to enter
the Premises, but such acts shall not be deemed an acceptance of Tenant's offer
to enter this Lease, and such acceptance shall be evidenced only by Landlord
signing and delivering this Lease to Tenant.
ARTICLE 33
NOTICES
Except as expressly provided to the contrary in this Lease, every
notice or other communication to be given by either party to the other with
respect hereto or to the Premises or Property, shall be in writing and shall not
be effective for any purpose unless the same shall be served personally or by
national air courier service, or United States certified mail, return receipt
requested, postage prepaid, addressed, if to Tenant, at the address first set
forth in the Lease, until the Commencement Date, and thereafter to the Tenant at
the Premises, and if to Landlord, at the address at which the last payment of
Rent was required to be made and to AGF 4041 Limited Partnership, 4041 North
Central Avenue, Suite 101, Phoenix, Arizona 85012 or such other address or
addresses as Tenant or Landlord may from time
-39-
to time designate by notice given as above provided. Every notice or other
communication hereunder shall be deemed to have been given as of the third
business day following the date of such mailing (or as of any earlier date
evidenced by a receipt from such national air courier service or the United
States Postal Service) or immediately if personally delivered. Notices not sent
in accordance with the foregoing shall be of no force or effect until received
by the foregoing parties at such addresses required herein.
ARTICLE 34
REAL ESTATE BROKERS
Tenant represents that Tenant has dealt only with PM Realty
----------------
Group, and Marcus & Millichap (whose commission, if any, shall be
--------------------------------------------
paid by Landlord pursuant to separate agreement) as broker, agent or finder in
connection with this Lease and agrees to indemnify and hold Landlord harmless
from all damage, judgments, liabilities and expenses (including reasonable
attorneys' fees) arising from any claims or demands of any other broker, agent
or finder with whom Tenant has dealt for any commission or fee alleged to be due
in connection with its participation in the procurement of Tenant or the
negotiation with Tenant of this Lease.
ARTICLE 35
Security Deposit
Tenant shall deposit with Landlord the amount of $ 22,736.88
----------
("Security Deposit"), upon Tenant's execution and submission of this Lease. The
Security Deposit shall serve as security for the prompt, full and faithful
performance by Tenant of the terms and provisions of this Lease. In the event
that Tenant is in Default hereunder and fails to cure within any applicable time
permitted under this Lease, or in the event that Tenant owes any amounts to
Landlord upon the expiration of this Lease, Landlord may use or apply the whole
or any part of the Security Deposit for the payment of Tenant's obligations
hereunder. The use or application of the Security Deposit or any portion
thereof shall not prevent Landlord from exercising any other right or remedy
provided hereunder or under any Law and shall not be construed as liquidated
damages. In the event the Security Deposit is reduced by such use or
application. Tenant shall deposit with Landlord within ten (10) days after
written notice, an amount sufficient to restore the full amount of the Security
Deposit. Landlord shall not be required to keep the Security Deposit separate
from Landlord's general funds or pay interest on the Security Deposit. Any
remaining portion of
-40-
the Security Deposit shall be returned to Tenant within sixty (60) days after
Tenant has vacated the Premises in accordance with Article 13. If the Premises
shall be expanded at any time, or if the Term shall be extended at an increased
rate of Rent, the Security Deposit shall thereupon be proportionately increased.
