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Exhibit 10.40
BUSINESS PARK LEASE
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ARTICLE ONE
BASIC LEASE PROVISIONS
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Date: September 1, 2000
Landlord: d/b/a Wilshire Square
Address of Landlord: Wilshire Square
7912 East 31/st/ Court, Suite 200
Tulsa, Oklahoma 74145-1346
Tenant: IDS Engineering, Inc.
Address of Tenant: 600 Century Drive, Building 140
Houston, Texas 77073
Address of Tenant
at Wilshire Square: 11008 East 51/st/ Street (5,400 Square Feet)
11004 East 51/st/ Street (2,700 Square Feet)
Tulsa, Oklahoma 74146
Tenant's Trade Name: IDS Engineering, Inc.
Size of Leased Premises: One Story Business Location containing
approximately 8,100 square feet
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of ground area. (Article 2)
Use of Premises by Tenant: Engineering Office (Article 4)
Lease Term: 36 Lease Months (Article 3)
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Commencement Date: September 1, 2000* (Article 3)
Ending Date: August 31, 2003* (Article 3)
Rental:
1. Minimum Rental: $161,352.00 for the term of the Lease
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payable in equal monthly installments of
$ 4,482.00 subject to adjustment with
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the first month's installment
due at the execution of the Lease. (Article 5)
2. Additional Rental: $ 4,050.00 Common Area Fee for the
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first year of the Lease payable in equal
monthly installments of $ 337.50
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subject to adjustment. (Article 6)
Security Deposit: $ 2,925.00 transferred from lease dated
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February 8, 1999.
Guarantor: None
Broker: CB Richard Ellis/Oklahoma -
Matt Klimisch/William H. Mizener
Expiration of Offer Date: August 15, 2000 (Article 24.1)
*Expiration of Existing Lease: Upon its execution by all parties, this Lease
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dated March 15, 2000 shall replace the current lease in force dated February 8,
1999. Further, this Lease shall commence August 1, 2000 or sooner if mutually
agreed to by the parties and the lease dated February 8, 1999 shall terminate
without penalty at that time and, in addition, this Lease shall terminate and
replace a second lease dated March 15, 2000 for the same 8,100 square feet from
August 1, 2000 to September, 2000.
Note: Landlord will place all mechanical systems in working order at 11004 East
51/st/.
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1.1 Each reference in this Business Park Lease (herein sometimes called
"Lease") to any of the Basic Lease Provisions contained about shall be
deemed and construed to incorporate all of the terms provided under each
such Basic Lease Provision.
1.2 The exhibits enumerated in this Section and attached to this Lease are
incorporated in this Lease by reference and are to be construed as part of
this Lease.
Exhibit "A" - Plot Plan of the Business Park
Exhibit "B" - Legal Description of the Business Park
Exhibit "C" - Description of Landlord's Work
Exhibit "D" - Changes, Alterations and Modifications
Exhibit "E" - Signage Specifications
Exhibit "F" - Rules and Regulations
ARTICLE TWO
PREMISES, IMPROVEMENTS, POSSESSION
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2.1 The Leased Premises consist of a one-story space having square footage set
out in Article One. The Premises are shown and outlined in red on the
drawing identified as Exhibit "A", which is attached hereto and made a part
hereof. The Premises are located within a portion of the Business Park
buildings (the "Building") and upon a portion of certain real property (the
"Property") situated in the City of Tulsa, Tulsa County, Oklahoma, which
said real property is more particularly bounded and described in Exhibit
"B", hereto annexed and made a part hereof. Should there exist a
discrepancy between the exact dimensions of the Premises, as set forth on
Exhibit "A", and the locations of the boundary walls of the Premises, as
finally constructed, the actual physical location of the boundary walls
shall control. In addition to the leased Premises, Tenant is hereby granted
a license (the "License") for the non-exclusive use, in connection with the
Tenant's permitted uses of the Premises, in common with Landlord and other
licensees of Landlord, of the parking areas, roadways, service areas and
sidewalks constructed on the Property as indicated approximately on said
Exhibit "A". Said License shall be limited to the use for which such areas
are intended and shall be subject to such reasonable rules and regulations
as the Landlord may prescribe, from time to time, for the common benefit of
Landlord and its licensees and of Tenant and other tenants of the Property.
2.2 Landlord shall deliver possession of the Premises to Tenant, and Tenant
shall accept the Premises from Landlord, in their present condition as of
the date hereof; provided, however, prior to delivery of possession of the
Premises to Tenant, Landlord shall have made such repairs and improvements
and shall, at Landlord's sole cost and expense, have substantially
performed such work and installation of improvements to the Premises as are
set forth as "Landlord's Work" in Exhibit "C", annexed hereto and made a
part hereof. Any and all improvements to the Premises for the use of
Tenant, other than Landlord's Work, shall be performed at Tenant's sole
cost and expense, in accordance with Article Twenty-Two herein below
contained.
2.3 In the event of any disagreement of dispute between Landlord and Tenant
with reference to work to be performed with respect to the Premises
pursuant to Exhibits "C" or "D", or with respect to whether or not the
Premises are available for Tenant's modifications or Tenant's occupancy,
the certification in writing upon an approved AIA form, of Landlord's
supervising architect, Holmes and Bjornberg Architects, shall be conclusive
and binding upon the parties hereto.
ARTICLE THREE
TERM AND TERMINATION
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3.1 Landlord does hereby lease, let and demise the Premises to Tenant for the
term specified in Article One above. Subject to the provisions hereof
relating to making the Premises ready for occupancy, the Commencement Date
and Ending Date shall be as specified in Article One.
3.2 Landlord agrees to exercise due diligence in making the Premises available
for Tenant's use and occupancy and to deliver the Premises to Tenant not
later than the
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Commencement Date specified in Article One above. However, should Landlord
be unable to complete said Premises by said date, which delay in completion
is due to any occurrence or eventuality outside the direct control of
Landlord, the date of delivery of the Premises to Tenant shall be extended
until such time as Landlord is able to substantially complete the Premises
and the Commencement Date and Ending Date of the term of this Lease shall
be adjusted to take into account the delay in making the premises available
for Tenant's use and occupancy. Tenant agrees that no such delay shall be
grounds for cancellation or alteration of the terms and conditions of this
Lease unless such delay exceeds 45 days. In the event of any delay in
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delivery of the Premises to Tenant, Landlord shall not be subject to any
liability for failure to give possession after said date. Tenant shall have
thirty days after taking possession to notify Landlord of any deficiencies
in the Premises. Failure of Tenant to so notify Landlord shall be
conclusive evidence that the Premises were in good order and satisfactory
condition when Tenant took possession, unless otherwise agreed in writing.
