Exhibit 10.5
MASTER LEASE AGREEMENT
BETWEEN
FIRST STATES INVESTORS 5000A LLC,
a Delaware limited liability company ("LANDLORD")
AND
BANK OF AMERICA, N.A. ("TENANT")
Dated: June 30, 2003
TABLE OF CONTENTS
Page
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ARTICLE I BASIC LEASE INFORMATION, LEASED PREMISES, TERM, AND USE........1
1.1 Basic Lease Information; Definitions...............................1
1.2 Leased Premises...................................................16
1.3 Term..............................................................16
1.4 Options to Renew; Special Notice of Non-Renewal...................17
1.5 Use...............................................................19
1.6 Survival..........................................................20
1.7 Release Premises..................................................20
ARTICLE II RENTAL AND OPERATING EXPENSES.................................22
2.1 Rental Payments...................................................22
2.2 Operating Expenses................................................25
2.3 Real Estate Taxes.................................................30
2.4 Budget; Audit Rights..............................................31
ARTICLE III BUILDING SERVICES, IDENTITY, SIGNAGE, AND MANAGEMENT..........33
3.1 Building Standard and Above Standard Services.....................33
3.2 Keys and Locks....................................................37
3.3 Graphics and Building Directory...................................38
3.4 Building Identity; Signage; Exclusivity...........................38
3.5 Communications Equipment..........................................40
3.6 Building Management...............................................42
ARTICLE IV CARE OF PREMISES; LAWS, RULES AND REGULATIONS.................43
4.1 Care of Leased Premises...........................................43
4.2 Access of Landlord to Leased Premises.............................43
4.3 Nuisance..........................................................44
4.4 Laws and Regulations; Rules of Building...........................44
4.5 Legal Use and Violations of Insurance Coverage....................44
4.6 Environmental Laws................................................45
ARTICLE V LEASEHOLD IMPROVEMENTS AND REPAIRS............................46
5.1 Leasehold Improvements............................................46
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TABLE OF CONTENTS
(continued)
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5.2 Alterations.......................................................46
5.3 Non-Removable Improvements........................................47
5.4 Mechanics Liens...................................................47
5.5 Repairs by Landlord...............................................48
5.6 Repairs by Tenant.................................................48
5.7 Demising Work.....................................................49
5.8 Art...............................................................50
ARTICLE VI CONDEMNATION, CASUALTY AND INSURANCE..........................51
6.1 Condemnation......................................................51
6.2 Damages from Certain Causes.......................................52
6.3 Casualty Clause...................................................52
6.4 Property Insurance................................................54
6.5 Liability Insurance...............................................54
6.6 Hold Harmless.....................................................54
6.7 WAIVER OF RECOVERY................................................55
ARTICLE VII DEFAULTS, REMEDIES, BANKRUPTCY, SUBORDINATION.................55
7.1 Default and Remedies..............................................55
7.2 Insolvency or Bankruptcy..........................................59
7.3 Negation of Lien for Rent.........................................60
7.4 Attorney's Fees...................................................60
7.5 No Waiver of Rights...............................................60
7.6 Holding Over......................................................60
7.7 Subordination.....................................................61
7.8 Estoppel Certificate..............................................62
7.9 Subsequent Documents..............................................62
7.10 Interest Holder Privileges........................................62
ARTICLE VIII SUBLEASING, ASSIGNMENT, LIABILITY, AND CONSENTS...............62
8.1 Sublease or Assignment by Tenant..................................62
8.2 Assignment by Landlord............................................65
ARTICLE IX PURCHASE AND SALE.............................................65
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TABLE OF CONTENTS
(continued)
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9.1 Tenant's Right of First Refusal to Purchase.......................65
9.2 Right of First Offer on Sale......................................66
9.3 Separate Lease....................................................67
ARTICLE X EXPANSION RIGHTS..............................................67
10.1 Tenant Expansion Notices..........................................67
10.2 Landlord Expansion Response.......................................68
10.3 Expansion Space Leases............................................68
10.4 Excess Basic Rent; Recalculation of Termination Rights............70
10.5 Subordination of Expansion Space Rights...........................71
10.6 Duration..........................................................71
10.7 Disputes..........................................................71
ARTICLE XI CONTRACTION RIGHTS............................................72
11.1 Contraction Rights................................................72
11.2 Contraction Rights Exercise Notice................................72
11.3 Relocation Rights.................................................73
11.4 Termination Rights................................................73
11.5 Vacate Premises Rent..............................................73
11.6 Surrender; Vacate Premises Demising Work..........................73
11.7 Duration..........................................................74
11.8 Disputes..........................................................74
ARTICLE XII DISPUTE RESOLUTION............................................74
12.1 Approval Procedure; Dispute Resolution............................74
12.2 Dispute Resolution................................................75
12.3 Conduct of the Arbitration........................................76
12.4 Alternative Means of Arbitration with AAA.........................77
12.5 Mediation; Litigation.............................................77
ARTICLE XIII TENANT REMEDIES...............................................78
13.1 Limited Offset....................................................78
13.2 Landlord Letter of Credit.........................................78
ARTICLE XIV MISCELLANEOUS.................................................78
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TABLE OF CONTENTS
(continued)
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14.1 Notices...........................................................78
14.2 Brokers...........................................................79
14.3 Binding on Successors.............................................79
14.4 Rights and Remedies Cumulative....................................79
14.5 Governing Law.....................................................79
14.6 Rules of Construction.............................................79
14.7 Authority and Qualification.......................................79
14.8 Severability......................................................80
14.9 Quiet Enjoyment...................................................80
14.10 Limitation of Personal Liability..................................80
14.11 Memorandum of Lease...............................................80
14.12 Consents..........................................................80
14.13 Time of the Essence...............................................80
14.14 Amendments........................................................80
14.15 Entirety..........................................................80
14.16 References........................................................81
14.17 Counterpart Execution.............................................81
14.18 No Partnership....................................................81
14.19 Captions..........................................................81
14.20 Required Radon Notice.............................................81
14.21 Changes to Projects by Landlord...................................81
14.22 Storage Space.....................................................81
14.23 WAIVER OF JURY TRIAL..............................................82
14.24 Confidential Information..........................................82
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EXHIBITS AND SCHEDULES
Exhibit A Leased Premises, Occupied Release Premises, Building NRA,
Leased Premises NRA, Tenant Occupancy Percentages and Annual
Basic Rent Factor
Exhibit B-1 Form of Lease Supplement
Exhibit B-2 Form of Amendment to Lease Supplement and Exhibit A
Exhibit C Form of Confidentiality Agreement
Exhibit D Form of Subordination, Attornment and Non-Disturbance Agreement
Exhibit E Form of Estoppel Certificate
Exhibit F Form of Subtenant Non-Disturbance Agreement
Exhibit G Form of Separate Lease
Exhibit H Form of Contraction Assignment
Exhibit I Form of Contraction Sublease
Exhibit J Form of Landlord Letter of Credit
Schedule 1 Annual Basic Rent Factor Table
Schedule 2 [INTENTIONALLY OMITTED]
Schedule 3 Description of Environmental Information
Schedule 4 Description of Tenant's Art
Schedule 5 Renewal Term Annual Basic Rent Illustration
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MASTER LEASE AGREEMENT
THIS MASTER LEASE AGREEMENT (this "Lease") is made and entered into as of
June 30, 2003, but only effective as of, and conditioned upon, the occurrence of
the Closing under the Purchase Agreement, by and between FIRST STATES INVESTORS
5000A, LLC, a Delaware limited liability company (hereinafter called
"Landlord"), and BANK OF AMERICA, N.A., a national banking association
(hereinafter called "Tenant"), with the limited joinder of FIRST STATES GROUP,
L.P., a Delaware limited partnership ("FSG"). Any other provision of this Lease
to the contrary notwithstanding, this Lease shall automatically and without
further action of Landlord or Tenant commence and become effective upon and
immediately following the Closing. Terms with initial capital letters used in
this Lease shall have the meanings assigned for such terms in Section 1.1(b).
BACKGROUND
A. Tenant, as Seller, and FSG as Purchaser are parties to the Purchase
Agreement, pursuant to which Tenant agreed to sell and convey to FSG and FSG
agreed to purchase from Tenant, the Projects and certain other properties not
covered by this Lease, and
B. FSG has assigned to Landlord FSG's entire right, title and interest in
and to the Projects.
ARTICLE I
BASIC LEASE INFORMATION, LEASED PREMISES, TERM, AND USE
1.1 Basic Lease Information; Definitions.
(a) The following Basic Lease Information is hereby incorporated into and
made a part of this Lease. Each reference in this Lease to any information and
definitions contained in the Basic Lease Information shall mean and refer to the
information and definitions hereinbelow set forth.
Commencement Date: June 30, 2003.
Expiration Date: June 30, 2023.
Initial Term: Commencing on June 30, 2003, and, unless sooner
terminated as herein provided, ending on June 30, 2023.
Leased Premises: All those portions of the Projects identified in the
Lease Supplements, as the same are amended from time to
time, as being demised and leased to Tenant hereunder,
including the identified Net Rentable Areas within the
Buildings and, where applicable, the Drive-Through
Banking Facilities. Each time there is an addition to,
subtraction from or other change in the
configuration of the Leased Premises as herein
provided, including, without limitation, pursuant to
Section 6.1 (Condemnation), Section 6.3 (Casualty),
Article IX (Purchase and Sale), Article X (Expansion
Rights) and Article XI (Contraction Rights), Landlord
and Tenant shall execute amendments to the applicable
Lease Supplements (based upon the form attached as
Exhibit B-1 hereto) and to Exhibit A hereto to confirm
the configuration and Net Rentable Area of the Leased
Premises, Tenant's Occupancy Percentage in each
Building and the Annual Basic Rent for each Leased
Premises and, to the extent applicable, any adjustment
in Parking Areas. The Leased Premises shall not include
any Release Premises, except to the extent that former
Release Premises are, at Tenant's election, added to
the Leased Premises as provided in Section 1.7(d).
Release Premises: All those certain portions of the Buildings that do not
constitute part of the Leased Premises, but which are
occupied by Tenant on the Commencement Date and are to
be vacated by Tenant as expressed in Section 1.7. The
Occupied Release Premises are identified in the Lease
Supplements and listed in summary fashion on Exhibit A
hereto. Each time there is an addition to, subtraction
from or other change in the configuration of the
Occupied Release Premises at a Project as herein
provided, Landlord and Tenant shall execute amendments
to the applicable Lease Supplement (based upon the form
attached as Exhibit B-1 hereto) and to Exhibit A hereto
to confirm the configuration and Net Rentable Area of
the Occupied Release Premises at such Project.
Landlord's Address for First States Investors 5000A, LLC
c/o First States Group, L.P.
0000 Xxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxx, President and CEO
Fax Number: (000) 000-0000
with a copy to: First States Group, L.P.
0000 Xxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx Xx., General Counsel
Fax: (000) 000-0000
Tenant's Address for Bank of America, N.A.
Notices: 000 Xxxxx Xxxxx
0xx Xxxxx - Xxxxxxxxx Xxxx Xxxxxx Department
NC1-023-03-03
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Xxxxxxxxx, XX 00000
Attention: Property Services
Fax: (000) 000-0000
with a copy to: Bank of America, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxx, Associate General Counsel
Fax: (000) 000-0000
and to: Xxxxxxxx Xxxx Corporate Services, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxx, Senior Vice President
Fax: (000) 000-0000
and to: Xxxxx Xxxx LaSalle Americas, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxxx, Executive Vice President
Fax: (000) 000-0000
Interest Holder's German American Capital Corporation
Address for Notices: 00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx and General Counsel
Fax: (000) 000-0000
with a copy to: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxx, Esquire
Fax: (000) 000-0000
(b) As used in this Lease, the following terms shall have the respective
meanings indicated below, and such meanings are incorporated in each such
provision where used as if fully set forth therein:
"AAA" shall mean the American Arbitration Association.
"Above Standard Services" shall have the meaning assigned to such term in
Section 3.1(c).
"Above Standard Services Rent" shall mean any and all charges required to
be paid by Tenant for Above Standard Services as expressed in Section
3.1(c).
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"Additional Equipment" shall have the meaning assigned to such term in
Section 3.5.
"Additional Rent" means Tenant's Operating Expense Share, Tenant's Tax
Share, Above Standard Services Rent and all other sums (other than Annual
Basic Rent and Excess Basic Rent, if any) that Tenant is obligated to pay
or reimburse to Landlord as required by the terms of this Lease.
"Affiliate" or "Affiliates" means any person or entity controlling,
controlled by, or under common control with another such person or entity.
"Control" as used herein shall mean the possession, direct or indirect, or
the power to direct or cause the direction, of the management and policies
of such controlled person or entity. The ownership, directly or indirectly,
of more than fifty percent (50%) of the voting securities of, or possession
of the right to vote in, the ordinary direction of its affairs, more than
fifty percent (50%) of the voting interest in, any person or entity shall
be presumed to constitute such control. In the case of Landlord (if
Landlord is a partnership), the term Affiliate shall also include any
person or entity controlling or controlled by or under common control with
any general partner of Landlord or any general partner of Landlord's
general partner.
"Affiliate Owned Property" shall have the meaning assigned to such term in
Section 10.1.
"Aggregate FMRV Rent" shall have the meaning assigned to such term in
Section 1.4(c).
"Annual Basic Rent" shall mean the annual basic rent payable by Tenant for
the Leased Premises that are subject, from time to time, to this Lease,
which Annual Basic Rent shall be calculated as herein provided. During the
Initial Term of this Lease, the Annual Basic Rent for each Project shall
equal the Net Rentable Area of the Leased Premises for such Project
multiplied by the Annual Basic Rent Factor, except that the Annual Basic
Rent for any Short Term Expansion Space shall equal the Fair Market Rental
Value of such Short Term Expansion Space as provided in Article X. During
the Renewal Terms of this Lease, the Annual Basic Rent for each Project
shall equal the Fair Market Rental Value of the Leased Premises within such
Project, subject, if applicable, to the limitations set forth in Section
1.4(c). The Annual Basic Rent due under this Lease shall equal the sum of
all Annual Basic Rents due with respect to each Project and shall be
re-calculated each time there is a change in the Annual Basic Rent Factor
or in Tenant's Occupancy Percentage for a Project or a required conversion
to, or adjustment in, the Fair Market Rental Value of a Project.
"Annual Basic Rent Factor" shall mean $8.61 per square foot of Net Rentable
Area. On the first day of the sixth Lease Year, and on the first day of
every fifth Lease Year thereafter during the Term (i.e., the eleventh,
sixteenth, twenty-first, etc. Lease Years), the Annual Basic Rent Factor
shall be increased as set forth on Schedule 1 hereto.
"Applicable Rate" shall mean an annual rate of interest equal to the lesser
of (i) the Prime Rate plus two percent (2%) and (ii) the maximum contract
interest rate per annum allowed by North Carolina law.
"Appraiser" shall mean an independent professional real estate appraiser,
MAI or equivalent, with at least ten (10) years' experience appraising
commercial real estate
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comparable to the subject Project or Leased Premises, who shall be
associated with a nationally-recognized real estate services firm offering
appraisal services, with local offices in the region where the subject
Project is located, and which firm is not under contract with or otherwise
so associated with either Landlord or Tenant as to reasonably impair its or
their ability to render impartial judgments (it being agreed that an
Appraiser that performs residential or commercial property appraisals for
Tenant in Tenant's capacity as a mortgage lender shall not be disqualified
from serving as an Appraiser solely as a result of such other relationship
with Tenant).
"Approval Matters" shall have the meaning assigned to such term in Section
12.2(b).
"Arbitration Notice" shall have the meaning assigned to such term in
Section 12.2(a).
"Art" shall have the meaning assigned to such term in Section 5.8.
"ATM" shall mean automated teller machine.
"Award" shall have the meaning assigned to such term in Section 13.2
"Banking" shall have the meaning assigned to such term in Section 1.5.
"Binding ADR Dispute" shall have the meaning assigned to such term in
Section 12.2(b).
"BOMA" shall mean the Building Owners and Managers Association.
"Budget" shall have the meaning assigned to such term in Section 2.4(a).
"Building" shall mean any and each of the buildings identified on Exhibit A
in which the Leased Premises are located.
"Building Operating Hours" shall mean, for each Building, from 7:00 a.m. to
7:00 p.m. on Mondays through Fridays and from 8:00 a.m. to 2:00 p.m. on
Saturdays, excepting Holidays.
"Building Rules" shall have the meaning assigned to such term in Section
4.4.
"Building Standard Services" shall have the meaning assigned to such term
in Section 3.1(a).
"Building Standards" shall mean, for each Building, materials of the type,
quality and quantity generally used throughout such Building and in
Comparable Buildings.
"Bureau of Labor Statistics" shall mean the U.S. Department of Labor,
Bureau of Labor Statistics.
"Buildings" shall mean all of the buildings identified on Exhibit A in
which the Leased Premises are located.
"Casualty" shall have the meaning assigned to such term in Section 6.3(a).
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"Closing" shall mean the closing and transfer of title to the Projects to
Landlord pursuant to the Purchase Agreement.
"Commencement Date" shall have the meaning assigned to such term in Section
1.1(a).
"Common Areas" shall have the meaning assigned to such term in Section 1.2.
"Communications Equipment" shall have the meaning assigned to such term in
Section 3.5.
"Comparable Buildings" shall mean, for each Building, a quality, age,
location and construction that is comparable to that of other buildings
comparable to such Building within the metropolitan area within which such
Building is located.
"Continuing Term Separate Lease" shall have the meaning assigned to such
term in Section 9.3.
"Contraction Assignment" shall mean a lease assignment and assumption
agreement substantially in the form attached as Exhibit H hereto entered
into by Tenant, as assignor, and FSG or, at FSG's election, an Affiliate of
FSG, as assignee, for all of Tenant's right, title and interest in and to a
Continuing Term Separate Lease at a Project for which Tenant has properly
exercised Contraction Rights for the entire Leased Premises within such
Project pursuant to Article XI. If FSG elects to cause an Affiliate of FSG
to enter into a Contraction Assignment, FSG shall join in the execution of
the Contraction Assignment for the purpose of unconditionally guarantying
to Tenant the payment and performance by such Affiliate of all of such
Affiliate's obligations to Tenant under the Contraction Assignment. Tenant
shall be released from all obligations under the Separate Lease to which
the Contraction Assignment relates arising on and after the date of
execution of the Contraction Assignment.
"Contraction Rights" shall have the meaning assigned to such term in
Section 11.1.
"Contraction Rights Exercise Notice" shall have the meaning assigned to
such term in Section 11.2.
"Contraction Sublease" shall mean a separate, stand alone sublease
substantially in the form attached as Exhibit I hereto entered into by
Tenant, as sublandlord, and FSG or, at FSG's election, an Affiliate of FSG,
as subtenant, for such portion of the Leased Premises at a Project that is
leased by Tenant under a Continuing Term Separate Lease as Tenant has
properly exercised Contraction Rights pursuant to Article XI. If FSG elects
to cause an Affiliate of FSG to enter into a Contraction Sublease, FSG
shall join in the execution of the Contraction Sublease for the purpose of
unconditionally guarantying to Tenant the payment and performance by such
Affiliate of all of such Affiliate's obligations to Tenant under the
Contraction Sublease.
"Cost Approved Sublease" shall have the meaning assigned to such term in
Section 8.1(h).
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"Coterminous Expansion Space" shall have the meaning assigned to such term
in Section 10.3.
"Damaged Property" shall have the meaning assigned to such term in Section
6.3(a).
"Demising Work" shall mean the construction by Tenant, as a result of the
creation of Surrendered Premises, of (i) all walls and other work required
to demise, separate and secure the Leased Premises from any portion of the
Building that is not included within the Leased Premises, (ii) all work, if
and to the extent required as a result of such demise, for (a) the creation
of multi-tenant access to Common Areas, facilities and systems necessary
for the general office use of the Surrendered Premises, including, without
limitation, multi-tenant access to the mechanical, electrical, plumbing and
other utility facilities and systems serving the Surrendered Premises or
(b) at Tenant's sole option, in lieu of creating multi-tenant access to
existing Common Areas, facilities or systems, Tenant may construct
replacements for Common Areas, facilities or systems necessary for the
general office use of the Surrendered Premises and (iii) to provide proper
and lawful means of ingress and egress to the Surrendered Premises.
Notwithstanding the foregoing, Tenant will not be obligated to (i) make any
alterations or improvements to demise the Leased Premises on floors of any
Buildings that are and shall continue to be leased by Tenant as full
floors, (ii) make any alterations or improvements to floors that do not
contain any Leased Premises or (iii) bring the Projects into compliance
with building codes or other Legal Requirements, except to the extent
required by any Governmental Authority as being necessary to perform the
Demising Work. All Demising Work shall be performed in conformity with the
requirements of Section 5.7.
"Drive-Through Banking Facility" shall mean, for each Project, the portion
of the Leased Premises, if any, identified as a Drive-Through Banking
Facility in Lease Supplement for such Project.
"Enforcement" shall have the meaning assigned to such term in Section 7.7.
"Environmental Information" shall have the meaning assigned to such term in
Section 4.6(a).
"Environmental Matters" shall have the meaning assigned to such term in
Section 4.6(b).
"Excess Basic Rent" shall have the meaning assigned to such term in Section
10.4.
"Expansion Rights" shall have the meaning assigned to such term in Section
10.3.
"Expansion Space" shall have the meaning assigned to such term in Section
10.3.
"Expansion Space Acceptance" shall have the meaning assigned to such term
in Section 10.3.
"Expiration Date" shall have the meaning assigned to such term in Section
1.1(a).
"Event of Default" shall have the meaning assigned to such term in Section
7.1(a).
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"Facility Manager" shall have the meaning assigned to such term in Section
3.6.
"Fair Market Purchase Value" shall mean the fair market purchase value, as
of the date the determination is made, that would be obtained in an
arm's-length purchase and sale agreement between an informed and willing
seller and an informed and willing purchaser, neither of whom is under any
compulsion to enter into such transaction.
"Fair Market Rental Value" shall mean the fair market rental value, as of
the date the determination is made, that would be obtained in an
arm's-length net lease (i.e., net of all operating expenses, real estate
taxes, utilities and other pass-throughs) between an informed and willing
tenant (other than a tenant in possession) and an informed and willing
landlord, neither of whom is under any compulsion to enter into such
transaction, for space in Comparable Buildings that is comparable in size,
location and quality to the Leased Premises, for a comparable term. Such
Fair Market Rental Value shall be calculated assuming that (i) the Leased
Premises are in the condition and state of repair required under the Lease,
(ii) Tenant is in compliance with the requirements of the Lease and (iii)
Tenant will accept the Leased Premises in "AS-IS" condition. In determining
the Fair Market Rental Value for Project, the Appraiser shall give due
consideration, to and make any necessary adjustments to the rentals paid at
Comparable Buildings in light of, the following factors: (i) Tenant will
not receive, and Landlord will not pay, any tenant improvement, relocation,
moving or other allowance, rent abatement or other reduced or free rent
period or any other allowance or concession in connection with Tenant's
leasing of the Leased Premises, (ii) except as expressly provided herein
with respect to Expansion Space, Tenant's obligation to pay Rent commences
on the date possession of the Leased Premises are delivered to Tenant,
(iii) Landlord will not pay any brokers' fee or commission in connection
with Tenant's leasing of the Leased Premises, (iv) the Landlord's
inclusion, and Tenant's payment, of amortized capital expenditures in
Operating Expenses to the extent provided in this Lease and (v) the
creditworthiness of Tenant and the tenants at Comparable Buildings. For
Short Term Expansion Space only, the Fair Market Rental Value shall be
determined without regard to the value added by any alterations or
improvements made to such space by Tenant after it was added to the Lease
Premises as provided in Article X.
"Final Drawings" shall have the meaning assigned to such term in Section
5.7.
"Final Space Plan" shall have the meaning assigned to such term in Section
5.7(a).
"Five Year Term Separate Lease" shall have the meaning assigned to such
term in Section 9.3.
"Floor Common Area" shall have the meaning assigned to such term in the
Measurement Standard.
"FMRV Increment" shall have the meaning assigned to such term in Section
10.4.
"FMRV Space" means space added to the Leased Premises as Expansion Space,
but shall not include any Coterminous Expansion Space added to the Leased
Premises during the Initial Term.
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"Force Majeure Events" means events beyond Landlord's or Tenant's (as the
case may be) control, which shall include, without limitation, all labor
disputes, governmental regulations or controls, war, fire or other
casualty, inability to obtain any material or services, acts of God, or any
other cause not within the reasonable control of Landlord or Tenant (as the
case may be). The times for performance set forth in this Lease (other than
for monetary obligations of a party) shall be extended to the extent
performance is delayed by Force Majeure Events.
"FSG" shall have the meaning assigned to such term in the parties
paragraph.
"GAAP" shall mean generally accepted accounting principles, consistently
applied.
"Governmental Authority" means the United States, the state, county, city
and political subdivision in which a Project is located or that exercises
jurisdiction over the Project, Landlord or Tenant, and any agency,
department, commission, board, bureau or instrumentality of any of the
foregoing that exercises jurisdiction over the Project, Landlord or Tenant.
"Gross Revenue" shall mean, for each Project, all gross income generated in
connection with such Project, including, without limitation, basic rents,
additional rents and other charges collected from Tenant and other tenants
or occupants of the Project and income from services, coin operated vending
machines and telephones, parking facilities, but excluding (i) security
deposits, unless and not until such deposits are applied as rental income,
(ii) interest on bank accounts for the operation of the Project, (iii)
proceeds from the sale or refinancing of the Project, (iv) insurance
proceeds or dividends received from any insurance policies pertaining to
physical loss or damage to the Project, (v) condemnation awards or payments
received in lieu of condemnation of the Project, (vi) any trade discounts
and rebates received in connection with the purchase of personal property
or services in connection with the operation of the Project and (vii) any
Release Premises Additional Rent paid by Tenant under this Lease.
"Hazardous Materials" means any flammable materials, explosive materials,
radioactive materials, asbestos-containing materials, the group of organic
compounds known as polychlorinated biphenyls and any other hazardous, toxic
or dangerous waste, substance or materials defined as such in (or for
purposes of) the federal Comprehensive Environmental Response Compensation
and Liability Act of 1980, as amended, 42 U.S.C. (S)(S) 9601 to 9675, the
federal Hazardous Materials Transportation Act, 42 U.S.C. (S)(S) 5101 to
5127, the federal Solid Waste Disposal Act as amended by the Resources
Conservation and Recovery Act of 1976, 42 U.S.C. (S)(S) 6901 to 6992k, the
federal Toxic Substance Control Act, 15 U.S.C. (S)(S) 2601 to 2692 or any
other Legal Requirement from time to time in effect regulating, relating to
or imposing liability or standards of conduct concerning any hazardous,
toxic or dangerous waste, substance or material.
"Holidays" shall mean New Year's Day, Xxxxxx Xxxxxx Xxxx Day, Presidents'
Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Thanksgiving
Day, Christmas Day and any and all other dates observed as bank holidays by
national banks. If, in the case of any holiday described above, a different
day shall be observed than the
9
respective day described above, then that day that constitutes the day
observed by national banks in the state in which the Project is located on
account of such holiday shall constitute the Holiday under this Lease.
"HVAC" shall mean heating, ventilating and air conditioning.
"Initial Term" shall have the meaning assigned to such term in Section
1.1(a).
"Interest Holder" shall have the meaning assigned to such term in Section
7.7.
"JAMS" shall mean Judicial Arbitration & Mediation Services, Inc.
"JLL" means Xxxxx Lang LaSalle Americas, Inc.
"Land" shall mean all of the parcels of land identified on Exhibit A on
which the Buildings, Common Areas, Drive-Through Banking Facilities,
Parking Areas and other elements of the Projects are located.
"Landlord" shall have the meaning assigned to such term in the parties
paragraph.
"Landlord Default" shall have the meaning assigned to such term in Section
7.1(f).
"Landlord Designated Submanager" shall have the meaning assigned to such
term in Section 3.6.
"Landlord Expansion Response" shall have the meaning assigned to such term
in Section 10.2.
"Landlord Letter of Credit" shall have the meaning assigned to such term in
Section 13.2.
"Lease" shall have the meaning assigned to such term in the parties
paragraph.
"Leased Premises" shall have the meaning assigned to such term in Section
1.1(a).
"Lease Supplement" shall mean, for each Project, a supplement to this Lease
based upon the form attached as Exhibit B-1 hereto that describes and
depicts, in detail, the Leased Premises for such Project and any Landlord
or Tenant right or obligations that are specific to that Project,
including, without limitation, any emergency generators, uninterrupted
power systems, supplemental HVAC systems and other specialty items of whose
capacities are dedicated for Tenant's sole use and that Tenant desires
Landlord to maintain, repair and replace, at Tenant's election, as an Above
Standard Service. The Lease Supplements for the Projects located at (i)
0000 X. Xxxxxxx Xxxx, Xxxxxxx, XX (AZCAM-030, XXXXX-000, XXXXX-000 and
ACMCD-030), (ii) 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxxxxx, XX (FLJAC-030,
XXXXX-000, XXXXX-000, XXXXX-000, XXXXX-000, XXXXX-000, XXXXX-000, XXXXX-000
and FLJAC-830) and (iii) 000 X. XxXxxxx Xxxxxx, Xxxxxxx, XX (ILBANA-076)
shall grant Tenant a right of first refusal to lease additional space that
becomes available in such Projects prior to December 31, 2005, for an
Annual Basic Rent equal to the Net Rentable Area of the space so added
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multiplied by the Annual Basic Rent Factor. The Term of this Lease for any
space so added shall be coterminous with the Term of this Lease for the
remainder of the Leased Premises, but any space so added shall not be
included as Coterminous Expansion Space for any purpose under this Lease.
"Lease Year" means a period of one (1) year; provided that the first Lease
Year shall commence on the Commencement Date and shall end on June 30,
2004; the second Lease Year commences upon the expiration of first Lease
Year and ends one (1) year later, and all subsequent Lease Years commence
upon the expiration of the prior Lease Year, except that the last Lease
Year during the Term ends on the last day of the Term. The Lease Year for
all Projects covered by this Lease shall be the same.
"Legal Requirements" means any law, statute, ordinance, order, rule,
regulation or requirement of a Governmental Authority.
"MAI" means Member of the Appraisal Institute.
"Major Dispute" shall have the meaning assigned to such term in Section
12.2(c).
"Major Property" means any Project in which the Building shall contain
50,000 or more square feet of Net Rentable Area.
"Maximum Renewal Term Basic Rent" shall have the meaning assigned to such
term in Section 1.4(c).
"Measurement Standard" shall mean the Standard Method for Measuring Floor
Area in Office Buildings, ANSI/BOMA Z65.1-1996, as promulgated by BOMA.
"Net Rentable Area" shall mean, as applicable, the net rentable areas of
the Leased Premises, the Occupied Release Premises and the Buildings,
determined in conformity with the Measurement Standard. The approximate Net
Rentable Areas of the Leased Premises, the Occupied Release Premises and
the Buildings are as specified in Exhibit A; provided that the final and
stipulated Net Rentable Areas of the Leased Premises, the Occupied Release
Premises and each of the Buildings shall be re-measured by Landlord on or
before October 31, 2003, in conformity with the Measurement Standard as
expressed in the Purchase Agreement. Once such re-measurement is completed,
Landlord and Tenant shall (i) amend the Lease Supplements and Exhibit A to
confirm, effective as of the Commencement Date, the correct Net Rentable
Areas, Occupancy Percentages and Annual Basic Rents and (ii) recalculate
and confirm in writing the Net Rentable Area subject to Termination Rights
under Section 11.4 below.
"Non-FMRV Renewal Space" shall mean, as to each Project during each Renewal
Term, the portion of the Renewal Premises at such Project, if any, that is
not FMRV Space.
"Non-Removable Improvements" shall have the meaning assigned to such term
in Section 5.3.
"Notice Parties" shall mean the parties identified in Section 1.1(a), and
any successor or
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additional party as a Notice Party may from time to time designate, as
parties entitled to receive written notices under this Lease.
"Notice to Vacate" shall have the meaning assigned to such term in Section
11.1.
"Occupancy Percentage" shall mean, as to each Building, a fraction,
expressed as a percentage, the numerator of which is the Net Rentable Area
of the Leased Premises in the Building at the time the determination is
made, and the denominator of which is Net Rentable Area of the Building,
all as set forth on Exhibit A hereto, as amended from time to time. The
Occupancy Percentage for a Project shall be re re-calculated each time
there is a change in the Net Rentable Area of the Leased Premises or the
Building at such Project.
"Occupied Release Premises" means all portions of the Release Premises that
are not Unoccupied Release Premises. The Occupied Release Premises within a
Project on the Closing Date shall be identified in the Lease Supplement for
such Project and listed in summary fashion on Exhibit A hereto. Each time
there is an addition to, subtraction from or change in the configuration of
the Occupied Release Premises within a Project, Landlord and Tenant shall
execute amendments to the Lease Supplement for such Project and to Exhibit
A hereto to confirm such change.
"Operating Expenses" shall have the meaning assigned to such term in
Section 2.2(b).
"Operating Expense Statement" shall have the meaning assigned to such term
in Section 2.2(f).
"Outside Completion Date" shall have the meaning assigned to such term in
Section 6.3(d).
"Owner" shall have the meaning assigned to such term in Section 7.7.
"Parking Areas" shall mean, as to each Project, the exclusive and
non-exclusive parking areas and facilities for the Project as indicated on
the Lease Supplement for the Project, together with any connecting
walkways, covered walkways, tunnels, or other means of access to the
Building, and any additional minor improvements now or hereafter located on
the Land related to the foregoing facilities.
"Pre-Committed Space" shall have the meaning assigned to such term in
Section 10.1.
"Preliminary Drawings" shall have the meaning assigned to such term in
Section 5.7.
"Preliminary Space Plan" shall have the meaning assigned to such term in
Section 5.7.
"Prime Rate" shall mean the "prime rate" announced by Bank of America,
N.A., or its successor, from time to time (or if the Prime Rate is
discontinued, the rate announced as that being charged to said bank's most
credit-worthy commercial borrowers).
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"Project" means the Land, the Buildings, the Common Areas, including,
without limitation, the Parking Areas, any Drive-Through Banking
Facilities, and any and all additional improvements now or hereafter
located on the Land that serve the Buildings, the Common Areas, including,
without limitation, the Parking Areas, any Drive-Through Banking Facilities
or the tenants of the Building generally.
"Purchase Agreement" shall mean that certain Amended and Restated Agreement
of Sale and Purchase by and between Bank of America, N.A., as seller, and
FSG, as purchaser, dated April 16, 2003, as amended. Immediately prior to
the Closing, FSG shall assign to Landlord, and Landlord shall assume, all
of FSG's rights, titles and interests under the Purchase Agreement, it
being understood that FSG shall not be released from its obligations under
the Purchase Agreement as a result of such assignment.
"Qualified Damage" shall have the meaning assigned to such term in Section
6.3(b).
"Real Estate Taxes" shall have the meaning assigned to such term in Section
2.3(b).
"Release Period" shall mean, for each Occupied Release Premises, the period
commencing on the Commencement Date and ending on the last day of the sixth
month of the second Lease Year.
"Release Premises" shall have the meaning assigned to such term in Section
1.1(a) and include the Occupied Release Premises and the Unoccupied Release
Premises.
"Release Premises Additional Rent" shall mean, for each Project, rent in an
annual amount equal to $9.50 per square foot multiplied by the Net Rentable
Area of the Occupied Release Premises within such Project. The Release
Premises Additional Rent due under this Lease shall be the sum of all
Release Premises Additional Rents due with respect to each Project and
shall be recalculated each time there is a change in the Net Rentable Area
of the Occupied Release Premises for a Project. Landlord shall have all the
rights and remedies for the collection of Release Premises Additional Rent
as are available to Landlord for the collection of the Rent.
"Relocation Rights" shall have the meaning assigned to such term in Section
11.3.
"Relocation Rights Exercise Period" shall have the meaning assigned to such
term in Section 10.3(a).
"Remedial Work" means the removal, relocation, elimination, remediation or
encapsulation of Hazardous Materials from all or any portion of the Leased
Premises or the Common Areas and, to the extent thereby required, the
reconstruction and rehabilitation of the Leased Premises or the Common
Areas pursuant to, and in compliance with this Lease.
"Renewal Option(s)" shall have the meaning assigned to such term in Section
1.4(a).
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"Renewal Option Notice Date" shall mean, with respect to a Renewal Option,
the date on which Tenant sends written notice of exercise of such Renewal
Option to Landlord as provided in Section 1.4.
"Renewal Premises" shall have the meaning assigned to such term in Section
1.4(c).
"Renewal Terms" shall have the meaning assigned to such term in Section
1.4(a).
"Rent" means Annual Basic Rent, Excess Basic Rent, if any, and Additional
Rent.
"Requesting Party" shall have the meaning assigned to such term in Section
12.1(a)(i).
"Responding Party" shall have the meaning assigned to such term in Section
12.1(a)(i).
"ROFO Eligible Conditions" shall have the meaning assigned to such term in
Section 9.2.
"ROFO Eligible Property" shall have the meaning assigned to such term in
Section 9.2.
"SAR" shall mean Strategic Alliance Realty.
"SEC" shall have the meaning assigned to such term in Section 14.24.
"Security Areas" shall have the meaning assigned to such term in Section
4.2.
"Self-Insurance Net Worth Test" shall mean, as of any date, that (i) Tenant
has a net worth of at least $1,000,000,000.00 and (ii) Tenant's long-term
senior unsecured debt obligations are rated at least BBB (or its
equivalent) by Duff & Xxxxxx and Baa2 (or its equivalent) by Xxxxx'x at of
that date; provided that if Tenant is rated by only one of Duff & Xxxxxx or
Xxxxx'x, such obligations shall have such rating from Duff & Xxxxxx or
Xxxxx'x, as the case may be, and a comparable rating from one of Fitch
Investors Service, S&P or another nationally-recognized rating agency.
"Separate Lease" shall mean a separate, stand alone lease for a Project
substantially in the form attached as Exhibit G hereto entered into by the
third party purchaser of such Project, as landlord, and Tenant, as tenant,
as provided in Sections 9.1 and 9.2, which may be either Continuing Term
Separate Leases or Five Year Term Separate Leases.
"Service Failure" shall have the meaning assigned to such term in Section
3.1(e).
"Short Term Expansion Space" shall have the meaning assigned to such term
in Section 10.3.
"Sublet Space" shall have the meaning assigned to such term is Section
8.1(b).
"Subtenant Non-Disturbance Agreement" shall mean a written agreement
substantially in the form attached as Exhibit F hereto among Landlord,
Tenant, the subtenant under a Cost Approved Sublease and any Interest
Holders pursuant to which Landlord and such Interest Holders agree not to
disturb such subtenant's possessory and other rights under the Cost
Approved Sublease, and such subtenant agrees to attorn to and recognize
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Landlord, notwithstanding any expiration or earlier termination of the Term
of this Lease prior to the expiration or earlier termination of the term of
the Cost Approved Sublease, except to the extent that such possessory or
other rights can be disturbed or terminated as provided in the Cost
Approved Sublease.
"Surrendered Premises" means, as applicable, any Release Premises or Vacate
Premises for which Tenant is required to perform Demising Work.
"Tax Statement" shall have the meaning assigned to such term in Section
2.3(a).
"TCCS" shall mean Xxxxxxxx Xxxx Corporate Services, Inc.
"Tenant" shall have the meaning assigned to such term in the parties
paragraph.
"Tenant's Business Equipment" shall have the meaning assigned to such term
in Section 5.3.
"Tenant Designated Submanager" shall have the meaning assigned to such term
in Section 3.6.
"Tenant Expansion Notice" shall have the meaning assigned to such term in
Section 10.1.
"Tenant Managed Project" shall have the meaning assigned to such term in
Section 3.6.
"Tenant's Operating Expense Share" shall have the meaning assigned to such
term in Section 2.2(a).
"Tenant's Tax Share" shall have the meaning assigned to such term in
Section 2.3(a).
"Term" shall have the meaning assigned to such term in Section 1.3.
"Termination Rights" shall have the meaning assigned to such term in
Section 11.4.
"Third Party Offer" shall have the meaning assigned to such term in Section
9.1.
"Transfer Notice" shall have the meaning assigned to such term in Section
8.1(b).
"Unoccupied Release Premises" shall mean those portions of the Release
Premises that are not occupied, in whole or in part, by Tenant's agents,
servants or employees for business purposes. Subject to the provisions of
Section 1.7, Unoccupied Release Premises may contain Tenant's personal
property and may be used by Tenant for the performance of Demising Work.
"Unused Relocation Rights Area" shall have the meaning assigned to such
term in Section 10.4.
"Vacate Premises" shall have the meaning assigned to such term in Section
11.2.
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"Vacate Premises Surrender Date" shall have the meaning assigned to such
term in Section 11.5.
"VARA" means the Visual Artists Rights Act of 1990, as amended.
1.2 Leased Premises. Subject to and upon the terms hereinafter set forth,
Landlord does hereby lease and demise to Tenant, and Tenant does hereby lease
and take from Landlord, the Leased Premises. The initial Leased Premises demised
hereunder are described in Exhibit A hereto. Tenant shall be entitled to the
following as appurtenances to the Leased Premises: the right to use (a) Parking
Areas, (b) for Tenant's non-exclusive use, the roof of the Building in
accordance with Section 3.5 hereof, (c) for Tenant's exclusive use, the
restrooms, telephone, electric and other utility closets on floors leased
entirely by Tenant; provided that if such facilities also serve floors in a
Building that is not fully leased by Tenant, Tenant's use of such facilities
shall be non-exclusive and in common with Landlord and other tenants or
occupants of the floors also serviced by such facilities and (d) in common with
Landlord and other tenants or occupants of the Projects, their invitees and
guests and others as designated by Landlord from time to time, all areas,
facilities and systems, including risers, telephone, electric and other utility
closets in the Buildings and other portions of the Projects available from time
to time for the common use of tenants in the Buildings (all such areas,
facilities and systems, together with all areas, facilities and systems
denominated as "Building Common Areas" and "Floor Common Areas" in the
Measurement Standard, the "Common Areas") and all rights and benefits
appurtenant to, or necessary or incidental to, the use and enjoyment of the
Leased Premises by Tenant for the purposes permitted by Section 1.5 hereof
including, but not limited to, the right of Tenant, its employees and invitees,
in common with Landlord and other persons, to use any non-exclusive easements
and/or licenses in, about or appurtenant to the Projects, including but not
limited to the non-exclusive right to use any walkways, tunnels, and skywalks
connected to the Projects.
1.3 Term. The Initial term of this Lease shall be as described in Section
1.1(a), which Initial Term may be renewed and extended as provided in Section
1.4 (the Initial Term and, to the extent renewed and extended, any such Renewal
Terms are hereinafter collectively called the "Term"). Tenant is in possession
of the Leased Premises as of the date of this Lease and shall accept the Leased
Premises in its "AS-IS" condition on the Commencement Date, subject to all
applicable Legal Requirements, covenants and restrictions. Landlord has made no
representation or warranty regarding the suitability of the Leased Premises or
the Buildings for the conduct of Tenant's business, and Tenant waives (a) any
implied warranty that the Leased Premises or the Buildings are suitable for
Tenant's intended purposes, (b) any right of Tenant to claim that the Leased
Premises are not now or in the future in compliance with Legal Requirements
(except to the extent that any such future non-compliance with Legal
Requirements within the Leased Premises was caused by any act or omission of
Landlord, or its agents, servants or employees) and (c) any right of Tenant to
claim that the Buildings are not in compliance with Legal Requirements in effect
on the Commencement Date. Except as otherwise expressly set forth in this Lease
to the contrary, in no event shall Landlord have any obligation for any defects
in effect on the Commencement Date in the Leased Premises or the Buildings or
any limitation on their respective uses.
1.4 Options to Renew; Special Notice of Non-Renewal.
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(a) Subject to the conditions hereinafter set forth, Tenant is hereby
granted options (individually, a "Renewal Option" and, collectively, the
"Renewal Options") to renew the Term with respect to any or all of the Leased
Premises then demised to Tenant (including any Expansion Space) for six (6)
successive periods of five (5) years each (individually, a "Renewal Term" and
collectively the "Renewal Terms"); provided that the Term of this Lease shall
not extend, for any portion of the Leased Premises whenever added to this Lease,
for more than fifty (50) Lease Years, beginning on the Commencement Date of this
Lease.
(b) The first Renewal Term shall commence at the expiration of the Initial
Term, and each subsequent Renewal Term shall commence at the expiration of the
prior Renewal Term. Tenant shall exercise its options to renew, if at all, by
delivering notice of such election to Landlord not later than twelve (12) months
prior to the expiration of the Initial Term or the expiration of the then
`current Renewal Term, as the case may be. IN ORDER TO PREVENT TENANT'S
INADVERTENT FORFEITURE OF ANY THEN REMAINING RENEWAL OPTION, IF TENANT SHALL
FAIL TO TIMELY EXERCISE ANY AVAILABLE RENEWAL OPTION, TENANT'S RIGHT TO EXERCISE
SUCH RENEWAL OPTION SHALL NOT LAPSE UNTIL LANDLORD SHALL DELIVER TO TENANT
WRITTEN NOTICE THAT SUCH NOTICE OF EXERCISE HAS NOT BEEN DELIVERED AND TENANT
SHALL THEREAFTER FAIL TO EXERCISE SUCH RENEWAL OPTION WITHIN TEN (10) DAYS
FOLLOWING THE DELIVERY OF SUCH NOTICE.
(c) The Annual Basic Rent to be paid by Tenant for the Leased Premises at a
Project during a Renewal Term (any such premises, the "Renewal Premises") shall
equal the Fair Market Rental Value of such Renewal Premises during such Renewal
Term as determined by the parties or, in the absence of their agreement,
determined by appraisal as expressed below; provided that the Annual Basic Rent
payable during a Renewal Term for Non-FMRV Renewal Space at all Projects that
contain Renewal Premises, computed on an aggregate basis, shall not be greater
than the amount determined by multiplying (i) the aggregate Net Rentable Area of
the Non-FMRV Renewal Space by (ii) the Annual Basic Rent Factor for the
applicable Renewal Term as set forth on Schedule 1 hereto (the amount so
determined, the "Maximum Renewal Term Basic Rent"). If the aggregate Fair Market
Rental Values of the Non-FMRV Renewal Space at all Projects (collectively, the
"Aggregate FMRV Rent") exceeds the Maximum Renewal Term Basic Rent, the Fair
Market Rental Values of the Non-FMRV Renewal Space at each Project shall be
proportionately reduced by multiplying each such Fair Market Rental Values by a
fraction, expressed as a decimal, the numerator of which is the Maximum Renewal
Term Basic Rent and the denominator of which is the Aggregate FMRV Rent, so that
the Annual Basic Rent for the Non-FMRV Renewal Space shall, in the aggregate,
equal the Maximum Renewal Term Basic Rent. With respect to FMRV Space that is
part of Renewal Premises, the Annual Basic Rent shall always be the Fair Market
Rental Value of such FMRV Space. An illustration of how Annual Basic Rent is
determined during a Renewal Term is attached as Schedule 5 hereto.
(d) Within thirty (30) days following the Renewal Option Notice Date,
Landlord shall deliver to Tenant, a proposal setting forth Landlord's
determination of the Fair Market Rental Value for the Renewal Premises during
the applicable Renewal Term. For thirty (30) days thereafter, Landlord and
Tenant shall negotiate in good faith to reach agreement as to the Fair Market
Rental Value for the Renewal Premises. Tenant's leasing of the Renewal Premises
shall be upon the same terms and conditions as set forth in this Lease, except
(i) the Annual Basic
17
Rent during the Renewal Term shall be determined as specified in Sections 1.4(c)
and (e) and (ii) the leasehold improvements for the space in question will be
provided in their existing condition, on an "AS-IS" basis at the time the
Renewal Term commences. Once established, the Annual Basic Rent for the
applicable Renewal Term will remain fixed for each five (5) year Renewal Term,
and be paid monthly in advance.
(e) If Landlord and Tenant are unable to reach a definitive agreement as to
the Fair Market Rental Value applicable to Renewal Premises within sixty (60)
days following the Renewal Option Notice Date, the Fair Market Rental Value will
be submitted for resolution in accordance with the provisions of this Section
1.4(e). Within seventy-five (75) days following the Renewal Option Notice Date
(or, if later, within fifteen (15) days following the date on which either
Landlord or Tenant notifies the other party in writing that such notifying party
desires to have the Annual Basic Rent for a Renewal Term determined by
appraisal), Landlord and Tenant shall each select and engage an Appraiser to
determine the Fair Market Rental Value of the Renewal Premises. If either party
fails to select and engage an Appraiser within such time, if such failure
continues for more than five (5) business days following such party's receipt of
written notice that states in all capital letters (or other prominent display)
that such party has failed to select an Arbitrator as required under the Lease
and will be deemed to have waived certain rights granted to it under the Lease
unless it selects an Arbitrator within five (5) business days, the Fair Market
Rental Value will be determined by the Appraiser engaged by the other party.
Each Appraiser shall prepare an appraisal report and submit it to both Landlord
and Tenant within thirty (30) days following the date on which the last
Appraiser was selected. If the higher of the two appraisals of Fair Market
Rental Value does not exceed one hundred five percent (105%) of the lower of the
two appraisals of Fair Market Rental Value, then the average of the two (2)
appraisals shall be the Fair Market Rental Value for the Renewal Premises. If
the higher of the two appraisals of Fair Market Rental Value exceeds 105% of the
lower of the two appraisals of Fair Market Rental Value, then within seven (7)
days after receipt by Landlord and Tenant of both appraisal reports, the
Appraisers selected by Landlord and Tenant shall agree on a third Appraiser to
determine Fair Market Rental Value. The third Appraiser shall not perform a
third appraisal, but shall, within ten (10) days after his or her designation,
select one (1) of the two (2) appraisals already performed, whichever of the two
appraisals the third Appraiser determines to be closest to Fair Market Rental
Value, as the controlling determination of the Fair Market Rental Value. The
decision of the third Appraiser shall be conclusive, and, subject to the
limitations expressed in Section 1.4(c), shall be the Fair Market Rental Value
for the Renewal Premises for the Renewal Term. Each party shall pay the costs of
its Appraiser and one-half of the cost of the third Appraiser. The instructions
to the Appraisers with respect to the determination of the Fair Market Rental
Value applicable to such space will be to determine the Fair Market Rental Value
for such space as of the relevant Renewal Term, assuming that such space will be
leased on an "AS-IS" basis. Within thirty (30) days following the determination
of the Fair Market Rental Value, Tenant shall elect one (1) of the following
options: (A) to revoke the exercise of the subject Renewal Option, in which
event, the Term of this Lease for the Leased Premises to which the notice of
revocation applies shall automatically, and without further action of Landlord
or Tenant, expire on the later of (1) the expiration of the then existing Term
or (2) the last day of the calendar month that is six (6) months following the
month in which Tenant's notice of revocation was given to Landlord or (B) to
renew the Lease at the rate to be determined in accordance with this Section
1.4(e) after the Fair Market Rental Value has been determined by appraisal. If
Tenant fails to exercise any of the foregoing options within the
18
thirty (30) day period, Tenant shall be deemed to have elected option (A). If
Tenant has elected option (B), Tenant thereby shall have irrevocably exercised
its right to renew the Term and Tenant may not thereafter withdraw the exercise
of the Renewal Option; in such event the renewal of this Lease (as to the
Renewal Premises) shall be upon the same terms and conditions of this Lease,
except (i) the Annual Basic Rent during the Renewal Term shall be determined in
accordance with the foregoing provisions and (ii) the leasehold improvements for
the space in question will be provided in their existing condition, on an
"AS-IS" basis at the time the Renewal Term commences. If the Annual Basic Rent
for a Renewal Term has not been determined prior to the commencement of such
Renewal Term, Tenant shall pay to Landlord as of the commencement of the Renewal
Term the same Annual Basic Rent as Tenant was paying immediately prior to the
commencement of the Renewal Term, subject to adjustment upon final
determination. Once established, the Annual Basic Rent for the Renewal Term will
remain fixed for each five (5) year Renewal Term, and be paid monthly in
advance.
(f) Notwithstanding anything to the contrary contained in this Section 1.4,
subject to the provisions of Section 1.4(a) above, Tenant's failure to give the
required renewal notice with respect to the Leased Premises within a Project in
conformity with the requirements of Section 1.4(b) shall render the upcoming and
all subsequent Renewal Options for such Leased Premises, if there be any, null
and void.
1.5 Use. Each of the Leased Premises may be used and occupied by Tenant (and its
permitted assignees and subtenants) only for banking and related uses and
general business office purposes and such other lawful purposes as are
consistent with banking and general office uses being made from time to time by
tenants of the Building. In addition and without limitation of the foregoing,
Tenant may maintain (for use by Tenant and its employees, customers, and
invitees): (a) conference and/or meeting facilities, (b) libraries, (c)
non-retail coffee bars, (d) support staff facilities (including, without
limitation, word processing and copy facilities), (e) lunchrooms and kitchen
facilities for use by Tenant and its employees and invitees, including vending
machines and microwave ovens for use by Tenant and its employees and invitees,
subject, however, to Legal Requirements, (f) storage space incidental to banking
and general business office purposes only, (g) bank and storage vaults, (h) cash
vault, (i) telephone call centers, (j) retail banking facilities and (k) as to
each Project, any lawful purpose for which such Project was used on the
Commencement Date. Tenant is not obligated to maintain occupancy in all or any
portion of the Leased Premises. For purposes of this Section 1.5, the term
"banking" shall be deemed to include, without limitation, all traditional
banking activities as well as the sale of insurance and annuities of all types,
trust services, investment and financial advice, and the sale of securities. If
Tenant receives notice of any material directive, order, citation or of any
violation of any Legal Requirement or any insurance requirement, Tenant shall
endeavor to promptly notify Landlord in writing of such alleged violation and
furnish Landlord with a copy of such notice.
1.6 Survival. Any claim, cause of action, liability or obligation arising during
the Term of this Lease in favor of a party hereto and against or obligating the
other party hereto shall (to the extent not theretofore fully performed) survive
the expiration or any earlier termination of this Lease.
1.7 Release Premises.
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(a) Tenant may use and occupy the Release Premises in conformity with the
requirements of this Section 1.7. The Release Premises shall not constitute part
of the Leased Premises and the Net Rentable Area of the Release Premises shall
not be included in the calculation of Tenant's Occupancy Percentage.
Notwithstanding the foregoing, (i) Tenant's use of the Release Premises shall be
subject to the provisions of Section 1.5, (ii) the provisions of Sections 6.4,
6.5, 6.6 and 6.7 relating to insurance, indemnifications and waivers of recovery
shall apply to the Release Premises, (iii) Tenant's performance of any Demising
Work to separately demise the Leased Premises from the Release Premises shall be
subject to the provisions of Section 5.7 and (iv) the resolution of any disputes
between Landlord and Tenant relating to the Release Premises shall be subject to
the provisions of Articles XII and XIII.
(b) During the first Lease Year, Tenant shall not pay any Annual Basic
Rent, Tenant's Operating Expense Share or Tenant's Tax Share with respect to the
Release Premises. In lieu thereof, Tenant shall pay Release Premises Additional
Rent, plus any applicable Above Standard Services Rent, with respect to the
Occupied Release Premises (but not any Unoccupied Release Premises) from time to
time used by Tenant. Commencing on the first day of the second Lease Year,
Tenant shall no longer pay Release Premises Additional Rent with respect to such
Occupied Release Premises, but, in lieu thereof, Tenant shall pay Rent to
Landlord with respect to such Occupied Release Premises as if such Occupied
Release Premises were otherwise includable in the Leased Premises hereunder. In
either such case, Release Premises Additional Rent shall be due and payable in
equal monthly installments on the first day of each calendar month beginning,
for each Occupied Release Premises, on the first day of the Release Period for
such Occupied Release Premises and ending, for each Occupied Release Premises,
as of the day possession of such Occupied Release Premises are surrendered to
Landlord in conformity with the requirements of this Section 1.7 and Tenant
shall have notified Landlord of the same in writing. Within five (5) business
days following such date, Landlord and Tenant shall execute an amendment to the
Lease Supplement for the Project in which the Occupied Release Premises are
located and to Exhibit A hereto to confirm the date on which possession of the
Occupied Release Premises were so surrendered to Landlord and the revised
configuration, Net Rentable Area and Release Premises Additional Rent, if any,
payable at the Project after giving effect to the surrender. Subject to the
provisions of Sections 1.7(c) and 1.7(d), if Tenant fails to surrender
possession of an Occupied Release Premises prior to the expiration of the
Release Period, from and after the expiration of the Release Period until such
Occupied Release Premises shall be surrendered to and accepted by Landlord,
Tenant shall continue to pay Rent with respect to such Occupied Release Premises
as if such Occupied Release Premises were otherwise includable in the Leased
Premises hereunder. Either Landlord or Tenant may terminate Tenant's right to
possess and occupy Occupied Release Premises at any time on or following the
expiration of the Release Period upon thirty (30) days' prior written notice to
the other party.
(c) Tenant shall remove all of Tenant's personal property from Unoccupied
Release Premises within thirty (30) days following the Commencement Date. Tenant
shall remove all of Tenant's personal property from Occupied Release Premises on
or before the date on which Tenant surrenders, and Landlord accepts possession
of the Occupied Release Premises in conformity with the requirements of this
Section 1.7. In the event Tenant fails to remove its personal property from the
Release Premises by such date, Landlord shall have the right to remove and
dispose of the same at Tenant's expense. Tenant shall deliver the Release
Premises to Landlord in the same condition as it was in on the date of the
execution of this Lease,
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reasonable wear and tear and Demising Work, if any, excepted, and subject to the
provisions of Section 5.3 and Article VI.
(d) Subject to the provisions of this Section 1.7(d), at any time prior to
the expiration of the First Lease Year, Tenant shall advise Landlord of Tenant's
election to (i) vacate all or a portion of the Occupied Release Premises as of a
date not later than the expiration of the Release Period, (ii) add all or a
portion of the Occupied Release Premises to the Leased Premises as Short Term
Expansion Space as provided in Article X or (iii) add all or a portion of the
Occupied Release Premises to the Leased Premises for the balance of the Initial
Term. If Tenant fails to notify Landlord of its election with respect to any
Occupied Release Premises prior to the expiration of the first Lease Year,
Tenant shall be deemed to have elected to vacate such Occupied Release Premises
prior to the expiration of the Release Period. If prior to the expiration of the
first Lease Year Tenant notifies Landlord of its election to add all or a
portion of the Occupied Release Premises to the Leased Premises for the balance
of the Initial Term, at any time prior to the expiration of the Release Period,
Tenant shall notify Landlord whether or not Tenant desires to add such Occupied
Release Premises, in whole or in part, to the Leased Premises as Coterminous
Expansion Space as provided in Article X. If Tenant fails to so notify Landlord
of its election prior to the expiration of the Release Period, Tenant shall be
deemed to have elected to add the Occupied Release Premises to the Leased
Premises for the balance of the Initial Term, but not as Coterminous Expansion
Space. If Tenant notifies Landlord that Tenant desires to add all or a portion
of the Occupied Release Premises as Coterminous Expansion Space, (i) for each
square foot of Net Rentable Area of Occupied Release Premises added to the
Leased Premises as Coterminous Expansion Space, Tenant shall receive and be
permitted to exercise Relocation Rights as provided in Article XI on Vacate
Premises containing up to the same Net Rentable Area (but not more than one
hundred twenty-five thousand (125,000) square feet of Net Rentable Area, in the
aggregate); provided that the Relocation Rights Exercise Period for Relocation
Rights created by adding Occupied Release Premises to the Leased Premises as
Coterminous Expansion Space shall expire on the earlier of (A) eighteen (18)
months following the date on which such Occupied Release Premises was added to
the Leased Premises or (B) December 31, 2005, and (ii) the provisions of Section
10.4 relating to Excess Basic Rent shall apply to any Release Premises added to
the Leased Premises as Coterminous Expansion Space (but not more than one
hundred twenty-five thousand (125,000) square feet of Net Rentable Area, in the
aggregate). Subject to the foregoing, all Release Space added to the Leased
Premises for the remainder of the Initial Term (whether or not added as
Coterminous Expansion Space) shall be added on the same terms and conditions as
apply to all other Leased Premises (except Short Term Expansion Space) as then
demised hereunder, so that (i) the Annual Basic Rent payable for the former
Release Premises shall be the same as the Annual Base Rent payable for all other
Leased Premises (except Short Term Expansion Space), calculated as the Net
Rentable Area of the former Release Premises multiplied by the Annual Basic Rent
Factor (after adjustment as provided in Section 1.7(e)) and (ii) the Term of
this Lease with respect to the former Release Premises shall be coterminous with
the Term of this Lease for all other Leased Premises (except Short Term
Expansion Space), including any Renewal Terms, as Tenant may elect. In the event
that Tenant elects to add all or any portion of the Occupied Release Premises to
the Leased Premises as aforesaid, Landlord and Tenant shall amend the applicable
Lease Supplement and Exhibit A to this Lease to evidence and confirm the
addition of such Occupied Release Premises to the Leased Premises.
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(e) If, prior to the expiration of the Release Period, Tenant elects to add
Occupied Release Premises to the Lease Premises for the balance of the Initial
Term as provided in Section 1.7(d) (whether or not added as Coterminous
Expansion Space), effective as of the next day after the end of the Release
Period (or at such earlier time as Tenant advises Landlord in writing that
Tenant irrevocably waives Tenant's right to add additional Release Premises to
the Leased Premises for the balance of the Initial Term), Landlord and Tenant
shall recalculate the Annual Basic Rent Factor and Tenant's Termination Rights
as described in Section 11.4 based upon (i) the Leased Premises on the
Commencement Date plus (ii) any Occupied Release Premises added to the Leased
Premises for the balance of the Initial Term of this Lease prior to the
expiration of the Release Period (whether or not added as Coterminous Expansion
Space).
(f) As expeditiously as possible following the Commencement Date, Tenant
shall perform, at Tenant's sole cost and expense, any Demising Work for such
Project, as provided in Section 5.7. If Tenant fails to expeditiously commence
and complete any Demising Work or if Landlord needs to accelerate completion of
all or a portion of the Demising Work at a Project to accommodate Landlord's
leasing of space to third party tenants, Landlord shall have the right, but not
the obligation, to complete, at Tenant's sole cost and expense, all or a portion
of the unfinished Demising Work. Any disputes between Landlord and Tenant with
respect to the scope or cost of any Demising Work arising under this Section 1.7
shall be subject to resolution as provided in Article XII and XIII.
ARTICLE II
RENTAL AND OPERATING EXPENSES
2.1 Rental Payments.
(a) Beginning on the Commencement Date, Tenant shall pay Annual Basic Rent,
Excess Basic Rent, if any, and Additional Rent with respect to the Leased
Premises, all as applicable and as required by and in conformity with the
provisions of this Lease. Annual Basic Rent shall be due and payable in equal
monthly installments on the first day of each calendar month during the Term, in
advance. Tenant's Operating Expense Share and Tenant's Tax Share shall be due
and payable in accordance with Sections 2.2 and 2.3. Unless otherwise specified
herein, Excess Basic Rent and Above Standard Services Rent shall be payable
twenty (20) days following Landlord's submission to Tenant of an invoice
therefor.