ARTICLE 36
ENTIRE AGREEMENT
This Lease, together with Riders One through Four and Exhibit A and
------
the documents captioned Parking Agreement
-------------------------------------------------------
-------------------------------------------------------------------------------
------------------------------------------------------------ (WHICH COLLECTIVELY
ARE HEREBY INCORPORATED WHERE REFERRED TO HEREIN AND MADE A PART HEREOF AS
THOUGH FULLY SET FORTH), contains all the terms and provisions between Landlord
and Tenant relating to the matters set forth herein and no prior or
contemporaneous agreement or understanding pertaining to the same shall be of
any force or effect, except any such contemporaneous agreement specifically
referring to and modifying this Lease, signed by both parties. Without
limitation as to the generality of the foregoing, Tenant hereby acknowledges and
agrees that Landlord's leasing agents and field personnel are only authorized to
show the Premises and negotiate terms and conditions for leases subject to
Landlord's final approval, and are not authorized to make any agreements,
representations, understandings or obligations, binding upon Landlord,
respecting the condition of the Premises or Property, suitability of the same
for Tenant's business, or any other matter, and no such agreements,
representations, understandings or obligations not expressly contained herein or
in such contemporaneous agreement shall be of any force or effect. Neither this
Lease, nor any Riders or
-41-
Exhibits referred to above may be modified, except in writing signed by both
parties.
WITNESSES: ATTESTATION
(Two for each signatory
required if Property is
in Florida or Ohio):
________________________ LANDLORD: AGF 4041 LIMITED
PARTNERSHIP, a Texas
limited partnership
________________________ BY: Addison AGF, Inc.,
a Texas corporation,
General Partner
BY:
--------------------------------
Abraham Azoulay
President
________________________ TENANT: Interactive Flight
Technologies, Inc., a
Delaware corporation
________________________ BY:
---------------------------------
NAME TYPED: Michail Itkis
---------------------------
TITLE: C.E.O.
---------------------------
CERTIFICATE
(If Tenant is a Corporation)
I, , Secretary of Interactive
------------------------------- ----------------------
Flight Technologies, Inc. , Tenant, hereby certify that the
---------------------------------------
officer(s) executing the foregoing Lease on behalf of Tenant was/were duly
authorized to act in his/their capacities as _________________ and
______________, and his/their action(s) are the action of Tenant.
(Corporate Seal) --------------------------------
Secretary
IF TENANT PAYS FOR ALL ELECTRICITY IN PREMISES, OR FOR
---
SEPARATE HVAC, E.G. BASED ON SUB-METERS, USE RIDER 112,
112A OR 112B.
-42-
RIDER ONE
RULES
(1) On Saturdays, Sundays and Holidays, and on other days between the hours
of 6:00 P.M. and 8:00 A.M the following day, or such other hours as Landlord
shall determine from time to time, access to the Property and/or to the
passageways, entrances, exits, shipping areas, halls, corridors, elevators or
stairways and other areas in the Property may be restricted and access gained by
use of a key to the outside doors of the Property, or pursuant to such security
procedures Landlord may from time to time impose. All such areas, and all
roofs, are not for use of the general public and Landlord shall in all cases
retain the right to control and prevent access thereto by all persons whose
presence in the judgment of Landlord shall be prejudicial to the safety,
character, reputation and interests of the Property and its tenants provided,
however, that nothing herein contained shall be construed to prevent such access
to persons with whom Tenant deals in the normal course of Tenant's business
unless such persons are engaged in activities which are illegal or violate these
Rules. No Tenant and no employee or invitee of Tenant shall enter into areas
reserved for the exclusive use of Landlord, its employees or invitees. Tenant
shall keep doors to corridors and lobbies closed except when persons are
entering or leaving.
(2) Tenant shall not paint, display, inscribe, maintain or affix any sign,
placard, picture, advertisement, name, notice, lettering or direction on any
part of the outside or inside of the Property, or on any part of the inside of
the Premises which can be seen from the outside of the Premises, without the
prior consent of Landlord, and then only such name or names or matter and in
such color, size, style, character and material as may be first approved by
Landlord in writing. Landlord shall prescribe the suite number and
identification sign for the Premises (which shall be prepared and installed by
Landlord at Tenant's expense). Landlord reserves the right to remove at
Tenant's expense all matter not so installed or approved without notice to
Tenant.
(3) Tenant shall not in any manner use the name of the Property for any
purpose other than that of the business address of the Tenant, or use any
picture or likeness of the Property, in any letterheads, envelopes, circulars,
notices, advertisements, containers or wrapping material without Landlord's
express consent in writing.
