Exhibit 10.19(b)
LEASE
THIS LEASE (this "Lease") is made as of the 29th day of May, 1998, by
and between TRINET PROPERTY PARTNERS, L.P., a Delaware limited partnership
d/b/a TriNet Property Partners Limited Partnership, having a business address
c/x Xxxxxx/Xxxxx Company, LLC, 101 Derby Street, Hingham, 02043 ("Landlord"),
and GIGA INFORMATION GROUP, INC., a Delaware corporation having a business
address at Xxx Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 ("Tenant").
Landlord hereby leases to Tenant and Tenant hereby rents and leases
from Landlord all of Landlord's rights and interests in and to the following
(collectively, the "Leased Property"):
(a) the real property described in Exhibit A attached hereto
(the "Land");
(b) all buildings, structures, Fixtures (as hereinafter
defined) and other improvements of every kind including, but not
limited to, sidewalks, utility pipes, conduits and lines, and parking
areas and roadways appurtenant to such buildings and structures
presently or hereafter situated upon the Land (collectively, the
"Leased Improvements");
(c) all easements, rights and appurtenances of every nature
and description now or hereafter to or benefiting any or all of the
Land and the Leased Improvements; and
(d) all equipment, machinery, building fixtures, and other
items of property (whether realty, personalty or mixed), including
all components thereof, now or hereafter located in, on or used in
connection with, and permanently affixed to or incorporated into the
Leased Improvements, including, without limitation, all furnaces,
boilers, heaters, electrical equipment, heating, plumbing, lighting,
ventilating, refrigerating, incineration, air and water pollution
control, waste disposal, air-cooling and air-conditioning systems and
apparatus, sprinkler systems and fire and theft protection equipment,
all of which, to the greatest extent permitted by law, are hereby
deemed by the parties hereto to constitute real estate, together with
all replacements, modifications, alterations and additions thereto,
but specifically excluding all items included within the category' of
Tangible Personal Property (as
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hereinafter defined) which are not permanently affixed to or
incorporated in the Leased Property (collectively, the "Fixtures").
1. REFERENCE DATA.
Each of the following capitalized terms used in this Lease shall have
the meaning set forth opposite such term below:
Broker: None.
Commencement Date: June 1, 1998 or at 12:00 PM on the expiration day
of the existing Cap International, Inc. lease,
whichever is earlier.
Governmental
Authorities: Collectively, all agencies, authorities, bodies,
boards, commissions, courts, instrumentalities,
legislatures, and offices of any nature whatsoever
of any government, quasi-government unit or
political subdivision, whether with a federal,
state, county, district, municipal, city or
otherwise and whether now or hereinafter in
existence.
Fair Market Rental Value: As determined in accordance with Exhibit B hereof
Impositions: All real estate taxes, charges, and assessments,
extraordinary as well as ordinary, levied, imposed
or assessed (accrued and due and payable) for a
particular fiscal year during the Term of this
Lease by Governmental Authorities upon or
attributable to all or any part of the Leased
Property.
Landlord's Mailing
Address: c/o Xxxxxx X. Xxxxx
Xxxxxx/Xxxxx Company, LLC
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
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with a copy to:
TriNet Corporate Realty Trust, Inc.
0000 Xxxx Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Jo Xxx Chirtty
Senior Vice President, Asset Management
Lease Year: A period of twelve (12) consecutive calendar months
commencing on the Commencement Date or the first
day of the month in which the Commencement Date
occurs if the Commencement Date is any day other
than the first day of a month, and then each
consecutive twelve (12) month period occurring
thereafter during the Term of this Lease.
Legal
Requirements: Collectively, all statutes, ordinances, by-laws,
codes, rules, regulations, restrictions, orders,
judgments, decrees and injunctions (including,
without limitation, all applicable building, health
code, zoning, subdivision, and other land use
statutes, ordinances, by-laws, codes, rules and
regulations), whether now or hereafter enacted,
promulgated or issued by any Governmental
Authority, affecting the Tenant, or the Leased
Property or the ownership, construction,
development, maintenance, management, repair, use,
occupancy, possession or operation thereof or the
operation of any programs or services in connection
with the Leased Property, including, without
limitation, any of the foregoing which
may (i) require repairs, modifications or
alterations in or to the Leased Property, (ii) in
any way affect (adversely or otherwise) the use and
enjoyment of the Leased Property or (iii) require
the assessment, monitoring, clean-up, containment,
removal, remediation or other treatment of any
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hazardous substances on, under or from the Leased
Property.
Permitted Use: The use of the Leased Property is for General
Office Purposes.
Rent: Collectively, the Base Rent, the Additional Rent
Charges and all other sums payable under this
Lease.
Security Deposit: Thirty Thousand Dollars ($30,000).
Tenant's
Mailing Address: GIGA Information Group, Inc.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
2. LEASE TERM; EXTENSIONS.
The term of this Lease shall be for a period of three (3) years
commencing on the Commencement Date and ending on the last day of the month
immediately prior to the month in which the third (3rd) anniversary of the
Commencement Date occurs (the "Term").
3. RENT.
3.1 Base Rent. Tenant shall pay to Landlord rent ("Base Rent") equal
to Three Hundred Ninety-Two Thousand and Nine Hundred Fifty Dollars
($392,950.00) per year payable in advance on the first day of each calendar
month during the Term in equal monthly installments of Thirty Two Thousand
Seven Hundred Forty-Six Dollars ($32,746.00).
3.2 Method of Payment. Payments of Base Rent shall be made by Tenant
in equal monthly installments on the Commencement Date and thereafter on the
first day of each month during the Term in advance, without offset, deduction,
demand, or abatement whatsoever, except as otherwise expressly and
specifically provided herein, in lawful money of the United States. The Base
Rent payment for any fractional
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month at the commencement, termination or expiration of the Term will be
prorated accordingly.
4. EXTENSION RIGHTS.
Provided there is not then an Event of Default hereunder or at the
commencement of the relevant Option Term, Tenant shall have the right to
extend the Term for Two Three (3) year extension periods (collectively, the
"Option Terms" and individually, an "Option Term") upon the following terms
and conditions:
4.1 Notice. Tenant must notify Landlord of its election to extend the
Term for each of the Option Terms on or before one year prior to the date on
which the then Current Term expires.
4.2 Rent During Option Terms. The annual Base Rent for the first
Option Term will be Four Hundred Twenty Thousand Fifty Dollars ($420,050.00)
and the Annual Base Rent for the second Option Term will be Four Hundred
Forty-Seven Thousand One Hundred Fifty Dollars ($447,150.00).
4.3 Lease in Effect. All provisions of this Lease shall remain in
effect during each of the Option Terms except the right to extend as set forth
in this Section 4.3, it being agreed that there are no further rights of
extension after the second Option Term. Unless expressly stated herein to the
contrary, all references in this Lease to the "Term" shall include the Option
Terms when and if Landlord receives Tenant's notice of election to extend the
Term as herein provided.
4.4 Extension Rights Not Assignable. Notwithstanding any other
provision of this Lease to the contrary, the extension rights of Tenant
contained in this Section 4 may be exercised only by GIGA Information Group,
Inc. or an entity controlling, controlled by or under common control with GIGA
Information Group, Inc. (a "GIGA Entity"). If at any time Tenant assigns this
Lease to any person or entity that is not a GIGA Entity, then the extension
rights contained in this Section 4, including but not limited to the right to
occupy the Leased Property during the Option Terms, shall immediately and
automatically terminate, and such rights may not be revived by any subsequent
reassignment of this Lease to a GIGA Entity.
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5. ADDITIONAL CHARGES.
5.1 Additional Charges. In addition to Base Rent, Tenant will also
pay and discharge as and when due and payable: (a) all Impositions before any
fine, penalty interest or cost may be added for non-payment, such payments to
be made directly to the taxing authority where feasible; (b) all charges for
electricity, power, gas, oil, water, telephone and other utilities used in the
Leased Property during the Term; and (c) all other reasonable costs and
expenses associated with the repair, restoration, maintenance, insurance or
operation of the Leased Property unless some other provision of this Lease
expressly states that Landlord will pay such cost or expense.