(b) Beginning on the Commencement Date, and continuing throughout the Term
of this Lease, Tenant shall pay Annual Basic Rent to Landlord. Annual Basic Rent
shall be adjusted from time to time each time there is a change in the Annual
Basic Rent Factor or in Tenant's Occupancy Percentage for a Project. From and
after the expiration of the Initial Term through the expiration of the Renewal
Term(s) (to the extent Tenant renews and extends this Lease pursuant to Section
1.4 hereof), Tenant shall pay Annual Basic Rent at the rate determined in
accordance with the provisions of Section 1.4.
(c) Throughout the Initial Term of this Lease, but not thereafter, Tenant
shall pay Excess Basic Rent, if any, to Landlord to the extent that the same is
due and payable pursuant to Section 10.4. Excess Basic Rent, if any, shall be
paid annually, in arrears, for each Lease Year during the Initial Term. Within
ninety (90) days following the expiration of each Lease Year
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during the Initial Term, Landlord shall advise Tenant in writing of the Excess
Basic Rent, if any, payable by Tenant for the prior Lease Year and provide
Tenant with a detailed calculation of the same.
(d) If the Term commences for any portion of the Leased Premises on a day
other than the first day of a calendar month, or if the Term for any portion of
the Leased Premises expires on other than the last day of a calendar month, then
all installments of Rent that are payable on a monthly basis with respect to
such portion of the Leased Premises shall be prorated for the month in which
such Term commences or terminates, as the case may be, and the installment or
installments so prorated for the month in which such Term commences or
terminates, as the case may be, shall be paid in advance. Said installments for
such prorated month or months shall be calculated by multiplying the monthly
installment for the affected portion of the Leased Premises by a fraction, the
numerator of which shall be the number of days such Rent accrues during said
commencement or expiration month, as the case may be, and the denominator of
which shall be the actual number of days in the month. If the Term commences for
any portion of the Leased Premises, or if the Term expires on other than the
first day of a calendar year, then all Rent payable on an annual basis shall be
prorated for such commencement or expiration year, as the case may be, by
multiplying such Rent by a fraction, the numerator of which shall be the number
of days of the Term during the commencement or expiration year, as the case may
be, and the denominator of which shall be the actual number of days in such
commencement or expiration year. In such event, the foregoing calculation shall
be made as soon as is reasonably possible. Landlord and Tenant hereby agree that
the provisions of this Section 2.1(e) shall survive the expiration or
termination of this Lease.
(e) Tenant agrees to pay all Rent 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 abatement (except as specifically provided in this Lease),
demand, offset (except as specifically provided in this Lease) or counterclaim,
at Landlord's address as provided herein (or such other address in the
continental United States as may be designated in writing by Landlord from time
to time). Tenant shall have the right, at its option, to pay Rent by means of
electronic funds transfer to such account and depository institution as Landlord
shall specify from time to time upon Tenant's request. All Rent owed by Tenant
to Landlord under this Lease shall bear interest from the date due thereof until
payment is received by Landlord at the Applicable Rate; provided that Landlord
shall not be entitled to receive interest during the first thirty (30) days
following the payment due date on any overdue amount for which Landlord receives
a late charge as provided in Section 2.1(g). All sums owed by Landlord to Tenant
pursuant to this Lease shall bear interest from the date due thereof until
payment is received by Tenant at the Applicable Rate. Any payments made by
Landlord or Tenant to the other hereunder shall not be deemed a waiver by such
party of any rights against the other party.
(f) Tenant recognizes that late payment of any Rent will result in
administrative and other expense to Landlord. Therefore, other remedies for
nonpayment of Rent notwithstanding, (i) in the event any installment of Annual
Basic Rent is not received by Landlord on or before the fifth (5th) day of the
month for which it is due, and such amount shall remain unpaid for more than
five (5) days after Tenant's receipt of written notice that such amount is past
due, then Tenant shall pay to Landlord a late charge equal to two and one half
(2 1/2%) percent of the past due installment of Annual Basic Rent, and (ii) in
the event any payment of Excess Basic Rent, if
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any, or Additional Rent is not received by Landlord within five (5) days after
Tenant's receipt of written notice that such amount is past due, then Tenant
shall pay to Landlord an additional charge in an amount equal to the lesser of
Two Thousand Five Hundred Dollars ($2,500.00) or one percent (1%) of the overdue
amount. Any notice of overdue payment for which Tenant shall be subject to a
late charge shall state, in all capital letters (or other prominent display),
that Tenant's failure to remit payment by the appointed date shall result in the
imposition of a late charge. Landlord may not send any such notice of overdue
payment to Tenant prior to the fifth (5th) day following the date such payment
is due, and if any such premature notice is sent, it shall be deemed to have
been sent on the fifth (5th) day following the date such payment was due.
Notwithstanding the foregoing, Tenant shall not be obligated to pay a late
charge on installments of Rent to the extent properly abated or set-off by
Tenant pursuant to an express right to do so as set forth in this Lease or to
the extent that Tenant's payment is deficient by an amount that is less than or
equal to one (1%) percent of the total amount due; provided that Tenant shall
remit the amount of the deficiency promptly upon and, in any extent, within five
(5) business days following Tenant's receipt of written notice from Landlord
that the same is past due. All additional charges described herein are not
intended as a penalty, but are intended to liquidate the damages so occasioned
to Landlord and to reimburse Landlord for Landlord's additional costs in
processing such late payment, which amounts shall be added to the Rent then due.
(g) Rent received by Landlord shall be applied by Landlord in the following
order: (i) Annual Basic Rent, (ii) Tenant's Operating Expense Share, (iii)
Tenant's Tax Share, (iv) Excess Basic Rent, if any, (v) Above Standard Services
Rent and (vi) to any remaining items of Rent that are due and unpaid. Subject to
the foregoing limitations, Tenant may, by written notice to Landlord with any
Rent payment, direct how Rent is to be allocated among one or more Projects.
(h) In those instances for which the right of offset is expressly provided,
Tenant shall be entitled to offset against Rent next coming due any amounts that
are owed or payable by Landlord to Tenant under or pursuant to the terms of this
Lease as expressed in Article XIII.
2.2 Operating Expenses.
(a) During each month of the Term of this Lease, on the same date that
Annual Basic Rent is due, Tenant shall pay to Landlord, as Additional Rent, an
amount equal to one-twelfth (1/12) of the annual cost of Tenant's Occupancy
Percentage of the Operating Expenses for the Projects as hereinafter provided
(the amount so payable by Tenant, "Tenant's Operating Expense Share"). Tenant
agrees the amount of Operating Expenses may be estimated by Landlord for the
upcoming calendar year. Landlord reserves the right to reasonably re-estimate
Operating Expenses (and Tenant's monthly installments of Tenant's Operating
Expense Share on account thereof) up to one (1) time each calendar year;
provided that any re-estimation made during the course of any calendar year for
purposes of adjusting Tenant's monthly installments falling due during the same
calendar year shall be made on not less than ninety (90) days' prior notice to
Tenant, which notice shall include documentation that evidences and supports, in
reasonable detail, the basis and need for Landlord's re-estimation of Operating
Expenses. Any overpayment or underpayment of Tenant's Operating Expense Share
shall be reconciled after the period for which estimated payments have been made
by Tenant as expressed in Section 2.2(f).
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(b) "Operating Expenses," for each calendar year, shall mean all expenses
and costs of every kind and nature (other than as set forth in Section 2.2(c))
that have accrued for a particular calendar year, as reasonably allocated by
Landlord and, except as otherwise expressly provided herein, computed in
accordance with GAAP, on an accrual basis and incurred in connection with the
servicing, repairing, maintenance and operation of the Projects during each
calendar year, including, but not limited to, the expenses and costs set forth
in items (i) through (xi) below:
(i) wages and salaries, including, without limitation, taxes,
insurance and benefits, of all persons engaged in operations, on-site
property management, maintenance or access control, as reasonably allocated
by Landlord (excluding, however, executive personnel of Landlord, senior to
the property manager, and personnel to the extent engaged in the
development and/or leasing of the Projects);
(ii) replacement costs, whether acquired or leased, of tools and
equipment and all costs of materials and supplies, to the extent used in
operations, maintenance and access control, as reasonably allocated by
Landlord;
(iii) cost of all utilities, including, but not limited to,
electricity, water, gas, steam and sewer charges, except to the extent, if
any, that the cost thereof is separately metered and billed to Tenant or
any other occupants of the Projects or recovered by Landlord (or for which
Landlord is entitled to reimbursement, even if not actually collected by
Landlord) from Tenant or any other occupants of the Projects as Above
Standard Services Rent or otherwise;
(iv) cost of repairing, maintaining and cleaning the Common Areas of
the Projects and the furniture and furnishings therein;
(v) cost of all maintenance and service agreements and the equipment
therein, including, but not limited to, access control service, window
cleaning, mechanical, electrical and plumbing service contracts, including,
without limitation, elevator maintenance, janitorial service, security,
landscaping maintenance, garbage and waste disposal;
(vi) cost of repairs and general maintenance (excluding repairs,
alterations and general maintenance to the extent covered by proceeds of
condemnation or insurance);
(vii) the cost, amortized over the useful life of the asset in
accordance with GAAP, with interest at Landlord's then prevailing borrowing
rate, of all repairs and replacements of a capital nature, structural and
non-structural, ordinary and extraordinary, foreseen and unforeseen, made
by Landlord to any Building or the Common Areas (excluding Floor Common
Area on floors not leased in whole or in part by Tenant), all to the extent
necessary to operate, repair and maintain the Projects in conformity with
the requirements of this Lease and in accordance with the accepted
principles of sound management practices (and in conformance with GAAP) as
applied to the operation, repair and maintenance of Comparable Buildings,
but excluding (aa) costs to expand the Net Rentable Area of any Project,
(bb) except as otherwise expressly
25
required by this Lease, costs to upgrade or improve the general character
or quality of any Project or (cc) for any Project when Tenant's Occupancy
Percentage is greater than thirty-five percent (35%), costs to replace (and
not repair or maintain) any major equipment or system unless approved by
Tenant in a final Budget;
(viii) the cost of all insurance premiums (a) required to be obtained
by Landlord pursuant to this Lease or (b) customarily obtained by the
owners of Comparable Buildings, including, but not limited to, the cost of
casualty and liability insurance, rental loss insurance for the Project,
insurance on Landlord's personal property located in and used in connection
with the operation of the Project and insurance covering losses resulting
from perils and acts of terrorism on terms specified in Article VI or as
otherwise specified from time to time by Landlord;
(ix) fair market management fees to the property manager for the
Project and fair market rentals for a reasonably sized management office
(if located in the Project); provided that in no event shall Operating
Expenses include any costs attributable to a Building leasing office, and
any space used for leasing and management functions shall be reasonably
allocated between leasing and management functions for purposes of the
pass-through of rental of the on-site management office;
(x) costs of Remedial Work to the Common Areas (excluding Floor Common
Areas on floors not leased in whole or in part by Tenant); provided that
Landlord shall not be permitted to include any such costs as Operating
Expenses unless (A) Landlord's failure to perform the Remedial Work
constitutes a violation of Legal Requirements, (B) Landlord is required to
perform the Remedial Work by any notice of violation, order, decree,
permit, rule or regulation issued by any Governmental Authority or (C)
Landlord's failure to perform the Remedial Work would, in Landlord's
reasonable opinion, endanger the health, safety or welfare of any person on
or about the Projects; and
(xi) HVAC service for the Common Areas (excluding Floor Common Areas
on floors not leased in whole or in part by Tenant) as reasonably
determined by Landlord using a consistently applied method of allocation.
For purposes of this Section 2.2(b), the phrase "as reasonably allocated by
Landlord" shall mean as allocated by Landlord on a reasonable and consistent
basis based upon time, square footage or other comparative measure that fairly
reflects the Project's appropriate share of such costs and in a manner that does
not result in a profit to Landlord or result in a disproportionate burden to
Tenant.
(c) Anything in the foregoing provisions hereof to the contrary
notwithstanding, Operating Expenses shall not include the following:
(i) repairs or other work occasioned by fire, windstorm or other
casualty, the costs of which are reimbursed to Landlord by insurers (or
would have been so reimbursed to Landlord if Landlord had been in full
compliance with the insurance provisions of this Lease) or by Governmental
Authorities in eminent domain or by others; provided that in
26
the event of a loss, the amount of the loss not reimbursed (including the
amount of applicable deductibles) shall be includable in Operating
Expenses;
(ii) marketing costs, leasing commissions, broker fees, legal fees,
costs and disbursements and other expenses incurred in connection with
negotiations or disputes with tenants and prospective tenants, or other
occupants of the Projects and all other legal fees, whether or not in
connection with the foregoing;
(iii) costs incurred in renovating or otherwise improving or
decorating or redecorating space for tenants or other occupants of the
Projects or vacant space in the Buildings (including, without limitation,
any allowances or inducements made to the tenants and prospective tenants
or other occupants or any costs for Remedial Work or compliance with Legal
Requirements for such tenants or such space);
(iv) except to the extent that the same are expressly provided in
Section 2.2(b), costs incurred by Landlord for alterations and replacements
and other costs incurred of a capital nature, including, without
limitation, capital improvements, capital repairs, capital equipment and
capital tools that are considered capital expenditures under GAAP;
(v) amortization (except as set forth in Section 2.2(b)(vii)) and
depreciation;
(vi) expenses in connection with providing Above Standard Services or
similar services or benefits that are not Building Standard Services to
Tenant or to any other occupants of the Projects;
(vii) costs incurred due to the violation by Landlord or any tenant or
other person (other than Tenant, its agents, employees or contractors) of
the terms and conditions of any lease or other agreement pertaining to the
Projects or of any Legal Requirement;
(viii) fines or penalties incurred due to the Projects being in
violation of Legal Requirements;
(ix) costs incurred due to acts of any tenant causing an increase in
the rate of insurance on the Building or its contents;
(x) overhead and profit increment and other fees (including without
limitation management fees or rental for a management office) paid to
Landlord or subsidiaries or affiliates of Landlord or its partners for
services on or to the Project, to the extent that the costs of such
services exceed competitive costs for such services rendered by persons or
entities of similar skill, competence and experience, other than Affiliates
of Landlord;
(xi) property management fees at any Project in excess of two and
one-half percent (2.5%) of Gross Revenues for such Project; except that for
all Tenant Managed Projects, all property management fees shall be excluded
from Operating Expenses, and, in lieu thereof, (A) Tenant shall be solely
responsible for paying the property management fees due the Tenant
Designated Submanager and (B) Tenant shall pay Landlord a property
management fee equal to one percent (1%) of Gross Revenue for
27
such Tenant Managed Project that is paid by Tenant minus one and one-half
percent (1.5%) of Gross Revenue, if any, for such Tenant Managed Project
that is paid by non-Tenant sources;
(xii) principal, points, fees and interest on any debt;
(xiii) rental under any ground or underlying lease or leases hereafter
entered into by Landlord, except for rentals under leases for Parking Areas
or other Common Area facilities that are made available for Tenant's use
and are, in fact, used by Tenant;
(xiv) Landlord's general overhead and administration expenses;
(xv) any compensation paid to clerks, attendants or other persons in
commercial concessions operated for profit by Landlord;
(xvi) any cost or expense to the extent Landlord is entitled to
payment or reimbursement from any tenant (including Tenant), insurer or
other person (other than through payment of its proportionate share of
Operating Expenses) or for which any tenant (including Tenant) pays third
persons;
(xvii) costs incurred in installing, operating and maintaining any
specialty facility such as an observatory, broadcasting facilities (other
than the Building's music system, life support and security system), and to
the extent not available to Tenant (or, if available to Tenant, Tenant
nevertheless elects not to (and does not) utilize the same), the costs of
any luncheon club, athletic or recreational club or facility, net of
revenues generated thereby;
(xviii) any expenses in connection with on-site parking areas (or
off-site parking areas available to tenants of the Building), except to the
extent, if any, that such expenses exceed all income in connection with
such parking areas;
(xix) any fines, penalties, legal judgments or settlements or causes
of action by or against Landlord; and
(xx) Real Estate Taxes and any fines, penalties or interest payable in
connection therewith.
(d) Landlord shall use its reasonable efforts to make payments on account
of Operating Expenses in a time and manner to obtain the appropriate discounts
or rebates available. Landlord shall operate the Projects in an efficient manner
and exercise reasonable efforts to minimize Operating Expenses consistent with
maintaining services at a level consistent with Comparable Buildings. In
addition, with respect to janitorial services for the Leased Premises only,
Tenant shall have the right, upon sixty (60) days written notice to Landlord, to
separately contract for such services. If Tenant makes such election, Operating
Expenses shall exclude the cost of providing janitorial services to other
tenants and occupants of the Building and all other portions of the Project
(except for Common Areas) during the period of time that Tenant separately
contracts for its own janitorial services, and the calculation of Tenant's
28
Operating Expense Share shall be adjusted so that Tenant receives the benefit of
an appropriate credit for its payment of janitorial expenses allocable to its
Leased Premises.
(e) In the event any Project is not one hundred percent (100%) occupied
during any year, appropriate adjustments shall be made (on a consistent basis
from Lease Year to Lease Year) to those components of Operating Expenses which
vary with Building occupancy, so as to calculate Operating Expenses as though
the Building had been one hundred percent (100%) occupied in such year. The
percentage of Building occupancy during any Lease Year shall be determined (on a
Project by Project basis) by adding together the total leased space on the first
day of each month during such year and dividing by twelve (12). The foregoing
notwithstanding, Landlord shall not recover from Tenant and other tenants of any
Project an amount in excess of one hundred percent (100%) of the total Operating
Expenses paid or incurred by Landlord with respect to such Project.
(f) Within one hundred twenty (120) days after the end of each calendar
year during the Term or as soon thereafter as possible in the exercise of
reasonable diligence, Landlord shall provide Tenant a statement (the "Operating
Expense Statement") prepared by Landlord showing Operating Expenses for such
calendar year broken down by component expenses, in reasonable detail, and
calculating Tenant's Operating Expense Share for the applicable year and the
prior year. The Operating Expense Statement shall be certified by Landlord's
group controller or other officer knowledgeable of the facts certified to
therein that, to the best of his or her knowledge, the Operating Expense
Statement has been prepared in accordance with the definitions and provisions
pertaining to Operating Expenses contained in this Lease. In the event that an
Operating Expense Statement indicates that Tenant owes Landlord additional
amounts on account of Tenant's Operating Expense Share for said calendar year,
Tenant shall pay the amount due within thirty (30) days after delivery of the
Operating Expense Statement. Notwithstanding any other provision of this Lease,
Landlord shall be estopped from amending, and hereby waives the right to amend,
any Operating Expense Statement not amended by Landlord within three (3) years
after the end of the calendar year to which said Operating Expense Statement
applies, nor shall Landlord have the right through any other procedures or
mechanism to collect any Operating Expense not included on the pertinent
Operating Expense Statement after the third anniversary of the last day of the
calendar year to which said Operating Expense Statement applies, unless before
said third anniversary Landlord has delivered to Tenant a revised Operating
Expense Statement reflecting such revised Operating Expense (with a reasonably
detailed explanation of the reasons for any such revision) and made a written
demand for payment of said Operating Expense.
(g) Any Operating Expense Statement or other notice from Landlord pursuant
to this Section 2.2 shall be subject to Tenant's rights of review and audit set
forth in Section 2.4. Pending the resolution of any dispute, however, Tenant
shall make payments in accordance with said Operating Expense Statement or other
notice.
2.3 Real Estate Taxes.
(a) Tenant shall pay to Landlord, as Additional Rent, an amount equal to
Tenant's Occupancy Percentage of Real Estate Taxes for each Project that become
due and payable during the Term of this Lease as hereinafter provided. Landlord
shall deliver to Tenant a copy of each
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Real Estate Tax invoice received by Landlord, together with a written statement
("Tax Statement") setting forth (i) the amount of the Real Estate Taxes set
forth on the invoice, (ii) the Project for which such Real Estate Taxes relate
and (iii) Tenant's Occupancy Percentage of such Real Estate Taxes, prorated on a
per diem basis if only a part of the period for which such Real Estate Taxes
relate falls within the Term of this Lease and, with respect to Real Estate
Taxes for which a discount is available for early payment, discounted to reflect
the greatest possible discount available to Landlord for such early payment,
regardless of when such taxes are actually paid and regardless of whether
Landlord actually obtains a discount for early payment (the amount so payable by
Tenant with respect to each such invoice and in the aggregate, as applicable,
"Tenant's Tax Share"). Tenant shall pay Tenant's Tax Share to Landlord within
thirty (30) days following Tenant's receipt of the Tax Statement evidencing
same.
(b) "Real Estate Taxes" shall mean all real estate taxes, assessments and
other governmental levies and charges, general and special, ordinary or
extraordinary, of any kind and nature (including any interest on such
assessments whenever the same are permitted to be paid in installments) which
may presently or hereafter be imposed, levied, assessed or confirmed by any
lawful taxing authorities which may become due and payable out of or for, or
which may become a lien or charge upon or against the whole, or any part, of the
Projects, including, without limitation, taxes imposed on (i) the gross rents or
gross receipts (but not the net income) of the Projects and (ii) personal
property in the Projects owned by Landlord and used in connection with the
Projects, but only to the extent that the same would be payable if the Projects
were the only property of Landlord. If at any time during the Term the present
system of ad valorem taxation of real property is changed or supplemented so
that in lieu of or in addition to the ad valorem tax on real property there
shall be assessed on Landlord or the Projects any tax of any nature that is
imposed in whole or in part, in substitution for, addition to, or in lieu of any
tax that would otherwise constitute a Real Estate Tax, such tax shall be
included within the term "Real Estate Taxes," but only to the extent that the
same would be payable if the Projects were the only property of Landlord. Such
taxes may include, but shall not be limited to, a capital levy or other tax on
the gross rents or gross receipts (but not the net income) of the Projects or
similar tax, assessment, levy or charge measured by or based, in whole or in
part, upon any such gross rents or gross receipts. There shall be excluded from
Real Estate Taxes (i) any realty transfer or similar taxes imposed on Landlord,
(ii) taxes and assessments attributable to the personal property of other
tenants, (iii) federal, state and local taxes on income, (iv) death taxes, (v)
franchise taxes and (vi) any taxes (but not including ad valorem property taxes)
imposed or measured on or by the net income of Landlord from the operation of
the Project or imposed in connection with any change of ownership of the
Project. In no event shall Real Estate Taxes be included on the amount, if any,
by which the value of leasehold improvements of any other tenant of the Building
hereafter made (or leasehold improvements already existing and separately
charged as an expense to be paid by such tenant) exceed the value of leasehold
improvements generally found in the Building. In the case of Real Estate Taxes
that may be paid in installments, only the amount of each installment accruing
during a calendar year shall be included in Real Estate Taxes during each
calendar year.
(c) At Tenant's request so long as Tenant's Occupancy Percentage at a
Project is at least thirty-five percent (35%), Landlord shall contest or appeal
the validity or amount of Real Estate Taxes for such Project by appropriate
proceedings. Landlord may also contest or appeal the validity or amount of Real
Estate Taxes for any Project on Landlord's own initiative. Tenant
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shall pay as Additional Rent Tenant's Occupancy Percentage of Landlord's
reasonable, out of pocket expenses incurred in any such appeal. Real Estate
Taxes with respect to a Project that is the subject of an appeal filed by or on
behalf of Landlord shall be paid on the basis of the amount reflected in the tax
xxxx and shall not be adjusted until the final determination of the appeal.
Within thirty (30) days following such final determination, Landlord will refund
to Tenant, or Tenant shall pay to Landlord, as applicable, the difference, if
any, between Tenant's Tax Share payments previously made by Tenant and the
finally determined amount of Tenant's Tax Share.
(d) Any Tax Statement or other notice from Landlord pursuant to this
Section 2.3 shall be subject to Tenant's rights of review and audit set forth in
Section 2.4. Pending the resolution of any dispute, however, Tenant shall make
payments in accordance with said Tax Statement or other notice.
2.4 Budget; Audit Rights.
(a) On or before June 1 of each calendar year during the Term of this
Lease, Landlord shall deliver to Tenant for Tenant's review and comment, a
written estimate in reasonable detail of the projected budget for Operating
Expenses and Real Estate Taxes for each Project for the next succeeding calendar
year (the "Budget"). The Budget shall show (i) the estimated amount of Operating
Expenses, Tenant's Operating Expense Share, Real Estate Taxes and Tenant's Tax
Share for each Project, for the next succeeding calendar year, (ii) the
estimated amount for each major category of expense that is expected to be
included in Operating Expenses for each Project during the next succeeding
calendar year, including, without limitation, on a Project by Project basis, any
items that constitute capital expenditures in accordance with this Lease and the
amount thereof to be amortized during such calendar year, (iii) the estimated
rates to be charged by Landlord for Above Standard Services for each Project for
which Tenant has requested the same during the next succeeding calendar year and
(iv) the actual amounts for all such items for the prior calendar year. It is
understood and agreed by Landlord and Tenant that the Operating Expenses and
Real Estate Taxes in the Budget shall be estimated on a reasonable good faith
basis taking into consideration, among other things, the actual Operating
Expenses and Real Estate Taxes for the then current calendar year, a good faith
estimate of the rate of cost increases during the then current calendar year,
the actual known prospective increases to each item in the Budget and a good
faith estimate for contingencies for the next succeeding calendar year. Tenant
may disapprove a portion of a proposed Budget only if such portion of the Budget
fails to reflect the reasonable and necessary Operating Expenses and Real Estate
Taxes to operate, repair and maintain the Projects in conformity with the
requirements of this Lease and in accordance with the accepted principles of
sound management practices as applied to the operation, repair and maintenance
of Comparable Buildings; provided that for any Project when Tenant's Occupancy
Percentage is greater than thirty-five percent (35%), (i) Tenant may disapprove
Landlord's decision to replace (and not repair or maintain) any major equipment
or system unless Landlord establishes, by certification of a qualified engineer
for whom Tenant has no reasonable objection, that the equipment or system in
question is beyond its useful life and that continued repair or maintenance (and
not replacement) is not commercially practicable and (ii) Tenant may require
Landlord to replace (and not repair or maintain) any major equipment or system
if Tenant establishes, by certification of a qualified engineer for whom
Landlord has no reasonable objection, that the equipment or system in question
is beyond its useful life and that continued repair or maintenance (and not
replacement) is not commercially practicable. If Tenant
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disapproves a portion of a proposed Budget, Tenant shall so notify Landlord in
writing, which notification shall state, in reasonable detail, the item or items
of the proposed Budget disapproved by Tenant and the basis for such disapproval.
Landlord and Tenant shall negotiate in good faith to resolve any differences
concerning any proposed Budget. Landlord shall deliver to Tenant the proposed
final Budget for the next succeeding calendar year and the calculation of
Tenant's Occupancy Percentage thereof on or before July 15 of each calendar
year; provided that if Tenant fails to approve a proposed Budget on or before
July 1 of a preceding calendar year, and if the parties have been unsuccessful
in their efforts to resolve any disagreements, either Landlord or Tenant may at
any time thereafter submit the Budget for the next calendar year (or any portion
thereof) to dispute resolution in accordance with the provisions of Article XII
of this Lease, and, in such event, Landlord shall deliver the final Budget to
Tenant within thirty (30) days following the completion of the dispute
resolution process. Notwithstanding the foregoing, (i) if the dispute resolution
process regarding the Budget is not completed by January 1 of the calendar year
to which such proposed Budget relates, then (A) the costs set forth on the
proposed Budget shall be used for all items not the subject of a dispute, and
(B) to the extent applicable, the prior year's budgeted costs shall be used for
all items of a proposed Budget that are the subject of a dispute and (ii) in the
event that the actual Operating Expenses or Real Estate Taxes incurred by
Landlord during a calendar year exceed Landlord's estimated Operating Expenses
and Real Estate Taxes (including contingencies) for such year as set forth on an
approved Budget, Landlord may prepare and submit a revised Budget to Tenant for
Tenant's review and approval (but not more frequently than once during any
calendar year). Upon completion of the dispute resolution process, the new
year's Budget shall be correspondingly adjusted and Tenant's monthly payment of
Tenant's Operating Expense Share shall likewise be adjusted.
(b) Tenant, at Tenant's sole cost and expense, shall have the right, to be
exercised by notice given to Landlord within three (3) years after receipt of an
Operating Expense Statement, Tax Statement or other invoice, to audit and/or
inspect that portion of Landlord's books and records pertaining to such
Operating Expenses, Real Estate Taxes or other components of Additional Rent, as
applicable, for such calendar year; provided such audit and/or inspection
commences within ninety (90) days after Tenant's notice to Landlord and
thereafter proceeds reasonably to conclusion, and further provided that Tenant
may audit any single year only once unless Landlord has subsequently made
revisions to any Operating Expense Statement, Tax Statement or other components
of Additional Rent that impact Tenant's Operating Expense Share, Tenant's Tax
Share or other Additional Rent payment. Tenant may conduct such audit and/or
inspection of Landlord's books with Tenant's own employees, or through an
accountant or other agent selected by Tenant, or both in combination. Tenant
shall require any accountant or agent selected by Tenant to conduct or assist in
such audit and/or inspection to execute and deliver to Landlord a
confidentiality agreement substantially in the form attached hereto as Exhibit
C. Landlord agrees to cooperate in good faith with Tenant in the conduct of any
such audit and/or inspection, and to make Landlord's books and records of and
relating to Operating Expenses, Real Estate Taxes or other components of
Additional Rent, as applicable, available to Tenant or Tenant's agents at one
(1) single location. If Tenant's audit and/or inspection shows that Landlord's
calculation of Tenant's Operating Expense Share, Tenant's Tax Share or other
components of Additional Rent for the audited/inspected calendar year or years
(which shall in no event be prior to the two (2) calendar years immediately
preceding the most recently completed calendar year) was overstated by more than
four percent (4%) with respect to any Project, then Landlord shall pay, within
thirty (30) days after Tenant's request, Tenant's actual
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reasonable audit/inspection out-of-pocket fees applicable to the
audit/inspection of said calendar year statements for such Project. Upon
completion of the audit and/or inspection, if the calculation of Tenant's
Operating Expense Share, Tenant's Tax Share or other components of Additional
Rent indicates that Tenant overpaid Rent for any audited calendar year, Landlord
shall pay Tenant (in the form of a credit against Rent next due or, upon
expiration of this Lease, in the form of Landlord's check within thirty (30)
days after the completion of such audit and/or inspection) an amount equal to
such overpayment. In the event of any such audit or inspection, Landlord shall
cause the books and records to be made available during such normal business
hours as are prescribed by Landlord at Landlord's headquarters or main office,
which shall be located in the continental United States. In any case, should
Landlord disagree with the results of Tenant's audit, Landlord and Tenant shall
refer the matter to a mutually acceptable independent certified public
accountant, who shall work in good faith with Landlord and Tenant to resolve the
discrepancy. The fees and costs of such independent accountant to which such
dispute is referred shall be borne by the unsuccessful party and shall be shared
pro rata to the extent each party is unsuccessful as determined by such
independent certified public accountant, whose decision shall be final and
binding.
ARTICLE III
BUILDING SERVICES, IDENTITY, SIGNAGE, AND MANAGEMENT
3.1 Building Standard and Above Standard Services. During the Term, Landlord
shall furnish the following services to Tenant:
(a) Building Standard Services. Landlord shall furnish the following
services to Tenant during the Term ("Building Standard Services"), all of which
shall comply with and shall be subject to Legal Requirements and, except as
expressly provided to the contrary in this Section 3.1(a) or in any Lease
Supplement, shall be equal to or exceed services customarily provided for
Comparable Buildings:
(i) At all times, hot (i.e., thermostat set in the range of
105(degree) to 110(degree) Fahrenheit for comfort and energy conservation
purposes but with the capability to produce hot water for specified
purposes at 140(degree) Fahrenheit if requested by Tenant) and cold
domestic water in all restrooms, drinking fountains, kitchen and pantry
areas within the Leased Premises and all common use restrooms, kitchen and
pantry areas at locations provided for general use;
(ii) During Building Operating Hours, HVAC sufficient to maintain
temperatures that are reasonably required for comfortable use and occupancy
of all portions of the Leased Premises designed for occupancy by persons;
provided that Landlord shall have the right, but not the obligation, at
Landlord's sole cost and expense, to install and operate such utility
submeters as Landlord deems necessary to measure utility demand and usage
within and outside the Leased Premises (and, in such event, (A) Tenant
shall pay Tenant's allocable share of any such submetered costs as
Additional Rent at Landlord's actual cost of providing the same, without
xxxx-up and reflecting the largest possible bulk-purchase or other
discounts available to Landlord from the utility provider and (B) all such
submetered utility costs shall be excluded from Operating Expenses as
provided in Section 2.2(b)(iii));
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(iii) Electric lighting service for all Common Areas, including,
without limitation, the Parking Areas, in conformity with the practices for
each Project on the Commencement Date as set forth in the applicable Lease
Supplement;
(iv) Janitorial service to the Leased Premises in conformity with the
janitorial specifications for each Project as set forth in the applicable
Lease Supplement;
(v) Access control services for the Projects and the Buildings
providing Tenant and its employees access to the Leased Premises and the
Common Areas at all times; provided that Tenant shall have the right, at
Tenant's sole cost and expense, to install and operate such additional
access control systems as it shall determine desirable for the purpose of
limiting access to or within the Leased Premises, so long as any additional
access control systems installed by Tenant are monitored and maintained by
Tenant at Tenant's sole expense;
(vi) At all times, dedicated electrical capacity, transformed to a
panel box located in the core of each floor of the Leased Premises or to
the location of the panel boxes servicing the Leased Premises on the
Commencement Date, in an amount not less than the dedicated capacity
available to the Leased Premises on the Commencement Date; provided that
Landlord shall have the right, but not the obligation, at Landlord's sole
cost and expense, to install and operate such utility submeters as Landlord
deems necessary to measure utility demand and usage within and outside the
Leased Premises (and, in such event, (A) Tenant shall pay Tenant's
allocable share of any such submetered costs as Additional Rent at
Landlord's actual cost of providing the same, without xxxx-up and
reflecting the largest possible bulk-purchase or other discounts available
to Landlord from the utility provider and (B) all such submetered utility
costs shall be excluded from Operating Expenses as provided in Section
2.2(b)(iii));
(vii) Security for the Projects, Buildings and Common Areas,
including, without limitation, any Parking Areas, substantially similar to
the security services existing immediately prior to the Commencement Date;
provided that Tenant is solely responsible for compliance with all Legal
Requirements in effect from time to time pertaining to banking security
systems, devices, services, equipment and procedures for the Leased
Premises and that Landlord shall have no responsibility or liability
therefor.
(viii) All bulb replacement in all Common Areas and Building Standard
bulb replacement in the Leased Premises, it being understood that
replacement of all fluorescent, incandescent, halogen and other types of
bulbs in all fixtures existing in the Leased Premises as of the
Commencement Date shall be deemed to be Building Standard and that Landlord
shall not be obligated to replace any bulbs in Tenant's furniture or
furnishings in the Leased Premises;
(ix) At all times, elevator cab passenger service to the Leased
Premises, subject to temporary cessation for ordinary repair and
maintenance (but as to each floor of the Leased Premises, such temporary
cessation for ordinary repair and maintenance shall not occur
simultaneously for all passenger cabs serving such floor), and to security
measures or other means of controlling access imposed by Landlord after
Building
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Operating Hours, on Holidays and during times when life safety systems
override normal building operating systems;
(x) Maintenance and cleaning of the Projects, Building and Common
Areas, including, without limitation, the Common Areas on each floor of the
Building on which any part of the Leased Premises are situated, the Parking
Areas and all exterior landscaped areas in and around the Project;
(xi) During Building Operating Hours, shared access to and use of, in
common with Landlord and other tenants of the Building, a loading dock
facility for the Building (if and to the extent that such facility exists
on the Commencement Date), subject to such reasonable rules and regulations
as are promulgated by Landlord from time to time pursuant to Section 4.4;
(xii) At all times, sanitary sewer service to the Leased Premises and
Common Areas facilities; and
(xiii) Trash removal from the Project at designated locations.
All costs incurred by Landlord in connection with providing Building Standard
Services shall be included in Operating Expenses.
The foregoing provisions of this Section 3.1(a) notwithstanding, the enumeration
of particular building services is not a representation or agreement by Landlord
that each Building Standard Service is available in specific quantities or
amounts, or to particular standards or specifications at each Project. Landlord
and Tenant acknowledge that Tenant owned and operated each of the Projects prior
to the Commencement Date and Tenant is fully aware of the capabilities and
limitations of the Building systems. Nothing herein shall be deemed to be a
covenant or agreement of Landlord, or a representation or warranty of Landlord,
express or implied, that Landlord shall improve the performance of existing
Project systems. With respect to the Building Standard Services referenced in
Section 3.1(a)(i), (ii), (v) and (ix), Landlord shall furnish such services in
such quantities and at such levels that are at least equal to the quantities and
levels being furnished at each Project immediately prior to the Commencement
Date, with Tenant acknowledging and agreeing that Landlord shall not be required
to provide during the Term greater quantities or higher levels of service than
is capable of being provided with the machinery, equipment and systems that
existed immediately prior to the Commencement Date and that Landlord has no
obligation to replace or improve such machinery, equipment or systems other than
in the ordinary course as may be consistent with sound building management
practices or as required by Section 5.5.
(b) If Tenant requires electrical energy for use in the Leased Premises in
excess of the capacities described in Section 3.1(a)(vi), and if electric energy
for such additional requirements is available to Landlord, Landlord shall, upon
Tenant's request and at Tenant's sole cost and expense, furnish and install such
additional wires, risers, conduits, feeders, switchboards and circuit panels as
reasonably may be required to supply such additional requirements of Tenant. If
any portions of the Leased Premises or any of Tenant's electrical equipment
requires HVAC service in excess of Building Standard HVAC service, the same
shall be installed, or the
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installation supervised by Landlord, on Tenant's behalf, and Tenant shall pay
all design, installation, submetering, repair, maintenance, replacement and
operating costs relating thereto, unless such HVAC service is used in common
with other tenants of the Building, in which event such costs shall be
reasonably allocated by Landlord among Tenant and such other tenants. The
location and specifications of any such supplemental HVAC units shall be subject
to Landlord's prior written approval, which approval may not be unreasonably
withheld or delayed. In connection with the operation of any supplemental HVAC
units serving the Leased Premises, to the extent a particular Project shall have
available chilled water capacity, during Building Operating Hours Tenant may use
such available chilled water for said supplemental HVAC units, and Landlord
shall not charge Tenant for such service. If Tenant shall require chilled water
service in amounts not otherwise available or during other than Building
Operating Hours, Tenant shall pay Landlord for the cost of providing such
services as Above Standard Services Rent.
(c) If and to the extent requested by Tenant from time to time and to the
extent the same are reasonably available, Landlord shall provide Tenant with
services in excess of Building Standard Services as described in Section 3.1(a)
("Above Standard Services"). All of the costs incurred by Landlord in connection
with providing any special Tenant services shall be paid by Tenant as Above
Standard Services Rent, including costs that would not have been incurred but
for Tenant's request for Above Standard Services. Landlord's charges for Above
Standard Services shall be established and revised from time to time by Landlord
on a Project by Project basis; provided that at no time shall Landlord's charges
for Above Standard Services exceed Landlord's actual out-of-pocket costs, nor
shall Landlord (i) include any overhead or profit in the calculation of Above
Standard Services costs or (ii) charge Tenant at a higher rate for Above
Standard Services than Landlord charges any other tenant of a Building for
comparable services. All amounts collected by Landlord from Tenant and any other
party to provide Above Standard Services or similar services shall be used to
reduce Operating Expenses to the extent that the cost of providing the same were
included in the calculation of Operating Expenses.
(d) Landlord shall furnish Tenant at least twenty four (24) hours prior
written notice of any non-emergency suspension or interruption in the Building
Standard Services scheduled by Landlord for routine repairs or maintenance;
provided that if such suspension or interruption will render the Common Areas or
the Leased Premises inaccessible, without electric power, without cold domestic
water or sanitary sewer service or otherwise untenantable in the ordinary
course, Landlord shall endeavor to provide Tenant with not less than ninety (90)
days' prior notice thereof.
(e) To the extent the services described in this Section 3.1 require
electricity, water or other utility services supplied by public utilities,
Landlord shall not be deemed to be in breach of Landlord's covenants hereunder
because of the failure of a public utility to supply the required services so
long as Landlord uses reasonable efforts to cause the applicable public
utilities to furnish the same. Except as expressly provided in Section 3.1,
failure by Landlord to furnish the services described in this Section 3.1, or
any cessation thereof for reasons beyond Landlord's control, 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
and except as otherwise provided below, should any of the equipment or
machinery, for any cause, fail to
36
operate or function properly, Tenant shall have no claim for a rebate of Rent or
for damages on account of any interruption in services occasioned thereby or
resulting therefrom so long as Landlord uses reasonable efforts to promptly
repair said equipment or machinery and to restore said services.
(f) Notwithstanding the foregoing, in the event Landlord fails to provide
any of the services Landlord is obligated to provide under this Lease, and if
such failure adversely impacts Tenant's use or enjoyment of the Leased Premises
or any portion thereof (and Tenant actually ceases to use the affected area for
business operations), and if such failure of Landlord to provide services
continues for more than three (3) consecutive business days after written notice
from Tenant to Landlord and all Notice Parties for any reason (except due to
Force Majeure Events or gross negligence or willful misconduct of Tenant or
Tenant's agents, employees or contractors) (any such failure, a "Service
Failure"), then all Rent due under this Lease for the affected portion of the
Leased Premises at the affected Project or Projects shall be abated for the
entire duration of the Service Failure. In addition to Tenant's foregoing
rights, Tenant shall have the right, but not the obligation, to cure Services
Failure in the manner expressed in Section 7.1(f) and to recover the reasonable
cost thereof from Landlord as expressed in Article XIII.
3.2 Keys and Locks. Tenant currently possesses keys and/or access cards, as
applicable, for each lockset on doors entering the Leased Premises from public
areas for use by its current employees maintaining offices in the Leased
Premises. Additional keys and/or access cards, including without limitation keys
and/or access cards for new employees of Tenant and replacement keys and/or
access cards for lost or damaged keys and/or access cards will be furnished by
Landlord upon an order signed by Tenant and at Tenant's sole cost and expense.
Tenant shall be permitted to install additional locks or other access control
devices in the Leased Premises provided Tenant furnishes Landlord with a
duplicate set of keys or a master key and/or access cards to all such locks
other than those locks securing Security Areas. Upon termination of this Lease,
Tenant shall surrender to Landlord all keys and/or access cards to any locks on
doors entering or within the Leased Premises, and shall provide Landlord with
the combination of all locks for safes, safe cabinets and vault doors, if any,
within the Leased Premises; provided that if Tenant terminates this Lease with
respect to less than all of the Leased Premises at a Project and, at the time of
such termination, the Leased Premises was served by an access control or other
security system installed by Tenant in lieu of or in addition to the access
control or security systems serving the Building generally, Tenant shall have no
obligation to cause the terminated portion of the Leased Premises to continue to
be served by any such supplemental access control or security systems.
3.3 Graphics and Building Directory.
(a) On any full floor of the Leased Premises, and at each location within
any Project where Tenant maintains such signage as of the Commencement Date,
Tenant may, using Tenant's standard corporate signage and graphics (as Tenant
may change its standard corporate signage and graphics from time to time)
install and maintain on or adjacent to entrances to the Leased Premises Tenant's
name, numerals and/or logo designating the appropriate suite numbers and
departments occupying such floor.
(b) If the lobby of any Building contained a building directory on the
Commencement Date, or if Landlord elects to install or construct a building
directory in the lobby of the Building
37
at any time, then such building directory board shall contain a listing of
Tenant's name and such other information as Tenant shall reasonably require
(including, at Tenant's option, the names of all of Tenant's businesses, related
entities, assignees, sublessees, and senior management), and Tenant shall be
entitled to Tenant's Occupancy Percentage, from time-to-time, of the space
contained in such directory, which listings shall be installed by Landlord at
Tenant's expense.
3.4 Building Identity; Signage; Exclusivity.
(a) During the Term of this Lease, for so long as the herein named Tenant,
or its Affiliates, shall remain in possession of at least five percent (5%) of
the Net Rentable Area of a Project, or shall continue to operate a retail bank
at such location, neither the Building name (if such Building is named for the
herein named Tenant as of the Commencement Date), nor Tenant's exterior building
signage (at all Projects) may be changed by Landlord without Tenant's consent,
which consent may be withheld in Tenant's sole and absolute discretion. If a
Project is named for the herein named Tenant as of the Commencement Date and
during the Term hereof Tenant's corporate name, identity or logo is changed;
provided that the herein named Tenant, or its Affiliates, shall remain in
possession of not less than five percent (5%) of the net Rentable Area of a
Project, or shall continue to operate a retail bank at such location, Tenant
shall have the right, upon ninety (90) days prior written notice to Landlord, to
change the name of the Building (and/or any Building signage containing such
prior name or logo) to include the herein named Tenant's new corporate name,
identity, or logo; provided that Tenant shall pay for all signage costs and all
of Landlord's other out-of-pocket costs associated with the removal of the old,
and installation of the new, signage, and further provided that such new signage
shall satisfy all applicable Legal Requirements and shall have been approved in
advance by Landlord, such approval not to be unreasonably withheld or delayed.
In addition, at any time during or after the Term of this Lease Tenant shall
have the right, in its sole and absolute discretion, upon ninety (90) days prior
written notice to Landlord, to require Landlord to change the name of any
Project so as to remove Tenant's identity therefrom; provided that Tenant shall
pay for the cost of removing Tenant's name from all Building signage. Tenant
shall repair any damage to the interior or exterior of the Buildings caused by
Tenant's installation, maintenance, use, relocation or removal of signage;
provided that Tenant shall not be obligated to repair any damage to the interior
or exterior of the Building caused by the removal of signage so long as Tenant,
at Tenant's sole cost and expense, patches any holes or covers over (by sign
blanks of similar size, shape and general appearance) such signage areas on the
facades of the Buildings and on and in the other interior and exterior Common
Areas.
(b) During the Term of this Lease, for so long as the herein named Tenant,
or its Affiliates, shall remain in possession of office space or shall continue
to operate a retail bank at such location (i) Landlord may not remove or alter
any Tenant signage or graphics existent on the Commencement Date (other than
interior signage or graphics on floors no longer leased, in whole or in part, by
Tenant) and (ii) the Project shall not be named for any other Building tenant.
(c) During the Term of this Lease, for so long as the herein named Tenant,
or its Affiliates, shall remain in possession of at least thirty-five percent
(35%) of the Net Rentable Area of a Project, or shall continue to operate a
retail bank at such location, Landlord will not allow any portion of the Project
(other than the portion of the Project then leased to Tenant) to be used for any
retail banking or savings and loan, without Tenant's prior written consent,
which
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consent may be withheld in Tenant's sole and absolute discretion. For purposes
of this Agreement, banking and savings and loan shall mean any retail banking
use or purpose, which shall include, but not be limited to, receiving deposits
or making loans to the general public, whether done by a state bank, national
bank, savings and loan association, trust company, credit union, mortgage broker
or company, or other entity, whether by walk-up, drive-in teller facility or
otherwise. If Landlord shall intend to lease space to any other bank or savings
and loan for the operation of a retail banking or savings and loan at a time
when the herein named Tenant, or its Affiliates, shall occupy less than
thirty-five percent (35%) of the Net Rentable Area of a Project, and shall not
operate a retail banking facility at the Building, Landlord shall advise Tenant
of Landlord's intentions, and Tenant shall have the right, exercisable by notice
in writing to Landlord within twenty (20) days following Landlord's notice to
Tenant, to re-lease and re-occupy the retail banking location at the Building at
the Rent last payable in respect of such Leased Premises, failing which Landlord
may proceed with Landlord's lease as proposed.
(d) During the term of this Lease, Tenant shall have the right, at Tenant's
expense, to erect and maintain such exterior building signage displaying the
corporate name, identity or logo of the herein named Tenant, or its Affiliates,
as Tenant may from time to time desire, including, without limitation, monument
signage at up to two (2) corners of the Land, and, in such event, Tenant will
have the exclusive right to place signage on any such monuments so erected by
Tenant, subject to Landlord's approval, which approval shall not be unreasonably
withheld or delayed. In connection with its installation, repair, maintenance
and removal of any exterior or monument signage, Tenant, at Tenant's sole cost
and expense, shall comply with all Legal Requirements.
(e) Tenant's retail banking exclusivity rights as described above at
Section 3.4(c) also includes the exclusive right to place ATMs in the Building,
including all exterior areas of the Building and the Land. Tenant shall have the
right, for no additional Rent, to place not more than five (5) ATMs at locations
outside of the Leased Premises in and about the Common Areas of the Building and
the Land. There is no restriction on the number of ATMs that Tenant can maintain
within the Leased Premises, including any Drive-Through Banking Facilities.
However, except for any ATMs existing as of the Commencement Date, the plans and
specifications, and specific locations, for any ATMs located outside the Leased
Premises are subject to Landlord's prior written consent, which consent will not
be unreasonably withheld or delayed. Tenant, at its expense, shall install,
maintain, operate and repair such ATMs in compliance with all Legal
Requirements. At the expiration or earlier termination of this Lease, Tenant, at
its expense, shall remove the ATMs in accordance with Section 5.3.
(f) Tenant's exterior and monument signage existing as of the Commencement
Date is hereby deemed to be approved by Landlord. Any changes to the existing
exterior and/or monument signage by Tenant (including, without limitation,
changes to the location, size, shape, color, and content of the exterior and/or
monument signage) shall be subject to approval by Landlord, which approval may
not be unreasonably withheld or delayed. Landlord agrees that Tenant shall have
the right to change such signage in the event of a change in Tenant's name,
trade name or logo; provided that such new signage shall satisfy all applicable
Legal Requirements and shall have been approved in advance by Landlord, such
approval not to be unreasonably withheld or delayed.
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(g) Notwithstanding anything to the contrary contained in this Lease, the
rights granted to Tenant pursuant to Sections 3.3 and 3.4 shall be subject and
subordinate to the rights of any Building tenants whose leases are in effect as
of the Commencement Date. For example purposes only, and not as a means of
limitation, if an existing tenant's lease (as in effect on the Commencement
Date) requires such existing tenant's approval for a change in the name of the
Building, then Tenant may not cause the name of the Building to change without
such existing tenant's approval. As another example, if an existing tenant's
lease (as in effect on the Commencement Date) provides for such existing tenant
to place its name on exterior and/or monument signage, then any exercise of such
existing tenant's rights shall not be deemed to be a violation of Tenant's
rights under this Lease.
3.5 Communications Equipment.
(a) Subject to the provisions of this Section 3.5, Tenant shall have the
non-exclusive right, at its sole cost and expense and for Tenant's use, to
install, maintain and operate upon the roof of the Building one (1) or a
reasonable and necessary additional number of transmitters and/or receiver
antennas or dishes approved by Landlord, which approval shall not be
unreasonably withheld or delayed (collectively, the "Communications Equipment")
for use by Tenant in the conduct of its business; provided that such
Communications Equipment may not materially compromise the aesthetics or
appearance of the Building nor shall Landlord be required to incur any expense
in accommodating the Communications Equipment. The Communications Equipment must
be (i) designed, installed and operated in compliance with all Legal
Requirements, and (ii) installed and operated so as not to adversely affect or
impact structural, mechanical, electrical, elevator, or other systems serving
the Building or customary telephone service for the Building and so as not to
cause injury to persons or property, and without limitation of the foregoing, so
as not to void or impair any applicable roof warranty. Upon the expiration or
termination of this Lease, Tenant shall remove the Communications Equipment and
repair any damage to the Building caused by the installation, maintenance, use
or removal of the Communications Equipment.
(b) Landlord hereby grants to Tenant the right to install (at Tenant's sole
cost and expense) any additional equipment required to operate the
Communications Equipment and to connect the Communications Equipment to Tenant's
other machinery and equipment located in the Leased Premises (e.g., conduits and
cables) in the shafts, ducts, chases and utility closets located in the core of
the building ("Additional Equipment"), which Additional Equipment shall be
deemed a part of the Communications Equipment for all purposes of this Section
3.5; provided that (i) the use of such space in the Building core by Tenant
(except customary chases for cabling) may not materially adversely affect the
marketability of the remaining space on any floor of the Building, and (ii) to
the extent any such Additional Equipment occupies space (other than space in
customary chases for the Building) that would have otherwise been Net Rentable
Area on a floor of the Building, such space shall be included within the Net
Rentable Area of the Leased Premises and Tenant shall be obligated to pay Annual
Basic Rent and Additional Rent with respect to such space as if such space was
included in the Leased Premises. Tenant's use of such space in the Building core
shall be subject to the provisions of this Lease relating to Tenant's use of
Common Areas of the Building.
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(c) Subject to the Building Rules and other reasonable rules relating to
Building security and safety that may be promulgated by Landlord pertaining to
access by tenants to the roof of the Building and provided Tenant does not
unreasonably disturb any other tenants of the Building, Tenant and Tenant's
contractors shall have reasonable access to the Communications Equipment and the
Additional Equipment for purposes of operating, servicing, repairing or
otherwise maintaining said equipment.
(d) Nothing contained in this Section 3.5 shall be deemed to prohibit or
restrict any other individual or entity, including without limitation Landlord
or any other tenant of the Building, from installing communications equipment on
the roof of the Building or to use the roof for any other purpose.
(e) In connection with its installation, repair, maintenance and removal of
any Communications Equipment and Additional Equipment, Tenant, at Tenant's sole
cost and expense, shall comply with all applicable Building Rules and Legal
Requirements and repair any damage to the Building caused by such installation,
repair, maintenance or removal. In the event that the placement of Tenant's
Communications Equipment or Additional Equipment interferes with Landlord's
performance of any repair or maintenance to the Common Areas, including, without
limitation, the roofs of the Buildings, any costs incurred by Landlord to
temporarily or permanently relocate and reinstall Tenant's Communications
Equipment or Additional Equipment shall be included in the cost of such repair
or maintenance as a Operating Expense.
(f) Tenant's Communications Equipment and Additional Equipment existing as
of the Commencement Date are hereby deemed to be approved by Landlord. Any
changes to the existing Communications Equipment and/or Additional Equipment by
Tenant shall first be approved by Landlord, which approval will not be
unreasonably withheld or delayed.
(g) If Landlord shall place on the roof of any Building communications
equipment of its own, or shall grant to any third party the right to locate and
maintain any such equipment, all such equipment shall be located, designed and
operated so as not to interfere with signals to and from Tenant's Communications
Equipment and Additional Equipment, the installation of which, in accordance
with this Section 3.5, predates the installation of such other equipment.
Similarly, any Communications Equipment and Additional Equipment hereafter
installed by Tenant shall be located and designed so as not to interfere with
signals to and from such other equipment belonging to Landlord or to third
parties, that may have previously been installed. The party responsible for the
communications equipment which interferes with equipment previously installed by
others shall be required, at its or their expense, to take all measures
necessary to eliminate the source of interference caused by such party's
equipment.
3.6 Building Management. The Projects shall be managed by Landlord; provided
that for so long as Tenant's Occupancy Percentage at a Project shall be equal to
or greater than ninety (90%), after consultation with Landlord to review
Landlord's property management qualifications and pricing, Tenant may in its
sole discretion elect, on a Project by Project basis, to cause such Project to
be submanaged by a qualified property submanager designated by Tenant (any such
submanager, a "Tenant Designated Submanager"), who shall provide on-site and
supervisory property management services for Landlord, Tenant and any third
party tenants and other occupants at such Project (any Project with a Tenant
Designated Submanager, a
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"Tenant Managed Project"). At all Projects that are not Tenant Managed Projects,
Landlord shall provide on-site and supervisory property management services
either through an Affiliate of Landlord or through a qualified third party
property submanager designated by Landlord (any such Landlord Affiliate or
submanager, a "Landlord Designated Submanager"). Landlord shall be and remain
responsible for disbursement of Operating Expense and Real Estate Tax payments
at all Projects, including Tenant Managed Projects. Notwithstanding the
foregoing, (a) Landlord shall not select a Landlord Designated Submanager for
whom Tenant has a reasonable objection, (b) Tenant shall not select a Tenant
Designated Submanager for whom Landlord has a reasonable objection, (c) if a
Landlord Designated Submanager persistently fails to perform its property
management duties in a timely, complete and professional manner that is
consistent with the highest level of property management services provided at
Comparable Buildings, Tenant may cause such non-performing Landlord Designated
Submanager to be replaced by a Tenant Designated Submanager, in which event, at
Tenant's election, the Project or Projects at which such replacement occurs
shall become Tenant Managed Projects and (d) if a Tenant Designated Submanager
persistently fails to perform its property management duties in a timely,
complete and professional manner that is consistent with the highest level of
property management services provided at Comparable Buildings, Landlord may
cause such non-performing Tenant Designated Submanager to be replaced by a
Landlord Designated Submanager, in which event, at Landlord's election, the
Project or Projects at which such replacement occurs shall no longer be Tenant
Managed Projects. Any disputes between Landlord and Tenant with respect to
property management matters arising under this Section 3.6 shall be subject to
resolution as provided in Article XII and XIII.
ARTICLE IV
CARE OF PREMISES; LAWS, RULES AND REGULATIONS
4.1 Care of Leased Premises. Upon the expiration or any earlier termination of
this Lease, Tenant shall surrender the Leased Premises to Landlord in the same
condition in which such Leased Premises existed on the Commencement Date, except
for ordinary wear and tear and any casualty or condemnation damage not required
to be repaired or restored by Tenant pursuant to the terms of this Lease and
subject to the provisions of Section 5.3 hereafter. Upon such expiration or
termination of this Lease, Landlord shall have the right to re-enter and resume
possession of the Leased Premises immediately.
4.2 Access of Landlord to Leased Premises. Subject to the provisions of this
Section 4.2, Landlord and its contractors, agents or representatives may enter
into and upon any part of the Leased Premises during reasonable hours as may be
necessary to clean the same, make repairs, alterations or additions thereto or
otherwise perform Landlord's obligations under this Lease, and, upon reasonable
prior notice to Tenant, for the purpose of showing the same to existing or
prospective purchasers or lenders. At any time during the last twelve (12)
months of the Term (including any Renewal Terms that Tenant has exercised) and
promptly upon Landlord's receipt of notice from Tenant of Tenant's intent to
terminate this Lease with respect to or otherwise vacate a Leased Premises as
herein provided, Landlord may, upon reasonable prior notice to Tenant, enter the
Leased Premises to show the same to prospective tenants. With respect to any of
the aforementioned entries by Landlord into and upon any part of the Leased
Premises other than for emergencies or routine repairs or routine janitorial
service, Tenant shall be entitled to have a representative accompany Landlord.
Tenant shall not be entitled to any abatement or
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reduction of Rent by reason of any such entry by Landlord. Landlord shall not
interfere with the operation of Tenant's business during any such entry and
Landlord shall use reasonable efforts to make any routine repairs requiring
access to the Leased Premises after Building Operating Hours. Notwithstanding
any of the foregoing, unless otherwise instructed by Tenant in writing, Landlord
shall not enter areas designated by Tenant as high security areas (the "Security
Areas") unless an emergency situation exists. All access by Landlord or any
invitee of Landlord shall be subject to applicable federal banking regulations.
If the telecommunications demarcation point for the Building is located within
the Leased Premises, then Landlord may, at Landlord's option, at Landlord's sole
expense, relocate such telecommunications demarcation point to a location
outside of the Leased Premises, and make all necessary modifications to maintain
Tenant's then existing telecommunications service to the Leased Premises. If the
telecommunications demarcation point for the Building is located within the
Leased Premises and if such location of the telecommunications demarcation point
for the Building at any time in the future is deemed by Tenant to interfere with
Tenant's desired reconfiguration of its use of or improvements in the Leased
Premises, then Landlord shall, at Landlord's sole expense, relocate such
telecommunications demarcation point to a location outside of the Leased
Premises, and make all necessary modifications to maintain Tenant's then
existing telecommunications service to the Leased Premises, within a reasonable
time after Tenant's written request. If the telecommunications demarcation point
for the Building is located within the Leased Premises, then until Landlord
relocates such telecommunications demarcation point to a location outside of the
Leased Premises, Tenant shall allow Landlord and other tenants of the Building
reasonable access to the telecommunications demarcation point as required to
connect telecommunication lines thereto, but each and any such access shall be
subject to reasonable advance notice (not less than one (1) full business day,
except in the case of emergencies), and shall be supervised by security
personnel acceptable to Tenant, Landlord shall be solely responsible for the
cost of such security personnel, and Landlord shall reimburse Tenant, upon
demand, for any and all additional costs incurred by Tenant because of such
access. In no event shall Landlord or any tenant of the Building other than
Tenant be entitled to connect to, use, or in any way affect the operation of
Tenant's telecommunications equipment in the Leased Premises.
4.3 Nuisance. Tenant shall conduct its business and use reasonable efforts to
control its agents, employees, invitees, contractors and visitors in such a
manner as not to create any nuisance, or unreasonably interfere with, or
unreasonably annoy or disturb, any other tenant or Landlord in its operation of
the Project. Landlord shall operate the Projects and use reasonable efforts to
control its agents, employees, invitees, contractors and visitors in such a
manner as not to create any nuisance, or unreasonably interfere with, or
unreasonably disturb Tenant in its occupancy of the Leased Premises.
4.4 Laws and Regulations; Rules of Building. Tenant shall comply with, and shall
use its reasonable efforts to cause its employees, agents, visitors and invitees
to comply with, all Legal Requirements relating to the use or occupancy of the
Leased Premises, and with the rules of the Buildings reasonably adopted and
altered by Landlord from time to time for the safety, protection, care and
cleanliness of the Leased Premises, the Buildings and the Projects, the
operation thereof, the preservation of good order therein and the comfort of the
tenants of the Building and their agents, employees and invitees, consistent
with Comparable Buildings, which rules and regulations shall be binding upon
Tenant upon Tenant's receipt of notice of the adoption or alteration of such
rules and regulations (the "Building Rules"). In the event of a
43
conflict between the provisions of this Lease and the Building Rules, the
provisions of this Lease shall control. Landlord shall use its reasonable
efforts to cause all tenants of the Buildings to comply with the Building Rules
to the extent that failure to so comply will materially affect Tenant's use or
enjoyment of the Leased Premises. Landlord shall not enforce the Building Rules
with respect to Tenant in a manner that is more restrictive than Landlord's
enforcement of the Building Rules as to any other tenants of the Building.
Landlord shall not enforce Tenant's compliance with Legal Requirements unless
(a) Landlord's failure to do so constitutes a violation of Legal Requirements by
Landlord or makes Landlord liable for Tenant's continuing violation, (b)
Landlord is required to do so by any notice of violation, order, decree, permit,
rule or regulation issued by any Governmental Authority or (c) Landlord's
failure to do so would, in Landlord's reasonable opinion, endanger the health,
safety or welfare of any person on or about the Leased Premises or the Projects.
4.5 Legal Use and Violations of Insurance Coverage. Tenant shall not occupy or
use the Leased Premises, or permit any portion of the Leased Premises to be
occupied or used, for any business or purpose that (a) is unlawful, (b) creates
noxious or offensive odors emanating from the Leased Premises, or (c) does
anything that would in any way increase the rate of fire insurance coverage on
the Projects or its contents unless Tenant pays for the cost of such increased
insurance premium. Tenant shall not cause or permit any Hazardous Materials to
be used, generated, treated, installed, stored or disposed of in, on, under or
about the Leased Premises, except to the extent consistent with the customary
and reasonable business practice of entities conducting businesses similar to
the business being conducted by Tenant in the Leased Premises; provided (i) such
Hazardous Materials do not endanger the health of any person on or about the
Leased Premises or the Projects and (ii) Tenant complies with all Legal
Requirements applicable to such Hazardous Materials. It is hereby agreed that
possession and use of copy machines and machines used to electronically accept
or produce written data which utilize small amounts of chemicals which may be
included in the definition of Hazardous Materials shall be considered "customary
and reasonable business practices" within the meaning of the previous sentence.