(4) Tenant shall not place anything or allow anything to be placed in the
Premises near the glass of any door, partition, wall or window which may be
unsightly from outside the Premises, and Tenant shall not place or permit to be
placed any article of any kind on any window ledge or on the
-43-
exterior walls. Blinds, shades, awnings or other forms of inside or outside
window ventilators or similar devices, shall not be placed in or about the
outside windows in the Premises except to the extent, if any, that the
character, shape, color, material and make thereof is first approved by the
Landlord.
(5) Furniture, freight and other large or heavy articles, and all other
deliveries may be brought into the Property only at times and in the manner
designated by Landlord, and always at the Tenant's sole responsibility and risk.
Landlord may impose reasonable charges for use of freight elevators after or
before normal business hours. All damage done to the Property by moving or
maintaining such furniture, freight or articles shall be repaired by Landlord at
Tenant's expense. Landlord may inspect items brought into the Property or
Premises with respect to weight or dangerous nature. Landlord may require that
all furniture, equipment, cartons and similar articles removed from the Premises
or the Property be listed and a removal permit therefor first be obtained from
Landlord. Tenant shall not take or permit to be taken in or out of other
entrances or elevators of the Property, any item normally taken, or which
Landlord otherwise reasonably requires to be taken, in or out through service
doors or on freight elevators. Tenant shall not allow anything to remain in or
obstruct in any way, any lobby, corridor, sidewalk, passageway, entrance, exit,
hall, stairway, shipping area, or other such area. Tenant shall move all
supplies, furniture and equipment as soon as received directly to the Premises,
and shall move all such items and waste (other than waste customarily removed by
Property employees) that are at any time being taken from the Premises directly
to the areas designated for disposal. Any hand-carts used at the Property shall
have rubber wheels.
(6) Tenant shall not overload any floor or part thereof in the Premises, or
Property, including any public corridors or elevators therein bringing in or
removing any large or heavy articles, and Landlord may direct and control the
location of safes and all other heavy articles and require supplementary
supports at Tenant's expense of such material and dimensions as Landlord may
deem necessary to properly distribute the weight.
(7) Tenant shall not attach or permit to be attached additional locks or
similar devices to any door or window, change existing locks or the mechanism
thereof, or make or permit to be made any keys for any door other than those
provided by Landlord. If more than two keys for one lock are desired, Landlord
will provide them upon payment therefor by Tenant. Tenant, upon termination of
its tenancy, shall deliver to the Landlord all keys of offices, rooms and toilet
rooms which have been furnished Tenant or which the Tenant
-44-
shall have had made, and in the event of loss of any keys so furnished shall pay
Landlord therefor.
(8) If Tenant desires signal, communication, alarm or other utility or
similar service connections installed or changed, Tenant shall not install or
change the same without the prior approval of Landlord, and then only under
Landlord's direction at Tenant's expense. Tenant shall not install in the
Premises any equipment which requires more electric current than Landlord is
required to provide under this Lease, without Landlord's prior approval, and
Tenant shall ascertain from Landlord the maximum amount of load or demand for or
use of electrical current which can safely be permitted in the Premises, taking
into account the capacity of electric wiring in the Property and the Premises
and the needs of tenants of the Property, and shall not in any event connect a
greater load than such safe capacity.
(9) Tenant shall not obtain for use upon the Premises ice, drinking water,
towel, janitor and other similar services, except from Persons approved by the
Landlord. Any Person engaged by Tenant to provide janitor or other services
shall be subject to direction by the manager or security personnel of the
Property.
(10) The toilet rooms, urinals, wash bowls and other such apparatus shall
not be used for any purpose other than that for which they were constructed and
no foreign substance of any kind whatsoever shall be thrown therein and the
expense of any breakage, stoppage or damage resulting from the violation of this
Rule shall be borne by the Tenant who, or whose employees or invitees shall have
caused it.