3.3 This Lease and the tenancy herein created shall cease and terminate at the
end of the lease term set forth above or at the end of any period of
extension or renewal as provided by written extension agreement or as
otherwise provided herein without the necessity of any notice from either
Landlord or Tenant to terminate the same. The Tenant hereby waives notice
to vacate the Premises and agrees that Landlord shall be entitled to the
benefit of all provisions of law respecting the summary recovery of
possession of Premises from Tenant holding over without the consent of
Landlord to the same extend as if a notice had been given. In the event
Tenant holds over and beyond the term of this Lease, for any reason,
without the express written consent of Landlord, Tenant shall be deemed a
"hold over tenant" in violation of the terms of this Lease, and shall be
subject to all covenants and conditions of this Lease Agreement, except
however, that the minimum monthly rental installment during each month, or
fractional part thereof, of continued occupancy shall be two hundred
percent (200%) of the amount payable by Tenant as total rental during the
last one (1) month of the lease term. If Tenant holds over and beyond the
term of this Lease with the consent of Landlord, then, except as otherwise
provided by written agreement, the tenancy of Tenant shall be a month-to-
month tenancy at will, subject to all covenants and conditions of this
Lease Agreement including the monthly rental installment provisions which
shall be applied on a month-to-month basis. Thirty (30) days written notice
(computed from the date of delivery of such notice) shall be required in
order for either party to terminate the tenancy at will.
ARTICLE FOUR
USE OF THE PREMISES
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4.1 The Premises shall be used by the Tenant solely for the purpose provided
for in Article One above, and for no other use or purpose without the prior
written consent of Landlord.
4.2 Tenant further covenants and agrees that its use and occupancy of the
Premises shall strictly comply with and not involve any violation of any
federal, state or municipal statute, rule, ordinance or zoning law or any
regulation, rule or directive of any governmental or regulatory agency as
may now exist or may hereafter exist concerning the use, operation or
safety of the Premises. In addition, Tenant covenants and agrees to operate
the Premises in conformance with the Rules and Regulations which are
attached to this Agreement as Exhibit "F", and made a part hereof. Tenant
shall not use the Premises or the building in which the Premises are
contained for any purpose that will increase the insurance rate or risk of
the building above that which is customary and normal for the uses set
forth above and, in such event, Landlord, as an additional remedy for the
violation of this provision, may elect to recover, as "Additional Rental"
(defined below), the total cost of such increase from Tenant, without
contribution of other tenants of the Business Park. (See Article 8.6.)
4.3 All damages to the Premises, the Common Areas or the building in which the
Premises are contained, caused by Tenant's negligence, shall be repaired at
Tenant's expense. Tenant shall not commit waste or allow waste to be
committed on the Premises or the Common Areas. Tenant shall not perform any
acts or carry on any practices which will constitute a nuisance or menace,
or be offensive, to the other tenants or occupants or
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to the general public. Tenant shall keep the Premises, its use of the
Common Areas and all its improvements in sound condition, in good repair
and safe for the incidental use of its business invitees.
4.4 Tenant shall not make or permit any noise or odor that is objectionable to
the public, to other tenants of the Business Park or to Landlord to emanate
from the Premises and shall not create or maintain a nuisance thereon.
Tenant shall not disturb, solicit or canvas the users of the Common Areas
without the consent of Landlord and shall not do any act tending to injure
the reputation of the Landlord or the Business Park.
4.5 Lessee shall not place or permit any radio antenna, loud speakers, sound
amplifiers or any other thing or item on the exterior of the roof or
outside of the building or the Premises.
4.6 Lessee shall not obstruct, encumber or use the parking areas, sidewalks,
entrances, passages, vestibules, stairways, corridors and halls for any
purpose other than ingress or egress to and from the Premises and for
parking only in the delegated areas for such use.
ARTICLE FIVE
RENTAL
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5.1 The total agreed rental (the "Rental") for the term of this Lease is the
sum of: (i) the "Minimum Rental" (defined below) and (ii) the "Additional
Rental" (defined below).
5.2 (a) The Minimum Rental for the lease term shall be in the amount provided
in Article One. In the event the first day of the lease term shall not
be the first day of a calendar month, then the rental for the first
month of the term shall be prorated on a daily basis.
(b) Tenant shall pay the Minimum Rental, in advance, in equal monthly
installments as provided in Article One.
(c) An amount equal to the first installment of Minimum Rental payment
shall be paid by Tenant upon the execution of this Lease. Tenant will
receive, on any prorated minimum rent due and for the first full
month's minimum rent due a credit in an amount equal to this
installment. Any minimum rental for the first full month under this
Lease for which minimum rental is payable, after the application of
the above described credit, will be due on or before the first day of
the month to which it is applicable. other installments of the
minimum rental payment shall be due on or before the first day of the
month to which it is applicable and the rental obligation of Tenant
shall be deemed delinquent if any given monthly installment is not
received by Landlord on or before the fifth day of the month in which
it is due. Any Additional Rental or Rental Adjustments which are not
paid within five (5) days of when they are due shall be deemed
delinquent.
All rentals shall be paid by Tenant without any right of offset or
deductions therefrom for any purpose. All rent is, and shall be,
payable in legal tender at Landlord's address as set forth herein for
notice or at such other address as Tenant may be directed from time to
time by notice from Landlord.
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5.6 The term "Additional Rental" shall include any cost, charge or expense of
any kind whatsoever which is or may become payable and due to Landlord by
Tenant in accordance with the terms, covenants and conditions of this
Lease, excluding Minimum Rental. Additional Rental includes, but is not
limited to, Tenant's Common Area Maintenance Fees (Article Six), Tenant's
Proportionate Share of Excess Taxes (Article Seven) and Excess Premiums
(Article Eight) and any and all Rental Taxes which are in existence or
which may come into existence, and which are based upon or measured by the
payment of Minimum Rental or items of Additional Rental other than said
Rental Taxes.
5.7 Any installment of rent accruing under the provisions of this Lease that
shall not be paid when due shall bear interest at the annual rate of three
percent (3%) above the prime rate reported from time to time by the Wall
Street Journal as the base rate on corporate loans at large U. S. Money
Center commercial banks from the date when the same was payable by the
terms hereof until the same shall be paid by Tenant.
ARTICLE SIX
COMMON AREA MAINTENANCE FEE
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6.1 Tenant covenants and agrees to pay to the Landlord, in addition to the
rentals specified in Article Five hereof, as Additional Rental, a Common
Area Maintenance Fee payable in equal monthly installments as provided for
in Article One. Landlord shall have the responsibility of Business Park's
Common Area (defined below) specifically including, without limitation
gardening and landscaping, lighting, removal of Common Area trash, rubbish,
garbage and other refuse, parking lot cleaning, snow removal, outside
window cleaning (monthly), Common Area utilities and lawn maintenance.
"Common Area" means all areas and space provided by Landlord for the common
use and joint use of the occupants of the Business Park and/or their
employees, agents, servants and customers and other invitees, including,
without limitation, parking area, access roads, driveways, retaining walls,
interior store boundary walls, exterior walls and trim (but not store
fronts), exterior utilities and service lines, landscaped areas, truck
service ways loading docks, stairs, ramps and sidewalks.