Landlord shall meet all of its obligations under this Lease so as to keep in
force all certificates of occupancy for the Projects generally and Tenant, if
and to the extent required by Legal Requirements, shall meet all of its
obligations under this Lease so as to keep in force certificates of occupancy
for the Leased Premises. Landlord shall comply with, and not violate, all
applicable Legal Requirements to the extent relating to the Projects generally
and any other Legal Requirements applicable to Landlord to the extent necessary
to perform Landlord's obligations under this Lease (except to the extent that
such Legal Requirement relates to a tenant's obligations under its lease, in
which case Landlord shall exercise reasonable efforts to cause compliance by
such tenant), and Tenant, at its sole cost and expense, shall comply with, and
not violate, all applicable all Legal Requirements to the extent relating to the
Leased Premises. Landlord shall not enforce Tenant's compliance with Legal
Requirements unless (a) Landlord's failure to do so constitutes a violation of
Legal Requirements by Landlord or makes Landlord liable for Tenant's continuing
violation, (b) Landlord is required to do so by any notice of violation, order,
decree, permit, rule or regulation issued by any Governmental Authority or (c)
Landlord's failure to do so would, in Landlord's reasonable opinion, endanger
the health, safety or welfare of any person on or about the Leased Premises or
the Projects.
4.6 Environmental Laws.
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(a) Tenant has conveyed the Projects to Landlord, and Landlord has accepted
and acquired ownership of the Projects, pursuant to the Purchase Agreement. As
more fully therein expressed, Tenant has previously provided Landlord with
various environmental reports and studies prepared by consultants and Landlord
has acquired such further reports as Landlord determined necessary with respect
to the Leased Premises, including, without limitation, new or updated Phase I
and, where applicable, Phase II environmental reports (collectively, with the
reports and studies from Tenant, "Environmental Information"). The Environmental
Information is identified in summary fashion on Schedule 3 hereto.
(b) Landlord hereby agrees to and does indemnify, defend, and hold
harmless, Tenant and Tenant's shareholders, officers, directors and their
respective successors and assigns from and against any and all claims, demands,
causes of action, fines, penalties, costs, expenses (including, without
limitation, attorneys' fees and court costs), liens, or liabilities caused by,
directly or indirectly relating in any way to, or arising from (i) any matters
reported in the Environmental Information (the "Environmental Matters") as they
relate to the Projects, (excluding the Leased Premises), or (ii) Hazardous
Materials introduced on, in or under the Buildings or the Projects solely by
Landlord, its agents, employees or contractors after the Commencement Date;
provided that the foregoing indemnity shall specifically exclude any and all
claims, demands, causes of action, fines, penalties, costs, expenses (including,
without limitation, attorneys' fees and court costs), liens, or liabilities
caused by, directly or indirectly relating exclusively to or arising from
Hazardous Materials introduced on, in or under the Projects after the
Commencement Date solely by the acts of any party other than Landlord and
Landlord's agents, employees and contractors.
(c) Tenant shall be solely responsible for and shall undertake all Remedial
Work required by any Governmental Authority or as necessary to comply with, and
not violate, Legal Requirements arising from (i) Hazardous Materials on or in
the Leased Premises (including, without limitation, the Environmental Matters to
the extent on or in the Leased Premises); or (ii) Hazardous Materials introduced
on, in or under the Buildings or the Projects solely by Tenant, its agents,
employees, invitees or contractors after the Commencement Date. Landlord shall
not enforce Tenant's performance of Remedial Work unless (i) Landlord's failure
to do so constitutes a violation of Legal Requirements by Landlord or makes
Landlord liable for Tenant's continuing violation, (ii) Landlord is required to
do so by any notice of violation, order, decree, permit, rule or regulation
issued by any Governmental Authority or (iii) Landlord's failure to do so would,
in Landlord's reasonable opinion, endanger the health, safety or welfare of any
person on or about the Leased Premises or the Projects.
(d) Tenant hereby agrees to and does indemnify, defend, and hold harmless,
Landlord and Landlord's shareholders, officers, trustees and their respective
successors and assigns from and against any and all claims, demands, causes of
action, fines, penalties, costs, expenses (including, without limitation,
attorneys fees and court costs), liens, or liabilities caused by or directly or
indirectly relating in any way to, or arising from (i) Hazardous Materials on or
in the Leased Premises (including, without limitation, the Environmental
Matters) and (ii) arising from Hazardous Materials introduced on, in or under
the Buildings, or the Projects solely by Tenant, its agents, employees, invitees
or contractors after the Commencement Date.
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ARTICLE V
LEASEHOLD IMPROVEMENTS AND REPAIRS
5.1 Leasehold Improvements. Subject to the provisions of this Lease, Tenant
hereby accepts the Leased Premises, including without limitation any and all
existing leasehold improvements, in their "AS-IS" condition, and acknowledges
that, subject to the provisions of Section 5.5, Landlord has no obligation to
construct additional leasehold improvements in the Leased Premises or to provide
any money, work, labor, material, fixture, decoration or equipment with respect
to the Leased Premises.
5.2 Alterations. Except as provided below, Tenant shall not make or allow to be
made any alterations or physical additions in or to the Leased Premises, without
first obtaining the written consent of Landlord to the plans and specifications
and contractors therefor, which consent shall not be unreasonably withheld or
delayed. Any such alterations or additions shall be made in compliance with
Legal Requirements. Notwithstanding the foregoing, Tenant shall have the right
to make alterations and physical additions to the Leased Premises costing less
than $500,000.00 in the aggregate for any single project, or which are of such a
nature as not to require a building permit, without Landlord's consent provided:
(i) Tenant notifies Landlord in writing and furnishes Landlord with plans and
specifications and the names of the contractors for all such alterations or
additions at least seven (7) days prior to undertaking them, (ii) Tenant
provides Landlord with as-built plans and specifications related to such
alterations or additions upon completion of same, (iii) such alterations or
additions are not visible from the exterior of the Leased Premises or the
Building, (iv) the modifications are in compliance with all Legal Requirements,
(v) such additions and alterations do not adversely affect the mechanical,
electrical, plumbing, life safety, or structural integrity of the Building and
(vi) Tenant coordinates its activities with the Building's property manager. In
no event shall Tenant be obligated to pay any charge to Landlord or any agent of
Landlord for (i) supervision of any alterations or physical additions in or to
the Leased Premises made by Tenant or (ii) review or approval of plans or
specifications for or in connection with any alterations or physical additions
in or to the Leased Premises made or proposed by Tenant (other than
reimbursement of any actual, out-of-pocket costs reasonably incurred by Landlord
to verify that Tenant's plans do not adversely affect the mechanical,
electrical, plumbing, life safety or structural integrity of the Building as
expressed in clause (v) above).
5.3 Non-Removable Improvements. The term "Non-Removable Improvements" shall mean
each and all of the following to the extent owned by Tenant or its Affiliates:
all mechanical equipment above the ceiling, the ceiling system, the ceiling
tile, light fixtures (other than chandeliers; provided Tenant replaces the
ceiling tile and leaves a connection for a replacement chandelier or Building
Standard fixture), permanent walls, wall coverings, doors, door hardware, floor
coverings (other than area rugs), all electrical and plumbing systems located
within the Leased Premises, and blinds, all life safety and other Building
systems, all cafeterias and commissaries, including, without limitation, all
fixtures, equipment and appliances used in connection therewith; all gymnasiums,
fitness or exercise centers, including, without limitation, all equipment,
fixtures and furnishings therein, and at all properties that include retail
banking facilities, all vaults, vault doors, pneumatic tubing then existing at
drive-through facilities, teller counters and under-counter steel. All
Non-Removable Improvements are and shall remain the property of Landlord. Tenant
shall be permitted (but not obligated) to remove any other
46
improvements to the Leased Premises (together "Tenant's Business Equipment,"
whether or not installed so as to be fixtures under applicable law), including
trade fixtures, equipment, furniture, furnishings, supplies, records, documents,
cash, coin, and other items of moveable personal property relating to the
operation of Tenant's business, including, without limitation, all safe deposit
boxes (but not the nests or frames thereof), safes, Tenant identification
signage, ATMs connected to or located within the Buildings or situated as
freestanding structures on the Property and ATM equipment, telecommunication
equipment, security systems and equipment, satellite dishes and antennas,
computers, computer terminals and computer equipment, any office equipment
(whether leased or owned) located in the Buildings, framed artwork not
permanently affixed to the Property, and Tenant's furniture, trade fixtures, and
equipment installed in the Leased Premises by Tenant at its cost and expense;
provided Tenant repairs any damage to the Leased Premises or other parts of the
Building caused by the removal of the foregoing items.
5.4 Mechanics Liens. Tenant shall have no authority or power, express or
implied, to create or cause to be created any mechanic's, materialmen's or other
lien, charge or encumbrance of any kind against any Leased Premises. Should any
mechanic's, materialmen's or other lien, charge or encumbrance of any kind be
filed against any Leased Premises by reason of Tenant's acts or omissions or
because of a claim against Tenant, Tenant shall cause the same to be cancelled
or discharged of record by bond or otherwise within sixty (60) days after notice
to Tenant by Landlord, or within thirty (30) days after notice to Tenant by
Landlord if at the time of such notice Landlord anticipates a sale or
refinancing of any Leased Premises will be closed within sixty (60) days after
said notice (and if Landlord includes that fact in Landlord's notice to Tenant).
If Tenant shall fail to cancel or discharge said lien or liens within the time
provided pursuant to this Section 5.4, Landlord may, at its sole option, cancel
or discharge the same, and upon Landlord's demand, Tenant shall promptly
reimburse Landlord for all reasonable costs incurred in canceling or discharging
such liens. Except to the extent that such costs, losses, or liabilities are
caused by Landlord's actions, Tenant shall indemnify and hold Landlord harmless
from and against all costs (including reasonable attorneys' fees and costs of
suit), losses, liabilities, or causes of action arising out of or relating to
any alterations, additions or improvements made by Tenant to the Leased
Premises, including, but not limited to, any mechanic's or materialman's liens
asserted in connection therewith. Landlord and Tenant expressly agree and
acknowledge that no interest of Landlord in the Leased Premises or the Project
shall be subject to any lien for improvements made by Tenant in or for the
Leased Premises, and that Landlord shall not be liable for any lien for any
improvements made by Tenant, such liability being expressly prohibited by the
terms of this Lease. Landlord may file in the public records of the County in
which the Building is located, a public notice containing a true and correct
copy of this paragraph, and Tenant hereby agrees to inform all contractors and
materialmen performing work in or for or supplying materials to the Leased
Premises of the existence of the prohibition contained in this paragraph.
5.5 Repairs by Landlord. Landlord will make, as an Operating Expense (to the
extent allowable), all repairs to, and perform necessary maintenance, repair,
refurbishing and replacement work to the Projects, and all parts thereof, in
such manner as is in keeping with Comparable Buildings, including, but not
limited to, the: (a) structural elements of the Buildings, (b) mechanical
(including HVAC), electrical, the plumbing and fire/life safety systems serving
the Buildings in general, (c) Common Areas including, without limitation, the
Parking Areas , (d) roofs of the Buildings, (e) exterior windows of the
Buildings and (f) elevators serving the
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Buildings. Landlord shall promptly make repairs (considering the nature and
urgency of the repair) for which Landlord is responsible. Except in emergency
situations as reasonably determined by Landlord, Landlord shall provide Tenant
with prior notice of any entry into the Leased Premises required to effectuate
the repairs for which Landlord is responsible and shall exercise reasonable
efforts to perform any such entry into the Leased Premises in a manner that is
reasonably designed to minimize interference with the operation of Tenant's
business in the Leased Premises. If Landlord should fail or refuse to make such
repairs, refurbishings or replacements or perform said maintenance with
reasonable promptness after written notice from Tenant, then Tenant may, at its
option, but without any obligation to do so, upon written notice to Landlord,
cure such failure as expressed in Section 7.1(f) and recover the reasonable cost
thereof from Landlord as expressed in Article XIII.
5.6 Repairs by Tenant. Tenant shall, at its sole cost and expense, promptly
perform all maintenance, repairs, refurbishing and replacement work to the
Leased Premises that are not Landlord's express responsibility under this Lease,
and shall keep the Leased Premises in good condition and repair, reasonable wear
and tear excepted. Tenant's repair obligations include, without limitation,
repairs to: (a) floor covering, (b) interior partitions, (c) doors, (d) the
interior side of demising walls, (e) electronic, phone and data cabling and
related equipment that is installed by or for the exclusive benefit of Tenant
and located in the Leased Premises or other portions of the Building, (f)
supplemental air conditioning units, private showers and kitchens, including hot
water heaters, plumbing and similar facilities serving Tenant exclusively, and
(g) alterations performed by contractors retained by Tenant, including related
HVAC balancing. All Tenant's work shall be performed in accordance with the
rules and procedures described in Section 5.2 hereof. Upon termination of this
Lease, Tenant will surrender and deliver the Leased Premises to Landlord in the
same condition in which the Leased Premises existed on the Commencement Date,
subject, however, to (i) the provisions of Article VI hereof, (ii) the
alterations permitted pursuant to this Lease, (iii) the provisions of Section
5.3, and (iv) except for ordinary wear and tear. If Tenant should fail or refuse
to make such repairs, refurbishings or replacements or perform said maintenance
as and when reasonably required, Landlord may, at its option, but without any
obligation to do so, cure such failure or refusal and Landlord's costs shall be
reimburseable by Tenant as additional rent, by Tenant, immediately upon
invoicing by Landlord. Notwithstanding the foregoing, Landlord agrees to
perform, as Above Standard Services, Tenant's repair and maintenance obligations
with respect to the Leased Premises. Tenant shall notify Landlord of the need
for any such repair and maintenance and Landlord shall endeavor to respond
timely to each such request.
5.7 Demising Work. Any Demising Work required to be performed by Tenant: shall,
in each instance, be completed as follows:
(a) Tenant shall prepare and submit to Landlord for Landlord's approval a
preliminary space plan (the "Preliminary Space Plan") in connection with
Tenant's proposed separation of the Leased Premises from the Surrendered
Premises. Landlord's approval shall not be unreasonably withheld or delayed and
shall be given or withheld, or Landlord shall advise Tenant whether Landlord
requires additional information in order to evaluate Tenant's request, within
ten (10) days following Tenant's delivery to Landlord of the Preliminary Space
Plan. If Landlord objects to the Preliminary Space Plan (or any revision
thereof), Tenant shall deliver a revised Preliminary Space Plan to Landlord and
the procedure will be repeated, if necessary,
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until a final space plan is approved. The final approved space plan is
hereinafter referred to as the "Final Space Plan". Landlord and Tenant shall
work with one another reasonably and in good faith to resolve any differences
concerning the Preliminary Space Plan and the Final Space Plan (or the
Preliminary Drawings or Final Drawings hereafter referenced in Section 5.7(b)
immediately below), failing which any disagreements shall be resolved in
accordance with Article XII hereof.
(b) From the Final Space Plan, Tenant shall prepare and submit to Landlord
for Landlord's approval (which approval shall not be unreasonably withheld or
delayed, and which shall be given or withheld, or Landlord shall advise Tenant
whether Landlord requires additional information in order to evaluate Tenant's
request, within ten (10) days) following Tenant's delivery to Landlord of,
one-eighth inch (1/8") architectural, mechanical, electrical, lighting, plumbing
and (if reasonably requested by Landlord) floor load working drawings together
with specifications necessary to complete all of the proposed improvements shown
on the Final Space Plan (collectively, the "Preliminary Drawings"). If Landlord
objects to the Preliminary Drawings (or any revision thereof), Tenant shall
deliver revised Preliminary Drawings to Landlord and the procedure will be
repeated, if necessary, until final drawings are approved. The final approved
drawings are hereinafter referred to as the "Final Drawings".
(c) Tenant will cause the Demising Work to be constructed in substantial
accordance with the Final Drawings. Landlord shall be deemed to have waived
Tenant's performance of any Demising Work not shown on the Final Drawings except
to the extent required to satisfy Legal Requirements. Landlord's review of Space
Plans and Drawings under Sections 5.7(a) and (b) above is for Landlord's
purposes only, and not a representation or warranty that the work to be
performed pursuant thereto meets all Legal Requirements.
(d) In connection with the Demising Work, Tenant shall file all drawings,
plans and specifications, pay all fees and obtain all permits and applications
from any authorities having jurisdiction and perform all Demising Work in
compliance the requirements of such permits and applications; and Tenant shall
promptly obtain, if required, a permanent certificate of occupancy and all other
approvals required of Tenant to use and occupy the Leased Premises.
(e) Tenant shall have the right to select the general contractor and
subcontractors for the Demising Work; provided that Tenant shall not use a
contractor or subcontractor as to which Landlord shall reasonably object within
ten (10) days following Tenant's notice to Landlord of the identity of such
contractor(s) and subcontractor(s) as Tenant has selected.
(f) The parties shall cooperate with each other in good faith and
coordinate the scheduling of the Demising Work in an effort to complete the same
in a timely manner. Landlord and Tenant shall be commercially reasonable in
agreeing to non-material reconfigurations of the boundaries of the Leased
Premises to facilitate Tenant's construction of demising walls for the Leased
Premises.
(g) All of the Demising Work shall be done, on a Project by Project basis,
in compliance with Building Standards at Tenant's expense, including, without
limitation, building permit and other fees, architectural and engineering
expenses and other expenses relating thereto. Tenant may request Landlord's
review of Preliminary Space Plans or Preliminary Drawings
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before Tenant's notification to Landlord of Tenant's election to remove
Surrendered Premises from the Leased Premises to facilitate Tenant's
understanding of the potential approximate costs associated therewith.
5.8 Art. Landlord acknowledges that Tenant stores and/or displays within the
Buildings, multiple works of art, including paintings, textiles, sculptures, and
other forms of artwork (the "Art") that are an integral part of the Bank of
America Art Collection. The Art may be located within areas leased by and under
control of Tenant, or in Common Areas, including lobbies or other public spaces
within the Buildings or outdoor plaza areas.
(a) The Art that is located within the Projects as of the date hereof is
listed in the attached Schedule 4 hereto. Tenant may hereafter locate additional
pieces of Art within the Buildings and/or Leased Premises, and any of such Art
shall also be considered part of the Bank of America Art Collection, unless it
cannot be removed from the Building without damaging the Art Tenant shall have
the right at any time during the Term of the lease and for a period of 60 days
following the Term of the lease, as to any such Building, to remove any of the
Art at Tenant's sole cost and expense. In the event any Art is removed from
either Leased Premises or Common Areas, Tenant shall repair any damage caused by
its removal. To the extent Art is removed from the Common Areas, Tenant shall
notify Landlord in writing not less than 30 days prior to the anticipated
removal date that the Art shall be removed. Tenant agrees to indemnify Landlord
against any claims made by the artist or putative right holder pursuant to VARA
arising out of Tenant's removal or subsequent treatment of the Art, and such
indemnity shall survive the termination or expiration of this Lease.
(b) Landlord agrees that (i) Landlord shall not remove any Art from any
Common Areas or public spaces of the Buildings during the Term hereof or within
a period of sixty (60) days following the Term hereof, and Landlord acknowledges
that any such removal in violation of this paragraph may cause damage to the
Art, for which Landlord shall bear sole responsibility; and (ii) Landlord's
removal of any Art during the Term or thereafter shall not be within the scope
of Tenant's VARA indemnification.
(c) Tenant shall have the right at any time or from time to time, to erect
plaques or markers, subject to Landlord's approval (not to be unreasonably
withheld) identifying the Art as commissioned by Bank of America or on loan from
the Bank of America Art Collection. To the extent Tenant elects not to remove
any Art at the termination of the Lease, Landlord agrees that any plaques or
markers installed by Tenant identifying the Art as commissioned by Bank of
America or on loan from the Bank of America Art Collection shall remain in place
for so long as the Art is displayed within the Building or Common Areas.
ARTICLE VI
CONDEMNATION, CASUALTY AND INSURANCE
6.1 Condemnation.
(a) If all or a portion of a Building or the Leased Premises as would
render the continuance of Tenant's business from such Leased Premises
impracticable (as reasonably determined by Tenant) is permanently taken or
condemned for any public purpose, this Lease, at
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the option of Tenant upon the giving of notice to Landlord within twenty (20)
days from the date of such condemnation or taking shall forthwith cease and
terminate as to such Leased Premises as provided in Section 6.1(c) below.
(b) If all or substantially all of the Project, or so much thereof as to
cause the remainder not to be economically feasible to operate, as reasonably
determined by Landlord, should be permanently taken or condemned for any public
purpose and Landlord terminates all similarly affected leases in the Building
that Landlord has the right to terminate, then Landlord shall have the option of
terminating this Lease as to the affected Leased Premises by notice to Tenant
within ten (10) days from the date of such condemnation or taking.
(c) If this Lease is terminated as to such particular Leased Premises as
provided in Sections 6.1(a) or (b) above, this Lease shall cease and expire as
to such Leased Premises as if the date of transfer of possession of the Leased
Premises, the Project, or any portion thereof, was the expiration date of this
Lease as to such Leased Premises.
(d) If this Lease is not terminated by either Landlord or Tenant as
aforesaid, Tenant shall pay all Rent up to the date of transfer of possession of
such portion of the Leased Premises so taken or condemned and this Lease shall
thereupon cease and terminate with respect to such portion of the Leased
Premises so taken or condemned as if the date of transfer of possession of the
Leased Premises was the expiration date of the Term relating to such portion of
the Leased Premises. Thereafter, the Annual Basic Rent, and Tenant's Operating
Expense Share and Tenant's Tax Share shall be calculated based on the Net
Rentable Area of the Leased Premises not so taken or condemned. If any such
condemnation or taking occurs and this Lease is not so terminated, Landlord
shall, within sixty (60) days after the date any portion of the Project is
damaged, or the use of any portion of the Project by Tenant and Tenant's
employees and invitees is impeded, because of such condemnation, commence to
repair the Project (excluding Tenant's Business Equipment), so that the
remaining portion of the Project, as the case may be, shall constitute a
complete architectural unit, reasonably fit for Tenant's occupancy and business
as reasonably determined by Tenant and Landlord. If Landlord fails to cause such
restoration to be substantially completed within one (1) year after the date
Landlord commences such restoration work for any reason other than a delay
caused by an act or omission of Tenant, then Tenant shall have the right to
terminate this Lease by notifying Landlord in writing of such termination within
thirty (30) days after the date that is one (1) year after the date Landlord
commences such restoration work. The one (1) year period described in the
preceding sentence shall be automatically extended for each day of delays caused
by Force Majeure Events.
(e) In the event of any condemnation or taking of all or a portion of the
Leased Premises, and in the event of any condemnation or taking of all or a
portion of the Parking Areas or the Project which taking materially adversely
affects the value of or Tenant's use or enjoyment of the Leased Premises,
Tenant, at Tenant's expense may, jointly with Landlord, appear, claim, prove and
recover, in proceedings relative to such taking, (i) the value of any fixtures,
furniture, furnishings, leasehold improvements and other personal property that
were condemned but which under the terms of this Lease Tenant is permitted to
remove at the end of the Term, (ii) the unamortized cost of any leasehold
improvements that are not so removable by Tenant at the end of the Term and that
were installed at Tenant's expense, (iii) the loss of Tenant's business as the
result of such condemnation and (iv) relocation and moving expenses.
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(f) If any taking or condemnation for any public purpose of the Leased
Premises or any portion thereof occurs for one hundred eighty (180) days or less
and the portion of the Leased Premises not so taken is in Tenant's reasonable
judgment sufficient to allow the conduct of Tenant's business in the Leased
Premises to substantially the same extent and quantity as before the taking (and
Tenant, in fact, ceases its use of the Leased Premises for business purposes),
then it shall be deemed a temporary taking and this Lease shall continue in full
force and effect except that Annual Basic Rent, Tenant's Operating Expense Share
and Tenant's Tax Share shall be calculated based on the Net Rentable Area of the
Leased Premises not so taken, for the period of time that the Leased Premises
are so taken as of the date of transfer of possession of the Leased Premises and
Landlord shall be under no obligation to make any repairs or alterations.
6.2 Damages from Certain Causes. Except as provided in Section 3.1 and Section
6.6, and subject to Landlord's obligations to restore, repair and maintain as
specifically provided in this Lease, Landlord shall not be liable or responsible
to Tenant for any loss or damage to any property or person occasioned by theft,
fire, act of God, public enemy, riot, strike, insurrection, war, requisition or
order of governmental body or authority, court order or injunction, or any other
cause beyond Landlord's control.
6.3 Casualty Clause.
(a) If at any time during the Term of this Lease, the Leased Premises, the
Common Areas, including, without limitation, the Parking Areas, the Buildings or
any systems or equipment serving the Leased Premises, the Common Areas or the
Buildings (collectively, the "Damaged Property") is damaged by fire, earthquake,
flood or by any other casualty of any kind or nature (a "Casualty") then, except
as hereinafter provided, Landlord shall proceed to rebuild or restore the
Damaged Property at Landlord's sole cost and expense; provided that, in no
event, shall Damaged Property include, nor shall Landlord or Tenant have any
obligation to rebuild or restore, any of Tenant's furniture, furnishings,
equipment, trade fixtures or other property owned by Tenant. If, in the
reasonable opinion of Landlord's architect as evidenced by a written letter of
certification delivered to Tenant not more than forty-five (45) days following
the Casualty, the Damaged Property cannot be repaired so as to make the Leased
Premises and the Parking Areas tenantable within two hundred seventy (270) days
from the date of notice of Landlord's architect's opinion, then Tenant shall
have the right to terminate this Lease as to such property by notifying Landlord
in writing of such termination within thirty (30) days of receipt of Landlord's
architect's opinion. Any failure by Tenant to deliver such termination notice to
Landlord by such thirtieth (30th) day shall constitute a waiver of Tenant's
right to terminate this Lease pursuant to this Section 6.3(a) as a result of
such Casualty.
(b) Landlord may elect to terminate this Lease as to an affected property
on account of a Casualty by delivering written notice to Tenant within
forty-five (45) days after a Qualified Damage; provided that Landlord also
terminates all other similarly affected tenant leases that Landlord has a right
to terminate as a result of such Casualty. As used herein, a "Qualified Damage"
shall mean any one or more of the following:
(i) There shall be damage to an extent greater than fifty percent
(50%) of the replacement cost of the Building above the foundation, and
such damage or destruction
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shall be caused by a risk covered by insurance maintained or required to be
maintained (whether or not actually maintained) by Landlord pursuant to
this Lease (i.e., an "insurable risk").
(ii) There shall be damage, resulting from a risk other than an
insurable risk, to an extent greater than twenty-five percent (25%) of the
replacement cost of the Building above the foundation.
(iii) Necessary repairs to the Damaged Property cannot be completed,
in the reasonable opinion of Landlord's architect, within two hundred
seventy (270) days after the occurrence of such damage, which opinion
Landlord shall cause its architect to deliver to Tenant not more than
thirty (30) days after the Casualty.
(c) Notwithstanding any language herein to the contrary, if at the time of
any substantial damage to the Leased Premises from a Casualty, less than one (1)
year remains in the Term, then (i) Landlord shall have the right, in its sole
option, to elect not to rebuild or restore the Damaged Property, such right to
be exercised, if at all, by written notice to Tenant within thirty (30) days
after the date of such Casualty, and (ii) Tenant shall have the right, in its
sole option, to terminate this Lease, such right to be exercised, if at all,
within thirty (30) days after the date of such Casualty or within thirty (30)
days after Tenant's receipt of Landlord's notice pursuant to Section 6.3(c)(i).
(d) If Landlord is herein required to repair and restore the Project, and
Tenant shall have had, but shall not have exercised, a right of termination as
provided at Section 6.3(a), Landlord shall use commercially reasonable efforts
to commence such repair and restoration within sixty (60) days following the
Casualty. Landlord's architect shall determine the date that Landlord commences
the repair and restoration of the Project and shall notify Tenant of such
determination within thirty (30) days thereof. Notwithstanding any language
herein to the contrary, if Landlord undertakes but fails to repair and restore
the Damaged Property within the later of (i) one (1) year after the date
determined by Landlord's architect to be the date Landlord commenced the
restoration and repair work or (ii) the date identified in Landlord's
architect's opinion given pursuant to Section 6.3(a) as the date by which
Landlord's architect believed the repair and restoration to the Damaged Property
would be completed (the later such date, the "Outside Completion Date"), for any
reason other than a delay caused by an act or omission of the Tenant, then
subject to the final sentence of this paragraph, Tenant may terminate this Lease
by delivering written notice to Landlord within thirty (30) days after the
Outside Completion Date, but before the repairs and restoration to the Damaged
Property have been completed. If Tenant fails to deliver such notice within such
thirty (30) day period, Tenant shall have waived its right to terminate this
Lease on account of the time required to repair such casualty. The Outside
Completion Date shall be automatically extended for each day of delays caused by
Force Majeure Events (but in no event shall such Outside Completion Date be
extended for more than sixty (60) days by Force Majeure Events).
6.4 Property Insurance. Landlord shall maintain standard fire and extended
coverage insurance, plus, if elected by Landlord, coverage for acts of
terrorism, for each Project, including, without limitation, for the Buildings,
Common Areas, including, without limitation, Parking Areas, Leased Premises and
other tenantable areas and on the improvements and betterments contained
53
therein (excluding Tenant's and any other tenant's furniture, furnishings,
equipment, trade fixtures or other property), in an amount not less than eighty
percent (80%) of the full replacement cost thereof above the foundation. Upon
the request of Tenant, a copy of a duly executed certificate of insurance
reflecting Landlord's maintenance of the insurance required under this Section
6.4 shall be delivered to Tenant. Said insurance shall be maintained with a
reputable insurance company selected by Landlord and qualified and licensed to
do business in the State in which the Project is located and having a current
Best's Rating of A+ or better. All payments for losses thereunder shall be made
solely to Landlord.
6.5 Liability Insurance. Landlord and Tenant shall each maintain a policy or
policies of comprehensive general liability insurance with the premiums thereon
fully paid on or before the due dates, issued by and binding upon a reputable
insurance company qualified and licensed to do business in the State in which
the Project is located, with a current Best's Rating of A+ or better. Such
insurance shall afford minimum protection (which may be effected by primary
and/or excess coverage) of not less than Three Million Dollars ($3,000,000.00)
for bodily injury or death in any one (1) accident or occurrence and against
property damage. Notwithstanding anything to the contrary, so long as Tenant
satisfies the Self-Insurance Net Worth Test, Tenant may self insure in order to
meet any insurance requirements in this Lease. In the event Tenant fails, in
whole or in part, to carry insurance that complies with the requirements of this
Section 6.5, Tenant shall be deemed to self-insure to the extent of such
noncompliance.
6.6 Hold Harmless. Landlord shall not be liable to Tenant, or to Tenant's
agents, servants, employees, contractors, customers or invitees, for any damage
to person or property to the extent caused by any negligent act or omission of
Tenant, or its agents, servants or employees, and Tenant agrees to and does
hereby indemnify, defend and hold harmless, Landlord and Landlord's
shareholders, officers and trustees, and its and their respective successors and
assigns, from and against any and all claims, demands, causes of action, fines,
penalties, costs, expenses (including, without limitation, reasonable attorneys'
fees and court costs), liens or liabilities to the extent caused by (i) any
negligent act or omission of Tenant, or its agents, servants or employees or
(ii) any claim for which Tenant was obligated to obtain insurance, but elected
to self-insure as permitted by Section 6.5. Tenant shall not be liable to
Landlord, or to Landlord's agents, servants, employees, contractors, customers
or invitees, for any damage to person or property to the extent caused by any
negligent act or omission of Landlord, or its agents, servants or employees and
Landlord agrees to and does indemnify, defend and hold harmless Tenant and
Tenant's shareholders, officers and directors, and its and their respective
successors and assigns, from and against any and all claims, demands, causes or
action, fines, penalties, costs, expenses (including, without limitation
reasonable attorneys fees and costs), liens or liabilities to the extent caused
by any negligent act or omission of Landlord, or its agents, servants or
employees.
6.7 WAIVER OF RECOVERY. ANYTHING IN THIS LEASE TO THE CONTRARY NOTWITHSTANDING,
LANDLORD AND TENANT EACH HEREBY WAIVES ANY AND ALL RIGHTS OF RECOVERY, CLAIM,
ACTION OR CAUSE OF ACTION, AGAINST THE OTHER, AND ITS AGENTS, SERVANTS,
PARTNERS, SHAREHOLDERS, DIRECTORS, OFFICERS OR EMPLOYEES, FOR ANY LOSS OR DAMAGE
THAT MAY OCCUR TO THE LEASED PREMISES, THE PROJECT OR ANY IMPROVEMENTS THERETO
OR THEREON, OR ANY PROPERTY OF SUCH PARTY THEREIN OR THEREON, BY REASON OF FIRE,
THE ELEMENTS, OR ANY OTHER CAUSE THAT IS INSURED
54
AGAINST (OR IS INSURABLE, WHETHER OR NOT ACTUALLY INSURED) UNDER THE TERMS OF
STANDARD FIRE AND EXTENDED COVERAGE INSURANCE POLICIES IN THE STATE IN WHICH THE
PROJECT IS LOCATED, REGARDLESS OF THE AMOUNT OF THE PROCEEDS, IF ANY, PAYABLE
UNDER SUCH INSURANCE POLICIES AND THE CAUSE OR ORIGIN, INCLUDING NEGLIGENCE OF
THE OTHER PARTY HERETO, OR ITS AGENTS, OFFICERS, PARTNERS, SHAREHOLDERS,
SERVANTS OR EMPLOYEES, AND COVENANTS THAT NO INSURER SHALL HOLD ANY RIGHT OF
SUBROGATION AGAINST SUCH OTHER PARTY ON ACCOUNT THEREOF.
ARTICLE VII
DEFAULTS, REMEDIES, BANKRUPTCY, SUBORDINATION
7.1 Default and Remedies.
(a) The occurrence of any of the following shall constitute an Event of
Default ("Event of Default") under this Lease on the part of Tenant:
(i) Failure to pay any payment of Rent when due (including, without
limitation, Annual Basic Rent, Excess Basic Rent, if any, Tenant's
Operating Expense Share, Tenant's Tax Share and Above Standard Services
Rent) and such failure to pay continues for a period of ten (10) days after
written notice thereof from Landlord to Tenant; provided that Landlord
shall not be obligated to send written notice of a failure to pay more than
two (2) times in any consecutive twelve (12) month period, or
(ii) At any time that Tenant does not satisfy the Net Worth Test,
failure of Tenant to maintain any policy of insurance that Tenant is
required by the terms of this Lease to maintain and such failure continues
for a period of ten (10) business days after written notice from Landlord
to Tenant of such failure, which notice shall (A) specify the insurance
policy which Tenant has failed to maintain and the provision of this Lease
which requires Tenant to maintain such insurance, and (B) state, in all
capital letters and in a prominent place, that the continuance of such
failure to maintain insurance for ten (10) business days after Tenant's
receipt of such written notice will constitute an Event of Default under
Section 7.1(a) of the Lease, or
(iii) Tenant breaches or fails to comply with any term, provision,
condition or covenant of this Lease, other than as described in Section
7.1(a)(i) and (ii), and such breach or failure continues for thirty (30)
days after written notice from Landlord to Tenant of such breach or failure
to comply (or, if such breach or failure is curable but reasonably cannot
be cured within thirty (30) days, Tenant does not commence to cure such
breach or failure promptly within such thirty (30) day period and
continuously and diligently thereafter pursue such cure and remedy until
such breach or failure is remedied; provided that there shall be a maximum
period of one hundred eighty (180) days after Landlord's written notice to
cure or remedy such default, except that such maximum cure period shall
extended as appropriate for delays caused by Force Majeure Events.
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(b) Upon the occurrence of an Event of Default, subject to Section 7.1(e)
below, Landlord shall have the option to do and perform any one or more of the
following in addition to, and not in limitation of, any other remedy or right
permitted it by law or in equity or by this Lease:
(i) Landlord may immediately or at any time thereafter, collect all
overdue Rent and other charges payable to Landlord, together with
Landlord's legal fees and costs of enforcement, with interest at the
Applicable Rate from the date such sums were originally due until the date
paid in full.
(ii) Landlord may immediately or at any time thereafter re-enter the
Leased Premises and correct or repair any condition which shall constitute
a failure on Tenant's part to keep, observe, perform, satisfy, or abide by
any term, condition, covenant, agreement, or obligation of this Lease or of
the Building Rules now in effect or hereafter adopted or of any notice
given Tenant by Landlord pursuant to the terms of this Lease, and Tenant
shall fully reimburse and compensate Landlord on demand.
(iii) Subject to the limitations expressed in Section 7.1(e),
Landlord, with or without terminating this Lease, may immediately or at any
time thereafter demand in writing that Tenant vacate the Leased Premises
and thereupon Tenant shall immediately vacate the Leased Premises and
remove therefrom all property thereon (other than Non-Removable
Improvements) belonging to or placed in the Leased Premises by, at the
direction of, or with consent of Tenant, whereupon Landlord shall have the
right to re-enter and take possession of the Leased Premises. Any such
demand, re-entry and taking possession of the Leased Premises by Landlord
shall not of itself constitute an acceptance by Landlord of a surrender of
this Lease or of the Leased Premises by Tenant and shall not of itself
constitute a termination of this Lease by Landlord.
(iv) Subject to the limitations expressed in Section 7.1(e), Landlord
may immediately or at any time thereafter, re-enter the Leased Premises,
and if persons or any of Tenant's property are then in the Leased Premises,
then, upon prior written notice to Tenant, Landlord may remove therefrom
Tenant and all property belonging to or placed on the Leased Premises by,
at the direction of, or with consent of Tenant, all at Tenant's expense.
Any such re-entry and removal by Landlord shall not of itself constitute an
acceptance by Landlord of a surrender of this Lease or of the Leased
Premises by Tenant and shall not of itself constitute a termination of this
Lease by Landlord.
(v) Subject to the limitations expressed in Section 7.1(e), Landlord,
without terminating this Lease, may immediately or at anytime thereafter
relet the Leased Premises or any part thereof, for such time or times, at
such rental or rentals and upon such other terms and conditions as Landlord
deems reasonable, and Landlord may make any alterations or repairs to the
Leased Premises that are necessary or proper to facilitate such reletting
as office space; and Tenant shall pay all costs of such reletting,
including, but not limited to, the cost of any such alterations and repairs
to the Leased Premises and reasonable attorneys' fees actually incurred;
and Tenant shall continue to pay all Rent due under this Lease up to and
including the date of beginning of payment of rent by any subsequent tenant
of part or all of the Leased Premises, and thereafter Tenant shall pay
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monthly during the remainder of the Term the amount, if any, by which the
Rent and other charges reserved in this Lease exceed the rent and other
charges collected from any such subsequent tenant or tenants (net of the
costs Landlord incurred to re-enter and relet the Leased Premises), but
Tenant shall not be entitled to receive any excess of any such rents
collected over the Rent reserved herein. Landlord hereby agrees to use its
commercially reasonable efforts to relet the Leased Premises to mitigate or
otherwise reduce the damages for which Tenant may be liable hereunder, but
only to the extent required under applicable law in the state in which the
Building is located; provided that in no event shall Landlord's leasing or
attempted leasing of other space in the Building instead of the Leased
Premises, in and of itself, violate the provisions of the preceding
sentence. Any such reletting may be for such rent, for such time, and upon
such terms as the Landlord, in the Landlord's good faith discretion, shall
determine to be commercially reasonable. Landlord shall be deemed to have
exercised commercially reasonable efforts to relet the Leased Premises so
long as Landlord or Landlord's agents employ marketing methods and
procedures substantially similar to marketing methods and procedures used
by Landlord or Landlord's agents to market and lease vacant space in other
buildings, which are similar in nature and quality to the Building, owned
by Landlord or an affiliate of Landlord.
(vi) Subject to the limitations expressed in Section 7.1(e), Landlord
may immediately or at any time thereafter terminate this Lease, and this
Lease shall be deemed to have been terminated upon notice to Tenant of such
termination; upon such termination Landlord shall elect to either recover
from Tenant (A) all damages Landlord may suffer by reason of such
termination including, without limitation, all arrearages in rentals,
costs, charges, additional rentals, and reimbursements, the cost (including
court costs and reasonable attorneys' fees) of recovering possession of the
Leased Premises, the actual or estimated (as reasonably estimated by
Landlord) cost of any alteration of or repair of the Leased Premises that
is necessary or proper to prepare the same for reletting as office space,
or (B) all arrearages in rentals, plus an amount equal to the excess, if
any, of the present value discounted at the Prime Rate of the total amount
of all Rent to be paid by Tenant for the remainder of the Term, over the
present value (discounted at the same rate) of the fair market rental value
of the Leased Premises for the remainder of the Term.
(c) If Landlord re-enters the Leased Premises or terminates this Lease
pursuant to any of the provisions of this Lease, Tenant hereby waives all claims
for damages that may be caused by such re-entry or termination by Landlord
pursuant to the provisions of this Lease. Tenant shall and does hereby indemnify
and hold Landlord harmless from any loss, cost (including court costs and
attorneys' fees), or damages suffered by Landlord by reason of such re-entry or
termination unless caused by Landlord's gross negligence.
(d) The exercise by Landlord of any one or more of the rights and remedies
provided in this Lease shall not prevent the subsequent exercise by Landlord of
any one or more of the other rights and remedies herein provided. Except as
otherwise provided in this Lease, remedies provided for in this Lease are
cumulative and may, at the election of Landlord, be exercised alternatively,
successively, or in any other manner and are in addition to any other rights
provided for or allowed by law or in equity.
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(e) Notwithstanding the provisions set forth in Sections 7.1(b)(iii)
through (vi), Landlord may not:
(i) terminate this Lease as to any Project or Projects unless either
(A) Tenant shall have failed to pay, without the contractual right to xxxxx
or offset as herein otherwise provided, Rent for such Project or Projects
in an amount equal to or greater than the amount of three (3) months'
Annual Basic Rent then due and payable with respect to such Project or
Projects, and such failure to pay continues for a period of ten (10) days
following Tenant's receipt of written notice thereof from Landlord, which
notice shall state in all capital letters (or other prominent display) that
this Lease may be terminated as to such Project or Projects if Tenant fails
to promptly pay all overdue Rent for such Projects or Projects, or (B)
Tenant shall fail to comply with any final order relating to such Project
or Projects rendered pursuant to the dispute resolution procedures outlined
in Article XII within the time periods set forth in such order, or, if no
time periods are set forth therein, then within such time period as is
reasonably necessary to promptly and diligently comply with such order, but
not to exceed sixty (60) days, subject to appropriate extensions for delays
caused by Force Majeure Events, and such failure to comply continues for a
period of thirty (30) days following Tenant's receipt of written notice
thereof from Landlord, which notice shall state in all capital letters (or
other prominent display) that this Lease may be terminated as to such
Project or Projects if Tenant fails to promptly comply with the
requirements of such order; or
(ii) terminate this Lease in its entirety unless Tenant shall have
failed to pay, without the contractual right to xxxxx or offset as herein
otherwise provided, Rent in an amount equal to or greater than the amount
of three (3) months' Annual Basic Rent then due and payable with respect to
all Projects under this Lease, and such failure to pay continues for a
period of ten (10) days following Tenant's receipt of written notice
thereof from Landlord, which notice shall state in all capital letters (or
other prominent display) that this Lease may be terminated if Tenant fails
to promptly pay all overdue Rent.
(f) If Landlord should fail to perform or observe any covenant, term,
provision or condition of this Lease and such default should continue beyond a
period of ten (10) days as to a monetary default or thirty (30) days (or such
longer period as is reasonably necessary to remedy such default; provided
Landlord shall continuously and diligently pursue such remedy at all times until
such default is cured) as to a non-monetary default, after in each instance
written notice thereof is given by Tenant to Landlord (and a copy of said notice
is sent simultaneously therewith to the Notice Parties) ("Landlord Default"),
then, in any such event Tenant shall have the right, (i) to cure or attempt to
cure the Landlord Default (upon twenty-four (24) hours' notice in the event of
an emergency, notwithstanding the foregoing provisions of this Section 7.1(f)),
and Landlord shall reimburse Tenant for all reasonable sums expended in so
curing the Landlord Default or (ii) to commence such actions at law or in equity
to which Tenant may be entitled. The exercise by Tenant of any one or more of
the rights and remedies provided in this Lease shall not prevent the subsequent
exercise by Tenant of any one or more of the other rights and remedies herein
provided. Except as otherwise provided in this Lease, remedies provided for in
this Lease are cumulative and may, at the election of Tenant, be exercised
alternatively, successively, or in any other manner and are in addition to any
other rights provided for or
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allowed by law or in equity, including without limitation the right to claim
that Tenant has been constructively evicted.
(g) Notwithstanding the provisions of Section 7.1(e) hereof, if Landlord
should fail to maintain any policy of insurance which Landlord is required by
the terms of this Lease to maintain and such failure continues for a period of
ten (10) business days after written notice from Tenant to Landlord and all
Notice Parties of such failure, which notice shall (A) specify the insurance
policy which Landlord has failed to maintain and the provision of this Lease
which requires Landlord to maintain such insurance. Tenant's sole and exclusive
recourse and remedy for Landlord's failure to maintain any such policy of
insurance shall be limited to the limited offset right provided in Section 13.1.
7.2 Insolvency or Bankruptcy. The appointment of a receiver to take possession
of all or substantially all of the assets of Tenant, or any general assignment
by Tenant for the benefit of creditors, or any action taken by Tenant under any
insolvency, bankruptcy, or reorganization act, or an involuntary proceeding
against Tenant that is not dismissed or bonded against within one hundred twenty
(120) days after the filing thereof, shall at Landlord's option, constitute a
breach of this Lease by Tenant. Upon the happening of any such event or at any
time during the duration of such event, this Lease shall terminate five (5) days
after notice of termination from Landlord to Tenant. In no event shall this
Lease be assigned or assignable by voluntary or involuntary bankruptcy or a
proceeding in lieu thereof and in no event shall this Lease or any rights or
privileges hereunder be an asset of Tenant under any bankruptcy, insolvency, or
reorganization proceedings.
7.3 Negation of Lien for Rent. Landlord hereby expressly waives and negates any
and all contractual liens and security interests, statutory liens and security
interests or constitutional liens and security interests arising by operation of
law to which Landlord might now or hereafter be entitled on all property of
Tenant now or hereafter placed in or upon the Leased Premises, except for
judgment liens, if any.
7.4 Attorney's Fees. If either party is in default beyond any applicable grace
or notice period in the performance of any of the terms of this Lease and the
other party employs an attorney in connection therewith, the non-prevailing
party agrees to pay the prevailing party's reasonable attorneys' and paralegals'
fees and costs, at all levels, before, during and after trial, and on appeal.
7.5 No Waiver of Rights. No failure or delay of Landlord or Tenant in any one
instance to exercise any remedy or power given it herein or to insist upon
strict compliance by Tenant or Landlord of any obligation imposed on it herein
in any other instance and no custom or practice of either party hereto at
variance with any term hereof shall constitute a waiver or a modification of the
terms hereof by such party in any one instance or any right it has herein to
demand strict compliance with the terms hereof by the other party in any other
instance. No express waiver shall affect any condition, covenant, rule, or
regulation other than the one specified in such waiver and then only for the
time and in the manner specified in such waiver. No person has or shall have any
authority to waive any provision of this Lease unless such waiver is expressly
made in writing and signed by an authorized officer of Landlord or Tenant. No
endorsement or statement on any check or letter accompanying any check or
payment as Rent be deemed an
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accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such Rent or pursue any
other remedy provided in this Lease.
7.6 Holding Over.
(a) Except as provided in Section 7.6(b), in the event of holding over by
Tenant after expiration or termination of this Lease without the written consent
of Landlord, Tenant shall pay for the entire holdover period as liquidated
damages, solely for such holding over, one hundred fifty percent (150%) of the
Annual Basic Rent that would have been payable if the Lease had not so
terminated or expired plus one hundred fifty percent (150%) of all Rent other
than Annual Basic Rent (including, without limitation, Tenant's Operating
Expense Share and Tenant's Tax Share) that would have been payable if this Lease
had not so terminated or expired. Nothing in this Section 7.6(a) shall be
construed as granting Tenant a right to retain possession of the Leased
Premises, or as limiting Landlord's right to recover possession of the Leased
Premises, after the expiration or termination of this Lease as to such Leased
Premises.
(b) Notwithstanding the provisions of Section 7.6(a), Tenant shall be
permitted to holdover in the Leased Premises, or a portion thereof, for a period
of time not to exceed sixty (60) days after the expiration of the Term (whether
the Initial Term or the Term as renewed) if and only if: (1) Landlord has not
already leased the portion of the Leased Premises in which Tenant is holding
over, and (2) Tenant gives Landlord written notice of such intent to holdover
within thirty (30) days prior to the expiration of the Term; such written notice
shall specify the length of time Tenant intends to holdover and the portion of
the Leased Premises in which Tenant intends to holdover. If Tenant elects to
holdover pursuant to the preceding sentence, such holdover will be on an AS-IS
basis except that the Annual Basic Rent shall be one-hundred twenty-five percent
(125%) of the Annual Basic Rent applicable to such Leased Premises immediately
prior to such holdover.
7.7 Subordination. Landlord represents and warrants to Tenant that as of the
Commencement Date, there is no ground lease or other superior lease presently
encumbering the Leased Premised, and no mortgage or deed of trust lien presently
encumbering the Leased Premises. Landlord will provide to Tenant, within thirty
(30) days following the recording of a mortgage or deed of trust encumbering a
Project (the holder thereof, or of a ground lease or other superior lease to
which this Lease may hereafter be subject, being hereafter referred to as an
"Interest Holder"), a non-disturbance agreement in the form attached hereto as
Exhibit D or such other form as shall be reasonably satisfactory to Tenant and
such Interest Holder, and such form in any event shall specifically include
provisions that, in the case of a deed of trust or mortgage, in the event of any
foreclosure or other enforcement under the mortgage or deed of trust, either by
judicial proceeding or by power of sale, or if conveyance or transfer of the
Project shall be made in lieu of foreclosure, or in the case of a lease, in the
event of any termination of the lease for any reason (whether or not because of
exercise by lessor of any right or remedy) or any enforcement of remedies by the
lessor thereof (any such foreclosure or conveyance in lieu of foreclosure, and
any such lease termination or enforcement of lease remedies, being herein
referred to as "Enforcement"), then this Lease shall not be terminated as a
result of such Enforcement, whether by operation of law or otherwise, but
rather, notwithstanding such Enforcement, and the fact that this Lease is
subordinate to the deed of trust mortgage or lease (as the case may be), this
Lease
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shall continue in full force and effect as a binding lease agreement between
Owner and Tenant in accordance with its provisions, and the rights of Tenant
under this Lease shall not be interfered with nor disturbed by any party owning
the Project or any interest therein as a result of Enforcement, or such party's
successors and assigns (any such owner, and its successors and assigns, being
herein called "Owner"). However, nothing herein shall negate the right of Owner
to exercise the rights and remedies of Landlord under this Lease, including,
without limitation, the right to terminate this Lease as provided herein in the
event of a default by Tenant under this Lease, and as to any default by Tenant
under this Lease existing at the time of Enforcement, such Enforcement shall not
operate to waive or xxxxx any action initiated by Landlord under this Lease to
terminate the same on account of such default. Tenant agrees to subordinate its
interest under this Lease to any ground lease, mortgage or deed of trust lien
hereafter placed on the Project; provided that as a condition to such
subordination, the party to whose interest Tenant subordinates its interest
hereunder shall execute and deliver to Tenant a subordination, non-disturbance
and attornment agreement in the form attached as Exhibit D, or in another form
otherwise meeting the requirements of this Section. Unless and until a
subordination, non-disturbance and attornment agreement is entered into between
Tenant and the applicable party, the holder of any ground or land lease that may
now affect any of the Land or the holder of any mortgage or deed of trust that
may now encumber the Project may elect at any time to cause their interests in
the Land or the Project to be subordinate and junior to Tenant's interest under
this Lease by filing an instrument in the real property records of the county in
which the Building is located effecting such election and providing Tenant with
notice of such election.
7.8 Estoppel Certificate. At the request of either Landlord or Tenant, the other
party will execute within ten (10) business days from the date of receipt of the
request, from time to time, an estoppel certificate substantially in the form
attached hereto as Exhibit E or in such other form as may be reasonably
requested by the requesting party; provided that any request submitted by
Landlord requesting an estoppel certificate by Tenant shall be accompanied by an
estoppel certificate executed by Landlord indicating whether or not there are
any then existing defaults by Tenant under this Lease, and if so, describing
said defaults. Tenant and any third party certifying, to the best of such
party's knowledge and belief, to the facts (if true) described in such
certificate.
7.9 Subsequent Documents. Any provision in this Lease for Tenant or Landlord to
execute estoppel certificates, subordination, non-disturbance or attornment
agreements or other documents pertaining to this Lease, is subject to the
requirements that, except as provided in this Lease or otherwise agreed to, any
such document must involve no diminution of Tenant's or Landlord's rights
provided for in this Lease, no additional liability of Tenant or Landlord, and
no cost or expense to Tenant or Landlord; and any estoppel certificate regarding
Lease defaults or breaches shall be limited to the actual knowledge of the
signing representative.
7.10 Interest Holder Privileges. In the event of any Landlord's Default, Tenant
shall give written notice thereof to Landlord and to any Interest Holder whose
address shall have been furnished to Tenant, such notice to be delivered to said
Interest Holder at the same time notice is delivered to Landlord. Tenant shall
offer such Interest Holder the same opportunity to cure the default as Landlord
is entitled, and Tenant shall forbear in the exercise of any rights or remedies
in the interim.
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ARTICLE VIII
SUBLEASING, ASSIGNMENT, LIABILITY, AND CONSENTS
8.1 Sublease or Assignment by Tenant.
(a) Tenant shall not (i) assign, convey or otherwise transfer (whether
voluntarily, by operation of law, or otherwise) this Lease or any interest
hereunder to any party other than to an Affiliate or corporate successor of
Tenant or (ii) allow any lien to be placed upon Landlord's or Tenant's interest
hereunder in and to the Leased Premises or the Projects or the estates or
interests created by this Lease.
(b) Subject to the provisions of this Section 8.1(b), Tenant may, at any
time during the Term, sublease all or a portion of the Leased Premises; provided
that any sublease for a term of longer than five (5) years, other than a
sublease to an Affiliate or corporate successor of Tenant or to one or more of
Tenant's vendors for the purpose of allowing such vendors to place their
personnel on-site at Tenant's premises during the duration of the vendor/vendee
relationship, shall be subject to and contingent upon Landlord's right of
recapture as provided in this Section 8.1(b). If Tenant desires to sublet all or
any portion of the Leased Premises to a person or entity other than an
Affiliate, corporate successor or Tenant vendor for a term of longer than five
(5) years, Tenant shall notify Landlord in writing at least twenty (20) days
prior to the date on which Tenant desires such sublease to become effective
(hereinafter referred to in this Section 8.1(b) as the "Transfer Notice") of the
(i) economic terms of the proposed subletting, (ii) the identity of the proposed
sublessee, (iii) the area proposed to be sublet (hereinafter referred to as the
"Sublet Space"), and (iv) the use to be made by such sublessee of such Sublet
Space. The Transfer Notice shall also state in all capital letters (or other
prominent display), that Landlord shall be deemed to have declined to recapture
the Sublet Space and to have approved the sublease if Landlord fails to respond
within twenty (20) days after receipt thereof. If Landlord fails to respond to
such Transfer Notice within twenty (20) days after receipt thereof, Landlord
shall be deemed to have approved the proposed sublease as set forth in the
Transfer Notice. Tenant agrees to use its reasonable efforts to promptly provide
any additional information about a proposed sublease that is reasonably
requested by Landlord. Tenant shall deliver a copy of any such sublease to
Landlord promptly after its execution. If Tenant shall fail to consummate the
sublease that was the subject of the Transfer Notice on the same terms as those
set forth in the Transfer Notice within ninety (90) days following the date of
the Transfer Notice, then Tenant shall be obligated to deliver to Landlord a
further Transfer Notice in regard to the proposed sublease, and the process
shall be repeated until the sublease shall be signed within the time and on the
terms required, or Landlord shall elect to recapture the Sublet Space. If
Landlord elects to recapture the Sublet Space, upon such recapture and Tenant's
surrender and Landlord's acceptance of the Sublet Space, (i) Tenant shall be
released from its obligations under this Lease for the remainder of the Term of
this Lease as they relate to the recaptured Sublet Space only, including,
without limitation, Tenant's obligation to pay Annual Basic Rent and Tenant's
Operating Expense Share and Tenant's Tax Share as they relate to the recaptured
Sublet Space only, and (ii) Landlord shall pay all leasing commissions, tenant
improvement allowances and other costs associated with releasing the recaptured
Sublet Space and all costs associated with demising the recaptured Sublet Space
for separate occupancy. No release of Tenant from its obligations under this
Lease as they relate to Sublet Space recaptured by Landlord as aforesaid
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shall be deemed an exercise by Tenant of any Contraction Rights granted to
Tenant pursuant to Article XI.
(c) Anything in this Lease contained to the contrary notwithstanding,
Tenant shall not have the right to sublease all of any portion of the Leased
Premises to an organization or person enjoying sovereign or diplomatic immunity,
a medical or dental practice that will attract a volume, frequency or type of
visitor or employee to the Building which is not consistent with the standards
of a high quality office building or that will impose an excessive demand on or
use of the facilities or services of the Building.
(d) Each sublessee must fully observe all covenants of this Lease
applicable to the Sublet Space, and no consent by Landlord to a sublease shall
be deemed in any manner to be a consent to a use not permitted under this Lease.
During the occurrence of an Event of Default by Tenant hereunder, Landlord may
collect subrentals directly from a sublessee of the Sublet Space.
(e) Notwithstanding the giving by Landlord of its consent or approval to
any subletting, assignment or occupancy as provided in this Section 8.1 or any
language contained in such lease, sublease or assignment to the contrary, except
to the extent this Lease or any obligation or liability of Tenant hereunder is
expressly terminated or released in writing by Landlord, Tenant shall not be
relieved of any of Tenant's obligations or covenants under this Lease and Tenant
shall remain fully liable hereunder.
(f) Any attempted assignment, sublease or other transfer by Tenant in
violation of the terms and covenants hereof shall be void and shall be a breach
under Section 7.1(a)(iii), with respect to which, however, no grace period shall
apply. Any consent or approval by Landlord to a particular assignment, sublease
or other transfer shall not constitute Landlord's consent or approval to any
other or subsequent assignment, sublease or other transfer, and any proposed
assignment, sublease or other transfer by an assignee, sublessee or transferee
of Tenant or any other assignee, sublessee or transferee shall be subject to the
provisions hereof as if it were a proposed assignment, sublease or other
transfer by Tenant.
(g) Tenant agrees to reimburse Landlord for reasonable legal fees and costs
incurred by Landlord in connection with Landlord's consideration of any request
by Tenant for a Subtenant Non-Disturbance Agreement in connection with a Cost
Approved Sublease, it being understood that, if the sublease does not satisfy
the criteria for a Cost Approved Sublease, Landlord may grant or withhold its
approval of the Subtenant Non-Disturbance Agreement in Landlord's sole
discretion.
(h) If (i) Landlord declines its right of recapture and Tenant thereafter
enters into a sublease that satisfies mutually acceptable criteria theretofore
established by Landlord and Tenant or (ii) Tenant obtains Landlord's prior
written approval of the particular sublease, including without limitation, the
term, the subtenant, the subrent, the sublease improvement allowances and other
material economic and non-economic terms of the sublease before Tenant enters
into the sublease with the third party subtenant (a subtenant who is neither an
Affiliate, corporate successor of Tenant nor a Tenant vendor); it being
understood that, if the sublease does not satisfy the mutually approved
criteria, Landlord may grant or withhold its approval of the sublease for
purposes of this cost reimbursement in Landlord's sole discretion (any such
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sublease, a "Cost Approved Sublease"), then Landlord shall reimburse Tenant for
the unamortized balance (computed without interest on a straight line basis over
the basic term of the Cost Approved Sublease, excluding renewals) of the actual,
documented leasing commissions and subtenant improvement expenditures made by
Tenant in connection with delivering the Sublet Space to the subtenant pursuant
to the Cost Approved Sublease, calculated and payable as of the date Tenant
surrenders possession of the subject Sublet Space to Landlord. If so requested
by Landlord, Tenant shall deliver to Landlord, a statement in reasonable detail
itemizing Tenant's sublease improvement expenditures to the Sublet Space and
such other and further information and documentation regarding the Cost Approved
Sublease as Landlord shall reasonably request.
(i) Any provision of the Lease to the contrary notwithstanding, the rights
granted to Tenant pursuant to provisions of Section 1.4 (Options to Renew),
Section 3.4 (Building Identity; Signage; Exclusivity), Article IX (Purchase and
Sale), Article X (Expansion Rights) and Article XI (Contraction Rights) are
personal to the herein named Tenant and any corporate successor or permitted
assignee of this Lease and such rights may not be assigned or subleased to, or
exercised by, any other person or entity, it being understood that no assignment
of this Lease or subletting of all or a portion of the Leased Premises shall
cancel or void any of the aforesaid rights as they pertain to the herein named
Tenant and any corporate successor permitted assignee of this Lease. Tenant
shall furnish to Landlord copies of any and all subleases executed by Tenant
within ten (10) business days following the date such sublease is by its terms
effective and whether such sublease is a Cost Approved Sublease and, if so,
Tenant's sublease improvement expenditures incurred in connection therewith. All
subleases shall by their terms be subject and subordinate to this Lease as
amended from time to time.
(j) In any instance in which Landlord shall have the right of recapture but
Tenant shall, in violation of Section 8.1(b), sublease Sublet Space without
first offering the same to Landlord, then without limitation of Landlord's
rights, Landlord shall have the continuing right of recapture pursuant to
Section 8.1(b) upon learning of such sublease and so advising Tenant; the twenty
(20) day response period reserved to Landlord under Section 8.1(b) being deemed
tolled until the date Tenant delivers a Transfer Notice in respect of the Sublet
Space and shall run for a period of twenty (20) days thereafter. If Tenant shall
have subleased the Sublet Space at a profit (after deduction of Tenant's
reasonable, documented costs of subleasing) and Landlord thereafter elects to
recapture, then Tenant shall be obliged to compensate Landlord, upon Landlord's
demand, in the full amount of such profit from the inception of such sublease to
the date of recapture. Except as provided in this Section 8.1(j), Tenant shall
retain any and all profits on subleasing.