(11) The janitorial closets, utility closets, telephone closets, broom
closets, electrical closets, storage closets, and other such closets, rooms and
areas shall be used only for the purposes and in the manner designated by
Landlord, and may not be used by tenants, or their contractors, agents,
employees, or other parties without Landlord's prior written consent.
(12) Landlord reserves the right to exclude or expel from the Property any
person who, in the judgment of Landlord, is intoxicated or under the influence
of liquor or drugs, or who shall in any manner do any act in violation of any of
these Rules. Tenant shall not at any time manufacture, sell, use or give away,
any spirituous, fermented, intoxicating or alcoholic liquors on the Premises,
nor permit any of the same to occur (except in connection with occasional social
or business events conducted in the Premises which do not violate any Laws nor
bother or annoy any other tenants). Tenant shall not at any time sell, purchase
or give away, food in any form by or to any of Tenant's agents or employees or
any other parties on the Premises nor permit any of the same to occur
-45-
(other than in lunch rooms or kitchens for employees as may be permitted or
installed by Landlord, which does not violate any Laws or bother or annoy any
other tenant).
(13) Tenant shall not make any room-to-room canvass to solicit business or
information or to distribute any article or material to or from other tenants or
occupants of the Property and shall not exhibit, sell or offer to sell, use,
rent or exchange any products or services in or from the Premises unless
ordinarily embraced within the Tenant's use of the Premises specified in the
Lease.
(14) Tenant shall not waste electricity, water, heat or air conditioning or
other utilities or services, and agrees to cooperate fully with Landlord to
assure the most effective and energy efficient operation of the Property and
shall not allow the adjustment (except by Landlord's authorized Property
personnel) of any controls. Tenant shall keep corridor doors closed and shall
not open any windows, except that if the air circulation shall not be in
operation, windows which are operable may be opened with Landlord's consent. As
a condition to claiming any deficiency in the air-conditioning or ventilation
services provided by Landlord, Tenant shall close any blinds or drapes in the
Premises to prevent or minimize direct sunlight.
(15) Tenant shall conduct no auction, fire or "going out of business sale"
or bankruptcy sale in or from the Premises, and such prohibition shall apply to
Tenant's creditors.
(16) Tenant shall cooperate and comply with any reasonable safety or
security programs, including fire drills and air raid drills, and the
appointment of "fire wardens" developed by Landlord for the Property, or
required by Law. Before leaving the Premises unattended, Tenant shall close and
securely lock all doors or other means of entry to the Premises and shut off all
lights and water faucets in the Premises (except heat to the extent necessary to
prevent the freezing or bursting of pipes).
(17) Tenant will comply with all municipal, county, state, federal or other
government laws, statutes, codes, regulations and other requirements, including
without limitation, environmental, health, safety and police requirements and
regulations respecting the Premises, now or hereinafter in force, at its sole
cost, and will not use the Premises for any immoral purposes.
(18) Tenant shall not (i) carry on any business, activity or service except
those ordinarily embraced within the permitted use of the Premises specified in
the Lease and more particularly, but without limiting the generality of the
foregoing, shall not (ii) install or operate any internal combustion engine,
boiler, machinery, refrigerating, heating
-46-
or air conditioning equipment in or about the Premises, (iii) use the Premises
for housing, lodging or sleeping purposes or for the washing of clothes, (iv)
place any radio or television antennae other than inside of the Premises, (v)
operate or permit to be operated any musical or sound producing instrument or
device which may be heard outside the Premises, (vi) use any source of power
other than electricity, (vii) operate any electrical or other device from which
may emanate electrical or other waves which may interfere with or impair radio,
television, microwave, or other broadcasting or reception from or in the
Property or elsewhere, (viii) bring or permit any bicycle or other vehicle, or
dog (except in the company of a blind person or except where specifically
permitted) or other animal or bird in the Property, (ix) make or permit
objectionable noise or odor to emanate from the Premises, (x) do anything in or
about the Premises tending to create or maintain a nuisance or do any act
tending to injure the reputation of the Property, (xi) throw or permit to be
thrown or dropped any article from any window or other opening in the Property,
(xii) use or permit upon the Premises anything that will invalidate or increase
the rate of insurance on any policies of insurance now or hereafter carried on
the Property or violate the certificates of occupancy issued for the premises or
the Property, (xiii) use the Premises for any purpose, or permit upon the
Premises anything, that may be dangerous to persons or property (including but
not limited to flammable oils, fluids, paints, chemicals, firearms or any
explosive articles or materials) nor (xiv) do or permit anything to be done upon
the Premises in any way tending to disturb any other tenant at the Property or
the occupants of neighboring property.