6.2 Within one hundred twenty days following the end of the year 1999 and each
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year thereafter Landlord shall furnish Tenant a statement covering the
calendar year just ended, certified as correct by a certified public
accountant or an authorized representative of Landlord and showing the
total Business Park Common Area Maintenance Costs and the amount of
Tenant's share for such costs. If Tenant's share exceeds the Common Area
Fee provided for in Article One, then Tenant's Common Area Fee will be
increased to reflect the increase in the Common Area Maintenance Cost and
will be payable as Additional Rental pursuant to Section 6.1 above.
6.3 Common area maintenance fees shall not escalate more than 5% of base rate
for the term of the Lease.
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ARTICLE SEVEN
TAXES
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7.1 Landlord agrees to pay all taxes, assessments and governmental charges of
any kind and nature whatsoever (hereinafter collectively referred to as
"Taxes") lawfully levied or assessed against the Business Park, including
the buildings and the grounds, parking areas, driveways and alleys around
the buildings, provided, however, that the maximum in taxes attributable to
the Business Park to be paid by Landlord during any one real estate tax
year shall be those taxes levied against the Business Park during the year
1999. If in any real estate tax year during the term of this Lease, or
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any renewal or extension of this lease, the taxes levied against the
buildings and the grounds, parking areas, driveways and alleys around the
buildings during such tax year shall exceed the amount levied during the
year 1999, Tenant shall pay to Landlord as additional rental, Tenant's
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proportionate share of the amount of such excess ("Excess Taxes").
Tenant's proportionate share, as used herein, shall mean a fraction, the
numerator of which is the floor area contained in the Premises as provided
in Article One above and the denominator of which is the total contracted
floor area in the Business Park.
7.2 At Tenant's request Landlord shall employ a tax consulting firm to attempt
to assure a fair tax burden on the buildings and grounds within the
applicable taxing jurisdiction. Tenant shall pay to Landlord upon demand
from time to time, as additional rent, the amount of Tenant's proportionate
share of the cost of such service.
7.3 Any payment to be made pursuant to this Article Seven with respect to the
real estate tax year in any partial lease year shall be prorated.
ARTICLE EIGHT
INSURANCE
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8.1 The Landlord agrees that it will keep the buildings in the Business Park of
which the Premises is a part (excluding Tenant's improvements and the
contents of the Premises) insured by standard form fire and extended
coverage casualty insurance in an amount not less than eighty percent (80%)
of the original cost thereof (excluding excavations, footings and
foundations).
8.2 The Landlord agrees to maintain public liability insurance covering the
Business Park of which the Premises is a part, it being understood that
such coverage may not insure against the negligence of the Tenant.
8.3 Tenant will keep in force, at its own expense so long as this Lease remains
in effect or during such other time as the Tenant occupies the leased
Premises or any part thereof, public liability insurance with respect to
the leased Premises with minimum limits of One Million Dollars
($1,000,000.00) on account of bodily injury or death of one person, and One
Million Dollars ($1,000,000.00) on account of bodily injuries or death of
more than one person as a result of any one accident or disaster; and
property damage insurance at the minimum limits of 2,000,000.00. Tenant
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shall cause Landlord to be named as an additional insured party thereon.
Insurance coverage, as provided, shall be issued by insurance companies
licensed to do business in the State of Oklahoma with a Best's rating of
"A" or better. Tenant shall deliver to the Landlord a certificate or
certificates of insurance of all such insurance coverage, a copy of all
such insurance policies and proof of payment of annual premiums.
8.4 Landlord shall insure at its sole cost and expense any and all plate and
other glass damaged or broken from any cause whatsoever in and about the
Premises.
8.5 Tenant agrees that it will not keep, use, sell or offer for sale in or upon
the Leased Premises any article which may be prohibited by the standard
from of fire insurance policy. Tenant agrees to pay any increases in
premiums for fire and extended coverage insurance that may be charged
during the Lease Term on the amount of such insurance which may be carried
by Landlord on the Premises or the Business Park, resulting from the type
of materials kept or stored by Tenant in the Premises, whether or not
Landlord has consented to the same. In determining whether increased
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premiums are the result of Tenant's use of the Premises, a schedule, issued
by the organization making the insurance rate on the Premises, showing the
various components of such rate, shall be conclusive evidence of the
several items and charges which make up the fire insurance rate on the
Premises.
8.6 In the event Tenant's occupancy causes any increase of premium for the fire
and/or casualty rates on the Premises or Business Park or any part thereof
above the rate for the least hazardous type of occupancy legally permitted
in the Premises, the Tenant shall pay the additional premium on the fire,
and/or casualty insurance policies by reason thereof. The Tenant also shall
pay, in such event, any additional premium on the rent insurance policy
that may be carried by the Landlord for its protection against rent loss
through fire. Bills for such additional premiums shall be rendered by
Landlord to Tenant at such times as Landlord may elect, and shall be due
from, and payable by, Tenant when rendered, and the amount thereof shall be
deemed to be, and be paid as, additional rent.
8.7 If during the year 1999, or during any subsequent year of the primary
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term or any renewal or extension, Landlord's cost of maintaining the
insurance provided for in this Article shall exceed Landlord's cost of
maintaining such insurance for the year 1999, Tenant agrees to pay to
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Landlord, as additional rental, Tenant's full Proportionate Share, as
defined in Paragraph 7.1 above, of such excess ("Excess Premiums").
8.8 Any payment to be made pursuant to this paragraph with respect to a partial
lease year shall be subject to a pro rata adjustment based on the ratio of
the partial lease year to a full lease year.
ARTICLE NINE
DEFAULT
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9.1 In the event of a default, as herein described, on the part of the Tenant,
Landlord shall have the following remedies which shall be cumulative and
shall not exclude any other right or remedy given to Landlord as Landlord
under the laws of the State of Oklahoma.
9.2 If Tenant shall file a petition in voluntary bankruptcy or be adjudged
bankrupt in involuntary proceedings or make all assignment for benefit of
creditors or like arrangements or composition or file a petition in the
federal court for reorganization or otherwise seek relief under the Code of
Bankruptcy of the United States of America or files for the appointment of
a receiver or trustee or discontinues business in the Premises for any
reason whatsoever, except as otherwise permitted by this Lease, such is to
be considered a default under this Lease and Landlord, without further
notice or demand and either with or without entry upon Premises, at its
discretion at anytime thereafter, may elect to terminate Tenant's rights
under this Lease and thereafter be entitled to recover damages in the
amount equal to the then present value of the then remaining and unpaid
portion of the Minimum Rental for the remaining and unexpired portion of
the term of this Lease. Said present value shall be calculated using a
discount factor equal to the then cost of funds published by the Eleventh
District Federal Home Loan Bank; and/or
9.3 Upon the following events of default by Tenant:
(a) The payment of any Rental not being made upon the day the same shall
become due and same remains unpaid for five (5) days after written
notice from Landlord to Tenant of such nonpayment of Rental.