8.2 Assignment by Landlord. At any time after the Commencement Date, but subject
to the provisions of Section 9.3, Landlord shall have the right to transfer,
assign or convey, in whole or in part, the Projects of which the Leased Premises
are a part, or any portion or portions thereof, and any and all of its rights
under this Lease, and in the event Landlord transfers, assigns, or conveys its
rights and obligations under this Lease, Landlord shall thereby be released from
any future obligations hereunder and Tenant agrees to look solely to such
successor in interest of the Landlord for performance of such future obligations
to the extent such successor in interest has, by written instrument of which a
copy has been delivered to Tenant, assumed all of the liabilities and
obligations of its predecessor in interest under this Lease accruing from and
after the date of
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such transfer, assignment or conveyance; the foregoing provision shall not
release the transferring Landlord from any obligation or liability which has not
been assumed by such successor in interest of Landlord. Except for such release
of the prior Landlord, in no event shall any transfer, assignment or conveyance
affect or otherwise impair the rights of Tenant to accrued self-help, abatement
or other rights and remedies of Tenant hereunder arising out of any breach of an
express warranty or representation of any Landlord contained in this Lease, the
failure of any Landlord to perform any covenant of Landlord under this Lease or
otherwise arising out of this Lease. Notwithstanding any other provision of this
Lease, except as expressly provided in Sections 9.3, no transfer, assignment or
conveyance of interest of the transferring Landlord in all or any part of the
Project or the Land shall release or reduce, or prejudice Tenant's rights
against the transferring Landlord with respect to, any liabilities or
obligations of Landlord which accrued, or relate to any period of time, prior to
the date of such transfer, assignment or conveyance.
ARTICLE IX
PURCHASE AND SALE
9.1 Tenant's Right of First Refusal to Purchase. If at any time during the
Initial Term of this Lease, Landlord shall receive a bona fide offer (a "Third
Party Offer") from a third party (other than a purchaser making a bid at any
sale incidental to the exercise of any remedy provided for in any mortgage
encumbering a Building or a Project, or a proposed transaction with an Affiliate
of Landlord) to purchase a Major Property, which Third Party Offer is in all
respects acceptable to Landlord, and if at the time Landlord receives such Third
Party Offer, no Event of Default has occurred hereunder and shall be continuing
and the herein named Tenant, or its Affiliates, shall remain in possession of at
least thirty-five percent (35%) of the Net Rentable Area of such Major Property,
then Landlord shall notify Tenant of such Third Party Offer. If both of the
conditions enumerated in the previous sentence shall be satisfied, Landlord
shall notify Tenant of such Third Party Offer and for a period of twenty (20)
days after such notice is sent by Landlord, Tenant shall have the exclusive
right to accept Landlord's offer to purchase Landlord's interest in the Major
Property upon the terms and conditions set forth in the Third Party Offer.
Tenant shall exercise such right of first refusal, if at all, by delivering its
written purchase offer to Landlord within said twenty (20) days after the date
of Landlord's notice. Such purchase shall occur not later than sixty (60) days
following Tenant's acceptance of Landlord's offer. On the date of such purchase,
Landlord shall convey and assign to Tenant, or its designee, Landlord's interest
in the Major Property in consideration of payment of the sale price therefor, in
accordance and upon compliance with the terms and conditions of the Third Party
Offer, and this Lease shall terminate with respect to the Leased Premises
located in the Major Property conveyed to Tenant. If Tenant fails to accept
Landlord's offer within such twenty (20) day period, then Landlord shall be free
to sell the Major Property for a period of nine (9) months thereafter on the
same economic terms and conditions (or on different terms more favorable to
Landlord, as seller) without offering the Major Property to Tenant. If Landlord
does not convey its interest in the Major Property within such nine (9) month
period, then Tenant's rights pursuant to this paragraph shall be reinstated. In
no event shall the right of first refusal provided in this Section 9.1 apply to
any foreclosure of any Project or the delivery of any deed-in-lieu of
foreclosure and such right of first refusal shall terminate and be of no further
force or effect upon and following a foreclosure or the delivery of a
deed-in-lieu of foreclosure.
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9.2 Right of First Offer on Sale.
(a) During the Initial Term, with respect to all Projects that are not
Major Properties, and during each and any Renewal Term, with respect to all
Projects for which Tenant shall have renewed the term hereof in accordance with
the provisions of Section 1.4 of this Lease (as applicable, a "ROFO Eligible
Property"), so long as no Event of Default shall have occurred hereunder and be
continuing, and for so long as the herein named Tenant, or its Affiliates, shall
remain in possession of at least thirty-five percent (35%) of the Net Rentable
Area of such ROFO Eligible Property (together, the "ROFO Eligible Conditions"),
Tenant shall have the right of first offer to purchase such Projects should
Landlord determine to sell such ROFO Eligible Property, as more fully provided
below. In no event shall the right of first offer provided in this Section 9.2
apply to any foreclosure of any Project or the delivery of any deed-in-lieu of
foreclosure and such right of first offer shall terminate and be of no further
force or effect upon and following a foreclosure or the delivery of a
deed-in-lieu of foreclosure.
(b) For so long as the ROFO Eligible Conditions persist, Landlord shall
notice Tenant as to the offer price as well as other economic terms upon which
Landlord wishes to sell the ROFO Eligible Property, specifying the last date
upon which Landlord will agree to make settlement on such sale. Tenant shall
have thirty (30) days following Landlord's delivery of such notice within which
to respond to such notice. If Tenant does not accept Landlord's offer within
such thirty (30) day period, Tenant's rights under this Section shall lapse and
Landlord shall thereafter be free to market and sell the ROFO Eligible Property
upon the same economic terms and for the price stated in the offer for a period
of nine (9) months; provided that if Landlord fails to execute a definitive
agreement to sell the ROFO Eligible Property within nine (9) months following
the date of Landlord's original notice to Tenant or, within such nine (9) month
period, Landlord desires to sell the ROFO Eligible Property for a purchase price
or on economic conditions that are less than the offer price and conditions
previously identified to Tenant, Landlord shall re-offer the ROFO Eligible
Property to Tenant as set forth above.
9.3 Separate Lease. If Landlord conveys a Project to a party that is not an
Affiliate of Landlord after complying with the provisions of Sections 9.1 and
9.2, to the extent that the same are applicable, if so requested in writing by
Landlord, Tenant, as tenant, shall execute a Separate Lease with the new owner
of the Project, as landlord, which Separate Lease shall relate solely to the
conveyed Project and shall (i) be for the same Term, including Renewal Terms, as
would otherwise pertain under this Lease (any such Separate Lease, a "Continuing
Term Separate Lease") or, at Landlord's election, but subject to disapproval by
Tenant in Tenant's sole discretion, an initial term of five (5) years, with
renewal terms of five (5) years each through the Expiration Date (any such
Separate Lease, a "Five Year Term Separate Lease"), (ii) be for the same Annual
Basic Rent, Excess Basic Rent, if any, and Additional Rent as would otherwise be
payable under this Lease (regardless of whether the Separate Lease is a
Continuing Term Separate Lease or a Five Year Term Separate Lease) and (iii)
otherwise be on all of the same terms and conditions as set forth in this Lease,
except that (A) if the Vacate Premises are located in a Project that is subject
to a Continuing Term Separate Lease, Tenant shall exercise the Contraction
Rights granted to Tenant under Article XI by entering into a Contraction
Assignment (if the Vacate Premises constitutes all of the Leased Premises at the
Project) or a Contraction Sublease (if the Vacate Premises constitutes a
portion, but less than all, of the Leased Premises at the Project) with FSG or,
at FSG's election, an Affiliate of FSG and (B)
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Tenant shall have no Contraction Rights under Article XI for any Projects
subject to Five Year Term Separate Leases. Immediately upon the execution of a
Separate Lease for a Project by the new owner of the Project and Tenant, this
Lease shall terminate with respect to such Project and the Separate Lease shall
in all aspects be controlling, except for FSG's obligation to enter into a
Contraction Assignment or a Contraction Sublease, as applicable, to effectuate
Tenant's exercise of Contraction Rights for any Project subject to Continuing
Term Separate Leases, which obligation of FSG shall continue so long as Tenant
continues to have Contraction Rights under this Lease.
ARTICLE X
EXPANSION RIGHTS
10.1 Tenant Expansion Notices. Tenant shall have the right, from time to time
during the Term of this Lease (but not more frequently than one time every
ninety (90) days), to notify Landlord (any such notice, a "Tenant Expansion
Notice") of Tenant's desire or potential desire to (a) lease additional space,
if available, in one or more Projects and/or (b) lease additional space, if
available, in geographic areas identified by Tenant in properties not subject to
this Lease, and to request that Landlord advise Tenant of all the space within
the Projects identified by Tenant and, if applicable, any properties that may be
owned by Landlord or another wholly owned Affiliate of FSG in the geographic
areas identified by Tenant (any such other property, an "Affiliate Owned
Property") that is then available for leasing or which is scheduled to become
available for leasing within the next eighteen (18) months. Notwithstanding the
foregoing, in no event shall any breach or default by Landlord or any Affiliate
of FSG with respect to any Affiliate Owned Property constitute a Landlord
Default or provide Tenant with the right to pursue any recourse or remedy
against Landlord pursuant to this Lease or otherwise, other than the right to
make a draw under the Landlord Letter of Credit pursuant to Section 13.2. Tenant
Expansion Notices shall identify (a) the Project or Projects that Tenant desires
to lease additional space in and/or, at Tenant's election, Tenant's geographic
requirements for Affiliate Owned Property, (b) the approximate Net Rentable Area
of the expansion space desired by Tenant, (c) the date by which Tenant desires
to occupy the expansion space and (d) whether Tenant is committing, in advance
of receiving the Landlord Expansion Response, to lease the space identified in
the Tenant Expansion Notice if and when available (any such space,
"Pre-Committed Space"), subject to Tenant's acceptance of Landlord's
determination of the Fair Market Rental Value of such Pre-Committed Space.
Tenant Expansion Notices may also include, or be combined with, Contraction
Rights Exercise Notices as provided in Article XI.
10.2 Landlord Expansion Response. Landlord shall, within fifteen (15) days
following Landlord's receipt of a Tenant Expansion Notice, respond to Tenant's
inquiry (any such response, a "Landlord Expansion Response") by advising Tenant
of (a) the location, approximate Net Rentable Area and configuration of any and
all potential expansion space that is then available or, within the next
eighteen (18) months, will become available for leasing in the Projects and/or
any Affiliate Owned Properties identified by Tenant in the Tenant Expansion
Notice, (b) the date by which Landlord anticipates that the potential expansion
spaces will become available and (c) Landlord's opinion of the Fair Market
Rental Value of the available potential expansion space. If no potential
expansion space that satisfies Tenant's criteria is available, the Landlord
Expansion Response shall so state.
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10.3 Expansion Space Leases. Subject to the limitations expressed in Section
10.5, Tenant shall have the right and option ("Expansion Rights") to lease all
or a portion of the available space identified in the Landlord Expansion
Response as either Coterminous Expansion Space or Short Term Expansion Space, as
Tenant may elect, on the following terms and conditions; provided that all
Expansion Space leased (a) during any Renewal Term and (b) in any Affiliate
Owned Property shall, regardless of Tenant's election, be regarded as Short Term
Expansion Space. Tenant shall exercise an Expansion Right by written reply to a
Landlord Expansion Response (any such timely reply, an "Expansion Space
Acceptance"), which shall specify, with particularity, (a) the location,
approximate Net Rentable Area and configuration of the space described in the
Landlord Expansion Response that Tenant desires to lease, (b) whether Tenant
desires to lease such space for a term that is coterminous with the Term of this
Lease ("Coterminous Expansion Space") or for a term of five (5) years, plus
renewals ("Short Term Expansion Space"), and (c) whether Tenant agrees with
Landlord's opinion of the Fair Market Value of the space that Tenant desires to
lease or if Tenant desires to have the same determined by appraisal as provided
in Sections 1.4(d) and (e). All space for which Tenant timely exercises an
Expansion Right, either as Coterminous Expansion Space or Short Term Expansion
Space, shall be referred to as "Expansion Space".
(a) Except for Tenant's obligation to pay Excess Basic Rent, if any, for
Coterminous Expansion Space to the extent provided in Section 10.4, Coterminous
Expansion Space shall be added as Leased Premises under this Lease on the same
terms and conditions as apply to all other Leased Premises (except Short Term
Expansion Space) as then demised hereunder, so that (i) the Annual Basic Rent
payable for the Coterminous Expansion Space be the same as the Annual Base Rent
payable for all other Leased Premises (except Short Term Expansion Space),
calculated as the Net Rentable Area of the Coterminous Expansion Space
multiplied by the Annual Basic Rent Factor and (ii) the Term of this Lease with
respect to the Coterminous Expansion Space shall be coterminous with the Term of
this Lease for all other Leased Premises (except Short Term Expansion Space) in
the Project in which the Coterminous Expansion Space are located, including any
Renewal Terms, as Tenant may elect. For each square foot of Net Rentable Area of
Coterminous Expansion Space added to the Leased Premises by Tenant, Tenant shall
receive and be permitted to exercise Relocation Rights as provided in Article XI
on Vacate Premises containing up to the same Net Rentable Area; provided that
Relocation Rights created by adding any particular Coterminous Expansion Space
may only be exercised, if at all, by Tenant's delivering a Contraction Rights
Exercise Notice to Landlord during the eighteen (18) month period following the
date on which such Coterminous Expansion Space was added to the Leased Premises
and Tenant began paying Rent thereon (such period for each Coterminous Expansion
Space, as applicable, the "Relocation Rights Exercise Period").
(b) Short Term Expansion Space shall be added as Leased Premises under this
Lease on the same terms and conditions as apply to all other Leased Premises as
then demised hereunder, except that (i) the Annual Basic Rent payable for the
Short Term Expansion Space shall be the Fair Market Rental Value of the Short
Term Expansion Space, determined by appraisal as provided in Sections 1.4(d) and
(e), (ii) the Term of this Lease with respect to the Short Term Expansion Space
shall be the lesser of (A) five (5) years or (B) the then remaining balance of
the Term for the remainder of the Leased Premises in the Project in which the
Short Term Expansion Space are located, (iii) Tenant shall have the right,
exercisable by written notice to Landlord not less than twelve (12) months prior
to the expiration of the then current Term for
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the Short Term Expansion Space, to renew the Term for the Short Term Expansion
Space for one or more periods, as Tenant may elect, each equal to the lesser of
(A) five (5) years or (B) the then remaining balance of the Term for the
remainder of the Leased Premises in the Project in which the Short Term
Expansion Space are located, (iv) the Annual Basic Rent payable in respect of
the Short Term Expansion Space during any renewal Term shall be the Fair Market
Rental Value of the Short Term Expansion Space, determined as of the date of
Tenant's renewal notice by appraisal as provided in Sections 1.4(d) and (e) and
(v) Tenant shall not be permitted to exercise Contraction Rights with respect to
any Short term Expansion Space.
(c) Tenant shall accept all Expansion Space in its "AS - IS" condition, and
Rent for all Expansion Space shall commence on the earlier of (i) the date
Tenant commences business operation in such Expansion Space or (ii) ninety (90)
days following the date on which Landlord delivers such Expansion Space to
Tenant free from the rights of other tenants and occupants. Tenant shall pay all
costs incident to Tenant's relocation to, moving into and making the Expansion
Premises ready for Tenant's use and occupancy, which tenant improvement work
shall be performed by Tenant in conformity with the provisions of Section 5.2.
(d) Promptly following Tenant's timely exercise of an Expansion Right,
Landlord and Tenant shall amend the Lease Supplement for the Project in which
the Expansion Space are located and Exhibit A to this Lease to reflect the
addition of the Expansion Space to the Leased Premises and to confirm the terms
thereof, including the Net Rentable Area of the Expansion Space, the Annual
Basic Rent payable in connection therewith, the Term of Expansion Space, the
change to Tenant's Occupancy Percentage resulting from the addition of the
Expansion Space and the Fair Market Rental Value of any Coterminous Expansion
Space for purposes of calculating Excess Basic Rent, if any, determined by
appraisal as provided in Sections 1.4(d) and (e). If the Expansion Space is
located in an Affiliate Owned Property, FSG shall cause the Affiliate that owns
such property to enter into a separate lease for the Expansion Space with Tenant
on the terms and conditions herein set forth and, to the extent applicable,
substantially in the form of this Lease.
(e) Tenant's right to lease less than all of the space identified in the
Landlord Expansion Response shall be qualified by the requirement that, if
Tenant desires to lease less than full floor in a Building, any available space
on such partial floor that is not leased by Tenant must have a size and
configuration, as reasonably agreed by Landlord and Tenant, that makes it
readily leaseable to third party tenants.
10.4 Excess Basic Rent; Recalculation of Termination Rights. Promptly following
the expiration of the Relocation Rights Exercise Period for each Coterminous
Expansion Space, Landlord shall determine whether Tenant has exercised, in whole
or in part, the Relocation Rights created by adding such Coterminous Expansion
Space to the Leased Premises and, if so, the Net Rentable Area of the Vacate
Premises so terminated. If the aggregate Net Rentable Area of the Vacate
Premises terminated from this Lease as a result of Tenant's exercise of the
Relocation Rights created by a particular Coterminous Expansion Space is less
than the Net Rentable Area of such Coterminous Expansion Space (the Net Rentable
Area of any such deficiency, the "Unused Relocation Rights Area"), and if the
Fair Market Rental Value of such Coterminous Expansion Space (determined as
provided in Section 10.3 and calculated on a cost per Net Rentable Area basis)
is greater than the Annual Basic Rent Factor at the time such
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Coterminous Expansion Space is added to the Leased Premises (the amount of any
such excess, expressed in cost per Net Rentable Area, the "FMRV Increment"),
Tenant shall pay Landlord additional basic rent ("Excess Basic Rent") during the
Initial Term of this Lease for such Coterminous Expansion Space, calculated as
the Unused Relocation Rights Area for such Coterminous Expansion Space
multiplied by the FMRV Increment for such Coterminous Expansion Space. The
Excess Basic Rent payable by Tenant during the Relocation Rights Exercise Period
for each Coterminous Expansion Space shall be payable, lump sum in arrears, at
the time Landlord determines that Excess Basic Rent is payable with respect to
such Coterminous Expansion Space. Thereafter, and continuing during the
remainder of the Initial Term, Excess Basic Rent shall be payable monthly, in
advance, at the same time that Annual Basic Rent is payable. Any Excess Basic
Rent payable by Tenant shall be increased by one and one-half percent (1.5%) at
the beginning of, as applicable, the sixth, eleventh and sixteenth Lease Years;
provided that the increase following any period of less than five (5) years
shall be pro rata. In the event Tenant is required to pay Excess Basic Rent with
respect to any Coterminous Expansion Space as herein provided, effective as of
the expiration of the Relocation Rights Exercise Period for such Coterminous
Expansion Space, Tenant's aggregate Termination Rights as described in Section
11.4 shall be increased by an amount equal to the Unused Relocation Rights for
such Coterminous Expansion Rights multiplied by six percent (6%), with such
product multiplied by a fraction, the numerator of which is the Lease Year in
which the Relocation Rights Exercise Period for such Coterminous Expansion Space
commenced and the denominator of which is twenty (20).
10.5 Subordination of Expansion Space Rights. Anything herein contained to the
contrary notwithstanding, Tenant's Expansion Rights as provided in this Article
X are and shall be subordinate to any rights heretofore or hereafter granted to
any other party with respect to space in any and all Projects and Affiliate
Owned Property. Landlord and the owners of Affiliate Owned Property may, at
their discretions, lease available space in any and all Projects and Affiliate
Owned Property to any other party on such terms and conditions as they shall
determine, at any time, including, without limitation, after Landlord's delivery
of a Landlord Expansion Response, but before Landlord's receipt of an Expansion
Space Acceptance with respect to any Expansion Space. Landlord and the owners of
Affiliate Owned Property may choose to use any space that is or about to become
vacant within any Project or Affiliate Owned Property for marketing or property
management purposes, without notifying or offering such space to Tenant, or
giving rise to any right of Tenant hereunder. Nothing contained in this Article
X is intended, nor may anything herein be relied upon by Tenant, as a
representation by Landlord or any other party as to the availability of
expansion space within any Project or Affiliate Owned Property at any time, and
neither Landlord nor the owner of Affiliate Owned Property shall be obligated to
lease any space identified as available on any Landlord Expansion Response to
Tenant unless, at the time Landlord receives an Expansion Space Acceptance,
Landlord or such owner shall not have entered into a letter of intent or a lease
agreement with respect to the Expansion Space that is covered by the Expansion
Space Acceptance. Notwithstanding the foregoing, Landlord shall not enter into a
lease or letter of intent for any space identified in a Tenant Expansion Notice
as Pre-Committed Space for a period of thirty (30) days following Landlord's
receipt of the Tenant Expansion Notice identifying such Pre-Committed Space.
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10.6 Duration. Tenant's Expansion Rights under this Article X shall continue
throughout the Term until there are fewer than twelve (12) months then remaining
in the Term and Tenant has not exercised any then available Renewal Option.
Notwithstanding the foregoing, Landlord shall cause all Separate Leases to
include Expansion Rights upon substantially the same the terms and conditions as
are set forth in this Article X; provided that Expansion Rights in a Separate
Lease shall be limited to leasing available space in the Project subject to such
Separate Lease (and not in any other Project or Affiliate Owned Property) and
Five Year Term Separate Leases shall only grant Tenant the right and option to
lease Short Term Expansion Space.
10.7 Disputes. Landlord and Tenant shall endeavor to resolve, in good faith, any
disagreement arising as a result of Tenant's exercise of Expansion Rights under
this Article X, failing which such disagreement shall be resolved in accordance
with Article XII; provided that no disagreement between Landlord and Tenant
regarding the contents of Tenant's Expansion Space Acceptance shall render any
otherwise effective Expansion Space Acceptance ineffective.
ARTICLE XI
CONTRACTION RIGHTS
11.1 Contraction Rights. Subject to the terms and conditions of this Article XI,
during the Initial Term of this Lease (but not during any Renewal Terms), Tenant
shall have the right and option ("Contraction Rights") to terminate this Lease
from time to time with respect to portions of the Leased Premises (excluding any
Short Term Expansion Space) and/or to terminate a Continuing Term Separate Lease
with respect to portions of the premises leased under such Continuing Term
Separate Lease (excluding any Short Term Expansion Space), as Tenant may elect,
either by exercise of Relocation Rights or Termination Rights on the following
terms and conditions.
11.2 Contraction Rights Exercise Notice. Tenant shall exercise a Contraction
Right by written notice to Landlord (any such notice, a "Contraction Rights
Exercise Notice"), which shall specify, with particularity, (a) the location,
approximate Net Rentable Area and configuration of the portions of the Leased
Premises (excluding any Short Term Expansion Space) and/or portions of the
premises leased under Continuing Term Separate Leases (excluding any Short Term
Expansion Space) that Tenant desires to vacate and to terminate this Lease
and/or a Continuing Term Separate Lease with respect to (such space, the "Vacate
Premises"), (b) the approximate date on which Tenant shall vacate and surrender
possession of the Vacate Premises to Landlord, which date shall be no earlier
than six (6) months following the date of Tenant's Contraction Rights Exercise
Notice, (c) whether Tenant desires to exercise its Contraction Rights for the
Vacate Premises as a Relocation Right or a Termination Right or a combination
thereof (and, if a combination, the Net Rentable Areas covered by each such form
of Contraction Right) and (d) Tenant's determination of the reduction in Rent
payable under this Lease and/or Continuing Term Separate Leases that will result
from Tenant's desired surrender of the Vacate Premises. If Tenant's Contraction
Rights Exercise Notice indicates that Tenant desires to exercise a Relocation
Right and, on the date of the Contraction Rights Exercise Notice, Tenant does
not have available Relocation Rights sufficient to cover the Net Rentable Area
of the Vacate Premises to be terminated by Relocation Rights, Tenant's
Contraction Rights Exercise Notice shall nevertheless be effective as to the
entire Vacate Premises identified therein and Tenant shall vacate and surrender
possession of such entire Vacate Premises to Landlord, but, on
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the Vacate Premises Surrender Date, Tenant's obligation to pay Rent on the
Vacate Premises shall terminate as provided in Section 11.5 only as to the
number of square feet of Net Rentable Area that Tenant has available Relocation
Rights to cover and Tenant shall continue to pay Rent on (but, after the Vacate
Premises Surrender Date, shall not have any possessory rights in) the excess
portion of the Vacate Premises until the earlier of the date on which (i) Tenant
generates the necessary Relocation Rights by adding sufficient additional
Coterminous Expansion Space to the Leased Premises and beginning to pay Rent
thereon or (ii) Tenant notifies Landlord in writing that Tenant desires to
exercise available Termination Rights on the excess Vacate Premises. The
approximate Net Rentable Area of the Vacate Premises shall be as identified by
Tenant in Tenant's Contraction Rights Exercise Notice, subject to final
measurement by Landlord in conformity with the Measurement Standard. Tenant may
exercise available Contraction Rights on whole or partial floors at any Project,
as Tenant may elect; provided that if Tenant elects to exercise Contraction
Rights on less than full floor in a Building, any such partial floor Vacate
Premises shall have a size and configuration, as reasonably agreed by Landlord
and Tenant, that makes it readily leaseable to third party tenants.
11.3 Relocation Rights. Subject to the terms and conditions of this Article XI,
during the Initial Term of this Lease (but not during any Renewal Terms), Tenant
shall have the right from time to time to exercise Contraction Rights by
surrendering to Landlord Vacate Premises containing the same Net Rentable Area
as the Net Rentable Area of Coterminous Expansion Space added to the Leased
Premises by Tenant (such rights, "Relocation Rights"); provided that Tenant
shall only be permitted to exercise Relocation Rights during the Relocation
Rights Exercise Period for the Coterminous Expansion Space that created the
applicable Relocation Rights.
11.4 Termination Rights. Subject to the provisions of Sections 1.7(e) and 10.4,
and as provided in the definition of "Net Rentable Area", Tenant shall also have
the right, exercisable at any time after the expiration of the sixth month of
the fourth Lease Year and prior to the expiration of the Initial Term, to
exercise Contraction Rights by surrendering to Landlord Vacate Premises
containing up to 312,669 square feet of Net Rentable Area, in the aggregate
(such rights, "Termination Rights"); provided that (a) until the expiration of
the sixth month of the fourth Lease Year, Tenant may not exercise any
Termination Rights, (b) prior to the expiration of the sixth month of the ninth
Lease Year, Tenant shall only be permitted to exercise Termination Rights by
sending Contraction Rights Exercise Notices to Landlord on Vacate Premises
containing Net Rentable Area of up to 104,223 square feet, in the aggregate, and
(c) prior to the expiration of the sixth month of the fourteenth Lease Year,
Tenant shall only be permitted to exercise Termination Rights by sending
Contraction Rights Exercise Notices to Landlord on Vacate Premises containing
Net Rentable Area of up to 208,446 square feet, in the aggregate.
11.5 Vacate Premises Rent. Annual Basic Rent, Excess Basic Rent, if any, and
Additional Rent for the Vacate Premises shall continue to be due and payable
until the later of (a) six (6) months following the date of Tenant's Contraction
Rights Exercise Notice for such Vacate Premises or (b) the date on which Tenant
shall vacate and surrender possession of the Vacate Premises to Landlord as
provided in Section 4.1 (the later such date, the "Vacate Premises Surrender
Date"). Tenant shall bear all costs and expenses incident to vacating and
surrendering the Vacate Premises in the condition required by this Article XI.
Promptly following the Vacate
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Premises Surrender Date, Landlord and Tenant shall amend the Lease Supplement
for the Project in which the Vacate Premises are located and Exhibit A to this
Lease to reflect the termination of the Vacate Premises from the Leased Premises
and to confirm the terms thereof, including the reduction in the Net Rentable
Area of the Leased Premises, the reduction in Annual Basic Rent and the change
to Tenant's Occupancy Percentage at the Vacate Premises.
11.6 Surrender; Vacate Premises Demising Work. Tenant shall remove all of
Tenant's personal property from the Vacate Premises on or before the Vacate
Premises Surrender Date. In the event Tenant fails to remove its personal
property from the Release Premises by such date, Landlord shall have the right
to remove and dispose of the same at Tenant's expense. Tenant shall deliver the
Vacate Premises to Landlord in the condition as it was required to be maintained
by Tenant under this Lease, reasonable wear and tear and Demising Work, if any,
excepted, and subject to the provisions of Section 5.3 and Article VI. Any
failure by Tenant to vacate and surrender possession of the Vacate Premises in
conformity with the requirements of this Article XI prior to expiration of the
Vacate Premises Surrender Date shall entitle Landlord to exercise the rights and
remedies expressed in Section 7.6. As expeditiously as possible following the
Vacate Premises Surrender Date, Tenant shall perform, at Tenant's sole cost and
expense, any Demising Work required at the Project in which the Vacate Premises
are located as provided in Section 5.7. If Tenant fails to expeditiously
commence and complete any Demising Work or if Landlord needs to accelerate
completion of all or a portion of the Demising Work at a Project to accommodate
Landlord's leasing of space to third party tenants, Landlord shall have the
right, but not the obligation, to complete, at Tenant's sole cost and expense,
all or a portion of the unfinished Demising Work.
11.7 Duration. Any Contraction Rights under this Article XI, including
Relocation Rights and Termination Rights, that remain unexercised on the last
day of the Initial Term shall automatically, and without further action of
Landlord or Tenant, become null and void, and Tenant shall have no Contraction
Rights during any Renewal Term. Relocation Rights created by adding any
particular Coterminous Expansion Space may only be exercised, if at all, during
the Relocation Rights Exercise Period for such Coterminous Expansion Space.
11.8 Disputes. Landlord and Tenant shall endeavor to resolve, in good faith, any
disagreement arising as a result of Tenant's exercise of Contraction Rights
under this Article XI, failing which such disagreement shall be resolved in
accordance with Article XII; provided that no disagreement between Landlord and
Tenant regarding the contents of Tenant's Contraction Rights Exercise Notice
shall render any otherwise effective Contraction Rights Exercise Notice
ineffective.
ARTICLE XII
DISPUTE RESOLUTION
12.1 Approval Procedure; Dispute Resolution.
(a) When the approval or consent by either Landlord or Tenant is required
hereunder and such approval or consent may not be expressly withheld in such
party's sole discretion, the parties shall proceed as follows:
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(i) The party requesting the approval or consent (the "Requesting
Party") shall submit a written request for approval or consent together
with such information and supporting documentation as is reasonably
required to evaluate the request to the other party (the "Responding
Party").
(ii) Unless a specific time period for the Responding Party's response
is provided for in this Lease (in which case, such specific time period
shall control), the Responding Party shall have ten (10) days to (A)
approve in writing the request as submitted, (B) approve in writing the
request with conditions, (C) deny in writing the request, or (D) respond
with a written schedule of additional information and/or documentation to
be submitted by the Requesting Party. If the Responding Party fails to
timely provide any of the above responses, the approval or consent shall be
deemed to be given as requested.
(iii) If the Responding Party requests additional information and/or
documentation, then within five (5) days after the Requesting Party
delivers same to the Responding Party, the Responding Party shall again
respond as set forth in clause (ii) above. If the Responding Party fails to
timely respond as set forth in clause (ii) above, the approval or consent
shall be deemed to be given as requested.
(iv) All approvals, denials, and requests for additional documentation
or information, when given, shall be in writing.
12.2 Dispute Resolution. The parties hereby agree to attempt to resolve all
disputes and controversies arising out of or in connection with this Lease or
its interpretation, performance or breach, promptly, equitably and in a good
faith manner, through discussions and negotiations, but failing same, the
parties shall proceed as follows:
(a) Upon the occurrence of any controversy or dispute arising out of or
relating to this Lease, or its interpretation, performance or breaches, which
the parties have not been able to resolve in the ordinary course through
discussions and negotiations within a period of thirty (30) days after the
dispute or disagreement arises, each party shall appoint a senior officer of its
management, fully authorized to settle the dispute or disagreement, to meet at a
mutually agreed time and place not later than twenty (20) days after such
appointment, to resolve such dispute or disagreement. Should a resolution of
such dispute or disagreement not be obtained within fifteen (15) days after a
meeting of such senior officers for such purpose, either party may then, by
written notice to the other, submit the controversy or dispute to arbitration
in, on an alternating basis, Philadelphia, Pennsylvania or Charlotte, North
Carolina (or in such other cities as Landlord and Tenant shall elect, on an
alternating basis). The arbitration shall be conducted under the auspices of
JAMS or its successor. The arbitration shall be initiated by a party by sending
notice (the "Arbitration Notice") of a demand to arbitrate by registered or
certified mail to the other party, and to JAMS. The Arbitration Notice shall
contain a description of the subject matter of the arbitration, the dispute with
respect thereto, the amount involved, if any, and the remedy or determination
sought. If the dispute or disagreement involves a Binding ADR Dispute, Landlord
and Tenant shall submit the matter to binding arbitration. If the dispute or
disagreement involves a "Major Dispute" (as hereinafter defined) the parties
may, but shall not be required to submit the matter to non-binding arbitration.
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(b) If the dispute or controversy involves the granting, withholding or
conditioning of consent or approval of a matter described in Sections 2.4
(Budget), 3.1(b) (Supplemental HVAC), 3.4 (Signage), 3.5 (Communications
Equipment), 5.2 (Alterations), 5.7 (Demising Work), 5.8 (Art) and 8.1
(Subletting) hereof (collectively, the "Approval Matters") or if the dispute or
controversy not involving an Approval Matter involves a total cost to either
party of One Million Dollars ($1,000,000.00) or less (a "Binding ADR Dispute"),
and if the parties shall be unsuccessful in their efforts to negotiate a
mutually satisfactory resolution of their dispute or disagreement, the parties
shall submit the matter to binding arbitration, and JAMS shall provide to the
parties a list of three (3) arbitrators, and each party may strike one. The
remaining arbitrator shall serve as the arbitrator for the dispute. The
arbitrator so selected shall furnish Landlord and Tenant with a written decision
within thirty (30) days after his or her selection. The parties agree to
arbitrate any Binding ADR Dispute pursuant to JAMS' Streamlined Arbitration
Rules as amended from time to time, and as modified to the extent practicable to
give effect to the agreement of the parties as stated above in this Section
12.2(b). Binding ADR Disputes shall not be conducted in person unless either
Landlord or Tenant shall request an in-person arbitration. The decision of the
arbitrator in a Binding Dispute shall be final and shall be binding upon the
parties, and judgment on the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof.
(c) If the dispute or controversy not involving an Approval Matter involves
more than a total cost to either party of more than One Million Dollars
($1,000,000.00) under this Lease ("Major Dispute"), and if the parties elect to
arbitrate, then JAMS shall provide a list of six (6) available arbitrators from
which each party shall select one (1) arbitrator, and a third arbitrator shall
be selected by the two (2) arbitrators so selected. The third arbitrator shall
be a neutral arbitrator who has not acted for either party (or is Affiliate)
within the five (5) years preceding initiation of the arbitration. The
arbitrators, so selected, shall schedule the arbitration within sixty (60) days
following the selection of the third arbitrator, and shall render their decision
within sixty (60) days after the arbitration is concluded. If the parties agree
to arbitrate any Major Dispute, they shall do so pursuant to JAMS' Comprehensive
Arbitration Rules, as amended from time to time, and as modified to the extent
practicable to give effect to the agreement of the parties as stated above in
this Section 12.2(c). In the instance of a Major Dispute, (A) the decision of
the arbitrators shall not be final or binding, (B) either party shall have the
right to file suit de novo in a court of competent jurisdiction, and (C) any and
all statements, admissions, or other representations made during the arbitration
by either party shall be deemed privileged, confidential and inadmissible for
any and all purposes in any such subsequent litigation.
(d) Notwithstanding the foregoing, this Article XII shall not apply to any
disputes, controversies or breaches relating solely to the non-payment of Rent
or, unless agreed to by the parties, a Major Dispute.
12.3 Conduct of the Arbitration. Arbitration proceedings hereunder shall be
subject to the following additional provisions:
(a) The hearing shall be conducted on a confidential basis without
continuance or adjournment;
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(b) Any offer made or the details of any negotiation of the dispute subject
to arbitration prior to arbitration shall not be admissible;
(c) Each party shall be entitled to all rights and privileges granted by
the arbitrators to the other party;
(d) In the arbitration of any Major Dispute, each party shall be entitled
to compel the attendance of witnesses or production of documents, and for this
purpose, the arbitrators shall have the power to issue subpoenas in accordance
with the law of the State of North Carolina;
(e) In the arbitration of any Major Dispute, each party shall have the
right (upon leave of the arbitrators) to take depositions and obtain other
discovery of the scope and in the manner which the arbitrators deem reasonably
necessary to the preparation and presentation of the party's case;
(f) The arbitrators shall have the power to impose on any party such terms,
conditions, consequences, liabilities, sanctions and penalties as the deem
necessary or appropriate (which shall be conclusive, final and enforceable as
the award on the merits) to compel or induce compliance with discovery and the
appearance of, or production of documents in the custody or, any officer,
director, agent or employee of a party any Affiliate of such party;
(g) Arbitrators may not award indirect, consequential or punitive damages
or issue injunctive relief, and shall have no power to deviate from the
provisions of this Lease.
(h) Neither party shall be in default under this Lease with respect to any
provision hereof during the time period commencing as of the initial notice of
desire to arbitrate and ending on the date of resolution by the arbitrators in
the case of binding arbitration and ending on the date of a final, unappealable
decision of the court in all other circumstances; provided that during said
period of arbitration and/or litigation each party shall continue to perform all
duties and obligations required to be performed by such party under this Lease
and, with respect to the issue under dispute resolution, shall maintain the
status quo.
12.4 Alternative Means of Arbitration with AAA. In the event that JAMS or any
successor shall no longer exist or if JAMS or any successor fails to refuses to,
or is legally precluded from, accepting submission of such dispute, then the
dispute shall be resolved by binding arbitration before the AAA under the AAA's
commercial arbitration rules then in effect.
12.5 Mediation; Litigation. Unless the parties mutually agree to arbitrate a
Major Dispute, prior to either party commencing litigation, the parties shall
attempt to mediate such dispute. Accordingly, except as provided in Sections
12.2(d) or 13.1, no civil action with respect to any dispute or disagreement
arising out of or relating to this Lease shall be commenced until the matter has
been submitted to JAMS, or its successor, for mediation. Either party may
commence mediation by providing to JAMS and the other party a written request
for mediation, setting forth the subject of the dispute and the relief
requested. The parties shall cooperate with JAMS and with one another in
selecting a mediator from JAMS' panel of mediators, and in scheduling the
mediation proceedings. The parties agree that they will participate in the
mediation in good faith, and that they will share equally in its costs. All
offers, promises, conduct and statements, whether oral or written, made in the
course of the mediation by any of the parties, their agents,
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employees, experts and attorneys, and by the mediator and any JAMS employees,
are confidential, privileged and inadmissible for any purpose, including
impeachment, in any litigation or other proceeding involving the parties;
provided that evidence that is otherwise admissible or discoverable shall not be
rendered inadmissible or non-discoverable as a result of its use in the
mediation. Either party may seek equitable relief prior to the mediation to
preserve the status quo pending the completion of that process. Except for such
an action to obtain equitable relief, neither party may commence a civil action
with respect to the matters submitted to mediation until after the completion of
the initial mediation session, or forty-five (45) days after the date of filing
the written request for mediation, whichever occurs first. Mediation may
continue after the commencement of a civil action, if the parties so desire. The
provisions of this clause may be enforced by any court of competent
jurisdiction, and the prevailing party shall be entitled to an award of all
costs, fees and expenses, including attorney's fees, to be paid by the party
against whom enforcement is ordered.
ARTICLE XIII
TENANT REMEDIES
13.1 Limited Offset. If a Landlord Default occurs and is continuing hereunder
and Tenant elects to cure or attempts to cure the Landlord Default, and if
Landlord fails to reimburse Tenant for such reasonable costs of curing the
Landlord Default within thirty (30) days after Tenant's submission of an invoice
for such costs together with reasonable supporting documentation, Tenant may
from time to time offset such costs against installments of Annual Basic Rent in
an amount not to exceed Five Hundred Thousand Dollars ($500,000.00) in any
twelve (12) calendar month period.
13.2 Landlord Letter of Credit. At the Closing, Landlord shall deliver to Tenant
an irrevocable standby letter of credit substantially in the form attached as
Exhibit J hereto ("Landlord Letter of Credit") in the stated amount of Three
Million Dollars ($3,000,000.00), with Tenant as the sole beneficiary and issued
by a domestic United States bank satisfactory to Tenant. If Tenant receives a
final, non-appealable monetary award in (a) a Binding ADR Dispute, (b) a Major
Dispute and neither Landlord nor Tenant timely file suit de novo in a court of
competent jurisdiction appealing the decision in the Major Dispute or (c) a
court of competent jurisdiction (in any such case, an "Award"), and Landlord
fails to pay the Award to Tenant within thirty (30) days after the delivery of a
written decision of the Award to Landlord, Tenant may, at any time thereafter,
draw against the Landlord Letter of Credit, in whole or in part, to satisfy the
Award. Subject to the provisions of this Section 13.2, Tenant shall have the
unconditional right to draw upon the Landlord Letter of Credit to satisfy an
Award by presenting Tenant's site draft to the issuing bank as more fully
provided in the Landlord Letter of Credit. The final expiry date of the Landlord
Letter of Credit shall be one (1) month following the Expiration Date of this
Lease.
ARTICLE XIV
MISCELLANEOUS
14.1 Notices. Any notice or other communications required or permitted to be
given under this Lease must be in writing and shall be given or delivered at the
addresses specified in Section 1.1 and sent by certified United States Mail,
return receipt requested, telecopy, or by Federal
77
Express or other nationally recognized overnight courier service. Any notice
shall be deemed given upon receipt or refusal thereof. Either party shall have
the right to change its address to which notices shall thereafter be sent and
the party to whose attention such notice shall be directed by giving the other
party notice thereof in accordance with the provisions of this Section 14.1;
provided that such notice of change of address shall become effective only upon
the other party's actual receipt thereof. Additionally, each of Landlord and
Tenant may designate one (1) additional address to which copies of all notices
shall be sent. Additionally, Tenant agrees that copies of all notices of a
Landlord Default hereunder shall also be sent to each Interest Holder that
notifies Tenant in writing of its interest and the address to which copies of
such notices are to be sent. Notwithstanding anything contained in this Section
14.1 to the contrary, any notice regarding a party's change of address or
designation of additional addressees shall become effective only upon the other
party's actual receipt thereof. Any notice or other communication sent by either
party pursuant to this Section 13.1 shall state, with particularity, by property
number, address or other geographic designation noted on Exhibit A, the specific
Leased Premises involved.
14.2 Brokers. Tenant represents that it has not engaged any broker, agent or
similar party, other than TCCS and JLL, with respect to the transactions
contemplated by this Lease. Tenant agrees to indemnify and hold harmless
Landlord from and with respect to any claims for a brokerage fee, finder's fee
or similar payment with respect to this Lease which is made by any party (other
than TCCS and JLL) claiming by, through or under Tenant. Landlord represents
that it has not engaged any broker, agent or similar party with respect to the
transactions contemplated by this Lease other than SAR. Landlord agrees to
indemnify and hold harmless Tenant from and with respect to any claims for a
brokerage fee, finder's fee or similar payment with respect to this Lease which
is made by a party claiming by, through or under Landlord. TCCS, JLL and SAR
shall be paid a commission due, if any, pursuant to the terms of a separate
agreement with such brokers, if, as and when closing shall occur and be
completed under such Purchase Agreement. None of TCCS, JLL or SAR shall be
entitled to receive a separate commission from Landlord in connection with this
Lease or any amendment, renewal or modification hereof.
14.3 Binding on Successors. This Lease shall be binding upon and inure to the
benefit of the legal representatives, successors and assigns of Landlord, and
shall be binding upon and inure to the benefit of Tenant, its legal
representatives, successors, and, to the extent assignment may be approved by
Landlord hereunder, Tenant's assigns. Where appropriate the pronouns of any
gender shall include the other gender, and either the singular or the plural
shall include the other.
14.4 Rights and Remedies Cumulative. Except as otherwise provided herein, all
rights and remedies of Landlord and Tenant under this Lease shall be cumulative
and none shall exclude any other rights or remedies allowed by law.
14.5 Governing Law. This Lease shall in all respects be governed by, and
construed in accordance with, the laws of the State of North Carolina, including
all matters of construction, validity and performance, except laws governing
conflicts of law; provided that to the extent the law of the jurisdiction where
a Project is located requires that the laws of such jurisdiction apply to any
aspect of this Lease, then, to that extent, such laws of such jurisdiction will
also apply to such Project.
78
14.6 Rules of Construction. The terms and provisions of this Lease shall not be
construed against or in favor of a party hereto merely because such party is the
"Landlord" or the "Tenant" hereunder or such party or its counsel is the
draftsman of this Lease.
14.7 Authority and Qualification. Tenant warrants that all consents or approvals
required of third parties (including but not limited to its Board of Directors)
for the execution, delivery and performance of this Lease have been obtained and
that Tenant has the right and authority to enter into and perform its covenants
contained in this Lease. Landlord warrants that all consent or approvals
required of third parties (including but not limited to its Board of Trustees)
for the execution, delivery and performance of this Lease have been obtained and
that Landlord has the right and authority to enter into and perform its
covenants contained in this Lease. Landlord and Tenant each also represents and
warrants that it is lawfully doing business in the state in which the Projects
are located.
14.8 Severability. 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 provision
to persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each provision of this Lease
shall be valid and shall be enforceable to the extent permitted by law.
14.9 Quiet Enjoyment. Landlord covenants that Tenant shall and may peacefully
and quietly have, hold and enjoy the Leased Premises, subject to the other terms
hereof; provided that Tenant pays the Rent and other sums herein recited to be
paid by Tenant and performs all of Tenant's covenants and agreements herein
contained. It is understood and agreed that subject to the terms of Section 8.2
above, this covenant and any and all other covenants of Landlord contained in
this Lease shall be binding upon Landlord and its successors only with respect
to breaches occurring during the ownership of Landlord's interest hereunder.
14.10 Limitation of Personal Liability. Tenant specifically agrees to look
solely to Landlord's interest in the Projects and the rent and other income
derived therefrom after the date execution is levied for the recovery of any
monetary judgment against Landlord, it being agreed that neither Landlord nor,
in any event, its partners [direct and indirect], shareholders, directors,
employees, representatives and officers shall ever be personally liable for any
such judgment or for any other liability or obligation of Landlord under this
Lease beyond such interest in the Projects. The provision contained in the
foregoing sentence is not intended to, and shall not, limit any right that
Tenant might otherwise have to obtain injunctive relief against Landlord or
Landlord's successors in interest or for offset or to prosecute any suit or
action in connection with enforcement of rights hereunder or arising herefrom or
collection of amounts which may become owing or payable under or on account of
insurance maintained by Landlord.
14.11 Memorandum of Lease. Upon the written request of Tenant, Landlord and
Tenant shall enter into a short form of this Lease for the purpose of recording
the same, and shall, at Tenant's expense, record the same.
14.12 Consents. Except where a party is specifically granted herein the right to
approve or consent to a matter in its sole and absolute discretion, whenever in
this Lease it is agreed that a
79
party shall have the right to approve or consent to any matter, said party shall
not unreasonably withhold, condition or delay its consent or approval.
14.13 Time of the Essence. Time is of the essence in this Lease.
14.14 Amendments. This Lease may not be altered, changed or amended, except by
an instrument in writing signed by Landlord and Tenant.
14.15 Entirety. This Lease embodies the entire agreement between Landlord and
Tenant relative to the subject matter of this Lease and all summaries,
proposals, letters and agreements with respect to the subject matter of this
Lease that were entered into prior to the date of this Lease shall be of no
further force and effect after the date hereof.
14.16 References. All references in this Lease to days shall refer to calendar
days unless specifically provided to the contrary.
14.17 Counterpart Execution. This Lease may be executed in any number of
counterparts, each of which shall be an original, but such counterparts together
shall constitute one and the same instrument.
14.18 No Partnership. Nothing in this Lease creates any relationship between the
parties other than that of lessor and lessee and nothing in this Lease, whether
the computation of rentals or otherwise, constitutes the Landlord a partner of
the Tenant or a joint venturer or member of a common enterprise with the Tenant.
14.19 Captions. The captions and headings used in this Lease are for convenience
and reference only and in no way add to or detract from the interpretation of
the provisions of this Lease.
14.20 Required Radon Notice. RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS
THAT, WHEN IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES, MAY
PRESENT A HEALTH RISK TO PERSONS WHO ARE EXPOSED TO IT OVER TIME. LEVELS OF
RADON THAT EXCEED FEDERAL AND STATE GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN
FLORIDA. ADDITIONAL INFORMATION REGARDING RADON TESTING MAY BE OBTAINED FROM
YOUR COUNTY PUBLIC HEALTH UNIT.
14.21 Changes to Projects by Landlord. Landlord shall have the right at any
time, without the same constituting an actual or constructive eviction and
without incurring liability to Tenant therefor, to make reasonable changes to
the arrangement or location of entrances or passageways, doors and doorways,
corridors, elevators, stairs, and bathrooms in the Common Areas of any Project
so long as access to the Leased Premises remains comparable to or better than
the access to the Leased Premises available on the Commencement Date, and so
long as visibility of the retail portion(s) of the Leased Premises and Tenant's
exterior signage (if any) is not adversely affected. Landlord shall have the
right to close, from time to time, the Common Areas and other portions of the
Project for such temporary periods as Landlord deems legally necessary and
sufficient to evidence Landlord's ownership and control thereof and to prevent
80
any claim of adverse possession by, or any implied or actual dedication to, the
public or any party other than Landlord.
14.22 Storage Space. To the extent that any portion of the Leased Premises
consists of storage space in or about the Project, Tenant shall use the storage
space for storage of files, records, and other personal property only and for no
other purpose. Tenant shall not store any food (other than canned items) or
perishable goods, flammable materials (other than paper, cardboard, or normal
office supplies), explosives, or any other inherently dangerous material in the
storage space. Except for elevator service to the floor on which the storage
space is located and lighting for reasonable visibility in the storage space,
Tenant acknowledges and agrees that there shall be no other services whatsoever
provided to the storage space. Tenant agrees and understands that no bailment,
deposit of goods for safekeeping, warehouse receipt, xxxx of lading, or other
document of title for the property stored by Tenant is intended or created
hereby and Landlord is not engaged in the business of storing goods for hire or
in the warehouse business.
14.23 WAIVER OF JURY TRIAL. LANDLORD AND TENANT EACH HEREBY WAIVES ITS RIGHT TO
A JURY TRIAL OF ANY ISSUE OR CONTROVERSY ARISING UNDER THIS LEASE.
14.24 Confidential Information. The form of this Lease has been or will be filed
by Landlord with the Securities and Exchange Commission ("SEC") in compliance
with SEC requirements. Furthermore, Landlord and Tenant acknowledge that either
party may be required to make public disclosure of material facts concerning
this Lease from time to time in order to satisfy the requirements of applicable
securities or banking laws. Other than such disclosure that may be required to
comply with applicable laws, the parties agree to treat as confidential and to
use reasonable efforts to prevent the inadvertent disclosure of proprietary
information of either party delivered to the other pursuant to or in furtherance
of the purposes of this Lease; provided, however, that nothing herein shall be
deemed to preclude or impair the ability of either party to deliver any such
information to its attorneys, accountants, lenders, investors and other such
interested parties.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
date aforesaid.
LANDLORD:
Witness: FIRST STATES INVESTORS
5000A, LLC, a Delaware limited
liability company
By:
---------------------------------- --------------------------------
Name: Name:
------------------------------
Title:
-----------------------------
TENANT:
BANK OF AMERICA, N.A.,
a national banking association
By:
--------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
Attest:
By:
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
82
LIMITED JOINDER
The undersigned, being the sole member of Landlord, for value received and
intending to be legally bound hereby, joins in the execution of this Lease for
the limited purposes of (i) agreeing to cause the Affiliate that owns Affiliate
Owned Property to enter into a lease for Expansion Space in such property with
Tenant as provided in Article X and (ii) agreeing to enter into, or to cause an
Affiliate to enter into, Contraction Assignments and Contraction Subleases with
Tenant as provided in Article XI.
FSG:
FIRST STATES GROUP, L.P.,
a Delaware limited partnership
Witness: By: First States Group, LLC,
a Delaware limited liability company
and its sole general partner
By:
---------------------------------- --------------------------------
Name: Name:
Title:
Date: , 2003
-----------
83
EXHIBIT A TO MASTER LEASE
LEASED PREMISES, OCCUPIED RELEASE PREMISES,
BUILDING NRA, LEASED PREMISES NRA, AND TENANT OCCUPANCY
PERCENTAGE AND ANNUAL BASIC RENT FACTOR
B of A Property ID:
-----------------
Master Lease dated , 2003
-----------
EXHIBIT B-1 TO MASTER LEASE
[FORM OF]
LEASE SUPPLEMENT
THIS LEASE SUPPLEMENT (this "Supplement") is made and entered into as of
, 2003 (the "Supplement Effective Date"), by and between
-------
, a (hereinafter called "Landlord"), and
---------------------------- ---------
BANK OF AMERICA, N.A., a national banking association (hereinafter called
"Tenant").
BACKGROUND
Landlord and Tenant have executed and delivered a certain Master Lease
Agreement dated , 2003 ("Master Lease") with respect to which
-----------
Landlord has agreed to lease and demise to Tenant, and Tenant has agreed to
lease and take from Landlord certain Leased Premises, as such term is defined in
the Master Lease; and
Pursuant to the Master Lease, Landlord and Tenant have agreed to execute
and deliver a Lease Supplement for purposes of better describing and depicting
the individual Leased Premises and certain attributes relating thereto, and
certain Landlord and Tenant rights and obligations relating thereto; and
Landlord and Tenant have agreed to execute and deliver this Lease
Supplement to more fully describe the Leased Premises identified below and such
attributes, rights and obligations.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, covenant and agree as follows:
Basic Leased Premises Data. The following Basic Leased Premises Data is
hereby incorporated into and made a part of the Master Lease between Landlord
and Tenant.
--------------------------------------------------------------------------------
B of A Property ID: [______________________]
--------------------------------------------------------------------------------
Property Street Address: [______________________]
--------------------------------------------------------------------------------
Commencement Date: , 2003
---------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Leased Premises: Those portions of the Building demised
and leased to Tenant as identified on
the floor plan
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
attached as Exhibit B-1-A.
--------------------------------------------------------------------------------
Drive-Through Banking Facility (If The portion of the Project in which
applicable): Tenant conducts drive through banking
operations, together with ingress and
egress points to such area, as shown on
the plan or drawing attached as Exhibit
B-1-B. So long as Tenant leases other
Leased Premises within the Project for
business purposes, the Drive-Through
Banking Facility shall be deemed
included as part of the Leased Premises,
but excluded from the calculation of the
Net Rentable Area of Leased Premises for
purposes of calculating Tenant's Annual
Basic Rent and Occupancy Percentage.
--------------------------------------------------------------------------------
Parking Areas (If applicable): The exclusive and non-exclusive parking
areas and facilities for the Project as
indicated on Exhibit B-1-C.
--------------------------------------------------------------------------------
Net Rentable Area of Leased Premises: square feet.
-------
--------------------------------------------------------------------------------
Net Rentable Area of Building: square feet.
-------
--------------------------------------------------------------------------------
Tenant's Occupancy Percentage: %.
-------
--------------------------------------------------------------------------------
Annual Basic Rent: [__________________]
--------------------------------------------------------------------------------
Occupied Release Premises: As set forth on Exhibit B-1-D
--------------------------------------------------------------------------------
Janitorial Specifications: As set forth on Exhibit B-1-E.
--------------------------------------------------------------------------------
Above Standard Services: As set forth on Exhibit B-1-F.
--------------------------------------------------------------------------------
Tenant Use Generators, UPS, Etc.: As set forth on Exhibit B-1-G.
--------------------------------------------------------------------------------
Parking Area Lighting Schedule:
--------------------------------------------------------------------------------
B of A Named Building:
--------------------------------------------------------------------------------
Signage & Planned Signage Changes: As set forth on Exhibit B-1-H.
--------------------------------------------------------------------------------
MEP Maintenance Schedule: As set forth on Exhibit B-1-I.
--------------------------------------------------------------------------------
Landscaping Specifications: As set forth on Exhibit B-1-J.
--------------------------------------------------------------------------------
Other:
--------------------------------------------------------------------------------
2
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Exhibits attached to and made a part of this Lease Supplement:
Exhibit B-1-A - Floor Plan of Leased Premises
Exhibit B-1-B - Plan of Drive-Through Banking Facility
Exhibit B-1-C - Plan of Parking Areas
Exhibit B-1-D - Floor Plan of Occupied Release Premises
Exhibit B-1-E - Janitorial Specifications
Exhibit B-1-F - Above Standard Services
Exhibit B-1-G -Tenant Use Generators, UPS, Etc.
Exhibit B-1-H -Signage and Planned Signage Changes
Exhibit B-1-I -MEP Maintenance Schedule
Exhibit B-1-J -Landscaping Specifications
3
IN WITNESS WHEREOF, the parties hereto have executed this Lease Supplement as of
the Supplement Effective Date first above noted.
LANDLORD:
Witness: ,
----------------------------
a
-------------------
By:
---------------------------------- --------------------------------
Name: Name:
------------------------------
Title:
-----------------------------
TENANT:
Witness: BANK OF AMERICA, N.A.,
a national banking association
By:
---------------------------------- --------------------------------
Name: Name:
Title:
4
B of A Property ID:
-----------------
Master Lease dated , 2003
-----------
Lease Supplement dated ,
----------- ---
EXHIBIT B-2 TO MASTER LEASE
[FORM OF]
AMENDMENT TO LEASE SUPPLEMENT
THIS AMENDMENT TO LEASE SUPPLEMENT (this "Amendment to Supplement") is made
and entered into as of , 2003 (the "Supplement Amendment Effective
-------
Date"), by and between , a (hereinafter
---------------------------- ---------
called "Landlord"), and BANK OF AMERICA, N.A., a national banking association
(hereinafter called "Tenant").
BACKGROUND
Landlord and Tenant executed and delivered a certain Master Lease Agreement
dated , 2003 ("Master Lease") with respect to which Landlord agreed
-----------
to lease and demise to Tenant, and Tenant agreed to lease and take from Landlord
certain Leased Premises, as such term is defined in the Master Lease; and
Pursuant to the Master Lease, Landlord and Tenant executed and delivered a
certain Lease Supplement dated , 2003 (the "Lease Supplement") for
-------
purposes of better describing and depicting the individual Leased Premises and
certain attributes relating thereto, and certain Landlord and Tenant rights and
obligations relating thereto; and
Landlord and Tenant have agreed to execute and deliver this Amendment to
Lease Supplement to amend the description of the Leased Premises identified
below, and such attributes, rights and obligations, all as more fully set forth
below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, covenant and agree as follows:
1. Basic Leased Premises Data. The Lease Supplement is hereby amended as
follows: [insert specific amendment and substitute exhibits, as required].
2. Landlord shall prepare and Landlord and Tenant will initial an amended
Exhibit A to the Lease reflecting the amendments to the Lease Supplement set
forth in this Amendment.
3. Except as expressly amended hereby, all of the terms and provisions set
forth in the Lease Supplement remain in full force and effect, and unmodified
hereby.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to Lease
Supplement as of the Supplement Amendment Effective Date first above noted.
LANDLORD:
Witness: ,
----------------------------
a
-------------------
By:
---------------------------------- --------------------------------
Name: Name:
------------------------------
Title:
-----------------------------
TENANT:
Witness: BANK OF AMERICA, N.A.,
a national banking association
By:
---------------------------------- --------------------------------
Name: Name:
Title:
2
EXHIBIT C TO MASTER LEASE
CONFIDENTIALITY AGREEMENT
1. Definition. For the purposes of this Agreement, "Confidential
Information" shall mean any information which
("Owner") in good faith believes
---------------------------------------------
in some material part, alone or in combination with other information (1)
provides Owner with an economic value from its disclosure or use, and (2) is the
subject of efforts that are reasonable under the circumstances to maintain its
secrecy.
2. Restrictions on Disclosure of Confidential Information to Qualified
Persons. All information exchanged between Owner, Bank of America, N.A.
("Tenant"), and ("Auditor"), with respect to operating
-----------------------
expense and tax pass-throughs (collectively, "CAM Charges") assessed against
Tenant, in connection with Tenant's lease of space in that certain building
located at , ("Building") shall
-------------------------------------- --------
be deemed Confidential Information for the purposes of this Agreement.
3. Qualified Persons. "Qualified Person" includes employees of Auditor and
Tenant, and any outside law firms or accounting firms representing Auditor or
Tenant and their support personnel (including paralegals, photocopy operators,
and any independent contractors hired by any such party to make photocopies of
documents containing Confidential Information) and the principals and agents for
those parties.
4. Maintenance of Confidential Information. All documents or other
materials containing Confidential Information shall be maintained at all times
in the custody of Auditor and shall be labeled and secured in a manner designed
to prevent any disclosure to persons who are not Qualified Persons under this
Agreement. Auditor agrees to exercise reasonable diligence to insure that
Qualified Persons to whom the Confidential Information is disclosed maintain its
confidentiality.
5. Disclosure of Confidential Information. Auditor acknowledges that
Confidential Information shall not be used or disclosed (other than to Qualified
Persons) for any purpose without the prior consent of Owner, unless required or
compelled by judicial process. If Confidential Information is provided to
non-Qualified Persons, Auditor acknowledges that Owner shall be entitled to a
temporary and permanent injunction to prevent the disclosure of such
Confidential Information. In addition, Owner shall be entitled to a mandatory
injunction requiring the return of all Confidential Information from any person
in possession of Confidential Information.
6. No Solicitation. Except for Tenant and other existing clients of
Auditor, Auditor agrees that it shall not solicit business from any of the other
tenants in the Building, nor shall it request that Tenant so solicit other
tenants on Auditor's behalf, with respect to the review or analysis of CAM
Charges assessed any of them by Owner.
7. Attorney's Fees. If any action is instituted to enforce or construe this
Agreement, the prevailing party shall be entitled to recover its reasonable
attorneys' fees and all costs at all levels, including appeals.
8. Miscellaneous. This Agreement shall be subject to and construed in
accordance with the laws of the State in which the Building is located. If any
provision of this Agreement is held or rendered illegal or unenforceable, it
shall be considered separate and severable from this Agreement and the remaining
provisions of this Agreement shall remain in force and bind the parties as
though the illegal or unenforceable provision had never been included in this
Agreement. This Agreement sets forth the entire agreement between Owner and
Auditor and there are no other agreements or understandings between them. This
Agreement may not be modified except by an instrument in writing executed by
Owner and Auditor. This Agreement may be executed in counterparts, each of which
counterparts shall constitute an original and all of which together shall
constitute one and the same instrument. This Agreement may be executed by
facsimile signature which shall, for all purposes, serve as an original executed
counterpart of this Agreement upon delivery of an executed copy hereof by
facsimile.
9. Consideration. Auditor acknowledges that it has received sufficient and
adequate consideration from Owner in exchange for the obligations of Auditor
hereunder. Said consideration including, but not limited to, Owner's agreement
to provide reasonable access to all relevant information relating to the CAM
Charges, and assistance to Auditor with respect to Auditor's review and analysis
of Tenant's CAM Charges. Auditor also acknowledges the receipt of Ten and No/100
Dollars ($10.00) as additional consideration for its obligations hereunder.
Further, Auditor acknowledges that Owner is providing access to Confidential
Information and cooperating with Auditor in reliance upon Auditor fully
performing and honoring its obligations hereunder. Auditor acknowledges that
Owner would not have provided such access or cooperation without Auditor
assuming the obligations stated herein.