(19) If the Property shall now or hereafter contain a building garage,
parking structure or other parking area or facility, the following Rules shall
apply in such areas or facilities:
(i) Parking shall be available in areas designated generally for
tenant parking, for such daily or monthly charges as Landlord may establish from
time to time, or as may be provided in any Parking Agreement attached hereto
(which, when signed by both parties as provided therein, shall thereupon become
effective). In all cases, parking for Tenant and its employees and visitors
shall be on a "first come, first served," unassigned basis, with Landlord and
other tenants at the Property, and their employees and visitors, and other
Persons (as defined in Article 25 of the Lease) to whom Landlord shall grant the
right or who shall otherwise have the right to use the same, all subject to
these Rules, as the same may be amended or supplemented, and applied on a non-
discriminatory basis, all as further described in Article 6 of the Lease.
Notwithstanding the foregoing to the contrary, Landlord reserves the right to
assign specific spaces, and to reserve spaces for visitors, small cars,
handicapped
-47-
individuals, and other tenants, visitors of tenants or other Persons, and Tenant
and its employees and visitors shall not park in any such assigned or reserved
spaces. Landlord may restrict or prohibit full size vans and other large
vehicles.
(ii) In case of any violation of these provisions, Landlord may
refuse to permit the violator to park, and may remove the vehicle owned or
driven by the violator from the Property without liability whatsoever, at such
violator's risk and expense. Landlord reserves the right to close all or a
portion of the parking areas or facilities in order to make repairs or perform
maintenance services, or to alter, modify, re-stripe or renovate the same, or if
required by casualty, strike, condemnation, act of God, Law or governmental
requirement, or any other reason beyond Landlord's reasonable control. In the
event access is denied for any reason, any monthly parking charges shall be
abated to the extent access is denied, as Tenant's sole recourse. Tenant
acknowledges that such parking areas or facilities may be operated by an
independent contractor not affiliated with Landlord, and Tenant acknowledges
that in such event, Landlord shall have no liability for claims arising through
acts or omissions of such independent contractor, if such contractor is
reputable.
(iii) Hours shall be 6 A.M. to 8 P.M., Monday through Friday, and
10:00 A.M. to 1:00 P.M. on Saturdays, or such other hours as may be reasonably
established by Landlord or its parking operator from time to time; cars must be
parked entirely within the stall lines, and only small cars may be parked in
areas reserved for small cars; all directional signs and arrows must be
observed; the speed limit shall be 5 miles per hour; spaces reserved for
handicapped parking must be used only by vehicles properly designated; every
parker is required to park and lock his own car; washing, waxing, cleaning or
servicing of any vehicle is prohibited; parking spaces may be used only for
parking automobiles; parking is prohibited in areas: (a) not striped or
designated for parking, (b) aisles, (c) where "no parking" signs are posted, (d)
on ramps, and (e) loading areas and other specially designated areas. Delivery
trucks and vehicles shall use only those areas designated therefor.
-48-
RIDER TWO
Notwithstanding anything to the contrary contained in the Lease, the
parties agree that Operating Expenses for the Base Expense Year (herein called
"Base Year Expenses") and for any subsequent year (herein called "Subsequent
Year Expenses") shall be subject to further adjustment by Landlord as follows:
(i) Landlord may exclude from Base Year Expenses capital
expenditures otherwise permitted under Article 25 of the Lease (provided,
Landlord shall also exclude any amortization of such expenditures from
Subsequent Year Expenses).