(b) The neglect, failure or refusal by the Tenant in the performance of
any of the other terms, conditions or covenants of this Lease by said
Tenant to be performed, and the continued neglect, failure or refusal
for a period of ten (10) days after the service of written notice of
such default by the Landlord on Tenant; then the Landlord may enter
into and upon the Premises or any part thereof and repossess the same
with or without terminating this Lease and, without prejudice to any
of its remedies for rent or breach of covenant and in any such event,
may, at its option: (i) terminate said Lease by giving written
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notice of its election to so do, or may, at its option, (ii) lease the
Premises or any part thereof as the agent of the Tenant, or otherwise,
or may, at its option, (iii) accelerate to the entire remaining unpaid
balance of Minimum Rental, in which event the then present value of
the entire unpaid balance of Minimum Rental shall be immediately due
and payable as similarly provided in Article 10.2 below. In the event
of any such re-letting, as described in (ii) above, the Tenant shall,
without demand or further process of law, pay to Landlord at the end
of each month during the full term of this Lease, the deficiency of
the net Minimum Rental.
9.4 Landlord shall, in addition thereto, have a lien against all merchandise,
fixtures, furniture, equipment or other personal property located in the
Premises for the payment of rents or other amounts due hereunder.
9.5 In the event of breach or Rental default as provided herein, Landlord shall
be entitled to common law and statutory (Oklahoma) remedy of distraint and
Landlord shall be entitled to the immediate possession of the Premises and
may sell and dispose of the leasehold, as well as the property of the said
Tenant, at public auction. Tenant hereby acknowledges that this is a lease
for business purposes only and does, by these presents, waive any rights
granted to Tenant pursuant to any statutes of the State of Oklahoma. Tenant
shall be liable to Landlord for all sums remaining unpaid in the event of
such a sale and all of the expenses incident to the collection thereof,
including reasonable attorney's fees.
ARTICLE TEN
FIRE OR OTHER CASUALTY
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10.1 If the Premises (excluding Tenant improvements or contents of the Premises)
shall be damaged by fire or other risk covered by standard form fire and
extended coverage casualty insurance and is not thereby rendered
untenantable, in whole or in part, Landlord shall promptly, upon receipt of
insurance proceeds, cause such damage to be repaired and the rent shall not
be abated; if, by reason of such occurrence, the Premises shall be rendered
untenantable only in part, the Landlord shall promptly, upon receipt of
insurance proceeds, cause the damage to be repaired and the minimum rent,
meanwhile, shall be abated proportionately as to the portion of the
Premises rendered untenantable; if, by reason of such occurrence, the
Premises should be rendered wholly untenantable, the Landlord shall
promptly, upon receipt of insurance proceeds, cause such damage to be
repaired, and the minimum annual rent, meanwhile, shall be abated in whole;
provided, however, if the leased Premises shall be damaged, whether or not
from a risk of the type covered by Landlord's fire and extended coverage
casualty insurance, to the extent that such damage is fifty percent (50%)
or more of the then replacement cost of the leased Premises, then, in such
event, the Landlord shall have the right, at Landlord's option, to declare
this Lease canceled by giving appropriate written notice to the Tenant
within thirty (30) days first following said occurrence, whereupon this
Lease Agreement and tenancy hereby created shall cease as of the date of
damage occurrence, all rentals to be adjusted as of such date. The
obligation of Landlord, where such obligation exists under the foregoing
sentence, to repair damages shall be limited to repair and restoration of
the damaged portion of the Premises to substantially the condition of the
Premises as existed upon delivery of possession of the Premises to Tenant
at the commencement of the term of this Lease, is modified by ordinary wear
and tear preceding such damage. If the Premises shall be damaged, whether,
or not from a risk of the type covered by Landlord's fire and extended
coverage insurance, provided such damage was not caused by the negligent or
willful acts of the Tenant, and is thereby rendered untenantable, wholly or
in part, following which the Landlord is unable to repair the Premises
within 120 days after receipt by the Landlord of the insurance proceeds,
then, in such event, the Tenant shall have the right, at Tenant's option,
to declare this Lease canceled by giving appropriate written notice to the
Landlord within ten (10) days first following said 120 day period,
following which this Lease Agreement and tenancy hereby created shall cease
as of the date of such notice.
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10.2 It is further understood and agreed that, if fifty percent (50%) or more of
the gross floor area of the building of the Business Park wherein the
Premises are located (whether or not the Premises are damaged) are rendered
untenantable by fire or other casualty, following which the Landlord does
not elect to commence restoration of said damages within sixty (60) days
after such occurrence of damages, then, in such event, the Landlord shall
have the option right to declare this Lease canceled by giving appropriate
written notice, within thirty (30) days first following said sixty (60) day
period, following which this Lease Agreement and tenancy hereby created
shall cease as of the last day of the next full calendar month first
following the date of such termination notice.
ARTICLE ELEVEN
REPAIRS AND MAINTENANCE
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11.1 Landlord will keep the exterior, including the roof and structural portions
of the Premises, except doors in good repair; provided, however, Landlord
shall not be responsible for the repair of any damage that shall be caused
by the negligence of the Tenant or its agents, servants, employees,
assignees, sublessees, contractors, customers, or invitees. The Landlord
agrees to keep in good repair and to maintain, to the extent reasonably
necessary and consistent with good business practices, the Common Area of
the Business Park, to keep the same reasonably free from debris and to
illuminate such areas adequately. Landlord shall be under no other
liability for repair, maintenance, alteration or other action with
reference to the Premises or any part thereof, or any plumbing, heating,
electrical, air conditioning or other mechanical installation therein,
except as otherwise provided by Article Eleven of this Lease Agreement
relating to repair of damage from a casualty. Landlord shall be responsible
for all repair in excess of $250.00 per occurrence.
11.2 Landlord agrees to provide and maintain the necessary mains, feeders, ducts
and conduits within the Business Park in order to bring gas and electricity
up to the boundary of the Premises; it being understood that all means of
distribution of such services within the Premises shall be maintained by
the Tenant at the Tenant's expense.
11.3 Tenant hereby agrees to keep the interior of the Premises, including any
doors, together with all lighting, electrical, plumbing, heat, ventilating
and air conditioning systems and other mechanical installations therein, in
good order and repair and will make all replacements thereto at its own
expense. Tenant will surrender the leased Premises at the expiration of the
term or at such other time as it may vacate the Premises in as good a
condition as when received, excepting depreciation caused by ordinary wear
and tear and damage by other causes not required hereunder to be repaired
by Tenant.
11.4 Landlord agrees that on all new interior construction, the normal
contractor and equipment warranties will inure to the benefit of Tenant.
