Exhibit 10.16(i)
OFFICE LEASE AGREEMENT
by and between
DUKE-WEEKS REALTY LIMITED PARTNERSHIP,
AN INDIANA LIMITED PARTNERSHIP
("Landlord")
and
INTERACTIVE INTELLIGENCE, INC.,
AN INDIANA CORPORATION
("Tenant")
Date: April 1, 2001
OFFICE LEASE INDEX
ARTICLE 1 - LEASE OF PREMISES.....................................................................................1
SECTION 1.01. BASIC LEASE PROVISIONS AND DEFINITIONS..........................................................1
SECTION 1.02. LEASE OF PREMISES...............................................................................2
ARTICLE 2 - TERM AND POSSESSION...................................................................................2
SECTION 2.01. TERM............................................................................................2
SECTION 2.02. CONSTRUCTION....................................................................................2
SECTION 2.03. TENANT'S ACCEPTANCE OF THE LEASED PREMISES......................................................4
SECTION 2.04. SURRENDER OF THE PREMISES.......................................................................4
SECTION 2.05. HOLDING OVER....................................................................................5
ARTICLE 3 - RENT..................................................................................................5
SECTION 3.01. BASE RENT.......................................................................................5
SECTION 3.02. ANNUAL RENTAL ADJUSTMENT DEFINITIONS............................................................5
SECTION 3.03. PAYMENT OF ADDITIONAL RENT......................................................................7
SECTION 3.04. LATE CHARGES....................................................................................8
ARTICLE 4 - SECURITY DEPOSIT......................................................................................8
ARTICLE 5 - OCCUPANCY AND USE.....................................................................................8
SECTION 5.01. USE.............................................................................................8
SECTION 5.02. COVENANTS OF TENANT REGARDING USE...............................................................8
SECTION 5.03. LANDLORD'S RIGHTS REGARDING USE.................................................................8
ARTICLE 6 - UTILITIES AND OTHER BUILDING SERVICES.................................................................9
SECTION 6.01. SERVICES TO BE PROVIDED.........................................................................9
SECTION 6.02. ADDITIONAL SERVICES.............................................................................9
SECTION 6.03. INTERRUPTION OF SERVICES.......................................................................10
ARTICLE 7 - REPAIRS, MAINTENANCE AND ALTERATIONS.................................................................10
SECTION 7.01. REPAIR AND MAINTENANCE OF BUILDING.............................................................10
SECTION 7.02. REPAIR AND MAINTENANCE OF LEASED PREMISES......................................................10
SECTION 7.03. ALTERATIONS....................................................................................10
SECTION 7.04. TRADE FIXTURES.................................................................................11
ARTICLE 8 - CASUALTY.............................................................................................11
SECTION 8.01. CASUALTY.......................................................................................11
SECTION 8.02. ALL RISK COVERAGE INSURANCE....................................................................11
ARTICLE 9 - LIABILITY INSURANCE..................................................................................12
SECTION 9.01. TENANT'S RESPONSIBILITY........................................................................12
SECTION 9.02. TENANT'S INSURANCE.............................................................................12
SECTION 9.03. LANDLORD'S RESPONSIBILITY......................................................................12
SECTION 9.04. LANDLORD'S INSURANCE...........................................................................12
ARTICLE 10 - EMINENT DOMAIN......................................................................................13
ARTICLE 11 - ASSIGNMENT AND SUBLEASE.............................................................................13
ARTICLE 12 - TRANSFERS BY LANDLORD...............................................................................13
SECTION 12.01. SALE OF THE BUILDING..........................................................................13
SECTION 12.02. SUBORDINATION AND ESTOPPEL CERTIFICATE........................................................13
ARTICLE 13 - DEFAULT AND REMEDY..................................................................................14
SECTION 13.01. DEFAULT.......................................................................................14
SECTION 13.02. REMEDIES......................................................................................14
SECTION 13.03. LANDLORD'S DEFAULT AND TENANT'S REMEDIES......................................................15
SECTION 13.04. LIMITATION OF LANDLORD'S LIABILITY............................................................15
SECTION 13.05. NONWAIVER OF DEFAULTS.........................................................................16
SECTION 13.06. ATTORNEYS' FEES...............................................................................16
ARTICLE 14 - LANDLORD'S RIGHT TO RELOCATE TENANT.................................................................16
[INTENTIONALLY OMITTED].......................................................................................16
ARTICLE 15 - TENANT'S RESPONSIBILITY REGARDING ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES.......................16
SECTION 15.01. ENVIRONMENTAL DEFINITIONS.....................................................................16
SECTION 15.02. COMPLIANCE....................................................................................16
SECTION 15.03. RESTRICTIONS ON TENANT........................................................................16
SECTION 15.04. NOTICES, AFFIDAVITS, ETC......................................................................16
SECTION 15.05. LANDLORD'S RIGHTS.............................................................................17
SECTION 15.06. TENANT'S INDEMNIFICATION......................................................................17
SECTION 15.07. EXISTING CONDITIONS...........................................................................17
SECTION 15.08. LANDLORD'S REPRESENTATIONS....................................................................17
