EXHIBIT 10.35
TEMPORARY LEASE AGREEMENT
BETWEEN THE IX-X-XI-REIT JOINT VENTURE
AND
ASSOCIATES HOUSING FINANCE, LLC
LEASE AGREEMENT
by and between
THE FUND IX, FUND X, FUND XI,
AND
REIT JOINT VENTURE,
A GEORGIA JOINT VENTURE
("Landlord")
and
ASSOCIATES HOUSING FINANCE, LLC
("Tenant")
dated
September 10, 1998
for
Suite Number 100
containing
23,490 square feet of Rentable Floor Area
TABLE OF CONTENTS
Page
1. Certain Definitions................................................ 1
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2. Lease of Premises.................................................. 2
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3. Term............................................................... 3
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4. Possession......................................................... 3
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5. Rental Payments.................................................... 4
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6. Base Rental........................................................ 5
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7. Additional Rental.................................................. 5
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8. Operating Expenses................................................. 7
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9. Tenant Taxes; Rent Taxes........................................... 9
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10. Payments.......................................................... 10
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11. Late Charges...................................................... 10
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12. Use Rules......................................................... 10
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13. Alterations....................................................... 10
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14. Repairs........................................................... 11
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15. Landlord's Right of Entry......................................... 11
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16. Insurance......................................................... 12
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17. Waiver of Subrogation............................................. 13
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18. Default........................................................... 14
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19. Waiver of Breach.................................................. 16
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20. Assignment and Subletting......................................... 17
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21. Destruction....................................................... 19
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22. Landlord's Lien................................................... 20
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23. Services by Landlord.............................................. 20
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24. Attorneys' Fees................................................... 20
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25. Time.............................................................. 20
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26. Subordination and Attornment...................................... 20
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27. Estoppel Certificates............................................. 21
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28. Cumulative Rights................................................. 21
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29. Holding Over...................................................... 21
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30. Surrender of Premises............................................. 22
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31. Notices........................................................... 22
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32. Damage or Theft of Personal Property.............................. 22
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33. Eminent Domain.................................................... 23
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34. Parties........................................................... 24
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35. Liability of Tenant............................................... 24
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36. Force Majeure..................................................... 24
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37. Landlord's Liability.............................................. 25
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38. Landlord's Covenant of Quiet Enjoyment............................ 25
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39. First Month's Rent................................................ 25
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40. Hazardous Substances.............................................. 25
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41. Submission of Lease............................................... 27
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42. Severability...................................................... 27
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43. Entire Agreement.................................................. 27
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44. Headings.......................................................... 27
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45. Broker............................................................ 27
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46. Governing Law..................................................... 28
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47. Special Stipulations.............................................. 28
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48. Authority......................................................... 28
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49. Financial Statements.............................................. 28
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Exhibit "A" - Legal Description
Exhibit "B" - Floor Plan
Exhibit "C" - Supplemental Notice
Exhibit "D" - Construction Obligations
Exhibit "E" - Building Standard Services
Exhibit "E-1" - Cleaning and Janitor Services
Exhibit "F" - Special Stipulations
Exhibit "G" - Rules and Regulations
ii
LEASE AGREEMENT
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THIS LEASE AGREEMENT ("Lease"), is made and entered into this _____ day of
_____________, 1998, by and between Landlord and Tenant.
W I T N E S S E T H:
- - - - - - - - - -
1. Certain Definitions. For purposes of this Lease, the following terms
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shall have the meanings hereinafter ascribed thereto:
(a) Landlord: The Fund IX, Fund X, Fund XI and REIT Joint Venture, a
Georgia joint venture
(b) Landlord's Address:
Delivery:
c/x Xxxxx Management Company, Inc.
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000-0000
Mail:
c/x Xxxxx Management Company, Inc.
X.X. Xxx 000000
Xxxxxxxx, Xxxxxxx 00000-0000
(c) Tenant: Associates Housing Finance, LLC, a Delaware limited
liability company
(d) Tenant's Address:
Delivery:
Associates Housing Finance, LLC
000 Xxxx Xxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attn: Corporate Properties
Mail:
Associates Housing Finance, LLC
x/x Xxxxxxxxxx Xxxxxxxxxxx xx Xxxxx Xxxxxxx
X.X. Xxx 000000
Xxxxxx, Xxxxx 00000-0000
Attn: Corporate Properties
(e) Building Address:
Centerpoint Business Park
0000 Xxxxxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
(f) Suite Number: 100
(g) Rentable Floor Area of Demised Premises:
23,490 square feet
(h) Rentable Floor Area of Building:
83,520 square feet
(i) Lease Term: Through May 31, 1999, subject to extension or early
termination pursuant to Paragraph 3 or Special Stipulation 1 hereof.
(j) Base Rental Rate: Ten and No/100 Dollars ($10.00) per square foot
of Rentable Floor Area of the Demised Premises; provided, however, that in
the event the Other Lease (as hereinafter defined) is terminated, then the
Base Rental Rate for the period from the Rental Commencement Date through
the last day of the sixth (6/th/) calendar month from and after the calendar
month within which occurred the Rental Commencement Date shall be Ten and
No/100 Dollars ($10.00) per square foot of Rentable Floor Area of the
Demised Premises, and the Base Rental Rate thereafter shall be Twelve and
50/100 Dollars ($12.50) per square foot of Rentable Floor Area of the
Demised Premises.
(k) Rental Commencement Date: The earlier of (x) the date which is
fifteen (15) days after Substantial Completion (as defined in Paragraph 1 of
Exhibit "D" attached hereto) or (y) the date upon which Tenant takes
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possession and occupies any portion of the Demised Premises for business
purposes. Occupancy of the Demised Premises for the purpose of installing
voice/data communications, furniture and fixtures shall not be deemed
occupancy for business purposes.
(l) Construction Allowance for initial Demised Premises: $233,155.00
(calculated at the rate of $9.50 per square foot of Rentable Floor Area of
the initial Demised Premises).
(m) First Month's Rent: $19,575.00 (Article 39)
(n) Broker(s): None
2. Lease of Premises. Landlord, in consideration of the covenants and
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agreements to be performed by Tenant, and upon the terms and conditions
hereinafter stated, does hereby rent and lease unto Tenant, and Tenant does
hereby rent and lease from Landlord, certain
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premises (the "Demised Premises") in the building (hereinafter referred to as
"Building") located on that certain tract of land (the "Land") more particularly
described on Exhibit "A" attached hereto and by this reference made a part
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hereof, which Demised Premises comprise 23,490 square feet of Rentable Floor
Area on the first floor of the Building and are outlined on the floor plan
attached hereto as Exhibit "B" and by this reference made a part hereof, with no
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easement for light, view or air included in the Demised Premises or being
granted hereunder. The "Project" is comprised of the Building, the Land, the
Building's parking facilities, any walkways, covered walkways or other means of
access to the Building and the Building's parking facilities, all common areas,
including any lobbies or plazas, and any other improvements or landscaping on
the Land. For purposes of this Lease, the usable area of the Demised Premises
shall be determined in accordance with the American National Standard Method of
Measuring Floor Area in Office Buildings, ANSI Z65.1-1996 published by the
Building Owners and Managers Association International. The Rentable Floor Area
of the Demised Premises for purposes of this Lease shall be the product of the
usable area of the Demised Premises multiplied by 1.12. Likewise, the Rentable
Floor Area of the Building shall be the product of the usable area of the
Building multiplied by 1.12.
3. Term. The term of this Lease ("Lease Term") shall commence on the
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date first hereinabove set forth, and, unless sooner terminated as provided in
this Lease, shall end on the expiration of the period designated in Article 1(i)
above. Promptly after the Rental Commencement Date Landlord shall send to
Tenant a Supplemental Notice in the form of Exhibit "C" attached hereto and by
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this reference made a part hereof, specifying the Rental Commencement Date, the
date of expiration of the Lease Term in accordance with Article 1(i) above and
certain other matters as therein set forth.
Landlord and Tenant acknowledge that this Lease is being executed
contemporaneously with that certain lease between Xxxxx Development Corporation
and Tenant, dated of even date herewith (the "Other Lease") with respect to
certain premises to be constructed by Xxxxx Development Corporation on a site
located on Centerpoint Boulevard adjacent to the Land. Notwithstanding anything
contained in this Lease to the contrary, Tenant shall have the right to
terminate this Lease by written notice to Landlord effective on or after the
"Rental Commencement Date" under the Other Lease. Upon such termination of this
Lease by Tenant, Tenant agrees to vacate and surrender the Demised Premises as
provided in Article 30 on or before such effective termination date. Landlord
and Tenant shall remain liable for all of their respective obligations and
undertakings under this Lease through such effective termination date. Tenant
shall not have the right to terminate this Lease with respect to the Demised
Premises as provided in this paragraph if any event of default under this Lease
has occurred and is continuing.
4. Possession. The obligations of Landlord and Tenant with respect to
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the Building and the initial leasehold improvements to the Demised Premises are
set forth in Exhibit "D" attached hereto and by this reference made a part
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hereof. Taking of possession by Tenant shall be deemed conclusively to
establish that Landlord's construction obligations with respect to the Demised
Premises have been completed in accordance with the plans and specifications
approved by Landlord and Tenant and that the Demised Premises, to the extent of
Landlord's construction obligations with respect thereto, are in good and
satisfactory condition. Within thirty (30) days after the date of Substantial
Completion, Tenant shall have
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the right to prepare and provide to Landlord a list of incomplete or defective
punch list items (details of construction, decoration and mechanical adjustment
which, in the aggregate, are minor in character and do not interfere with
Tenant's use or enjoyment of the Demised Premises), all of which shall be
promptly repaired and/or completed by Landlord at its sole cost and expense in a
commercially reasonable time, and, for a period of one (1) year following the
date of Substantial Completion, Tenant shall have the right to notify Landlord
of its discovery of latent defects in the Demised Premises all of which shall be
promptly repaired and/or completed by Landlord in a commercially reasonable time
at its sole cost and expense. Except for such punch list items so specified by
Tenant within said thirty (30) day period, and except for such latent defects
specified by Tenant within such one (1) year period, the taking of possession by
Tenant shall be deemed conclusively to establish that Landlord's construction
obligations with respect to the Demised Premises have been completed in
accordance with the plans and specifications approved by Landlord and Tenant and
that the Demised Premises, to the extent of Landlord's construction obligations
with respect thereto, are in good and satisfactory condition.
5. Rental Payments.
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(a) Commencing on the Rental Commencement Date, and continuing
thereafter throughout the Lease Term, Tenant hereby agrees to pay all Rent
due and payable under this Lease. As used in this Lease, the term "Rent"
shall mean the Base Rental, Tenant's Forecast Additional Rental, Tenant's
Additional Rental, and any other amounts that Tenant assumes or agrees to
pay under the provisions of this Lease that are owed to Landlord, including
without limitation any and all other sums that may become due by reason of
any default of Tenant or failure on Tenant's part to comply with the
agreements, terms, covenants and conditions of this Lease to be performed by
Tenant. Base Rental together with Tenant's Forecast Additional Rental shall
be due and payable in twelve (12) equal installments on the first day of
each calendar month, commencing on the Rental Commencement Date and
continuing thereafter throughout the Lease Term and any extensions or
renewals thereof, and Tenant hereby agrees to pay such Rent to Landlord at
Landlord's address as provided herein (or such other address as may be
designated by Landlord from time to time) monthly in advance. Tenant shall
pay all Rent and other sums of money as shall become due from and payable by
Tenant to Landlord under this Lease at the times and in the manner provided
in this Lease, without demand, set-off or counterclaim except as expressly
set forth in this Lease.
(b) If the Rental Commencement Date is other than the first day of a
calendar month or if this Lease terminates on other than the last day of a
calendar month, then the installments of Base Rental and Tenant's Forecast
Additional Rental for such month or months shall be prorated on a daily
basis and the installment or installments so prorated shall be paid in
advance. Also, if the Rental Commencement Date occurs on other than the
first day of a calendar year, or if this Lease expires or is terminated on
other than the last day of a calendar year, Tenant's Additional Rental shall
be prorated for such commencement or termination year, as the case may be,
by multiplying such Tenant's Additional Rental by a fraction, the numerator
of which shall be the number of days of the Lease Term (from and after the
Rental Commencement
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Date) during the commencement or expiration or termination year, as the
case may be, and the denominator of which shall be 365, and the calculation
described in Article 7 hereof shall be made as soon as possible after the
expiration or termination of this Lease, Landlord and Tenant hereby
agreeing that the provisions relating to said calculation shall survive the
expiration or termination of this Lease.
6. Base Rental. From and after the Rental Commencement Date Tenant shall
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pay to Landlord a base annual rental (herein called "Base Rental") for each
Lease Year equal to the Base Rental Rate set forth for such Lease Year in
Article 1(j) above multiplied by the Rentable Floor Area of Demised Premises set
forth in Article 1(g) above. As used in this Lease, the term "Lease Year" shall
mean the twelve month period commencing on the Rental Commencement Date, and
each successive twelve month period thereafter during the Lease Term, except
that if the Rental Commencement Date is not on the first day of a calendar
month, the first Lease Year shall extend through the end of the twelfth month
after the Rental Commencement Date.
7. Additional Rental.
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(a) For purposes of this Lease, "Tenant's Forecast Additional Rental"
shall mean Landlord's reasonable estimate of Tenant's Additional Rental for
the coming calendar year or portion thereof. Landlord's current estimate of
Tenant's Forecast Additional Rental for the first calendar year or partial
calendar year of this Lease is $4.50 per Rentable Square Foot per annum. If
at any time it appears to Landlord that Tenant's Additional Rental for the
current calendar year will vary from Landlord's estimate by more than five
percent (5%), Landlord shall have the right to revise, by notice to Tenant,
its estimate for such year, and subsequent payments by Tenant for such year
shall be based upon such revised estimate of Tenant's Additional Rental.
Failure to make a revision contemplated by the immediately preceding
sentence shall not prejudice Landlord's right to collect the full amount of
Tenant's Additional Rental. Prior to the Rental Commencement Date and
thereafter prior to the beginning of each calendar year during the Lease
Term, including any extensions thereof, Landlord shall present to Tenant a
statement of Tenant's Forecast Additional Rental for such calendar year;
provided, however, that if such statement is not given prior to the
beginning of any calendar year as aforesaid, Tenant shall continue to pay
during the next ensuing calendar year on the basis of the amount of
Tenant's Forecast Additional Rental payable during the calendar year just
ended until the month after such statement is delivered to Tenant.
(b) For purposes of this Lease, "Tenant's Additional Rental" shall
mean for each calendar year (or portion thereof) Tenant's Share of the
Operating Expenses (as defined below) for such calendar year (or portion
thereof). The "Tenant's Share" shall mean twenty-eight and 22/100 percent
(28.22%), determined by dividing 23,490 square feet of Rentable Floor Area
of the Demised Premises by 83,520 square feet of Rentable Floor Area of the
Building. The Tenant's Share shall be adjusted to reflect any change in the
Rentable Floor Area of the Demised Premises or Rentable Floor Area of the
Building. In the event the Building is not fully occupied during any
calendar year, the Operating Expenses which are variable in nature shall be
adjusted for the purposes of
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determining Tenant's Additional Rental to an amount that would have been
incurred by Landlord for such calendar year if the Building had been fully
occupied during such calendar year. Landlord agrees that only Operating
Expenses which would normally vary depending on the amount of space
actually occupied in the Building, such as costs of utilities, supplies and
janitorial services, shall be adjusted in this manner and that fixed
expenses which are unrelated to occupancy levels (such as but not limited
to taxes, insurance, landscaping, parking lot lighting and repairs,
elevator service and repair, window washing and roof repair) shall not be
so adjusted.