ARTICLE TWELVE
UTILITIES
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12.1 All utility services except for water and sewage services, used by the
Tenant in connection with the occupancy of the Premises, shall be paid by
Tenant directly to the provider of such services, and the Tenant shall keep
all bills for such services current as they come due. Tenant hereby
indemnifies and agrees to save Landlord harmless from all such liability
for said services. In the event Tenant fails to pay for any such services
as and when they come due, Landlord may elect to pay same and charge
Tenant, as Additional Rental, the amounts paid. It is understood that
utility services, excluding water and sewage, have been designed for
separate metering and that Tenant will provide such deposits, if any, as
may be required by any utility company in order to cause commencement of
utility services to the Premises occupied by Tenant.
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Water and sewage services for the Premises shall be provided through a
Landlord's common use meter at Landlord's expense. In no event shall
Landlord be liable for an interruption or failure in the supply of water
and sewage services to the Premises. Water and sewage service shall be paid
for by Landlord. Tenant will be billed periodically for its pro rata share
of these charges as Additional Rental.
ARTICLE THIRTEEN
SIGNS AND ADVERTISING
---------------------
13.1 Tenant will not place or suffer to be placed or maintained on the exterior
of the Premises any sign, advertising matter or other thing of any kind and
will not place or maintain any decoration, lettering or advertising matter
on the door or any glass of the Premises without first obtaining the
Landlord's written approval thereof. The cost of all signage of any kind
whatsoever shall be borne by Tenant, unless otherwise provided herein. Upon
the installation or removal of any signs or advertising matter, Tenant
shall, at its sole expense, repair any damages to the Building or to the
Common Usage Areas occasioned by such installation or removal, including
restorations occasioned thereby. Any sign or advertising matter placed or
maintained by Tenant will be in conformance with the provisions of Exhibit
"E" attached hereto and made a part hereof.
13.2 The Landlord reserves the right to place any sign or advertisement on the
Building or the Common Usage Areas as it desires and to place restrictions
on the sources furnishing sign painting, lettering or construction, and on
the appearance of such signage.
ARTICLE FOURTEEN
ASSIGNMENTS OR SUBLETTING
-------------------------
14.1 Tenant will not assign this Lease, in whole or in part, nor sublet all or
any part of the Premises without the prior written consent of the Landlord
being first obtained, which consent shall not be unreasonably withheld. Any
such assignment or subletting shall not affect or relieve the Tenant from
any of its obligations under this Lease, including, without limitation, the
obligations to pay the Rentals when due and the obligations of Tenant to
perform all of its covenants hereunder. The terms "assign" and "sublet"
shall be construed to include assignment or subletting by operation of law.
14.2 If at any time during the Lease Term, any part, or all, of the corporate
shares of Tenant shall be transferred by sale, assignment, bequest,
inheritance, operation of law or other disposition so as to result in a
change in the present effective voting control of Tenant by the person, or
persons, owning a majority of said corporate shares on the date of this
Lease, Tenant shall promptly notify Landlord in writing of such change and
Landlord may terminate this Lease at any time after such change in control
by giving Tenant thirty (30) days' prior written notice of such
termination.
ARTICLE FIFTEEN
PARKING AREAS
-------------
15.1 Landlord reserves the right to designate in its sole discretion, certain
portions of the Common Area to be used as parking areas for the exclusive
use of certain tenants and/or their business invitees and to designate
other portions of the Common Area to be used as parking areas for the
general use of all the tenants of the Business Park and their business
invitees.
ARTICLE SIXTEEN
INSPECTION
----------
16.1 Landlord or Landlord's agents shall have the right to enter the Premises
during normal business hours to examine the same and to show them to
prospective purchasers, mortgagees or tenants of the Landlord or to make
such decorations, repairs, alterations, improvements or additions as the
Landlord may deem necessary or desirable.
16.2 In the event of an emergency, Landlord or Landlord's agent may enter the
Premises
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using whatever means is reasonable under the circumstances to accomplish
such entry.
16.3 Tenant shall, upon termination of the Lease or of Tenant's possession,
surrender all keys of the Premises to Landlord at the place then fixed for
the payment of rent and shall make known to Landlord the explanation of all
combination locks on safes, cabinets and vaults in the Premises.
ARTICLE SEVENTEEN
SUBORDINATION TO MORTGAGE
-------------------------
17.1 At the option of the holder of any present or future mortgage of the land
and buildings of which the Premises are a part, this Lease shall be subject
and subordinate to such mortgage to the full extent of all sums and amounts
secured thereby and, at the request of Landlord or Landlord's mortgagee,
without any way diminishing or negating the effectiveness of the
subordination provided for herein, Tenant shall execute any instruments or
documents that may be deemed necessary or proper by counsel for Landlord or
Landlord's mortgagee to effect such subordination; provided, however, that,
at such time as any subordination is requested, Landlord shall furnish
Tenant evidence that Tenant shall have the right to remain in possession of
the Premises under the terms of this Lease, notwithstanding any default in
such mortgage or trust deed or after foreclosure thereof, so long as Tenant
is not in default under any of the covenants, conditions and agreements
contained in this Lease. In the event any proceedings are brought for the
foreclosure of any mortgage on property on which the Premises is located,
Tenant will attorn to the purchase at a foreclosure sale and recognize the
purchaser as Landlord under the Lease.
17.2 At Landlord's request, Tenant will execute either an estoppel certificate
addressed to Landlord's mortgagee or any prospective successor of Landlord
or a three-party agreement among Landlord, Tenant and said mortgagee or
successor, certifying to such facts (if true) regarding the status and
terms of this Lease as may be requested and agreeing to such notice
provisions and other matters as such mortgagee or successor may reasonably
require in connection with Landlord's financing or the conveyance of the
Building.
ARTICLE EIGHTEEN
WARRANTY, COMPLIANCE WITH LAWS
------------------------------
18.1 The Landlord covenants and warrants that it has full right, power and
authority to enter into this Lease for the term herein granted and that, as
of the date hereof, the said Premises may be used by Tenant for the
purposes herein set forth. The Tenant agrees, during its occupancy of the
Premises, to promptly execute, observe and comply with all present and
future laws, ordinances, rules, requirements and regulations of any
federal, state, county, city or any other governmental agency and of any or
all of their respective several departments, offices and bureaus affecting
the Premises.
ARTICLE NINETEEN
NOTICES
-------
19.1 For all purposes hereunder, the addresses of the parties hereto are as
follows:
Landlord: Wilshire Square
c/o CB Richard Ellis/Oklahoma, Property Management
7912 East 31/st/ Court, Suite 200
Tulsa, Oklahoma 74145-1346
Tenant: At address shown in Article One.
19.2 The parties hereto shall have the right, from time to time, to designate
different addresses than those above set forth by giving written notice to
the other party designating such new address.
19.3 Any notice to be given by either party to the other shall be in writing and
shall be
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deemed to have been served upon the party to whom it shall be directed: (i)
as of the date of deposit in the United States mail, postage prepaid,
certified or registered mail, addressed to such party at the address above
given, or at such other address as such party may, from time to time,
designate in accordance with the provisions hereof or (ii) as of the date
of hand delivery to the Landlord or Tenant as the case may be.