AUDITOR:
By:
------------------------------------
Print Name:
----------------------------
Its:
-----------------------------------
Authorized Signature
Date:
----------------------------------
OWNER:
By:
------------------------------------
Print Name:
----------------------------
Its:
-----------------------------------
Authorized Signature
Date:
----------------------------------
2
EXHIBIT D TO MASTER LEASE
[NEVADA ONLY: Assessor Parcel Numbers: 179-18-710-043; 162-10-502-017
Prepared by and Record and Return to:
Xxxxxx X. Xxxx, Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
BANK OF AMERICA, N.A.,
Tenant
[MISSOURI ONLY: (Grantor)]
AND
GERMAN AMERICAN CAPITAL CORPORATION
Lender
[MISSOURI ONLY: (Grantee)
having an address at
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10005)]
Dated: as of June 30, 2003
Prepared by and Record and Return to:
Xxxxxx X. Xxxx, Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(Legal Descriptions of the Properties Encumbered by this Instrument can be
found on Exhibits A-1 to A-153 hereto)
1
[WASHINGTON ONLY COVER PAGE]
WHEN RECORDED RETURN TO:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
--------------------------------------------------------------------------------
Document Title: SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
Grantor: Bank of America, N.A.
Grantee: German American Capital Corporation
Abbreviated Legal
Description: Complete legal description is on pages A-[____] through
A-[____].
Assessor's Property
Tax Parcel/Account
Numbers:
Address Tax Parcel Number(s)
------------------------- -----------------------------------------------
[Grays Harbor County only] 101 East Market 010103900301, 010103900302, 010103900700
[Spokane County only] 000 Xxxx Xxxxxxxxx Xxxxxx 00000.0000
000 Xxxx Xxxxxxx Xxxxxx 00000.0000
1616 South Rustle 25262.0502, 25262.0503, 25262.0504, 25262.0506,
25262.0404, 25262.0801, 25262.0802, 25262.0803,
25262.0901, 25262.0902, 25262.0903, 25262.2212
[Xxxxxx County only] 000 X Xxxxxx 200802-002-2
[Whatcom County only] 000 Xxxx Xxxxx Xxxxxx 380330 169116 000, 380330 175111 0000
[Kitsap County only] 0000 0xx Xxxxxx 0000-000-000-0000
2
[Clallam County only] 000 X Xxxxx Xxxxxx Parcel A: 132809-680100
Parcel B: 132809-680110
Parcel C: 132809-420010
000 Xxxx Xxxxx Xxxxxx Parcel A: 063000-511620
Parcel B: 063000-511625
[Grant County only] 000 Xxxx 0xx Xxxxxx 00-0000-000
[Chelan County only] 000 X Xxxxxxxxx Xxxxxx 22-20-03-860-412
[Franklin County only] 000 Xxxx Xxxxx Xxxxxx 000-000-000
[Xxxxxx County only] 0000 Xxxxxx Xxxxxx 1-1198-302-0628-008
[King County only] 0000 Xxxxxxxxxx Xxx XX 000000-0000-00
[Xxxxx Xxxxx Xxxxxx only] 000 X Xxxx Xxxxxx 36-07-20-77-1101, 36-07-20-77-1102,
36-07-20-77-1103, 36-07-20-77-1105,
36-07-20-77-1106, 36-07-20-77-1107,
36-07-20-77-1108, 36-07-20-77-1110,
36-07-20-77-1111, 36-07-20-77-1112,
36-07-20-77-1114, 36-07-20-77-1115
[Yakima County only] 000 X 0xx Xxxxxx Parcel A: 191319-22459
Parcel B: 191319-22481
Parcel C: 191319-22482
Parcel D: 191319-24462
3
SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT made as of this 30th day of June, 2003, between GERMAN
AMERICAN CAPITAL CORPORATION, a Maryland corporation, having an address at 00
Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter called "Lender"),
and BANK OF AMERICA, N.A., a national banking association, having an address at
000 Xxxxx Xxxxx, 0xx Xxxxx, Xxxxxxxxx, XX 00000 (hereinafter called "Tenant").
W I T N E S S E T H:
WHEREAS, by that certain Master Lease Agreement dated June 30, 2003 (the
"Lease") between FIRST STATES INVESTORS 5000A, LLC, a Delaware limited liability
company (hereinafter called "Landlord"), as landlord, and Tenant, as tenant,
Landlord leased to Tenant certain premises (the "Premises") located in the
property described in Exhibit A-1 to A-153 annexed hereto and made a part hereof
(the "Property"); and
WHEREAS, Lender is about to make a loan to Landlord, which loan shall be
secured by, among other things, that certain Combined Fee and Leasehold
Multistate Mortgage, Deed to Secure Debt, Deed of Trust, Security Agreement,
Financing Statement, Fixture Filing and Assignment of Leases, Rents, and
Security Deposits dated as of June 30, 2003 by Landlord to Lender (together with
all amendments, renewals, increases, modifications, replacements, substitutions,
extensions, spreaders and consolidations thereof and all re-advances thereunder
and addictions thereto, is referred to as the "Security Instrument") encumbering
the Property; and
WHEREAS, Lender and Tenant desire to confirm their understanding and
agreement with respect to the Lease and the Security Instrument.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, Lender and Tenant hereby agree and covenant as follows:
1. The Lease, and all of the terms, covenants, provisions and
conditions thereof (including, without limitation, any right of first refusal,
right of first offer, option or any similar right with respect to the sale or
purchase of the Property, or any portion thereof) is, shall be and shall at all
times remain and continue to be subject and subordinate in all respects to the
lien, terms, covenants, provisions and conditions of the Security Instrument and
to all advances and re-advances made thereunder and all sums secured thereby.
This provision shall be self-operative but Tenant shall execute and deliver any
additional instruments which Lender may reasonably require to effect such
subordination.
4
2. So long as (i) Tenant is not in default (beyond any period given in
the Lease to Tenant to cure such default) in the payment of rent, percentage
rent or additional rent or in the performance or observance of any of the other
terms, covenants, provisions or conditions of the Lease on Tenant's part to be
performed or observed, (ii) Tenant is not in default under this Agreement and
(iii) the Lease is in full force and effect: (a) Tenant's possession of the
Premises and Tenant's rights and privileges under the Lease, or any extensions
or renewals thereof which may be effected in accordance with any option therefor
which is contained in the Lease, shall not be diminished or interfered with by
Lender, and Tenant's occupancy of the Premises shall not be disturbed by Lender
for any reason whatsoever during the term of the Lease or any such extensions or
renewals thereof and (b) Lender will not join Tenant as a party defendant in any
action or proceeding to foreclose the Security Instrument or to enforce any
rights or remedies of Lender under the Security Instrument which would cut-off,
destroy, terminate or extinguish the Lease or Tenant's interest and estate under
the Lease (except to the extent required so that Tenant's right to receive or
set-off any monies or obligations owed or to be performed by any of Lender's
predecessors-in-interest shall not be enforceable thereafter against Lender or
any of Lender's successors-in-interest). Notwithstanding the foregoing
provisions of this paragraph, if it would be procedurally disadvantageous for
Lender not to name or join Tenant as a party in a foreclosure proceeding with
respect to the Security Instrument, Lender may so name or join Tenant without in
any way diminishing or otherwise affecting the rights and privileges granted to,
or inuring to the benefit of, Tenant under this Agreement.
3. (A) After notice is given by Lender that the Security Instrument is
in default and that the rentals under the Lease should be paid to Lender, Tenant
will attorn to Lender and pay to Lender, or pay in accordance with the
directions of Lender, all rentals and other monies due and to become due to
Landlord under the Lease or otherwise in respect of the Premises. Such payments
shall be made regardless of any right of set-off, counterclaim or other defense
which Tenant may have against Landlord, whether as the tenant under the Lease or
otherwise.
(B) In addition, if Lender (or its nominee or designee) shall
succeed to the rights of Landlord under the Lease through possession or
foreclosure action, delivery of a deed or otherwise, or another person purchases
the Property or the portion thereof containing the Premises upon or following
foreclosure of the Security Instrument or in connection with any bankruptcy case
commenced by or against Landlord, then at the request of Lender (or its nominee
or designee) or such purchaser (Lender, its nominees and designees, and such
purchaser, and their respective successors and assigns, each being a
"Successor-Landlord"), Tenant shall attorn to and
5
recognize Successor-Landlord as Tenant's landlord under the Lease and shall
promptly execute and deliver any instrument that Successor-Landlord may
reasonably request to evidence such attornment. Upon such attornment, the Lease
shall continue in full force and effect as, or as if it were, a direct lease
between Successor-Landlord and Tenant upon all terms, conditions and covenants
as are set forth in the Lease. If the Lease shall have terminated by operation
of law or otherwise as a result of or in connection with a bankruptcy case
commenced by or against Landlord or a foreclosure action or proceeding or
delivery of a deed in lieu, upon request of Successor-Landlord, Tenant shall
promptly execute and deliver a direct lease with Successor-Landlord which direct
lease shall be on substantially the same terms and conditions as the Lease
(subject, however, to the provisions of clauses (i)-(v) of this paragraph 3(B))
and shall be effective as of the day the Lease shall have terminated as
aforesaid. Notwithstanding the continuation of the Lease, the attornment of
Tenant thereunder or the execution of a direct lease between Successor-Landlord
and Tenant as aforesaid, Successor-Landlord shall not:
(i) be liable for any previous act or omission of Landlord
under the Lease;
(ii) be subject to any off-set, defense or counterclaim
which shall have theretofore accrued to Tenant against Landlord;
(iii) be bound by any modification of the Lease or by any
previous prepayment of rent or additional rent made more than one (1) month
prior to the date same was due which Tenant might have paid to Landlord,
unless such modification or prepayment shall have been expressly approved
in writing by Lender;
(iv) be liable for any security deposited under the Lease
unless such security has been physically delivered to Lender or
Successor-Landlord; and
(v) be liable or obligated to comply with or fulfill any of
the obligations of the Landlord under the Lease or any agreement relating
thereto with respect to the construction of, or payment for, improvements
on or above the Premises (or any portion thereof), leasehold improvements,
tenant work letters and/or similar items.
6
4. Tenant agrees that without the prior written consent of Lender, it
shall not (a) amend, modify, terminate or cancel the Lease or any extensions or
renewals thereof, (b) except as expressly provided in the Lease, tender a
surrender of the Lease, (c) make a prepayment of any rent or additional rent
more than one (1) month in advance of the due date thereof, or (d) subordinate
or permit the subordination of the Lease to any lien subordinate to the Security
Instrument. Any such purported action without such consent shall be void as
against the holder of the Security Instrument.
5. (A) Tenant shall promptly notify Lender of any default by Landlord
under the Lease and of any act or omission of Landlord which would give Tenant
the right to cancel or terminate the Lease or to claim a partial or total
eviction.
(B) In the event of a default by Landlord under the Lease which
would give Tenant the right, immediately or after the lapse of a period of time,
to cancel or terminate the Lease or to claim a partial or total eviction, or in
the event of any other act or omission of Landlord which would give Tenant the
right to cancel or terminate the Lease, Tenant shall not exercise such right (i)
until Tenant has given written notice of such default, act or omission to Lender
and (ii) unless Lender has failed, within thirty (30) days after Lender receives
such notice, to cure or remedy the default, act or omission or, if such default,
act or omission shall be one which is not reasonably capable of being remedied
by Lender within such thirty (30) day period, until a reasonable period for
remedying such default, act or omission shall have elapsed following the giving
of such notice and following the time when Lender shall have become entitled
under the Security Instrument to remedy the same (which reasonable period shall
in no event be less than the period to which Landlord would be entitled under
the Lease or otherwise, after similar notice, to effect such remedy, or longer
than 60 days from notice to Landlord by Tenant), provided that Lender shall with
due diligence give Tenant written notice of its intention to and shall commence
and continue to, remedy such default, act or omission. If Lender cannot
reasonably remedy a default, act or omission of Landlord until after Lender
obtains possession of the Premises, Tenant may not terminate or cancel the Lease
or claim a partial or total eviction by reason of such default, act or omission
until the expiration of a reasonable period necessary for the remedy after
Lender secures possession of the Premises. To the extent Lender incurs any
expenses or other costs in curing or remedying such default, act or omission,
including, without limitation, attorneys' fees and disbursements, Lender shall
be subrogated to Tenant's rights against Landlord.
7
(C) Notwithstanding the foregoing, Lender shall have no
obligation hereunder to remedy such default, act or omission.
6. To the extent that the Lease shall entitle Tenant to notice of the
existence of any mortgage and the identity of any mortgagee or any ground
lessor, this Agreement shall constitute such notice to Tenant with respect to
the Security Instrument and Lender.
7. Upon and after the occurrence of a default under the Security
Instrument, which is not cured after any applicable notice and/or cure periods,
Lender shall be entitled, but not obligated, to exercise the claims, rights,
powers, privileges and remedies of Landlord under the Lease and shall be further
entitled to the benefits of, and to receive and enforce performance of, all of
the covenants to be performed by Tenant under the Lease as though Lender were
named therein as Landlord.
8. Anything herein or in the Lease to the contrary notwithstanding, in
the event that a Successor-Landlord shall acquire title to the Property or the
portion thereof containing the Premises, Successor-Landlord shall have no
obligation, nor incur any liability, beyond Successor-Landlord's then interest,
if any, in the Property, and Tenant shall look exclusively to such interest, if
any, of Successor-Landlord in the Property for the payment and discharge of any
obligations imposed upon Successor-Landlord hereunder or under the Lease, and
Successor-Landlord is hereby released or relieved of any other liability
hereunder and under the Lease. Tenant agrees that, with respect to any money
judgement which may be obtained or secured by Tenant against Successor-Landlord,
Tenant shall look solely to the estate or interest owned by Successor-Landlord
in the Property, and Tenant will not collect or attempt to collect any such
judgement out of any other assets of Successor-Landlord.
9. Notwithstanding anything to the contrary in the Lease, Tenant
agrees for the benefit of Landlord and Lender that, except as permitted by, and
fully in accordance with, applicable law, Tenant shall not generate, store,
handle, discharge or maintain in, on or about any portion of the Property, any
asbestos, polychlorinated biphenyls, or any other hazardous or toxic materials,
wastes and substances which are defined, determined or identified as such
(including, but not limited to, pesticides and petroleum products if they are
defined, determined or identified as such) in any federal, state or local laws,
rules or regulations (whether now existing or hereafter enacted or promulgated)
or any judicial or administrative interpretation of any thereof, including any
judicial or administrative interpretation of any thereof, including any judicial
or administrative orders or judgments.
8
10. If the Lease provides that Tenant is entitled to expansion space,
Successor-Landlord shall have no obligation nor any liability for failure to
provide such expansion space if a prior landlord (including, without limitation,
Landlord), by reason of a lease or leases entered into by such prior landlord
with other tenants of the Property, has precluded the availability of such
expansion space.
11. Except as specifically provided in this Agreement, Lender shall
not, by virtue of this Agreement, the Security Instrument or any other
instrument to which Lender may be a party, be or become subject to any liability
or obligation to Tenant under the Lease or otherwise.
12. (A) Tenant acknowledges and agrees that this Agreement satisfies
and complies in all respects with the provisions of Section 7.7 of the Lease and
that this Agreement supersedes (but only to the extent inconsistent with) the
provisions of such Article and any other provision of the Lease relating to the
priority or subordination of the Lease and the interests or estates created
thereby to the Security Instrument.
(B) Tenant agrees to enter into a subordination, non-disturbance
and attornment agreement with any lender which shall succeed Lender as lender
with respect to the Property, or any portion thereof, provided such agreement is
substantially similar to this Agreement.
13. (A) Any notice required or permitted to be given by Tenant to
Landlord shall be simultaneously given also to Lender, and any right to Tenant
dependent upon notice shall take effect only after notice is so given.
Performance by Lender shall satisfy any conditions of the Lease requiring
performance by Landlord, and Lender shall have a reasonable time to complete
such performance as provided in Paragraph 5 hereof.
(B) All notices or other communications required or permitted to
be given to Tenant or to Lender pursuant to the provisions of this Agreement
shall be in writing and shall be deemed given only if mailed by United States
registered mail, postage prepaid, or if sent by nationally recognized overnight
delivery service (such as Federal Express or United States Postal Service
Express Mail), addressed as follows: to Tenant, at the address first set forth
above, Attention: Property Services, with a copy to Bank of America, N.A., 000
Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, XX 00000-0000, Attention: Xxxxxxx X. Xxxx,
Associate General Counsel, and a copy to Xxxxxxxx Xxxx Corporate Services, Inc.,
0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxxxxxxx Xxxxx, Xxxxxxx 00000, Attention: Xxxxx
Xxxx, Senior Vice
9
President, and a copy to Xxxxx Lang LaSalle Americas, Inc., 000 Xxxxx Xxxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, XX 00000, Attention: Xxxx X. Xxxxxxxxxx,
Executive Vice President; to Lender, at the address first set forth above,
Attention: Xxxx X. Xxxxxxxx and General Counsel, with a copy to Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx X. Xxxx, Esq.; or to such other address or number as such
party may hereafter designate by notice delivered in accordance herewith. All
such notices shall be deemed given three (3) business days after delivery to the
United States Post office registry clerk if given by registered mail, or on the
next business day after delivery to an overnight delivery courier.
14. This Agreement may be modified only by an agreement in writing
signed by the parties hereto, or their respective successors-in-interest. This
Agreement shall inure to the benefit of and be binding upon the parties hereto,
and their respective successors and assigns. The term "Lender" shall mean the
then holder of the Security Instrument. The term "Landlord" shall mean the then
holder of the landlord's interest in the Lease. The term "person" shall mean an
individual, joint venture, corporation, partnership, trust, limited liability
company, unincorporated association or other entity. All references herein to
the Lease shall mean the Lease as modified by this Agreement and to any
amendments or modifications to the Lease which are consented to in writing by
Lender. Any inconsistency between the Lease and the provisions of this Agreement
shall be resolved, to the extent of such inconsistency, in favor of this
Agreement.
15. Tenant hereby represents to Lender as follows:
(a) The Lease is in full force and effect and has not been further
amended.
(b) There has been no assignment of the Lease or subletting of any
portion of the premises demised under the Lease.
(c) There are no oral or written agreements or understandings between
Landlord and Tenant relating to the premises demised under the Lease or the
Lease transaction except as set forth in the Lease.
(d) The execution of the Lease was duly authorized and the Lease is in
full force and effect and to the best of Tenant's knowledge there exists no
default (beyond any applicable grace period) on the part of either Tenant or
Landlord under the Lease.
10
(e) There has not been filed by or against nor to the best of the
knowledge and belief of Tenant is there threatened against Tenant, any petition
under the bankruptcy laws of the United States.
(f) To the best of Tenant's knowledge, there is no present assignment,
hypothecation or pledge of the Lease or rents accruing under the Lease by
Landlord, other than pursuant to the Security Instrument.
16. Whenever, from time to time, reasonably requested by Lender (but
not more than two (2) times during any calendar year), Tenant shall execute and
deliver to or at the direction of Lender, and without charge to Lender, one or
more written certifications, in a form acceptable to Tenant, of all of the
matters set forth in Paragraph 15 above, and any other information the Lender
may reasonably require to confirm the current status of the Lease.
17. BOTH TENANT AND LENDER HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT.
18. This Agreement shall be governed by and construed in accordance
with the laws of the State in which the Property is located.
19. This Agreement may be executed in counterparts, each of which
shall be an original and all of which, when taken together, shall constitute one
binding Agreement.
11
IN WITNESS WHEREOF, the parties hereto have duly executed this
Subordination, Non-Disturbance and Attornment Agreement as of the day and year
first above written.
GERMAN AMERICAN CAPITAL CORPORATION,
a Maryland corporation
By:
---------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
By:
---------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
BANK OF AMERICA, N.A., a national
banking association
By:
---------------------------------
Name:
Title:
AGREED AND CONSENTED TO:
LANDLORD:
FIRST STATES INVESTORS 5000A, LLC,
a Delaware limited liability company
By:
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
[ILLINOIS ONLY:
TAX PARCEL NUMBERS
Address Tax Parcel Number(s)
------- --------------------
000 Xxxxx XxXxxxx Xxxxxx 17 16 222 006 0000, 17 16 222 010 0000]
12
ATTORNEY CERTIFICATION FOR MARYLAND
The undersigned, an attorney duly admitted to practice before the Court of
Appeals of the State of Maryland, hereby certifies that this instrument has been
prepared by or under the supervision of the undersigned.
----------------------------
Print Name:
----------------------------
13
FIRST STATES INVESTORS 5000A, LLC ACKNOWLEDGMENT PAGES
SCHEDULE A
Legal Description of Property
EXHIBIT E TO MASTER LEASE
ESTOPPEL CERTIFICATE
GERMAN AMERICAN CAPITAL CORPORATION,
its successors and assigns (together with its successors and assigns, "Lender")
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
FIRST STATES INVESTORS 5000A, LLC,
its successors and assigns (together with its successors and assigns,
"Landlord")
c/o First States Group, L.P.
0000 Xxx Xxxxxxx
Xxxxxxxxxx, XX 00000
RE: Lease Dated: Effective as of June 30, 2003
Landlord: First States Investors 5000A, LLC, its successors and assigns
Tenant: Bank of America, N.A.
Ladies and Gentlemen:
As a tenant under the above-referenced Master Lease Agreement (the
"Lease"), the undersigned (the "Tenant") hereby acknowledges for the benefit of
Landlord, the current owner of the property containing the Leased Premises (as
defined in the Lease), and Lender which has or is proposing to make a loan (the
"Loan") on the above-referenced real property, the truth and accuracy of the
following statements pertaining to the Lease, to the best of Tenant's knowledge
as of the date hereof, but subject to any matters that a physical inspection of
the Leased Premises would disclose:
1. Tenant has accepted and is in full possession of the Leased Premises
and Occupied Release Premises, including all improvements, additions
and alterations thereto required to be made by Landlord under the
Lease. The Leased Premises is comprised of those properties identified
on Schedule A attached hereto together with other areas more
particularly described in the Lease Supplements, true and correct
copies of which have previously been delivered to Landlord and Lender
(the "Lease Supplements"). Additionally, Tenant is entitled to
exclusive and non-exclusive use of the parking spaces in the parking
facilities serving the subject buildings as set forth in the Lease
Supplements. Notwithstanding the foregoing, Tenant has advised Lender
that, pursuant to the terms of that certain Third Amendment to Amended
and Restated Agreement of Sale and Purchase dated June 30, 2003 and
that certain side letter agreement dated June 30, 2003, among First
States Investors 5000A, LLC, First States Investors 5000B, LLC and
Bank of America, N.A., a true and correct copy of which has been
previously delivered to Lender, Landlord and Tenant have agreed to
review and modify the Lease Supplements to confirm the accuracy
thereof and conformance to the terms and conditions of the Lease.
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2. Tenant is not in default of its obligations under the Lease, is paying
full rent stipulated therein with no offset, defense or claim of any
kind and Tenant has not assigned, sublet, transferred or hypothecated
its interest under the Lease.
3. Landlord is not presently in default under any of the terms, covenants
or provisions of the Lease, nor has any event occurred which with the
passage of time and/or the giving of notice (if required by the Lease)
would constitute an event of default under the Lease.
4. Landlord has satisfactorily complied with all of the requirements and
conditions precedent to the commencement of the term of the Lease as
specified in said Lease, including, without limitation, completion of
any required tenant improvements. There are no unfunded tenant
obligations of Landlord under the Lease.
5. The initial Annual Basic Rent and Release Premises Additional Rent
payable by Tenant under the Lease is set forth on Schedule A attached
hereto.
6. Except as provided in the Lease, there are no rent abatements or free
rent periods now or in the future.
7. No rent (including expense reimbursements), other than for the current
month, has been paid more than one (1) month in advance.
8. No security deposit has been paid by Tenant to Landlord under the
Lease.
9. The Lease is for a term expiring on June 30, 2023. Tenant has options
to renew the Lease as set forth in the Lease. Tenant does not have any
right to renew, extend or terminate the term of the Lease except as
expressly provided in the Lease.
10. Tenant hereby acknowledges that (i) the Lease is valid and enforceable
in accordance with its terms against the Tenant, (ii) there have been
no modifications or amendments to the Lease, (iii)the Lease and the
Lease Supplements represent the entire agreement between the Landlord
and the Tenant (subject to the terms of the Third Amendment to Sale
Agreement, as aforesaid), (iv) that it has no notice of prior
assignments, hypothecation or pledge of rents or of the Lease except
in connection with any prior financing by Landlord being repaid from
the proceeds of the Loan, and (v) that notice of the assignment of
Landlord's interest in said Lease may be given by mail, at the Leased
Premises, or as otherwise directed herein or in the Lease.
11. A true and complete copy of the Lease (excluding the Lease
Supplements) is attached hereto as Schedule B.
12. The execution and delivery of this Certificate by Tenant does not
require any consent, vote or approval which has not been given or
taken.
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13. This Certificate may not be changed, waived or discharged orally, but
only by an instrument in writing.
14. Except as expressly provided in the Lease, there are no purchase
options under the Lease or other agreements giving Tenant any rights
or options to purchase the Leased Premises and/or improvements, or a
part thereof, on which the space covered by the Lease is located.
15. This Certificate shall be binding upon the Tenant and shall inure to
the benefit of the respective successors and assigns of Landlord and
Lender.
16. This Certificate shall not have the effect of modifying any provision
of the Lease.
17. Capitalized terms not defined herein shall have the same meaning as
set forth in the Lease.
This Certificate is executed and delivered by the undersigned with the
knowledge that Lender will rely upon the statements and agreements contained
herein in connection with the making of the Loan on the above-referenced real
property and may rely hereon. If the mortgage loan becomes the subject of a
securitization, this Certificate may also be relied upon by the credit rating
agency, if any, rating the securities collaterallized by the mortgage loan as
well as any issuer of such securities, and any servicer and/or trustee acting in
respect of such securitization.
DATED: as of June 30, 2003.
TENANT:
Witness: BANK OF AMERICA, N.A.,
a national banking association
By:
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Name: Name:
Title:
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EXHIBIT F TO MASTER LEASE
FORM OF SUBTENANT NON-DISTURBANCE AGREEMENT
[TO BE ADDED]
1
EXHIBIT G TO MASTER LEASE
[FORM OF SEPARATE LEASE]
LEASE AGREEMENT
BETWEEN
[ ]
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a [ ] ("LANDLORD")
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AND
BANK OF AMERICA, N.A. ("TENANT")
Dated: , 200
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TABLE OF CONTENTS
Page
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ARTICLE I BASIC LEASE INFORMATION, LEASED PREMISES, TERM,
AND USE...................................................1
1.1 Basic Lease Information; Definitions...........................1
1.2 Leased Premises...............................................11
1.3 Term..........................................................11
1.4 Options to Renew; Special Notice of Non-Renewal...............11
1.5 Use...........................................................14
1.6 Survival......................................................14
ARTICLE II RENTAL AND OPERATING EXPENSES............................14
2.1 Rental Payments...............................................14
2.2 Operating Expenses............................................16
2.3 Real Estate Taxes.............................................21
2.4 Budget; Audit Rights..........................................23
ARTICLE III BUILDING SERVICES, IDENTITY, SIGNAGE, AND MANAGEMENT.....25
3.1 Building Standard and Above Standard Services.................25
3.2 Keys and Locks................................................29
3.3 Graphics and Building Directory...............................29
3.4 Building Identity; Signage; Exclusivity.......................29
3.5 Communications Equipment......................................31
3.6 Building Management...........................................33
ARTICLE IV CARE OF PREMISES; LAWS, RULES AND REGULATIONS............34
4.1 Care of Leased Premises.......................................34
4.2 Access of Landlord to Leased Premises.........................34
4.3 Nuisance......................................................35
4.4 Laws and Regulations; Rules of Building.......................35
4.5 Legal Use and Violations of Insurance Coverage................35
4.6 Environmental Laws............................................36
ARTICLE V LEASEHOLD IMPROVEMENTS AND REPAIRS.......................37
5.1 Leasehold Improvements........................................37
5.2 Alterations...................................................37
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TABLE OF CONTENTS
(continued)
Page
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5.3 Non-Removable Improvements....................................38
5.4 Mechanics Liens...............................................38
5.5 Repairs by Landlord...........................................39
5.6 Repairs by Tenant.............................................40
5.7 Art...........................................................40
ARTICLE VI CONDEMNATION, CASUALTY AND INSURANCE.....................41
6.1 Condemnation..................................................41
6.2 Damages from Certain Causes...................................43
6.3 Casualty Clause...............................................43
6.4 Property Insurance............................................44
6.5 Liability Insurance...........................................44
6.6 Hold Harmless.................................................45
6.7 WAIVER OF RECOVERY............................................45
ARTICLE VII DEFAULTS, REMEDIES, BANKRUPTCY, SUBORDINATION............46
7.1 Default and Remedies..........................................46
7.2 Insolvency or Bankruptcy......................................49
7.3 Negation of Lien for Rent.....................................49
7.4 Attorney's Fees...............................................49
7.5 No Waiver of Rights...........................................49
7.6 Holding Over..................................................50
7.7 Subordination.................................................50
7.8 Estoppel Certificate..........................................51
7.9 Subsequent Documents..........................................51
7.10 Interest Holder Privileges....................................52
ARTICLE VIII SUBLEASING, ASSIGNMENT, LIABILITY, AND CONSENTS..........52
8.1 Sublease or Assignment by Tenant..............................52
8.2 Assignment by Landlord........................................54
ARTICLE IX PURCHASE AND SALE........................................55
9.1 Tenant's Right of First Refusal to Purchase...................55
9.2 Right of First Offer on Sale..................................55
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TABLE OF CONTENTS
(continued)
Page
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ARTICLE X EXPANSION RIGHTS.........................................56
10.1 Tenant Expansion Notices......................................56
10.2 Landlord Expansion Response...................................56
10.3 Expansion Space Leases........................................56
10.4 Intentionally Omitted.........................................58
10.5 Subordination of Expansion Space Rights.......................58
10.6 Duration......................................................58
10.7 Disputes......................................................58
ARTICLE XI INTENTIONALLY OMITTED....................................59
ARTICLE XII INTENTIONALLY OMITTED....................................59
ARTICLE XIII TENANT REMEDIES..........................................59
ARTICLE XIV MISCELLANEOUS............................................59
14.1 Notices.......................................................59
14.2 Brokers.......................................................59
14.3 Binding on Successors.........................................60
14.4 Rights and Remedies Cumulative................................60
14.5 Governing Law.................................................60
14.6 Rules of Construction.........................................60
14.7 Authority and Qualification...................................60
14.8 Severability..................................................60
14.9 Quiet Enjoyment...............................................60
14.10 Limitation of Personal Liability..............................60
14.11 Memorandum of Lease...........................................61
14.12 Consents......................................................61
14.13 Time of the Essence...........................................61
14.14 Amendments....................................................61
14.15 Entirety......................................................61
14.16 References....................................................61
14.17 Counterpart Execution.........................................61
14.18 No Partnership................................................61
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TABLE OF CONTENTS
(continued)
Page
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14.19 Captions......................................................61
14.20 Required Radon Notice.........................................61
14.21 Changes to Project by Landlord................................62
14.22 Storage Space.................................................62
14.23 WAIVER OF JURY TRIAL..........................................62
14.24 Confidential Information......................................62
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EXHIBITS AND SCHEDULES
Exhibit A Leased Premises, Building NRA, Leased Premises NRA, Tenant
Occupancy Percentages and Annual Basic Rent Factor
Exhibit B Form of Confidentiality Agreement
Exhibit C Form of Subordination, Attornment and Non-Disturbance
Agreement
Exhibit D Form of Estoppel Certificate
Exhibit E Form of Subtenant Non-Disturbance Agreement
Schedule 1 Annual Basic Rent Factor Table
Schedule 2 Description of Environmental Information
Schedule 3 Description of Tenant's Art
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LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is made and entered into as of
, 200 by and between [_______________________], a
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[_________________] (hereinafter called "Landlord"), and BANK OF AMERICA, N.A.,
a national banking association (hereinafter called "Tenant").
BACKGROUND
WHEREAS, First States Investors 5000A ("First States"), as landlord, and
Tenant, as tenant, are parties to a certain Master Lease Agreement dated June
30, 2003 ("Original Lease") pursuant to which Landlord leased to Tenant certain
properties, including the Leased Premises (as hereinafter defined); and
WHEREAS, First States has sold to Landlord the Building of which the Leased
Premises form a part, and Landlord and Tenant are entering into this Lease
pursuant to Section 9.3 of the Original Lease.
NOW, THEREFORE, in consideration of the mutual agreements herein contained
and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto intending to be legally bound hereby, agree as
follows:
ARTICLE I
BASIC LEASE INFORMATION, LEASED PREMISES, TERM, AND USE
1.1 Basic Lease Information; Definitions.
(a) The following Basic Lease Information is hereby incorporated into and
made a part of this Lease. Each reference in this Lease to any information and
definitions contained in the Basic Lease Information shall mean and refer to the
information and definitions hereinbelow set forth.
Commencement Date: , 20 .
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Expiration Date: [To be determined pursuant to Section 9.3 of the
Original Lease].
Initial Term: Commencing on [__________________________]. and, unless
sooner terminated as herein provided, ending on ,
-----
. [To be determined pursuant to Section 9.3 of the
-----
Original Lease]. Initial Term will, subject to Section
9.3 of the Original Lease, expire either (i) 5 years
next following the Commencement Date, or (ii) June 30,
2023.
Leased Premises: That portion of the Project identified in Exhibit A
being demised and leased to Tenant hereunder.
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Landlord's Address for
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with a copy to:
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Tenant's Address for Bank of America, N.A.
Notices: 000 Xxxxx Xxxxx
0xx Xxxxx - Xxxxxxxxx Xxxx Xxxxxx Department
NC1-023-03-03
Xxxxxxxxx, XX 00000
Attention: Property Services
Fax: (000) 000-0000
with a copy to: Bank of America, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxx, Associate General Counsel
Fax: (000) 000-0000
and to: Xxxxxxxx Xxxx Corporate Services, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxx, Senior Vice President
Fax: (000) 000-0000
and to: Xxxxx Xxxx LaSalle Americas, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxxx, Executive Vice President
Fax: (000) 000-0000
Interest Holder's
Address for Notices:
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with a copy to:
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(b) As used in this Lease, the following terms shall have the respective
meanings indicated below, and such meanings are incorporated in each such
provision where used as if fully set forth therein:
"Above Standard Services" shall have the meaning assigned to such term in
Section 3.1(c).
"Above Standard Services Rent" shall mean any and all charges required to
be paid by Tenant for Above Standard Services as expressed in Section
3.1(c).
"Additional Equipment" shall have the meaning assigned to such term in
Section 3.5.
"Additional Rent" means Tenant's Operating Expense Share, Tenant's Tax
Share, Above Standard Services Rent and all other sums (other than Annual
Basic Rent) that Tenant is obligated to pay or reimburse to Landlord as
required by the terms of this Lease.
"Affiliate" or "Affiliates" means any person or entity controlling,
controlled by, or under common control with another such person or entity.
"Control" as used herein shall mean the possession, direct or indirect, or
the power to direct or cause the direction, of the management and policies
of such controlled person or entity. The ownership, directly or indirectly,
of more than fifty percent (50%) of the voting securities of, or possession
of the right to vote in, the ordinary direction of its affairs, more than
fifty percent (50%) of the voting interest in, any person or entity shall
be presumed to constitute such control. In the case of Landlord (if
Landlord is a partnership), the term Affiliate shall also include any
person or entity controlling or controlled by or under common control with
any general partner of Landlord or any general partner of Landlord's
general partner.
"Annual Basic Rent" means $ per annum [Insert Annual
-------------------
Basic Rent plus Excess Basic Rent payable under Original Lease], except
that the Annual Basic Rent for any Short Term Expansion Space shall equal
the Fair Market Rental Value of such Short Term Expansion Space as provided
in Article X. During the Renewal Terms of this Lease, the Annual Basic Rent
shall equal the Fair Market Rental Value of the Leased Premises. The Annual
Basic Rent due under this Lease shall be re-calculated each time there is a
change in the Annual Basic Rent Factor or in Tenant's Occupancy Percentage
or a required conversion to, or adjustment in, the Fair Market Rental Value
of a Project.
"Annual Basic Rent Factor" shall mean $8.60 per square foot of Net Rentable
Area. On the first day of the sixth Lease Year, and on the first day of
every fifth Lease Year thereafter during the Term (i.e., the eleventh,
sixteenth, twenty-first, etc. Lease Years), the Annual Basic Rent Factor
shall be increased as set forth on Schedule 1 hereto. [This
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definition remains only if this is a "Continuing Term Separate Lease"].
"Applicable Rate" shall mean an annual rate of interest equal to the lesser
of (i) the Prime Rate plus two percent (2%) and (ii) the maximum contract
interest rate per annum allowed by North Carolina law.
"Appraiser" shall mean an independent professional real estate appraiser,
MAI or equivalent, with at least ten (10) years' experience appraising
commercial real estate comparable to the subject Project or Leased
Premises, who shall be associated with a nationally-recognized real estate
services firm offering appraisal services, with local offices in the region
where the subject Project is located, and which firm is not under contract
with or otherwise so associated with either Landlord or Tenant as to
reasonably impair its or their ability to render impartial judgments (it
being agreed that an Appraiser that performs residential or commercial
property appraisals for Tenant in Tenant's capacity as a mortgage lender
shall not be disqualified from serving as an Appraiser solely as a result
of such other relationship with Tenant).
"Art" shall have the meaning assigned to such term in Section 5.8.
"ATM" shall mean automated teller machine.
"Banking" shall have the meaning assigned to such term in Section 1.5.
"BOMA" shall mean the Building Owners and Managers Association.
"Budget" shall have the meaning assigned to such term in Section 2.4(a).
"Building" shall mean the buildings identified on Exhibit A in which the
Leased Premises are located.
"Building Operating Hours" shall mean from 7:00 a.m. to 7:00 p.m. on
Mondays through Fridays and from 8:00 a.m. to 2:00 p.m. on Saturdays,
excepting Holidays.
"Building Rules" shall have the meaning assigned to such term in Section
4.4.
"Building Standard Services" shall have the meaning assigned to such term
in Section 3.1(a).
"Building Standards" shall mean the materials of the type, quality and
quantity generally used throughout the Building and in Comparable
Buildings.
"Bureau of Labor Statistics" shall mean the U.S. Department of Labor,
Bureau of Labor Statistics.
"Casualty" shall have the meaning assigned to such term in Section 6.3(a).
"Commencement Date" shall have the meaning assigned to such term in Section
1.1(a).
"Common Areas" shall have the meaning assigned to such term in Section 1.2.
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"Communications Equipment" shall have the meaning assigned to such term in
Section 3.5.
"Comparable Buildings" shall mean a quality, age, location and construction
that is comparable to that of other buildings comparable to the Building
within the metropolitan area within which the Building is located.
"Damaged Property" shall have the meaning assigned to such term in Section
6.3(a).
"Drive-Through Banking Facility" shall mean the portion of the Leased
Premises, if any, identified as a Drive-Through Banking Facility in Exhibit
A.
"Enforcement" shall have the meaning assigned to such term in Section 7.7.
"Environmental Information" shall have the meaning assigned to such term in
Section 4.6(a).
"Environmental Matters" shall have the meaning assigned to such term in
Section 4.6(b).
"Expansion Rights" shall have the meaning assigned to such term in Section
10.3.
"Expansion Space" shall have the meaning assigned to such term in Section
10.3.
"Expansion Space Acceptance" shall have the meaning assigned to such term
in Section 10.3.
"Expiration Date" shall have the meaning assigned to such term in Section
1.1(a).
"Event of Default" shall have the meaning assigned to such term in Section
7.1(a).
"Facility Manager" shall have the meaning assigned to such term in Section
3.6.
"Fair Market Rental Value" shall mean the fair market rental value, as of
the date the determination is made, that would be obtained in an
arm's-length net lease (i.e., net of all operating expenses, real estate
taxes, utilities and other pass-throughs) between an informed and willing
tenant (other than a tenant in possession) and an informed and willing
landlord, neither of whom is under any compulsion to enter into such
transaction, for space in Comparable Buildings that is comparable in size,
location and quality to the Leased Premises, for a comparable term. Such
Fair Market Rental Value shall be calculated assuming that (i) the Leased
Premises are in the condition and state of repair required under the Lease,
(ii) Tenant is in compliance with the requirements of the Lease and (iii)
Tenant will accept the Leased Premises in "AS-IS" condition. In determining
the Fair Market Rental Value for the Project, the Appraiser shall give due
consideration, to and make any necessary adjustments to the rentals paid at
Comparable Buildings in light of, the following factors: (i) Tenant will
not receive, and Landlord will not pay, any tenant improvement, relocation,
moving or other allowance, rent abatement or other reduced or free rent
period or any other allowance or concession in connection with Tenant's
leasing of the Leased Premises, (ii) except as expressly provided herein
with
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respect to Expansion Space, Tenant's obligation to pay Rent commences on
the date possession of the Leased Premises are delivered to Tenant, (iii)
Landlord will not pay any brokers' fee or commission in connection with
Tenant's leasing of the Leased Premises, (iv) the Landlord's inclusion, and
Tenant's payment, of amortized capital expenditures in Operating Expenses
to the extent provided in this Lease and (v) the creditworthiness of Tenant
and the tenants at Comparable Buildings. For Short Term Expansion Space
only, the Fair Market Rental Value shall be determined without regard to
the value added by any alterations or improvements made to such space by
Tenant after it was added to the Lease Premises as provided in Article X.
"Floor Common Area" shall have the meaning assigned to such term in the
Measurement Standard.
"Force Majeure Events" means events beyond Landlord's or Tenant's (as the
case may be) control, which shall include, without limitation, all labor
disputes, governmental regulations or controls, war, fire or other
casualty, inability to obtain any material or services, acts of God, or any
other cause not within the reasonable control of Landlord or Tenant (as the
case may be). The times for performance set forth in this Lease (other than
for monetary obligations of a party) shall be extended to the extent
performance is delayed by Force Majeure Events.
"GAAP" shall mean generally accepted accounting principles, consistently
applied.
"Governmental Authority" means the United States, the state, county, city
and political subdivision in which a Project is located or that exercises
jurisdiction over the Project, Landlord or Tenant, and any agency,
department, commission, board, bureau or instrumentality of any of the
foregoing that exercises jurisdiction over the Project, Landlord or Tenant.
"Gross Revenue" for the Project shall mean all gross income generated in
connection with the Project, including, without limitation, basic rents,
additional rents and other charges collected from Tenant and other tenants
or occupants of the Project and income from services, coin operated vending
machines and telephones, parking facilities, but excluding (i) security
deposits, unless and not until such deposits are applied as rental income,
(ii) interest on bank accounts for the operation of the Project, (iii)
proceeds from the sale or refinancing of the Project, (iv) insurance
proceeds or dividends received from any insurance policies pertaining to
physical loss or damage to the Project, (v) condemnation awards or payments
received in lieu of condemnation of the Project, and (vi) any trade
discounts and rebates received in connection with the purchase of personal
property or services in connection with the operation of the Project.
"Hazardous Materials" means any flammable materials, explosive materials,
radioactive materials, asbestos-containing materials, the group of organic
compounds known as polychlorinated biphenyls and any other hazardous, toxic
or dangerous waste, substance or materials defined as such in (or for
purposes of) the federal Comprehensive Environmental Response Compensation
and Liability Act of 1980, as amended, 42 U.S.C. (S)(S) 9601 to 9675, the
federal Hazardous Materials Transportation Act, 42 U.S.C.
6
(S)(S) 5101 to 5127, the federal Solid Waste Disposal Act as amended by the
Resources Conservation and Recovery Act of 1976, 42 U.S.C. (S)(S) 6901 to
6992k, the federal Toxic Substance Control Act, 15 U.S.C. (S)(S) 2601 to
2692 or any other Legal Requirement from time to time in effect regulating,
relating to or imposing liability or standards of conduct concerning any
hazardous, toxic or dangerous waste, substance or material.
"Holidays" shall mean New Year's Day, Xxxxxx Xxxxxx Xxxx Day, Presidents'
Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Thanksgiving
Day, Christmas Day and any and all other dates observed as bank holidays by
national banks. If, in the case of any holiday described above, a different
day shall be observed than the respective day described above, then that
day that constitutes the day observed by national banks in the state in
which the Project is located on account of such holiday shall constitute
the Holiday under this Lease.
"HVAC" shall mean heating, ventilating and air conditioning.
"Initial Term" shall have the meaning assigned to such term in Section
1.1(a).
"Interest Holder" shall have the meaning assigned to such term in Section
7.7.
"JLL" means Xxxxx Lang LaSalle Americas, Inc.
"Land" shall mean the parcels of land identified on Exhibit A on which the
Building, Common Areas, Drive-Through Banking Facilities and Parking Areas,
if any, and other elements of the Project are located.
"Landlord" shall have the meaning assigned to such term in the parties
paragraph.
"Landlord Default" shall have the meaning assigned to such term in Section
7.1(f).
"Landlord Designated Submanager" shall have the meaning assigned to such
term in Section 3.6.
"Landlord Expansion Response" shall have the meaning assigned to such term
in Section 10.2.
"Lease" shall have the meaning assigned to such term in the parties
paragraph.
"Leased Premises" shall have the meaning assigned to such term in Section
1.1(a).
"Lease Year" means a period of one (1) year; provided that the first Lease
Year shall commence on the Commencement Date and shall end on ;
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the second Lease Year commences upon the expiration of first Lease Year and
ends one (1) year later, and all subsequent Lease Years commence upon the
expiration of the prior Lease Year, except that the last Lease Year during
the Term ends on the last day of the Term. The Lease Year for all Projects
covered by this Lease shall be the same.
"Legal Requirements" means any law, statute, ordinance, order, rule,
regulation or
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requirement of a Governmental Authority.
"MAI" means Member of the Appraisal Institute.
"Maximum Renewal Term Basic Rent" shall have the meaning assigned to such
term in Section 1.4(c).
"Measurement Standard" shall mean the Standard Method for Measuring Floor
Area in Office Buildings, ANSI/BOMA Z65.1-1996, as promulgated by BOMA.
"Net Rentable Area" shall mean, as applicable, the net rentable areas of
the Leased Premises and the Buildings, determined in conformity with the
Measurement Standard. The approximate Net Rentable Areas of the Leased
Premises, the Occupied Release Premises and the Buildings are as specified
in Exhibit A; provided that the final and stipulated Net Rentable Areas of
the Leased Premises, the Occupied Release Premises and each of the
Buildings shall be re-measured by Landlord on or before October 31, 2003,
in conformity with the Measurement Standard as expressed in the Purchase
Agreement. Once such re-measurement is completed, Landlord and Tenant shall
(i) amend the Lease Supplements and Exhibit A to confirm, effective as of
the Commencement Date, the correct Net Rentable Areas, Occupancy
Percentages and Annual Basic Rents and (ii) recalculate and confirm in
writing the Net Rentable Area subject to Termination Rights under Section
11.4 below.
"Non-Removable Improvements" shall have the meaning assigned to such term
in Section 5.3.
"Notice Parties" shall mean the parties identified in Section 1.1(a), and
any successor or additional party as a Notice Party may from time to time
designate, as parties entitled to receive written notices under this Lease.
"Notice to Vacate" shall have the meaning assigned to such term in Section
11.1.
"Occupancy Percentage" shall mean a fraction, expressed as a percentage,
the numerator of which is the Net Rentable Area of the Leased Premises in
the Building at the time the determination is made, and the denominator of
which is Net Rentable Area of the Building, all as set forth on Exhibit A
hereto, as amended from time to time. The Occupancy Percentage for the
Project shall be re re-calculated each time there is a change in the Net
Rentable Area of the Leased Premises or the Building at such Project.
"Operating Expenses" shall have the meaning assigned to such term in
Section 2.2(b).
"Operating Expense Statement" shall have the meaning assigned to such term
in Section 2.2(f).
"Outside Completion Date" shall have the meaning assigned to such term in
Section 6.3(d).
"Owner" shall have the meaning assigned to such term in Section 7.7.
8
"Parking Areas" shall mean the exclusive and non-exclusive parking areas
and facilities for the Project as indicated on Exhibit A, together with any
connecting walkways, covered walkways, tunnels, or other means of access to
the Building, and any additional minor improvements now or hereafter
located on the Land related to the foregoing facilities.
"Pre-Committed Space" shall have the meaning assigned to such term in
Section 10.1.
"Prime Rate" shall mean the "prime rate" announced by Bank of America,
N.A., or its successor, from time to time (or if the Prime Rate is
discontinued, the rate announced as that being charged to said bank's most
credit-worthy commercial borrowers).
"Project" means the Land, the Building, the Common Areas, including,
without limitation, the Parking Areas, any Drive-Through Banking
Facilities, and any and all additional improvements now or hereafter
located on the Land that serve the Building, the Common Areas, including,
without limitation, the Parking Areas, any Drive-Through Banking Facilities
or the tenants of the Building generally.
"Qualified Damage" shall have the meaning assigned to such term in Section
6.3(b).
"Real Estate Taxes" shall have the meaning assigned to such term in Section
2.3(b).
"Remedial Work" means the removal, relocation, elimination, remediation or
encapsulation of Hazardous Materials from all or any portion of the Leased
Premises or the Common Areas and, to the extent thereby required, the
reconstruction and rehabilitation of the Leased Premises or the Common
Areas pursuant to, and in compliance with this Lease.
"Renewal Option(s)" shall have the meaning assigned to such term in Section
1.4(a).
"Renewal Option Notice Date" shall mean, with respect to a Renewal Option,
the date on which Tenant sends written notice of exercise of such Renewal
Option to Landlord as provided in Section 1.4.
"Renewal Premises" shall have the meaning assigned to such term in Section
1.4(c).
"Renewal Terms" shall have the meaning assigned to such term in Section
1.4(a).
"Rent" means Annual Basic Rent and Additional Rent.
"ROFO Eligible Conditions" shall have the meaning assigned to such term in
Section 9.2.
"ROFO Eligible Property" shall have the meaning assigned to such term in
Section 9.2.
"SAR" shall mean Strategic Alliance Realty.
"SEC" shall have the meaning assigned to such term in Section 14.24.
"Security Areas" shall have the meaning assigned to such term in Section
4.2.
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"Self-Insurance Net Worth Test" shall mean, as of any date, that (i) Tenant
has a net worth of at least $1,000,000,000.00 and (ii) Tenant's long-term
senior unsecured debt obligations are rated at least BBB (or its
equivalent) by Duff & Xxxxxx and Baa2 (or its equivalent) by Xxxxx'x at of
that date; provided that if Tenant is rated by only one of Duff & Xxxxxx or
Xxxxx'x, such obligations shall have such rating from Duff & Xxxxxx or
Xxxxx'x, as the case may be, and a comparable rating from one of Fitch
Investors Service, S&P or another nationally-recognized rating agency.
"Service Failure" shall have the meaning assigned to such term in Section
3.1(e).
"Short Term Expansion Space" shall have the meaning assigned to such term
in Section 10.3.
"Sublet Space" shall have the meaning assigned to such term is Section
8.1(b).
"Subtenant Non-Disturbance Agreement" shall mean a written agreement
substantially in the form attached as Exhibit F hereto among Landlord,
Tenant, and any Interest Holders pursuant to which Landlord and such
Interest Holders agree not to disturb such subtenant's possessory and other
rights under the Sublease, and such subtenant agrees to attorn to and
recognize Landlord, notwithstanding any expiration or earlier termination
of the Term of this Lease prior to the expiration or earlier termination of
the term of the Sublease, except to the extent that such possessory or
other rights can be disturbed or terminated as provided in the Sublease.
"Tax Statement" shall have the meaning assigned to such term in Section
2.3(a).
"TCCS" shall mean Xxxxxxxx Xxxx Corporate Services, Inc.
"Tenant" shall have the meaning assigned to such term in the parties
paragraph.
"Tenant's Business Equipment" shall have the meaning assigned to such term
in Section 5.3.
"Tenant Designated Submanager" shall have the meaning assigned to such term
in Section 3.6.
"Tenant Expansion Notice" shall have the meaning assigned to such term in
Section 10.1.
"Tenant Managed Project" shall have the meaning assigned to such term in
Section 3.6.
"Tenant's Operating Expense Share" shall have the meaning assigned to such
term in Section 2.2(a).
"Tenant's Tax Share" shall have the meaning assigned to such term in
Section 2.3(a).
"Term" shall have the meaning assigned to such term in Section 1.3.
"Transfer Notice" shall have the meaning assigned to such term in Section
8.1(b).
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"VARA" means the Visual Artists Rights Act of 1990, as amended.
1.2 Leased Premises. Subject to and upon the terms hereinafter set forth,
Landlord does hereby lease and demise to Tenant, and Tenant does hereby lease
and take from Landlord, the Leased Premises. The initial Leased Premises demised
hereunder are described in Exhibit A hereto. Tenant shall be entitled to the
following as appurtenances to the Leased Premises: the right to use (a) the
Parking Areas, if any, identified on Exhibit A (b) for Tenant's non-exclusive
use, the roof of the Building in accordance with Section 3.5 hereof, (c) for
Tenant's exclusive use, the restrooms, telephone, electric and other utility
closets on floors leased entirely by Tenant; provided that if such facilities
also serve floors in a Building that is not fully leased by Tenant, Tenant's use
of such facilities shall be non-exclusive and in common with Landlord and other
tenants or occupants of the floors also serviced by such facilities and (d) for
use in common with Landlord and other tenants or occupants of the Projects,
their invitees and guests and others as designated by Landlord from time to
time, all areas, facilities and systems, including risers, telephone, electric
and other utility closets in the Building and other portions of the Project
available from time to time for the common use of tenants in the Building (all
such areas, facilities and systems, together with all areas, facilities and
systems denominated as "Building Common Areas" and "Floor Common Areas" in the
Measurement Standard, the "Common Areas") and all rights and benefits
appurtenant to, or necessary or incidental to, the use and enjoyment of the
Leased Premises by Tenant for the purposes permitted by Section 1.5 hereof
including, but not limited to, the right of Tenant, its employees and invitees,
in common with Landlord and other persons, to use any non-exclusive easements
and/or licenses in, about or appurtenant to the Project, including but not
limited to the non-exclusive right to use any walkways, tunnels, and skywalks
connected to the Project.
1.3 Term. The Initial term of this Lease shall be as described in Section
1.1(a), which Initial Term may be renewed and extended as provided in Section
1.4 (the Initial Term and, to the extent renewed and extended, any such Renewal
Terms are hereinafter collectively called the "Term"). Tenant is in possession
of the Leased Premises as of the date of this Lease and shall accept the Leased
Premises in its "AS-IS" condition on the Commencement Date, subject to all
applicable Legal Requirements, covenants and restrictions. Landlord has made no
representation or warranty regarding the suitability of the Leased Premises or
the Building for the conduct of Tenant's business, and Tenant waives (a) any
implied warranty that the Leased Premises or the Building are suitable for
Tenant's intended purposes, (b) any right of Tenant to claim that the Leased
Premises are not now or in the future in compliance with Legal Requirements
(except to the extent that any such future non-compliance with Legal
Requirements within the Leased Premises was caused by any act or omission of
Landlord, or its agents, servants or employees) and (c) any right of Tenant to
claim that the Building is not in compliance with Legal Requirements in effect
on the Commencement Date. Except as otherwise expressly set forth in this Lease
to the contrary, in no event shall Landlord have any obligation for any defects
in effect on the Commencement Date in the Leased Premises or the Building or any
limitation on their respective uses.
1.4 Options to Renew; Special Notice of Non-Renewal.
(a) [To adjust subject to and in accordance with Section 9.3 of Original
Lease] Subject to the conditions hereinafter set forth, Tenant is hereby granted
options (individually, a
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"Renewal Option" and, collectively, the "Renewal Options") to renew the Term
(including any Expansion Space) for [_____] successive periods of five (5) years
each (individually, a "Renewal Term" and collectively the "Renewal Terms");
provided that the Term of this Lease shall not extend beyond June 30, 2053.
(b) The first Renewal Term shall commence at the expiration of the Initial
Term, and each subsequent Renewal Term shall commence at the expiration of the
prior Renewal Term. Tenant shall exercise its options to renew, if at all, by
delivering notice of such election to Landlord not later than twelve (12) months
prior to the expiration of the Initial Term or the expiration of the then
`current Renewal Term, as the case may be. IN ORDER TO PREVENT TENANT'S
INADVERTENT FORFEITURE OF ANY THEN REMAINING RENEWAL OPTION, IF TENANT SHALL
FAIL TO TIMELY EXERCISE ANY AVAILABLE RENEWAL OPTION, TENANT'S RIGHT TO EXERCISE
SUCH RENEWAL OPTION SHALL NOT LAPSE UNTIL LANDLORD SHALL DELIVER TO TENANT
WRITTEN NOTICE THAT SUCH NOTICE OF EXERCISE HAS NOT BEEN DELIVERED AND TENANT
SHALL THEREAFTER FAIL TO EXERCISE SUCH RENEWAL OPTION WITHIN TEN (10) DAYS
FOLLOWING THE DELIVERY OF SUCH NOTICE.
(c) The Annual Basic Rent to be paid by Tenant for the Leased Premises
during a Renewal Term (any such premises, the "Renewal Premises") shall equal
the Fair Market Rental Value of such Renewal Premises during such Renewal Term
as determined by the parties or, in the absence of their agreement, determined
by appraisal as expressed below.
(d) Within thirty (30) days following the Renewal Option Notice Date,
Landlord shall deliver to Tenant, a proposal setting forth Landlord's
determination of the Fair Market Rental Value for the Renewal Premises during
the applicable Renewal Term. For thirty (30) days thereafter, Landlord and
Tenant shall negotiate in good faith to reach agreement as to the Fair Market
Rental Value for the Renewal Premises. Tenant's leasing of the Renewal Premises
shall be upon the same terms and conditions as set forth in this Lease, except
(i) the Annual Basic Rent during the Renewal Term shall be determined as
specified in Sections 1.4(c) and (e) and (ii) the leasehold improvements for the
space in question will be provided in their existing condition, on an "AS-IS"
basis at the time the Renewal Term commences. Once established, the Annual Basic
Rent for the applicable Renewal Term will remain fixed for each five (5) year
Renewal Term, and be paid monthly in advance.
(e) If Landlord and Tenant are unable to reach a definitive agreement as to
the Fair Market Rental Value applicable to Renewal Premises within sixty (60)
days following the Renewal Option Notice Date, the Fair Market Rental Value will
be submitted for resolution in accordance with the provisions of this Section
1.4(e). Within seventy-five (75) days following the Renewal Option Notice Date
(or, if later, within fifteen (15) days following the date on which either
Landlord or Tenant notifies the other party in writing that such notifying party
desires to have the Annual Basic Rent for a Renewal Term determined by
appraisal), Landlord and Tenant shall each select and engage an Appraiser to
determine the Fair Market Rental Value of the Renewal Premises. If either party
fails to select and engage an Appraiser within such time, if such failure
continues for more than five (5) business days following such party's receipt of
written notice that states in all capital letters (or other prominent display)
that such party has failed to select an Appraiser as required under the Lease
and will be deemed to have waived
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certain rights granted to it under the Lease unless it selects an Appraiser
within five (5) business days, the Fair Market Rental Value will be determined
by the Appraiser engaged by the other party. Each Appraiser shall prepare an
appraisal report and submit it to both Landlord and Tenant within thirty (30)
days following the date on which the last Appraiser was selected. If the higher
of the two appraisals of Fair Market Rental Value does not exceed one hundred
five percent (105%) of the lower of the two appraisals of Fair Market Rental
Value, then the average of the two (2) appraisals shall be the Fair Market
Rental Value for the Renewal Premises. If the higher of the two appraisals of
Fair Market Rental Value exceeds 105% of the lower of the two appraisals of Fair
Market Rental Value, then within seven (7) days after receipt by Landlord and
Tenant of both appraisal reports, the Appraisers selected by Landlord and Tenant
shall agree on a third Appraiser to determine Fair Market Rental Value. The
third Appraiser shall not perform a third appraisal, but shall, within ten (10)
days after his or her designation, select one (1) of the two (2) appraisals
already performed, whichever of the two appraisals the third Appraiser
determines to be closest to Fair Market Rental Value, as the controlling
determination of the Fair Market Rental Value. The decision of the third
Appraiser shall be conclusive, and, subject to the limitations expressed in
Section 1.4(c), shall be the Fair Market Rental Value for the Renewal Premises
for the Renewal Term. Each party shall pay the costs of its Appraiser and
one-half of the cost of the third Appraiser. The instructions to the Appraisers
with respect to the determination of the Fair Market Rental Value applicable to
such space will be to determine the Fair Market Rental Value for such space as
of the relevant Renewal Term, assuming that such space will be leased on an
"AS-IS" basis. Within thirty (30) days following the determination of the Fair
Market Rental Value, Tenant shall elect one (1) of the following options: (A) to
revoke the exercise of the subject Renewal Option, in which event, the Term of
this Lease shall automatically, and without further action of Landlord or
Tenant, expire on the later of (1) the expiration of the then existing Term or
(2) the last day of the calendar month that is six (6) months following the
month in which Tenant's notice of revocation was given to Landlord or (B) to
renew the Lease at the rate to be determined in accordance with this Section
1.4(e) after the Fair Market Rental Value has been determined by appraisal. If
Tenant fails to exercise any of the foregoing options within the thirty (30) day
period, Tenant shall be deemed to have elected option (A). If Tenant has elected
option (B), Tenant thereby shall have irrevocably exercised its right to renew
the Term and Tenant may not thereafter withdraw the exercise of the Renewal
Option; in such event the renewal of this Lease shall be upon the same terms and
conditions of this Lease, except (i) the Annual Basic Rent during the Renewal
Term shall be determined in accordance with the foregoing provisions and (ii)
the leasehold improvements for the space in question will be provided in their
existing condition, on an "AS-IS" basis at the time the Renewal Term commences.
If the Annual Basic Rent for a Renewal Term has not been determined prior to the
commencement of such Renewal Term, Tenant shall pay to Landlord as of the
commencement of the Renewal Term the same Annual Basic Rent as Tenant was paying
immediately prior to the commencement of the Renewal Term, subject to adjustment
upon final determination. Once established, the Annual Basic Rent for the
Renewal Term will remain fixed for each five (5) year Renewal Term, and be paid
monthly in advance.
(f) Notwithstanding anything to the contrary contained in this Section 1.4,
subject to the provisions of Section 1.4(a) above, Tenant's failure to give the
required renewal notice in conformity with the requirements of Section 1.4(b)
shall render the upcoming and all subsequent Renewal Options for the Leased
Premises, if there be any, null and void.
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1.5 Use. Each of the Leased Premises may be used and occupied by Tenant (and its
permitted assignees and subtenants) only for banking and related uses and
general business office purposes and such other lawful purposes as are
consistent with banking and general office uses being made from time to time by
tenants of the Building. In addition and without limitation of the foregoing,
Tenant may maintain (for use by Tenant and its employees, customers, and
invitees): (a) conference and/or meeting facilities, (b) libraries, (c)
non-retail coffee bars, (d) support staff facilities (including, without
limitation, word processing and copy facilities), (e) lunchrooms and kitchen
facilities for use by Tenant and its employees and invitees, including vending
machines and microwave ovens for use by Tenant and its employees and invitees,
subject, however, to Legal Requirements, (f) storage space incidental to banking
and general business office purposes only, (g) bank and storage vaults, (h) cash
vault, (i) telephone call centers, (j) retail banking facilities and (k) any
lawful purpose for which the Leased Premises were used on the Commencement Date.