(c) Within ninety (90) days after the end of the calendar year in
which the Rental Commencement Date occurs and of each calendar year
thereafter during the Lease Term, or as soon thereafter as practicable,
Landlord shall provide Tenant a written statement showing the Operating
Expenses for said calendar year and a statement prepared by Landlord
showing, if necessary, any adjustment to the Operating Expenses to reflect
full occupancy of the Building during such calendar year, and comparing
Tenant's Forecast Additional Rental with Tenant's Additional Rental. In the
event Tenant's Forecast Additional Rental exceeds Tenant's Additional
Rental for said calendar year, Landlord shall credit such amount against
Rent next due hereunder or, if the Lease Term has expired or is about to
expire, refund such excess to Tenant within thirty (30) days after Tenant's
receipt of the statement if Tenant is not in default under this Lease (in
the instance of a default such excess shall be held as additional security
for Tenant's performance, may be applied by Landlord to cure any such
default, and shall not be refunded until any such default is cured). In the
event that the Tenant's Additional Rental exceeds Tenant's Forecast
Additional Rental for said calendar year, Tenant shall pay Landlord, within
thirty (30) days of receipt of the statement, an amount equal to such
difference as shown by such statement. The provisions of this Lease
concerning the payment of Tenant's Additional Rental shall survive the
expiration or earlier termination of this Lease.
(d) For so long as Tenant is not in default under this Lease,
Landlord's books and records pertaining to the calculation of Operating
Expenses for any calendar year within the Lease Term may be audited by
Tenant or its representatives at Tenant's expense, at any time within
twelve (12) months after Tenant's receipt of Landlord's statement; provided
that Tenant shall give Landlord not less than thirty (30) days' prior
written notice of any such audit; further provided, however, that the
accountant performing such audit shall not be paid any fee contingent in
whole or in part upon the results of such audit or which is calculated or
otherwise based in whole or in part upon the results of such audit. Prior
to the commencement of such audit, Tenant shall cause its authorized
representative to agree in writing for the benefit of Landlord that such
representative will keep the results of the audit confidential and that
such representative will not disclose or divulge the results of such audit
except to Tenant and Landlord and except in connection with any dispute
between Landlord and Tenant relating to Operating Expenses. Such audit
shall be conducted during reasonable business hours at Landlord's office
where Landlord's books and records are maintained. Tenant shall cause a
written audit report, certified in favor of Landlord and Tenant, to be
prepared by its authorized representative following any such audit and
shall provide Landlord with a copy of such report promptly after receipt
thereof by Tenant. If Landlord's
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calculation of Tenant's Additional Rental for the audited calendar year was
incorrect, then Tenant shall be entitled to a prompt refund of any
overpayment or Tenant shall promptly pay to Landlord the amount of any
underpayment, as the case may be. In the event such audit discloses an
overpayment by Tenant of more than four percent (4%), then Landlord shall
pay the cost of such audit.
8. Operating Expenses.
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(a) For the purposes of this Lease, "Operating Expenses" shall mean
all expenses, costs and disbursements (but not specific costs billed to
specific tenants of the Building) of every kind and nature (subject to the
limitations set forth below, computed on the accrual basis, directly
relating to or incurred or paid in connection with the ownership,
management, operation, repair and maintenance of the Project, including but
not limited to, the following:
(1) wages, salaries and other costs of all on-site and off-site
employees at or below the level of building manager engaged in the
operation, management, maintenance or access control of the Project,
including taxes, insurance and benefits relating to such employees,
allocated based upon the time such employees are engaged directly in
providing such services;
(2) the cost of all supplies, tools, equipment and materials used
in the operation, management, maintenance and access control of the Project;
(3) the cost of all utilities for the Project, including but not
limited to the cost of electricity, gas, water, sewer services and power for
heating, lighting, air conditioning and ventilating;
(4) the cost of all maintenance and service agreements for the
Project and the equipment therein, including but not limited to security
service, window cleaning, elevator maintenance, HVAC maintenance, air
quality audits, janitorial service, waste recycling service, landscaping
maintenance and customary landscaping replacement;
(5) the cost of repairs and general maintenance of the Project;
(6) amortization of the cost of acquisition and/or installation
of capital investment items (including security equipment and energy
management equipment), amortized over their respective useful lives, which
are installed for the purpose of reducing operating expenses, promoting
safety, complying with governmental requirements, or maintaining the first-
class nature of the Project;
(7) the cost of casualty, rental loss, liability and other
insurance applicable to the Project and Landlord's personal property used in
connection therewith;
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(8) the cost of trash and garbage removal, vermin extermination,
and snow, ice and debris removal;
(9) the cost of legal and accounting services incurred by
Landlord in connection with the management, maintenance, operation and
repair of the Project for the general benefit of tenants of the Project,
excluding the owner's or Landlord's general accounting and fund accounting,
such as partnership statements and tax returns, and excluding services
described in Article 8(b)(14) below;
(10) all taxes, assessments and governmental charges, whether or
not directly paid by Landlord, whether federal, state, county or municipal
and whether they be by taxing districts or authorities presently taxing the
Project or by others subsequently created or otherwise, and any other taxes
and assessments attributable to the Project or its operation (and the
reasonable costs of contesting any of the same), including business license
taxes and fees, excluding, however, taxes and assessments imposed on the
personal property of the tenants of the Project, federal and state taxes on
income, death taxes, franchise taxes, and any taxes (other than business
license taxes and fees) imposed or measured on or by the income of Landlord
from the operation of the Project; and it is agreed that Tenant will be
responsible for ad valorem taxes on its personal property; and
(11) a management fee in the amount of three and one half percent
(3.5%) of the gross rental income from the Project.
(b) For purposes of this Lease, and notwithstanding anything in any
other provision of this Lease to the contrary, "Operating Expenses" shall
not include the following:
(1) the cost of any special build-out work or service performed
for any tenant (including Tenant) at such tenant's cost;
(2) the cost of installing, operating and maintaining any
specialty service, such as a restaurant, cafeteria, retail store, sundry
shop, newsstand, or concession, but only to the extent such costs exceed
those which would normally be expected to be incurred had such space been
general office space;
(3) the cost of correcting defects in construction (including,
without limitation, latent defects);
(4) compensation paid to officers and executives of Landlord;
(5) the cost of any items for which Landlord is reimbursed by
insurance, condemnation or otherwise, except for costs reimbursed pursuant
to provisions similar to Articles 7 and 8 hereof;
(6) the cost of any additions, changes, replacements and other
items which are made in order to prepare for a tenant's occupancy;
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(7) the cost of repairs incurred by reason of fire or other
casualty;
(8) insurance premiums to the extent Landlord may be directly
reimbursed therefor, except for premiums reimbursed pursuant to provisions
similar to Articles 7 and 8 hereof;
(9) interest on debt or amortization payments on any mortgage or
deed of trust and rental under any ground lease or other underlying lease;
(10) any real estate brokerage commissions;
(11) any advertising expenses incurred in connection with the
marketing of any rentable space;
(12) rental payments for base building equipment such as HVAC
equipment and elevators;
(13) any expenses for repairs or maintenance which are covered by
warranties and service contracts, to the extent such maintenance and repairs
are made at no cost to Landlord;
(14) legal expenses arising out of the construction of the
improvements on the Land or the enforcement of the provisions of any lease
affecting the Land or Building, including without limitation this Lease;
(15) Federal income taxes imposed on or measured by the income of
Landlord from the operation of the Building; and
(16) costs of alterations or additions made for the purpose of
complying with any laws, rules or ordinances in effect prior to the date of
this Lease.
9. Tenant Taxes; Rent Taxes. Tenant shall pay promptly when due all
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taxes directly or indirectly imposed or assessed upon Tenant's gross sales,
business operations, machinery, equipment, trade fixtures and other personal
property or assets, whether such taxes are assessed against Tenant, Landlord or
the Building. In the event that such taxes are imposed or assessed against
Landlord or the Building, Landlord shall furnish Tenant with all applicable tax
bills, public charges and other assessments or impositions and Tenant shall pay
the same either directly to the taxing authority or, at Landlord's option, to
Landlord (in the event such taxes are paid by Tenant to Landlord, Landlord shall
furnish Tenant with a copy of the paid xxxx or other evidence of the payment of
such taxes by Landlord). In addition, in the event there is imposed at any time
a tax upon and/or measured by the rental payable by Tenant under this Lease,
whether by way of a sales or use tax or otherwise, Tenant shall be responsible
for the payment of such tax and shall pay the same on or prior to the due date
thereof; provided, however, that the foregoing shall not include any
inheritance, estate, succession, transfer, gift or income tax imposed on or
payable by Landlord.
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10. Payments. All payments of Rent and other payments to be made to
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Landlord shall be made on a timely basis and shall be payable to Landlord or as
Landlord may otherwise designate in writing. All such payments shall be mailed
or delivered to Landlord's Address designated in Article 1(b) above or at such
other place as Landlord may designate from time to time in writing. If mailed,
all payments shall be mailed in sufficient time and with adequate postage
thereon to be received in Landlord's account by no later than the due date for
such payment.
11. Late Charges. Any Rent or other amounts payable to Landlord under
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this Lease, if not paid by the tenth day after receipt of written notice that
such payment is due, or by the due date specified on any invoices from Landlord
for any other amounts payable hereunder, shall incur a late charge of Fifty
Dollars ($50.00) for Landlord's administrative expense in processing such
delinquent payment and in addition thereto shall bear interest at the rate of
eighteen percent (18%) per annum from and after the due date for such payment.
In no event shall the rate of interest payable on any late payment exceed the
legal limits for such interest enforceable under applicable law.
12. Use Rules. The Demised Premises shall be used for executive, general
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administrative, office space and other similar purposes and no other purposes
and in accordance with all applicable laws, ordinances, rules and regulations of
governmental authorities, all nationally recognized industry standards
applicable to such uses and the Rules and Regulations attached hereto as Exhibit
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"G" and made a part hereof. The occupancy rate of the Demised Premises shall in
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no event be more than such density as shall be permitted under the zoning,
building, health and other laws, rules, ordinances and statutes applicable to
the Demised Premises. Tenant covenants and agrees to abide by the Rules and
Regulations in all respects as now set forth and attached hereto or as hereafter
promulgated by Landlord. Landlord shall have the right at all times during the
Lease Term to publish and promulgate and thereafter enforce such uniformly
applicable rules and regulations or changes in the existing Rules and
Regulations as it may reasonably deem necessary to protect the tenantability,
safety, operation, and welfare of the Demised Premises and the Project. To the
extent of any inconsistency between the Rules and Regulations and this Lease,
this Lease shall control.
13. Alterations. Except for any initial improvement of the Demised
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Premises pursuant to Exhibit "D", which shall be governed by the provisions of
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said Exhibit "D", Tenant shall not make, suffer or permit to be made any
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alterations, additions or improvements to or of the Demised Premises or any part
thereof (individually an "Alteration" and any two or more collectively
"Alterations"; Alterations do not include furniture and unattached cubicles), or
attach any fixtures or equipment thereto, without first obtaining Landlord's
written consent, which consent shall not be unreasonably withheld; provided,
however, that Tenant shall have no obligation to obtain Landlord's consent for
any Alteration or related series of Alterations if such Alteration or related
series of Alterations: (i) are nonstructural; (ii) do not cause any violation of
and do not require any change in any certificate of occupancy applicable to the
Building; (iii) do not cause any change in the outside appearance of the
Building, do not weaken or impair the structure of the Building and do not
materially reduce the value of the Demised Premises or the Building or the
Project; (iv) do not affect the proper functioning of the Building equipment;
(v) do not cost in excess of $10,000.00. Whether or not Landlord's consent is
required for any Alteration or Alterations, Tenant shall give Landlord prior
notice of any Alteration or related
10
series of Alterations, and upon completion of any Alterations (other than
decorations), Tenant shall deliver to Landlord three (3) copies of the "as-
built" plans for such Alterations. All such alterations, additions and
improvements shall become Landlord's property at the expiration or earlier
termination of the Lease Term and shall remain on the Demised Premises without
compensation to Tenant.
14. Repairs.
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(a) Landlord shall maintain in good order and repair, subject to
normal wear and tear and subject to casualty and condemnation, the Building
(excluding the Demised Premises and other portions of the Building leased
to other tenants), the Building parking facilities, the public areas, the
landscaped areas, the roof of the Building, the structural floor slab, the
structural portions of the interior and exterior structural walls, and the
base building mechanical, electrical and plumbing systems.. Notwithstanding
the foregoing obligation, to the extent not covered by insurance, the cost
of any repairs or maintenance to the foregoing necessitated by the willful
misconduct or negligent acts of Tenant or its agents, contractors,
employees, licensees, subtenants or assigns, shall be borne solely by
Tenant and shall be deemed Rent hereunder and shall be reimbursed by Tenant
to Landlord upon demand. Landlord shall not be required to make any repairs
or improvements to the Demised Premises except for any initial improvements
to the Demised Premises pursuant to the provisions of Exhibit "D" and
-----------
except structural repairs necessary for safety and tenantability.
(b) Tenant covenants and agrees that it will take good care of the
Demised Premises and all alterations, additions and improvements thereto
and will keep and maintain the same in good condition and repair, except
for normal wear and tear, using contractors and subcontractors selected by
Tenant and approved by Landlord. Tenant shall at once report, in writing,
to Landlord any defective or dangerous condition known to Tenant. To the
fullest extent permitted by law, Tenant shall not make repairs at the
expense of Landlord or in lieu thereof vacate the Demised Premises
notwithstanding any law, statute or ordinance now or hereafter in effect.
Landlord has no obligation and has made no promise to alter, remodel,
improve, repair, decorate or paint the Demised Premises or any part
thereof, except as specifically and expressly herein set forth.
15. Landlord's Right of Entry. Landlord shall retain duplicate keys to
-------------------------
all doors of the Demised Premises and Landlord and its agents, employees and
independent contractors shall have the right to enter the Demised Premises at
reasonable hours to inspect and examine same, to make repairs, additions,
alterations, and improvements, to exhibit the Demised Premises to mortgagees,
prospective mortgagees, purchasers or tenants, and to inspect the Demised
Premises to ascertain that Tenant is complying with all of its covenants and
obligations hereunder; provided, however, that Landlord shall, except in case of
emergency, afford Tenant such prior notification of an entry into the Demised
Premises as shall be reasonably practicable under the circumstances. Landlord
shall be allowed to take into and through the Demised Premises any and all
materials that may be required to make such repairs, additions, alterations or
improvements. During such time as such work is being carried on in or about the
Demised Premises, the Rent provided herein shall not xxxxx, and Tenant shall
have
11
no claim or cause of action against Landlord for damages by reason of
interruption of Tenant's business or loss of profits therefrom because of the
prosecution of any such work or any part thereof provided Landlord shall use all
reasonable efforts in connection with such work to minimize the disruption of
Tenant's business within the Demised Premises. Notwithstanding the foregoing to
the contrary, if Landlord shall fail to use such reasonable efforts and Tenant's
business is disrupted within the Demised Premises on account thereof, and
Landlord fails to use such reasonable efforts within one business day after
actual receipt by Landlord of written notice to Landlord from Tenant specifying
such disruption in reasonable detail, then Base Rental shall xxxxx equitably
with respect to the portion of the Demised Premises affected by such disruption
commencing on the second business day after such actual receipt by Landlord and
continuing thereafter until Landlord shall use all reasonable efforts in
connection with such work to minimize the disruption of Tenant's business within
the Demised Premises.
16. Insurance.
---------
(a) Tenant shall procure at its expense and maintain throughout the
Lease Term a standard form property insurance policy commonly known as all-
risk or "special form" insurance insuring 80% of the full replacement cost
of its furniture, equipment, supplies, and other property owned, leased,
held or possessed by it and contained in the Demised Premises, together
with the excess value of the improvements to the Demised Premises over the
Construction Allowance, and worker's compensation insurance as required by
applicable law. Tenant shall also procure at its expense and maintain
throughout the Lease Term a policy or policies of commercial general
liability insurance, insuring Tenant, Landlord, Landlord's managing agent
and Landlord's mortgagee, if any, as additional insureds, against any and
all liability for injury to or death of a person or persons and for damage
to property occasioned by or arising out of any construction work being
done by Tenant or Tenant's contractors on the Demised Premises, or arising
out of the condition, use or occupancy of the Demised Premises, or in any
way occasioned by or arising out of the activities of Tenant, its agents,
contractors or employees in the Demised Premises, or other portions of the
Building or the Project, and of Tenant's guests and licensees while they
are in the Demised Premises, the limits of such policy or policies to be in
combined single limits for both damage to property and personal injury and
in amounts not less than Three Million Dollars ($3,000,000) for each
occurrence. Such insurance shall, in addition, extend to any liability of
Tenant arising out of the indemnities provided for in this Lease. All
insurance policies (other than the all-risk or "special form" insurance set
forth above) procured and maintained by Tenant pursuant to this Article 16
shall name Landlord and any additional parties designated by Landlord as
additional insured. All insurance policies procured and maintained by
Tenant pursuant to this Article 16 shall be carried with companies licensed
to do business in the State of Tennessee having a rating from Best's
Insurance Reports of not less than A-/VII, and shall be non-cancellable and
not subject to material change except after twenty (20) days' written
notice to Landlord. Duly executed certificates of insurance with respect
thereto shall be delivered to Landlord prior to the date Tenant enters the
Demised Premises for the installation of its improvements, trade fixtures
or furniture, and renewals of such
12
policies shall be delivered to Landlord at least thirty (30) days prior to
the expiration of each respective policy term. Proof of payment of the
premium therefor shall be delivered to Landlord from time to time upon
written request.