Notwithstanding anything herein to the contrary, any costs and
expenses associated with the repair, restoration, maintenance or operation of
the Leased Property which would be treated as capital expenses under generally
accepted accounting principles shall be treated as follows: The cost of any
such expense shall be amortized over the useful life of the improvement, in
accordance with generally accepted accounting principles, at an interest rate
equal to 1 percent (1%) plus the prime rate then in effect (as published in
the Wall Street Journal). The annual amortization charges shall be an
additional charge payable by Tenant.
5.2 Installment Election. If any such Imposition may, at the option
of the taxpayer, lawfully be paid in installments (whether or not interest
shall accrue on the unpaid balance of such Imposition), Tenant may exercise
the option to pay the same (and any accrued interest on the unpaid balance of
such Imposition) in installments and, in such event, shall pay such
installments during the Term hereof as the same respectively become due and
before any fine, penalty. premium, future interest or cost may be added
thereto.
5.3 Refunds. Any refund due from any taxing authority in respect of
any Imposition paid by Tenant shall be paid over to or retained by Tenant.
5.4 Notice of Impositions. The Landlord shall give prompt notice to
the Tenant of all Impositions payable by the Tenant hereunder of the Landlord
at any time has knowledge, but the Landlord's failure to give any such notice
shall in no way diminish the Tenant's obligation hereunder to pay such
Impositions, except that Landlord shall be responsible for penalties and
charges if Landlord fails to give notice at least ten (10) days in advance or
within two (2) business days of receipt, whichever is later.
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5.5 Net Lease. Except as provided herein, the Rent shall be paid
absolutely net to the Landlord, so that this Lease shall yield to the Landlord
the full amount of the installments of Base Rent and the payments of
Additional Charges throughout the Term.
6. WARRANTIES AND COVENANTS.
6.1 Landlord Warranties. Landlord represents and warrants the
following to Tenant as of the date hereof and as of the Commencement Date:
(a) Landlord is duly organized and validly existing as a
limited partnership organized under the laws of the State of
Delaware. Landlord has full power and authority to execute and
deliver this Lease, and to carry on its business as presently
conducted.
(b) Landlord has the complete and unrestricted power to
enter into this Lease and perform its obligations hereunder. The
Lease when executed and delivered by Landlord, constitutes the valid
and legally binding obligation of Landlord, enforceable against
Landlord in accordance with its term; subject to (i) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the rights of creditors generally and (ii) the exercise of
judicial discretion in accordance with general principles of equity.
(c) Landlord is not a party to any litigation, proceeding or
controversy pending before any court or administrative agency or, to
Landlord's knowledge, threatened against Landlord, nor is Landlord in
receipt of any inquiry, notice, citation, investigation or complaint
from any governmental agency or department, which might materially
adversely affect Landlord's ability to enter into and/or perform its
obligations under this Lease.
(d) Landlord is not a party to, subject to or bound by, any
agreement, judgment, order, writ, injunction or decree of any court
or Governmental Authority which could prevent the consummation of the
transactions' contemplated herein.
(e) To the best of Landlord's knowledge, this lease does not
cause the leased property to violate any statutes or regulations.
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(f) To the best of Landlord's knowledge, there are no
encumbrances on title adversely limiting Tenant's use of the leased
property.
6.2 [Intentionally deleted].
6.3 Tenant's Warranties. Tenant hereby represents and warrants to
Landlord as of the date hereof and as of the Commencement Date the following:
(a) Tenant is a duly organized and validly existing
Corporation in the State of Delaware. Tenant has full power and
authority to execute and deliver this Lease and to carry on the
business contemplated by this Lease.
(b) Tenant has the complete and unrestricted authority and
power to enter into this Lease and perform its obligations hereunder.
The Lease, when executed and delivered by Tenant, constitutes the
valid and legally binding obligation of Tenant, enforceable against
Tenant in accordance with its terms; subject to (i) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the rights of creditors generally and (ii) the exercise of
judicial discretion in accordance with general principles of equity.
(c) Neither the execution or delivery, nor performance of
this Lease or the other agreements contemplated herein in accordance
with their respective terms, does nor will, after the giving of
notice, the lapse of time or otherwise, conflict with, result in a
breach of or constitute a default under, the charter or by-laws of
Tenant or to the knowledge of Tenant constitute a default under any
contract or other agreement to which Tenant is a party (except those
for which consent has been or will be obtained by the Commencement
Date) or by which Tenant is bound, or of any federal or state law,
statute, ordinance, rule or regulation, or of any court or
administrative order or process.
(d) Tenant is not a party to, subject to or bound by, any
agreement, judgment, order, writ, injunction or decree of any court
or governmental body which could prevent the consummation of the
transactions contemplated herein.
7. SECURITY DEPOSIT.
7.1 Handling of Security Deposit. Upon the execution of this Lease,
Tenant shall pay to Landlord the Security Deposit in the amount specified in
Section 1 above, which shall be held as security for Tenant's performance of
Tenant's
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obligations under this Lease (and may be applied by Landlord against any
default by Tenant hereunder). Upon the expiration of the Term of this Lease,
the Security Deposit shall be refunded to Tenant, subject to Tenant's
satisfactory compliance with the conditions and obligations of this Lease, and
the Landlord shall retain any surplus. Landlord may co-mingle the Security
Deposit with Landlord's other funds, and shall have no obligation to pay any
interest with respect to the Security Deposit. Further, Landlord shall have
the right to turn over the Security Deposit to any grantee of Landlord's
interest hereunder in the event Landlord conveys the Leased Property; and if
so turned over, Tenant agrees to look solely to such grantee for proper
allocation of the Security Deposit.
7.2 Restoration of Security Deposit. In the event Landlord reasonably
uses any portion of the Security Deposit to cure any default hereunder, Tenant
shall immediately make payment to Landlord of the amount necessary to restore
the Security Deposit to the full dollar amount set forth in Section 1.
8. UTILITIES; TRASH REMOVAL.
8.1 Tenant's Direct Payment to Utility Providers. Tenant shall pay
directly to the relevant provider, as they become due, all bills for utilities
(whether they are used for furnishing heat or other purposes) that are
furnished directly to the Leased Property.
8.2 Tenant's Obligations Regarding Additional Utilities. Landlord
warrants and represents to Tenant that the following utilities are presently
available to the Leased Property: water, septic, gas, electricity, and
telephone. Landlord shall have no obligation to provide utilities or equipment
other than the utilities and equipment within the Leased Property as of the
Commencement Date of this Lease. In the event Tenant requires additional
utilities or equipment or utilities of greater capacity the installation and
maintenance thereof shall be Tenant's sole obligation and shall be performed
at Tenant's sole cost and expense, provided that such installation shall be
subject to the prior written consent of Landlord.
8.3 Trash Removal. Trash generated in the ordinary course of business
by Tenant shall be deposited in dumpster(s) and Tenant shall bear the cost of
this dumpster(s) and removal of trash from the dumpster(s). It shall be the
sole responsibility of Tenant to segregate any and all hazardous and/or
medical waste from the trash deposited in such dumpster and to have such
hazardous and/or medical waste also removed at its own cost and expense from
the Leased Property by a licensed
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contractor in accordance with all applicable laws as more fully detailed in
Section 9.5 below.
9. BROKERAGE.
Tenant warrants that it has dealt with no broker in connection with
this Lease other than the Broker or Brokers named in Section 1 above and
agrees to defend and indemnify Landlord against any claim, loss, damage, cost
or expense (including, without limitation, reasonable attorney's fees)
incurred by Landlord on account of any breach of such warranty. Landlord
warrants that it has dealt with no broker in connection with the consummation
of this Lease except the Broker or Brokers named in Section 1 above, and
agrees to indemnify Tenant against any claim, loss damage, cost or expense
(including, without limitation, reasonable attorney's fees) incurred by Tenant
on account of any breach of such warranty.
10. USE OF LEASED PROPERTY; COMPLIANCE WITH LAWS AND
FIRE, INSURANCE REQUIREMENTS; HAZARDOUS MATERIALS.
10.1 Use of Leased Property. Tenant acknowledges that no trade or
occupation shall be conducted in the Leased Property or use made thereof other
than the Permitted Use.