Tenant is not obligated to maintain occupancy in all or any portion of the
Leased Premises. For purposes of this Section 1.5, the term "banking" shall be
deemed to include, without limitation, all traditional banking activities as
well as the sale of insurance and annuities of all types, trust services,
investment and financial advice, and the sale of securities. If Tenant receives
notice of any material directive, order, citation or of any violation of any
Legal Requirement or any insurance requirement, Tenant shall endeavor to
promptly notify Landlord in writing of such alleged violation and furnish
Landlord with a copy of such notice.
1.6 Survival. Any claim, cause of action, liability or obligation arising during
the Term of this Lease in favor of a party hereto and against or obligating the
other party hereto shall (to the extent not theretofore fully performed) survive
the expiration or any earlier termination of this Lease.
ARTICLE II
RENTAL AND OPERATING EXPENSES
2.1 Rental Payments.
(a) Beginning on the Commencement Date, Tenant shall pay Annual Basic Rent
and Additional Rent with respect to the Leased Premises, all as applicable and
as required by and in conformity with the provisions of this Lease. Annual Basic
Rent shall be due and payable in equal monthly installments on the first day of
each calendar month during the Term, in advance. Tenant's Operating Expense
Share and Tenant's Tax Share shall be due and payable in accordance with
Sections 2.2 and 2.3. Unless otherwise specified herein Above Standard Services
Rent shall be payable twenty (20) days following Landlord's submission to Tenant
of an invoice therefor.
(b) Beginning on the Commencement Date, and continuing throughout the Term
of this Lease, Tenant shall pay Annual Basic Rent to Landlord. Annual Basic Rent
shall be adjusted from time to time each time there is a change in the Annual
Basic Rent Factor or in Tenant's Occupancy Percentage for the Project. From and
after the expiration of the Initial Term through the expiration of the Renewal
Term(s) (to the extent Tenant renews and extends this Lease pursuant to Section
1.4 hereof), Tenant shall pay Annual Basic Rent at the rate determined in
accordance with the provisions of Section 1.4.
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(c) Intentionally Omitted.
(d) If the Term commences on a day other than the first day of a calendar
month, or if the Term expires on other than the last day of a calendar month,
then all installments of Rent that are payable on a monthly basis shall be
prorated for the month in which such Term commences or terminates, as the case
may be, and the installment or installments so prorated for the month in which
such Term commences or terminates, as the case may be, shall be paid in advance.
Said installments for such prorated month or months shall be calculated by
multiplying the monthly installment by a fraction, the numerator of which shall
be the number of days such Rent accrues during said commencement or expiration
month, as the case may be, and the denominator of which shall be the actual
number of days in the month. If the Term commences or if the Term expires on
other than the first day of a calendar year, then all Rent payable on an annual
basis shall be prorated for such commencement or expiration year, as the case
may be, by multiplying such Rent by a fraction, the numerator of which shall be
the number of days of the Term during the commencement or expiration year, as
the case may be, and the denominator of which shall be the actual number of days
in such commencement or expiration year. In such event, the foregoing
calculation shall be made as soon as is reasonably possible. Landlord and Tenant
hereby agree that the provisions of this Section 2.1(d) shall survive the
expiration or termination of this Lease.
(e) Tenant agrees to pay all Rent 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 abatement (except as specifically provided in this Lease),
demand, offset (except as specifically provided in this Lease) or counterclaim,
at Landlord's address as provided herein (or such other address in the
continental United States as may be designated in writing by Landlord from time
to time). Tenant shall have the right, at its option, to pay Rent by means of
electronic funds transfer to such account and depository institution as Landlord
shall specify from time to time upon Tenant's request. All Rent owed by Tenant
to Landlord under this Lease shall bear interest from the date due thereof until
payment is received by Landlord at the Applicable Rate; provided that Landlord
shall not be entitled to receive interest during the first thirty (30) days
following the payment due date on any overdue amount for which Landlord receives
a late charge as provided in Section 2.1(g). All sums owed by Landlord to Tenant
pursuant to this Lease shall bear interest from the date due thereof until
payment is received by Tenant at the Applicable Rate. Any payments made by
Landlord or Tenant to the other hereunder shall not be deemed a waiver by such
party of any rights against the other party.
(f) Tenant recognizes that late payment of any Rent will result in
administrative and other expense to Landlord. Therefore, other remedies for
nonpayment of Rent notwithstanding, (i) in the event any installment of Annual
Basic Rent is not received by Landlord on or before the fifth (5th) day of the
month for which it is due, and such amount shall remain unpaid for more than
five (5) days after Tenant's receipt of written notice that such amount is past
due, then Tenant shall pay to Landlord a late charge equal to two and one half
(2 1/2%) percent of the past due installment of Annual Basic Rent, and (ii) in
the event any payment of Additional Rent is not received by Landlord within five
(5) days after Tenant's receipt of written notice that such amount is past due,
then Tenant shall pay to Landlord an additional charge in an amount equal to the
lesser of Two Thousand Five Hundred Dollars ($2,500.00) or one percent (1%) of
the overdue amount. Any notice of overdue payment for which Tenant shall be
subject to a late
15
charge shall state, in all capital letters (or other prominent display), that
Tenant's failure to remit payment by the appointed date shall result in the
imposition of a late charge. Landlord may not send any such notice of overdue
payment to Tenant prior to the fifth (5th) day following the date such payment
is due, and if any such premature notice is sent, it shall be deemed to have
been sent on the fifth (5th) day following the date such payment was due.
Notwithstanding the foregoing, Tenant shall not be obligated to pay a late
charge on installments of Rent to the extent properly abated or set-off by
Tenant pursuant to an express right to do so as set forth in this Lease or to
the extent that Tenant's payment is deficient by an amount that is less than or
equal to one (1%) percent of the total amount due; provided that Tenant shall
remit the amount of the deficiency promptly upon and, in any extent, within five
(5) business days following Tenant's receipt of written notice from Landlord
that the same is past due. All additional charges described herein are not
intended as a penalty, but are intended to liquidate the damages so occasioned
to Landlord and to reimburse Landlord for Landlord's additional costs in
processing such late payment, which amounts shall be added to the Rent then due.
(g) Rent received by Landlord shall be applied by Landlord in the following
order: (i) Annual Basic Rent, (ii) Tenant's Operating Expense Share, (iii)
Tenant's Tax Share, (iv) Above Standard Services Rent and (v) to any remaining
items of Rent that are due and unpaid. Subject to the foregoing limitations,
Tenant may, by written notice to Landlord with any Rent payment, direct how Rent
is to be allocated among one or more Projects.
(h) In those instances for which the right of offset is expressly provided,
Tenant shall be entitled to offset against Rent next coming due any amounts that
are owed or payable by Landlord to Tenant under or pursuant to the terms of this
Lease as expressed in Article XIII.
2.2 Operating Expenses.
(a) During each month of the Term of this Lease, on the same date that
Annual Basic Rent is due, Tenant shall pay to Landlord, as Additional Rent, an
amount equal to one-twelfth (1/12) of the annual cost of Tenant's Occupancy
Percentage of the Operating Expenses for the Project as hereinafter provided
(the amount so payable by Tenant, "Tenant's Operating Expense Share"). Tenant
agrees the amount of Operating Expenses may be estimated by Landlord for the
upcoming calendar year. Landlord reserves the right to reasonably re-estimate
Operating Expenses (and Tenant's monthly installments of Tenant's Operating
Expense Share on account thereof) up to one (1) time each calendar year;
provided that any re-estimation made during the course of any calendar year for
purposes of adjusting Tenant's monthly installments falling due during the same
calendar year shall be made on not less than ninety (90) days' prior notice to
Tenant, which notice shall include documentation that evidences and supports, in
reasonable detail, the basis and need for Landlord's re-estimation of Operating
Expenses. Any overpayment or underpayment of Tenant's Operating Expense Share
shall be reconciled after the period for which estimated payments have been made
by Tenant as expressed in Section 2.2(f).
(b) "Operating Expenses," for each calendar year, shall mean all expenses
and costs of every kind and nature (other than as set forth in Section 2.2(c))
that have accrued for a particular calendar year, as reasonably allocated by
Landlord and, except as otherwise expressly provided herein, computed in
accordance with GAAP, on an accrual basis and incurred in connection with the
servicing, repairing, maintenance and operation of the Project during each
16
calendar year, including, but not limited to, the expenses and costs set forth
in items (i) through (xi) below:
(i) wages and salaries, including, without limitation, taxes,
insurance and benefits, of all persons engaged in operations, on-site
property management, maintenance or access control, as reasonably allocated
by Landlord (excluding, however, executive personnel of Landlord, senior to
the property manager, and personnel to the extent engaged in the
development and/or leasing of the Project);
(ii) replacement costs, whether acquired or leased, of tools and
equipment and all costs of materials and supplies, to the extent used in
operations, maintenance and access control, as reasonably allocated by
Landlord;
(iii) cost of all utilities, including, but not limited to,
electricity, water, gas, steam and sewer charges, except to the extent, if
any, that the cost thereof is separately metered and billed to Tenant or
any other occupants of the Project or recovered by Landlord (or for which
Landlord is entitled to reimbursement, even if not actually collected by
Landlord) from Tenant or any other occupants of the Project as Above
Standard Services Rent or otherwise;
(iv) cost of repairing, maintaining and cleaning the Common Areas of
the Project and the furniture and furnishings therein;
(v) cost of all maintenance and service agreements and the equipment
therein, including, but not limited to, access control service, window
cleaning, mechanical, electrical and plumbing service contracts, including,
without limitation, elevator maintenance, janitorial service, security,
landscaping maintenance, garbage and waste disposal;
(vi) cost of repairs and general maintenance (excluding repairs,
alterations and general maintenance to the extent covered by proceeds of
condemnation or insurance);
(vii) the cost, amortized over the useful life of the asset in
accordance with GAAP, with interest at Landlord's then prevailing borrowing
rate, of all repairs and replacements of a capital nature, structural and
non-structural, ordinary and extraordinary, foreseen and unforeseen, made
by Landlord to any Building or the Common Areas (excluding Floor Common
Area on floors not leased in whole or in part by Tenant), all to the extent
necessary to operate, repair and maintain the Projects in conformity with
the requirements of this Lease and in accordance with the accepted
principles of sound management practices (and in conformance with GAAP) as
applied to the operation, repair and maintenance of Comparable Buildings,
but excluding (aa) costs to expand the Net Rentable Area of the Project,
(bb) except as otherwise expressly required by this Lease, costs to upgrade
or improve the general character or quality of the Project or (cc) when
Tenant's Occupancy Percentage is greater than thirty-five percent (35%),
costs to replace (and not repair or maintain) any major equipment or system
serving the Project unless approved by Tenant in a final Budget;
17
(viii) the cost of all insurance premiums (a) required to be obtained
by Landlord pursuant to this Lease or (b) customarily obtained by the
owners of Comparable Buildings, including, but not limited to, the cost of
casualty and liability insurance, rental loss insurance for the Project,
insurance on Landlord's personal property located in and used in connection
with the operation of the Project and insurance covering losses resulting
from perils and acts of terrorism on terms specified in Article VI or as
otherwise specified from time to time by Landlord;
(ix) fair market management fees to the property manager for the
Project and fair market rentals for a reasonably sized management office
(if located in the Project); provided that in no event shall Operating
Expenses include any costs attributable to a Building leasing office, and
any space used for leasing and management functions shall be reasonably
allocated between leasing and management functions for purposes of the
pass-through of rental of the on-site management office;
(x) costs of Remedial Work to the Common Areas (excluding Floor Common
Areas on floors not leased in whole or in part by Tenant); provided that
Landlord shall not be permitted to include any such costs as Operating
Expenses unless (A) Landlord's failure to perform the Remedial Work
constitutes a violation of Legal Requirements, (B) Landlord is required to
perform the Remedial Work by any notice of violation, order, decree,
permit, rule or regulation issued by any Governmental Authority or (C)
Landlord's failure to perform the Remedial Work would, in Landlord's
reasonable opinion, endanger the health, safety or welfare of any person on
or about the Project; and
(xi) HVAC service for the Common Areas (excluding Floor Common Areas
on floors not leased in whole or in part by Tenant) as reasonably
determined by Landlord using a consistently applied method of allocation.
For purposes of this Section 2.2(b), the phrase "as reasonably allocated by
Landlord" shall mean as allocated by Landlord on a reasonable and consistent
basis based upon time, square footage or other comparative measure that fairly
reflects the Project's appropriate share of such costs and in a manner that does
not result in a profit to Landlord or result in a disproportionate burden to
Tenant.
(c) Anything in the foregoing provisions hereof to the contrary
notwithstanding, Operating Expenses shall not include the following:
(i) repairs or other work occasioned by fire, windstorm or other
casualty, the costs of which are reimbursed to Landlord by insurers (or
would have been so reimbursed to Landlord if Landlord had been in full
compliance with the insurance provisions of this Lease) or by Governmental
Authorities in eminent domain or by others; provided that in the event of a
loss, the amount of the loss not reimbursed (including the amount of
applicable deductibles) shall be includable in Operating Expenses;
(ii) marketing costs, leasing commissions, broker fees, legal fees,
costs and disbursements and other expenses incurred in connection with
negotiations or disputes
18
with tenants and prospective tenants, or other occupants of the Project and
all other legal fees, whether or not in connection with the foregoing;
(iii) costs incurred in renovating or otherwise improving or
decorating or redecorating space for tenants or other occupants of the
Project or vacant space in the Building (including, without limitation, any
allowances or inducements made to the tenants and prospective tenants or
other occupants or any costs for Remedial Work or compliance with Legal
Requirements for such tenants or such space);
(iv) except to the extent that the same are expressly provided in
Section 2.2(b), costs incurred by Landlord for alterations and replacements
and other costs incurred of a capital nature, including, without
limitation, capital improvements, capital repairs, capital equipment and
capital tools that are considered capital expenditures under GAAP;
(v) amortization (except as set forth in Section 2.2(b)(vii)) and
depreciation;
(vi) expenses in connection with providing Above Standard Services or
similar services or benefits that are not Building Standard Services to
Tenant or to any other occupants of the Project;
(vii) costs incurred due to the violation by Landlord or any tenant or
other person (other than Tenant, its agents, employees or contractors) of
the terms and conditions of any lease or other agreement pertaining to the
Project or of any Legal Requirement;
(viii) fines or penalties incurred due to the Project being in
violation of Legal Requirements;
(ix) costs incurred due to acts of any tenant causing an increase in
the rate of insurance on the Building or its contents;
(x) overhead and profit increment and other fees (including without
limitation management fees or rental for a management office) paid to
Landlord or subsidiaries or affiliates of Landlord or its partners for
services on or to the Project, to the extent that the costs of such
services exceed competitive costs for such services rendered by persons or
entities of similar skill, competence and experience, other than Affiliates
of Landlord;
(xi) property management fees at the Project in excess of two and
one-half percent (2.5%) of Gross Revenues for the Project; except that if
the Project is a Tenant Managed Project, all property management fees shall
be excluded from Operating Expenses, and, in lieu thereof, (A) Tenant shall
be solely responsible for paying the property management fees due the
Tenant Designated Submanager and (B) Tenant shall pay Landlord a property
management fee equal to one percent (1%) of Gross Revenue for the Project
that is paid by Tenant minus one and one-half percent (1.5%) of Gross
Revenue, if any, for the Project that is paid by non-Tenant sources;
(xii) principal, points, fees and interest on any debt;
19
(xiii) rental under any ground or underlying lease or leases hereafter
entered into by Landlord, except for rentals under leases for Parking Areas
or other Common Area facilities that are made available for Tenant's use
and are, in fact, used by Tenant;
(xiv) Landlord's general overhead and administration expenses;
(xv) any compensation paid to clerks, attendants or other persons in
commercial concessions operated for profit by Landlord;
(xvi) any cost or expense to the extent Landlord is entitled to
payment or reimbursement from any tenant (including Tenant), insurer or
other person (other than through payment of its proportionate share of
Operating Expenses) or for which any tenant (including Tenant) pays third
persons;
(xvii) costs incurred in installing, operating and maintaining any
specialty facility such as an observatory, broadcasting facilities (other
than the Building's music system, life support and security system), and to
the extent not available to Tenant (or, if available to Tenant, Tenant
nevertheless elects not to (and does not) utilize the same), the costs of
any luncheon club, athletic or recreational club or facility, net of
revenues generated thereby;
(xviii) any expenses in connection with on-site parking areas (or
off-site parking areas available to tenants of the Building), except to the
extent, if any, that such expenses exceed all income in connection with
such parking areas;
(xix) any fines, penalties, legal judgments or settlements or causes
of action by or against Landlord; and
(xx) Real Estate Taxes and any fines, penalties or interest payable in
connection therewith.
(d) Landlord shall use its reasonable efforts to make payments on account
of Operating Expenses in a time and manner to obtain the appropriate discounts
or rebates available. Landlord shall operate the Project in an efficient manner
and exercise reasonable efforts to minimize Operating Expenses consistent with
maintaining services at a level consistent with Comparable Buildings. In
addition, with respect to janitorial services for the Leased Premises only,
Tenant shall have the right, upon sixty (60) days written notice to Landlord, to
separately contract for such services. If Tenant makes such election, Operating
Expenses shall exclude the cost of providing janitorial services to other
tenants and occupants of the Building and all other portions of the Project
(except for Common Areas) during the period of time that Tenant separately
contracts for its own janitorial services, and the calculation of Tenant's
Operating Expense Share shall be adjusted so that Tenant receives the benefit of
an appropriate credit for its payment of janitorial expenses allocable to its
Leased Premises.
(e) In the event the Project is not one hundred percent (100%) occupied
during any year, appropriate adjustments shall be made (on a consistent basis
from Lease Year to Lease Year) to those components of Operating Expenses which
vary with Building occupancy, so as to calculate Operating Expenses as though
the Building had been one hundred percent (100%)
20
occupied in such year. The percentage of Building occupancy during any Lease
Year shall be determined by adding together the total leased space on the first
day of each month during such year and dividing by twelve (12). The foregoing
notwithstanding, Landlord shall not recover from Tenant and other tenants of the
Project an amount in excess of one hundred percent (100%) of the total Operating
Expenses paid or incurred by Landlord with respect to the Project.
(f) Within one hundred twenty (120) days after the end of each calendar
year during the Term or as soon thereafter as possible in the exercise of
reasonable diligence, Landlord shall provide Tenant a statement (the "Operating
Expense Statement") prepared by Landlord showing Operating Expenses for such
calendar year broken down by component expenses, in reasonable detail, and
calculating Tenant's Operating Expense Share for the applicable year and the
prior year. The Operating Expense Statement shall be certified by Landlord's
group controller or other officer knowledgeable of the facts certified to
therein that, to the best of his or her knowledge, the Operating Expense
Statement has been prepared in accordance with the definitions and provisions
pertaining to Operating Expenses contained in this Lease. In the event that an
Operating Expense Statement indicates that Tenant owes Landlord additional
amounts on account of Tenant's Operating Expense Share for said calendar year,
Tenant shall pay the amount due within thirty (30) days after delivery of the
Operating Expense Statement. Notwithstanding any other provision of this Lease,
Landlord shall be estopped from amending, and hereby waives the right to amend,
any Operating Expense Statement not amended by Landlord within three (3) years
after the end of the calendar year to which said Operating Expense Statement
applies, nor shall Landlord have the right through any other procedures or
mechanism to collect any Operating Expense not included on the pertinent
Operating Expense Statement after the third anniversary of the last day of the
calendar year to which said Operating Expense Statement applies, unless before
said third anniversary Landlord has delivered to Tenant a revised Operating
Expense Statement reflecting such revised Operating Expense (with a reasonably
detailed explanation of the reasons for any such revision) and made a written
demand for payment of said Operating Expense.
(g) Any Operating Expense Statement or other notice from Landlord pursuant
to this Section 2.2 shall be subject to Tenant's rights of review and audit set
forth in Section 2.4. Pending the resolution of any dispute, however, Tenant
shall make payments in accordance with said Operating Expense Statement or other
notice.
2.3 Real Estate Taxes.
(a) Tenant shall pay to Landlord, as Additional Rent, an amount equal to
Tenant's Occupancy Percentage of Real Estate Taxes for the Project that become
due and payable during the Term of this Lease as hereinafter provided. Landlord
shall deliver to Tenant a copy of the Real Estate Tax invoice received by
Landlord, together with a written statement ("Tax Statement") setting forth (i)
the amount of the Real Estate Taxes set forth on the invoice, and (ii) Tenant's
Occupancy Percentage of such Real Estate Taxes, prorated on a per diem basis if
only a part of the period for which such Real Estate Taxes relate falls within
the Term of this Lease and, with respect to Real Estate Taxes for which a
discount is available for early payment, discounted to reflect the greatest
possible discount available to Landlord for such early payment, regardless of
when such taxes are actually paid and regardless of whether Landlord actually
obtains a discount for early payment (the amount so payable by Tenant with
respect to each such invoice
21
and in the aggregate, as applicable, "Tenant's Tax Share"). Tenant shall pay
Tenant's Tax Share to Landlord within thirty (30) days following Tenant's
receipt of the Tax Statement evidencing same.
(b) "Real Estate Taxes" shall mean all real estate taxes, assessments and
other governmental levies and charges, general and special, ordinary or
extraordinary, of any kind and nature (including any interest on such
assessments whenever the same are permitted to be paid in installments) which
may presently or hereafter be imposed, levied, assessed or confirmed by any
lawful taxing authorities which may become due and payable out of or for, or
which may become a lien or charge upon or against the whole, or any part, of the
Project, including, without limitation, taxes imposed on (i) the gross rents or
gross receipts (but not the net income) of the Project and (ii) personal
property in the Project owned by Landlord and used in connection with the
Project, but only to the extent that the same would be payable if the Project
were the only property of Landlord. If at any time during the Term the present
system of ad valorem taxation of real property is changed or supplemented so
that in lieu of or in addition to the ad valorem tax on real property there
shall be assessed on Landlord or the Project any tax of any nature that is
imposed in whole or in part, in substitution for, addition to, or in lieu of any
tax that would otherwise constitute a Real Estate Tax, such tax shall be
included within the term "Real Estate Taxes," but only to the extent that the
same would be payable if the Project were the only property of Landlord. Such
taxes may include, but shall not be limited to, a capital levy or other tax on
the gross rents or gross receipts (but not the net income) of the Project or
similar tax, assessment, levy or charge measured by or based, in whole or in
part, upon any such gross rents or gross receipts. There shall be excluded from
Real Estate Taxes (i) any realty transfer or similar taxes imposed on Landlord,
(ii) taxes and assessments attributable to the personal property of other
tenants, (iii) federal, state and local taxes on income, (iv) death taxes, (v)
franchise taxes and (vi) any taxes (but not including ad valorem property taxes)
imposed or measured on or by the net income of Landlord from the operation of
the Project or imposed in connection with any change of ownership of the
Project. In no event shall Real Estate Taxes be included on the amount, if any,
by which the value of leasehold improvements of any other tenant of the Building
hereafter made (or leasehold improvements already existing and separately
charged as an expense to be paid by such tenant) exceed the value of leasehold
improvements generally found in the Building. In the case of Real Estate Taxes
that may be paid in installments, only the amount of each installment accruing
during a calendar year shall be included in Real Estate Taxes during each
calendar year.
(c) At Tenant's request so long as Tenant's Occupancy Percentage at the
Project is at least thirty-five percent (35%), Landlord shall contest or appeal
the validity or amount of Real Estate Taxes for the Project by appropriate
proceedings. Landlord may also contest or appeal the validity or amount of Real
Estate Taxes for the Project on Landlord's own initiative. Tenant shall pay as
Additional Rent Tenant's Occupancy Percentage of Landlord's reasonable, out of
pocket expenses incurred in any such appeal. Real Estate Taxes that are the
subject of an appeal filed by or on behalf of Landlord shall be paid on the
basis of the amount reflected in the tax xxxx and shall not be adjusted until
the final determination of the appeal. Within thirty (30) days following such
final determination, Landlord will refund to Tenant, or Tenant shall pay to
Landlord, as applicable, the difference, if any, between Tenant's Tax Share
payments previously made by Tenant and the finally determined amount of Tenant's
Tax Share.
22
(d) Any Tax Statement or other notice from Landlord pursuant to this
Section 2.3 shall be subject to Tenant's rights of review and audit set forth in
Section 2.4. Pending the resolution of any dispute, however, Tenant shall make
payments in accordance with said Tax Statement or other notice.
2.4 Budget; Audit Rights.
(a) On or before June 1 of each calendar year during the Term of this
Lease, Landlord shall deliver to Tenant for Tenant's review and comment, a
written estimate in reasonable detail of the projected budget for Operating
Expenses and Real Estate Taxes for the Project for the next succeeding calendar
year (the "Budget"). The Budget shall show (i) the estimated amount of Operating
Expenses, Tenant's Operating Expense Share, Real Estate Taxes and Tenant's Tax
Share for the Project, for the next succeeding calendar year, (ii) the estimated
amount for each major category of expense that is expected to be included in
Operating Expenses during the next succeeding calendar year, including, without
limitation, any items that constitute capital expenditures in accordance with
this Lease and the amount thereof to be amortized during such calendar year,
(iii) the estimated rates to be charged by Landlord for Above Standard Services
for the Project during the next succeeding calendar year and (iv) the actual
amounts for all such items for the prior calendar year. It is understood and
agreed by Landlord and Tenant that the Operating Expenses and Real Estate Taxes
in the Budget shall be estimated on a reasonable good faith basis taking into
consideration, among other things, the actual Operating Expenses and Real Estate
Taxes for the then current calendar year, a good faith estimate of the rate of
cost increases during the then current calendar year, the actual known
prospective increases to each item in the Budget and a good faith estimate for
contingencies for the next succeeding calendar year. Tenant may disapprove a
portion of a proposed Budget only if such portion of the Budget fails to reflect
the reasonable and necessary Operating Expenses and Real Estate Taxes to
operate, repair and maintain the Project in conformity with the requirements of
this Lease and in accordance with the accepted principles of sound management
practices as applied to the operation, repair and maintenance of Comparable
Buildings; provided, however, if Tenant's Occupancy Percentage of the Project is
greater than thirty-five percent (35%), (i) Tenant may disapprove Landlord's
decision to replace (and not repair or maintain) any major equipment or system
unless Landlord establishes, by certification of a qualified engineer as to whom
Tenant has no reasonable objection, that the equipment or system in question is
beyond its useful life and that continued repair or maintenance (and not
replacement) is not commercially practicable and (ii) Tenant may require
Landlord to replace (and not repair or maintain) any major equipment or system
if Tenant establishes, by certification of a qualified engineer as to whom
Landlord has no reasonable objection, that the equipment or system in question
is beyond its useful life and that continued repair or maintenance (and not
replacement) is not commercially practicable. If Tenant disapproves a portion of
a proposed Budget, Tenant shall so notify Landlord in writing, which
notification shall state, in reasonable detail, the item or items of the
proposed Budget disapproved by Tenant and the basis for such disapproval.
Landlord and Tenant shall negotiate in good faith to resolve any differences
concerning any proposed Budget. Landlord shall deliver to Tenant the proposed
final Budget for the next succeeding calendar year and the calculation of
Tenant's Occupancy Percentage thereof on or before July 15 of each calendar
year; provided that if Tenant fails to approve a proposed Budget on or before
July 1 of a preceding calendar year, and if the parties have been unsuccessful
in their efforts to resolve any disagreements, either Landlord or Tenant may at
any time thereafter submit the Budget for the next calendar year (or
23
any portion thereof) to dispute resolution in accordance with the provisions of
Article XII of this Lease, and, in such event, Landlord shall deliver the final
Budget to Tenant within thirty (30) days following the completion of the dispute
resolution process. Notwithstanding the foregoing, (i) if the dispute resolution
process regarding the Budget is not completed by January 1 of the calendar year
to which such proposed Budget relates, then (A) the costs set forth on the
proposed Budget shall be used for all items not the subject of a dispute, and
(B) to the extent applicable, the prior year's budgeted costs shall be used for
all items of a proposed Budget that are the subject of a dispute and (ii) in the
event that the actual Operating Expenses or Real Estate Taxes incurred by
Landlord during a calendar year exceed Landlord's estimated Operating Expenses
and Real Estate Taxes (including contingencies) for such year as set forth on an
approved Budget, Landlord may prepare and submit a revised Budget to Tenant for
Tenant's review and approval (but not more frequently than once during any
calendar year). Upon completion of the dispute resolution process, the new
year's Budget shall be correspondingly adjusted and Tenant's monthly payment of
Tenant's Operating Expense Share shall likewise be adjusted.
(b) Tenant, at Tenant's sole cost and expense, shall have the right, to be
exercised by notice given to Landlord within three (3) years after receipt of an
Operating Expense Statement, Tax Statement or other invoice, to audit and/or
inspect that portion of Landlord's books and records pertaining to such
Operating Expenses, Real Estate Taxes or other components of Additional Rent, as
applicable, for such calendar year; provided such audit and/or inspection
commences within ninety (90) days after Tenant's notice to Landlord and
thereafter proceeds reasonably to conclusion, and further provided that Tenant
may audit any single year only once unless Landlord has subsequently made
revisions to any Operating Expense Statement, Tax Statement or other components
of Additional Rent that impact Tenant's Operating Expense Share, Tenant's Tax
Share or other Additional Rent payment. Tenant may conduct such audit and/or
inspection of Landlord's books with Tenant's own employees, or through an
accountant or other agent selected by Tenant, or both in combination. Tenant
shall require any accountant or agent selected by Tenant to conduct or assist in
such audit and/or inspection to execute and deliver to Landlord a
confidentiality agreement substantially in the form attached hereto as Exhibit
C. Landlord agrees to cooperate in good faith with Tenant in the conduct of any
such audit and/or inspection, and to make Landlord's books and records of and
relating to Operating Expenses, Real Estate Taxes or other components of
Additional Rent, as applicable, available to Tenant or Tenant's agents at one
(1) single location. If Tenant's audit and/or inspection shows that Landlord's
calculation of Tenant's Operating Expense Share, Tenant's Tax Share or other
components of Additional Rent for the audited/inspected calendar year or years
(which shall in no event be prior to the two (2) calendar years immediately
preceding the most recently completed calendar year) was overstated by more than
four percent (4%), then Landlord shall pay, within thirty (30) days after
Tenant's request, Tenant's actual reasonable audit/inspection out-of-pocket fees
applicable to the audit/inspection of said calendar year statements. Upon
completion of the audit and/or inspection, if the calculation of Tenant's
Operating Expense Share, Tenant's Tax Share or other components of Additional
Rent indicates that Tenant overpaid Rent for any audited calendar year, Landlord
shall pay Tenant (in the form of a credit against Rent next due or, upon
expiration of this Lease, in the form of Landlord's check within thirty (30)
days after the completion of such audit and/or inspection) an amount equal to
such overpayment. In the event of any such audit or inspection, Landlord shall
cause the books and records to be made available during such normal business
hours as are prescribed by Landlord at Landlord's headquarters or main office,
which shall be located in the continental United States.
24
In any case, should Landlord disagree with the results of Tenant's audit,
Landlord and Tenant shall refer the matter to a mutually acceptable independent
certified public accountant, who shall work in good faith with Landlord and
Tenant to resolve the discrepancy. The fees and costs of such independent
accountant to which such dispute is referred shall be borne by the unsuccessful
party and shall be shared pro rata to the extent each party is unsuccessful as
determined by such independent certified public accountant, whose decision shall
be final and binding.
ARTICLE III
BUILDING SERVICES, IDENTITY, SIGNAGE, AND MANAGEMENT
3.1 Building Standard and Above Standard Services. During the Term, Landlord
shall furnish the following services to Tenant:
(a) Building Standard Services. Landlord shall furnish the following
services to Tenant during the Term ("Building Standard Services"), all of which
shall comply with and shall be subject to Legal Requirements and, except as
expressly provided to the contrary in this Section 3.1(a), shall be equal to or
exceed services customarily provided for Comparable Buildings:
(i) At all times, hot (i.e., thermostat set in the range of 105DEG to
000XXX Xxxxxxxxxx for comfort and energy conservation purposes but with the
capability to produce hot water for specified purposes at 000XXX Xxxxxxxxxx
if requested by Tenant) and cold domestic water in all restrooms, drinking
fountains, kitchen and pantry areas within the Leased Premises and all
common use restrooms, kitchen and pantry areas at locations provided for
general use;
(ii) During Building Operating Hours, HVAC sufficient to maintain
temperatures that are reasonably required for comfortable use and occupancy
of all portions of the Leased Premises designed for occupancy by persons;
provided that Landlord shall have the right, but not the obligation, at
Landlord's sole cost and expense, to install and operate such utility
submeters as Landlord deems necessary to measure utility demand and usage
within and outside the Leased Premises (and, in such event, (A) Tenant
shall pay Tenant's allocable share of any such submetered costs as
Additional Rent at Landlord's actual cost of providing the same, without
xxxx-up and reflecting the largest possible bulk-purchase or other
discounts available to Landlord from the utility provider and (B) all such
submetered utility costs shall be excluded from Operating Expenses as
provided in Section 2.2(b)(iii));
(iii) Electric lighting service for all Common Areas, including,
without limitation, the Parking Areas, in conformity with the practices for
the Project on the Commencement Date;
(iv) Janitorial service to the Leased Premises in conformity with the
janitorial specifications for the Project as set forth in Exhibit B;
(v) Access control services for the Project and the Building providing
Tenant and its employees access to the Leased Premises and the Common Areas
at all times; provided that Tenant shall have the right, at Tenant's sole
cost and expense, to install and
25
operate such additional access control systems as it shall determine
desirable for the purpose of limiting access to or within the Leased
Premises, so long as any additional access control systems installed by
Tenant are monitored and maintained by Tenant at Tenant's sole expense;
(vi) At all times, dedicated electrical capacity, transformed to a
panel box located in the core of each floor of the Leased Premises or to
the location of the panel boxes servicing the Leased Premises on the
Commencement Date, in an amount not less than the dedicated capacity
available to the Leased Premises on the Commencement Date; provided that
Landlord shall have the right, but not the obligation, at Landlord's sole
cost and expense, to install and operate such utility submeters as Landlord
deems necessary to measure utility demand and usage within and outside the
Leased Premises (and, in such event, (A) Tenant shall pay Tenant's
allocable share of any such submetered costs as Additional Rent at
Landlord's actual cost of providing the same, without xxxx-up and
reflecting the largest possible bulk-purchase or other discounts available
to Landlord from the utility provider and (B) all such submetered utility
costs shall be excluded from Operating Expenses as provided in Section
2.2(b)(iii));
(vii) Security for the Project, Building and Common Areas, including,
without limitation, any Parking Areas, substantially similar to the
security services existing immediately prior to the Commencement Date;
provided that Tenant is solely responsible for compliance with all Legal
Requirements in effect from time to time pertaining to banking security
systems, devices, services, equipment and procedures for the Leased
Premises and that Landlord shall have no responsibility or liability
therefor.
(viii) All bulb replacement in all Common Areas and Building Standard
bulb replacement in the Leased Premises, it being understood that
replacement of all fluorescent, incandescent, halogen and other types of
bulbs in all fixtures existing in the Leased Premises as of the
Commencement Date shall be deemed to be Building Standard and that Landlord
shall not be obligated to replace any bulbs in Tenant's furniture or
furnishings in the Leased Premises;
(ix) At all times, elevator cab passenger service to the Leased
Premises, subject to temporary cessation for ordinary repair and
maintenance (but as to each floor of the Leased Premises, such temporary
cessation for ordinary repair and maintenance shall not occur
simultaneously for all passenger cabs serving such floor), and to security
measures or other means of controlling access imposed by Landlord after
Building Operating Hours, on Holidays and during times when life safety
systems override normal building operating systems;
(x) Maintenance and cleaning of the Project, Building and Common
Areas, including, without limitation, the Common Areas on each floor of the
Building on which any part of the Leased Premises are situated, the Parking
Areas and all exterior landscaped areas in and around the Project;
(xi) During Building Operating Hours, shared access to and use of, in
common with Landlord and other tenants of the Building, a loading dock
facility for the Building
26
(if and to the extent that such facility exists on the Commencement Date),
subject to such reasonable rules and regulations as are promulgated by
Landlord from time to time pursuant to Section 4.4;
(xii) At all times, sanitary sewer service to the Leased Premises and
Common Areas facilities; and
(xiii) Trash removal from the Project at designated locations.
All costs incurred by Landlord in connection with providing Building Standard
Services shall be included in Operating Expenses.
The foregoing provisions of this Section 3.1(a) notwithstanding, the enumeration
of particular building services is not a representation or agreement by Landlord
that each Building Standard Service is available in specific quantities or
amounts, or to particular standards or specifications at the Project. Landlord
and Tenant acknowledge that Tenant owned and operated the Project prior to the
Commencement Date under the Original Lease and Tenant is fully aware of the
capabilities and limitations of the Building systems. Nothing herein shall be
deemed to be a covenant or agreement of Landlord, or a representation or
warranty of Landlord, express or implied, that Landlord shall improve the
performance of existing Project systems. With respect to the Building Standard
Services referenced in Section 3.1(a)(i), (ii), (v) and (ix), Landlord shall
furnish such services in such quantities and at such levels that are at least
equal to the quantities and levels being furnished at the Project immediately
prior to the Commencement Date, with Tenant acknowledging and agreeing that
Landlord shall not be required to provide during the Term greater quantities or
higher levels of service than is capable of being provided with the machinery,
equipment and systems that existed immediately prior to the Commencement Date
under the Original Lease and that Landlord has no obligation to replace or
improve such machinery, equipment or systems other than in the ordinary course
as may be consistent with sound building management practices or as required by
Section 5.5.
(b) If Tenant requires electrical energy for use in the Leased Premises in
excess of the capacities described in Section 3.1(a)(vi), and if electric energy
for such additional requirements is available to Landlord, Landlord shall, upon
Tenant's request and at Tenant's sole cost and expense, furnish and install such
additional wires, risers, conduits, feeders, switchboards and circuit panels as
reasonably may be required to supply such additional requirements of Tenant. If
any portions of the Leased Premises or any of Tenant's electrical equipment
requires HVAC service in excess of Building Standard HVAC service, the same
shall be installed, or the installation supervised by Landlord, on Tenant's
behalf, and Tenant shall pay all design, installation, submetering, repair,
maintenance, replacement and operating costs relating thereto, unless such HVAC
service is used in common with other tenants of the Building, in which event
such costs shall be reasonably allocated by Landlord among Tenant and such other
tenants. The location and specifications of any such supplemental HVAC units
shall be subject to Landlord's prior written approval, which approval may not be
unreasonably withheld or delayed. In connection with the operation of any
supplemental HVAC units serving the Leased Premises, to the extent the Project
shall have available chilled water capacity, during Building Operating Hours
Tenant may use such available chilled water for said supplemental HVAC units,
and Landlord shall not charge Tenant for such service except to the extent that
Landlord actually
27
incurs an expense in providing such chilled water to Tenant. If Tenant shall
require chilled water service in amounts not otherwise available or during other
than Building Operating Hours, Tenant shall pay Landlord for the cost of
providing such services as Above Standard Services Rent.
(c) If and to the extent requested by Tenant from time to time and to the
extent the same are reasonably available, Landlord shall provide Tenant with
services in excess of Building Standard Services as described in Section 3.1(a)
("Above Standard Services"). All of the costs incurred by Landlord in connection
with providing any special Tenant services shall be paid by Tenant as Above
Standard Services Rent, including costs that would not have been incurred but
for Tenant's request for Above Standard Services. Landlord's charges for Above
Standard Services shall be established and revised from time to time by
Landlord; provided that at no time shall Landlord's charges for Above Standard
Services exceed Landlord's actual out-of-pocket costs, nor shall Landlord (i)
include any overhead or profit in the calculation of Above Standard Services
costs or (ii) charge Tenant at a higher rate for Above Standard Services than
Landlord charges any other tenant of a Building for comparable services. All
amounts collected by Landlord from Tenant and any other party to provide Above
Standard Services or similar services shall be used to reduce Operating Expenses
to the extent that the cost of providing the same were included in the
calculation of Operating Expenses.
(d) Landlord shall furnish Tenant at least twenty four (24) hours prior
written notice of any non-emergency suspension or interruption in the Building
Standard Services scheduled by Landlord for routine repairs or maintenance;
provided that if such suspension or interruption will render the Common Areas or
the Leased Premises inaccessible, without electric power, without cold domestic
water or sanitary sewer service or otherwise untenantable in the ordinary
course, Landlord shall endeavor to provide Tenant with not less than ninety (90)
days' prior notice thereof.
(e) To the extent the services described in this Section 3.1 require
electricity, water or other utility services supplied by public utilities,
Landlord shall not be deemed to be in breach of Landlord's covenants hereunder
because of the failure of a public utility to supply the required services so
long as Landlord uses reasonable efforts to cause the applicable public
utilities to furnish the same. No failure by Landlord to furnish the services
described in this Section 3.1, nor any cessation thereof for reasons beyond
Landlord's control, 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. Without limitation of the foregoing and except as otherwise
provided below, should any of the equipment or machinery, for any cause, fail to
operate or function properly, Tenant shall have no claim for a rebate of Rent or
for damages on account of any interruption in services occasioned thereby or
resulting therefrom so long as Landlord uses reasonable efforts to promptly
repair said equipment or machinery and to restore said services.
(f) In the event Landlord fails to provide any of the services Landlord is
obligated to provide under this Lease, and if such failure adversely impacts
Tenant's use or enjoyment of the Leased Premises or any portion thereof (and
Tenant actually ceases to use the affected area for business operations), and if
such failure of Landlord to provide services continues for more than three (3)
consecutive business days after written notice from Tenant to Landlord and all
Notice
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Parties for any reason (except due to Force Majeure Events or gross negligence
or willful misconduct of Tenant or Tenant's agents, employees or contractors)
(any such failure, a "Service Failure"), then all Rent due under this Lease for
the affected portion of the Leased Premises at the affected Project or Projects
shall be abated for the entire duration of the Service Failure. In addition to
Tenant's foregoing rights, Tenant shall have the right, but not the obligation,
to cure the Services Failure in the manner expressed in Section 7.1(f) and to
recover the reasonable cost thereof from Landlord.
3.2 Keys and Locks. Tenant currently possesses keys and/or access cards, as
applicable, for each lockset on doors entering the Leased Premises from public
areas for use by its current employees maintaining offices in the Leased
Premises. Additional keys and/or access cards, including without limitation keys
and/or access cards for new employees of Tenant and replacement keys and/or
access cards for lost or damaged keys and/or access cards will be furnished by
Landlord upon an order signed by Tenant and at Tenant's sole cost and expense.
Tenant shall be permitted to install additional locks or other access control
devices in the Leased Premises provided Tenant furnishes Landlord with a
duplicate set of keys or a master key and/or access cards to all such locks
other than those locks securing Security Areas. Upon termination of this Lease,
Tenant shall surrender to Landlord all keys and/or access cards to any locks on
doors entering or within the Leased Premises, and shall provide Landlord with
the combination of all locks for safes, safe cabinets and vault doors, if any,
within the Leased Premises.
3.3 Graphics and Building Directory.
(a) On any full floor of the Leased Premises, and at each location within
the Project where Tenant maintains such signage as of the Commencement Date,
Tenant may, using Tenant's standard corporate signage and graphics (as Tenant
may change its standard corporate signage and graphics from time to time)
install and maintain on or adjacent to entrances to the Leased Premises Tenant's
name, numerals and/or logo designating the appropriate suite numbers and
departments occupying such floor.
(b) If the lobby of the Building contained a building directory on the
Commencement Date, or if Landlord elects to install or construct a building
directory in the lobby of the Building at any time, then such building directory
board shall contain a listing of Tenant's name and such other information as
Tenant shall reasonably require (including, at Tenant's option, the names of all
of Tenant's businesses, related entities, assignees, sublessees, and senior
management), and Tenant shall be entitled to Tenant's Occupancy Percentage, from
time-to-time, of the space contained in such directory, which listings shall be
installed by Landlord at Tenant's expense.
3.4 Building Identity; Signage; Exclusivity.
(a) During the Term of this Lease, for so long as the herein named Tenant,
or its Affiliates, shall remain in possession of at least five percent (5%) of
the Net Rentable Area of the Project, or shall continue to operate a retail bank
at such location, neither the Building name (if such Building is named for the
herein named Tenant as of the Commencement Date), nor Tenant's exterior building
signage (at all Projects) may be changed by Landlord without Tenant's consent,
which consent may be withheld in Tenant's sole and absolute discretion. If the
Project is named for the herein named Tenant as of the Commencement Date and
during the
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Term hereof Tenant's corporate name, identity or logo is changed, provided that
the herein named Tenant, or its Affiliates, shall remain in possession of not
less than five percent (5%) of the net Rentable Area of the Project, or shall
continue to operate a retail bank at such location, Tenant shall have the right,
upon ninety (90) days prior written notice to Landlord, to change the name of
the Building (and/or any Building signage containing such prior name or logo) to
include the herein named Tenant's new corporate name, identity, or logo;
provided that Tenant shall pay for all signage costs and all of Landlord's other
out-of-pocket costs associated with the removal of the old, and installation of
the new, signage, and further provided that such new signage shall satisfy all
applicable Legal Requirements and shall have been approved in advance by
Landlord, such approval not to be unreasonably withheld or delayed. In addition,
at any time during or after the Term of this Lease Tenant shall have the right,
in its sole and absolute discretion, upon ninety (90) days prior written notice
to Landlord, to require Landlord to change the name of the Project so as to
remove Tenant's identity therefrom; provided that Tenant shall pay for the cost
of removing Tenant's name from all Building signage. Tenant shall repair any
damage to the interior or exterior of the Building caused by Tenant's
installation, maintenance, use, relocation or removal of signage; provided that
Tenant shall not be obligated to repair any damage to the interior or exterior
of the Building caused by the removal of signage so long as Tenant, at Tenant's
sole cost and expense, patches any holes or covers over (by sign blanks of
similar size, shape and general appearance) such signage areas on the facades of
the Building and on and in the other interior and exterior Common Areas.
(b) During the Term of this Lease, for so long as the herein named Tenant,
or its Affiliates, shall remain in possession of office space or shall continue
to operate a retail bank at such location (i) Landlord may not remove or alter
any Tenant signage or graphics existent on the Commencement Date (other than
interior signage or graphics on floors no longer leased, in whole or in part, by
Tenant) and (ii) the Project shall not be named for any other Building tenant.
(c) During the Term of this Lease, for so long as the herein named Tenant,
or its Affiliates, shall remain in possession of at least thirty-five percent
(35%) of the Net Rentable Area of the Project, or shall continue to operate a
retail bank at such location, Landlord will not allow any portion of the Project
(other than the portion of the Project then leased to Tenant) to be used for any
retail banking or savings and loan, without Tenant's prior written consent,
which consent may be withheld in Tenant's sole and absolute discretion. For
purposes of this Agreement, banking and savings and loan shall mean any retail
banking use or purpose, which shall include, but not be limited to, receiving
deposits or making loans to the general public, whether done by a state bank,
national bank, savings and loan association, trust company, credit union,
mortgage broker or company, or other entity, whether by walk-up, drive-in teller
facility or otherwise. If Landlord shall intend to lease space to any other bank
or savings and loan for the operation of a retail banking or savings and loan at
a time when the herein named Tenant, or its Affiliates, shall occupy less than
thirty-five percent (35%) of the Net Rentable Area of the Project, and shall not
operate a retail banking facility at the Building, Landlord shall advise Tenant
of Landlord's intentions, and Tenant shall have the right, exercisable by notice
in writing to Landlord within twenty (20) days following Landlord's notice to
Tenant, to re-lease and re-occupy the retail banking location at the Building at
the Rent last payable in respect of such Leased Premises, failing which Landlord
may proceed with Landlord's lease as proposed.
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(d) During the term of this Lease, Tenant shall have the right, at Tenant's
expense, to erect and maintain such exterior building signage displaying the
corporate name, identity or logo of the herein named Tenant, or its Affiliates,
as Tenant may from time to time desire, including, without limitation, monument
signage at up to two (2) corners of the Land, and, in such event, Tenant will
have the exclusive right to place signage on any such monuments so erected by
Tenant, subject to Landlord's approval, which approval shall not be unreasonably
withheld or delayed. In connection with its installation, repair, maintenance
and removal of any exterior or monument signage, Tenant, at Tenant's sole cost
and expense, shall comply with all Legal Requirements.
(e) Tenant's retail banking exclusivity rights as described above at
Section 3.4(c) also includes the exclusive right to place ATMs in the Building,
including all exterior areas of the Building and the Land. Tenant shall have the
right, for no additional Rent, to place not more than five (5) ATMs at locations
outside of such retail bank and in and about the Common Areas of the Building
and the Land. There is no restriction on the number of ATMs that Tenant can
maintain within the Leased Premises, including any Drive-Through Banking
Facilities. However, except for any ATMs existing as of the Commencement Date,
the plans and specifications, and specific locations, for any ATMs located
outside the Leased Premises are subject to Landlord's prior written consent,
which consent will not be unreasonably withheld or delayed. Tenant, at its
expense, shall install, maintain, operate and repair such ATMs in compliance
with all Legal Requirements. At the expiration or earlier termination of this
Lease, Tenant, at its expense, shall remove the ATMs in accordance with Section
5.3. The restrictions set forth herein shall not apply to ATMs operated by third
parties as of the date of this Lease.
(f) Tenant's exterior and monument signage existing as of the Commencement
Date is hereby deemed to be approved by Landlord. Any changes to the existing
exterior and/or monument signage by Tenant (including, without limitation,
changes to the location, size, shape, color, and content of the exterior and/or
monument signage) shall be subject to approval by Landlord, which approval may
not be unreasonably withheld or delayed. Landlord agrees that Tenant shall have
the right to change such signage in the event of a change in Tenant's name,
trade name or logo; provided that such new signage shall satisfy all applicable
Legal Requirements and shall have been approved in advance by Landlord, such
approval not to be unreasonably withheld or delayed.
(g) Notwithstanding anything to the contrary contained in this Lease, the
rights granted to Tenant pursuant to Sections 3.3 and 3.4 shall be subject and
subordinate to the rights of any Building tenants whose leases are in effect as
of the Commencement Date. For example purposes only, and not as a means of
limitation, if an existing tenant's lease (as in effect on the Commencement
Date) requires such existing tenant's approval for a change in the name of the
Building, then Tenant may not cause the name of the Building to change without
such existing tenant's approval. As another example, if an existing tenant's
lease (as in effect on the Commencement Date) provides for such existing tenant
to place its name on exterior and/or monument signage, then any exercise of such
existing tenant's rights shall not be deemed to be a violation of Tenant's
rights under this Lease.
3.5 Communications Equipment.
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(a) Subject to the provisions of this Section 3.5, Tenant shall have the
non-exclusive right, at its sole cost and expense and for Tenant's use, to
install, maintain and operate upon the roof of the Building one (1) or a
reasonable and necessary additional number of transmitters and/or receiver
antennas or dishes approved by Landlord, which approval shall not be
unreasonably withheld or delayed (collectively, the "Communications Equipment")
for use by Tenant in the conduct of its business; provided that such
Communications Equipment may not materially compromise the aesthetics or
appearance of the Building nor shall Landlord be required to incur any expense
in accommodating the Communications Equipment. The Communications Equipment must
be (i) designed, installed and operated in compliance with all Legal
Requirements, and (ii) installed and operated so as not to adversely affect or
impact structural, mechanical, electrical, elevator, or other systems serving
the Building or customary telephone service for the Building and so as not to
cause injury to persons or property, and without limitation of the foregoing, so
as not to void or impair any applicable roof warranty. Upon the expiration or
termination of this Lease, Tenant shall remove the Communications Equipment and
repair any damage to the Building caused by the installation, maintenance, use
or removal of the Communications Equipment.
(b) Landlord hereby grants to Tenant the right to install (at Tenant's sole
cost and expense) any additional equipment required to operate the
Communications Equipment and to connect the Communications Equipment to Tenant's
other machinery and equipment located in the Leased Premises (e.g., conduits and
cables) in the shafts, ducts, chases and utility closets located in the core of
the building ("Additional Equipment"), which Additional Equipment shall be
deemed a part of the Communications Equipment for all purposes of this Section
3.5; provided that (i) the use of such space in the Building core by Tenant
(except customary chases for cabling) may not materially adversely affect the
marketability of the remaining space on any floor of the Building, and (ii) to
the extent any such Additional Equipment occupies space (other than space in
customary chases for the Building) that would have otherwise been Net Rentable
Area on a floor of the Building, such space shall be included within the Net
Rentable Area of the Leased Premises and Tenant shall be obligated to pay Annual
Basic Rent and Additional Rent with respect to such space as if such space was
included in the Leased Premises. Tenant's use of such space in the Building core
shall be subject to the provisions of this Lease relating to Tenant's use of
Common Areas of the Building.
(c) Subject to the Building Rules and other reasonable rules relating to
Building security and safety that may be promulgated by Landlord pertaining to
access by tenants to the roof of the Building and provided Tenant does not
unreasonably disturb any other tenants of the Building, Tenant and Tenant's
contractors shall have reasonable access to the Communications Equipment and the
Additional Equipment for purposes of operating, servicing, repairing or
otherwise maintaining said equipment.
(d) Nothing contained in this Section 3.5 shall be deemed to prohibit or
restrict any other individual or entity, including without limitation Landlord
or any other tenant of the Building, from installing communications equipment on
the roof of the Building or to use the roof for any other purpose.
(e) In connection with its installation, repair, maintenance and removal of
any Communications Equipment and Additional Equipment, Tenant, at Tenant's sole
cost and
32
expense, shall comply with all applicable Building Rules and Legal Requirements
and repair any damage to the Building caused by such installation, repair,
maintenance or removal. In the event that the placement of Tenant's
Communications Equipment or Additional Equipment interferes with Landlord's
performance of any repair or maintenance to the Common Areas, including, without
limitation, the roofs of the Buildings, any costs incurred by Landlord to
temporarily or permanently relocate and reinstall Tenant's Communications
Equipment or Additional Equipment shall be included in the cost of such repair
or maintenance as an Operating Expense.
(f) Tenant's Communications Equipment and Additional Equipment existing as
of the Commencement Date are hereby deemed to be approved by Landlord. Any
changes to the existing Communications Equipment and/or Additional Equipment by
Tenant shall first be approved by Landlord, which approval will not be
unreasonably withheld or delayed.
(g) If Landlord shall place on the roof of any Building communications
equipment of its own, or shall grant to any third party the right to locate and
maintain any such equipment, all such equipment shall be located, designed and
operated so as not to interfere with signals to and from Tenant's Communications
Equipment and Additional Equipment, the installation of which, in accordance
with this Section 3.5, predates the installation of such other equipment.
Similarly, any Communications Equipment and Additional Equipment hereafter
installed by Tenant shall be located and designed so as not to interfere with
signals to and from such other equipment belonging to Landlord or to third
parties, that may have previously been installed. The party responsible for the
communications equipment which interferes with equipment previously installed by
others shall be required, at its or their expense, to take all measures
necessary to eliminate the source of interference caused by such party's
equipment.
3.6 Building Management. The Project shall be managed by Landlord; provided that
if and for so long as Tenant's Occupancy Percentage at the Project shall be
equal to or greater than ninety (90%), after consultation with Landlord to
review Landlord's property management qualifications and pricing, Tenant may in
its sole discretion elect to cause the Project to be submanaged by a qualified
property submanager designated by Tenant (any such submanager, a "Tenant
Designated Submanager"), who shall provide on-site and supervisory property
management services for Landlord, Tenant and any third party tenants and other
occupants at the Project (a Project with a Tenant Designated Submanager, a
"Tenant Managed Project"). If the Project shall not be a Tenant Managed Project,
Landlord shall provide on-site and supervisory property management services
either through an Affiliate of Landlord or through a qualified third party
property submanager designated by Landlord (any such Landlord Affiliate or
submanager, a "Landlord Designated Submanager"). Landlord shall be and remain
responsible for disbursement of Operating Expense and Real Estate Tax payments.
Notwithstanding the foregoing, (a) Landlord shall not select a Landlord
Designated Submanager for whom Tenant has a reasonable objection, (b) Tenant
shall not select a Tenant Designated Submanager for whom Landlord has a
reasonable objection, (c) if a Landlord Designated Submanager persistently fails
to perform its property management duties in a timely, complete and professional
manner that is consistent with the highest level of property management services
provided at Comparable Buildings, Tenant may cause such non-performing Landlord
Designated Submanager to be replaced by a Tenant Designated Submanager, in which
event, at Tenant's election, the Project shall become a Tenant Managed Project
and (d) if a Tenant Designated Submanager persistently fails to perform its
property management duties in a timely, complete and professional manner
33
that is consistent with the highest level of property management services
provided at Comparable Buildings, Landlord may cause such non-performing Tenant
Designated Submanager to be replaced by a Landlord Designated Submanager, in
which event, at Landlord's election, the Project shall no longer be a Tenant
Managed Project. Any disputes between Landlord and Tenant with respect to
property management matters arising under this Section 3.6 shall be subject to
resolution as provided in Article XII and XIII.
ARTICLE IV
CARE OF PREMISES; LAWS, RULES AND REGULATIONS
4.1 Care of Leased Premises. Upon the expiration or any earlier termination of
this Lease, Tenant shall surrender the Leased Premises to Landlord in the same
condition in which such Leased Premises existed on the Commencement Date, except
for ordinary wear and tear and any casualty or condemnation damage not required
to be repaired or restored by Tenant pursuant to the terms of this Lease and
subject to the provisions of Section 5.3 hereafter. Upon such expiration or
termination of this Lease, Landlord shall have the right to re-enter and resume
possession of the Leased Premises immediately.
4.2 Access of Landlord to Leased Premises. Subject to the provisions of this
Section 4.2, Landlord and its contractors, agents or representatives may enter
into and upon any part of the Leased Premises during reasonable hours as may be
necessary to clean the same, make repairs, alterations or additions thereto or
otherwise perform Landlord's obligations under this Lease, and, upon reasonable
prior notice to Tenant, for the purpose of showing the same to existing or
prospective purchasers or lenders. At any time during the last twelve (12)
months of the Term (including any Renewal Terms that Tenant has exercised) and
promptly upon Landlord's receipt of notice from Tenant of Tenant's intent to
terminate this Lease with respect to or otherwise vacate a Leased Premises as
herein provided, Landlord may, upon reasonable prior notice to Tenant, enter the
Leased Premises to show the same to prospective tenants. With respect to any of
the aforementioned entries by Landlord into and upon any part of the Leased
Premises other than for emergencies or routine repairs or routine janitorial
service, Tenant shall be entitled to have a representative accompany Landlord.
Tenant shall not be entitled to any abatement or reduction of Rent by reason of
any such entry by Landlord. Landlord shall not interfere with the operation of
Tenant's business during any such entry and Landlord shall use reasonable
efforts to make any routine repairs requiring access to the Leased Premises
after Building Operating Hours. Notwithstanding any of the foregoing, unless
otherwise instructed by Tenant in writing, Landlord shall not enter areas
designated by Tenant as high security areas (the "Security Areas") unless an
emergency situation exists. All access by Landlord or any invitee of Landlord
shall be subject to applicable federal banking regulations. If the
telecommunications demarcation point for the Building is located within the
Leased Premises, then Landlord may, at Landlord's option, at Landlord's sole
expense, relocate such telecommunications demarcation point to a location
outside of the Leased Premises, and make all necessary modifications to maintain
Tenant's then existing telecommunications service to the Leased Premises. If the
telecommunications demarcation point for the Building is located within the
Leased Premises and if such location of the telecommunications demarcation point
for the Building at any time in the future is deemed by Tenant to interfere with
Tenant's desired reconfiguration of its use of or improvements in the Leased
Premises, then Landlord shall, at Landlord's sole expense, relocate such
telecommunications demarcation point to a location outside of the Leased
Premises, and make all
34
necessary modifications to maintain Tenant's then existing telecommunications
service to the Leased Premises, within a reasonable time after Tenant's written
request. If the telecommunications demarcation point for the Building is located
within the Leased Premises, then until Landlord relocates such
telecommunications demarcation point to a location outside of the Leased
Premises, Tenant shall allow Landlord and other tenants of the Building
reasonable access to the telecommunications demarcation point as required to
connect telecommunication lines thereto, but each and any such access shall be
subject to reasonable advance notice (not less than one (1) full business day,
except in the case of emergencies), and shall be supervised by security
personnel acceptable to Tenant, Landlord shall be solely responsible for the
cost of such security personnel, and Landlord shall reimburse Tenant, upon
demand, for any and all additional costs incurred by Tenant because of such
access. In no event shall Landlord or any tenant of the Building other than
Tenant be entitled to connect to, use, or in any way affect the operation of
Tenant's telecommunications equipment in the Leased Premises.
4.3 Nuisance. Tenant shall conduct its business and use reasonable efforts to
control its agents, employees, invitees, contractors and visitors in such a
manner as not to create any nuisance, or unreasonably interfere with, or
unreasonably annoy or disturb, any other tenant or Landlord in its operation of
the Project. Landlord shall operate the Projects and use reasonable efforts to
control its agents, employees, invitees, contractors and visitors in such a
manner as not to create any nuisance, or unreasonably interfere with, or
unreasonably disturb Tenant in its occupancy of the Leased Premises.
4.4 Laws and Regulations; Rules of Building. Tenant shall comply with, and shall
use its reasonable efforts to cause its employees, agents, visitors and invitees
to comply with, all Legal Requirements relating to the use or occupancy of the
Leased Premises, and with the rules of the Building reasonably adopted and
altered by Landlord from time to time for the safety, protection, care and
cleanliness of the Leased Premises, the Building and the Project, the operation
thereof, the preservation of good order therein and the comfort of the tenants
of the Building and their agents, employees and invitees, consistent with
Comparable Buildings, which rules and regulations shall be binding upon Tenant
upon Tenant's receipt of notice of the adoption or alteration of such rules and
regulations (the "Building Rules"). In the event of a conflict between the
provisions of this Lease and the Building Rules, the provisions of this Lease
shall control. Landlord shall use its reasonable efforts to cause all tenants of
the Building to comply with the Building Rules to the extent that failure to so
comply will materially affect Tenant's use or enjoyment of the Leased Premises.
Landlord shall not enforce the Building Rules with respect to Tenant in a manner
that is more restrictive than Landlord's enforcement of the Building Rules as to
any other tenants of the Building. Landlord shall not enforce Tenant's
compliance with Legal Requirements unless (a) Landlord's failure to do so
constitutes a violation of Legal Requirements by Landlord or makes Landlord
liable for Tenant's continuing violation, (b) Landlord is required to do so by
any notice of violation, order, decree, permit, rule or regulation issued by any
Governmental Authority or (c) Landlord's failure to do so would, in Landlord's
reasonable opinion, endanger the health, safety or welfare of any person on or
about the Leased Premises or the Project.