(b) Landlord shall procure at its expense (but with the expense to be
included in Operating Expenses as provided in Article 8[a] hereof) and
shall thereafter maintain throughout the Lease Term a policy or policies of
all-risk or "special form" (including rent loss coverage) real and personal
property coverage insurance with respect to the Building including the
leasehold improvements to the Demised Premises, insuring against loss or
damage by fire and such other risks as are from time to time included in a
standard form of all-risk or "special form" policy of insurance available
in the State of Tennessee. Said Building and improvements to the Demised
Premises shall be insured for the benefit of Landlord in an amount not less
than the full replacement costs thereof as determined from time to time by
the insurance company (excluding any costs of replacing leasehold
improvements in the Demised Premises in excess of the Construction
Allowance, and such insurance may provide for a reasonable deductible).
Landlord shall also procure at its expense (but with the expense to be
included in Operating Expenses as provided in Article 8[a] hereof) and
shall thereafter maintain throughout the Lease Term a policy or policies of
commercial general liability insurance insuring against the liability of
Landlord arising out of the maintenance, use and occupancy of the Project,
with limits of such policy or policies to be in combined single limits for
both damage to property and personal injury and in amounts not less than
Three Million Dollars ($3,000,000.00) for each occurrence. Such insurance
required herein shall be issued by an insurance company approved by the
Insurance Commissioner of the State of Tennessee and licensed to do
business in the State of Tennessee. Any insurance required to be carried by
Landlord hereunder may be carried under blanket policies covering other
properties of Landlord and/or its partners and/or their respective related
or affiliated corporations so long as such blanket policies provide
insurance at all times for the Project as required by this Lease. Upon
reasonable request from Tenant, Landlord will provide a certificate of
insurance evidencing the maintenance of the insurance required herein.
17. Waiver of Subrogation. Landlord and Tenant shall each have included
---------------------
in all policies of all-risk or "special form" insurance and business
interruption and loss of rents insurance respectively obtained by them covering
the Demised Premises, the Building and contents therein, a waiver by the insurer
of all right of subrogation against the other in connection with any loss or
damage thereby insured against. Any additional premium for such waiver shall be
paid by the primary insured. To the full extent permitted by law, Landlord and
Tenant each waives all right of recovery against the other for, and agrees to
release the other from liability for, loss or damage to the extent such loss or
damage is covered by valid and collectible property insurance in effect at the
time of such loss or damage or would be covered by the property insurance
required to be maintained under this Lease by the party seeking recovery.
13
18. Default.
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(a) The following events shall be deemed to be events of default by
Tenant under this Lease: (i) Tenant shall fail to pay any installment of
Rent or any other charge or assessment against Tenant pursuant to the terms
hereof within ten (10) business days after receipt by Tenant of written
notice of such failure of payment; (ii) Tenant shall fail to comply with
any term, provision, covenant or warranty made under this Lease by Tenant,
other than the payment of the Rent or any other charge or assessment
payable by Tenant, and shall not cure such failure within thirty (30) days
after receipt by Tenant of written notice thereof; (iii) Tenant or any
guarantor of this Lease shall make a general assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts as they
become due, or shall file a petition in bankruptcy, or shall be adjudicated
as bankrupt or insolvent, or shall file a petition in any proceeding
seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future
statute, law or regulation, or shall file an answer admitting or fail
timely to contest the material allegations of a petition filed against it
in any such proceeding; (iv) a proceeding is commenced against Tenant or
any guarantor of this Lease seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under
any present or future statute, law or regulation, and such proceeding shall
not have been dismissed within sixty (60) days after the commencement
thereof; (v) a receiver or trustee shall be appointed for the Demised
Premises or for all or substantially all of the assets of Tenant or of any
guarantor of this Lease and such receiver or trustee shall not have been
dismissed within sixty (60) days after the appointment thereof; (vi) Tenant
shall fail to take possession of the Demised Premises or any portion
thereof as provided in this Lease; (vii) Tenant shall do or permit to be
done anything which creates a lien upon the Demised Premises or the Project
and such lien is not removed or discharged within thirty (30) days after
Tenant receives written notice of the filing thereof (whether from Landlord
or from any other source whatsoever); or (viii) Tenant shall fail to return
a properly executed estoppel certificate to Landlord in accordance with the
provisions of Article 27 hereof within the time period provided for such
return following Landlord's request for same as provided in Article 27 and
such failure continues uncured for ten (10) days following receipt by
Tenant of written notice thereof.
(b) Upon the occurrence of any of the aforesaid events of default,
Landlord shall have the option to pursue any one or more of the following
remedies without any notice or demand whatsoever: (i) terminate this Lease,
in which event Tenant shall immediately surrender the Demised Premises to
Landlord and if Tenant fails to do so, Landlord may without prejudice to
any other remedy which it may have for possession or arrearages in Rent,
enter upon and take possession of the Demised Premises and expel or remove
Tenant and any other person who may be occupying said Demised Premises or
any part thereof, without being liable for prosecution or any claim of
damages therefor; Tenant hereby agreeing to pay to Landlord on demand the
amount of all loss and damage which Landlord may suffer by reason of such
termination, whether through inability to relet the Demised Premises on
satisfactory terms or otherwise; (ii) terminate Tenant's right of
possession (but not this Lease) and enter upon and take
14
possession of the Demised Premises and expel or remove Tenant and any other
person who may be occupying said Demised Premises or any part thereof, by
entry, dispossessory suit or otherwise, without thereby releasing Tenant
from any liability hereunder, without terminating this Lease, and without
being liable for prosecution or any claim of damages therefor and, if
Landlord so elects, make such alterations, redecorations and repairs as, in
Landlord's judgment, may be necessary to relet the Demised Premises, and
Landlord may relet the Demised Premises or any portion thereof in Landlord's
or Tenant's name, but for the account of Tenant, for such term or terms
(which may be for a term extending beyond the Lease Term) and at such rental
or rentals and upon such other terms as Landlord may reasonably deem
advisable, with or without advertisement, and by private negotiations, and
receive the rent therefor, Tenant hereby agreeing to pay to Landlord the
deficiency, if any, between all Rent reserved hereunder and the total rental
applicable to the Lease Term hereof obtained by Landlord re-letting, and
Tenant shall be liable for Landlord's expenses in redecorating and restoring
the Demised Premises and all costs incident to such re-letting, including
broker's commissions and lease assumptions, and in no event shall Tenant be
entitled to any rentals received by Landlord in excess of the amounts due by
Tenant hereunder; or (iii) enter upon the Demised Premises, without being
liable for prosecution or any claim of damages therefor, and do whatever
Tenant is obligated to do under the terms of this Lease; and Tenant agrees
to reimburse Landlord on demand for any expenses including, without
limitation, reasonable attorneys' fees which Landlord may incur in thus
effecting compliance with Tenant's obligations under this Lease and Tenant
further agrees that Landlord shall not be liable for any damages resulting
to Tenant from such action, except for damage to property or injury to
persons to the extent caused by the gross negligence or willful misconduct
of Landlord. If Landlord shall reenter the Demised Premises and take
possession from Tenant without terminating this Lease, provided that Tenant
has vacated the Demised Premises and is not contesting Landlord's right to
the possession of the Demised Premises, Landlord will use reasonable efforts
to relet the Demised Premises and thereby mitigate the damages which
Landlord shall incur. Tenant hereby agrees that Landlord's agreement to use
reasonable efforts to relet the Demised Premises in order to mitigate
Landlord's damages shall not be deemed to impose upon Landlord any
obligation to relet the Demised Premises (i) for any purpose other than use
permitted under this Lease or (ii) to any Tenant who is not financially
capable of performing the duties and obligations imposed upon Tenant under
this Lease, or (iii) to prefer the Demised Premises over any other space
available in the Building. If this Lease is terminated by Landlord as a
result of the occurrence of an event of default, Landlord may declare to be
due and payable immediately, the present value (calculated with a discount
factor of eight percent [8%] per annum) of the difference between (x) the
entire amount of Rent and other charges and assessments which in Landlord's
reasonable determination would become due and payable during the remainder
of the Lease Term determined as though this Lease had not been terminated
(including, but not limited to, increases in Rent pursuant to this Lease),
and (y) the then fair market rental value of the Demised Premises for the
remainder of the Lease Term. Upon the acceleration of such amounts, Tenant
agrees to pay the same at once, together with all Rent and other charges and
assessments theretofore due, at Landlord's address as provided herein, it
being agreed that such payment shall not constitute a penalty or forfeiture
but shall constitute
15
liquidated damages for Tenant's failure to comply with the terms and
provisions of this Lease (Landlord and Tenant agreeing that Landlord's
actual damages in such event are impossible to ascertain and that the amount
set forth above is a reasonable estimate thereof).
(c) Pursuit of any of the foregoing remedies shall not preclude
pursuit of any other remedy herein provided or any other remedy provided by
law or at equity, nor shall pursuit of any remedy herein provided constitute
an election of remedies thereby excluding the later election of an alternate
remedy, or a forfeiture or waiver of any Rent or other charges and
assessments payable by Tenant and due to Landlord hereunder or of any
damages accruing to Landlord by reason of violation of any of the terms,
covenants, warranties and provisions herein contained. No reentry or taking
possession of the Demised Premises by Landlord or any other action taken by
or on behalf of Landlord shall be construed to be an acceptance of a
surrender of this Lease or an election by Landlord to terminate this Lease
unless written notice of such intention is given to Tenant. Forbearance by
Landlord to enforce one or more of the remedies herein provided upon an
event of default shall not be deemed or construed to constitute a waiver of
such default. In determining the amount of loss or damage which Landlord may
suffer by reason of termination of this Lease or the deficiency arising by
reason of any reletting of the Demised Premises by Landlord as above
provided, allowance shall be made for the expense of repossession. Tenant
agrees to pay to Landlord all costs and expenses incurred by Landlord in the
enforcement of this Lease, including, without limitation, the fees of
Landlord's attorneys as provided in Article 24 hereof.
(d) The abandonment or vacation of the Demised Premises shall not be
an event of default by Tenant under this Lease, but in the event Tenant
shall abandon or vacate the Demised Premises, unless due to a casualty,
condemnation or remodeling (which remodeling is being diligently
prosecuted), Landlord may, at any time while such abandonment or vacation of
the Demised Premises is continuing, notify Tenant of Landlord's election to
terminate this Lease, in which event this Lease shall terminate on the date
so selected by Landlord in Landlord's written election to terminate this
Lease, and on the date so set forth in Landlord's written election, this
Lease shall terminate and come to an end as though the date selected by
Landlord were the last day of the natural expiration of the Lease Term;
provided, however, that no such termination shall affect or limit any
obligations or liabilities of Tenant arising or accruing under this Lease
prior to the effective date of any such termination; and provided further
that Tenant may rescind Landlord's election by (i) notifying Landlord in
writing, within ten (10) days after receipt of Landlord's written election
to terminate this Lease, that Tenant will reoccupy the Demised Premises for
business purposes and (ii) in fact, so reoccupying the Demised Premises for
business purposes within sixty (60) days thereafter.
19. Waiver of Breach. No waiver of any breach of the covenants,
----------------
warranties, agreements, provisions, or conditions contained in this Lease shall
be construed as a waiver of said covenant, warranty, provision, agreement or
condition or of any subsequent breach
16
thereof, and if any breach shall occur and afterwards be compromised, settled or
adjusted, this Lease shall continue in full force and effect as if no breach had
occurred.
20. Assignment and Subletting. Tenant shall not, without the prior
-------------------------
written consent of Landlord, assign this Lease or any interest herein or in the
Demised Premises, or mortgage, pledge, encumber, hypothecate or otherwise
transfer or sublet the Demised Premises or any part thereof or permit the use of
the Demised Premises by any party other than Tenant. Consent to one or more
such transfers or subleases shall not destroy or waive this provision, and all
subsequent transfers and subleases shall likewise be made only upon obtaining
the prior written consent of Landlord. Without limiting the foregoing
prohibition, in no event shall Tenant assign this Lease or any interest herein,
whether directly, indirectly or by operating of law, or sublet the Demised
Premises or any part thereof or permit the use of the Demised Premises or any
part thereof by any party (i) if the proposed assignee or subtenant is a party
who would (or whose use would) detract from the character of the Building as a
first-class building, such as, without limitation, a dental, medical or
chiropractic office or a governmental office, (ii) if the proposed use of the
Demised Premises shall involve an occupancy rate in excess of the maximum
density permitted under the zoning, building, health and other laws, rules,
ordinances and statutes applicable to the Demised Premises, (iii) if the
proposed assignment or subletting shall be to a governmental subdivision or
agency or any person or entity who enjoys diplomatic or sovereign immunity, (iv)
if such proposed assignee or subtenant is an existing tenant of the Building, or
(v) if such proposed assignment, subletting or use would contravene any
restrictive covenant (including any exclusive use) granted to any other tenant
of the Building or would contravene the provisions of Article 12 of this Lease.
Notwithstanding the foregoing prohibition, Tenant shall have the absolute
right, without the consent of Landlord but with prior notice to Landlord, to
assign this Lease or sublet all or any part of the Demised Premises to an
Affiliate of Tenant (as hereinafter defined), so long as such transaction is not
entered as a subterfuge to avoid the restrictions relating to assignments and
subletting set forth in this Lease. Tenant shall also have the absolute right,
without the consent of Landlord but with prior notice to Landlord, to assign
this Lease to another entity in connection with the merger or consolidation of
Tenant and such other entity or to the purchaser or transferee of all or
substantially all of the business and assets of Tenant, provided (i) that the
successor entity, purchaser or transferee shall, as a result of such merger,
consolidation or acquisition, be legally bound to pay the Rent and all other
rentals and charges hereunder, and to observe and perform all of the other
terms, covenants and provisions of this Lease on the part of Tenant to be
observed or performed, (ii) that such successor, purchaser or transferee shall
have a net worth, determined in accordance with generally accepted accounting
principles, which is not less than the net worth of Tenant immediately prior to
such transaction, and (iii) that any such transaction is not entered into as a
subterfuge to avoid the restrictions relating to assignments set forth in this
Lease. No assignment of this Lease or subletting of the Demised Premises shall
relieve Tenant of any of Tenant's obligations or liabilities under this Lease,
and Tenant shall remain fully liable for the faithful performance of all
covenants, terms and conditions hereof on the Tenant's part to be performed. As
used herein, the term "Affiliate of Tenant" shall mean any person, partnership,
corporation, limited liability company or other form of business or legal
association or entity which directly or indirectly controls Tenant or which is
directly or indirectly controlled by or under common control with Tenant (the
term "control" for these purposes shall mean, in the case of a corporation, the
right to exercise,
17
directly or indirectly, more than fifty percent [50%] of the voting rights
attributable to the shares of the controlled corporation, and with respect to an
entity that is not a corporation, the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of the
controlled entity).