ARTICLE TWENTY
PREMISES ALTERATIONS
--------------------
20.1 The Tenant shall have the right, at any time and from time to time during
the term of this Lease, to make such changes and alterations to the
interior of the Premises as the Tenant shall deem necessary or desirable in
--------
connection with the requirements of the Tenant's business; provided,
however:
(a) no change or alteration shall weaken, either temporarily or
permanently, the structure of the Premises nor, when completed, shall
be of such a character as to:
(1) affect adversely the value of the Premises;
(2) materially reduce the cubic content of said Premises; or
(3) diminish the general utility of the Premises; and
(b) no change or alteration involving a reasonably estimated (by the
Landlord) cost of more than Five Thousand Dollars ($5,000.00)
(excluding trade fixtures) shall be undertaken except pursuant to the
provisions contained in Exhibit "D" attached hereto.
Tenant shall not make any changes or alterations to the exterior of the
Premises and shall not make any penetrations in the roof or demising walls
of the Premises, regardless of the estimated cost thereof, without the
prior written consent of Landlord in each such occasion obtained.
20.2 All alterations and improvements of said Premises by Tenant shall be and
become a part of the real estate, except such machinery, equipment,
appurtenances, furnishings and fixtures placed therein by Tenant as trade
equipment and fixtures.
ARTICLE TWENTY-ONE
INDEMNIFICATION
---------------
21.1 Except as to injury, death or property damage proximately caused by the
negligence of Landlord for which Landlord is legally liable, Tenant agrees
to indemnify and hold Landlord harmless from all claims, suits, actions,
damages, liability and claims (including costs and expenses of defending
against all of the aforesaid) arising (or alleged to arise) from any act or
omission of Tenant or Tenant's agents, employees, assignees, sublessees,
contractors, customers or invitees, or arising from any injury to or death
of any person or persons or damage to or destruction of the property of any
person or persons occurring at the Premises, and Common Areas attendant
thereto, and Tenant assumes responsibility for the condition of the
Premises and agrees to give Landlord written notice in the event of any
damage, defect or disrepair therein.
21.2 Tenant agrees to use and occupy the Premises and place its fixtures,
equipment, merchandise and other property thereon at its own risk and
hereby releases Landlord and its agents from all claims for any damage or
injury to the full extent permitted by law. Tenant agrees that Landlord
shall not be responsible or liable to Tenant, or those claiming under
Tenant, for any injury, death or damage or loss occasioned by the acts or
omissions of persons occupying any part of the Premises or, occasioned by
the condition of the Premises, the upkeep for which Tenant is responsible
under the terms of this Lease.
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ARTICLE TWENTY-TWO
SECURITY DEPOSIT
----------------
22.1 Tenant, contemporaneously with the execution of this Lease, will deposit
with Landlord a security deposit in the sum provided for in Article One,
receipt of which is hereby acknowledged by Landlord. Said deposit shall be
held by Landlord, without liability for interest, as security for the
faithful performance by Tenant of all of the terms, covenants, and
conditions of this Lease by said Tenant to be kept and performed during
the Lease Term. At the end of the Lease Term or upon any earlier
termination of the lease, Landlord shall return the deposit to Tenant,
less any portion thereof needed to compensate Landlord for damages other
than those caused by normal wear and tear.
ARTICLE TWENTY-THREE
CONDEMNATION
------------
23.1 Should so much of the Premises be condemned for public or quasi-public use
so as to render the Premises untenantable for Tenant's use under this
Lease, then either Landlord or Tenant, upon written notice to the other
within 20 days of the taking date, shall be entitled to terminate this
Lease and upon such termination, the rent shall be adjusted to the date of
termination.
23.2 The Tenant shall have no claim against the Landlord for the value of any
unexpired term of the Lease and no right or claim to any part of any
condemnation award for any reason related to the Premises or this Lease,
except that the Tenant shall be entitled in any such condemnation
proceeding to prove and collect damages, if any, for the taking of its
trade fixtures that are not part of the realty. The provisions of the
foregoing paragraphs shall apply whether or not the Lease is terminated as
aforesaid.
ARTICLE TWENTY-FOUR
MISCELLANEOUS PROVISIONS
------------------------
24.1 Offer and Acceptance. The submission of this "Lease Agreement" for
--------------------
examination does not constitute agreement between the parties hereto. This
document becomes effective only upon execution and delivery thereof by
Landlord and Tenant on or before the Expiration of Offer Date provided for
in Article One, failing which no reservation or option shall later exist
to complete this "Lease Agreement".
24.2 Rent Tax. If, at any time during the term of this Lease or any
--------
extension thereof, a tax or excise on rents is levied or assessed against
Landlord by a lawful taxing authority on account of Landlord's interest in
this Lease or the rents or other charges reserved hereunder, Tenant agrees
to pay to Landlord, upon demand, as Additional Rent under Article 5.4
hereof, the amount of such tax or excise. In the event any such tax or
excise is levied or assessed directly against Tenant, the Tenant shall be
responsible for and shall pay the same at such times and in such manner as
the taxing authority shall require.
24.3 Recording. Tenant shall not record this Lease without the prior written
---------
consent of the Landlord. However, Tenant and Landlord, upon the request of
either, agree to execute and deliver a memorandum of this Lease in
recordable form for the purposes of recordation at Tenant's expense.
24.4 Time. Time is of the essence of this Lease.
----
24.5 Entire Agreement. This instrument (including all attachments hereto)
----------------
constitutes the entire agreement between Landlord and Tenant and the same
may not be amended or modified orally.
24.6 Successors. This Lease shall inure to the benefit of and be binding upon
----------
Landlord and Tenant, their successors and assigns (or heirs, executors and
administrators, as the case may be) subject to the terms, covenants and
conditions stated. In the event of the assignment of this Lease by
Landlord, Tenant agrees to attorn to the rights of the
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assignee.
24.7 Construction of Lease.
---------------------
(a) The term "Landlord", as herein used, means and includes the named
Landlord, its successors and assigns, and the term "Tenant," as
herein used, means and includes the named Tenant, its successors and
any assignees to whom this Lease may be validly assigned as
hereinabove provided, and all of the terms and provisions of this
Lease shall be binding on and inure to the benefit of such
successors and assigns.
(b) This Lease shall be governed by and enforced in accordance with the
laws of the State of Oklahoma.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
LANDLORD
--------
D/B/A/WILSHIRE SQUARE, BY ITS AGENT,
CB RICHARD ELLIS/OKLAHOMA,
PROPERTY MANAGEMENT
By:__________________________________
Lori Bryant Donovan, President
TENANT
------
IDS ENGINEERING, INC.