(ii) If Landlord eliminates from any Subsequent Year Expenses a
recurring category of expenses previously included in Base Year Expenses,
Landlord may subtract such category from Base Year Expenses commencing with such
subsequent year.
(iii) If Landlord includes a new recurring category of Subsequent
Year Expenses not previously included in Base Year Expenses, Landlord shall also
include an amount (the "Assumed Base Amount") for such category in Base Year
Expenses commencing in such subsequent year.
(iv) The "Assumed Base Amount" under clause (iii), above, shall be
the annualized amount of expenses for such new category in the first year it is
included reduced by an amount determined in Landlord's sole, good faith, opinion
but in no event less than five percent (5%) for each full or partial calendar
year that has elapsed during the Term of the Lease before such year.
-49-
RIDER THREE
EXPANSION OF PREMISES
Reference is hereby made to the Sublease and Consent of even date herewith
executed by and among Arizona Physicians IPA, Inc., an Arizona corporation
("IPA"), Tenant, and Landlord (the "Sublease") pertaining to the Expansion Space
as defined and described in the Sublease (the "Expansion Space"). Effective as
of November 1, 1998 (the "Expansion Date"), the Expansion Space shall be added
to the Premises and be covered by this Lease throughout the remainder of the
Term of this Lease; provided, however, that the Base Rent payable for the
Expansion Space in the amount of THIRTY-SIX THOUSAND ONE HUNDRED THIRTY-EIGHT
and 96/100 ($36,138.96) shall be paid in addition to the Base Rent payable for
the Premises (as it existed immediately prior to the addition of the Expansion
Space). The Tenant's Prorata Share of Taxes and Operating Expenses shall be
appropriately escalated to reflect the increase in rentable area by the addition
of the Expansion Space and the appropriate increases in Base Rent and percent of
Tenant's Prorata Share shall apply as of the Expansion Date and thereafter
throughout the remainder of the Term. As of the Expansion Date, Landlord hereby
agrees to provide Tenant up to but not exceeding 20 non-building standard hours
of heating, ventilation and air conditioning services per week for the Expansion
Space only. Notwithstanding the forgoing, under no circumstances shall Landlord
be required to pay any amounts for such services exceeding Thirty Thousand Three
Hundred and 00/100 Dollars ($30,300.00) (the "HVAC Cap") for the remainder of
the Term. No unused portion of the HVAC Cap existing at the end of the Term
shall be applied to or setoff against Base Rent, additional rent or other
amounts due to Landlord under this Lease. All amounts above the HVAC Cap or
usage of heating, ventilation or air conditioning services of more than 20 non-
building standard hours per week shall be the responsibility of and shall be
paid by Tenant to Landlord together with amounts of base rent and other amounts
due under this Lease and Tenant's failure to pay such amounts shall constitute a
default under this Lease as in the event of the failure to pay Base Rent.
-50-
RIDER FOUR
NON-BUILDING STANDARD HOURS HVAC SERVICES
All heating, ventilation and air conditioning services for non-Building
Standard Hours on Saturdays must be requested by 3:00 p.m. on the preceding
business day. Subject to the terms of Rider Three hereof regarding the HVAC
Cap, heating, ventilation and air conditioning services for hours other than the
Building Standard Hours may be made available for a charge calculated as
follows:
Initial Suite activated: $45 per hour for the first hour and $40
per hour thereafter.
Each additional Suite activated: $7.00 per hour per Suite.
All charges for non-Building Standard Hours HVAC services shall be payable by
Tenant upon receipt of the invoice from Landlord for such services.
-51-
PARKING AGREEMENT
THIS AGREEMENT made as of the ____ day of July , 1996 , between
-------------- ---
AGF 4041 LIMITED PARTNERSHIP, a Texas Limited Partnership ("Landlord") and
----------------------------------------------------------
Interactive Flight Technologies, Inc., a Delaware corporation ("Tenant").