Sublessees or transferees of the Demised Premises for the balance of the
Lease Term shall become directly liable to Landlord for all obligations of
Tenant hereunder, without relieving Tenant (or any guarantor of Tenant's
obligations hereunder) of any liability therefor, and Tenant shall remain
obligated for all liability to Landlord arising under this Lease during the
entire remaining Lease Term including any extensions thereof, whether or not
authorized herein. If Tenant is a partnership, a withdrawal or change, whether
voluntary, involuntary or by operation of law, of partners owning a controlling
interest in the Tenant shall be deemed a voluntary assignment of this Lease and
subject to the foregoing provisions. If Tenant is a corporation, any
dissolution, merger, consolidation or other reorganization of Tenant, or the
sale or transfer of a controlling interest in the capital stock of Tenant, shall
be deemed a voluntary assignment of this Lease and subject to the foregoing
provisions. The preceding sentence shall not apply to, and Tenant shall not be
in default under this Paragraph 20 as a result of, an offering of voting stock
to the public pursuant to a registered securities offering, the transfer of
voting stock on a national securities exchange or through the NASDAQ national
market system, or the transfer of voting stock to Tenant's employees pursuant to
a bona fide employee stock ownership plan. If Tenant shall be a corporation
whose stock is publicly traded on a nationally recognized securities exchange
(including the NASDAQ over-the-counter market), then any merger, consolidation
or other similar reorganization of Tenant, or the sale or transfer of a
controlling interest in the voting capital stock of Tenant shall not be deemed
to be an assignment of this Lease. Landlord may, as a prior condition to
considering any request for consent to an assignment or sublease (when
Landlord's consent is required), require Tenant to obtain and submit current
financial statements of any proposed subtenant or assignee. In the event
Landlord consents to an assignment or sublease, Tenant shall reimburse Landlord,
not in excess of $1,000.00 per assignment or sublease, for Landlord's reasonable
accounting costs, and reasonable legal fees, actually incurred by Landlord as a
result of the assignment or sublease. Any consideration, in excess of the Rent
and other charges and sums due and payable by Tenant under this Lease, paid to
Tenant by any assignee of this Lease for its assignment, or by any sublessee
under or in connection with its sublease (when Landlord's consent is required),
or otherwise paid to Tenant by another party for use and occupancy of the
Demised Premises or any portion thereof, shall be promptly remitted by Tenant to
Landlord as additional rent hereunder and Tenant shall have no right or claim
thereto as against Landlord. No assignment of this Lease consented to by
Landlord shall be effective unless and until Landlord shall receive an original
assignment and assumption agreement, in form and substance reasonably
satisfactory to Landlord, signed by Tenant and Tenant's proposed assignee,
whereby the assignee assumes due performance of this Lease to be done and
performed for the balance of the then remaining Lease Term of this Lease. No
subletting of the Demised Premises, or any part thereof, shall be effective
unless and until there shall have been delivered to Landlord an agreement, in
form and substance reasonably satisfactory to Landlord, signed by Tenant and the
proposed sublessee, whereby the sublessee acknowledges the right of Landlord to
continue or terminate any sublease, in Landlord's sole discretion, upon
termination of this Lease, and such sublessee agrees to recognize and attorn to
Landlord in the event that Landlord elects under such circumstances to continue
such sublease.
18
21. Destruction.
-----------
(a) If the Demised Premises are damaged by fire or other casualty, the
same shall be repaired or rebuilt as speedily as practical under the
circumstances at the expense of the Landlord, unless this Lease is
terminated as provided in this Article 21, and during the period required
for restoration, a just and proportionate part of Base Rental shall be
abated until the Demised Premises are repaired or rebuilt.
(b) If the Demised Premises are (i) damaged to such an extent that
repairs cannot, in Landlord's judgment, be completed within one hundred
eighty (180) days after the date of the casualty or (ii) damaged or
destroyed as a result of a risk which is not insured under standard fire
insurance policies with extended coverage endorsement, or (iii) damaged or
destroyed during the last eighteen (18) months of the Lease Term, or if the
Building is damaged in whole or in part (whether or not the Demised
Premises are damaged), to such an extent that the Building cannot, in
Landlord's judgment, be operated economically as an integral unit, then and
in any such event Landlord may at its option terminate this Lease by notice
in writing to the Tenant within sixty (60) days after the date of such
occurrence. If the Demised Premises are damaged to such an extent that
repairs cannot, in Landlord's judgment, be completed within one hundred
eighty (180) days after the date of the casualty or if the Demised Premises
are substantially damaged during the last eighteen (18) months of the Lease
Term, then in either such event Tenant may elect to terminate this Lease by
notice in writing to Landlord within thirty (30) days after the date of
such occurrence. If the Demised Premises are damaged and this Lease is not
terminated by Landlord or Tenant pursuant to this Paragraph 21(b) and the
repairs to the Demised Premises on account of such damage are not completed
within two hundred (200) days after the date of the casualty, then on or
before the earlier of the date such repairs are completed or the date two
hundred twenty (220) days after the date of the casualty, Tenant may elect
to terminate this Lease by notice in writing to Landlord. Unless Landlord
or Tenant elects to terminate this Lease as hereinabove provided, this
Lease will remain in full force and effect and Landlord shall repair such
damage at its expense to the extent required under subparagraph (c) below
as expeditiously as possible under the circumstances.
(c) If Landlord should elect or be obligated pursuant to subparagraph
(a) above to repair or rebuild because of any damage or destruction,
Landlord's obligation shall be limited to the original Building and any
other work or improvements which were originally performed or installed at
Landlord's expense as described in Exhibit "D" hereto or with the proceeds
-----------
of the Construction Allowance. If the cost of performing such repairs
exceeds the actual proceeds of insurance paid or payable to Landlord on
account of such casualty, or if Landlord's mortgagee or the lessor under a
ground or underlying lease shall require that any insurance proceeds from a
casualty loss be paid to it, Landlord may terminate this Lease unless
Tenant, within thirty (30) days after demand therefor, deposits with
Landlord a sum of money sufficient to pay the difference between the cost
of repair and the proceeds of the insurance available to Landlord for such
purpose.
19
22. Landlord's Lien. Intentionally omitted.
---------------
23. Services by Landlord. Landlord shall provide the Building Standard
--------------------
Services described on Exhibit "E" attached hereto and by reference made a part
-----------
hereof.
24. Attorneys' Fees. In the event Landlord or Tenant defaults in the
---------------
performance of any of the terms, agreements or conditions contained in this
Lease and the non-defaulting party places the enforcement of this Lease, or any
part thereof, or the collection of any Rent due or to become due hereunder, or
recovery of the possession of the Demised Premises, in the hands of an attorney,
or files suit upon the same, and should such non-defaulting party prevail in
such suit, the non-prevailing party, to the extent permitted by applicable law,
agrees to pay the prevailing party all reasonable attorney's fees actually
incurred by the prevailing party.
25. Time. Time is of the essence of this Lease and whenever a certain day
----
is stated for payment or performance of any obligation of Tenant or Landlord,
the same enters into and becomes a part of the consideration hereof.
26. Subordination and Attornment.
----------------------------
(a) Existing Security Deeds or Underlying Leases. Landlord represents
--------------------------------------------
and warrants to Tenant that as of the date of this Lease, the Land and
Building are free and clear of any mortgages, deeds to secure debt, deeds
of trust or other such financing instruments (each a "Security Deed") or
any ground or underlying leases.
(b) Subordination. Tenant agrees that upon request from the Landlord,
-------------
from the holder or proposed holder of any Security Deed or from the lessor
or proposed lessor under any underlying lease, Tenant shall execute a
subordination, non-disturbance and attornment agreement ("non-disturbance
agreement") subordinating this Lease to the interest of such holder or
lessor and their respective heirs, successors and assigns. The holder of
any such Security Deed or the lessor under any such underlying lease shall
agree in such nondisturbance agreement that, so long as Tenant complies
with all of the terms and conditions of this Lease and is not in default
hereunder beyond the period of cure of such default as provided herein,
such holder or lessor or any person or entity acquiring the interest of the
Landlord under this Lease as a result of the enforcement of such Security
Deed or lease or deed in lieu thereof (the "Successor Landlord") shall not
take any action to disturb Tenant's possession of the Demised Premises
during the remainder of the Lease Term and any extension or renewal thereof
and the Successor Landlord shall recognize all of Tenant's rights under
this Lease, despite any foreclosure, lease termination or other action by
such holder or lessor, including, without limitation, the taking of
possession of the Demised Premises or any portion thereof by the Successor
Landlord or the exercise of any assignment of rents by the holder or
lessor. In any such non-disturbance agreement, Tenant shall agree to give
the holder of the Security Deed (or, in the case of an underlying lease,
the lessor thereunder) notice of defaults by Landlord hereunder (but only
to the address previously supplied to Tenant in writing) at the same time
as such notice is given to Landlord and time periods to cure such defaults
which are the same as those granted to
20
Landlord hereunder (which time period shall run from and after such notice
is given to such holder or lessor), and Tenant shall further agree that any
Successor Landlord shall not be personally liable for any accrued
obligation of the former landlord, or for any act or omission of the former
landlord, whether prior to or after such enforcement proceedings, nor be
subject to any counterclaims which shall have accrued to Tenant against the
former landlord prior to the date upon which such party shall become the
owner of the Demised Premises. Such non-disturbance agreement shall also
provide for the attornment by Tenant to the Successor Landlord and shall
provide that such Successor Landlord shall not be (a) subject to any
offsets which the Tenant might have against the former landlord; (b) bound
by any Base Rental or any other payments which the Tenant under this Lease
might have paid for more than one (1) month in advance to any former
landlord under this Lease; or (c) bound by any amendment or modification of
this Lease made without the express written consent of the holder of the
Security Deed or lessor under the underlying lease, as the case may be.
Landlord will join in the signing of the non-disturbance agreement, and
such non-disturbance agreement will be in the form suitable for recording
in the deed records of Xxxx County, Tennessee.
(c) Election by Mortgagee. If the holder of any Security Deed or any
---------------------
lessor under a ground or underlying lease elects to have this Lease
superior to its Security Deed or lease and signifies its election in the
instrument creating its lien or lease or by separate instrument recorded in
connection with or prior to a foreclosure, or in the foreclosure deed
itself, then this Lease shall be superior to such Security Deed or lease.
27. Estoppel Certificates. Within ten (10) days after receipt of written
---------------------
request therefor by Landlord (including a copy of the form of estoppel
certificate), Tenant agrees to execute and return to Landlord in recordable form
an estoppel certificate addressed to Landlord, any mortgagee or assignee of
Landlord's interest in, or purchaser of, the Demised Premises or the Building or
any part thereof, certifying (if such be the case) that this Lease is unmodified
and is in full force and effect (and if there have been modifications, that the
same is in full force and effect as modified and stating said modifications);
that there are no defenses or offsets against the enforcement thereof or stating
those claimed by Tenant; and stating the date to which Rent and other charges
have been paid. Such certificate shall also include such other information as
may reasonably be required by such mortgagee, proposed mortgagee, assignee,
purchaser or Landlord. Any such certificate may be relied upon by Landlord, any
mortgagee, proposed mortgagee, assignee, purchaser and any other party to whom
such certificate is addressed. In the event Tenant delivers such estoppel
certificate within such time period, Landlord shall reimburse Tenant, not in
excess of $1,000.00 per estoppel certificate, for Tenant's reasonable
administration costs, actually incurred by Tenant as a result of executing such
estoppel certificate.
28. Cumulative Rights. All rights, powers and privileges conferred
-----------------
hereunder upon the parties hereto shall be cumulative to, but not restrictive
of, or in lieu of those conferred by law.
29. Holding Over. If Tenant remains in possession after expiration or
------------
termination of the Lease Term without Landlord's written consent, Tenant shall
become a tenant-at-
21
sufferance, and there shall be no renewal of this Lease by operation of law.
During the period of any such holding over, all provisions of this Lease shall
be and remain in effect except that the monthly rental shall be 125% of the
amount of Rent (including any adjustments as provided herein) payable for the
last full calendar month of the Lease Term including renewals or extensions. The
inclusion of the preceding sentence in this Lease shall not be construed as
Landlord's consent for Tenant to hold over.
30. Surrender of Premises. Upon the expiration or other termination of
---------------------
this Lease, Tenant shall quit and surrender to Landlord the Demised Premises and
every part thereof and all alterations, additions and improvements thereto,
broom clean and in good condition and state of repair, reasonable wear and tear
and insured casualty only excepted. Tenant shall remove all personalty and
equipment not attached to the Demised Premises which it has placed upon the
Demised Premises (including but not limited to Tenant's voice and data equipment
and back-up power equipment installed by Tenant at Tenant's cost, trade
fixtures, furniture, and Tenant's ice maker), and Tenant shall repair all damage
to the Demised Premises, Building or Project caused by the removal of such
property. If Tenant shall fail or refuse to remove all of Tenant's effects,
personalty and equipment from the Demised Premises upon the expiration or
termination of this Lease for any cause whatsoever or upon the Tenant being
dispossessed by process of law or otherwise, such effects, personalty and
equipment shall be deemed conclusively to be abandoned and may be appropriated,
sold, stored, destroyed or otherwise disposed of by Landlord without obligation
to account for them. Tenant shall pay Landlord on demand any and all expenses
(net of the net proceeds, if any, received by Landlord from the sale, if any, of
such property or any portion thereof) incurred by Landlord in the removal of
such property, including, without limitation, the cost of repairing any damage
to the Building or Project caused by the removal of such property and storage
charges (if Landlord elects to store such property). The covenants and
conditions of this Article 30 shall survive any expiration or termination of
this Lease.
31. Notices. All notices required or permitted to be given hereunder
-------
shall be in writing and may be delivered by hand to either party or may be sent
by courier or by United States Mail, certified, return receipt requested,
postage prepaid. Any such notice shall be deemed received by the party to whom
it was sent (i) in the case of hand delivery or courier delivery, on the date of
delivery to such party, and (ii) in the case of certified mail, the date receipt
is acknowledged on the return receipt for such notice or, if delivery is
rejected or refused or the U.S. Postal Service is unable to deliver same because
of changed address of which no notice was given pursuant hereto, the first date
of such rejection, refusal or inability to deliver. All such notices shall be
addressed to Landlord or Tenant at their respective address set forth
hereinabove or at such other address as either party shall have theretofore
given to the other by notice as herein provided.
32. Damage or Theft of Personal Property. All personal property brought
------------------------------------
into Demised Premises by Tenant, or Tenant's employees or business visitors,
shall be at the risk of Tenant only, and Landlord shall not be liable for theft
thereof or any damage thereto occasioned by any act of co-tenants, occupants,
invitees or other users of the Building or any other person, unless such theft
or damage is the result of the act of Landlord or its employees and Landlord is
not relieved therefrom by Article 17 hereof. Unless caused by the negligent
acts or omissions of Landlord or its employees, Landlord shall not at any time
be liable for
22
damage to any property in or upon the Demised Premises which results from power
surges or other deviations from the constancy of the electrical service or from
gas, smoke, water, rain, ice or snow which issues or leaks from or forms upon
any part of the Building or from the pipes or plumbing work of the same, or from
any other place whatsoever.
33. Eminent Domain.
--------------
(a) If all or part of the Demised Premises shall be taken for any
public or quasi-public use by virtue of the exercise of the power of
eminent domain or by private purchase in lieu thereof, this Lease shall
terminate as to the part so taken as of the date of taking, and, in the
case of a partial taking, either Landlord or Tenant shall have the right to
terminate this Lease as to the balance of the Demised Premises by written
notice to the other within thirty (30) days after such date; provided,
however, that a condition to the exercise by Tenant of such right to
terminate shall be either (i) that more than fifteen percent (15%) of the
Demised Premises was taken or (ii) that the portion of the Demised Premises
taken shall be of such extent and nature as substantially to handicap,
impede or impair, in Tenant's reasonable opinion, Tenant's use of the
balance of the Demised Premises or (iii) that more than fifteen percent
(15%) of the parking spaces for the Building were taken, unless within
thirty (30) days after the date of such Taking Landlord shall notify Tenant
of its intention to replace the parking spaces, and such replacement is
provided within one hundred fifty (150) days of such notice. If title to so
much of the Building is taken that a reasonable amount of reconstruction
thereof will not in Landlord's sole discretion result in the Building being
a practical improvement and reasonably suitable for use for the purpose for
which it is designed, then this Lease shall terminate on the date that the
condemning authority actually takes possession of the part so condemned or
purchased.
(b) If this Lease is terminated under the provisions of this Article
33, Rent shall be apportioned and adjusted as of the date of termination.