10.2 Compliance with Laws. Tenant, at its sole expense, shall comply
with all Legal Requirements affecting the Leased Property. The Tenant shall be
responsible for complying with legal requirements only to the extent that such
legal requirements arose after March 17, 1995, with the Landlord being
responsible for compliance with all Legal Requirements arising after such
date. Furthermore, to the extent that compliance by the Tenant involves
capital expenditures, the cost thereof shall be allocated in the manner set
forth in Insert 5.1, except where required by the specific use or alterations
by Tenant.
10.3 No Nuisance or Other Harmful or Disruptive Activity. Tenant
shall not perform any acts or carry on any practices which may injure any part
of the Leased Property or common areas, violate any certificate of occupancy
affecting the same, constitute a public or private nuisance or a menace to
other tenants on the Property, produce undue noise, create obnoxious fumes or
other odors.
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10.4 Compliance with Fire Insurance Requirements. Tenant shall not
permit any use of the Leased Property which will make voidable any customary
insurance on the Leased Property or which shall be contrary to any law.
10.5 Hazardous Materials. Tenant shall not permit the emission,
release, threat of release or other escape of any Hazardous Materials from the
Leased Property so as to adversely affect in any manner, even temporarily, any
element or part of the Leased Property. Tenant shall not use, generate, store
or dispose of Hazardous Materials in, on or about the Leased Property, or
dump, flush or in any way introduce Hazardous Materials into the septic system
or other waste disposal systems serving the Leased Property (nor shall Tenant
permit or suffer any of the foregoing), in any manner not in full compliance
with all applicable federal, state and local statutes, laws, codes,
ordinances, by-laws, rules and regulations for the use, generation, storage
and disposal of Hazardous Materials.
Tenant will indemnify, defend and hold Landlord harmless from and
against all claims, loss, costs and expenses (including, without limitation,
reasonable attorneys' fees and disbursements, diminution in the value of the
Leased Property, costs incurred in connection with any investigation of site
conditions or any clean-up or remedial work required by any federal, state or
local Governmental agency) incurred as a result of any breach of Tenant's
covenants in the first paragraph of this Section 10.5 by Tenant or Tenant's
contractors, licensees, invitees, agents, servants or employees. Without
limiting the foregoing, if the presence of any Hazardous Materials in, on or
under the Leased Property caused or permitted by Tenant results in any
contamination of the Leased Property or the Property, Tenant shall promptly
take all actions at its sole expense as are necessary to return the Leased
Property to the condition existing prior to the introduction of any such
Hazardous Material by Tenant, provided that Landlord's approval of such action
shall first be obtained, which approval shall not be unreasonably withheld so
long as such actions would not potentially have any material adverse long-term
or short-term effect on the Leased Property.
Landlord will indemnify, defend and hold harmless Tenant from and
against all claims, loss, cost and expenses (including, without limitation,
reasonable attorneys fees and disbursements) incurred by Tenant as a result of
Hazardous Materials existing in, on or under the Leased Property prior to
March 17, 1995.
The obligations of Tenant and Landlord in this Section shall survive
the expiration or earlier termination of this Lease and any transfer of title
to the Leased Property, whether by sale, foreclosure, deed in lieu of
foreclosure or otherwise.
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For purposes of this Lease, "Hazardous Materials" means,
collectively, any animal wastes, medical waste, blood, biohazardous materials,
hazardous waste, hazardous substances, pollutants or contaminants, oils,
radioactive materials, asbestos in any form or condition, or any pollutant or
contaminant or hazardous, dangerous or toxic chemicals, materials or
substances within the meaning of any applicable federal, state or local law,
regulation, ordinance or requirement relating to or imposing liability or
standards of conduct concerning any such substances or materials on account of
their biological, chemical, radioactive, hazardous or toxic nature, all as now
in effect or hereafter from time to time enacted or amended.
11. MAINTENANCE; REPAIRS.
11.1 Tenant's Obligations. Except as provided in Section 11.2, Tenant
shall, at Tenant's sole cost and expense, (a) maintain and keep the Leased
Property in good repair, good working order and free of litter and refuse and
make any and all repairs and replacements thereto as and when required,
ordinary or extraordinary, foreseeable or unforeseeable, but specifically
excluding any repairs or replacements required by damage from fire or other
casualty (except that Tenant shall be fully liable and responsible to Landlord
for the deductible amount of any insurance if such damage is caused by Tenant
or Tenant's agents, employees or contractors); and (b) periodically repaint
and redecorate the Leased Property as and when required to maintain a clean
and fresh appearance.
11.2 Landlord's Obligations. Landlord agrees to maintain the
structural elements and the roof and the septic system of the Leased Property
in good working order and repair, reasonable wear and tear, damage by fire and
other casualty only excepted. Tenant must regularly service pumps and drains
on the septic system and have the septic tanks pumped on a regular basis.
Further, if such maintenance is required because of the negligent act or
omission of Tenant or those for whose conduct Tenant is legally responsible
and such maintenance is not covered by insurance, then Tenant shall be
responsible for such maintenance, and if such maintenance is covered by
insurance, then Tenant shall be fully liable and responsible to Landlord for
the deductible amount of any such insurance.
11.3 Removal of Snow and Ice. Removal of snow and ice from the
sidewalks, driveways and parking areas of the Leased Property shall be the
responsibility of Tenant.
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11.4 Tenant's Failure to Make Repairs. If repairs are required to be
made by Tenant pursuant to the terms hereof, Landlord may demand that Tenant
make the same forthwith, and if Tenant refuses or neglects to commence such
repairs and complete the same with reasonable dispatch, after such demand,
Landlord may (but shall not be required to do so) make or cause such repairs
to be made (the provisions of Section 19.4 being applicable to the costs
thereof).
11.5 Compliance with Americans with Disabilities Act. During the term
of this Lease, Tenant shall comply at Tenant's sole cost and expense with all
provisions of the ADA as they apply to Tenant's use and occupancy of the
Leased Property on and after March 17, 1995, and the operation of Tenant's
business therein and shall be fully responsible for any modifications or
alterations to the Leased Property or the common areas of the Property
necessary to meet requirements of the ADA which have become applicable to the
Leased Property or the Property as a result of Tenant's operation of its
business within the Leased Property.
12. ALTERATIONS.
12.1 Alterations or Additions by Tenant. Tenant shall not make
structural alterations or additions to the Leased Property, but may make
non-structural alterations provided that, in cases involving an expenditure in
excess of ($10,000.00), Landlord gives its prior written consent thereto,
which consent shall not be unreasonably withheld or delayed. All such allowed
alterations shall be at Tenant's sole cost and expense. Tenant shall not
permit any mechanics' liens, or similar liens, to remain upon the Leased
Property for labor and material furnished to Tenant or claimed to have been
furnished to Tenant in connection with work of any character performed or
claimed to have been performed at the direction of Tenant and shall cause any
such lien to be released of record forthwith without cost to Landlord. Any
alterations or improvements made by Tenant shall become the property of the
Landlord at the expiration or earlier termination of the Term. Notwithstanding
any provision to the contrary, Tenant shall have the right to remove and
retain all semi- attached equipment, specifically including any generators,
network equipment, and communications equipment. All alterations or additions
made by Tenant shall be performed in a good and workmanlike manner and in
compliance with all the applicable laws, ordinances, orders, rules,
regulations and requirements applicable thereto and shall be performed only by
contractors or mechanics approved by Landlord. All such contractors and
mechanics shall carry adequate liability insurance (which shall name Landlord
and Tenant as an additional insured) and workmen's compensation insurance and
Landlord shall be presented with certificates of same prior to the
commencement of any work.
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12.2 Alterations or Additions by Landlord. Landlord hereby reserves
the right at any time to enter upon the Property or the Leased Property and
make alterations or additions thereto, or to any or all of the common
facilities, improvements or personalty comprising a part thereof, provided
such alterations or additions do not unreasonably or materially interfere with
Tenant's use of the Leased Property.