By:_____________________________
Name:___________________________
Title:__________________________
ATTEST:
_______________________________
Secretary
15
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EXHIBIT "A"
PLOT PLAN OF THE BUSINESS PARK
------------------------------
16
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EXHIBIT "B"
LEGAL DESCRIPTION OF THE BUSINESS PARK
--------------------------------------
All of Lot 6; Part of Lot 5; Part of Lot 7, all in Block 1, JOHNSON-FAGG
INDUSTRIAL ADDITION, an Addition in Tulsa, Tulsa County, Oklahoma,
according to the official recorded plat thereof, more particularly
described as follows, to-wit: Beginning at the Northwest corner of said Lot
6; thence S 89(degrees) 57' 00" E along the North boundaries of said Lots 6
and 7 a distance of 486.71 feet to a point 172.00 feet from the Northeast
corner of said Lot 7; thence S 00(degrees) 00' 55" W a distance of 460.21
feet to a point in the South boundary of said Lot 5, 180.65 feet from the
Southeast corner thereof; thence S 72(degrees) 19' 35" W along the South
boundary of said Lot 5 a distance of 275.75 feet to the Southwest Corner
thereof; thence along the Westerly boundaries of said Lots 5 and 6 as
follows: thence N 29(degrees) 19' 56" W a distance of 365.36 feet; thence
on a curve to the right having a radius of 350.00 feet a distance of 179.18
feet; thence due North 54.38 feet to the point of beginning, containing
208,511 square feet, more or less.
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EXHIBIT "C"
DESCRIPTION OF LANDLORD'S WORK
------------------------------
1. Landlord is furnishing the adjacent 2,700 square feet at 11004 East 51/st/
Street "as is", except all mechanical systems shall be in normal working
order.
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EXHIBIT "D"
CHANGES, ALTERATIONS AND MODIFICATIONS
--------------------------------------
All changes, alterations and modifications made by the Tenant to the Premises,
as described by numbered Article Twenty (such modifications, changes and
alterations being hereinafter, in this Exhibit, called "Work"), shall be done in
all cases subject to the following provisions which Tenant covenants to observe
and perform, to-wit:
1. No Work shall be undertaken until detailed plans and specifications have
first been submitted to and approved in writing by Landlord.
2. In the event Tenant shall request Landlord's approval for Work of such
nature as to be deemed complicated and of sufficient magnitude to so
warrant, as determined by Landlord (and as would be similarly so determined
by other prudent persons familiar with shopping center construction matters
in Tulsa, Oklahoma), it shall be reasonable for the Landlord to require
that such Work be undertaken only under the supervision of an architect or
engineer who shall have been approved by Landlord, which approval, as to
said architect or engineer, would not unreasonably be withheld.
3. All Work shall be commenced only after all required municipal and other
governmental permits and authorizations have been obtained (the Landlord
agreeing to join in any application therefor, at the Tenant's expense,
whenever necessary) and shall be done in a good and workmanlike manner and
in compliance with all laws, ordinances, regulations and requirements of
all federal, state and municipal governmental agencies and in accordance
with the requirements of any insurer under an insurance policy then in
effect as to the Premises. The cost of the Work shall be paid in cash at
appropriate intervals so that the Premises, and the Business Park, shall be
free at all times from liens for labor and materials supplied or claimed to
have been supplied to the Premises and the Business Park. The Work shall
be prosecuted with reasonable dispatch, except for unavoidable delays. At
all times when any Work is in progress, the Tenant shall maintain or cause
to be maintained: (a) adequate workmen's compensation insurance covering
all persons employed in connection with the Work and with respect to whom
death or injury claims could be asserted against the Landlord or the
Tenant; (b) for the mutual benefit of the Tenant and the Landlord,
comprehensive general liability insurance against all hazards, including
liability assumed under contracts, to limits of not less than those
required for public liability insurance under Article Eight; and (c)
adequate builder's risk insurance designating the contractor, Landlord and
Tenant as co-insureds, as their interests appear. Such comprehensive
general liability insurance shall be in addition to the insurance under
Article Eight but may be effected by an appropriate endorsement, if
obtainable, upon the insurance policy referred to in said Article Eight.
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EXHIBIT "E"
SIGNAGE SPECIFICATIONS
----------------------
Signs/Windows
-------------
Landlord will provide at no cost to Tenant, the building address numbers above
the front door and Tenant's company name in 2" block letters on the front door
only. All other signs or lettering on doors shall be printed, painted, or
affixed or inscribed at the expense of the Tenant after approval by Landlord and
by the sub-contractor of Landlord's choice.
Specification of sign placement and size is as follows:
Height: Four Feet Maximum
Width: Twelve Feet Maximum
Depth: Two Inch Minimum; Six Inch Maximum
To be adhered to building surface by any method that will not destroy or damage
the existing surface. No direct gluing or caulking will be permitted.
No sign, placard, picture, advertisement, or name shall be attached to any part
of the outside or inside of any window or door and Landlord shall have the right
to remove any such sign, placard, picture, advertisement, name or notice to and
at Tenant's expense.
Tenant shall not place anything or allow anything to be placed near the glass or
any window, door, partition or wall which may appear unsightly from outside the
premises.
All window coverings shall be one inch mini-blinds or equal and color shall be
approved by Landlord in advance in writing and shall be provided by Tenant at
Tenant's expense.
Tenant is responsible to keep interior windows washed.
20
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EXHIBIT "F"
RULES AND REGULATIONS
---------------------
1. COMMON AREA/ROOF
All deliveries, etc. to rear. Trash in Waste Disposal.
The sidewalks and entrances, shall not be obstructed or used by Tenant for
any purpose other than for ingress and egress. The exits, entrances, and
roofs are not for the 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 judgement of the Landlord, shall be prejudicial to
the safety, character, reputation and interests of the Premises and
tenants, provided that nothing herein contained shall be construed to
prevent access to persons with whom Tenant normally deals in the ordinary
course of Tenant's business unless such persons are engaged in illegal
activities. Neither Tenant, nor employees or invitees of Tenant, shall go
upon the roof of the building.
2. PARKING
The parking areas in front of the Business Park Complex shall be used
solely for passenger vehicles during normal business hours and the parking
of trucks, trailers, delivery trucks, recreational vehicles and campers is
specifically prohibited. No vehicle of any type shall be stored in any
parking area at any time. In the event that a vehicle is disabled, it shall
be removed within 48 hours. There shall be no "For Sale" or other
advertising signs on or about any parked vehicle. All Tenants shall park in
the designated parking area as designated by the Landlord from time to
time. Trucks shall use the two 110th Street entrances for access to the
service area. The East drive on 51st Street may be used as an exit.
3. NUISANCES
Tenant shall not use, keep or permit to be used or kept, any foul or
noxious gas or substance on the Premises, or permit or suffer the Premises
to be occupied or used in a manner offensive or objectionable to Landlord
or other occupants of the building by reason of noise, odors and/or
vibrations, or interfere in any way with other Tenants or those having
business therein nor shall any animals or birds be brought in or kept in or
about the Premises of the Project. Tenant shall maintain the leased
Premises free from mice, bugs, and ants attracted by food, water or storage
materials.