Tenant shall have no claim against Landlord or against the condemning
authority for the value of any leasehold estate or for the value of the
unexpired Lease Term provided that the foregoing shall not preclude any
claim that Tenant may have against the condemning authority for the
unamortized cost of leasehold improvements, to the extent the same were
installed at Tenant's expense (and not with the proceeds of the
Construction Allowance), or for loss of business, moving expenses or other
consequential damages, in accordance with subparagraph (d) below.
(c) If there is a partial taking of the Building and this Lease is not
thereupon terminated under the provisions of this Article 33, then this
Lease shall remain in full force and effect, and Landlord shall, within a
reasonable time thereafter, repair or reconstruct the remaining portion of
the Building to the extent necessary to make the same a complete
architectural unit; provided that in complying with its obligations
hereunder Landlord shall not be required to expend more than the net
proceeds of the condemnation award which are paid to Landlord.
(d) All compensation awarded or paid to Landlord upon a total or
partial taking of the Demised Premises or the Building shall belong to and
be the property of
23
Landlord without any participation by Tenant. Nothing herein shall be
construed to preclude Tenant from prosecuting any claim directly against
the condemning authority for loss of business, for damage to, and cost of
removal of, trade fixtures, furniture and other personal property belonging
to Tenant, and for the unamortized cost of leasehold improvements to the
extent same were installed at Tenant's expense (and not with the proceeds
of the Construction Allowance). In no event shall Tenant have or assert a
claim for the value of any unexpired term of this Lease. Subject to the
foregoing provisions of this subparagraph (d), Tenant hereby assigns to
Landlord any and all of its right, title and interest in or to any
compensation awarded or paid as a result of any such taking.
34. Parties. The term "Landlord", as used in this Lease, shall include
-------
Landlord and its assigns and successors. It is hereby covenanted and agreed by
Tenant that should Landlord's interest in the Demised Premises cease to exist
for any reason during the Lease Term, then notwithstanding the happening of such
event, this Lease nevertheless shall remain in full force and effect, and Tenant
hereby agrees to attorn to the then owner of the Demised Premises. The term
"Tenant" shall include Tenant and its heirs, legal representatives and
successors, and shall also include Tenant's assignees and sublessees, if this
Lease shall be validly assigned or the Demised Premises sublet for the balance
of the Lease Term or any renewals or extensions thereof. In addition, Landlord
and Tenant covenant and agree that Landlord's right to transfer or assign
Landlord's interest in and to the Demised Premises, or any part or parts
thereof, shall be unrestricted, and that in the event of any such transfer or
assignment by Landlord which includes the Demised Premises, Landlord's
obligations to Tenant thereafter arising hereunder shall cease and terminate,
and Tenant shall look only and solely to Landlord's assignee or transferee for
performance of Landlord's obligations to Tenant thereafter arising hereunder.
35. Liability of Tenant. Tenant hereby indemnifies Landlord from and
-------------------
agrees to hold Landlord harmless against, any and all liability, loss, cost,
damage or expense, including, without limitation, court costs and reasonable
attorney's fees, imposed on Landlord by any person whomsoever, caused in whole
or in part by any negligent act or omission of Tenant, or any of its employees,
contractors, servants, agents, subtenants or assignees, or of Tenant's customers
while such customers are within the Demised Premises, or otherwise occurring in
connection with any default of Tenant hereunder. The provisions of this Article
35 shall survive any termination of this Lease.
36. Force Majeure. In the event of strike, lockout, civil commotion, act
-------------
of God, or any other cause beyond a party's control (collectively "force
majeure") resulting in the Landlord's inability to supply the services or
perform the other obligations required of Landlord hereunder, this Lease shall
not terminate and Tenant's obligation to pay Rent and all other charges and sums
due and payable by Tenant shall not be affected or excused and Landlord shall
not be considered to be in default under this Lease. If, as a result of force
majeure, Tenant is delayed in performing any of its obligations under this
Lease, Tenant's performance shall be excused for a period equal to such delay
and Tenant shall not during such period be considered to be in default under
this Lease with respect to the obligation, performance of which has thus been
delayed.
24
37. Landlord's Liability. Landlord shall have no personal liability with
--------------------
respect to any of the provisions of this Lease. If Landlord is in default with
respect to its obligations under this Lease, Tenant shall look for satisfaction
of Tenant's remedies, if any, solely to the equity of Landlord in and to the
Building and the Land described in Exhibit "A" hereto and to the proceeds of
-----------
Landlord's insurance policy or policies actually paid to Landlord and not
applied by Landlord by the applicable claim or to the restoration of the
Building as required by the terms of this Lease (unless same are not so applied
because such proceeds are required by the holder of a mortgage to be paid to it
to reduce the debt secured by such mortgage) and to any rent derived from the
Building accruing after the date of a final judgment obtained by Tenant against
Landlord with respect to such default. It is expressly understood and agreed
that Landlord's liability under the terms of this Lease shall in no event exceed
the amount of its interest in and to said Land and Building, the aforedescribed
rent derived from the Building accruing after the date of a final judgment
obtained by Tenant against Landlord with respect to such default, and the
aforedescribed proceeds of insurance. In no event shall any partner of Landlord
nor any joint venturer in Landlord, nor any officer, director or shareholder of
Landlord or any such partner or joint venturer of Landlord be personally liable
with respect to any of the provisions of this Lease.
38. Landlord's Covenant of Quiet Enjoyment. Provided Tenant performs the
--------------------------------------
terms, conditions and covenants of this Lease, and subject to the terms and
provisions hereof, Landlord covenants and agrees to take all necessary steps to
secure and to maintain for the benefit of Tenant the quiet and peaceful
possession of the Demised Premises, for the Lease Term, without hindrance, claim
or molestation by Landlord or any other person lawfully claiming under Landlord.
39. First Month's Rent. Tenant has deposited with Landlord the sum set
------------------
forth in Article 1(m) above. Such amount shall be applied by Landlord to the
first monthly installment(s) of Base Rental and Tenant's Forecast Additional
Rental as they become due hereunder. This Lease shall be of no force or effect
and the sum set forth in Article 1(m) above shall be refunded to Tenant in the
event this Lease has not been executed by Landlord within fourteen (14) days
after counterparts of this Lease fully executed by Tenant have been delivered to
Landlord together with the sum set forth in Article 1(m) above.
40. Hazardous Substances. Tenant hereby covenants and agrees that Tenant
--------------------
shall not cause or permit any "Hazardous Substances" (as hereinafter defined) to
be generated, placed, held, stored, used, located or disposed of at the Project
or any part thereof, except for Hazardous Substances as are commonly and legally
used or stored as a consequence of using the Demised Premises for general office
and administrative purposes (and, if permitted hereunder, medical treatment and
medical laboratory purposes), but only so long as the quantities thereof do not
pose a threat to public health or to the environment or would necessitate a
"response action", as that term is defined in CERCLA (as hereinafter defined),
and so long as Tenant strictly complies or causes compliance with all applicable
governmental rules and regulations concerning the use, storage, production,
transportation and disposal of such Hazardous Substances. For purposes of this
Article 40, "Hazardous Substances" shall mean and include those elements or
compounds which are contained in the list of Hazardous Substances adopted by the
United States Environmental Protection Agency (EPA) or in any list of toxic
pollutants designated by Congress or the EPA or which are defined as hazardous,
25
toxic, pollutant, infectious or radioactive by any other federal, state or local
statute, law, ordinance, code, rule, regulation, order or decree regulating,
relating to or imposing liability (including, without limitation, strict
liability) or standards of conduct concerning, any hazardous, toxic or dangerous
waste, substance or material, as now or at any time hereinafter in effect
(collectively "Environmental Laws"). Tenant hereby agrees to indemnify Landlord
and hold Landlord harmless from and against any and all losses, liabilities,
including strict liability, damages, injuries, expenses, including reasonable
attorneys' fees, costs of settlement or judgment and claims of any and every
kind whatsoever paid, incurred or suffered by, or asserted against, Landlord by
any person, entity or governmental agency for, with respect to, or as a direct
or indirect result of, the presence in, or the escape, leakage, spillage,
discharge, emission or release from, the Demised Premises of any Hazardous
Substances (including, without limitation, any losses, liabilities, including
strict liability, damages, injuries, expenses, including reasonable attorneys'
fees, costs of any settlement or judgment or claims asserted or arising under
the Comprehensive Environmental Response, Compensation and Liability Act
["CERCLA"], any so-called federal, state or local "Superfund" or "Superlien"
laws or any other Environmental Law); provided, however, that the foregoing
indemnity is limited to matters arising solely from Tenant's violation of the
covenant contained in this Article. The obligations of Tenant under this
Article shall survive any expiration or termination of this Lease.
Landlord hereby covenants and agrees that Landlord has not caused or permitted
and shall not cause or permit any Hazardous Substances to be generated, placed,
held, stored, used, located or disposed of at the Project or any part thereof
(excluding, however, the Demised Premises and such other portions of the Project
as are from time to time leased to tenants, but including the "building
standard" work), except for Hazardous Substances as are commonly and legally
used or stored as a consequence of constructing, operating, and maintaining the
Project in accordance with this Lease, and using the Project for general office
and administrative purposes (and, if permitted hereunder, medical treatment and
medical laboratory purposes), but only so long as the quantities thereof do not
pose a threat to public health or to the environment or would necessitate a
"response action", as that term is defined in CERCLA, and so long as Landlord
strictly complies or causes compliance with all applicable governmental rules
and regulations concerning the use, storage, production, transportation and
disposal of such Hazardous Substances. Landlord hereby agrees to indemnify
Tenant and hold Tenant harmless from and against any and all losses,
liabilities, including strict liability, damages, injuries, expenses, including
reasonable attorneys' fees, costs of settlement or judgment and claims of any
and every kind whatsoever paid, incurred or suffered by, or asserted against,
Tenant by any person, entity or governmental agency for, with respect to, or as
a direct or indirect result of, the presence in, or the escape, leakage,
spillage, discharge, emission or release from, the Project of any Hazardous
Substances (including, without limitation, any losses, liabilities, including
strict liability, damages, injuries, expenses, including reasonable attorneys'
fees, costs of any settlement or judgment or claims asserted or arising under
CERCLA, any so-called federal, state or local "Superfund" or "Superlien" laws or
any other Environmental Law); provided, however, that the foregoing indemnity is
limited to matters arising solely from Landlord's violation of the covenant
contained in this Article. The obligations of Landlord under this Article shall
survive any expiration or termination of this Lease.
26
41. Submission of Lease. The submission of this Lease for examination
-------------------
does not constitute an offer to lease and this Lease shall be effective only
upon execution hereof by Landlord and Tenant.
42. Severability. If any clause or provision of the Lease is illegal,
------------
invalid or unenforceable under present or future laws, the remainder of this
Lease shall not be affected thereby, and in lieu of each clause or provision of
this Lease which is illegal, invalid or unenforceable, there shall be added as a
part of this Lease a clause or provision as nearly identical to the said clause
or provision as may be legal, valid and enforceable.
43. Entire Agreement. This Lease contains the entire agreement of the
----------------
parties and no representations, inducements, promises or agreements, oral or
otherwise, between the parties not embodied herein shall be of any force or
effect. No failure of Landlord to exercise any power given Landlord hereunder,
or to insist upon strict compliance by Tenant with any obligation of Tenant
hereunder, and no custom or practice of the parties at variance with the terms
hereof, shall constitute a waiver of Landlord's right to demand exact compliance
with the terms hereof. This Lease may not be altered, waived, amended or
extended except by an instrument in writing signed by Landlord and Tenant. This
Lease is not in recordable form, and Tenant agrees not to record or cause to be
recorded this Lease or any short form or memorandum thereof.
44. Headings. The use of headings herein is solely for the convenience of
--------
indexing the various paragraphs hereof and shall in no event be considered in
construing or interpreting any provision of this Lease.
45. Broker. Tenant represents and warrants to Landlord that (except with
------
respect to any Broker[s] identified in Article 1[n] hereinabove) no broker,
agent, commission salesperson, or other person has represented Tenant in the
negotiations for and procurement of this Lease and of the Demised Premises and
that (except with respect to any Broker[s] identified in Article 1[n]
hereinabove) no commissions, fees, or compensation of any kind are due and
payable in connection herewith to any broker, agent, commission salesperson, or
other person as a result of any act or agreement of Tenant. Tenant agrees to
indemnify and hold Landlord harmless from all loss, liability, damage, claim,
judgment, cost or expense (including reasonable attorneys' fees and court costs)
suffered or incurred by Landlord as a result of a breach by Tenant of the
representation and warranty contained in the immediately preceding sentence or
as a result of Tenant's failure to pay commissions, fees, or compensation due to
any broker who represented Tenant, whether or not disclosed, or as a result of
any claim for any fee, commission or similar compensation with respect to this
Lease made by any broker, agent or finder (other than the Broker[s] identified
in Article 1[n] hereinabove) claiming to have dealt with Tenant.
Landlord represents and warrants to Tenant that (except with respect to any
Broker[s] identified in Article 1[n] hereinabove) no broker, agent, commission
salesperson, or other person has represented Landlord in the negotiations for
and procurement of this Lease and of the Demised Premises and that (except with
respect to any Broker[s] identified in Article 1[n] hereinabove) no commissions,
fees, or compensation of any kind are due and payable in connection herewith to
any broker, agent, commission salesperson, or other person as a result
27
of any act or agreement of Landlord. Landlord agrees to indemnify and hold
Tenant harmless from all loss, liability, damage, claim, judgment, cost or
expense (including reasonable attorneys' fees and court costs) suffered or
incurred by Tenant as a result of a breach by Landlord of the representation and
warranty contained in the immediately preceding sentence or as a result of
Landlord's failure to pay commissions, fees, or compensation due to any broker
who represented Landlord, whether or not disclosed, or as a result of any claim
for any fee, commission or similar compensation with respect to this Lease made
by any broker, agent or finder (other than the Broker[s] identified in Article
1[n] hereinabove) claiming to have dealt with Landlord.
46. Governing Law. The laws of the State of Tennessee shall govern the
-------------
validity, performance and enforcement of this Lease.
47. Special Stipulations. The special stipulations attached hereto as
--------------------
Exhibit "F" are hereby incorporated herein by this reference as though fully set
-----------
forth.
48. Authority. Each of the persons executing this Lease on behalf of
---------
Tenant does hereby personally represent that Tenant is a duly formed and validly
existing limited liability company and is fully authorized and qualified to do
business in the State of Tennessee, that the limited liability company has full
right and authority to enter into this Lease, and that each person signing on
behalf of the limited liability is a manager or officer of the limited liability
company and is authorized to sign on behalf of and to bind the limited liability
company. Upon the request of Landlord, Tenant shall deliver to Landlord
documentation satisfactory to Landlord evidencing Tenant's compliance with this
Article, and Tenant agrees to promptly execute all necessary and reasonable
applications or documents as reasonably requested by Landlord, required by the
jurisdiction in which the Demised Premises is located, to permit the issuance of
necessary permits and certificates for Tenant's use and occupancy of the Demised
Premises.
49. Financial Statements. Upon Landlord's written request therefor, but
--------------------
not more often than once per year, Tenant shall promptly furnish to Landlord
Tenant's most recent annual report (provided, however, if Tenant is not publicly
traded at such time, Tenant shall deliver a financial statement with respect to
Associates First Capital Corporation for its most recent fiscal year prepared in
accordance with generally accepted accounting principles and certified to be
true and correct by Associates First Capital Corporation, which statement
Landlord agrees to keep confidential and not use except in connection with
proposed sale or loan transaction).
[Signatures contained on following page]
28
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as
of the day, month and year first above written.
"LANDLORD":
THE FUND IX, FUND X, FUND XI, AND REIT
JOINT VENTURE
By: Xxxxx Real Estate Fund IX, L.P.,
a Georgia limited partnership,
managing venturer
By: /s/ Xxx X. Xxxxx (Seal)
--------------------------
Xxx X. Xxxxx, XX,
general partner
By: Xxxxx Partners, L.P.,
a Georgia limited partnership,
general partner
By: Xxxxx Capital, Inc.,
a Georgia corporation,
general partner
By: /s/ Xxx X. Xxxxx (Seal)
------------------
Xxx X. Xxxxx, XX,
President
(CORPORATE SEAL)
"TENANT":
ASSOCIATES HOUSING FINANCE, LLC,
a Delaware limited liability company
By: /s/ Xxxxx X. Stoltzamn
-----------------------
Name: Xxxxx Xxxxxxxx
Its: Vice President
By:_______________________
Its:______________________
(SEAL)
29
EXHIBIT "A"
-----------
LEGAL DESCRIPTION
That property situate in the Sixth Civil District of Xxxx County, Tennessee,
without the corporate limits of the City of Knoxville, Tennessee, being known
and designated as Lot 13R in the Centerpoint Park, as shown on the map of the
same of record in Cabinet O, Slide 280A, in the Register's Office for Xxxx
County, Tennessee.