4.5 Legal Use and Violations of Insurance Coverage. Tenant shall not occupy or
use the Leased Premises, or permit any portion of the Leased Premises to be
occupied or used, for any business or purpose that (a) is unlawful, (b) creates
noxious or offensive odors emanating from the Leased
35
Premises, or (c) does anything that would in any way increase the rate of fire
insurance coverage on the Project or its contents unless Tenant pays for the
cost of such increased insurance premium. Tenant shall not cause or permit any
Hazardous Materials to be used, generated, treated, installed, stored or
disposed of in, on, under or about the Leased Premises, except to the extent
consistent with the customary and reasonable business practice of entities
conducting businesses similar to the business being conducted by Tenant in the
Leased Premises; provided (i) such Hazardous Materials do not endanger the
health of any person on or about the Leased Premises or the Project and (ii)
Tenant complies with all Legal Requirements applicable to such Hazardous
Materials. It is hereby agreed that possession and use of copy machines and
machines used to electronically accept or produce written data which utilize
small amounts of chemicals which may be included in the definition of Hazardous
Materials shall be considered "customary and reasonable business practices"
within the meaning of the previous sentence. Landlord shall meet all of its
obligations under this Lease so as to keep in force all certificates of
occupancy for the Project generally and Tenant, if and to the extent required by
Legal Requirements, shall meet all of its obligations under this Lease so as to
keep in force certificates of occupancy for the Leased Premises. Landlord shall
comply with, and not violate, all applicable Legal Requirements to the extent
relating to the Project generally and any other Legal Requirements applicable to
Landlord to the extent necessary to perform Landlord's obligations under this
Lease (except to the extent that such Legal Requirement relates to a tenant's
obligations under its lease, in which case Landlord shall exercise reasonable
efforts to cause compliance by such tenant), and Tenant, at its sole cost and
expense, shall comply with, and not violate, all applicable all Legal
Requirements to the extent relating to the Leased Premises. Landlord shall not
enforce Tenant's compliance with Legal Requirements unless (a) Landlord's
failure to do so constitutes a violation of Legal Requirements by Landlord or
makes Landlord liable for Tenant's continuing violation, (b) Landlord is
required to do so by any notice of violation, order, decree, permit, rule or
regulation issued by any Governmental Authority or (c) Landlord's failure to do
so would, in Landlord's reasonable opinion, endanger the health, safety or
welfare of any person on or about the Leased Premises or the Project.
4.6 Environmental Laws.
(a) Landlord has acquired such environmental reports and studies as
Landlord has determined to be necessary with respect to the Leased Premises,
including, without limitation, new or updated Phase I and, where applicable,
Phase II environmental reports (collectively, with the reports and studies from
Tenant, "Environmental Information"). The Environmental Information is
identified in summary fashion on Schedule 3 hereto.
(b) Landlord hereby agrees to and does indemnify, defend, and hold
harmless, Tenant and Tenant's shareholders, officers, directors and their
respective successors and assigns from and against any and all claims, demands,
causes of action, fines, penalties, costs, expenses (including, without
limitation, attorneys' fees and court costs), liens, or liabilities caused by,
directly or indirectly relating in any way to, or arising from (i) any matters
reported in the Environmental Information (the "Environmental Matters") as they
relate to the Project, (excluding the Leased Premises), or (ii) Hazardous
Materials introduced on, in or under the Building or the Project solely by
Landlord, its agents, employees or contractors after the Commencement Date;
provided that the foregoing indemnity shall specifically exclude any and all
claims, demands, causes of action, fines, penalties, costs, expenses (including,
without
36
limitation, attorneys' fees and court costs), liens, or liabilities caused by,
directly or indirectly relating exclusively to or arising from Hazardous
Materials introduced on, in or under the Project after the Commencement Date
solely by the acts of any party other than Landlord and Landlord's agents,
employees and contractors.
(c) Tenant shall be solely responsible for and shall undertake all Remedial
Work required by any Governmental Authority or as necessary to comply with, and
not violate, Legal Requirements arising from (i) Hazardous Materials on or in
the Leased Premises (including, without limitation, the Environmental Matters to
the extent on or in the Leased Premises); or (ii) Hazardous Materials introduced
on, in or under the Building or the Project solely by Tenant, its agents,
employees, invitees or contractors after the Commencement Date. Landlord shall
not enforce Tenant's performance of Remedial Work unless (i) Landlord's failure
to do so constitutes a violation of Legal Requirements by Landlord or makes
Landlord liable for Tenant's continuing violation, (ii) Landlord is required to
do so by any notice of violation, order, decree, permit, rule or regulation
issued by any Governmental Authority or (iii) Landlord's failure to do so would,
in Landlord's reasonable opinion, endanger the health, safety or welfare of any
person on or about the Leased Premises or the Project.
(d) Tenant hereby agrees to and does indemnify, defend, and hold harmless,
Landlord and Landlord's shareholders, officers, trustees and their respective
successors and assigns from and against any and all claims, demands, causes of
action, fines, penalties, costs, expenses (including, without limitation,
attorneys fees and court costs), liens, or liabilities caused by or directly or
indirectly relating in any way to, or arising from (i) Hazardous Materials on or
in the Leased Premises (including, without limitation, the Environmental
Matters) and (ii) arising from Hazardous Materials introduced on, in or under
the Building, or the Project solely by Tenant, its agents, employees, invitees
or contractors after the Commencement Date.
ARTICLE V
LEASEHOLD IMPROVEMENTS AND REPAIRS
5.1 Leasehold Improvements. Subject to the provisions of this Lease, Tenant
hereby accepts the Leased Premises, including without limitation any and all
existing leasehold improvements, in their "AS-IS" condition, and acknowledges
that, subject to the provisions of Section 5.5, Landlord has no obligation to
construct additional leasehold improvements in the Leased Premises or to provide
any money, work, labor, material, fixture, decoration or equipment with respect
to the Leased Premises.
5.2 Alterations. Except as provided below, Tenant shall not make or allow to be
made any alterations or physical additions in or to the Leased Premises, without
first obtaining the written consent of Landlord to the plans and specifications
and contractors therefor, which consent shall not be unreasonably withheld or
delayed. Any and all such alterations or additions shall be made in compliance
with Legal Requirements. Notwithstanding the foregoing, Tenant shall have the
right to make alterations and physical additions to the Leased Premises costing
less than [$200,000.00] in the aggregate for any single project, or which are of
such a nature as not to require a building permit, without Landlord's consent
provided: (i) Tenant notifies Landlord in writing and furnishes Landlord with
plans and specifications and the names of the contractors for all such
alterations or additions at least seven (7) days prior to undertaking them, (ii)
Tenant
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provides Landlord with as-built plans and specifications related to such
alterations or additions upon completion of same, (iii) such alterations or
additions are not visible from the exterior of the Leased Premises or the
Building, (iv) the modifications are in compliance with all Legal Requirements,
(v) such additions and alterations do not adversely affect the mechanical,
electrical, plumbing, life safety, or structural integrity of the Building and
(vi) Tenant coordinates its activities with the Building's property manager. In
no event shall Tenant be obligated to pay any charge to Landlord or any agent of
Landlord for (i) supervision of any alterations or physical additions in or to
the Leased Premises made by Tenant or (ii) review or approval of plans or
specifications for or in connection with any alterations or physical additions
in or to the Leased Premises made or proposed by Tenant (other than
reimbursement of any actual, out-of-pocket costs reasonably incurred by Landlord
to verify that Tenant's plans do not adversely affect the mechanical,
electrical, plumbing, life safety or structural integrity of the Building as
expressed in clause (v) above).
5.3 Non-Removable Improvements. The term "Non-Removable Improvements" shall mean
each and all of the following to the extent owned by Tenant or its Affiliates:
all mechanical equipment above the ceiling, the ceiling system, the ceiling
tile, light fixtures (other than chandeliers; provided Tenant replaces the
ceiling tile and leaves a connection for a replacement chandelier or Building
Standard fixture), permanent walls, wall coverings, doors, door hardware, floor
coverings (other than area rugs), all electrical and plumbing systems located
within the Leased Premises, and blinds, all life safety and other Building
systems, all cafeterias and commissaries, including, without limitation, all
fixtures, equipment and appliances used in connection therewith; all gymnasiums,
fitness or exercise centers, including, without limitation, all equipment,
fixtures and furnishings therein, and at all properties that include retail
banking facilities, all vaults, vault doors, pneumatic tubing then existing at
drive-through facilities, teller counters and under-counter steel. All
Non-Removable Improvements are and shall remain the property of Landlord. Tenant
shall be permitted (but not obligated) to remove any other improvements to the
Leased Premises (together "Tenant's Business Equipment," whether or not
installed so as to be fixtures under applicable law), including trade fixtures,
equipment, furniture, furnishings, supplies, records, documents, cash, coin, and
other items of moveable personal property relating to the operation of Tenant's
business, including, without limitation, all safe deposit boxes (but not the
nests or frames thereof), safes, Tenant identification signage, ATMs connected
to or located within the Building or situated as freestanding structures on the
Property and ATM equipment, telecommunication equipment, security systems and
equipment, satellite dishes and antennas, computers, computer terminals and
computer equipment, any office equipment (whether leased or owned) located in
the Buildings, framed artwork not permanently affixed to the Property, and
Tenant's furniture, trade fixtures, and equipment installed in the Leased
Premises by Tenant at its cost and expense; provided Tenant repairs any damage
to the Leased Premises or other parts of the Building caused by the removal of
the foregoing items.
5.4 Mechanics Liens. Tenant shall have no authority or power, express or
implied, to create or cause to be created any mechanic's, materialmen's or other
lien, charge or encumbrance of any kind against any Leased Premises or the
Project. Should any mechanic's, materialmen's or other lien, charge or
encumbrance of any kind be filed against the Leased Premises or the Project by
reason of Tenant's acts or omissions or because of a claim against Tenant,
Tenant shall cause the same to be cancelled or discharged of record by bond or
otherwise within sixty (60) days after notice to Tenant by Landlord, or within
thirty (30) days after notice to Tenant by Landlord if at
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the time of such notice Landlord anticipates a sale or refinancing of the
Project will be closed within sixty (60) days after said notice (and if Landlord
includes that fact in Landlord's notice to Tenant). If Tenant shall fail to
cancel or discharge said lien or liens within the time provided pursuant to this
Section 5.4, Landlord may, at its sole option, cancel or discharge the same, and
upon Landlord's demand, Tenant shall promptly reimburse Landlord for all
reasonable costs incurred in canceling or discharging such liens. Except to the
extent that such costs, losses, or liabilities are caused by Landlord's actions,
Tenant shall indemnify and hold Landlord harmless from and against all costs
(including reasonable attorneys' fees and costs of suit), losses, liabilities,
or causes of action arising out of or relating to any alterations, additions or
improvements made by Tenant to the Leased Premises, including, but not limited
to, any mechanic's or materialman's liens asserted in connection therewith.
Landlord and Tenant expressly agree and acknowledge that no interest of Landlord
in the Leased Premises or the Project shall be subject to any lien for
improvements made by Tenant in or for the Leased Premises, and that Landlord
shall not be liable for any lien for any improvements made by Tenant, such
liability being expressly prohibited by the terms of this Lease. Landlord may
file in the public records of the County in which the Building is located, a
public notice containing a true and correct copy of this paragraph, and Tenant
hereby agrees to inform all contractors and materialmen performing work in or
for or supplying materials to the Leased Premises of the existence of the
prohibition contained in this paragraph.
With respect to any Leased Premises located in the State of Florida,
Landlord hereby NOTIFIES ALL MECHANICS, MATERIALMEN AND OTHER LIENORS THAT
PURSUANT TO FLORIDA STATUTES (S)713.10, ANY LIENS UNDER FLORIDA XXXXXXXX XX. 000
XXXXX XXXXXX TO, AND ONLY TO, THE RIGHT, TITLE AND INTEREST OF THE PERSON WHO
CONTRACTS FOR THE IMPROVEMENT IN QUESTION AND THAT NEITHER THE INTEREST OF
LANDLORD NOR ANY SUPERIOR INTEREST IN SUCH PORTION OF THE LEASED PREMISES OR IN
ANY OTHER PORTIONS OF THE BUILDING AND LAND OF WHICH THE LEASED PREMISES IS A
PART SHALL BE SUBJECT TO LIENS FOR ANY IMPROVEMENTS, SERVICES OR MATERIALS MADE
BY, CONTRACTED FOR OR OTHERWISE AUTHORIZED BY TENANT OR BY ANY EMPLOYEE,
CONTRACTOR OR AGENT OF TENANT. Tenant agrees that prior to contracting for any
improvements, services or materials to be made in or delivered to Leased
Premises located in the State of Florida, Tenant shall notify the contractor of
the foregoing provisions. Tenant further agrees that upon request of Landlord,
Tenant shall execute a notice which sets forth the foregoing provisions, which
notice may be recorded by Landlord in the public records of the county where the
applicable portion of the Leased Premises is located.
5.5 Repairs by Landlord. Landlord will make, as an Operating Expense (to the
extent allowable), all repairs to, and perform necessary maintenance, repair,
refurbishing and replacement work to the Project, and all parts thereof, in such
manner as is in keeping with Comparable Buildings, including, but not limited
to, the: (a) structural elements of the Building, (b) mechanical (including
HVAC), electrical, the plumbing and fire/life safety systems serving the
Building in general, (c) Common Areas including, without limitation, the Parking
Areas , (d) roofs of the Building, (e) exterior windows of the Building and (f)
elevators serving the Building. Landlord shall promptly make repairs
(considering the nature and urgency of the repair) for which Landlord is
responsible. Except in emergency situations as reasonably determined by
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Landlord, Landlord shall provide Tenant with prior notice of any entry into the
Leased Premises required to effectuate the repairs for which Landlord is
responsible and shall exercise reasonable efforts to perform any such entry into
the Leased Premises in a manner that is reasonably designed to minimize
interference with the operation of Tenant's business in the Leased Premises. If
Landlord should fail or refuse to make such repairs, refurbishings or
replacements or perform said maintenance with reasonable promptness after
written notice from Tenant, then Tenant may, at its option, but without any
obligation to do so, upon written notice to Landlord, cure such failure as
expressed in Section 7.1(f) and recover the reasonable cost thereof from
Landlord.
5.6 Repairs by Tenant. Tenant shall, at its sole cost and expense, promptly
perform all maintenance, repairs, refurbishing and replacement work to the
Leased Premises that are not Landlord's express responsibility under this Lease,
and shall keep the Leased Premises in good condition and repair, reasonable wear
and tear excepted. Tenant's repair obligations include, without limitation,
repairs to: (a) floor covering, (b) interior partitions, (c) doors, (d) the
interior side of demising walls, (e) electronic, phone and data cabling and
related equipment that is installed by or for the exclusive benefit of Tenant
and located in the Leased Premises or other portions of the Building, (f)
supplemental air conditioning units, private showers and kitchens, including hot
water heaters, plumbing and similar facilities serving Tenant exclusively, and
(g) alterations performed by contractors retained by Tenant, including related
HVAC balancing. All Tenant's work shall be performed in accordance with the
rules and procedures described in Section 5.2 hereof. Upon termination of this
Lease, Tenant will surrender and deliver the Leased Premises to Landlord in the
same condition in which the Leased Premises existed on the Commencement Date,
subject, however, to (i) the provisions of Article VI hereof, (ii) the
alterations permitted pursuant to this Lease, (iii) the provisions of Section
5.3, and (iv) except for ordinary wear and tear. If Tenant should fail or refuse
to make such repairs, refurbishings or replacements or perform said maintenance
as and when reasonably required, Landlord may, at its option, but without any
obligation to do so, cure such failure or refusal and Landlord's costs shall be
reimburseable by Tenant as additional rent, by Tenant, immediately upon
invoicing by Landlord. Notwithstanding the foregoing, Landlord agrees to
perform, as Above Standard Services, Tenant's repair and maintenance obligations
with respect to the Leased Premises. Tenant shall notify Landlord of the need
for any such repair and maintenance and Landlord shall endeavor to respond
timely to each such request.
(a) Intentionally Omitted.
5.7 Art. Landlord acknowledges that Tenant may store and/or display within the
Building, multiple works of art, including paintings, textiles, sculptures, and
other forms of artwork (the "Art") that are an integral part of the Bank of
America Art Collection. The Art may be located within the Leased Premises, or
with Landlord's approval, in Common Areas, including lobbies or other public
spaces within the Building or outdoor plaza areas.
(a) The Art that is located within the Project as of the date hereof is
listed in the attached Schedule [___] hereto. Tenant may hereafter locate
additional pieces of Art within the Leased Premises or, with Landlord's
approval, in the Common Areas within or outside the Building, and any of such
Art shall also be considered part of the Bank of America Art Collection, unless
it cannot be removed from the Building without damaging the Art. Tenant
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shall have the right at any time during the Term of the Lease and for a period
of thirty (30) days following the Term of the Lease, to remove any of the Art at
Tenant's sole cost and expense. In the event any Art is removed from either
Leased Premises or Common Areas, Tenant shall repair any damage caused by its
removal. To the extent Art is removed from the Common Areas, Tenant shall notify
Landlord in writing not less than thirty (30) days prior to the anticipated
removal date that the Art shall be removed. Tenant agrees to indemnify Landlord
against any claims made by the artist or putative right holder pursuant to VARA
arising out of Tenant's removal or subsequent treatment of the Art, and such
indemnity shall survive the termination or expiration of this Lease.
(b) Landlord agrees that (i) Landlord shall not remove any Art from any
Common Areas or public spaces of the Building during the Term hereof or within a
period of thirty (30) days following the Term hereof, and Landlord acknowledges
that any such removal in violation of this paragraph may cause damage to the
Art, for which Landlord shall bear sole responsibility; and (ii) Landlord's
removal of any Art during the Term or thereafter shall not be within the scope
of Tenant's VARA indemnification. The foregoing provisions of this subsection
5.8(b) shall not be construed as Landlord's approval of the placement of Art in
Common Areas within or outside the Building.
(c) Tenant shall have the right at any time or from time to time, to erect
plaques or markers, subject to Landlord's approval (not to be unreasonably
withheld) identifying the Art as commissioned by Bank of America or on loan from
the Bank of America Art Collection. To the extent Tenant elects not to remove
any Art at the termination of the Lease, Landlord agrees that any plaques or
markers installed by Tenant identifying the Art as commissioned by Bank of
America or on loan from the Bank of America Art Collection shall remain in place
for so long as the Art is displayed within the Building or Common Areas.
ARTICLE VI
CONDEMNATION, CASUALTY AND INSURANCE
6.1 Condemnation.
(a) If all or a portion of the Building or the Leased Premises as would
render the continuance of Tenant's business from the Leased Premises
impracticable (as reasonably determined by Tenant) is permanently taken or
condemned for any public purpose, this Lease, at the option of Tenant upon the
giving of notice to Landlord within twenty (20) days from the date of such
condemnation or taking shall forthwith cease and terminate as provided in
Section 6.1(c) below.
(b) If all or substantially all of the Project, or so much thereof as to
cause the remainder not to be economically feasible to operate, as reasonably
determined by Landlord, should be permanently taken or condemned for any public
purpose and Landlord terminates all similarly affected leases in the Building
that Landlord has the right to terminate, then Landlord shall have the option of
terminating this Lease by notice to Tenant within ten (10) days from the date of
such condemnation or taking.
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(c) If this Lease is terminated as provided in Sections 6.1(a) or (b)
above, this Lease shall cease and expire as if the date of transfer of
possession of the Leased Premises, the Project, or any portion thereof, was the
expiration date of this Lease.
(d) If this Lease is not terminated by either Landlord or Tenant as
aforesaid, Tenant shall pay all Rent up to the date of transfer of possession of
such portion of the Leased Premises so taken or condemned and this Lease shall
thereupon cease and terminate with respect to such portion of the Leased
Premises so taken or condemned as if the date of transfer of possession of the
Leased Premises was the expiration date of the Term relating to such portion of
the Leased Premises. Thereafter, the Annual Basic Rent, and Tenant's Operating
Expense Share and Tenant's Tax Share shall be calculated based on the Net
Rentable Area of the Leased Premises not so taken or condemned. If any such
condemnation or taking occurs and this Lease is not so terminated, Landlord
shall, within sixty (60) days after the date any portion of the Project is
damaged, or the use of any portion of the Project by Tenant and Tenant's
employees and invitees is impeded, because of such condemnation, commence to
repair the Project (excluding Tenant's Business Equipment), so that the
remaining portion of the Project, as the case may be, shall constitute a
complete architectural unit, reasonably fit for Tenant's occupancy and business
as reasonably determined by Tenant and Landlord. If Landlord fails to cause such
restoration to be substantially completed within one (1) year after the date
Landlord commences such restoration work for any reason other than a delay
caused by an act or omission of Tenant, then Tenant shall have the right to
terminate this Lease by notifying Landlord in writing of such termination within
thirty (30) days after the date that is one (1) year after the date Landlord
commences such restoration work. The one (1) year period described in the
preceding sentence shall be automatically extended for each day of delays caused
by Force Majeure Events.
(e) In the event of any condemnation or taking of all or a portion of the
Leased Premises, and in the event of any condemnation or taking of all or a
portion of the Parking Areas or the Project which taking materially adversely
affects the value of or Tenant's use or enjoyment of the Leased Premises,
Tenant, at Tenant's expense may, jointly with Landlord, appear, claim, prove and
recover, in proceedings relative to such taking, (i) the value of any fixtures,
furniture, furnishings, leasehold improvements and other personal property that
were condemned but which under the terms of this Lease Tenant is permitted to
remove at the end of the Term, (ii) the unamortized cost of any leasehold
improvements that are not so removable by Tenant at the end of the Term and that
were installed at Tenant's expense, (iii) the loss of Tenant's business as the
result of such condemnation and (iv) relocation and moving expenses.
(f) If any taking or condemnation for any public purpose of the Leased
Premises or any portion thereof occurs for one hundred eighty (180) days or less
and the portion of the Leased Premises not so taken is in Tenant's reasonable
judgment sufficient to allow the conduct of Tenant's business in the Leased
Premises to substantially the same extent and quantity as before the taking (and
Tenant, in fact, ceases its use of the Leased Premises for business purposes),
then it shall be deemed a temporary taking and this Lease shall continue in full
force and effect except that Annual Basic Rent, Tenant's Operating Expense Share
and Tenant's Tax Share shall be calculated based on the Net Rentable Area of the
Leased Premises not so taken, for the period of time that the Leased Premises
are so taken as of the date of transfer of possession of the Leased Premises and
Landlord shall be under no obligation to make any repairs or alterations.
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6.2 Damages from Certain Causes. Except as provided in Section 3.1 and Section
6.6, and subject to Landlord's obligations to restore, repair and maintain as
specifically provided in this Lease, Landlord shall not be liable or responsible
to Tenant for any loss or damage to any property or person occasioned by theft,
fire, act of God, public enemy, riot, strike, insurrection, war, requisition or
order of governmental body or authority, court order or injunction, or any other
cause beyond Landlord's control.
6.3 Casualty Clause.
(a) If at any time during the Term of this Lease, the Leased Premises, the
Common Areas, including, without limitation, the Parking Areas, the Building or
any systems or equipment serving the Leased Premises, the Common Areas or the
Building (collectively, the "Damaged Property") is damaged by fire, earthquake,
flood or by any other casualty of any kind or nature (a "Casualty") then, except
as hereinafter provided, Landlord shall proceed to rebuild or restore the
Damaged Property at Landlord's sole cost and expense; provided that, in no
event, shall Damaged Property include, nor shall Landlord or Tenant have any
obligation to rebuild or restore, any of Tenant's furniture, furnishings,
equipment, trade fixtures or other property owned by Tenant. If, in the
reasonable opinion of Landlord's architect as evidenced by a written letter or
certification delivered to Tenant not more than forty-five (45) days following
the Casualty, the Damaged Property cannot be repaired so as to make the Leased
Premises and the Parking Areas tenantable within two hundred seventy (270) days
from the date of notice of Landlord's architect's opinion, then Tenant shall
have the right to terminate this Lease as to such property by notifying Landlord
in writing of such termination within thirty (30) days of receipt of Landlord's
architect's opinion. Any failure by Tenant to deliver such termination notice to
Landlord by such thirtieth (30th) day shall constitute a waiver of Tenant's
right to terminate this Lease pursuant to this Section 6.3(a) as a result of
such Casualty.
(b) Landlord may elect to terminate this Lease on account of a Casualty by
delivering written notice to Tenant within forty-five (45) days after a
Qualified Damage; provided that Landlord also terminates all other similarly
affected tenant leases that Landlord has a right to terminate as a result of
such Casualty. As used herein, a "Qualified Damage" shall mean any one or more
of the following:
(i) There shall be damage to an extent greater than fifty percent
(50%) of the replacement cost of the Building above the foundation, and
such damage or destruction shall be caused by a risk covered by insurance
maintained or required to be maintained (whether or not actually
maintained) by Landlord pursuant to this Lease (i.e., an "insurable risk").
(ii) There shall be damage, resulting from a risk other than an
insurable risk, to an extent greater than twenty-five percent (25%) of the
replacement cost of the Building above the foundation.
(iii) Necessary repairs to the Damaged Property cannot be completed,
in the reasonable opinion of Landlord's architect, within two hundred
seventy (270) days after the occurrence of such damage, which opinion
Landlord shall cause its architect to deliver to Tenant not more than
thirty (30) days after the Casualty.
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(c) Notwithstanding any language herein to the contrary, if at the time of
any substantial damage to the Leased Premises from a Casualty, less than one (1)
year remains in the Term, then (i) Landlord shall have the right, in its sole
option, to elect not to rebuild or restore the Damaged Property, such right to
be exercised, if at all, by written notice to Tenant within thirty (30) days
after the date of such Casualty, and (ii) Tenant shall have the right, in its
sole option, to terminate this Lease, such right to be exercised, if at all,
within thirty (30) days after the date of such Casualty or within thirty (30)
days after Tenant's receipt of Landlord's notice pursuant to Section 6.3(c)(i) .
(d) If Landlord is herein required to repair and restore the Project, and
Tenant shall have had, but shall not have exercised, a right of termination as
provided at Section 6.3(a), Landlord shall use commercially reasonable efforts
to commence such repair and restoration within sixty (60) days following the
Casualty. Landlord's architect shall determine the date that Landlord commences
the repair and restoration of the Project and shall notify Tenant of such
determination within thirty (30) days thereof. Notwithstanding any language
herein to the contrary, if Landlord undertakes but fails to repair and restore
the Damaged Property within the later of (i) one (1) year after the date
determined by Landlord's architect to be the date Landlord commenced the
restoration and repair work or (ii) the date identified in Landlord's
architect's opinion given pursuant to Section 6.3(a) as the date by which
Landlord's architect believed the repair and restoration to the Damaged Property
would be completed (the later such date, the "Outside Completion Date"), for any
reason other than a delay caused by an act or omission of the Tenant, then
subject to the final sentence of this paragraph, Tenant may terminate this Lease
by delivering written notice to Landlord within thirty (30) days after the
Outside Completion Date, but before the repairs and restoration to the Damaged
Property have been completed. If Tenant fails to deliver such notice within such
thirty (30) day period, Tenant shall have waived its right to terminate this
Lease on account of the time required to repair such casualty. The Outside
Completion Date shall be automatically extended for each day of delays caused by
Force Majeure Events (but in no event shall such Outside Completion Date be
extended for more than sixty (60) days by Force Majeure Events).
6.4 Property Insurance. Landlord shall maintain standard fire and extended
coverage insurance, plus, if elected by Landlord, coverage for acts of
terrorism, for each Project, including, without limitation, for the Building,
Common Areas, including, without limitation, Parking Areas, Leased Premises and
other tenantable areas and on the improvements and betterments contained therein
(excluding Tenant's and any other tenant's furniture, furnishings, equipment,
trade fixtures or other property), in an amount not less than eighty percent
(80%) of the full replacement cost thereof above the foundation. Upon the
request of Tenant, a copy of a duly executed certificate of insurance reflecting
Landlord's maintenance of the insurance required under this Section 6.4 shall be
delivered to Tenant. Said insurance shall be maintained with a reputable
insurance company selected by Landlord and qualified and licensed to do business
in the State in which the Project is located and having a current Best's Rating
of A+ or better. All payments for losses thereunder shall be made solely to
Landlord.
6.5 Liability Insurance. Landlord and Tenant shall each maintain a policy or
policies of comprehensive general liability insurance with the premiums thereon
fully paid on or before the due dates, issued by and binding upon a reputable
insurance company qualified and licensed to do business in the State in which
the Project is located, with a current Best's Rating of A+ or
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better. Such insurance shall afford minimum protection (which may be effected by
primary and/or excess coverage) of not less than Three Million Dollars
($3,000,000.00) for bodily injury or death in any one (1) accident or occurrence
and against property damage. Notwithstanding anything to the contrary, so long
as Tenant satisfies the Self-Insurance Net Worth Test, Tenant may self insure in
order to meet any insurance requirements in this Lease. In the event Tenant
fails, in whole or in part, to carry insurance that complies with the
requirements of this Section 6.5, Tenant shall be deemed to self-insure to the
extent of such noncompliance.
6.6 Hold Harmless. Landlord shall not be liable to Tenant, or to Tenant's
agents, servants, employees, contractors, customers or invitees, for any damage
to person or property to the extent caused by any negligent act or omission of
Tenant, or its agents, servants or employees, and Tenant agrees to and does
hereby indemnify, defend and hold harmless, Landlord and Landlord's
shareholders, officers and trustees, and its and their respective successors and
assigns, from and against any and all claims, demands, causes of action, fines,
penalties, costs, expenses (including, without limitation, reasonable attorneys'
fees and court costs), liens or liabilities to the extent caused by (i) any
negligent act or omission of Tenant, or its agents, servants or employees or
(ii) any claim for which Tenant was obligated to obtain insurance, but elected
to self-insure as permitted by Section 6.5. Tenant shall not be liable to
Landlord, or to Landlord's agents, servants, employees, contractors, customers
or invitees, for any damage to person or property to the extent caused by any
negligent act or omission of Landlord, or its agents, servants or employees and
Landlord agrees to and does indemnify, defend and hold harmless Tenant and
Tenant's shareholders, officers and directors, and its and their respective
successors and assigns, from and against any and all claims, demands, causes or
action, fines, penalties, costs, expenses (including, without limitation
reasonable attorneys fees and costs), liens or liabilities to the extent caused
by any negligent act or omission of Landlord, or its agents, servants or
employees.
6.7 WAIVER OF RECOVERY. ANYTHING IN THIS LEASE TO THE CONTRARY NOTWITHSTANDING,
LANDLORD AND TENANT EACH HEREBY WAIVES ANY AND ALL RIGHTS OF RECOVERY, CLAIM,
ACTION OR CAUSE OF ACTION, AGAINST THE OTHER, AND ITS AGENTS, SERVANTS,
PARTNERS, SHAREHOLDERS, DIRECTORS, OFFICERS OR EMPLOYEES, FOR ANY LOSS OR DAMAGE
THAT MAY OCCUR TO THE LEASED PREMISES, THE PROJECT OR ANY IMPROVEMENTS THERETO
OR THEREON, OR ANY PROPERTY OF SUCH PARTY THEREIN OR THEREON, BY REASON OF FIRE,
THE ELEMENTS, OR ANY OTHER CAUSE THAT IS INSURED AGAINST (OR IS INSURABLE,
WHETHER OR NOT ACTUALLY INSURED) UNDER THE TERMS OF STANDARD FIRE AND EXTENDED
COVERAGE INSURANCE POLICIES IN THE STATE IN WHICH THE PROJECT IS LOCATED,
REGARDLESS OF THE AMOUNT OF THE PROCEEDS, IF ANY, PAYABLE UNDER SUCH INSURANCE
POLICIES AND THE CAUSE OR ORIGIN, INCLUDING NEGLIGENCE OF THE OTHER PARTY
HERETO, OR ITS AGENTS, OFFICERS, PARTNERS, SHAREHOLDERS, SERVANTS OR EMPLOYEES,
AND COVENANTS THAT NO INSURER SHALL HOLD ANY RIGHT OF SUBROGATION AGAINST SUCH
OTHER PARTY ON ACCOUNT THEREOF.
45
ARTICLE VII
DEFAULTS, REMEDIES, BANKRUPTCY, SUBORDINATION
7.1 Default and Remedies.
(a) The occurrence of any of the following shall constitute an Event of
Default ("Event of Default") under this Lease on the part of Tenant:
(i) Failure to pay any payment of Rent when due (including, without
limitation, Annual Basic Rent, Tenant's Operating Expense Share, Tenant's
Tax Share and Above Standard Services Rent) and such failure to pay
continues for a period of ten (10) days after written notice thereof from
Landlord to Tenant; provided that Landlord shall not be obligated to send
written notice of a failure to pay more than two (2) times in any
consecutive twelve (12) month period, or
(ii) At any time that Tenant does not satisfy the Net Worth Test,
failure of Tenant to maintain any policy of insurance that Tenant is
required by the terms of this Lease to maintain and such failure continues
for a period of ten (10) business days after written notice from Landlord
to Tenant of such failure, which notice shall (A) specify the insurance
policy which Tenant has failed to maintain and the provision of this Lease
which requires Tenant to maintain such insurance, and (B) state, in all
capital letters and in a prominent place, that the continuance of such
failure to maintain insurance for ten (10) business days after Tenant's
receipt of such written notice will constitute an Event of Default under
Section 7.1(a) of the Lease, or
(iii) Tenant breaches or fails to comply with any term, provision,
condition or covenant of this Lease, other than as described in Section
7.1(a)(i) and (ii), and such breach or failure continues for thirty (30)
days after written notice from Landlord to Tenant of such breach or failure
to comply (or, if such breach or failure is curable but reasonably cannot
be cured within thirty (30) days, Tenant does not commence to cure such
breach or failure promptly within such thirty (30) day period and
continuously and diligently thereafter pursue such cure and remedy until
such breach or failure is remedied; provided that there shall be a maximum
period of one hundred eighty (180) days after Landlord's written notice to
cure or remedy such default, except that such maximum cure period shall
extended as appropriate for delays caused by Force Majeure Events.
(b) Upon the occurrence of an Event of Default, Landlord shall have the
option to do and perform any one or more of the following in addition to, and
not in limitation of, any other remedy or right permitted it by law or in equity
or by this Lease:
(i) Landlord may immediately or at any time thereafter, collect all
overdue Rent and other charges payable to Landlord, together with
Landlord's legal fees and costs of enforcement, with interest at the
Applicable Rate from the date such sums were originally due until the date
paid in full.
(ii) Landlord may immediately or at any time thereafter re-enter the
Leased Premises and correct or repair any condition which shall constitute
a failure on Tenant's
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part to keep, observe, perform, satisfy, or abide by any term, condition,
covenant, agreement, or obligation of this Lease or of the Building Rules
now in effect or hereafter adopted or of any notice given Tenant by
Landlord pursuant to the terms of this Lease, and Tenant shall fully
reimburse and compensate Landlord on demand.
(iii) Landlord, with or without terminating this Lease, may
immediately or at any time thereafter demand in writing that Tenant vacate
the Leased Premises and thereupon Tenant shall immediately vacate the
Leased Premises and remove therefrom all property thereon (other than
Non-Removable Improvements) belonging to or placed in the Leased Premises
by, at the direction of, or with consent of Tenant, whereupon Landlord
shall have the right to re-enter and take possession of the Leased
Premises. Any such demand, re-entry and taking possession of the Leased
Premises by Landlord shall not of itself constitute an acceptance by
Landlord of a surrender of this Lease or of the Leased Premises by Tenant
and shall not of itself constitute a termination of this Lease by Landlord.
(iv) Landlord may immediately or at any time thereafter, re-enter the
Leased Premises, and if persons or any of Tenant's property are then in the
Leased Premises, then, upon prior written notice to Tenant, Landlord may
remove therefrom Tenant and all property belonging to or placed on the
Leased Premises by, at the direction of, or with consent of Tenant, all at
Tenant's expense. Any such re-entry and removal by Landlord shall not of
itself constitute an acceptance by Landlord of a surrender of this Lease or
of the Leased Premises by Tenant and shall not of itself constitute a
termination of this Lease by Landlord.
(v) Landlord, without terminating this Lease, may immediately or at
anytime thereafter relet the Leased Premises or any part thereof, for such
time or times, at such rental or rentals and upon such other terms and
conditions as Landlord deems reasonable, and Landlord may make any
alterations or repairs to the Leased Premises that are necessary or proper
to facilitate such reletting as office space; and Tenant shall pay all
costs of such reletting, including, but not limited to, the cost of any
such alterations and repairs to the Leased Premises and reasonable
attorneys' fees actually incurred; and Tenant shall continue to pay all
Rent due under this Lease up to and including the date of beginning of
payment of rent by any subsequent tenant of part or all of the Leased
Premises, and thereafter Tenant shall pay monthly during the remainder of
the Term the amount, if any, by which the Rent and other charges reserved
in this Lease exceed the rent and other charges collected from any such
subsequent tenant or tenants (net of the costs Landlord incurred to
re-enter and relet the Leased Premises), but Tenant shall not be entitled
to receive any excess of any such rents collected over the Rent reserved
herein. Landlord hereby agrees to use its commercially reasonable efforts
to relet the Leased Premises to mitigate or otherwise reduce the damages
for which Tenant may be liable hereunder, but only to the extent required
under applicable law in the state in which the Building is located;
provided that in no event shall Landlord's leasing or attempted leasing of
other space in the Building instead of the Leased Premises, in and of
itself, violate the provisions of the preceding sentence. Any such
reletting may be for such rent, for such time, and upon such terms as the
Landlord, in the Landlord's good faith discretion, shall determine to be
commercially reasonable. Landlord shall be deemed to
47
have exercised commercially reasonable efforts to relet the Leased Premises
so long as Landlord or Landlord's agents employ marketing methods and
procedures substantially similar to marketing methods and procedures used
by Landlord or Landlord's agents to market and lease vacant space in other
buildings, which are similar in nature and quality to the Building, owned
by Landlord or an affiliate of Landlord.
(vi) Landlord may immediately or at any time thereafter terminate this
Lease, and this Lease shall be deemed to have been terminated upon notice
to Tenant of such termination; upon such termination Landlord shall elect
to either recover from Tenant (A) all damages Landlord may suffer by reason
of such termination including, without limitation, all arrearages in
rentals, costs, charges, additional rentals, and reimbursements, the cost
(including court costs and reasonable attorneys' fees) of recovering
possession of the Leased Premises, the actual or estimated (as reasonably
estimated by Landlord) cost of any alteration of or repair of the Leased
Premises that is necessary or proper to prepare the same for reletting as
office space, or (B) all arrearages in rentals, plus an amount equal to the
excess, if any, of the present value discounted at the Prime Rate of the
total amount of all Rent to be paid by Tenant for the remainder of the
Term, over the present value (discounted at the same rate) of the fair
market rental value of the Leased Premises for the remainder of the Term.
(c) If Landlord re-enters the Leased Premises or terminates this Lease
pursuant to any of the provisions of this Lease, Tenant hereby waives all claims
for damages that may be caused by such re-entry or termination by Landlord
pursuant to the provisions of this Lease. Tenant shall and does hereby indemnify
and hold Landlord harmless from any loss, cost (including court costs and
attorneys' fees), or damages suffered by Landlord by reason of such re-entry or
termination unless caused by Landlord's gross negligence.
(d) The exercise by Landlord of any one or more of the rights and remedies
provided in this Lease shall not prevent the subsequent exercise by Landlord of
any one or more of the other rights and remedies herein provided. Except as
otherwise provided in this Lease, remedies provided for in this Lease are
cumulative and may, at the election of Landlord, be exercised alternatively,
successively, or in any other manner and are in addition to any other rights
provided for or allowed by law or in equity.
(e) Intentionally Omitted.
(f) If Landlord should fail to perform or observe any covenant, term,
provision or condition of this Lease and such default should continue beyond a
period of ten (10) days as to a monetary default or thirty (30) days (or such
longer period as is reasonably necessary to remedy such default; provided
Landlord shall continuously and diligently pursue such remedy at all times until
such default is cured) as to a non-monetary default, after in each instance
written notice thereof is given by Tenant to Landlord (and a copy of said notice
is sent simultaneously therewith to the Notice Parties) ("Landlord Default"),
then, in any such event Tenant shall have the right, (i) to cure or attempt to
cure the Landlord Default (upon twenty-four (24) hours' notice in the event of
an emergency, notwithstanding the foregoing provisions of this Section 7.1(f)),
and Landlord shall reimburse Tenant for all reasonable sums expended in so
curing the Landlord Default or (ii) to commence such actions at law or in equity
to which Tenant may be entitled.
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The exercise by Tenant of any one or more of the rights and remedies provided in
this Lease shall not prevent the subsequent exercise by Tenant of any one or
more of the other rights and remedies herein provided. Except as otherwise
provided in this Lease, remedies provided for in this Lease are cumulative and
may, at the election of Tenant, be exercised alternatively, successively, or in
any other manner and are in addition to any other rights provided for or allowed
by law or in equity, including without limitation the right to claim that Tenant
has been constructively evicted.
(g) Notwithstanding the provisions of Section 7.1(e) hereof, if Landlord
should fail to maintain any policy of insurance which Landlord is required by
the terms of this Lease to maintain and such failure continues for a period of
ten (10) business days after written notice from Tenant to Landlord and all
Notice Parties of such failure, which notice shall (A) specify the insurance
policy which Landlord has failed to maintain and the provision of this Lease
which requires Landlord to maintain such insurance. Tenant's sole and exclusive
recourse and remedy for Landlord's failure to maintain any such policy of
insurance shall be limited to the offset right provided in Article XIII.
7.2 Insolvency or Bankruptcy. The appointment of a receiver to take possession
of all or substantially all of the assets of Tenant, or any general assignment
by Tenant for the benefit of creditors, or any action taken by Tenant under any
insolvency, bankruptcy, or reorganization act, or an involuntary proceeding
against Tenant that is not dismissed or bonded against within one hundred twenty
(120) days after the filing thereof, shall at Landlord's option, constitute a
breach of this Lease by Tenant. Upon the happening of any such event or at any
time during the duration of such event, this Lease shall terminate five (5) days
after notice of termination from Landlord to Tenant. In no event shall this
Lease be assigned or assignable by voluntary or involuntary bankruptcy or a
proceeding in lieu thereof and in no event shall this Lease or any rights or
privileges hereunder be an asset of Tenant under any bankruptcy, insolvency, or
reorganization proceedings.
7.3 Negation of Lien for Rent. Landlord hereby expressly waives and negates any
and all contractual liens and security interests, statutory liens and security
interests or constitutional liens and security interests arising by operation of
law to which Landlord might now or hereafter be entitled on all property of
Tenant now or hereafter placed in or upon the Leased Premises, except for
judgment liens, if any.
7.4 Attorney's Fees. If either party is in default beyond any applicable grace
or notice period in the performance of any of the terms of this Lease and the
other party employs an attorney in connection therewith, the non-prevailing
party agrees to pay the prevailing party's reasonable attorneys' and paralegals'
fees and costs, at all levels, before, during and after trial, and on appeal.
7.5 No Waiver of Rights. No failure or delay of Landlord or Tenant in any one
instance to exercise any remedy or power given it herein or to insist upon
strict compliance by Tenant or Landlord of any obligation imposed on it herein
in any other instance and no custom or practice of either party hereto at
variance with any term hereof shall constitute a waiver or a modification of the
terms hereof by such party in any one instance or any right it has herein to
demand strict compliance with the terms hereof by the other party in any other
instance. No express waiver
49
shall affect any condition, covenant, rule, or regulation other than the one
specified in such waiver and then only for the time and in the manner specified
in such waiver. No person has or shall have any authority to waive any provision
of this Lease unless such waiver is expressly made in writing and signed by an
authorized officer of Landlord or Tenant. No endorsement or statement on any
check or letter accompanying any check or payment as Rent be deemed an accord
and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such Rent or pursue any
other remedy provided in this Lease.
7.6 Holding Over.
(a) Except as provided in Section 7.6(b), in the event of holding over by
Tenant after expiration or termination of this Lease without the written consent
of Landlord, Tenant shall pay for the entire holdover period as liquidated
damages, solely for such holding over, one hundred fifty percent (150%) of the
Annual Basic Rent that would have been payable if the Lease had not so
terminated or expired plus one hundred fifty percent (150%) of all Rent other
than Annual Basic Rent (including, without limitation, Tenant's Operating
Expense Share and Tenant's Tax Share) that would have been payable if this Lease
had not so terminated or expired. Nothing in this Section 7.6(a) shall be
construed as granting Tenant a right to retain possession of the Leased
Premises, or as limiting Landlord's right to recover possession of the Leased
Premises, after the expiration or termination of this Lease as to such Leased
Premises.
(b) Notwithstanding the provisions of Section 7.6(a), Tenant shall be
permitted to holdover in the Leased Premises, or a portion thereof, for a period
of time not to exceed sixty (60) days after the expiration of the Term (whether
the Initial Term or the Term as renewed) if and only if: (1) Landlord has not
already leased the portion of the Leased Premises in which Tenant is holding
over, and (2) Tenant gives Landlord written notice of such intent to holdover
within thirty (30) days prior to the expiration of the Term; such written notice
shall specify the length of time Tenant intends to holdover and the portion of
the Leased Premises in which Tenant intends to holdover. If Tenant elects to
holdover pursuant to the preceding sentence, such holdover will be on an AS-IS
basis except that the Annual Basic Rent shall be one-hundred twenty-five percent
(125%) of the Annual Basic Rent applicable to such Leased Premises immediately
prior to such holdover.
7.7 Subordination. Landlord represents and warrants to Tenant that as of the
Commencement Date, there is no ground lease or other superior lease presently
encumbering the Leased Premises, and no mortgage or deed of trust lien presently
encumbering the Leased Premises. Landlord will provide to Tenant, within thirty
(30) days following the recording of a mortgage or deed of trust encumbering the
Project (the holder thereof, or of a ground lease or other superior lease to
which this Lease may hereafter be subject, being hereafter referred to as an
"Interest Holder"), a non-disturbance agreement in the form attached hereto as
Exhibit D or such other form as shall be reasonably satisfactory to Tenant and
such Interest Holder, and such form in any event shall specifically include
provisions that, in the case of a deed of trust or mortgage, in the event of any
foreclosure or other enforcement under the mortgage or deed of trust, either by
judicial proceeding or by power of sale, or if conveyance or transfer of the
Project shall be made in lieu of foreclosure, or in the case of a lease, in the
event of any termination of the lease for any reason (whether or not because of
exercise by lessor of any right or remedy) or any enforcement
50
of remedies by the lessor thereof (any such foreclosure or conveyance in lieu of
foreclosure, and any such lease termination or enforcement of lease remedies,
being herein referred to as "Enforcement"), then this Lease shall not be
terminated as a result of such Enforcement, whether by operation of law or
otherwise, but rather, notwithstanding such Enforcement, and the fact that this
Lease is subordinate to the deed of trust mortgage or lease (as the case may
be), this Lease shall continue in full force and effect as a binding lease
agreement between Owner and Tenant in accordance with its provisions, and the
rights of Tenant under this Lease shall not be interfered with nor disturbed by
any party owning the Project or any interest therein as a result of Enforcement,
or such party's successors and assigns (any such owner, and its successors and
assigns, being herein called "Owner"). However, nothing herein shall negate the
right of Owner to exercise the rights and remedies of Landlord under this Lease,
including, without limitation, the right to terminate this Lease as provided
herein in the event of a default by Tenant under this Lease, and as to any
default by Tenant under this Lease existing at the time of Enforcement, such
Enforcement shall not operate to waive or xxxxx any action initiated by Landlord
under this Lease to terminate the same on account of such default. Tenant agrees
to subordinate its interest under this Lease to any ground lease, mortgage or
deed of trust lien hereafter placed on the Project; provided that as a condition
to such subordination, the party to whose interest Tenant subordinates its
interest hereunder shall execute and deliver to Tenant a subordination,
non-disturbance and attornment agreement in the form attached as Exhibit D, or
in another form otherwise meeting the requirements of this Section. Unless and
until a subordination, non-disturbance and attornment agreement is entered into
between Tenant and the applicable party, the holder of any ground or land lease
that may now affect any of the Land or the holder of any mortgage or deed of
trust that may now encumber the Project may elect at any time to cause their
interests in the Land or the Project to be subordinate and junior to Tenant's
interest under this Lease by filing an instrument in the real property records
of the county in which the Building is located effecting such election and
providing Tenant with notice of such election.
7.8 Estoppel Certificate. At the request of either Landlord or Tenant, the other
party will execute within ten (10) business days from the date of receipt of the
request, from time to time, an estoppel certificate substantially in the form
attached hereto as Exhibit E or in such other form as may be reasonably
requested by the requesting party; provided that any request submitted by
Landlord requesting an estoppel certificate by Tenant shall be accompanied by an
estoppel certificate executed by Landlord indicating whether or not there are
any then existing defaults by Tenant under this Lease, and if so, describing
said defaults. Tenant and any third party certifying, to the best of such
party's knowledge and belief, to the facts (if true) described in such
certificate.
7.9 Subsequent Documents. Any provision in this Lease for Tenant or Landlord to
execute estoppel certificates, subordination, non-disturbance or attornment
agreements or other documents pertaining to this Lease, is subject to the
requirements that, except as provided in this Lease or otherwise agreed to, any
such document must involve no diminution of Tenant's or Landlord's rights
provided for in this Lease, no additional liability of Tenant or Landlord, and
no cost or expense to Tenant or Landlord; and any estoppel certificate regarding
Lease defaults or breaches shall be limited to the actual knowledge of the
signing representative.
7.10 Interest Holder Privileges. In the event of any Landlord's Default, Tenant
shall give written notice thereof to Landlord and to any Interest Holder whose
address shall have been
51
furnished to Tenant, such notice to be delivered to said Interest Holder at the
same time notice is delivered to Landlord. Tenant shall offer such Interest
Holder the same opportunity to cure the default as Landlord is entitled, and
Tenant shall forbear in the exercise of any rights or remedies in the interim.
ARTICLE VIII
SUBLEASING, ASSIGNMENT, LIABILITY, AND CONSENTS
8.1 Sublease or Assignment by Tenant.
(a) Tenant shall not (i) assign, convey or otherwise transfer (whether
voluntarily, by operation of law, or otherwise) this Lease or any interest
hereunder to any party other than to an Affiliate or corporate successor of
Tenant or (ii) allow any lien to be placed upon Landlord's or Tenant's interest
hereunder in and to the Leased Premises or the Projects or the estates or
interests created by this Lease.
(b) Subject to the provisions of this Section 8.1(b), Tenant may, at any
time during the Term, sublease all or a portion of the Leased Premises; provided
that any sublease for a term of longer than five (5) years, other than a
sublease to an Affiliate or corporate successor of Tenant or to one or more of
Tenant's vendors for the purpose of allowing such vendors to place their
personnel on-site at Tenant's premises during the duration of the vendor/vendee
relationship, shall be subject to and contingent upon Landlord's right of
recapture as provided in this Section 8.1(b). If Tenant desires to sublet all or
any portion of the Leased Premises to a person or entity other than an
Affiliate, corporate successor or Tenant vendor for a term of longer than five
(5) years, Tenant shall notify Landlord in writing at least twenty (20) days
prior to the date on which Tenant desires such sublease to become effective
(hereinafter referred to in this Section 8.1(b) as the "Transfer Notice") of the
(i) economic terms of the proposed subletting, (ii) the identity of the proposed
sublessee, (iii) the area proposed to be sublet (hereinafter referred to as the
"Sublet Space"), and (iv) the use to be made by such sublessee of such Sublet
Space. The Transfer Notice shall also state in all capital letters (or other
prominent display), that Landlord shall be deemed to have declined to recapture
the Sublet Space and to have approved the sublease if Landlord fails to respond
within twenty (20) days after receipt thereof. If Landlord fails to respond to
such Transfer Notice within twenty (20) days after receipt thereof, Landlord
shall be deemed to have approved the proposed sublease as set forth in the
Transfer Notice. Tenant agrees to use its reasonable efforts to promptly provide
any additional information about a proposed sublease that is reasonably
requested by Landlord. Tenant shall deliver a copy of any such sublease to
Landlord promptly after its execution. If Tenant shall fail to consummate the
sublease that was the subject of the Transfer Notice on the same terms as those
set forth in the Transfer Notice within ninety (90) days following the date of
the Transfer Notice, then Tenant shall be obligated to deliver to Landlord a
further Transfer Notice in regard to the proposed sublease, and the process
shall be repeated until the sublease shall be signed within the time and on the
terms required, or Landlord shall elect to recapture the Sublet Space. If
Landlord elects to recapture the Sublet Space, upon such recapture and Tenant's
surrender and Landlord's acceptance of the Sublet Space, (i) Tenant shall be
released from its obligations under this Lease for the remainder of the Term of
this Lease as they relate to the recaptured Sublet Space only, including,
without limitation, Tenant's obligation to pay Annual Basic Rent and Tenant's
Operating Expense Share and Tenant's Tax Share as they relate to the recaptured
Sublet Space
52
only, and (ii) Landlord shall pay all leasing commissions, tenant improvement
allowances and other costs associated with releasing the recaptured Sublet Space
and all costs associated with demising the recaptured Sublet Space for separate
occupancy.
(c) Anything in this Lease contained to the contrary notwithstanding,
Tenant shall not have the right to sublease all of any portion of the Leased
Premises to an organization or person enjoying sovereign or diplomatic immunity,
a medical or dental practice that will attract a volume, frequency or type of
visitor or employee to the Building which is not consistent with the standards
of a high quality office building or that will impose an excessive demand on or
use of the facilities or services of the Building.
(d) Each sublessee must fully observe all covenants of this Lease
applicable to the Sublet Space, and no consent by Landlord to a sublease shall
be deemed in any manner to be a consent to a use not permitted under this Lease.
During the occurrence of an Event of Default by Tenant hereunder, Landlord may
collect subrentals directly from a sublessee of the Sublet Space.
(e) Notwithstanding the giving by Landlord of its consent or approval to
any subletting, assignment or occupancy as provided in this Section 8.1 or any
language contained in such lease, sublease or assignment to the contrary, except
to the extent this Lease or any obligation or liability of Tenant hereunder is
expressly terminated or released in writing by Landlord, Tenant shall not be
relieved of any of Tenant's obligations or covenants under this Lease and Tenant
shall remain fully liable hereunder.
(f) Any attempted assignment, sublease or other transfer by Tenant in
violation of the terms and covenants hereof shall be void and shall be a breach
under Section 7.1(a)(iii), with respect to which, however, no grace period shall
apply. Any consent or approval by Landlord to a particular assignment, sublease
or other transfer shall not constitute Landlord's consent or approval to any
other or subsequent assignment, sublease or other transfer, and any proposed
assignment, sublease or other transfer by an assignee, sublessee or transferee
of Tenant or any other assignee, sublessee or transferee shall be subject to the
provisions hereof as if it were a proposed assignment, sublease or other
transfer by Tenant.
(g) Tenant agrees to reimburse Landlord for reasonable legal fees and costs
incurred by Landlord in connection with Landlord's consideration of any request
by Tenant for a Subtenant Non-Disturbance Agreement , it being understood that
Landlord may grant or withhold its approval of the Subtenant Non-Disturbance
Agreement in Landlord's sole discretion.
(h) Intentionally Omitted.
(i) Any provision of the Lease to the contrary notwithstanding, the rights
granted to Tenant pursuant to provisions of Section 1.4 (Options to Renew),
Section 3.4 (Building Identity; Signage; Exclusivity), Article IX (Purchase and
Sale), and Article X (Expansion Rights) and are personal to the herein named
Tenant and any corporate successor or permitted assignee of this Lease and such
rights may not be assigned or subleased to, or exercised by, any other person or
entity, it being understood that no assignment of this Lease or subletting of
all or a portion of the Leased Premises shall cancel or void any of the
aforesaid rights as they pertain to the herein
53
named Tenant and any corporate successor permitted assignee of this Lease.
Tenant shall furnish to Landlord copies of any and all subleases executed by
Tenant within ten (10) business days following the date such sublease is by its
terms effective. All subleases shall by their terms be subject and subordinate
to this Lease as amended from time to time.
(j) In any instance in which Landlord shall have the right of recapture but
Tenant shall, in violation of Section 8.1(b), sublease Sublet Space without
first offering the same to Landlord, then without limitation of Landlord's
rights, Landlord shall have the continuing right of recapture pursuant to
Section 8.1(b) upon learning of such sublease and so advising Tenant; the twenty
(20) day response period reserved to Landlord under Section 8.1(b) being deemed
tolled until the date Tenant delivers a Transfer Notice in respect of the Sublet
Space and shall run for a period of twenty (20) days thereafter. If Tenant shall
have subleased the Sublet Space at a profit (after deduction of Tenant's
reasonable, documented costs of subleasing) and Landlord thereafter elects to
recapture, then Tenant shall be obliged to compensate Landlord, upon Landlord's
demand, in the full amount of such profit from the inception of such sublease to
the date of recapture. Except as provided in this Section 8.1(j), Tenant shall
retain any and all profits on subleasing.
8.2 Assignment by Landlord. At any time after the Commencement Date, but subject
to the provisions of Section 9.3, Landlord shall have the right to transfer,
assign or convey, in whole or in part, the Project of which the Leased Premises
are a part, or any portion or portions thereof, and any and all of its rights
under this Lease, and in the event Landlord transfers, assigns, or conveys its
rights and obligations under this Lease, Landlord shall thereby be released from
any future obligations hereunder and Tenant agrees to look solely to such
successor in interest of the Landlord for performance of such future obligations
to the extent such successor in interest has, by written instrument of which a
copy has been delivered to Tenant, assumed all of the liabilities and
obligations of its predecessor in interest under this Lease accruing from and
after the date of such transfer, assignment or conveyance; the foregoing
provision shall not release the transferring Landlord from any obligation or
liability which has not been assumed by such successor in interest of Landlord.
Except for such release of the prior Landlord, in no event shall any transfer,
assignment or conveyance affect or otherwise impair the rights of Tenant to
accrued self-help, abatement or other rights and remedies of Tenant hereunder
arising out of any breach of an express warranty or representation of any
Landlord contained in this Lease, the failure of any Landlord to perform any
covenant of Landlord under this Lease or otherwise arising out of this Lease.
Notwithstanding any other provision of this Lease, except as expressly provided
in Sections 9.3, no transfer, assignment or conveyance of interest of the
transferring Landlord in all or any part of the Project or the Land shall
release or reduce, or prejudice Tenant's rights against the transferring
Landlord with respect to, any liabilities or obligations of Landlord which
accrued, or relate to any period of time, prior to the date of such transfer,
assignment or conveyance.
ARTICLE IX
PURCHASE AND SALE
9.1 Tenant's Right of First Refusal to Purchase. If at any time during the
Initial Term of this Lease, Landlord shall receive a bona fide offer (a "Third
Party Offer") from a third party (other than a purchaser making a bid at any
sale incidental to the exercise of any remedy provided for in
54
any mortgage encumbering the Building or the Project, or a proposed transaction
with an Affiliate of Landlord) to purchase a the Building, which Third Party
Offer is in all respects acceptable to Landlord, and if at the time Landlord
receives such Third Party Offer, no Event of Default has occurred hereunder and
shall be continuing and the herein named Tenant, or its Affiliates, shall remain
in possession of at least thirty-five percent (35%) of the Net Rentable Area of
the Building, then Landlord shall notify Tenant of such Third Party Offer. If
both of the conditions enumerated in the previous sentence shall be satisfied,
Landlord shall notify Tenant of such Third Party Offer and for a period of
twenty (20) days after such notice is sent by Landlord, Tenant shall have the
exclusive right to accept Landlord's offer to purchase Landlord's interest in
the Building upon the terms and conditions set forth in the Third Party Offer.
Tenant shall exercise such right of first refusal, if at all, by delivering its
written purchase offer to Landlord within said twenty (20) days after the date
of Landlord's notice. Such purchase shall occur not later than sixty (60) days
following Tenant's acceptance of Landlord's offer. On the date of such purchase,
Landlord shall convey and assign to Tenant, or its designee, Landlord's interest
in the Building in consideration of payment of the sale price therefor, in
accordance and upon compliance with the terms and conditions of the Third Party
Offer, and this Lease shall terminate. If Tenant fails to accept Landlord's
offer within such twenty (20) day period, then Landlord shall be free to sell
the Building for a period of nine (9) months thereafter on the same economic
terms and conditions (or on different terms more favorable to Landlord, as
seller) without offering the Building to Tenant. If Landlord does not convey its
interest in the Building within such nine (9) month period, then Tenant's rights
pursuant to this paragraph shall be reinstated. In no event shall the right of
first refusal provided in this Section 9.1 apply to any foreclosure of the
Building or the Project or the delivery of any deed-in-lieu of foreclosure and
such right of first refusal shall terminate and be of no further force or effect
upon and following a foreclosure or the delivery of a deed-in-lieu of
foreclosure.
9.2 Right of First Offer on Sale.
(a) During the Term, so long as no Event of Default shall have occurred
hereunder and be continuing, and for so long as the herein named Tenant, or its
Affiliates, shall remain in possession of at least thirty-five percent (35%) of
the Net Rentable Area of the Building (together, the "ROFO Eligible
Conditions"), Tenant shall have the right of first offer to purchase the
Building should Landlord determine to sell it, as more fully provided below. In
no event shall the right of first offer provided in this Section 9.2 apply to
any foreclosure of the Building or the delivery of any deed-in-lieu of
foreclosure and such right of first offer shall terminate and be of no further
force or effect upon and following a foreclosure or the delivery of a
deed-in-lieu of foreclosure.
(b) For so long as the ROFO Eligible Conditions persist, Landlord shall
notice Tenant as to the offer price as well as other economic terms upon which
Landlord wishes to sell the Building, specifying the last date upon which
Landlord will agree to make settlement on such sale. Tenant shall have thirty
(30) days following Landlord's delivery of such notice within which to respond
to such notice. If Tenant does not accept Landlord's offer within such thirty
(30) day period, Tenant's rights under this Section shall lapse and Landlord
shall thereafter be free to market and sell the Building upon the same economic
terms and for the price stated in the offer for a period of nine (9) months;
provided that if Landlord fails to execute a definitive agreement to sell the
Building within nine (9) months following the date of Landlord's original
55
notice to Tenant or, within such nine (9) month period, Landlord desires to sell
the Building for a purchase price or on economic conditions that are less than
the offer price and conditions previously identified to Tenant, Landlord shall
re-offer the Building to Tenant as set forth above.
ARTICLE X
EXPANSION RIGHTS
10.1 Tenant Expansion Notices. Tenant shall have the right, from time to time
during the Term of this Lease (but not more frequently than one time every
twelve (12) months), to notify Landlord (any such notice, a "Tenant Expansion
Notice") of Tenant's desire or potential desire to lease additional space if
available in the Building and to request that Landlord advise Tenant of all the
space within the Building that is then available for leasing or which is
scheduled to become available for leasing within the next eighteen (18) months.
Tenant Expansion Notices shall identify (a) the approximate Net Rentable Area of
the expansion space desired by Tenant, (b) the date by which Tenant desires to
occupy the expansion space and (c) whether Tenant is committing, in advance of
receiving the Landlord Expansion Response, to lease the space identified in the
Tenant Expansion Notice if and when available (any such space, "Pre-Committed
Space"), subject to Tenant's acceptance of Landlord's determination of the Fair
Market Rental Value of such Pre-Committed Space.
10.2 Landlord Expansion Response. Landlord shall, within fifteen (15) days
following Landlord's receipt of a Tenant Expansion Notice, respond to Tenant's
inquiry (any such response, a "Landlord Expansion Response") by advising Tenant
of (a) the location, approximate Net Rentable Area and configuration of any and
all potential expansion space that is then available or, within the next
eighteen (18) months, will become available for leasing in the Building, (b) the
date by which Landlord anticipates that the potential expansion spaces will
become available and (c) Landlord's opinion of the Fair Market Rental Value of
the available potential expansion space. If no potential expansion space that
satisfies Tenant's criteria is available, the Landlord Expansion Response shall
so state.