Tenants shall contract for pest extermination on a regular basis, if
required.
4. DANGEROUS ARTICLES
Tenant shall not use or keep on the Premises of the Project any kerosene,
gasoline or inflammable or combustible fluid or material, or any article
deemed extra hazardous on account of fire or other dangerous properties or
use any other method of heating or air conditioning other than supplied by
Landlord.
5. IMPROPER CONDUCT
Landlord reserves the right to exclude or expel from the Project any person
who in the judgement of the Landlord, is intoxicated or under the influence
of liquor or drugs or who shall in any manner do any act in violation of
the Rules and Regulations of the said Project.
Tenant shall not disturb, solicit, or canvas any occupant of the Project
and shall cooperate to prevent the same.
21
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6. AUCTION
No auction, public or private will be permitted.
7. EXTERIOR
Tenant shall not place any improvements or moveable objects including
furniture, etc., in the parking area or other areas outside of the said
Premises, or on the roof of said Premises.
8. DAMAGE
Walls, floors and ceilings shall not be defaced in any way and no one shall
be permitted to mark, nail, screw or drill into surface, paint or in any
way mar the building surface. Pictures, certificates, licenses and similar
items normally used in Tenant's Premises may be carefully attached to the
walls by Tenant in a manner to be prescribed by the Landlord. Upon normal
removal of such items by Tenant, any damage to the walls or other surfaces
shall be repaired by Tenant.
9. FURNITURE, SAFES/MOVING
Furniture, freight, equipment, safes or other bulky articles shall be moved
into or out of the Project only in the manner and at such times as Landlord
may direct. Tenant shall not overload the floor of the Premises or in any
way deface the Premises or any part thereof. Landlord shall in all cases
have the right to determine or limit the weight, size and portion of all
safes and other heavy equipment. Landlord will not be responsible for loss
or damage to any safe or property from any cause and all damage done to the
building by moving or maintaining any such safe or other property shall be
repaired at the expense of Tenant.
10. REQUIREMENTS OF TENANT
The requirements of Tenant will be observed upon application to Landlord at
the office of said building. Employees of Landlord shall not perform any
work or do anything outside of the regular duties unless under special
instruction from Landlord. Tenant shall give Landlord prompt notice of any
defects in the water, sewage, gas pipes, electrical lights and fixtures,
heating apparatus, or any other service equipment.
11. USE
The Premises will be used only for general business office purposes and
purposes incidental to that use, and for no other purpose. Tenant will use
the Premises in a careful, safe and proper manner. Tenant will not use or
permit the Premises to be used or occupied for any purpose or in any manner
prohibited by any applicable laws. Tenant will not commit waste or suffer
or permit waste to be committed in, on, or about the Premises. Tenant will
conduct its business and control its employees, agents, and invitees in
such a manner as not to create any nuisance or interfere with, annoy, or
disturb any other Tenant or occupant of the Project or Landlord in its
operation of the Project.
REQUIREMENTS OF LAW; FIRE INSURANCE
12. GENERAL. At its sole cost and expense, Tenant will promptly comply with
all laws, statutes, ordinances, and governmental rules, regulations or
requirements now in force or in force at any given time after the Lease
Date, with the requirements of any board of fire underwriters or other
similar body constituted now or after the Lease Date, with any direction or
occupancy certificate issued pursuant to any law by any public officer or
officers, as well as with the provisions of all recorded documents
affecting the Premises, insofar as they relate to the condition, use, or
occupancy of the Premises, excluding requirements of structural changes to
the Building, unless required by the unique nature of Tenant's use or
occupancy of the Premises.
22
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13. HAZARDOUS MATERIALS.
(a) For purposes of this Lease, "hazardous materials" means any explosives,
radioactive materials, hazardous wastes, or hazardous substances, including
without limitation asbestos containing materials, PCB's, or substances
defined as "hazardous substances" in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42, U.S.C.
(S)(S) 9601-9657; the Hazardous Materials Transportation Act of 1975, 49
U.S.C. (S)(S) 1801-1812; the Resource Conservation and Recovery Act of
1976, 42 U.S.C. (S)(S) 6901-6987; or any other federal, state, or local
statute, law, ordinance, code, rule, regulation, order, or decree
regulating, relating to, or imposing liability or standards of conduct
concerning hazardous materials, waste or substances now or at any time
hereafter in effect (collectively, "hazardous materials laws").
(b) Tenant will not cause or permit the storage, use, generation or disposition
of any hazardous materials in, on or about the Premises or the Project by
Tenant, its agents, employees, or contractors. Tenant will not permit the
Premises to be used or operated in a manner that may cause the Premises or
the Project to be contaminated by any hazardous materials in violation of
any hazardous materials laws. Tenant will immediately advise Landlord in
writing of (1) any and all enforcement, cleanup, remedial, removal or other
governmental or regulatory actions instituted, completed or threatened
pursuant to any hazardous materials laws relating to any hazardous
materials affecting the Premises; and (2) all claims made or threatened by
any third party against Tenant, Landlord, the Premises or the Project
relating to damage, contribution, cost recovery, compensation, loss or
injury resulting from any hazardous materials on or about the Premises.
Without Landlord's prior written consent, Tenant will not take any remedial
action or enter into any agreements or settlements in response to the
presence of any hazardous materials in, on or about the Premises.
(c) Tenant will be solely responsible for and will defend, indemnify and hold
Landlord, its agents, and employees harmless from and against all claims,
costs, and liabilities, including attorneys' fees and costs, arising out of
or in connection with Tenant's breach of its obligations in this Article
13. Tenant will be solely responsible for and will defend, indemnify, and
hold Landlord, its agents, and employees harmless from and against any and
all claims, costs and liabilities, including attorneys' fees and costs,
arising out of or in connection with the removal, cleanup, and restoration
work and materials necessary to return the Premises and any other property
of whatever nature located on the Project to their condition existing prior
to the appearance of Tenant's hazardous materials on the Premises.
Tenant's obligations under this Article 13 will survive the expiration or
other termination of this Lease.
14. CERTAIN INSURANCE RISKS. Tenant will not do or permit to be done any act
or thing upon the Premises or the Project which would (a) jeopardize or be
in conflict with fire insurance policies covering the Project and fixtures
and property in the Project; (b) increase the rate of fire insurance
applicable to the Project to an amount higher than it otherwise would be
for general office use of the Project; or (c) subject Landlord to any
liability or responsibility for injury to any person or persons or to
property by reason of any business or operation being carried on upon the
Premises. If the conduct of the Tenant, or any acts or omissions of the
Tenant shall cause or result in any increase in premiums for insurance
carried by the Landlord, whether or not Landlord allows such act or
omission to continue, Tenant shall pay any increase in premium as
Additional Rent.
23