-------------------------------------------------------------
1. The parties hereby acknowledge that they have heretofore entered, or
are contemporaneously herewith entering, a certain lease dated July
----------------
, 1996 (the "Lease") for premises known as Suite(s) 2000 (the
--- --------------
"Premises") located in the property known as 4041 North Central
----------------------------
Avenue, Phoenix, Arizona 85012 (the "Property"). In the event
----------------------------------------------
of any conflict between the Lease and this Agreement, the latter shall control.
2. Landlord hereby grants to Tenant and persons designated by Tenant a
License to use up to seven (7) parking spaces in/*/ the Property Garage,
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and ________ parking spaces in or on the parking structure located to the east
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of the Building (collectively referred to herein as the
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"Garage"). The Term of such license shall commence on the Commencement Date
under the Lease and shall continue until the earlier to occur of the Expiration
Date under the Lease, or termination of the Lease or Tenant's abandonment of the
Premises thereunder. During the Term of this license, Tenant shall pay Landlord
the monthly charges established from time to time by Landlord for parking in the
Garage, payable in advance, with Tenant's payment of monthly Base Rent. The
initial charge for such spaces is $ /**/ , per space, per month, or a
--------------
total monthly charge of $ /***/ , for all such spaces. No deductions from
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the monthly charge shall be made for days on which the Garage is not used by
Tenant. However, Tenant may reduce the number of parking spaces hereunder, at
any time, by providing at least thirty (30) days advance written notice to
Landlord, accompanied by any key-card, sticker or other identification or
entrance system provided by Landlord or its parking contractor; such
cancellation shall be irrevocable. Tenant may, from time to time, request
additional parking spaces, and
-------------------
/*/ covered reserved parking in the Property Garage (Parking Structure), plus
up to Sixty-Four (64) in random (first come, first served), unreserved,
covered or roof top parking spaces
/**/ $45.00, plus tax per month per covered, reserved space, plus $35.00, plus
tax per month per random, unreserved, covered space, plus $25.00, plus tax
/***/ , to be and as calculated by Landlord from time to time
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if Landlord shall provide the same, such spaces shall be provided and used on a
month-to-month basis, and otherwise on the foregoing terms and provisions, and
such monthly parking charges as Landlord shall establish from time to time.
3. Tenant shall at all times comply with all applicable ordinances,
rules, regulations, codes, laws, statutes and requirements of all federal,
state, county and municipal governmental bodies or their subdivisions respecting
the use of the Garage. Landlord reserves the right to adopt, modify and enforce
reasonable Rules governing the use of the Garage from time to time, including
any key-card, sticker or other identification or entrance system, and hours of
operation. The Rules set forth hereinafter are currently in effect. Landlord
may refuse to permit any person who violates such Rules to park in the Garage,
and any violation of the Rules shall subject the car to removal from the Garage.
4. The parking spaces hereunder shall be provided on an unreserved
"first-come, first-served" basis. Tenant acknowledges that Landlord has or may
arrange for the Garage to be operated by an independent contractor, not
affiliated with Landlord. In such event, Tenant acknowledges that Landlord
shall have no liability for claims arising through acts or omissions of such
independent contractor, if such contractor is reputable. Except for intentional
acts or gross negligence, Landlord shall have no liability whatsoever for any
damage to property or any other items located in the Garage, nor for any
personal injuries or death arising out of any matter relating to the Garage, and
in all events, Tenant agrees to look first to its insurance carrier and to
require that Tenant's employees look first to their respective insurance
carriers for payment of any losses sustained in connection with any use of the
Garage. Tenant hereby waives on behalf of its insurance carriers all rights of
subrogation against Landlord or Landlord's agents. Landlord reserves the right
to assign specific spaces, and to reserve spaces for visitors, small cars,
handicapped persons and for other tenants, guests of tenants or other parties,
and Tenant and persons designated by Tenant hereunder shall not park in any such
assigned or reserved spaces. Landlord also reserves the right to close all or
any portion of the Garage in order to make repairs or perform maintenance
services, or to alter, modify, re-stripe or renovate the Garage, or if required
by casualty, strike, condemnation, act of God, governmental law or requirement
or other reason beyond Landlord's reasonable control. In such event, Landlord
shall refund any prepaid parking rent hereunder, prorated on a per diem basis.