EXHIBIT "B"
-----------
[FLOOR PLAN APPEARS HERE]
[LOGO OF THE ASSOCIATES APPEARS HERE]
EXHIBIT "D"
-----------
CONSTRUCTION OBLIGATIONS
1. Plans and Specifications. Tenant, at Tenant's sole cost and expense, shall
------------------------
cause to be prepared by Tenant's architect or space planner, schematic
partition plans and layout for the Demised Premises based on Tenant's
requirements. Upon approval by Landlord of such schematic partition plans
and layout (which approval shall not be unreasonably withheld), Tenant shall
cause to be prepared by Tenant's architect (Xxxxxx, Xxxxxxx & Xxxxx), at
Tenant's cost, the following:
(a) Complete and detailed architectural drawings and specifications for
Tenant's partition layout, reflected ceiling and other installations
for the work to be done by Landlord under Paragraph 3 hereof.
(b) Complete engineered construction drawings and specifications where
necessary for installation of heating and air conditioning,
electrical, plumbing and fire protection systems and other drawings
necessary to define the scope of work to be done by Landlord under
Paragraph 3 hereof.
(c) Any subsequent modifications to the drawings and specifications
requested by Landlord.
All such plans and specifications are expressly subject to Landlord's
approval. On or prior to the date hereof, Tenant has caused said schematic
partition plans and layout to be delivered to Landlord and the construction
drawings and specifications to be prepared as provided above and delivered
to Landlord, and, upon approval by Landlord, Landlord will cause said plans
to be filed at Tenant's sole cost and expense with the appropriate
governmental agencies in such form (building notice, alteration or other
form) as Landlord may direct. The Demised Premises shall be deemed ready
for occupancy when Landlord's construction, as provided in Paragraphs 2 and
3 hereof, is substantially completed subject only to punch list items, with
the certificate of occupancy for the Demised Premises having been issued and
such status is referred to in this Lease as "Substantial Completion." In
the event of any dispute as to when Landlord's construction has been
substantially completed as aforesaid, the determination of Landlord's
architect or designer shall be final and binding upon the parties. Landlord
will give Tenant ten (10) days' advance written notice of the date on which
Landlord expects the Demised Premises to be ready for occupancy.
2. Base Building Condition. Landlord agrees, at its sole expense and without
-----------------------
charge to Tenant, to supply and/or install the following work in the
Building and/or Demised Premises (the following describes the scope of the
"building standard" work which will be provided by Landlord at its expense
in accordance with the plans and specifications for the Building):
(a) HVAC System
Central plant equipment and air handling units (and including
perimeter slot diffusers stacked on the floor) capable of maintaining
the following indoor conditions plus or minus two (2) degrees F, based
upon the local conditions specified in the 1993 edition of ASHRAE
HANDBOOK OF FUNDAMENTALS:
(1) Summer indoor shall be 75 degrees F.D.B. when outside temperature
is 92 degrees F.D.B. The cooling tower, chillers, air handling
units, piping and equipment shall be designed and sized
accordingly.
(2) Winter indoor shall be 70 degrees F.D.B. when outside temperature
is 22 degrees F.D.B.
In addition, the system shall meet in all respects ASHRAE Standard
ANSI/ASHRAE 62 "Ventilation for Acceptable Indoor Air Quality", 1989,
Addendum 62A 1990, and all subsequent Addenda thereto, including the
ability to provide twenty (20) cubic feet per minute of outside fresh
air per occupant, based on an occupant load of one person per one
hundred fifty (150) usable square feet.
Air conditioning design basis is 3.0 xxxxx per usable square foot
lighting and power load, based upon an occupancy rate of seven (7)
persons per 1,000 rentable square feet (per ASHRAE Standard 62-1989)
and venetian blinds drawn with slats tilted against the sun at not
less than 45 degrees from horizontal.
(b) Electrical
An electrical capacity of three (3) xxxxx per square foot of rentable
floor area for low voltage electrical consumption (120/208 volts) and
two (2) xxxxx per square foot of rentable floor area for lighting
(277/480 volts) will be provided at one location on each floor.
(c) Sprinkler system
A complete sprinkler system including building standard sprinkler
heads (with heads turned up) in accordance with Landlord's standard
grid pattern.
(d) The inside of the Building's perimeter walls shall have gypsum
wallboard installed where applicable (taped and bedded only). The
corridor side of the walls of any corridors which are used in common
by Tenant and other tenants and occupants of the Building shall be
finished to Landlord's specifications.
2
(e) Structural concrete columns with drywall, taped and bedded (to be
finished at Tenant's cost pursuant to Paragraph 3 hereof).
(f) Horizontal mini-blinds for all exterior windows in accordance with
Landlord's standard specifications, installed.
(g) Base building drywall soffit shall be furnished and installed, taped
and painted. Slot diffusers shall be installed with this soffit
detail.
(h) Building standard 2x2 ceiling grid shall be provided by Landlord (but
not installed). Building standard acoustical ceiling tile (material
only) shall be provided by Landlord (but not installed).
(i) Building standard 2x4 fluorescent light fixtures (material only) at
the ratio of one fixture per 100 square feet of rentable floor area
shall be provided by Landlord (but not installed).
(j) Incorporation of Tenant's name into the main building directory.
3. Leasehold Improvements. Landlord agrees, at Tenant's sole cost and
----------------------
expense (subject to Paragraph 5 hereof with respect to the Construction
Allowance), and in conformance with working drawings and specifications,
approved by Landlord, to provide and install the following work:
(a) Air conditioning.
(i) Any modifications to or deviations from building standard
heating and air conditioning system.
(ii) Material and installation of components including diffusers
(all interior zone diffusers and any additional perimeter slot
diffusers), return grilles, flex duct and spin-ins to support
the base building system.
(iii) All additional duct work throughout the Demised Premises.
(iv) Fire dampers as required by Tenant's layout design.
(v) Installation of building standard thermostats.
(vi) Test and balance work.
(vii) Supplemental HVAC and/or exhaust systems.
3
(b) Electrical.
(i) Electrical distribution system on each floor from the
electrical panel location on each floor (or from additional
electrical panels as required by the working drawings and
specifications).
(ii) All light switches.
(iii) All electrical outlets.
(iv) All telephone rough-in boxes and pullstrings (Tenant shall be
responsible for the installation of its own phone and data
cable, plenum rated or installed in conduit, including
conduits, if required from base building riser closet to
Tenant's telephone back board).
(v) Installation of building standard light fixtures provided by
Landlord under Paragraph 2(i) above and provision and
installation of all other light fixtures and related circuitry,
panel boards, etc.
(vi) Any provision for supplying power to the Demised Premises
beyond the xxxxx per rentable square foot specified in the
Building Standard Services, or circuiting at less than 8
outlets per 16 AMP circuit, or circuited at more than one (1)
pole of 120 volt, single phase circuit per 252 square feet of
rentable floor area, including necessary metering to measure
excess electrical usage. Each floor shall be provided with one
42 pole panel.
(vii) All exit light fixtures and exit signs within the Tenant's
Demised Premises.
(viii) All ADA xxxxxx xxxx devices within Tenant's Demised Premises.
(c) Installation of the building standard grid and building standard
acoustical ceiling tile provided by Landlord under Paragraph 2(h)
above and provision and installation of any non-standard ceiling
system approved by Landlord.
(d) Sprinkler system. Any modification to or deviation from the building
standard sprinkler system including relocations of or additions to the
number of sprinkler heads provided or the provision of a non-standard
sprinkler head.
(e) All plumbing work for facilities such as showers, sinks or additional
toilets in the Demised Premises or in support of Tenant's kitchen
appliances in the Demised Premises.
(f) All partitions for walls within the Demised Premises, including the
finish thereof, and the tenant side of the common corridor walls which
are within the
4
Demised Premises, including the finish thereof, and the finish to the
inside of the Building's perimeter walls (as applicable).
(g) Where applicable, the finish to the building standard concrete columns
adjacent to the curtain wall.
(h) All doors and frames.
(i) All hardware, which must match and be compatible with the established
building standards (except for such hardware as is replaced by Tenant-
furnished electrified handsets for card-access secured doors).
(j) All floor finishes including base (except that Tenant shall furnish
F.O.B. the Premises all carpet materials as previously approved by
Landlord).
(k) Any special construction as shown on the drawings and specifications
approved by Landlord.
(l) Tenant's identification sign conforming to Landlord's standards, at
entrances to Demised Premises.
(m) All fire alarm devices, including speakers, required within the
Demised Premises by applicable building code.
4. Approval of Subcontractors; Cost Estimate. Landlord reserves the right to
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restrict the list of subcontractors who may carry out work related to
critical Building systems, provided that such subcontractors shall 1) be
qualified, competent and of good reputation, 2) have sufficient manpower to
timely perform the work, 3) not, during the expected term of the work, have
collective bargaining contracts coming due, 4) not be related, through
business or blood, to any member of Landlord's staff, and 5) be willing to
work "open-book" should Tenant believe such subcontractor's prices are
excessive. This work includes the following:
. HVAC/mechanical
. Electrical
. Plumbing
. Fire Protection
. Fire Alarm
. Test & Balance
. Roofing
. Curtain wall
. Structural steel
Prior to commencing any work, Landlord or Landlord's representative will
submit to Tenant written estimates of the cost of the work described in
Paragraph 3 hereof. If Tenant shall fail to approve any such estimate
within seven (7) calendar days, the same
5
shall be deemed disapproved in all respects by Tenant and Landlord shall
not be authorized to proceed thereon. In the event of such disapproval,
Tenant shall work promptly with Tenant's architect and Landlord to alter
the working drawings and specifications for the work described in Paragraph
3 hereof to cause the price estimate to be acceptable to Tenant.
5. Tenant's Payment Obligation. Tenant agrees to pay Landlord promptly within
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thirty (30) days of being invoiced (but in no event prior to Substantial
Completion) for the cost of the work described in Paragraphs 1 and 3
hereof, less the amount of the Construction Allowance, if any, stated in
Article 1(m) of this Lease. Tenant agrees that the same shall be
collectible as additional rent and in default of payment thereof Landlord
shall (in addition to all other remedies) have the same rights as in the
event of default of payment of Base Rental. No construction management fee
shall be paid to Landlord. If there remains any undisbursed portion of the
Construction Allowance after payment of all costs of the work described in
Paragraphs 1 and 3 hereof, and provided no event of default under this
Lease has occurred and is continuing, Landlord shall either pay such
undisbursed portion of the Construction Allowance to Tenant or credit such
undisbursed portion to Rent next thereafter becoming due and payable under
this Lease until fully credited.
6. Costs of Delays. If (a) Tenant shall fail to furnish schematic plans in
---------------
accordance with Paragraph 1 hereof, or (b) Landlord shall be delayed in
substantially completing Landlord's construction as a result of:
(i) Tenant's request for materials, finishes or installations other
than Landlord's standard; or
(ii) Tenant's failure to approve cost estimates within seven (7)
days; or
(iii) Tenant's changes in said plans or specifications; or
(iv) The performance of work by a person, firm or corporation
employed by Tenant and delays in the completion of said work by
said person, firm or corporation;
then Tenant agrees to pay to Landlord, in addition to any sum due under
Paragraph 5 above, a sum equal to any additional cost to Landlord in
completing Landlord's construction resulting from any of the foregoing
failures, acts or omissions of Tenant. Any such sums shall be in addition
to any sums payable pursuant to Paragraphs 1 and 3 hereof and may be
collected by Landlord as additional rent from time to time, upon demand,
and in default of payment thereof, Landlord shall (in addition to all other
remedies) have the same rights as in the event of default of payment of
Base Rental. With respect to the matters set forth in subparagraphs (i)
through (iii) set forth above, Landlord shall inform Tenant of the
potential delay to the work anticipated to be caused thereby at the time
such request, change or failure to approve occurs. In the cases of request
or change, failure of Landlord to so inform Tenant shall be deemed to
6
mean that such request or change will not cause a delay in the then
anticipated date of Substantial Completion.
7. Alterations by Tenant. Except as expressly set forth in the Lease, Tenant
---------------------
shall not make any alterations, additions or improvements in or to the
Demised Premises without Landlord's prior written consent, which consent
shall not be unreasonably withheld. Tenant shall not make any alterations,
additions or improvements to any common areas without Landlord's prior
written consent, which consent may be granted or withheld in Landlord's
sole discretion. Except for construction as provided in Paragraphs 2 and 3
hereof, and except as set forth in Paragraph 4 of the Lease with respect to
punch list items and latent defects, the Demised Premises are delivered to
Tenant "as is" without any warranty or representation whatsoever. Any
alterations, additions or improvements requested by Tenant and approved by
Landlord shall be performed (i) by Landlord's contractor or another
contractor approved by Landlord, (ii) in a good and workmanlike manner, and
(iii) in accordance with all applicable codes, laws, ordinances, rules and
regulations of governmental authorities having jurisdiction over the
Demised Premises.
8. Approvals by Landlord. Any approval by Landlord of or consent by Landlord
---------------------
to any of Tenant's plans, specifications or other items to be submitted by
Tenant to and/or reviewed by Landlord pursuant to this Lease shall be
deemed to be strictly limited to an acknowledgment of approval or consent
by Landlord thereto and, whether or not the work is performed by Landlord
or by Tenant's contractor, such approval or consent shall not constitute
the assumption by Landlord of any responsibility for the accuracy,
sufficiency or feasibility of any plans, specifications or other such items
and shall not imply any acknowledgment, representation or warranty by
Landlord that the design is safe, feasible, structurally sound or will
comply with any legal or governmental requirements, and Tenant shall be
responsible for all of the same.
7
EXHIBIT "E"
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BUILDING STANDARD SERVICES
Landlord shall furnish the following services to Tenant during the Lease
Term while the Demised Premises or any portion thereof is being occupied for
business purposes (the "Building Standard Services"):
(a) Common-use restrooms (with cold and tempered domestic water) and
toilets at the locations provided for in the Base Building Plans.
(b) Subject to curtailment as required by governmental laws, rules or
mandatory regulations and subject to the design conditions set forth in
paragraph 2(a) of Exhibit "D" attached hereto, central heat and air conditioning
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in season, at such temperatures and in such amounts as are in keeping with the
standards of buildings comparable to the Building in the metropolitan Knoxville,
Tennessee area. Such heating and air conditioning shall be furnished between
7:00 a.m. and 6:00 p.m. on weekdays (from Monday through Friday, inclusive) and
between 8:00 a.m. and 1:00 p.m. on Saturdays, all exclusive of Holidays, as
defined below (the "Building Operating Hours").
Upon one (1) day's prior notice by Tenant given during Building Operating
Hours, Landlord will furnish such air conditioning and heating at other times
(that is, other than the times specified above), in which case Tenant shall
reimburse Landlord for all costs (provided, however, that such costs shall not
exceed $35.00 per hour) of such heating and air conditioning during days and
times other than the Building Operating Hours. Any sums due hereunder from
Tenant shall be paid by Tenant to Landlord together with the installment of Base
Rental which is due next following receipt by Tenant of a billing from Landlord
for such sums.
(c) Electric lighting service for all public areas and special service
areas of the Building in the manner and to the extent reasonably deemed by
Landlord to be in keeping with the standards of buildings comparable to the
Building in the metropolitan Knoxville, Tennessee area.
(d) Janitor service shall be provided five (5) days per week, exclusive of
Holidays (as hereinbelow defined), in a manner that Landlord reasonably deems to
be consistent with the standards of office buildings comparable to the Building
in the metropolitan Knoxville, Tennessee area, and in accordance with the
standards set forth on Exhibit "E-1" attached hereto. In the event any special
cleaning services are required for laboratories, special health care areas or
other non-office space (and which are not required for office space), any
incremental cost of providing such special cleaning services shall be borne
solely by Tenant, and shall be paid by Tenant to Landlord as additional rent.