13. ASSIGNMENT; SUBLEASING.
Tenant shall not assign this Lease or sublet the whole or any part of
the Leased Property without Landlord's prior written consent, which consent
shall not be unreasonably withheld or delayed; it being agreed, however, that
Landlord will give its consent to any sublease or assignment of all or any
portion of the Leased Property to a GIGA Entity for the Permitted Use or to a
successor entity by reason of merger or acquisition of substantially all of
Tenant's stock or assets. Notwithstanding such consent, Tenant shall remain
liable to Landlord for the payment of all Base Rent, Additional Charges, any
other charges due hereunder, and for the full performance of the covenants and
conditions of this Lease. Landlord's consent to any such transfer, assignment
or sublease will not be deemed a consent to any subsequent transfer,
assignment or sublease. In the event of any such transfer, assignment or
subletting, Tenant shall pay to Landlord as additional rent hereunder one
hundred percent (100%) of all sums or other economic consideration that Tenant
receives as a result of such transfer, assignment or subletting, which exceed
in the aggregate the total sums which Tenant is obligated to pay Landlord
under this Lease (in the case of a sublease, prorated to reflect obligations
allocable to that portion of the Leased Property). In the event of a default
under the terms of this Lease, if the Leased Property or any part thereof are
then assigned or sublet, Landlord, in addition to any other remedies herein
provided or provided by law, may at its option collect directly from assignee
or subtenant all rents becoming due to Tenant under such assignment or
sublease and apply such rent against any sums due it by Tenant hereunder, and
no such collection shall be construed to constitute a novation or a release of
Tenant from the further performance of its obligations hereunder.
14. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATES.
14.1 Subordination. This Lease shall he subject and subordinate to
any and all mortgages, deeds of trust and other instruments in the nature of a
mortgage, easements or rights-of-way (provided no such easement or right of
way shall unreasonably interfere with Tenant's use of the Leased Property) now
or at a time hereafter, constituting a lien or encumbrance on the Property and
Tenant shall, when
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requested, promptly execute and deliver such written instruments as shall be
necessary to show the subordination of this Lease to such mortgages, deeds of
trust or other such instruments. Failure to execute any such instruments
within twenty (20) days after request shall constitute a default hereunder. It
is the understanding of the parties hereto that Landlord shall obtain and
deliver a non-disturbance agreement from the current mortgagee if any, of the
Leased Property as of the date of this Lease and shall use its best efforts to
secure a non-disturbance agreement with any and all subsequent lenders
requiring such subordination from Tenant or grantees under such other
instruments, but the effectiveness of the other provisions of this Section
14.1 shall not be conditioned in any manner upon the actual receipt of a
non-disturbance agreement from such subsequent lenders.
14.2 Estoppel Certificate; Financial Data.
(a) At any time and from time to time, Tenant shall, within ten (10)
days after written request by Landlord, execute, acknowledge and deliver to
Landlord and any mortgage lender or prospective purchaser a certificate
certifying: (i) that this Lease is unmodified and in full force and effect as
modifications, that this Lease is unmodified and in full force and effect (or,
if there have been modification, that this Lease is in full force and effect
as modified, and stating the date and nature of each modification); (ii) the
Commencement Date and the Expiration Date determined in accordance with
paragraph 3 and the date, if any, to which all rent and other sums payable
hereunder have been paid; (iii) that no notice has been received by Tenant of
any default by Tenant hereunder which has not been cured, except as to
defaults specified in such certificate; (iv) that Landlord is not in default
under this Lease, except as to defaults specified in such certificate; and (v)
such other matters as may be reasonably requested by Landlord or any actual or
prospective purchaser or mortgage lender. Any such certificate may be relied
upon by Landlord and any actual or prospective purchaser or mortgage lender of
the Leased Property or any part thereof.
(b) Tenant shall deliver to Landlord and to any lender or purchaser
designated by Landlord the following information; within 120 days after the
end of each fiscal year of Tenant, and audited balance sheet of Tenant and its
consolidated subsidiaries as at the end of such year, an audited statement of
profits and losses of Tenant and its consolidated subsidiaries for such year,
and an audited statement of cash flows of Tenant and its consolidated
subsidiaries for such year, setting forth in each case, in comparative form,
the corresponding figures for the preceding fiscal year in reasonable detail
and scope and certified by independent certified public accountants of
recognized national independent certified public accountants of recognized
national
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standing selected by Tenant; and within 60 days after the end of each of the
first three fiscal quarters of Tenant a balance sheet of Tenant and its
consolidated subsidiaries as at the end of such quarter statements of profits
and losses of Tenant and its consolidated subsidiaries for such quarter and a
statement of cash flows of Tenant and its consolidated subsidiaries for such
quarter, setting forth in each case, in comparative form, the corresponding
figures for the similar quarter of the preceding year, in reasonable detail
and scope, and certified to be true and complete by a financial officer of
Tenant having knowledge thereof; the foregoing financial statement all being
prepared in accordance with the generally accepted accounting principles,
consistently applied.
(c) Upon ten (10) days' prior notice, Tenant will permit Landlord and
its professional representatives to visit Tenant's offices, and discuss
Tenant's affairs and finances (insofar as they relate to the Leased Property
or this Lease) with appropriate officers, and will make available such
information as Landlord may reasonably request bearing on the Tenant, Leased
Property or this Lease, provided that Tenant shall not be required to disclose
information in violation of federal securities laws.
(d) Landlord agrees that it shall hold all financial information
provided to Landlord under Section 14.1(b) or (c) in strict confidence and
shall not disclose any of such information to any third party other than
Landlord's attorneys, accountants or internal staff members unless Landlord
either obtains Tenant's written consent to such disclosure or such third party
agrees to keep such information confidential.
15. LANDLORD'S ACCESS.
Landlord or agents of Landlord may, upon forty-eight (48) hours prior
notice to Tenant (or at any time with regard to (a) and (b) herein without
notice in the case of emergency), enter the Leased Property to (a) inspect the
same, (b) make alterations as provided in Section 12.2 above or repairs, (c)
show the Leased Property to prospective lenders at any time and to prospective
tenants within one year prior to the then-scheduled expiration of the Term,
and (d) at any time within six (6) months before the expiration of the Term,
affix to any suitable part of the Leased Property a notice that the Leased
Property are available for lease and keep the same so affixed without
hindrance or molestation. Landlord shall be allowed to place antenna, dishes
or other equipment upon roof of the building so long as it does not interfere
with Tenant's use of the leased property.
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16. INSURANCE, HOLD HARMLESS AND INDEMNIFICATION:
(a) Landlord shall not be liable to Tenant for any damage to or loss
or theft of any property or for any bodily or personal injury, illness or
death of any person in, or about the Leased Property arising at any time and
from any cause whatsoever, except to the extent caused by the gross negligence
or willful misconduct of Landlord or arising from a default by Landlord in its
obligations hereunder which default goes unremedied for five days after
Landlord receives written notice thereof. Tenant waives all claims against
Landlord arising from any liability described in this paragraph 16(a), except
to the extent caused by the gross negligence or willful misconduct of
Landlord.
(b) Tenant hereby agrees to indemnify and defend Landlord against and
hold Landlord harmless from all claims, demands, liabilities, damages, losses,
costs and expenses, including reasonable attorneys' fees and disbursements,
arising from or related to any use or occupancy of the Leased Property, or any
condition of the Leased Property for which Tenant is responsible, or any
default in the performance of Tenant's obligations, or any damage to any
property (including property of employees and invitees of Tenant) or any
bodily or personal injury, illness or death of any person (including employees
and invitees of Tenant) occurring in, on or about the Leased Property or any
part thereof or any part of the building or the land constituting a part of
the Leased Property arising at any time and from any cause whatsoever (except
to the extent caused by the gross negligence or willful misconduct of
Landlord). This paragraph 16(b) shall survive the termination of this Lease
with respect to any damage, bodily or personal injury, illness or death
occurring prior to such termination.
(c) Tenant shall, at all times and during the term of this Lease and
at Tenant's sole cost and expense, obtain and keep in force comprehensive
general liability insurance, including general contractual liability, fire,
legal liability, and premises operations, all on an "occurrence" policy form,
with a minimum combined single limit in the amount of $5,000,000 per
occurrence for bodily or personal injury to, illness or, or death of persons
and damage to property occurring in, on or about the Leased Property, and such
insurance shall name the Landlord and any other parties designated by Landlord
as additional insureds. Tenant shall, at Tenant's sole cost and expense, be
responsible for insuring Tenant's furniture, equipment, fixtures, computers,
office machines and personal property.