If, for any other reason, Tenant or persons properly designated by Tenant, shall
be denied access to the Garage, and Tenant or such persons shall have complied
with this Agreement and this Agreement shall be in effect, Landlord's liability
shall be limited to such parking charges (excluding tickets for parking
violations) incurred by Tenant or such persons in utilizing
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alternative parking, which amount Landlord shall pay upon presentation of
documentation supporting Tenant's claims in connection therewith.
5. If Tenant shall default under this Agreement, Landlord shall have the
right to remove from the Garage any vehicles hereunder which shall have been
involved or shall have been owned or driven by parties involved in causing such
default, without liability therefor whatsoever. In addition, if Tenant shall
default under this Agreement, Landlord shall have the right to cancel this
Agreement on ten days' written notice, unless within such ten day period, Tenant
cures such default. If Tenant defaults with respect to the same term or
condition under this Agreement more than three times during any twelve month
period, and Landlord notifies Tenant thereof promptly after each such default,
the next default of such term or condition during the succeeding twelve month
period, shall, at Landlord's election, constitute an incurable default. Such
cancellation right shall be cumulative and in addition to any other rights or
remedies available to Landlord at law or equity, or provided under the Lease
(all of which rights and remedies under the Lease are hereby incorporated
herein, as though fully set forth). Any default by Tenant under the Lease shall
be a default under this Agreement, and any default under this Agreement shall be
a default under the Lease.
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RULES
(i) Garage hours shall be 6 A.M. to 8 P.M. or such other hours as
Landlord shall determine from time to time.
(ii) Cars must be parked entirely within the stall lines painted on
the floor, and only small cars may be parked in areas reserved for small cars.
(iii) All directional signs and arrows must be observed.
(iv) The speed limit shall be 5 miles per hour.
(v) Spaces reserved for handicapped parking must be used only by
vehicles properly designated.
(vi) Parking is prohibited in all areas not expressly designated for
parking, including without limitation:
(a) areas not striped for parking
(b) aisles
(c) where "no parking" signs are posted
(d) ramps
(e) loading zones
(vii) Parking stickers, key cards or any other devices or forms of
identification or entry supplied by Landlord shall remain the property of
Landlord. Such devices must be displayed as requested and may not be mutilated
in any manner. The serial number of the parking identification device may not
be obliterated. Devices are not transferable and any device in the possession
of an unauthorized holder will be void.
(viii) Monthly fees shall be payable in advance prior to the first day
of each month. Failure to do so will automatically cancel parking privileges
and a charge at the prevailing daily parking rate will be due. No deductions or
allowances from the monthly rate will be made for days on which the Garage is
not used by Tenant or its designees.
(ix) Garage managers or attendants are not authorized to make or allow
any exceptions to these Rules.
(x) Every parker is required to park and lock his own car.
(xi) Loss or theft of parking identification, key cards or other such
devices must be reported to Landlord or any garage manager immediately. Any
parking devices reported lost
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or stolen found on any unauthorized car will be confiscated and the illegal
holder will be subject to prosecution. Lost or stolen devices found by Tenant
or its employees must be reported to the office of the garage immediately.
(xii) Washing, waxing, cleaning or servicing of any vehicle by the
customer and/or his agents is prohibited. Parking spaces may be used only for
parking automobiles.
(xiii) By signing this Parking Agreement, Tenant agrees to acquaint all
persons to whom Tenant assigns parking space of these Rules.
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Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘S-3/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 11/1/98 | | 50 | | | | | None on these Dates |
| Filed on: | | 11/18/96 |
| List all Filings |
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