(e) Sufficient electrical capacity to operate lights, typewriters,
calculating machines, photocopying machines, personal computers and other
machines of the same low voltage electrical consumption.
Should Tenant's total rated electrical design load exceed five (5.0) xxxxx
per rentable square foot lighting and power load, or if Tenant's electrical
design requires low voltage or high voltage circuits in excess of Tenant's share
of the building standard circuits, Landlord will (at Tenant's expense) install
such additional circuits and associated high voltage panels and/or additional
low voltage panels with associated transformers (which additional circuits,
panels and transformers shall be hereinafter referred to as the "Additional
Electrical Equipment"). If the Additional Electrical Equipment is installed
because Tenant's low or high voltage rated electrical design load exceeds the
applicable building standard rated electrical design load, then a meter shall
also be added (at Tenant's expense) to measure the electricity used through the
Additional Electrical Equipment.
The design and installation of any Additional Electrical Equipment (or any
related meter) required by Tenant shall be subject to the prior approval of
Landlord (which approval shall not be unreasonably withheld). All expenses
incurred by Landlord in connection with the review and approval of any
Additional Electrical Equipment shall also be reimbursed to Landlord by Tenant.
Tenant shall also pay on demand the actual metered cost of electricity consumed
through the Additional Electrical Equipment (if applicable), plus any actual
accounting expenses incurred by Landlord in connection with the metering
thereof.
If any of Tenant's electrical equipment requires conditioned air in excess
of building standard air conditioning, the same shall be installed by Landlord
(on Tenant's behalf), and Tenant shall pay all design, installation, metering
and operating costs relating thereto.
If Tenant requires that certain areas within Tenant's Demised Premises must
operate in excess of the normal Building Operating Hours (as hereinabove
defined), the electrical service to such areas shall be separately circuited and
metered (at Tenant's expense) such that Tenant shall be billed the costs
associated with electricity consumed during hours other than Building Operating
Hours.
(f) All building standard fluorescent bulb replacement in all areas and all
incandescent bulb replacement in public areas, toilet and restroom areas, and
stairwells.
To the extent the services described above require electricity and water
supplied by public utilities, Landlord's covenants thereunder shall only impose
on Landlord the obligation to use commercially reasonable efforts in good faith
to cause the applicable public utilities to furnish same. Except for deliberate
and willful acts of Landlord, failure by Landlord to furnish the services
described herein, or any cessation thereof, shall not render Landlord liable for
damages to either person or property, nor be construed as an eviction of Tenant,
nor work an abatement of rent, nor relieve Tenant from fulfillment of any
covenant or agreement hereof. In addition to the foregoing, should any of the
equipment or machinery, for any cause, fail to operate, or function properly,
except as hereinafter provided, Tenant shall have no claim for rebate of rent or
damages on account of an interruption in service occasioned thereby or resulting
therefrom; provided, however, Landlord agrees to use commercially reasonable
efforts in good faith to promptly repair said equipment or machinery and to
restore said services during normal business hours. Notwithstanding the
foregoing to the contrary, if, for
2
any reason other than Tenant's failure to pay for all charges to the utility
company, to the governmental entity furnishing such services to the extent
Tenant is obligated to pay therefor under this Lease or Tenant's failure to
comply with the obligations of Tenant pursuant to this Lease, or Tenant's
negligence or willful misconduct, such services are unavailable for more than
three (3) consecutive business days, and Tenant cannot reasonably and safely
operate Tenant's business in the Demised Premises or cannot have reasonably
secure access to the Demised Premises, then Base Rental shall xxxxx equitably
from and after the third (3rd) day for the remaining period of such interruption
or delay.
The following dates shall constitute "Holidays" as that term is used in
this Lease: New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, Christmas, and any other holiday generally recognized as such
by landlords of office space in the Knoxville, Tennessee office market, as
determined by Landlord in good faith. If in the case of any specific holiday
mentioned in the preceding sentence, a different day shall be observed than the
respective day mentioned, then that day which constitutes the day observed by
national banks in Knoxville, Tennessee on account of said holiday shall
constitute the Holiday under this Lease.
3
EXHIBIT "E-1"
Cleaning and Janitor Services
Landlord shall furnish cleaning and janitor services to the Project as described
below:
Daily:
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. Sweep, dry mop or vacuum, as appropriate, all floor areas; remove
material such as gum and tar which has adhered to the floor.
. Empty and damp wipe all ashtrays, waste baskets and containers;
remove all trash from the Leased Premises.
. Dust all horizontal surfaces with treated dust cloth.
. Spot wash to remove smudges, marks and fingerprints from such
areas as walls, equipment, doors, partitions and light switches
within reach.
. Wash water fountains.
. Damp mop all non-resilient floors such as concrete, terrazzo and
ceramic tile. Damp mop floors using detergent disinfectant.
. Clean passenger elevator cabs and landing doors.
. Clean mirrors, soap dispensers, shelves, wash basins, exposed
plumbing, dispenser and disposal container exteriors, using
detergent disinfectant and water. Damp wipe all ledges, toilet
stalls and toilet doors.
. Clean toilets and urinals with detergent disinfectant, beginning
with seats and working down. Pour one ounce of bowl cleaner into
urinal after cleaning and do not flush.
. Furnish and refill all soap, toilet, sanitary napkin and towel
dispensers.
. Clean all baseboards.
Weekly:
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. Wash glass in building directory, entrance doors and frames and show
windows, both sides.
. Remove all litter form the parking area and grounds.
. Spot wash interior partition glass and door glass to remove smudge
marks.
. Damp wipe all telephones.
Monthly:
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. Scrub and recondition resilient floor areas using buff-able non-slip
type floor finish.
. Vacuum all ceiling and wall air supply and exhaust diffusers or
grills.
. Wash all interior glass, both sides.
Quarterly:
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. High dust all horizontal and vertical surfaces not reached in nightly
cleaning, such as pipes, light fixtures, door frames, picture frames
and other wall hangings.
. Wash and polish vertical terrazzo or marble surfaces.
. Damp wash diffusers, vents, grills, and other such items, including
surrounding wall or ceiling areas that are soiled.
Semi-Annually:
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. Vacuum drapes, cornices and wall hangings.
. Dust all storage areas, including shelves and contents, such as supply
and stock closets, and damp mop floor areas.
. Strip and refinish all resilient floor areas using buff-able non-slip
floor finish.
. Wash all building exterior glass, both sides.
Annually:
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. Wash light fixtures, including reflectors, globes, diffusers and
trim.
. Wash walls in corridors, lounges, classrooms, demonstration
areas, cafeterias and washrooms.
. Clean all vertical surfaces not attended to during nightly,
weekly, quarterly or semi-annual cleaning.
. Shampoo all carpeted areas (upon request by Tenant, but not
during first year).
IN ADDITION TO THE FOREGOING, PROVIDE A DAY XXXXXX ON ALL TENANT'S BUSINESS
DAYS, MONDAY THROUGH FRIDAY.
UPON REQUEST BY TENANT WHEN NEEDED:
----------------------------------
. Spot clean carpet stains.
. Sweep stair areas.
EXHIBIT "F"
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SPECIAL STIPULATIONS
1. EXTENSION OPTIONS. Tenant is hereby granted options to extend the Lease
Term for additional periods of one (1) month each (each such additional period
being herein referred to as an "Extended Term") by giving written notice of such
extension to Landlord prior to the expiration of the Lease Term (as extended);
provided, however, that in the event the Other Lease is terminated, then with
respect to Extended Terms commencing on or after the first day of the seventh
(7th) calendar month from and after the calendar month within which occurred
the Rental Commencement Date, the options to extend the Lease Term granted
hereunder shall be exercised by Tenant giving written notice of each such
extension to Landlord at least thirty (30) days prior to the expiration of the
Lease Term (as previously extended); further provided, however, that the Lease
Term shall not be extended beyond (and the Lease Term, if not sooner terminated,
shall end on) the earlier to occur of: (i) the date fifteen (15) days after
"Substantial Completion" of the "Demised Premises" as those terms are defined in
the Other Lease; or (ii) June 30, 2000. Tenant shall have the right to exercise
these options to extend provided that on the date of such exercise no default or
event of default under this Lease then exists. Each Extended Term shall be upon
all of the same terms, covenants and conditions of this Lease then applicable.
The term "Lease Term" as used in this Lease shall mean the initial Lease Term
and any Extended Term which may become effective.
2. REFUSAL RIGHT. Provided and on the condition that Tenant is not then in
default and no event of default has occurred under this Lease, and subject to
the first refusal rights granted to the tenant under the lease between Landlord
and ABB Flakt, Inc. (the "ABB Lease"), Tenant shall have a right of refusal (the
"Refusal Right"), subject to and upon the terms and conditions set forth below,
with respect to that certain space in the Building and designated on Exhibit "F-
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1" attached hereto and by reference made a part hereof (the "Refusal Space").
--
Prior to entering into a lease with any other party (other than the tenant under
the ABB Lease) of any of the Refusal Space, Landlord shall notify Tenant that it
intends to enter into such lease (a "Refusal Notice"). Tenant shall have the
right to exercise its Refusal Right to add the space identified in the Refusal
Notice to the Demised Premises (with such space subject to all the terms and
conditions of this Lease, except as herein expressly provided), by giving notice
thereof to Landlord within ten (10) business days after the date Tenant receives
the Refusal Notice. If Tenant does not so exercise its Refusal Right within
such ten (10) business day period, Landlord shall have the right to lease the
Refusal Space identified in the Refusal Notice free and clear of any further
rights of Tenant under this Special Stipulation 2. In the event Tenant
exercises its Refusal Right with respect to any Refusal Space, Landlord and
Tenant shall proceed with diligence and continuity to prepare such Refusal Space
for Tenant's occupancy in accordance with the provisions of this Lease
applicable to the initial construction of the Demised Premises. In the event
Tenant exercises a Refusal Right, as of the date (the "Commencement Date for the
applicable Refusal Space") which is the earlier to occur of (i) the date upon
which Tenant occupies such Refusal Space for the conduct of Tenant's business
(for purposes hereof, Tenant shall not be deemed to be occupying such Refusal
Space for the conduct of its business merely by moving furniture and equipment
into such Refusal
Space), or (ii) the date seven (7) days after the date upon which Landlord
tenders such Refusal Space to Tenant after substantial completion of
construction of such Refusal Space substantially in accordance with the
provisions of Exhibit "D" attached to this Lease. Effective as of the
-----------
Commencement Date for the applicable Refusal Space, the Base Rental and other
charges payable hereunder shall be increased based upon the number of rentable
square feet added to the Demised Premises. Such Refusal Space shall be deemed
to be substantially completed upon the issuance of a certificate of substantial
completion by Landlord's architect in favor of both Landlord and Tenant
certifying that the only remaining items of incomplete or defective work are
items which are typically considered to be "punch-list" work in connection with
comparable construction projects in the metropolitan Knoxville, Tennessee, area,
and delivery thereof to Tenant. During the course of construction of the
improvements in such Refusal Space to be constructed pursuant to this Special
Stipulation 2, Landlord shall update Tenant during weekly construction meetings
on the status of construction, the anticipated completion date, and any delays
in such construction. Within ten (10) days after the addition of any Refusal
Space to the Demised Premises, Landlord and Tenant shall enter into an amendment
evidencing the addition, but the failure or refusal of Tenant to enter into an
amendment shall not impair or negate the exercise of the option or relieve
Tenant of any of its obligations with respect to the Refusal Space added to the
Demised Premises.
Notwithstanding the foregoing or any other provision of this Lease to the
contrary, (a) Tenant may not exercise the Refusal Right unless at least ninety
(90) days shall remain in the initial Lease Term at the time of such exercise,
and (b) the Construction Allowance for the Refusal Space shall be the product of
the Rentable Floor Area of the applicable Refusal Space to be added to the
Demised Premises, multiplied by Nine and 50/100 Dollars ($9.50).
3. PARKING.
(a) Landlord will provide to Tenant, without charge, unassigned parking in
the parking area adjacent to the Building for the Lease Term; provided, however,
that the total parking available for Tenant without charge shall be four (4)
spaces per one thousand (1000) usable square feet contained in the Demised
Premises.
(b) Landlord may make, modify and enforce reasonable rules and regulations
relating to the parking of vehicles in the parking areas, and Tenant agrees to
abide by any such rules and regulations. Tenant's failure to use commercially
reasonable efforts in good faith to cause Tenant's agents, contractors,
employees, licensees, subtenants, assigns, guests and invitees to abide by any
such rules and regulations after written notice by Landlord to Tenant and
expiration of any applicable cure period, if any, shall constitute a default by
Tenant under this Lease.
(c) If the number of parking spaces available in the Building parking
facilities shall be reduced as a result of a taking by condemnation, Landlord
shall have the right to effect a proportionate reduction in the number of
parking spaces provided to Tenant. However, in the event the number of parking
spaces made available to Tenant shall be reduced for more than six (6) months to
a number which is less than 3.4 parking spaces for every 1,000 usable square
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feet of the Demised Premises, and provided that Landlord does not provide
comparable parking to the extent of at least 3.4 parking spaces for every 1,000
usable square feet of the Demised Premises within such six (6) month period,
Tenant shall have the right to terminate this Lease by giving written notice
thereof to Landlord.
4. COMMUNICATIONS.
(a) Subject to the terms and conditions as described below, Tenant shall
have the right, at Tenant's sole cost and expense, to place on the roof of the
Building a satellite antenna module (the "Antenna") and related hardware and
cabling connected to the Demised Premises. Tenant shall not be charged any rent
or other fees by Landlord in connection with the placement of the Antenna on the
roof. The right of Tenant to install the Antenna is expressly conditioned upon
(i) the receipt by Tenant of the approval of such Antenna by the tenant ("ABB")
under the lease of premises in the Building to ABB Flakt, Inc. [Landlord
represents to Tenant that the person or persons from whom Landlord will require
such approval on behalf of such tenant are located within the United States; if
requested by Tenant, Landlord shall submit Tenant's application for approval to
ABB (but Tenant shall remain responsible for preparing and revising such
application) and coordinate with ABB and Tenant with respect to such request for
ABB's approval, however, Landlord makes no representation whether or not such
approval will be granted by ABB] and the developer of CenterPoint Park, and (ii)
the Antenna and related hardware and cabling not damaging or interfering with
Landlord's roof warranty, communication devices or building systems or any
antennas and related hardware and cabling which other tenants of the Building
have installed or may install on the roof, and Tenant hereby covenants and
agrees that the Antenna and related hardware and cabling will not so interfere.
(b) Tenant shall furnish detailed plans and specifications for the Antenna
and related hardware and cabling to Landlord for Landlord's consent, which
consent shall not be unreasonably withheld or delayed, provided Landlord may
condition its consent by requiring that the Antenna be installed in the least
conspicuous of all acceptable locations on which the Antenna might be located
and that all components and elements thereof (except the terminal devices and
structures) be concealed from view from within and without the Building. Upon
the giving of such consent, the Antenna and related hardware and cabling shall
be installed and maintained, at Tenant's sole cost and expense, by a contractor
selected by Tenant and approved by Landlord, such approval not to be
unreasonably withheld or delayed. In the installation of the Antenna and
related hardware and cabling, Tenant shall comply with all applicable laws,
codes, ordinances and building and zoning rules and regulations and keep the
Demised Premises and Building free and clear from liens arising from or related
to Tenant's installation. Tenant shall consult with Landlord's roofing
contractor to ensure that neither the integrity of the roof of the Building, nor
Landlord's roof warranty, shall be negatively affected by the placement and
installation of the Antenna and the walkway referred to in Special Stipulation
4(d) hereof. Tenant shall be entitled to use such portions of the Building as
may be reasonably necessary for the installation, operation and maintenance of
the Antenna and related hardware and cabling, and Tenant shall have reasonable
access to such portions of the Building at all times throughout the Lease Term
for such purposes; provided however, that except for
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the roof of the Building, any cables, conduits or other physical connections
between the Antenna and the Demised Premises shall be concealed underground or
within permanent walls, floors, columns and ceilings of the Building and in the
shafts of the Building provided for such installations, not damaging the
appearance of the Building or reducing the usable or rentable space of the
Building, and provided further, that except for the roof and Demised Premises,
any installation or maintenance work performed by Tenant or at Tenant's
direction shall be performed without unreasonably interfering with Landlord's or
any other tenant's use of the Building, and upon completion of such installation
and maintenance (initially and from time to time) Tenant shall restore such
portions of the Building to a condition reasonably comparable to that existing
prior to such installation or maintenance. In addition, Tenant shall paint and
maintain the Antenna in the color designated by Landlord unless such painting
would void the manufacturer's warranty on the Antenna.