(d) Tenant shall, at all times during the term of this Lease and at
Tenant's sole cost and expense, obtain and keep in force worker's compensation
and employer's liability insurance in all states in which the Leased Property
and any other operations of the Tenant are located and any other state in
which the Tenant or its contractors or
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subcontractors may be subject to any statutory or other liability arising in
any manner whatsoever out of the actual or alleged employment of others. The
total limits of the employer's liability coverage required hereunder shall not
be less than the amounts specified in paragraph 16(c).
(e) At all times during the term of this Lease, Landlord shall obtain
and keep in force the following types of insurance, and Tenant shall reimburse
Landlord for the costs thereof: (a) insurance against loss (including
earthquake and flood) or damage to the Leased Property by fire and all other
risks of physical loss (including earthquake and flood) covered by insurance
of the type now known as "all risk", with difference in conditions coverage,
in an amount not less than the full replacement cost of the Leased Property
(without deduction for depreciation), including the cost of debris removal and
such endorsements as Landlord may reasonably require, and containing the
"Replacement Cost Endorsement"; (b) boiler and machinery insurance covering
pressure vessels, air tanks, boilers, machinery, pressure piping, heating,
ventilation and air conditioning equipment, and elevator and escalator
equipment, provided the Leased Property contains equipment of such nature and
insurance against loss of occupancy or use arising from any breakdown of any
such items, in such amounts as Landlord may reasonably determine; (c) plate
glass insurance in such amounts as Landlord may reasonably determine if the
Leased Property contain plate glass; (d) business interruption insurance
insuring that the Fixed Rent will be paid to Landlord for up to one year if
the Leased Property is destroyed or rendered untenantable by a cause insured
against (it being understood that the existence of such insurance does not
reduce Tenant's obligation to pay Fixed Rent without diminution); and (e)
insurance in amounts and against such other risks as Landlord or Mortgages may
reasonably require and against such risks as are customarily insured against
by operators of similar properties.
(f) All insurance required to be maintained by Tenant under this
paragraph 16 and all renewals thereof shall be issued by good and responsible
companies qualified to do and doing business in the state of where the Leased
Property is located and having a rating in Best's Insurance Guide of at least
A:X and a Standard and Poor's Corporation claims paying ability rating of at
least "A". Each policy to be maintained by Tenant shall expressly provide that
the policy shall not be canceled or altered without thirty (30) days' prior
written notice to Landlord and shall remain in effect notwithstanding any such
cancellation or alteration until such notice shall have been given to Landlord
and such period of thirty (30) days shall have expired. All insurance under
this paragraph 10 to be maintained by Tenant shall name Landlord and any other
parties designated by Landlord as an additional insured, shall be primary
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and noncontributing with any insurance which may be carried by Landlord, shall
afford coverage for all claims based on any act, omission, event or condition
that occurred or arose (or the onset of which occurred or arose) during the
policy period. Upon the issuance of each such policy to be maintained by
Tenant, Tenant shall deliver each such policy or a certified copy and a
certificate thereof (Xxxxx 27 form) to Landlord for retention by Landlord. If
Tenant fails to insure or fails to furnish to Landlord upon notice to do so
any policy to be maintained by Tenant or certified copy and certificate
thereof as required, Landlord shall have the right from time to time to effect
such insurance for the benefit of Tenant or Landlord or both of them and all
premiums paid by Landlord shall be payable by Tenant as Additional Rent on
demand. Tenant shall pay to Landlord immediately upon demand all costs
incurred by Landlord as a result of Tenant's failure to obtain and maintain in
effect the policies of insurance required under this paragraph 16.
(g) Tenant waives on behalf of all insurers under all policies of
property, liability and other insurance (excluding workers' compensation) now
or hereafter carried by Tenant insuring or covering the Leased Property, or
any portion or any contents thereof, or any operations therein, all rights of
subrogation which any insurer might otherwise, if at all have to any claims of
Tenant against Landlord. Landlord waives on behalf of all insurers under all
policies of property, liability and other insurance (excluding workers'
compensation) now or hereafter carried by Landlord insuring or covering the
Leased Property or any portion or any contents thereof, or any operations,
therein, all rights of subrogation which any insurer might otherwise, if at
all, have to any claims of Landlord against Tenant. Tenant shall, prior to or
immediately after the date of this Lease, procure from each of the insurers
under all policies of property, liability and other insurance (excluding
workers' compensation) now or hereafter carried by Tenant insuring or covering
the Leased Property, or any portion or any contents thereof, or any operations
therein, a waiver of all rights of subrogation which the insurer might
otherwise, if at all, have to any claims of Tenant against Landlord as
required by this paragraph 16(g).
17. FIRE; CASUALTY; EMINENT DOMAIN.
17.1 Damage by Casualty. Should a substantial portion of the Leased
Property, or of the Property, be substantially damaged by fire or other
casualty, Landlord or Tenant may elect to terminate this Lease, and where such
fire or casualty renders the Leased Property reasonably unsuitable for its
intended use, a just and proportionate abatement of rent shall be made.
Further, within thirty (30) days after such fire or other casualty, Landlord
shall give written notice to Tenant with respect to
19
whether or not Landlord will restore the Leased Property and the estimated
time to complete such repair. Tenant may elect to terminate this Lease if
either (a) Landlord notifies Tenant in writing that Landlord has elected not
to restore the Leased Property, (b) Landlord elects to restore but fails to
restore the Leased Property to a condition reasonably suitable for its
intended use within one hundred twenty (120) days after such fire or casualty,
or (c) Landlord fails to make reasonable, good faith efforts to commence
restoring the Leased Property within one hundred twenty (120) days after such
fire or casualty. However, Tenant's failure to give such notice of termination
within ten (10) days after the date on which the right to terminate ripens
under either (a), (b), or (c) above shall constitute a waiver of such right by
Tenant. Landlord will seek to have the first mortgagee of the Leased Property,
if any, provide for application of hazard insurance loss proceeds to the
repair or reconstruction of the Leased Property upon any hazard loss. Subject
to the mortgagee (if any) of the Leased Property making the hazard loss
insurance proceeds available for such restoration and to Landlord's receipt of
such proceeds for that purpose, if Landlord elects, to repair, reconstruct, or
cause to be repaired or reconstructed, such damage or destruction, Landlord
shall not be required to expend, in connection with such repair or
reconstruction, any amount exceeding the amount of casualty insurance proceeds
actually received by Landlord. Notwithstanding the foregoing, in the event
such mortgagee shall not make the insurance loss proceeds available for repair
or restoration, Landlord shall not be required to repair or reconstruct the
Leased Property and shall notify Tenant within thirty (30) days next following
such hazard loss, of its election in this respect and thereupon, Tenant shall
have the termination rights described above in this Section.
17.2 "Complete" Taking of Leased Property. If, prior to the
Commencement Date or otherwise, the Leased Property shall be taken in its
entirety under any condemnation or eminent domain proceedings (each such
occurrence being hereinafter referred to as a "Taking") by any government
authority (the "Taking Authority") during the Term hereof, or in the event
twenty-five (25%) percent or more of the floor area or parking area of the
Leased Property is taken in any such proceedings and the remaining portion
shall not be suitable or adequate (in the reasonable opinion of Tenant
exercised in good faith) for the uses described in this Lease, and Tenant
notifies Landlord of such determination within thirty (30) days next following
the taking of physical possession of such portion of the Leased Property by
the Taking Authority or the date upon which Tenant receives written notice
that title has vested in the Taking Authority, whichever is first to occur,
then in any such event this Lease and the Term hereof shall terminate as of
the date physical possession of the Property (or a portion thereof) is taken
by the Taking Authority, and Tenant shall
20
be liable for the payment of Base Rent, Additional Charges and all other
charges due from Tenant hereunder, and performance of the other terms and
conditions of this Lease on Tenant's part to be performed only up to date of
such termination, and any Base Rent paid in advance for periods following such
date shall be apportioned and promptly refunded to Tenant.