10.3 Expansion Space Leases. [Note: Five Year Term Separate Leases must be
revised to eliminate option of "Coterminous Expansion Space"] Subject to the
limitations expressed in Section 10.5, Tenant shall have the right and option
("Expansion Rights") to lease all or a portion of the available space identified
in the Landlord Expansion Response as either Coterminous Expansion Space or
Short Term Expansion Space, as Tenant may elect, on the following terms and
conditions; provided that all Expansion Space leased during any Renewal Term,
regardless of Tenant's election, shall be regarded as Short Term Expansion
Space. Tenant shall exercise an Expansion Right by written reply to a Landlord
Expansion Response (any such timely reply, an "Expansion Space Acceptance"),
which shall specify, with particularity, (a) the location, approximate Net
Rentable Area and configuration of the space described in the Landlord Expansion
Response that Tenant desires to lease, (b) whether Tenant desires to lease such
space for a term that is coterminous with the Term of this Lease ("Coterminous
Expansion Space") or for a term of five (5) years, plus renewals ("Short Term
Expansion Space"), and (c) whether Tenant agrees with Landlord's opinion of the
Fair Market Value of the space that Tenant desires to lease or if Tenant desires
to have the same determined by appraisal as provided in Sections 1.4(d) and (e).
All space for which Tenant timely exercises an Expansion Right, either as
56
Coterminous Expansion Space or Short Term Expansion Space, shall be referred to
as "Expansion Space".
(a) Coterminous Expansion Space shall be added as Leased Premises under
this Lease on the same terms and conditions as apply to all other Leased
Premises (except Short Term Expansion Space) as then demised hereunder, so that
(i) the Annual Basic Rent payable for the Coterminous Expansion Space be the
same as the Annual Basic Rent payable for all other Leased Premises (except
Short Term Expansion Space), calculated as the Net Rentable Area of the
Coterminous Expansion Space multiplied by the Annual Basic Rent Factor and (ii)
the Term of this Lease with respect to the Coterminous Expansion Space shall be
coterminous with the Term of this Lease for all other Leased Premises (except
Short Term Expansion Space) in the Project including any Renewal Terms, as
Tenant may elect.
(b) Short Term Expansion Space shall be added as Leased Premises under this
Lease on the same terms and conditions as apply to all other Leased Premises as
then demised hereunder, except that (i) the Annual Basic Rent payable for the
Short Term Expansion Space shall be the Fair Market Rental Value of the Short
Term Expansion Space, determined by appraisal as provided in Sections 1.4(d) and
(e), (ii) the Term of this Lease with respect to the Short Term Expansion Space
shall be the lesser of (A) five (5) years or (B) the then remaining balance of
the Term for the remainder of the Leased Premises, (iii) Tenant shall have the
right, exercisable by written notice to Landlord not less than twelve (12)
months prior to the expiration of the then current Term for the Short Term
Expansion Space, to renew the Term for the Short Term Expansion Space for one or
more periods, as Tenant may elect, each equal to the lesser of (A) five (5)
years or (B) the then remaining balance of the Term for the remainder of the
Leased Premises, (iv) the Annual Basic Rent payable in respect of the Short Term
Expansion Space during any renewal Term shall be the Fair Market Rental Value of
the Short Term Expansion Space, determined as of the date of Tenant's renewal
notice by appraisal as provided in Sections 1.4(d) and (e).
(c) Tenant shall accept all Expansion Space in its "AS - IS" condition, and
Rent for all Expansion Space shall commence on the earlier of (i) the date
Tenant commences business operation in such Expansion Space or (ii) ninety (90)
days following the date on which Landlord delivers such Expansion Space to
Tenant free from the rights of other tenants and occupants. Tenant shall pay all
costs incident to Tenant's relocation to, moving into and making the Expansion
Premises ready for Tenant's use and occupancy, which tenant improvement work
shall be performed by Tenant in conformity with the provisions of Section 5.2.
(d) Promptly following Tenant's timely exercise of an Expansion Right,
Landlord and Tenant shall amend Exhibit A to this Lease to reflect the addition
of the Expansion Space to the Leased Premises and to confirm the terms thereof,
including the Net Rentable Area of the Expansion Space, the Annual Basic Rent
payable in connection therewith, the Term of Expansion Space, the change to
Tenant's Occupancy Percentage resulting from the addition of the Expansion
Space.
(e) Tenant's right to lease less than all of the space identified in the
Landlord Expansion Response shall be qualified by the requirement that, if
Tenant desires to lease less than full floor in a Building, any available space
on such partial floor that is not leased by Tenant
57
must have a size and configuration, as reasonably agreed by Landlord and Tenant,
that makes it readily leaseable to third party tenants.
10.4 Intentionally Omitted.
10.5 Subordination of Expansion Space Rights. Anything herein contained to the
contrary notwithstanding, Tenant's Expansion Rights as provided in this Article
X are and shall be subordinate to any rights heretofore or hereafter granted to
any other party with respect to space in the Building. Landlord, at Landlord's
discretion, may lease available space in the Building and to any other party on
such terms and conditions as they shall determine, at any time, including,
without limitation, after Landlord's delivery of a Landlord Expansion Response,
but before Landlord's receipt of an Expansion Space Acceptance with respect to
any Expansion Space. Landlord may choose to use any space that is or about to
become vacant within for marketing or property management purposes, without
notifying or offering such space to Tenant, or giving rise to any right of
Tenant hereunder. Nothing contained in this Article X is intended, nor may
anything herein be relied upon by Tenant, as a representation by Landlord or any
other party as to the availability of expansion space at any time, and Landlord
shall not be obligated to lease any space identified as available on any
Landlord Expansion Response to Tenant unless, at the time Landlord receives an
Expansion Space Acceptance, Landlord or such owner shall not have entered into a
letter of intent or a lease agreement with respect to the Expansion Space that
is covered by the Expansion Space Acceptance. Notwithstanding the foregoing,
Landlord shall not enter into a lease or letter of intent for any space
identified in a Tenant Expansion Notice as Pre-Committed Space for a period of
thirty (30) days following Landlord's receipt of the Tenant Expansion Notice
identifying such Pre-Committed Space.
10.6 Duration. Tenant's Expansion Rights under this Article X shall continue
throughout the Term until there are fewer than twelve (12) months then remaining
in the Term and Tenant has not exercised any then available Renewal Option.
10.7 Disputes. Landlord and Tenant shall endeavor to resolve, in good faith, any
disagreement arising as a result of Tenant's exercise of Expansion Rights under
this Article X, failing which such disagreement shall be resolved in accordance
with Article XII; provided that no disagreement between Landlord and Tenant
regarding the contents of Tenant's Expansion Space Acceptance shall render any
otherwise effective Expansion Space Acceptance ineffective.
ARTICLE XI
INTENTIONALLY OMITTED
ARTICLE XII
intentionally omitted
ARTICLE XIII
TENANT REMEDIES
If a Landlord Default occurs and is continuing hereunder and Tenant elects to
cure or attempts to cure the Landlord Default, and if Landlord fails to
reimburse Tenant for such reasonable costs of curing the Landlord Default within
thirty (30) days after Tenant's submission of an invoice for such costs together
with reasonable supporting documentation, Tenant may from time to time
58
offset such costs against installments of Annual Basic Rent in an aggregate
amount, not to exceed in any twelve (12) calendar month period, the lesser of
(i) $50,000 and (ii) two (2) months' Annual Basic Rent.
ARTICLE XIV
MISCELLANEOUS
14.1 Notices. Any notice or other communications required or permitted to be
given under this Lease must be in writing and shall be given or delivered at the
addresses specified in Section 1.1 and sent by certified United States Mail,
return receipt requested, telecopy, or by Federal Express or other nationally
recognized overnight courier service. Any notice shall be deemed given upon
receipt or refusal thereof. Either party shall have the right to change its
address to which notices shall thereafter be sent and the party to whose
attention such notice shall be directed by giving the other party notice thereof
in accordance with the provisions of this Section 14.1; provided that such
notice of change of address shall become effective only upon the other party's
actual receipt thereof. Additionally, each of Landlord and Tenant may designate
one (1) additional address to which copies of all notices shall be sent.
Additionally, Tenant agrees that copies of all notices of a Landlord Default
hereunder shall also be sent to each Interest Holder that notifies Tenant in
writing of its interest and the address to which copies of such notices are to
be sent. Notwithstanding anything contained in this Section 14.1 to the
contrary, any notice regarding a party's change of address or designation of
additional addressees shall become effective only upon the other party's actual
receipt thereof. Any notice or other communication sent by either party pursuant
to this Section 14.1 shall state, with particularity, the Leased Premises
involved.
14.2 Brokers. Tenant represents that it has not engaged any broker, agent or
similar party with respect to the transactions contemplated by this Lease.
Tenant agrees to indemnify and hold harmless Landlord from and with respect to
any claims for a brokerage fee, finder's fee or similar payment with respect to
this Lease which is made by any party claiming by, through or under Tenant.
Landlord represents that it has not engaged any broker, agent or similar party
with respect to the transactions contemplated by this Lease other than
[___________]. Landlord agrees to indemnify and hold harmless Tenant from and
with respect to any claims for a brokerage fee, finder's fee or similar payment
with respect to this Lease which is made by a party claiming by, through or
under Landlord, other than [____]. [_____________] shall be paid a commission
due, if any, pursuant to the terms of a separate agreement with such brokers,
if, as and when closing shall occur and be completed under such Purchase
Agreement. No broker shall be entitled to receive a separate commission from
Landlord in connection with this Lease or any amendment, renewal or modification
hereof.
14.3 Binding on Successors. This Lease shall be binding upon and inure to the
benefit of the legal representatives, successors and assigns of Landlord, and
shall be binding upon and inure to the benefit of Tenant, its legal
representatives, successors, and, to the extent assignment may be approved by
Landlord hereunder, Tenant's assigns. Where appropriate the pronouns of any
gender shall include the other gender, and either the singular or the plural
shall include the other.
14.4 Rights and Remedies Cumulative. Except as otherwise provided herein, all
rights and remedies of Landlord and Tenant under this Lease shall be cumulative
and none shall exclude any other rights or remedies allowed by law.
59
14.5 Governing Law. This Lease shall in all respects be governed by, and
construed in accordance with, the laws of the State in which the Project is
located, including all matters of construction, validity and performance.
14.6 Rules of Construction. The terms and provisions of this Lease shall not be
construed against or in favor of a party hereto merely because such party is the
"Landlord" or the "Tenant" hereunder or such party or its counsel is the
draftsman of this Lease.
14.7 Authority and Qualification. Tenant warrants that all consents or approvals
required of third parties (including but not limited to its Board of Directors)
for the execution, delivery and performance of this Lease have been obtained and
that Tenant has the right and authority to enter into and perform its covenants
contained in this Lease. Landlord warrants that all consent or approvals
required of third parties (including but not limited to its Board of Trustees)
for the execution, delivery and performance of this Lease have been obtained and
that Landlord has the right and authority to enter into and perform its
covenants contained in this Lease. Landlord and Tenant each also represents and
warrants that it is lawfully doing business in the state in which the Projects
are located.
14.8 Severability. 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 provision
to persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each provision of this Lease
shall be valid and shall be enforceable to the extent permitted by law.
14.9 Quiet Enjoyment. Landlord covenants that Tenant shall and may peacefully
and quietly have, hold and enjoy the Leased Premises, subject to the other terms
hereof; provided that Tenant pays the Rent and other sums herein recited to be
paid by Tenant and performs all of Tenant's covenants and agreements herein
contained. It is understood and agreed that subject to the terms of Section 8.2
above, this covenant and any and all other covenants of Landlord contained in
this Lease shall be binding upon Landlord and its successors only with respect
to breaches occurring during the ownership of Landlord's interest hereunder.
14.10 Limitation of Personal Liability. Tenant specifically agrees to look
solely to Landlord's interest in the Project and the rent and other income
derived therefrom after the date execution is levied for the recovery of any
monetary judgment against Landlord, it being agreed that neither Landlord nor,
in any event, its partners [direct and indirect], shareholders, directors,
employees, representatives and officers shall ever be personally liable for any
such judgment or for any other liability or obligation of Landlord under this
Lease beyond such interest in the Project. The provision contained in the
foregoing sentence is not intended to, and shall not, limit any right that
Tenant might otherwise have to obtain injunctive relief against Landlord or
Landlord's successors in interest or for offset or to prosecute any suit or
action in connection with enforcement of rights hereunder or arising herefrom or
collection of amounts which may become owing or payable under or on account of
insurance maintained by Landlord.
14.11 Memorandum of Lease. Upon the written request of Tenant, Landlord and
Tenant shall enter into a short form of this Lease for the purpose of recording
the same, and shall, at Tenant's expense, record the same.
60
14.12 Consents. Except where a party is specifically granted herein the right to
approve or consent to a matter in its sole and absolute discretion, whenever in
this Lease it is agreed that a party shall have the right to approve or consent
to any matter, said party shall not unreasonably withhold, condition or delay
its consent or approval.
14.13 Time of the Essence. Time is of the essence in this Lease.
14.14 Amendments. This Lease may not be altered, changed or amended, except by
an instrument in writing signed by Landlord and Tenant.
14.15 Entirety. This Lease embodies the entire agreement between Landlord and
Tenant relative to the subject matter of this Lease and all summaries,
proposals, letters and agreements with respect to the subject matter of this
Lease that were entered into prior to the date of this Lease shall be of no
further force and effect after the date hereof.
14.16 References. All references in this Lease to days shall refer to calendar
days unless specifically provided to the contrary.
14.17 Counterpart Execution. This Lease may be executed in any number of
counterparts, each of which shall be an original, but such counterparts together
shall constitute one and the same instrument.
14.18 No Partnership. Nothing in this Lease creates any relationship between the
parties other than that of landlord and tenant and nothing in this Lease,
whether the computation of rentals or otherwise, constitutes the Landlord a
partner of the Tenant or a joint venturer or member of a common enterprise with
the Tenant.
14.19 Captions. The captions and headings used in this Lease are for convenience
and reference only and in no way add to or detract from the interpretation of
the provisions of this Lease.
14.20 Required Radon Notice. Tenant is hereby advised that radon is a naturally
occurring radioactive gas that, when it has accumulated in a building in
sufficient quantities, may present health risks to persons who are exposed to it
over time. Levels of radon that exceed federal and state guidelines have been
found in buildings in Florida. Additional information regarding radon and radon
testing may be obtained from your county public health unit. The foregoing
disclosure is provided to comply with Florida law, is for informational purposes
only and does not create any contingency or any representation, warranty or
obligation of Landlord.
14.21 Changes to Project by Landlord. Landlord shall have the right at any time,
without the same constituting an actual or constructive eviction and without
incurring liability to Tenant therefor, to make reasonable changes to the
arrangement or location of entrances or passageways, doors and doorways,
corridors, elevators, stairs, and bathrooms in the Common Areas of any Project
so long as access to the Leased Premises remains comparable to or better than
the access to the Leased Premises available on the Commencement Date, and so
long as Tenant's exterior signage (if any) is not adversely affected. Landlord
shall have the right to close, from time to time, the Common Areas and other
portions of the Project for such temporary periods as Landlord deems legally
necessary and sufficient to evidence Landlord's ownership
61
and control thereof and to prevent any claim of adverse possession by, or any
implied or actual dedication to, the public or any party other than Landlord.
14.22 Storage Space. To the extent that any portion of the Leased Premises
consists of storage space in or about the Project, Tenant shall use the storage
space for storage of files, records, and other personal property only and for no
other purpose. Tenant shall not store any food (other than canned items) or
perishable goods, flammable materials (other than paper, cardboard, or normal
office supplies), explosives, or any other inherently dangerous material in the
storage space. Except for elevator service to the floor on which the storage
space is located and lighting for reasonable visibility in the storage space,
Tenant acknowledges and agrees that there shall be no other services whatsoever
provided to the storage space. Tenant agrees and understands that no bailment,
deposit of goods for safekeeping, warehouse receipt, xxxx of lading, or other
document of title for the property stored by Tenant is intended or created
hereby and Landlord is not engaged in the business of storing goods for hire or
in the warehouse business.
14.23 WAIVER OF JURY TRIAL. LANDLORD AND TENANT EACH HEREBY WAIVES ITS RIGHT TO
A JURY TRIAL OF ANY ISSUE OR CONTROVERSY ARISING UNDER THIS LEASE.
14.24 Confidential Information. If Landlord is a public company, a copy of this
Lease may be filed by Landlord with the Securities and Exchange Commission
("SEC") to comply with SEC requirements. Furthermore, Landlord and Tenant
acknowledge that either party may be required to make public disclosure of
material facts concerning this Lease from time to time in order to satisfy the
requirements of applicable securities or banking laws. Other than such
disclosure that may be required to comply with applicable laws, the parties
agree to treat as confidential and to use reasonable efforts to prevent the
inadvertent disclosure of proprietary information of either party delivered to
the other pursuant to or in furtherance of the purposes of this Lease; provided,
however, that nothing herein shall be deemed to preclude or impair the ability
of either party to deliver any such information to its attorneys, accountants,
lenders, investors and other such interested parties.
62
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
date aforesaid.
LANDLORD:
Witness: [________________________]
By:
------------------------------ ----------------------------------
Name: Name:
--------------------------------
Title:
-------------------------------
TENANT:
BANK OF AMERICA, N.A.,
a national banking association
By:
----------------------------------
Name:
Title:
Attest:
By:
----------------------------------
Name:
Title:
63
EXHIBIT A
[TO FORM OF SEPARATE LEASE]
LEASED PREMISES, BUILDING NRA, LEASED PREMISES NRA, AND TENANT
OCCUPANCY PERCENTAGE AND ANNUAL BASIC RENT FACTOR
EXHIBIT B
[TO FORM OF SEPARATE LEASE]
CONFIDENTIALITY AGREEMENT
1. Definition. For the purposes of this Agreement, "Confidential
Information" shall mean any information which
("Owner") in good faith believes
---------------------------------------------
in some material part, alone or in combination with other information (1)
provides Owner with an economic value from its disclosure or use, and (2) is the
subject of efforts that are reasonable under the circumstances to maintain its
secrecy.
2. Restrictions on Disclosure of Confidential Information to Qualified
Persons. All information exchanged between Owner, Bank of America, N.A.
("Tenant"), and ("Auditor"), with respect to operating
-----------------------
expense and tax pass-throughs (collectively, "CAM Charges") assessed against
Tenant, in connection with Tenant's lease of space in that certain building
located at , ("Building") shall
-------------------------------------- --------
be deemed Confidential Information for the purposes of this Agreement.
3. Qualified Persons. "Qualified Person" includes employees of Auditor and
Tenant, and any outside law firms or accounting firms representing Auditor or
Tenant and their support personnel (including paralegals, photocopy operators,
and any independent contractors hired by any such party to make photocopies of
documents containing Confidential Information) and the principals and agents for
those parties.
4. Maintenance of Confidential Information. All documents or other
materials containing Confidential Information shall be maintained at all times
in the custody of Auditor and shall be labeled and secured in a manner designed
to prevent any disclosure to persons who are not Qualified Persons under this
Agreement. Auditor agrees to exercise reasonable diligence to insure that
Qualified Persons to whom the Confidential Information is disclosed maintain its
confidentiality.
5. Disclosure of Confidential Information. Auditor acknowledges that
Confidential Information shall not be used or disclosed (other than to Qualified
Persons) for any purpose without the prior consent of Owner, unless required or
compelled by judicial process. If Confidential Information is provided to
non-Qualified Persons, Auditor acknowledges that Owner shall be entitled to a
temporary and permanent injunction to prevent the disclosure of such
Confidential Information. In addition, Owner shall be entitled to a mandatory
injunction requiring the return of all Confidential Information from any person
in possession of Confidential Information.
6. No Solicitation. Except for Tenant and other existing clients of
Auditor, Auditor agrees that it shall not solicit business from any of the other
tenants in the Building, nor shall it request that Tenant so solicit other
tenants on Auditor's behalf, with respect to the review or analysis of CAM
Charges assessed any of them by Owner.
7. Attorney's Fees. If any action is instituted to enforce or construe this
Agreement, the prevailing party shall be entitled to recover its reasonable
attorneys' fees and all costs at all levels, including appeals.
8. Miscellaneous. This Agreement shall be subject to and construed in
accordance with the laws of the State in which the Building is located. If any
provision of this Agreement is held or rendered illegal or unenforceable, it
shall be considered separate and severable from this Agreement and the remaining
provisions of this Agreement shall remain in force and bind the parties as
though the illegal or unenforceable provision had never been included in this
Agreement. This Agreement sets forth the entire agreement between Owner and
Auditor and there are no other agreements or understandings between them. This
Agreement may not be modified except by an instrument in writing executed by
Owner and Auditor. This Agreement may be executed in counterparts, each of which
counterparts shall constitute an original and all of which together shall
constitute one and the same instrument. This Agreement may be executed by
facsimile signature which shall, for all purposes, serve as an original executed
counterpart of this Agreement upon delivery of an executed copy hereof by
facsimile.
9. Consideration. Auditor acknowledges that it has received sufficient and
adequate consideration from Owner in exchange for the obligations of Auditor
hereunder. Said consideration including, but not limited to, Owner's agreement
to provide reasonable access to all relevant information relating to the CAM
Charges, and assistance to Auditor with respect to Auditor's review and analysis
of Tenant's CAM Charges. Auditor also acknowledges the receipt of Ten and No/100
Dollars ($10.00) as additional consideration for its obligations hereunder.
Further, Auditor acknowledges that Owner is providing access to Confidential
Information and cooperating with Auditor in reliance upon Auditor fully
performing and honoring its obligations hereunder. Auditor acknowledges that
Owner would not have provided such access or cooperation without Auditor
assuming the obligations stated herein.
AUDITOR:
By:
----------------------------------------
Print Name:
--------------------------------
Its:
---------------------------------------
Authorized Signature
Date:
--------------------------------------
OWNER:
By:
----------------------------------------
Print Name:
--------------------------------
Its:
---------------------------------------
Authorized Signature
2
Date:
--------------------------------------
3
EXHIBIT C
[TO FORM OF SEPARATE LEASE]
SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE AGREEMENT
This Instrument prepared by:
----------------
----------------
----------------
----------------
Record and Return to:
----------------
----------------
----------------
----------------
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (the
"Agreement") made as of this day of , , by BANK OF AMERICA,
---- ---------- -----
N.A., a national banking association ("Tenant") and ("Lender").
---------------
RECITALS:
A. Lender, whose address is
("Lender"), has agreed to make a
-----------------------------------------------
loan (the "Loan") to ("Landlord") in connection with
---------------------------
the real property described on Exhibit A attached hereto and made a part hereof
and the improvements thereon (the "Real Property").
B. Landlord and Tenant have entered into that certain Lease dated as
of , (the "Lease") demising space in the Real Property (the
---------- ------
"Premises").
C. Lender and Tenant have executed this Agreement to subordinate the
Lease to the mortgage securing the Loan, and to provide for non-disturbance and
attornment as hereinafter set forth.
ACCORDINGLY, Tenant hereby confirms as follows:
1. The leasehold estate and all of Tenant's rights thereunder shall at
all times be subject, subordinate and inferior to the Loan, collateral and
security interest securing the Loan and all rights of Lender (and any subsequent
holder(s) of the Loan) thereunder (the "Loan Documents") and to any and all
renewals, modifications and extensions thereof.
2. In the event of foreclosure of the Loan Documents, or upon a sale
of the collateral encumbered thereby pursuant to a sale by Lender (or any
subsequent holder(s) of the Loan), or upon a transfer of the collateral in lieu
of foreclosure, the Lease and Tenant's rights thereunder shall continue and
shall not be terminated or disturbed, except in accordance with the provisions
of the Lease. In consideration of the foregoing, Tenant hereby agrees to attorn
to and accept any such successor owners as landlord under the Lease; provided
that Lender, or any successor owner, shall not be:
2.1 liable for any act or omission of a prior landlord (including
Landlord) [provided, however, that Lender or any other successor
owner will be liable, on a going forward basis from the date
Lender or said successor owner acquires ownership or control of
the property containing the Premises, for compliance with
Landlord's obligations under the Lease; and further provided that
after Lender or said successor owner acquires ownership or
control of the property containing the Premises, Tenant shall
continue to be entitled to exercise any remedy expressly provided
to Tenant in the Lease (including without limitation self-help
and offset rights), regardless of whether such exercise by Tenant
relates to defaults or failures of Landlord, or other conditions,
occurring before Lender or said successor owner acquires
ownership or control of the property containing the Premises]; or
2.2 subject to any offsets that Tenant may have against any prior
landlord (including Landlord) except for offset rights expressly
granted in the Lease, subject to notice requirements as set forth
in the Lease; or
2.3 bound by any rent or additional rent Tenant might have paid to
any prior landlord (including Landlord) more than one (1) month
in advance of the date such rent is due under the Lease; or
2.4 bound by any subsequent agreement or modification of the Lease
made without the written consent of Lender or any subsequent
holder(s) of the Loan, except as expressly permitted by the terms
and conditions of the Lease; or
2.5 liable or responsible for or with respect to the retention,
application or return to Tenant of any security deposit paid to
any prior landlord (including Landlord), whether or not still
held by such prior landlord, except to the extent that Lender or
such other purchaser has actually received for its own account as
landlord all or any part of such security deposit.
3. In the event of any default or breach by Landlord under the Lease
or otherwise that would give Tenant the right, either immediately or after the
lapse of time, to terminate the Lease or to claim partial or total eviction or
to offset against the rental due under the Lease any amount due Tenant as a
result of a breach by Landlord, Tenant will provide to any Notice Party (as
hereinafter defined), at the address shown above (or at such other address as
2
may be provided in writing by such party to Tenant at least ten (10) days prior
to the Commencement Date of such address change), a copy of any notice Tenant
delivers to Landlord with respect to such fact, at the same time Tenant delivers
such written notice to Landlord. Tenant agrees that after such notice, Lender
(or any subsequent holder(s) of the Loan), shall have the same cure period
provided in the Lease to cure such default or breach by Landlord, and during
such time the Lease shall remain in full force and effect. For purposes of this
Certificate, "Notice Party" means Lender or any subsequent holder(s) of the Loan
who notifies Tenant in writing that they wish to receive written notice of such
fact.
4. This Agreement shall be binding upon Lender and Tenant and all
parties claiming through or under such persons or any successors or assigns. The
Agreement shall inure to the benefit of the respective successors and assigns of
Tenant and Lender.
5. Lender and Tenant agree that this Agreement satisfies any
requirements in the Lease relating to the execution or delivery of a
non-disturbance agreement or a subordination and non-disturbance agreement.
{remainder of this page Intentionally Omitted left blank}
TENANT:
Witness: BANK OF AMERICA, N.A.,
a national banking association
By:
------------------------------ ------------------------------
Name: Name:
Title:
3
STATE OF (S)
COUNTY OF (S)
(Insert standard notary provision for applicable State)
LENDER:
---------------------------------
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
Attest:
By:
-----------------------------
Its:
----------------------------
STATE OF (S)
COUNTY OF (S)
(Insert standard notary provision for applicable State)
EXHIBIT "A"
LEGAL DESCRIPTION OF REAL PROPERTY
4
EXHIBIT D
[TO FORM OF SEPARATE LEASE]
ESTOPPEL CERTIFICATE
and
RE: Lease Dated: Effective as of ,
--------- -------
(Include titles and dates of any amendments)
Landlord:
--------------------
Tenant: Bank of America, N.A.
Premises:
Ladies and Gentlemen:
As a tenant under the above-referenced lease (the "Lease"), the undersigned
hereby acknowledges for the benefit of ("Landlord"), the
------------------
current owner of the property containing the Premises, and
and/or its affiliates and subsidiaries ("Lender") which
-----------------------
has or is proposing to make a loan (the "Loan") on the above-referenced real
property, the truth and accuracy of the following statements pertaining to the
Lease to the best of Tenant's knowledge as of the date hereof, but subject to
any matters that a physical inspection of the Leased Premises would disclose:
1. Tenant has accepted, is conducting business in, and is in full
possession of, said Premises, including all improvements, additions
and alterations thereto required to be made by Landlord under the
Lease. The Premises is comprised of square feet of rentable
-------
space, together with other areas more particularly described in the
Lease . Additionally, Tenant is entitled to parking spaces in the
----
parking facilities serving the subject building.
2. Tenant is not in default of its obligations under the Lease, is paying
full rent stipulated therein with no offset, defense or claim of any
kind and Tenant has not assigned, sublet, transferred or hypothecated
its interest under the Lease.
3. Landlord is not presently in default under any of the terms, covenants
or provisions of the Lease, nor has any event occurred which with the
passage of time and/or the giving of notice (if required by the Lease)
would constitute an event of default under the Lease.
4. Landlord has satisfactorily complied with all of the requirements and
conditions precedent to the commencement of the term of the Lease as
specified in said Lease, including, without limitation, completion of
any required tenant improvements. There are no unfunded tenant
obligations of Landlord under the Lease.
5. The initial monthly rent under the Lease is $ .
----------
6. A security deposit in the amount of $ N/A has been paid by Tenant to
Landlord under the Lease.
7. The Lease is for a term expiring on . Tenant has options to
-----------
renew the Lease for renewal terms of years each. Tenant
----- -------
does not have any right to renew, extend or terminate the term of the
Lease except as expressly provided in the Lease.
8. The term of the Lease shall expire on , unless Tenant
---------
exercises its option to renew.
9. Tenant hereby acknowledges (i) the Lease is valid and enforceable in
accordance with its terms against the Tenant, (ii) that there have
been no modifications or amendments to the Lease other than as therein
specifically stated and that the Lease represents the entire agreement
between the Landlord and the Tenant, (iii) that it has no notice of
prior assignments, hypothecation or pledge of rents or of the Lease
except in connection with any prior financing by Landlord being repaid
from the proceeds of the Loan, and (iv) that notice of the assignment
of Landlord's interest in said Lease may be given by mail, at the
Premises, or as otherwise directed herein or in the Lease.
10. The execution and delivery of this Certificate by Tenant does not
require any consent, vote or approval which has not been given or
taken.
11. This Certificate may not be changed, waived or discharged orally, but
only by an instrument in writing.
12. Except as expressly provided in the Lease, there are no purchase
options under the Lease or other agreements giving Tenant any rights
or options to purchase the Premises and/or improvements, or a part
thereof, on which the space covered by the Lease is located.
13. This Certificate shall be binding upon the Tenant and shall inure to
the benefit of the respective successors and assigns of Landlord and
Lender.
2
14. Tenant agrees that Landlord and Lender and their respective successors
and assigns shall also be entitled to rely upon the statements and
agreements contained herein.
15. This Certificate shall not have the effect of modifying any provision
of the Lease.
This Certificate is executed and delivered by the undersigned with the
knowledge that Lender will rely upon the statements and agreements contained
herein in connection with the making of the Loan on the above-referenced real
property and may rely hereon.
DATED: as of , .
------- -----
TENANT:
Witness: BANK OF AMERICA, N.A.,
a national banking association
By:
------------------------------ ------------------------------
Name: Name:
Title:
3
EXHIBIT E
[TO FORM OF SEPARATE LEASE]
FORM OF SUBTENANT NON-DISTURBANCE AGREEMENT
[TO BE ADDED]
Schedule 1
Annual Rent Factor Table
[TO FORM OF SEPARATE LEASE]
-------------------------------------
Increase Annual Basic
Lease Years Factor Rent Factor
-------------------------------------
1-5 -- 8.61
-------------------------------------
6-10 1.015 8.7392
-------------------------------------
11-15 1.015 8.8703
-------------------------------------
16-20 1.015 9.0033
-------------------------------------
21-25 1.110 9.9937
-------------------------------------
26-30 1.050 10.4934
-------------------------------------
31-35 1.050 11.0181
-------------------------------------
36-40 1.050 11.5690
-------------------------------------
41-45 1.050 12.1474
-------------------------------------
46-50 1.050 12.7548
-------------------------------------
Schedule 2
[TO FORM OF SEPARATE LEASE]
Description of Environmental Information
Schedule 3
[TO FORM OF SEPARATE LEASE]
Description of Tenant's Art
EXHIBIT "H" TO MASTER LEASE
FORM OF CONTRACTION ASSIGNMENT
Property Name:
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE ("Assignment"), is made as of the
day of , 200 , by BANK OF AMERICA, N.A., ("Assignor"), and
----- ---------- -
[__________________________________], a [________________________],
("Assignee").
RECITALS
A. Assignor is the holder of the tenant's interest under that certain lease
by and between [_____________________], as Landlord, and Assignor, as Tenant
dated (the "Lease") for a portion of the property located at
----------
and more particularly described in Exhibit "A"
----------------------------
attached hereto.
B. Assignor desires to assign, transfer, sell and convey to Assignee, its
leasehold interest in the Lease and Assignee desires to accept such assignment
and assume all of Assignor's covenants and obligations under the Lease arising,
accruing or to be performed from and after the date hereof.
AGREEMENT
NOW THEREFORE, for and in consideration of the foregoing, and other good
and valuable consideration and the agreements set forth herein, Assignor and
Assignee agree as follows:
1. Assignment. Assignor hereby assigns, transfers, sells and conveys to
Assignee, its successors and assigns, all of Assignor's right, title and
interest as tenant in and to the Lease.
2. Assumption. Assignee, for itself, its successors and assigns, hereby
assumes and agrees to perform, undertake and be responsible for any and all
covenants, agreements, obligations, duties and responsibilities and liabilities
of Assignor under the Lease, arising, accruing or to be performed from and after
the date hereof.
3. Indemnity by Assignor. Assignor agrees to indemnify, defend and hold
Assignee harmless from any claim, liability, cost or expense (including without
limitation reasonable attorney's fees and costs) arising out of any obligation
or liability under the Lease that was to be performed by Assignor or that
accrued or became due by Assignor on or before the date hereof.
4. Binding Effect. This Assignment shall be binding upon and shall inure to
the benefit of Assignor and Assignee and their respective successors and
assigns.
IN WITNESS WHEREOF, the Assignor and Assignee have caused this Assignment
to be properly executed as of the day and year first above written.
BANK OF AMERICA, N.A.
By:
-----------------------------------
Name:
Title:
[_________________________]
a [_______________________]
By:
-----------------------------
Name:
Title:
2
CONSENT OF LANDLORD
[If required under "Separate Lease"]
For good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, and hereby intending to be legally bound hereby, the
undersigned [__________________________], being the holder of the Landlord's
interest in, to and under the within described Lease, hereby consents to the
within Assignment and Assumption of Lease, and releases Assignor of and from any
liabilities or obligations under the said Lease first arising, accruing or to be
performed from and after the date hereof.
[____________________________________]
--------------------------------------
--------------------------------------
STATE OF
-------------
COUNTY OF
------------------
The foregoing instrument was acknowledged before me this day of
----
, 2003, by as Landlord under that
------------- ----------------------------
certain Lease dated and that he or she has personally
-----------------------
appeared before me and is personally known to me or presented
as identification.
----------------------------
Print Name:
--------------------
Notary Public State and
Commission Number:
-------------
My Commission Expires:
---------
3
STATE OF
--------------------
COUNTY OF
-------------------
The foregoing instrument was acknowledged before me this day of
----
, 2003, by as [_______] of
---------- ----------------------- -----------------
Bank of America, N.A., on behalf of said association. He or she has personally
appeared before me and is personally known to me or presented
as identification.
-----------------------------
Print Name:
--------------------
Notary Public State and
Commission Number:
-------------
My Commission Expires:
---------
4
STATE OF
--------------------
COUNTY OF
-------------------
The foregoing instrument was acknowledged before me this day of
----
, 2003, by as
------------- ----------------------------- ---------------------
of , a He or she has personally
-------------------- ---------------------
appeared before me and is personally known to me or presented
as identification.
---------------------------
Print Name:
--------------------
Notary Public State and
Commission Number:
-------------
My Commission Expires:
---------
5
EXHIBIT I TO MASTER LEASE
FORM OF CONTRACTION SUBLEASE
[TO BE ADDED]
EXHIBIT J TO MASTER LEASE
FORM OF LETTER OF CREDIT
OUR CREDIT NO. ISSUE DATE EXPIRY DATE LETTER OF
CREDIT AMOUNT
DECEMBER 31, 20 $3,000,000.00 USD
-------------- --------------- --
BENEFICIARY: APPLICANT:
NAME: BANK OF AMERICA, N.A. NAME:
ADDRESS: ADDRESS:
ATTN:
DEAR BENEFICIARY:
WE HEREBY ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT IN YOUR FAVOR, AS
BENEFICIARY, IN THE LETTER OF CREDIT AMOUNT SET FORTH ABOVE (AS THE SAME MAY BE
REDUCED FROM TIME TO TIME AS PROVIDED BELOW) WHICH IS AVAILABLE BY PAYMENT
AGAINST THE FOLLOWING DOCUMENTS:
1. THE BENEFICIARY'S DRAFT(S) DRAWN ON US AT SIGHT, DULY ENDORSED ON THE REVERSE
SIDE THEREOF, AND BEARING THE CLAUSE: "DRAWN UNDER [NAME OF ISSUING BANK]
STANDBY LETTER OF CREDIT NUMBER ."
---
2. A TYPEWRITTEN STATEMENT PURPORTEDLY SIGNED BY AN AUTHORIZED REPRESENTATIVE OF
THE BENEFICIARY STATING THEREIN ONE OR THE OTHER OF THE FOLLOWING STATEMENTS:
"AN LANDLORD DEFAULT HAS OCCURRED UNDER THE MASTER LEASE AGREEMENT DATED
, 2003, BETWEEN , AS LANDLORD (THE
---------- --------------------
"LANDLORD"), AND BANK OF AMERICA, N.A., AS TENANT (THE "TENANT"), BY REASON
OF WHICH EVENT OF DEFAULT THE TENANT IS ENTITLED TO IMMEDIATE PAYMENT IN
CASH OF THE AMOUNT OF USD (SUPPLY AMOUNT), WHICH IS THE AMOUNT OF THE SITE
DRAFT THAT
ACCOMPANIES THIS WRITTEN STATEMENT, AND THE UNDERSIGNED IS THEREFORE
ENTITLED TO DEMAND, AND DOES HEREBY DEMAND, PAYMENT OF SUCH AMOUNT UNDER
[NAME OF ISSUING BANK] STANDBY LETTER OF CREDIT NUMBER ."
----
- OR -
"THE UNDERSIGNED HAS BEEN NOTIFIED BY [NAME OF ISSUING BANK] THAT IT HAS
ELECTED NOT TO RENEW ITS LETTER OF CREDIT # AND THE UNDERSIGNED
----------
IS THEREFORE ENTITLED TO DEMAND AND DOES HEREBY DEMAND PAYMENT OF THE FULL
STATED AMOUNT OF SUCH LETTER OF CREDIT."
3. THE ORIGINAL OF THIS LETTER OF CREDIT AND ALL AMENDMENTS, IF ANY, FOR OUR
ENDORSEMENT. (IF YOUR DEMAND REPRESENTS A PARTIAL DRAWING HEREUNDER, WE WILL
ENDORSE THE ORIGINAL CREDIT AND RETURN SAME TO YOU FOR POSSIBLE FUTURE CLAIMS.
IF, HOWEVER, YOUR DEMAND REPRESENTS A FULL DRAWING OR IF SUCH DRAWING IS
PRESENTED ON THE DAY OF THE RELEVANT EXPIRATION DATE HEREOF, WE WILL HOLD THE
ORIGINAL FOR OUR FILES AND REMOVE SAME FROM CIRCULATION.)
THIS LETTER OF CREDIT SHALL EXPIRE JUNE 30, 2004. IT IS A CONDITION OF THIS
LETTER OF CREDIT THAT IT SHALL BE AUTOMATICALLY RENEWED WITHOUT AMENDMENT FOR UP
TO CONSECUTIVE ADDITIONAL PERIODS OF ONE YEAR EACH, THE FIRST SUCH
-----
ADDITIONAL PERIOD TO COMMENCE ON JULY 1, 2004, AND TO EXPIRE JUNE 30, 2003, AND
THE FINAL SUCH ADDITIONAL PERIOD TO COMMENCE ON JULY 1, 20 , AND TO EXPIRE ON
--
JUNE 30, 20 , SUCH DATE OF JUNE 30, 20 , BEING THE FINAL EXPIRATION DATE OF
-- --
THIS LETTER OF CREDIT, UNLESS 30 DAYS PRIOR TO THE DATE OF COMMENCEMENT OF EACH
SUCH RENEWAL PERIOD WE NOTIFY YOU IN WRITING THAT WE ELECT NOT TO RENEW THIS
LETTER OF CREDIT.
WE ENGAGE WITH YOU THAT ALL DOCUMENTS PRESENTED IN COMPLIANCE WITH THE TERMS OF
THIS LETTER OF CREDIT WILL BE DULY HONORED BY US IF DELIVERED TO FIRST UNION
NATIONAL BANK AT ITS OFFICE AT PRIOR TO 3 P.M. ON OR BEFORE
-----------------
THE EXPIRATION DATE HEREOF.
EXCEPT SO FAR AS OTHERWISE EXPRESSLY STATED HEREIN THIS LETTER OF CREDIT IS
SUBJECT TO THE "UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS: (1993
REVISION), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 500".
ALL INQUIRIES REGARDING THIS CREDIT SHOULD BE DIRECTED TO US AT OUR PHONE NUMBER
(___) .
-------------
AUTHORIZED SIGNATURE
Schedule 1 To Master Lease
Annual Rent Factor Table
-------------------------------------
Increase Annual Basic
Lease Years Factor Rent Factor
-------------------------------------
1-5 -- 8.61
-------------------------------------
6-10 1.015 8.7392
-------------------------------------
11-15 1.015 8.8703
-------------------------------------
16-20 1.015 9.0033
-------------------------------------
21-25 1.110 9.9937
-------------------------------------
26-30 1.050 10.4934
-------------------------------------
31-35 1.050 11.0181
-------------------------------------
36-40 1.050 11.5690
-------------------------------------
41-45 1.050 12.1474
-------------------------------------
46-50 1.050 12.7548
-------------------------------------
Schedule 2 To Master Lease
[INTENTIONALLY OMITTED.]
SCHEDULE 3 TO MASTER LEASE
DESCRIPTION OF ENVIRONMENTAL INFORMATION
As defined in the Lease, "Environmental Information" shall mean and include
the following Phase I Environmental Site Assessments, together with all
analytical results, tables, appendices, supplements and addenda referenced
therein and relating thereto, and also including any and all follow-on Phase II
and other investigations and reports actually performed in connection with the
enumerated Environmental Site Assessments:
1. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May 2003
for the properties located at 000 Xxxx Xxxxxx Xxxxxx and Broadway & Wishkaw in
Aberdeen, Washington.
2. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May 2003
for the property located at 000 0xx Xxxxxx Xxxxxxxxx, Xxxxxxxxxxx, Xxx Xxxxxx.
3. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May 2003
for the property located at 0000 Xxxxx Xxxxxxxxx Xxxxxxxxx, Xx. Xxxxx, Xxxxxxxx.
4. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May 2003
for the property located at 000 Xxxx Xxxx Xxxxxx, Xxxxxxx, Xxxxx.
5. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May 2003
for the property located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx, Xxxxx.
6. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May 2003
for the property located at 000 Xxx Xxxxx Xxxxxxxx, Florissant, Missouri.
7. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May 2003
for the property located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx, Xxxxxxxxxx.
8. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May 2003
for the property located at 0000 Xxxx Xxxxxxx Xxxxx, Xxxxx, Xxxxxxxx.
9. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May 2003
for the property located at 000 Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx.
10. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May
2003 for the property located at 0000 Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxxxx, New
Mexico.
11. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May
2003 for the property located at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx.
12. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May
2003 for the property located at 0000 0xx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx.
13. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May
2003 for the property located at 0000 Xxxxxxx Xxxxxx, Xxxx Xxxxxxxxx, Xxxxxxxx.
14. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May
2003 for the properties located at 1101 and 0000 Xxxxx Xxxxx Xxxx, Xxxxxxxxxx,
Xxxxx.
15. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May
2003 for the property located at 0000 Xxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx.
16. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 0 Xxxx Xxxxxx Xxx, Xxxxxxx, Xxxxxxxx.
17. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the properties located at 0000 Xxxxxxx Xxxxxx, 999 Spotford, 512
Xxxxxx, and 0000 Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxx.
18. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the properties located at 204 and 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxx.
19. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 000 Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx, Xxxxx
Xxxxxxxx.
20. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the properties located at Xxx Xxxxxx Xxxxxx, 000 Xxxxxx Xxxxxx and 000
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx.
21. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the properties located at 000 Xxxx Xxxxxx Xxxxxx and 000 Xxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxx.
22. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx.
23. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the properties located at 000 Xxxxx Xxxxxxxxxx and 000 Xxxxx Xxxx
Xxxxxx, Xxxxxxx Xxxx, Xxxxx.
24. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the properties located at 000 Xxxx Xxxxxxxxx Xxxxxx and 000 Xxxx
Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx.
25. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxx.
26. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 0000/0000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx.
27. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxx.
28. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 0000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx.
29. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx.
30. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May
2003 for the properties located at 222 and 000 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxx.
31. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 0000 Xxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxx.
32. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May
2003 for the property located at 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxx.
33. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 0000 Xxxxxx, Xxxxxxx, Xxxxx.
34. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 000 Xxxx 0xx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxx.
35. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxx.
36. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the properties located at 000 Xxxxx Xxxxxxxxx Xxxxxx and 4th and
Jefferson Avenues, Mount Pleasant, Texas.
37. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May
2003 for the property located at 000 Xxxx Xxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxx.
38. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May
2003 for the property located at 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx.
39. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 0000 Xxxxx Xxx Xxxxxxxxxx, Xxxxxx Xxxx,
Xxxxxxxx.
40. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 000 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxx.
41. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May
2003 for the property located at 0000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx.
42. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 000 Xxxx Xxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx.
43. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May
2003 for the property located at 000 Xxxx Xxxx Xxxxxx, Xxxxxxxxxxxxxxx,
Xxxxxxxx.
44. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May
2003 for the property located at 000 Xxxxx Xxxxxx, Xxxxx d'Alene, Idaho.
45. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxx.
46. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 000 X Xxxxxx, Xxxxxx, Xxxxxxxxxx.
47. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May
2003 for the property located at 000 Xxxx 0xx Xxxxxx, Xxxxx, Xxxxxxxx.
48. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 000 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx.
49. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 00 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxx.
50. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May
2003 for the property located at 00000 Xxxxxxxxxx 00 Xxxxx, Xxxxxxx, Xxxxx.
51. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxx, Xxxxxxxx.
52. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 0000 Xxxx Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx.
53. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 000 Xxxx Xxxxx Xxxxxx, Xxxxx, Xxxxxxxxxx.
54. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May
2003 for the property located at 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxx.
55. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 000 Xxxx Xxxxx Xxxxxx, Xxxx Xxxxxxx,
Xxxxxxxxxx.
56. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May
2003 for the property located at 000 XxXxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx.
57. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxx.
58. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 000 Xxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxx.
59. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May
2003 for the property located at 0000 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxx.
60. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 0000 Xxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxx.
61. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx.
62. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May
2003 for the property located at 0000 Xxxxxxxxxx Xxx XX, Xxxxxxx, Xxxxxxxxxx.
63. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May
2003 for the property located at 000 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx.
64. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 000 Xxxxx 0xx Xxxxxx, Xxxxxx, Xxxxxxxxxx.
65. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the properties located at 501-503, 505-507, 509, 511, 513, 514, 515,
517-519, 000-000 Xxxxxx Xxxxxx, Xxxx, Xxxxx.
66. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated June
2003 for the property located at 000 Xxxx Xxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx.
67. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May
2003 for the property located at 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxx.
68. Phase I Environmental Site Assessment prepared by ENTRIX, Inc. dated May
2003 for the property located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxx, Xxxxxxx.
69. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxx Xxxxxxx Xxxx,
Xxxxxxx, Xxxxxxx.
70. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 00 Xxxx Xxxxxxxxx Xxxx,
Xxxxxxx, Arizona.
71. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 00 Xxxx Xxxx Xxxxxx, Xxxx,
Arizona.
72. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxxxxxx Xxxxxx, Xxxx
Xxxxx, Xxxxxxxxxx.
73. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxxxx Xxxxxx, AKA 0000
X Xxxxxx, Xxxxxxxx, Xxxxxxxxxx.
74. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 Xxxxx Xxxxxxxxx
Xxxxxxxxx, Xx Xxxxxxx, Xxxxxxxxxx.
75. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx, Xxxxxxxxxx.
76. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 Xxxxx Xxxxx Xxxxxxxxx,
Xxxxxxxx, Xxxxxxxxxx.
77. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxx.
78. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the properties located at 0000 Xxxxxx Xxxxxx and
000-000 Xxxxx Xxxxxx, Xx Xxxxx, Xxxxxxxxxx.
79. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 Xxxx Xxxxxxxx Xxxxxxxxx,
Xxxxxxxx, Xxxxxxxxxx.
80. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxxx Xxxxxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx.
81. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxx Xxxxxxxx Xxxxxxx,
Xxxxxxx, Xxxxxxxxxx.
82. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxxxxxxxx Xxxxxxxxx,
Xxxxx Xxxxxxxxx, Xxxxxxxxxx.
83. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxxx Xxxxxxx Xxxxxx,
Xxx Xxxxxxx, Xxxxxxxxxx.
84. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxx.
85. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 10300-10306 Xxxxxxxxx
Boulevard, Mission Hills, California.
86. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx.
87. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 Xxxx Xxxxxx Xxxxxx, Xxxx
Xxxxx, Xxxxxxxxxx.
88. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxx Xxxx, Xxxxxxx.
89. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxxxxx Xxxx Xxxxx,
Xxxxx, Xxxxxxx.
90. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 Xxxx Xxxxxxx 00,
Xxxxxxxx, Xxxxxxx.
91. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxxx Xxxxxxxxx,
Xxxxxxxxx, Xxxxxxx.
92. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 Xxxxx Xxxxxxxx Xxxxxxxxx,
Xxxxxx, Xxxxxxx.
93. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 0xx Xxxxxx Xxxx,
Xxxxxxxx, Xxxxxxx.
94. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxx Xx Xxx Xxxxxxxxx,
Xxxxxxxxxx, Xxxxxxx.
95. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 Xxxx Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxx.
96. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxx.
97. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxxxxxxx Xxxxxxxxx,
Xxxxxxxxxxxx, Xxxxxxx.
98. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxxx Xxxxxxx Xxxxxxx,
Xxxxxxx Xxxxx, Xxxxxxx.
99. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 00000 Xxxxxxxx Xxxxxxxxx,
Xxxxx, Xxxxxxx.
100. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0 Xxxx 00xx Xxxxxx, Xxxxxxx,
Xxxxxxx.
101. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 00 Xxxxxxxxx 0xx Xxxxxx,
Xxxxx, Xxxxxxx.
102. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 Xxxxx Xxxxxxx Xxxxxxx,
Xxxxxx, Xxxxxxx.
103. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 00000 Xxxxx Xxxxxxxxx, Xxxx
Xxxxxxxxx, Xxxxxxx.
104. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 Xxxxx Xxxxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxx.
105. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxxxxxxxx Xxxxxxxxx
Xxxx, Xxxxxxxxxxxx, Xxxxxxx.
106. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 00000 Xxxxxxxxx 00xx Xxxxxx,
Xxxxx Xxxxx, Xxxxxxx.
107. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 Xxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxx Florida.
108. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 00000 Xxxxxxxx Xxxxxxxxx,
Xxxxx Xxxxx Xxxxx, Xxxxxxx.
109. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx.
110. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxxx Xxxxx Xxxx, Xxxx
Xxxx, Xxxxxxxxxx.
111. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxxx Xxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxx.
112. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxxx.
113. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 Xxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxxxxx.
114. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxx.
115. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxx Xxxx Xxxxxxxxx,
Xxxxxxxxxx, Xxxxxxxxxx.
116. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxxxxxxx Xxxxxx, Xxxxx,
Xxxxxxxxxx.
117. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 Xxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxxx.
118. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxxx Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxx.
119. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000-000 Xxxxxxxxx Xxx,
Xxxxxxxx Xxxx, Xxxxxxxxxx.
120. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 Xxxx Xxxxxx Xxxx, Xxxxx
Xxxxx, Xxxxxxxxxx.
121. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 Xxxxx X Xxxxxx, Xxx
Xxxxxxxxxx, Xxxxxxxxxx.
122. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 Xxxx Xxxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxxx.
123. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxxx Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxx.
124. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxxxxxx, Xxxxxxxxxx,
Xxxxxxxxxx.
125. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 Xxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxx.
126. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxx.
127. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 Xxxxx Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxx.
128. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxxx.
129. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 Xxxx Xxxxxx, Xxx Xxxxx,
Xxxxxxxxxx.
130. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 Xxxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx.
131. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 Xxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxx.
132. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0000 XxxXxxxxx Xxxxxxxxx,
Xxxxxxx Xxxxx, Xxxxxxxxxx.
133. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 Xxxxx Xxxxxx, Xxxxx
Xxxxxxx, Xxxxxxxxxx.
134. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 Xxxxx Xxxx Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxx.
135. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 Xxxx Xxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxx.
136. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 Xxxx Xxxxxxxx Xxxxxxxxx,
Xxxxxxxx, Xxxxxxxxxx.
137. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx.
138. Phase I Environmental Site Assessment prepared by KTR Newmark Consultants
LLC dated June 6, 2003 for the property located at 0 Xxxxx Xxx Xxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx.
Schedule 4 To Master Lease
Description of Tenant's Art
Schedule 5 To Master Lease
Renewal Term Annual Basic Rent Illustration
The following illustrates the calculation and allocation of Annual Basic Rent at
renewal under two different Fair Market Rental Value ("FMRV") assumption sets.
TABLE ONE - BASE ASSUMPTIONS:
--------------------------------------------------------------------------
A B C D
--------------------------------------------------------------------------
Total Renewal
Non-FMRV Premises NRA Annual Basic Rent
Project Renewal Space FMRV Space (A + B) Factor
--------------------------------------------------------------------------
Project A 85,000 RSF 15,000 RSF 100,000 RSF $9.00/RSF
--------------------------------------------------------------------------
Project B 25,000 RSF None 25,000 RSF $9.00/RSF
--------------------------------------------------------------------------
Project C 40,000 RSF 10,000 RSF 50,000 RSF $9.00/RSF
--------------------------------------------------------------------------
Project D 75,000 RSF None 75,000 RSF $9.00/RSF
--------------------------------------------------------------------------
Illustration One
Aggregate FMRV for Non-FMRV Renewal Space is greater than the Maximum
Renewal Term Basic Rent for the Non-FMRV Renewal Space.
Assume the Base Assumptions in Table One above which show that (i) the Renewal
Premises includes space at four Projects, (ii) the Renewal Premises at two of
the Projects includes FMRV Space (iii) the Annual Basic Rent Factor for the
applicable Renewal Term as set forth on Schedule 1 to the Lease is $9.00 per
RSF. Also assume the Fair Market Rental Value (determined either by agreement of
the parties or by appraisal as provided in the Lease) for each of the Projects
is as noted below:
----------------------
Project FMRV
----------------------
Project A $15.00/RSF
----------------------
Project B $10.00/RSF
----------------------
Project C $ 6.00/RSF
----------------------
Project D $ 8.00/RSF
----------------------
Step 1 - Calculate the Aggregate FMRV Rent for the Non-FMRV Renewal Space:
---------------------------------------------------------------------
Non-FMRV FMRV Rent
Project Renewal Space FMRV (A x B)
---------------------------------------------------------------------
Project A 85,000 RSF X $15.00/RSF = $1,275,000
---------------------------------------------------------------------
Project B 25,000 RSF X $10.00/RSF = $ 250,000
---------------------------------------------------------------------
Project C 40,000 RSF X $ 6.00/RSF = $ 240,000
---------------------------------------------------------------------
Project D 75,000 RSF X $ 8.00/RSF = $ 600,000
---------------------------------------------------------------------
Aggregate FMRV Rent $2,365,000
---------------------------------------------------------------------
Step 2 - Calculate the Maximum Renewal Term Basic Rent for the Non-FMRV
Renewal Space:
---------------------------------------------------------------------------
Non-FMRV Annual Basic Maximum Renewal
Project Renewal Space Rent Factor Term Basic Rent
---------------------------------------------------------------------------
Project A 85,000 RSF X $9.00/RSF = $ 765,000
---------------------------------------------------------------------------
Project B 25,000 RSF X $9.00/RSF = $ 225,000
---------------------------------------------------------------------------
Project C 40,000 RSF X $9.00/RSF = $ 360,000
---------------------------------------------------------------------------
Project D 75,000 RSF X $9.00/RSF = $ 675,000
---------------------------------------------------------------------------
Maximum Renewal
Term Basic Rent $2,025,000
---------------------------------------------------------------------------
Step 3 - Allocate Maximum Renewal Term Basic Rent for the Renewal Premises
amongst the Projects
In this illustration, the Aggregate FMRV Rent for the Non-FMRV Renewal
Space exceeds the Maximum Renewal Term Basic Rent for the Non-FMRV Renewal
Space, requiring a special allocation of the total Maximum Renewal Term
Basic Rent for the Non-FMRV Renewal Space amongst the Projects according to
FMRV.
This allocation is accomplished by reducing the FMRV proportionately for
each Project containing Non-FMRV Renewal Space by multiplying it by a
fraction, expressed as a decimal, the numerator of which is the Maximum
Renewal Term Basic Rent (i.e., $2,025,000.00) and the denominator of which
is the Aggregate FMRV Rent (i.e., $2,365,000.00):
Rent Adjustment Factor = 0.85624 (i.e., $2,025,000.00/$2,365,000.00)
---------------------------------------------------------------------
Non-FMRV Rent Adjustment Adjusted
Project Renewal Space FMRV Rent Factor FMRV Rent
---------------------------------------------------------------------
Project A 85,000 RSF $1,275,000 0.85624 $1,091,702
---------------------------------------------------------------------
Project B 25,000 RSF $ 250,000 0.85624 $ 214,059
---------------------------------------------------------------------
Project C 40,000 RSF $ 240,000 0.85624 $ 205,497
---------------------------------------------------------------------
Project D 75,000 RSF $ 600,000 0.85624 $ 513,742
---------------------------------------------------------------------
TOTAL $2,365,000 $2,025,000
---------------------------------------------------------------------
Step 4 - Calculate Annual Basic Rent for Renewal Premises (FMRV Space only)
------------------------------------------------------------
FMRV Rent for
Renewal Premises Renewal Premises
Project FMRV Space FMRV FMRV Space only
------------------------------------------------------------
Project A 15,000 RSF $15.00/RSF $225,000
------------------------------------------------------------
Project B $10.00/RSF 0
------------------------------------------------------------
Project C 10,000 RSF $ 6.00/RSF $ 60,000
------------------------------------------------------------
Project D $ 8.00/RSF 0
------------------------------------------------------------
TOTAL $285,000
------------------------------------------------------------
Step 5 - Sum components to determine Annual Basic Rent for all Renewal
Premises
---------------------------------------------------------------------
A B C
---------------------------------------------------------------------
Total Annual Basic
Adjusted FMRV Rent Rent for all
for Non-FMRV FMRV Rent for Renewal Premises
Project Renewal Space FMRV Space only (A + B)
---------------------------------------------------------------------
Project A $1,091,702 $225,000 $1,316,702
---------------------------------------------------------------------
Project B $ 214,059 0 $ 214,059
---------------------------------------------------------------------
Project C $ 205,497 $ 60,000 $ 265,497
---------------------------------------------------------------------
Project D $ 513,742 0 $ 513,742
---------------------------------------------------------------------
TOTAL $2,025,000 $285,000 $2,310,000
---------------------------------------------------------------------
Illustration Two
Aggregate FMRV Rent for Non-FMRV Renewal Space is less than or equal to the
Maximum Renewal Term Basic Rent for the Non-FMRV Renewal Space.
Assume the Base Assumptions shown in Table One above which show that (i) the
Renewal Premises includes space at four Projects, (ii) the Renewal Premises at
two of the Projects includes FMRV Space (iii) the Annual Basic Rent Factor for
the applicable Renewal Term as set forth on Schedule 1 to the Lease is $9.00 per
RSF. Also assume the Fair Market Rental Value (determined either by agreement of
the parties or by appraisal as provided in the Lease) for each of the Projects
is as noted below:
----------------------
Project FMRV
----------------------
Project A $10.00/RSF
----------------------
Project B $ 7.00/RSF
----------------------
Project C $ 6.00/RSF
----------------------
Project D $ 8.00/RSF
----------------------
Step 1 - Calculate the Aggregate FMRV Rent for the Non-FMRV Renewal Space:
---------------------------------------------------------------------
Non-FMRV FMRV Rent
Project Renewal Space FMRV (A x B)
---------------------------------------------------------------------
Project A 85,000 RSF X $10.00/RSF = $ 850,000
---------------------------------------------------------------------
Project B 25,000 RSF X $ 7.00/RSF = $ 175,000
---------------------------------------------------------------------
Project C 40,000 RSF X $ 6.00/RSF = $ 240,000
---------------------------------------------------------------------
Project D 75,000 RSF X $ 8.00/RSF = $ 600,000
---------------------------------------------------------------------
Aggregate FMRV Rent $1,865,000
---------------------------------------------------------------------
Step 2 - Calculate the Maximum Renewal Term Basic Rent for the Non-FMRV
Renewal Space:
------------------------------------------------------------------------
Non-FMRV Annual Basic Maximum Renewal
Project Renewal Space Rent Factor Term Basic Rent
------------------------------------------------------------------------
Project A 85,000 RSF X $9.00/RSF = $ 765,000
------------------------------------------------------------------------
Project B 25,000 RSF X $9.00/RSF = $ 225,000
------------------------------------------------------------------------
Project C 40,000 RSF X $9.00/RSF = $ 360,000
------------------------------------------------------------------------
Project D 75,000 RSF X $9.00/RSF = $ 675,000
------------------------------------------------------------------------
Maximum Renewal $2,025,000
------------------------------------------------------------------------
------------------------------------------------------------------------
Term Basic Rent
------------------------------------------------------------------------
Step 3 - Allocate Maximum Renewal Term Basic Rent for the Renewal Premises
In this illustration, the Aggregate FMRV Rent for the Non-FMRV Renewal
Space is less than the Maximum Renewal Term Basic Rent for the Non-FMRV
Renewal Space. No adjustment to FMRV is necessary.
Step 4 - Calculate Annual Basic Rent for FMRV Space portion of Renewal
Premises
------------------------------------------------------------
FMRV Rent for
Renewal Premises Renewal Premises
Project FMRV Space FMRV FMRV Space
------------------------------------------------------------
Project A 15,000 RSF $10.00/RSF $150,000
------------------------------------------------------------
Project B $ 7.00/RSF 0
------------------------------------------------------------
Project C 10,000 RSF $ 6.00/RSF $ 60,000
------------------------------------------------------------
Project D $ 8.00/RSF 0
------------------------------------------------------------
TOTAL $210,000
------------------------------------------------------------
Step 5 - Sum components to determine Annual Basic Rent for all Renewal
Premises
-----------------------------------------------------------------------
A B C
-----------------------------------------------------------------------
Total Annual Basic
FMRV Rent for Rent for all
FMRV Rent for Non- Renewal Premises Renewal Premises
Project FMRV Renewal Space) FMRV Space (A + B)
-----------------------------------------------------------------------
Project A $ 850,000 $150,000 $1,000,000
-----------------------------------------------------------------------
Project B $ 175,000 0 $ 175,000
-----------------------------------------------------------------------
Project C $ 240,000 $ 60,000 $ 300,000
-----------------------------------------------------------------------
Project D $ 600,000 0 $ 600,000
-----------------------------------------------------------------------
TOTAL $1,865,000 $210,000 $2,075,000
-----------------------------------------------------------------------