(c) Tenant shall be responsible for procuring and paying for all
certificates, licenses, permits or approvals which may be required for the
installation, operation, use and maintenance of the Antenna and related hardware
and cabling, and Landlord shall cooperate with Tenant, at Tenant's sole cost and
expense, in procuring such licenses or permits, to the extent required by
applicable law. Upon receiving a written request by Landlord, Tenant shall
provide Landlord with documentation that Tenant has obtained all such
certificates, licenses, permits and approvals. Landlord makes no warranties
whatsoever as to the permissibility of the Antenna or systems under applicable
laws. The Antenna and related hardware and cabling shall be installed, operated
and maintained by Tenant, at Tenant's sole cost and expense, in such a manner as
not to constitute a nuisance, or unreasonably interfere with the operations of
other tenants of the Building or with the normal use of the area surrounding the
Building by occupants thereof.
(d) Tenant shall be responsible for installing and maintaining a walkway
system to the Antenna in order to protect the roof of the Building. Tenant
shall furnish plans and specifications for such walkway to Landlord for
Landlord's consent, which consent shall not be unreasonably withheld or delayed.
(e) Upon termination or expiration of the Lease, Tenant shall, at Tenant's
sole cost and expense, remove the Antenna and related hardware and cabling
installed by it pursuant to this Special Stipulation 4 and shall repair and
restore the Building to a condition comparable to that existing prior to such
installation, normal wear and tear excepted.
(f) Landlord reserves the right to relocate the Antenna and related
hardware and cabling at Landlord's sole expense, provided such relocation, in
the reasonable opinion of Tenant, shall have no material adverse impact on the
same.
(g) Tenant hereby indemnifies Landlord and agrees to hold Landlord
harmless from and against any and all claims, liability, judgments, damages,
cost and expenses (including reasonable attorney's fees) related to, resulting
from, arising out of or caused by the installation, maintenance, operation or
removal of the Antenna and related hardware and cabling. In addition, Tenant
shall maintain in full force and effect throughout the Lease Term public
liability, property damage, fire and extended coverage insurance in an amount
sufficient
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to fully protect the Antenna and related hardware and cabling from fire or other
loss or damage, as well as contractual insurance in an amount sufficient to
fully protect Landlord from any loss or damage resulting from, arising out of or
caused by the installation, maintenance, operation or removal of the Antenna and
related hardware and cabling or by the exercise of Tenant's rights under this
Special Stipulation 4.
5. YEAR 2000
Landlord agrees that any and all mechanical, digital, electronic or
computerized equipment owned by Landlord which controls, operates and/or
regulates equipment and services applicable to systems which service all or any
one or more of the Demised Premises or the Building or common areas of the
Building (including, but not limited to, elevators, security systems, lighting
systems, heating, ventilating and air conditioning, plumbing, fire and sprinkler
control systems) will not malfunction as a result of date changes in the year
2000 and beyond. In the event Landlord fails to properly and fully restore
those services affected by a year 2000 malfunction, such malfunction shall be an
event of default by Landlord under the Lease and Tenant shall have the right to
avail itself of remedies for such default, as set forth in this Lease.
Furthermore, Landlord agrees to indemnify and hold Tenant harmless from loss,
costs, damages and expenses (excluding consequential damages) incurred by Tenant
as a result of any such equipment and/or computer systems malfunction which
materially adversely affects or impacts Tenant's use and occupancy of the
Demised Premises.
6. LANDLORD'S DEFAULT. If Landlord shall default in the performance of any
of its obligations under this Lease, and such default shall continue for thirty
(30) days after notice from Tenant specifying Landlord's default (except that if
such default cannot be cured within said thirty [30] day period, this period
shall be extended for a reasonable additional time, provided that Landlord
commences to cure such default within the thirty [30] day and proceeds
diligently thereafter to affect such cure), Tenant may, without prejudice to any
of its other rights under this Lease, correct or cure such default by Landlord
and invoice Landlord the cost and expenses incurred by Tenant therefor, and
Landlord shall reimburse Tenant within thirty (30) days following receipt of
such invoice. If Landlord shall fail to reimburse Tenant for such cost and
expenses within such thirty (30) day period, Tenant shall have the right to
deduct such cost and expenses from Base Rental thereafter due hereunder,
provided, however, that in the event Landlord notifies Tenant that it disputes
the existence of any such default, during the pendency of such dispute, Tenant
may pay the amount in dispute to an independent escrow agent of its choice to be
held by the agent pending resolution of the dispute. Tenant shall not be deemed
to be in default hereunder by reason of such payment until the dispute is
resolved in favor of Landlord and Tenant fails to cause the agent to pay the
amount determined to be payable to Landlord within ten (10) days after Tenant is
notified of the determination. Tenant and Landlord shall negotiate in good faith
to resolve the dispute by agreement.
7. AIR QUALITY. Landlord agrees that the Building shall comply with all
applicable provisions of the Federal Clean Air Act Amendments of 1990 (the
"Act") and Landlord will
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take all actions with respect to Building systems and sub-systems which are
necessary to meet the applicable requirements of the Act. The costs of any
modifications, replacements, or repairs to and Building systems or systems
required to comply with the applicable requirements of the Act shall be included
in Operating Expenses and amortized over the useful life thereof pursuant to
Section 8(a)(6) of this Lease. Landlord shall have an Indoor Air Quality survey
(air quality audit) performed each year by a qualified environmental engineer.
The air quality audit shall test for, at a minimum, asbestos, molds, fungi,
radon, carbon monoxide, carbon dioxide, HCOH, ozone, formaldehyde, and water
tower contaminants, and such other tests as are recommended for office buildings
by the applicable guidelines of the American Society of Heating and Air-
Conditioning Engineers and the United States Environmental Protection Agency.
Copies of the results of such air quality audits shall be maintained for a
minimum of five years (or, if sooner, until the end of the Term). In the event
Tenant shall cause or permit any activity which shall adversely affect the air
quality in the Demised Premises, in the common area of the Building or in any
premises within the Building, Tenant shall be responsible for all costs of
remedying same.
8. LEGAL REQUIREMENTS. Landlord represents and warrants that as of the date
of Substantial Completion, the "building standard" work, the common areas and
exterior entrances to the Building and to the Demised Premises shall be in
compliance in all material respects with all applicable Legal Requirements,
including without limitation the Americans with Disabilities Act. Tenant
represents and warrants that the design and furnishing of the Demised Premises
shall be in compliance in all material respects with all applicable Legal
Requirements, including without limitation the Americans with Disabilities Act.
"Legal Requirements" shall mean (i) all federal, state, county, municipal and
other governmental statutes, laws, rules, orders, regulations, ordinances or
recommendations affecting the Demised Premises or the Building or any part
thereof, or the use thereof, including without limitation those which require
repairs to or any structural changes in the Demised Premises or the Building
whether or not any such statutes, laws, rules, orders, regulations, ordinances
or recommendations which may hereafter be enacted involve a change of policy on
the part of the governmental body enacting the same, (ii) all rules, orders and
regulations of the National Board of Fire Underwriters or other bodies
exercising similar functions and responsibilities in connection with the
prevention of fire or the correction of hazardous conditions which apply to the
Demised Premises or the Building, and (iii) the requirements of all policies of
public liability, fire and other insurance which at any time may be in force
with respect to the Demised Premises or the Building.
9. LIENS. Tenant shall not do or permit to be done anything which creates a
lien upon the Demised Premises or the Project. Tenant shall indemnify Landlord
against liability for any and all mechanics' and other liens filed in violation
of the foregoing. Tenant, at its expense, shall procure the discharge of any
such lien within thirty (30) days after the filing thereof against any part of
the Demised Premises or Project. If Tenant fails to discharge any such lien
within such thirty (30) day period, then, in addition to any other right or
remedy, Landlord may discharge the same either by paying the amount claimed to
be due or by deposit or bonding
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proceedings. Any amount so paid by Landlord, and all costs and expenses incurred
by Landlord in connection therewith, shall be payable by Tenant upon demand.
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EXHIBIT "F-1"
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REFUSAL SPACE
EXHIBIT "G"
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RULES AND REGULATIONS
1. No sign, picture, advertisement or notice visible from the exterior of the
Demised Premises shall be installed, affixed, inscribed, painted or
otherwise displayed by Tenant on any part of the Demised Premises or the
Building unless the same is first approved by Landlord. Any such sign,
picture, advertisement or notice approved by Landlord shall be painted or
installed for Tenant at Tenant's cost by Landlord or by a party approved by
Landlord. No awnings, curtains, blinds, shades or screens shall be attached
to or hung in, or used in connection with any window or door of the Demised
Premises without the prior consent of the Landlord, including approval by
the Landlord of the quality, type, design, color and manner of attachment.
2. Tenant agrees that its use of electrical current shall never exceed the
capacity of existing feeders, risers or wiring installation.
3. The Demised Premises shall not be used for storage of merchandise held for
sale to the general public. Tenant shall not do or permit to be done in or
about the Demised Premises or Building anything which shall increase the
rate of insurance on said Building or obstruct or interfere with the rights
of other lessees of Landlord or annoy them in any way, including, but not
limited to, using any musical instrument, making loud or unseemly noises, or
singing, etc. The Demised Premises shall not be used for sleeping or
lodging. No cooking or related activities shall be done or permitted by
Tenant in the Demised Premises except with permission of Landlord. Tenant
will be permitted to use for its own employees within the Demised Premises a
small Underwriter's Laboratory approved microwave oven and Underwriters'
Laboratory approved equipment for brewing coffee, tea, hot chocolate and
similar beverages, provided that such use is in accordance with all
applicable federal, state, county and city laws, codes, ordinances, rules
and regulations, and provided that such use shall not result in the emission
of odors from the Demised Premises into the common area of the Building.
Except for vending machines installed in the Demised Premises solely for the
use of Tenant's employees, no vending machines of any kind will be
installed, permitted or used on any part of the Demised Premises without the
prior consent of Landlord. No part of said Building or Demised Premises
shall be used for gambling, immoral or other unlawful purposes. No
intoxicating beverage shall be sold in said Building or Demised Premises
without prior written consent of the Landlord. No area outside of the
Demised Premises shall be used for storage purposes at any time. Smoking
shall be permitted only in identified areas outside the Building.
4. No birds or animals of any kind shall be brought into the Building (other
than trained seeing-eye dogs required to be used by the visually impaired).
No bicycles, motorcycles or other motorized vehicles shall be brought into
the Building.
5. The sidewalks, entrances, passages, corridors, halls, elevators, and
stairways in the Building shall not be obstructed by Tenant or used for any
purposes other than those for which same were intended as ingress and
egress. No windows, floors or skylights that reflect or admit light into
the Building shall be covered or obstructed by Tenant. Toilets, wash basins
and sinks shall not be used for any purpose other than those for which they
were constructed, and no sweeping, rubbish, or other obstructing or improper
substances shall be thrown therein. Any damage resulting to them, or to
heating apparatus, from misuse by Tenant or its employees, shall be borne by
Tenant.
6. Five (5) keys for the front door and five (5) keys for the rear door will be
furnished Tenant without charge. Landlord may make a reasonable charge for
any additional keys. No additional lock, latch or bolt of any kind shall be
placed upon any door nor shall any changes be made in existing locks without
written consent of Landlord and Tenant shall in each such case furnish
Landlord with a key for any such lock; provided, however, that Landlord
agrees that Tenant may place an additional lock on Tenant's computer room
door and need not furnish Landlord with a key to such lock but shall permit
Landlord access to the computer room for the performance of Landlord's
obligations under this Lease, including but not limited to repairs (further
provided, however, that in the event Landlord in good faith believes an
emergency exists which requires entry into the computer room, Landlord may
take such action as Landlord in good faith believes necessary under the
circumstances (including but not limited to breaking down the computer room
door), without being liable to Tenant for the damage caused thereby). At
the termination of the Lease, Tenant shall return to Landlord all keys
furnished to Tenant by Landlord, or otherwise procured by Tenant, and in the
event of loss of any keys so furnished, Tenant shall pay to Landlord the
cost thereof.
7. Landlord shall have the right to prescribe the weight, position and manner
of installation of heavy articles such as safes, machines and other
equipment brought into the Building. No safes, furniture, boxes, large
parcels or other kind of freight shall be taken to or from the Demised
Premises or allowed in any elevator, hall or corridor except at times
allowed by Landlord. In no event shall any weight be placed upon any floor
by Tenant so as to exceed the design conditions of the floors at the
applicable locations.
8. Tenant shall not cause or permit any gases, liquids or odors to be produced
upon or permeate from the Demised Premises, and, except in the case of
normal and customary medical supplies, no flammable, combustible or
explosive fluid, chemical or substance shall be brought into the Building.
9. Landlord may implement a card access security system to control access
during times other than the Building Operating Hours. Landlord shall not be
liable for excluding any person from the Building during such other times,
or for admission of any person to the Building at any time, or for damages
or loss for theft resulting therefrom to any person, including Tenant.
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10. Unless agreed to in writing by Landlord, Tenant shall not employ any person
other than Landlord's contractors for the purpose of cleaning and taking
care of the Demised Premises. Cleaning service will not be furnished on
nights when rooms are occupied after 10:00 p.m., unless, by agreement in
writing, service is extended to a later hour for specifically designated
rooms. Landlord shall not be responsible for any loss, theft, mysterious
disappearance of or damage to, any property, however occurring.
11. No connection shall be made to the electric wires or gas or electric
fixtures, without the consent in writing on each occasion of Landlord. All
glass, locks and trimmings in or upon the doors and windows of the Demised
Premises shall be kept whole and in good repair. Tenant shall not injure,
overload or deface the Building, the woodwork or the walls of the Demised
Premises, nor permit upon the Demised Premises any noisome, noxious, noisy
or offensive business.
12. If Tenant requires wiring for a xxxx or buzzer system, such wiring shall be
done by the electrician of the Landlord only, and no outside wiring men
shall be allowed to do work of this kind unless by the written permission of
Landlord or its representatives. Any wiring for telephone service must be
approved by Landlord, and no boring or cutting for wiring shall be done
unless approved by Landlord or its representatives, as stated.
13. Tenant and its employees and invitees shall observe and obey all parking and
traffic regulations as imposed by Landlord. All vehicles shall be parked
only in areas designated for vehicle parking by Landlord.
14. Canvassing, peddling, soliciting and distribution of handbills or any other
written materials in the Building are prohibited, and Tenant shall cooperate
to prevent the same.
15. Landlord shall have the right to change the name of the Building and to
change the street address of the Building, provided that in the case of a
change in the street address, Landlord shall give Tenant not less than 180
days' prior notice of the change, unless the change is required by
governmental authority. In the event of any such change requested by
Landlord, Tenant shall deliver to Landlord a statement in reasonable detail,
including invoices, showing the reasonable costs and expenses incurred by
Tenant in connection with changing Tenant's address on Tenant's letterhead
and business cards on account of such change requested by Landlord, and
Landlord shall reimburse Tenant such reasonable costs and expenses;
provided, however, that no reimbursement shall be due from or owed by
Landlord in the event such change is required by governmental authority.
16. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular lessee, but no such waiver by Landlord shall be
construed as a waiver of such Rules and Regulations in favor of any other
lessee, nor prevent Landlord from thereafter enforcing any such Rules and
Regulations against any or all of the other lessees of the Building.
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17. These Rules and Regulations are supplemental to, and shall not be construed
to in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of any lease of any premises in the Building.
18. Landlord reserves the right upon fifteen (15) days' prior written notice to
Tenant to make such other and reasonable Rules and Regulations as in its
judgment may from time to time be needed for the safety, care and
cleanliness of the Building and the Land, and for the preservation of good
order therein.
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