17.3 "Partial" Taking of Leased Property. In the event of a Taking
that is not a "complete" Taking as described in Section 18.2 above, and either
(a) the mortgagee of the Leased Property shall not make the proceeds of any
awards or damages payable as to the Taking available for restoration and
repair of the Leased Property, or (b) Landlord shall determine in its
reasonable discretion that the restoration and repair of the Leased Property
shall be impracticable, or (c) the Taking occurs within the last eighteen (18)
months of the initial Term (or of a renewal term, if any), Landlord or Tenant
shall be entitled to terminate this Lease without liability by reason of such
Taking. If Landlord or Tenant does not so terminate this Lease, this Lease
shall continue in effect and Landlord shall rebuild and restore the Leased
Property as nearly as possible to the condition existing next preceding such
Taking, with due allowance for the portion so taken. Further, Tenant shall
promptly restore or repair any improvement made by it in the Leased Property
to the extent proceeds from such awards are made available to Tenant for such
purpose or return such areas to their original condition prior to any
improvements by Tenant and this Lease shall be and remain in full force and
effect and be unaffected by, the Taking, except that from the date possession
of the taken portion of the Leased Property is acquired by the Taking
Authority, the Base Rent payable under this Lease shall be diminished by the
Fair Market Rental Value of the portion of the Leased Property so taken. The
restoration or repair work to be done by Tenant shall be done subject to any
and all terms and conditions elsewhere set forth in this Lease governing
alterations or work on Tenant's part to be performed.
17.4 Miscellaneous Provisions Regarding Casualty or Taking.
17.4.1 In the event this Lease is terminated or terminates
by reason of a Taking or a Casualty, the provisions of the Lease applicable
upon expiration of the Lease shall govern the parties.
17.4.2 Landlord will seek to have any mortgagee of the
Leased Property provide for application of the proceeds of any Taking awards
to restoration, repair, and reconstruction of the portion of such property
remaining after the Taking. Notwithstanding the amount of land, building, or
improvements taken by
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condemnation or eminent domain or the termination or continuance of this Lease
with respect thereto, Tenant shall not participate or share in any recovery,
award, or damages payable or paid as to such Taking, nor have or assert any
right, claim, or cause of action against Landlord, the fee owner, or mortgagee
of the Leased Property or, except as expressly provided in Section 18.4.3
below, the Taking Authority whether for the loss of, or diminution in value
of, the unexpired Term of this Lease, or as to the Taking of any such land,
building, and/or improvements or otherwise; and Tenant for itself and its
successors and assigns hereby waives, surrenders, and releases to Landlord any
and all claims or rights to claim or receive all or any portion of any and all
recovery, awards, and/or damages as to such Taking.
17.4.3 If permitted by statute, Tenant may assert a separate
and independent claim for and recover from the Taking Authority, but not from
Landlord, any compensation as may be separately awarded or recoverable by
Tenant in its own name and right for any damage to Tenant's portable fixtures
and equipment, or on account of any expenses which it shall incur in removing
its merchandise, furnishings, and equipment from the Leased Property, but in
no event shall any such claims or recoveries be claims or asserted in the
event the same would, may, or shall diminish, offset, or bar any damages,
recovery, or award to Landlord or the fee owner of the Leased Property, except
to the extent such damages recovery or award is based on injury to Tenant or
the interest of Tenant hereunder.
18. DEFAULT; REMEDIES; BANKRUPTCY.
18.1 Events of Default. Each of the following shall be an event of
default ("Event of Default") under this Lease:
18.1.1 Tenant shall default in the payment of any
installment of rent or other sum herein specified by the first day of the
month when due and such default shall continue for five (5) days after written
notice thereof; provided, however, that Landlord shall not be required to give
more than two (2) such notices during any consecutive twelve (12) month period
with regard to defaults in the payment of installments of Base Rent, or any
other sums due under this Lease, and in the event that Landlord has already
given two (2) such notices during any consecutive twelve (12) month period,
any subsequent failure of Tenant during such twelve (12) month period to make
any payment due hereunder shall immediately constitute a default even though
no notice has been given;
18.1.2 Tenant shall fail to maintain insurance as required by
this Lease;
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18.1.3 Tenant shall default in the observance or performance
of any other of Tenant's covenants, agreements, or obligations hereunder and
such default shall not be cured within thirty (30) days after written notice
thereof, or if such default is of a nature that it cannot be reasonably cured
within such thirty (30) day period, Tenant shall not have commenced to cure
such default within said thirty (30) day period and diligently proceed to
completion of said cure, provided such extended period without a completed
cure will not have a material adverse effect on the value of the Leased
Property or expose Landlord to any liability; provided, however, that Landlord
shall not be required to give more than two (2) notices during any consecutive
twelve (12) month period with regard to Tenant's failure to perform its
obligations under a particular Section of this Lease (a "Previously Defaulted
Provision") and in the event that Landlord has already given two (2) such
notices during any consecutive twelve (12) month period, any subsequent
failure of Tenant during such twelve (12) month period to fully and punctually
observe such Previously Defaulted Provision shall immediately constitute a
default even though no notice has been given; or
18.1.4 Tenant or any other party shall file a petition or
application under any state or federal bankruptcy, insolvency or debtor's
relief law relating to Tenant or Tenant shall consent to an assignment or
composition for the benefit of Tenant's creditors or consent to the
appointment of a receiver for any of Tenant's property; provided, however,
that if such petition, application or receivership proceedings are instituted
against Tenant by a third xxxxx, there shall be no default hereunder unless
the same shall remain undischarged for a period of greater than sixty (60)
days from the filing of such petition or application or the commencement of
the receivership proceedings, as the case may be.
18.2 Landlord's Remedies. Upon the occurrence of an event of
default, Landlord shall have the following rights and remedies:
18.2.1 Landlord shall have the right at its election, at any
time while such event of default continues, to give Tenant written notice of
Landlord's election to terminate this Lease on a date specified in such
notice. Upon the giving of such notice, this Lease and the estate hereby
granted shall expire and terminate on such date as fully and completely and
with the same effect as if such date were the date herein before fixed for the
expiration of the Term, and all rights of Tenant hereunder shall expire and
terminate, but Tenant shall remain liable as hereinafter provided.
23
18.2.2 Landlord shall have the immediate right to re-enter
and repossess the Leased Property or any part thereof by summary proceedings,
ejectment or otherwise and the right to remove all persons and property
therefrom. Landlord shall be under no liability for or by reason of any such
entry, repossession or removal. No such re-entry or taking of possession of
the Leased Property by Landlord shall be deemed to waive or prejudice any
remedies provided to Landlord hereunder, nor be construed as an election on
Landlord's part to terminate this Lease unless a written notice of such
election be given to Tenant pursuant to Sections 19.2.1 and 20 or unless the
termination of this Lease he decreed by a court of competent jurisdiction.
18.2.3 Landlord may relet the Leased Property or any part
thereof for the account of Tenant, in the name of Tenant or Landlord or
otherwise, without notice to Tenant, for such term or terms (which may be
greater or less than the period which would otherwise have constituted the
balance of the Term) and on such conditions (which may include free rent and
any other concessions) and for such uses as Landlord, in its reasonable
discretion, may determine; and Landlord may collect and receive any rents
payable by reason of such reletting. Landlord shall not be responsible or
liable for any failure to relet or to collect any rent due upon such
reletting.
18.2.4 In the event of any termination of this Lease by
reason of the occurrence of an Event of Default, Tenant will pay to Landlord
the Base Rent, and any Additional Charges and other sums required to be paid
by Tenant for the period to and including the date of such termination.
18.2.5 Landlord shall be entitled to recover from Tenant,
and Tenant will pay to Landlord on demand, as and for liquidated and agreed
final damages for Tenant's default and in lieu of all current damages beyond
the date of termination (it being agreed that it would be impracticable or
extremely difficult to fix the actual damages), an amount equal to the excess,
if any, of the present value of the excess of (a) the total of (i) the Base
Rent, any Additional Charges and other sums which would be payable under this
Lease from the date of such termination for what would be the then unexpired
Term in the absence of such termination plus (ii) the aggregate of all
reasonable expenses relating to Landlord's reletting the Leased Property,
including, without limitation, brokerage fees and the cost of any alterations
needed to relet, over (b) the then net fair rental value of the Leased
Property for the same period (after deducting from such fair rental value the
time needed to relet the Leased Property in the amount and concessions which
would normally be given to a new tenant). Fair rental value shall be
established by reference to the terms and conditions upon which
24
Landlord relets the Leased Property if such reletting is accomplished within a
reasonable period of time after such termination and otherwise established on
the basis of Landlord's reasonable estimates and assumptions of fact regarding
market and other relevant circumstances, which shall govern unless shown to be
clearly erroneous.
18.3 Landlord's Cure Rights. If Tenant shall default in the
observance or performance of any conditions or covenants on Tenant's part to
be observed or performed under or by virtue of any of the provisions of this
Lease after the applicable notice and cure period, Landlord, without being
under any obligation to do so and without thereby waiving such default, may
remedy such default for the account and at the expense of Tenant.
18.4 Tenant's Obligation to Reimburse Landlord. If Landlord makes any
expenditures (pursuant to Section 17.3 above or otherwise) or incurs any
obligations for the payment of money in connection with any failure of Tenant
to perform fully all of its obligations under this Lease after the applicable
notice and cure period, such sums paid or obligations incurred (including but
not limited to, reasonable attorney's fees and court costs in instituting,
prosecuting or defending any action or proceeding), with interest at the rate
of one and one half percent (1-1/2%) per month and costs, shall upon demand be
paid to Landlord by Tenant as an Additional Charge.
18.5 No Waiver. Neither party's failure to take action against the
other with respect to any default in Tenant's performance of its obligations
hereunder shall not, under any circumstances constitute a waiver of any of
such party's rights under this Lease and, further, no waiver of any of the
provisions of this Lease shall be effective unless given in writing nor shall
any waiver be construed as a waiver of any of the other provisions hereof or
as a waiver of the same provisions for any subsequent time.
18.6 Acceptance of Late Payments. No payment by Tenant, or acceptance
by Landlord, of a lesser amount than then due from Tenant to Landlord shall be
treated otherwise than as a payment on account regardless of any letter
accompanying such check or legend entered upon such check. Further, no
acceptance of any payment by Landlord from Tenant shall in any way constitute
a waiver of any default then existing or which would exist with the proper
giving of notice.
18.7 Interest on Late Payments. If Tenant shall fail to pay, when the
same is due and payable, any Base Rent, Additional Rent, Additional Charges or
any other charges or payments required hereunder (excluding the payments
described in Section 19.4 above), such unpaid amounts shall bear interest from
the due date thereof to the
25
date of payment at the annual rate of interest of eighteen percent (18%) per
annum, but in no event higher than the maximum rate permitted by law; and, in
addition, Tenant shall pay Landlord a late charge for any Base Rent,
Additional Rent, Additional Charges or any other charges or payments due
hereunder which is paid after its due date equal to five percent (5%) of such
payment.
18.8 Remedies Cumulative. Any and all remedies set forth in this
Lease (a) shall be in addition to any and all other remedies Landlord may have
at law or in equity, (b) shall be cumulative, and (c) may be pursued
successively or concurrently as Landlord may elect. The exercise of any remedy
by Landlord shall not be deemed an election of remedies or preclude Landlord
from exercising any other remedies in the future.
18.9 Landlord's Rights in Tenant's Bankruptcy. If this Lease is
assigned to any person or entity pursuant to the provisions of the Bankruptcy
Code, 11 U.S.C. 101 seq. as now existing or hereafter amended (the "Bankruptcy
Code"), any and all monies or other considerations payable or otherwise to be
delivered in connection with such assignment shall be paid and delivered to
Landlord, shall be and remain the exclusive property of Landlord and shall not
constitute property of Tenant or of the estate of Tenant within the meaning of
the Bankruptcy Code. Any and all monies or other considerations constituting
Landlord's property under the preceding sentence not paid or delivered to
Landlord shall be held in trust for the benefit of Landlord and be promptly
paid to or turned over to the Landlord. Notwithstanding anything in this Lease
to the contrary, all amounts payable by Tenant to or on behalf of Landlord
under this Lease, whether or not expressly denominated as rent, including,
without limitation, the Base Rent and Additional Rent specified herein, shall
constitute rent for the purpose of Section 502(b)(7) of the Bankruptcy Code.
If Tenant assumes this Lease and proposes to assign the same pursuant
to the provisions of the Bankruptcy Code to any person or entity who shall
have made a bona fide offer to accept an assignment of this Lease on terms
acceptable to Tenant, then notice of such proposed assignment, setting forth
(a) the name and address of such person; (b) all of the terms and conditions
of such offer, and (c) the adequate assurance to be provided Landlord to
assure such person's future performance under the Lease, including without
limitation, the assurance referred to in Section 365(b)(3) of the Bankruptcy
Code, shall be given to Landlord by the Tenant no later than twenty (20) days
after receipt by the Tenant, but in any event no later than ten (10) days
prior to the date that the Tenant shall make application to a court of
competent jurisdiction for authority and application to enter into such
assignment and assumption, and
26
Landlord shall thereupon have the prior right and option, to be exercised by
notice to the Tenant given at any time prior to the effective date of such
proposed assignment, to accept an assignment of this Lease upon the same terms
and conditions and for the same consideration, if any, as the bona fide offer
made by such person, less any brokerage commissions which may be payable out
of the consideration to be paid by such person for the assignment of this
Lease. Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code shall be deemed without further act or deed
to have assumed on and after the date of such assignment all of the
obligations arising under this Lease. Any such assignee shall upon demand
execute and deliver to Landlord an instrument confirming such assumption.
19. NOTICES.
Any and all notices, demands, consents or approvals required
hereunder shall be given in writing in accordance with this Section 20. Any
notice from Landlord to Tenant shall be deemed duly served, if left at the
Leased Property addressed to Tenant or mailed to Tenant's Mailing Address (as
defined in Section 1 above) by overnight courier, or by registered or
certified mail, return receipt requested, postage prepaid. Any notice from
Tenant to Landlord shall be deemed duly served, if mailed to Landlord by
overnight courier, or by registered or certified mail, return receipt
requested, postage prepaid, addressed to Landlord at Landlord's Mailing
Address (as defined in Section I above) or at such other address as Landlord
may from time to time advise in writing. All Rent shall be paid and sent to
Landlord at Landlord's Mailing Address.
20. SURRENDER; HOLDING OVER.
20.1 Surrender of Leased Property. Tenant shall, at the expiration or
other termination of the Term, (a) remove all of Tenant's goods and effects
from the Leased Property (including, without hereby limiting the generality of
the foregoing, all signs and lettering affixed or painted by Tenant either
inside or outside the Leased Property), and (b) deliver to Landlord the Leased
Property, in broom clean condition, and otherwise in the same condition as
existed as of the Commencement Date (normal wear and tear and Tenant's
permitted alterations hereunder and damage by fire or other casualty
excepted), all keys, locks thereto, other fixtures connected therewith and all
alterations and additions made to or upon the Leased Property. Upon Tenant's
failure to comply with the preceding sentence, Landlord is hereby authorized,
without liability to Tenant for loss or damage thereto, and at the sole risk
of Tenant, to remove and store any of such property at Tenant's expense, or to
retain same under Landlord's
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control or to sell, at public or private sale, without notice, any or all of
such property not so removed and to apply the net proceeds of such sale to the
payment of any sum due hereunder, or to destroy such property.
20.2 Holding Over. If Tenant remains in Possession of the Leased
Property or any part thereof after the expiration or earlier termination of
the Term of this Lease, Tenant shall be deemed to be in use and Occupancy of
the Leased Property as a month-to-month tenant at a rate of monthly rent one
and one-half (1-1/2) times the rate of the total monthly installment of Base
Rent then in effect upon the date of expiration or termination of this Lease
and subject to the same terms and conditions (including, without limitation,
provisions concerning the payment of all other charges hereunder) as those set
forth in this Lease other than as to the length of Term. However, nothing in
this Lease provision shall be deemed to extend the Term beyond that set forth
in Section 2, hereof nor grant any right to Tenant or any other person to use,
occupy, or remain in Possession of all or any part of the Leased Property
beyond the expiration or earlier termination of the Term of this Lease.
21. LANDLORD'S LIABILITY.
21.1 No Consequential Damage. In no event shall either Landlord or
Tenant ever be liable to the other for any loss of business or any other
indirect or consequential damages suffered by such other party as a result, of
the defaulting party's breach of its obligations under this Lease.
21.2 Liability after Conveyance of Property. The term "Landlord," as
used herein, shall mean and refer to the owner of the fee estate in the Leased
Property whosoever such owner may be from time to time or to the person or
entity named as Landlord above or its successors or assigns, as the case may
be; and upon any conveyance or transfer of the interest of such person or
entity as Landlord and the assumption of the Landlord's obligations by the
transferee, such person or entity shall be thereupon released and discharged
from any and all liability under this Lease or otherwise to Tenant and any and
all others whomsoever except for breaches of this Lease occurring prior to
such transfer.
22. MISCELLANEOUS
22.1 Governing Law. This Lease shall be governed by the law of the
State of Massachusetts and shall be deemed to have been made, executed,
delivered and accepted by the respective parties in that state.
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22.2 Partial Invalidity. If any term or provision of this Lease, or
the application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby, and
each term and provision of this Lease shall be valid and be enforced to the
fullest extent permitted by law. It is the intention of the parties hereto
that if any provision of this Lease is capable of two constructions, one of
which would render the provision valid, then the provision shall have the
meaning which renders it valid.
22.3 Captions. The captions of this Lease are for convenience and
reference only and shall not be deemed or construed to bind, modify, increase,
or decrease the terms and conditions of this Lease, or any interpretation or
construction thereof.
22.4 Successors and Assigns. The terms and conditions in this Lease
shall apply to and be binding upon the parties herein and their respective
successors and assigns, except as expressly otherwise provided.
22.5 Recording of Lease. Tenant shall not record this Lease. However,
at the request of either party, Landlord and Tenant shall execute,
acknowledge, deliver, exchange, and record at the requester's expense a Notice
of Lease or other short-form instrument permitted under applicable state law
and prepared by Tenant.
22.6 Entire Agreement. This Lease and any and all exhibits and riders
attached hereto and made a part of this Lease constitute the entire agreement
of the parties concerning this Lease, and any and all other or prior
agreements, representations, or warranties are hereby terminated, canceled,
and agreed to be void and of no force or effect.
22.7 Amendments. No change, amendment, deletion, or addition to this
Lease shall be effective unless in writing and signed by the parties.
22.8 Quiet Enjoyment. So long as Tenant is not in default of any of
its obligations under this Lease, beyond any applicable grace period, Tenant
shall peaceably and quietly have, hold and enjoy the Leased Property free of
any claims by, through or under Landlord.
22.9 No Partnership. Nothing in this Lease shall create or be
construed to create a partnership between Tenant and Landlord, or make them
joint venturers, or
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bind or make Landlord in any way liable or responsible for any acts,
omissions, negligence, debts or obligations of Tenant.
22.10 Time of Essence. Time is of the essence in this Lease.
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IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed and delivered as a sealed instrument by their respective duly
authorized officers as of the day and year first written above.
TRINET PROPERTY PARTNERS, L.P.
A Delaware limited partnership
d/b/a TriNet Property Partners Limited Partnership
By: TRINET REALTY INVESTORS I, INC.
Its General Partner
By:
--------------------------------------
Name:
Title:
GIGA INFORMATION GROUP, INC.
By:
--------------------------------------
Name:
Title:
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EXHIBIT A
Legal Description
Xxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx Xxxxxx, XX
00-0000
Legal Description
Lot 88
Beginning at a point on the southerly sideline of Longwater circle in the Town
of Norwell, Plymouth County, Massachusetts, said point being the northwest
corner of the herein described parcel;
thence running along the southerly sideline of Longwater
Circle N 80(degree) 03' 45" E, 435.00 feet to a point;
thence turning and running by land now or formerly of
Longwater Drive Realty Trust III, S 09(degree) 56' 15" E,
320.00 feet to a point;
thence turning and running S 80(degree) 03' 45" W, 246.50 feet to a point;
thence turning and running N 09(degree) 56' 15" W, 75.00 feet to a point;
thence turning and running S 80(degree) 03' 45" W, 355.50 feet to a point;
thence turning and running N 09(degree) 56' 15" W, 180.00 feet to a point;
thence turning and running N 80(degree) 03' 45" E, 167.00 feet to a point;
thence turning and running N 09(degree) 56' 15" W, 65.00
feet to the point of beginning.
The previous six courses being by land now or formerly of Assinippi Park
Associates.
The above described parcel is shown as Lot 88 on plan #1065 of 1987 at the
Plymouth County Registry of Deeds.
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Being the same premises described in a deed by Assinippi Park Associates,
dated October 1, 1987, recorded at Book 8046, Page 18, as confirmed in Book
8061, Page 35.
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EXHIBIT B
Calculation of Fair Market Rental Value
For purposes of this Lease, "Fair Market Rental Value" shall be as
reasonably determined by Landlord to be the annual rental charge on a
so-called "triple net" basis (including without limitation Base Rent,
Additional Rent and other charges) as of the commencement date of each Option
Period, for new leases then being negotiated or executed for comparable office
space in the area surrounding Massachusetts for terms commencing on or about
the date of commencement of the Option Period. In determining Fair Market
Rental Value, Landlord shall take into consideration the size of the premises,
location of the premises, lease term, condition and location of the applicable
office building, services provided by the landlord, rental concessions and
other comparable factors). Bona fide written offers to lease comparable space
received by Landlord from third parties (at arm's length) may be used by
Landlord as an indication of the Fair Market Rental Value.
Landlord shall notify Tenant of its determination of Fair Market
Rental Value within ten (10) days after Landlord's receipt of Tenant's notice
exercising its option to extend and Landlord shall furnish data in support of
such determination. If the Landlord does not receive written notice from
Tenant of Tenant's disagreement with landlord's determination of the Fair
Market Rental Value within ten (10) days after Tenant's receipt of said
determination, Tenant shall be deemed to have accepted said determination by
Landlord. If Tenant disagrees with Landlord's determination of the Fair Market
Rental Value, Tenant shall have the right, by written notice given to Landlord
within thirty (30) days after Tenant has received notice of Landlord's
determination, to request that such Fair Market Value be determined by
appraisal in accordance with the provisions of this Exhibit B. In such event,
the Fair Market Rental Value shall be determined by impartial MAI appraisers,
one to be chosen by Landlord, one to be chosen by Tenant (the "Initial
Appraisers"), and, if necessary, a third to be selected as provided below.
Landlord and Tenant shall each notify the other of its selected appraiser
within ten days following giving of Tenant's request for appraisal as provided
above. Each appraiser shall be independent, have at least five (5) years
experience with commercial properties in the area, and be familiar with office
parks and leases and rents in Massachusetts and experienced in making real
estate appraisals. The cost of each Initial Appraiser shall be paid by the
party selecting such Appraiser. The appraisers shall render their written
appraisal of the Fair Market Rental Value for the Option Period within thirty
(30) days following the
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appointment of both such appraisers. If the appraisals determined by each of
the Initial Appraisers are less than five percent (5%) apart (the higher
appraisal is less than 105% of the lower appraisal), then the Fair Market
Rental Value shall be determined by taking the average of the two appraisals.
In the event Appraisers are five percent (5%) or more apart, the Initial
Appraisers shall promptly select a third appraiser who meets the same criteria
as required of the Initial Appraisers ("Third Appraiser"). The Third Appraiser
shall submit to Landlord and Tenant, within twenty-one (21) days after its
appointment, its written appraisal of the Fair Market Rental Value with
respect to the Leased Property as of the applicable commencement date, which
appraisal shall be binding upon Landlord and Tenant. The cost of the Third
Appraiser shall be borne equally by Landlord and Tenant.
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