SECTION 15.09. LANDLORD'S INDEMNIFICATION....................................................................17
ARTICLE 16 - MISCELLANEOUS.......................................................................................17
SECTION 16.01. BENEFIT OF LANDLORD AND TENANT................................................................17
SECTION 16.02. GOVERNING LAW.................................................................................17
SECTION 16.03. GUARANTY......................................................................................17
SECTION 16.04. FORCE MAJEURE.................................................................................18
SECTION 16.05. NO REPRESENTATION OR OPTION...................................................................18
SECTION 16.06. INDEMNIFICATION FOR LEASING COMMISSIONS.......................................................18
SECTION 16.07. NOTICES.......................................................................................18
SECTION 16.08. PARTIAL INVALIDITY; COMPLETE AGREEMENT........................................................18
SECTION 16.09. FINANCIAL STATEMENTS..........................................................................18
SECTION 16.10. REPRESENTATIONS AND WARRANTIES................................................................18
SECTION 16.11. SIGNAGE.......................................................................................18
SECTION 16.12. SATELLITE DISHES..............................................................................19
SECTION 16.13. PARKING.......................................................................................20
SECTION 16.14. RELOCATION AND DISCRETIONARY ALLOWANCES.......................................................20
SECTION 16.15. RIGHT OF FIRST OFFER TO PURCHASE THE BUILDINGS................................................20
SECTION 16.16. PHASE I BUILDING EXPANSION OPTION.............................................................21
SECTION 16.17. PHASE II BUILDING EXPANSION OPTION............................................................22
SECTION 16.18. PHASE III BUILDING EXPANSION OPTION...........................................................24
SECTION 16.19. OPTION TO EXTEND..............................................................................25
SECTION 16.20. RIGHT OF FIRST OFFER FOR THE VIFI EXPANSION SPACE.............................................26
SECTION 16.21. NAME CHANGE OF PARK...........................................................................26
SECTION 16.22. INFRASTRUCTURE IMPROVEMENTS...................................................................26
SECTION 16.23. EARLY OCCUPANCY...............................................................................27
EXHIBITS
Exhibit A - Leased Premises
Exhibit B - Tenant Finish Improvements
Exhibit C - Rules and Regulations
OFFICE LEASE
THIS OFFICE LEASE is executed this 1st day of April 2001, by and
between DUKE-WEEKS REALTY LIMITED PARTNERSHIP, an Indiana limited partnership
("Landlord"), and INTERACTIVE INTELLIGENCE, INC., an Indiana corporation
("Tenant").
W I T N E S S E T H:
- - - - - - - - - -
ARTICLE 1 - LEASE OF PREMISES
SECTION 1.01. BASIC LEASE PROVISIONS AND DEFINITIONS.
A. *Leased Premises (shown outlined in red on EXHIBIT A attached hereto):
Suite: ; Floor: ; Building Address: Woodland Corporate Park
("Building"), located on the land identified on EXHIBIT A-1 (the
"Land");
B. **Rentable Area: approximately 180,000 rentable square feet;
Landlord shall use the standards described in the Standard Method for
Xxxxxxxxx Xxxxx Xxxx xx Xxxxxx Xxxxxxxxx, XXX0X00.0-0000, as
promulgated by the Building Owners and Managers Association
International (BOMA), consistently applied, in determining the Rentable
Area and the rentable area of the Building. The Rentable Area shall
include the area within the Leased Premises plus a pro rata portion of
the area covered by the common areas within the Building, as reasonably
determined by Landlord prior to the Occupancy Date, as hereinafter
defined. Landlord's determination of Rentable Area made in good faith
shall presumptively be deemed correct for all purposes hereunder;
provided, however, Tenant shall have the right, at any time prior to
the Commencement Date, to have the Leased Premises and Building
measured by Tenant's architect and, in the event of a disparity of or
dispute to Landlord's measurement, either (a) Landlord and Tenant shall
mutually agree on the Rentable Area of the Leased Premises and the
rentable area of the Building, or (b) Landlord and Tenant shall agree
to have the Leased Premises and Building measured by an independent
architect mutually agreed upon by Landlord and Tenant, in which event
Landlord and Tenant agree to abide by such certified remeasurement. If
the rentable square footage of the Leased Premises/Building, as
measured by said independent architect, is one thousand (1,000) feet or
more smaller than Landlord's determination of the rentable square
footage of the Leased Premises/Building, then the costs of said
independent architect shall be borne by Landlord, otherwise said costs
shall be borne by Tenant. Upon determination of the actual Rentable
Area of the Leased Premises and rentable area of the Building, the
Minimum Annual Rent and all other rents payable by Tenant hereunder
shall be adjusted to reflect the actual square footage.
C. **Building Expense Percentage: 100%;
D. **Minimum Annual Rent:
Years 1 - 5 $2,826,000.00 per year
Years 6 - 10 $3,240,000.00 per year
Years 11 - 15 $3,870,000.00 per year
E. **Monthly Rental Installments:
Months 1 - 60 $235,500.00 per month
Months 61 - 120 $270,000.00 per month
Months 121 - 180 $322,500.00 per month
F.
Term: Fifteen (15) years and zero (0) months;
_______________________
* (to be completed when address is established for the Building)
** (to be adjusted by Landlord to reflect actual square footage after
construction of the Building and the Leased Premises is completed)
G. Target Commencement Date: June 1, 2002
Target Occupancy Date: May 1, 2002;
H. Security Deposit: None;
I. Broker: Duke-Weeks Realty Limited Partnership representing Landlord and
none representing Tenant;
J. Permitted Use: General office purposes including computer and software
test labs; software development labs; training and demonstration rooms
for employees, customers and resellers; software sales; exercise
facility; cafeteria and food service; and uses ancillary to any of the
foregoing;
K. Working Drawings Approval Date: (See EXHIBIT B);
L. Address for payments and notices as follows:
Landlord: Duke-Weeks Realty Limited Partnership
Attn: Property Management
000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
With Rental
Payments to: Duke-Weeks Realty Limited Partnership
X.X. Xxx 00000
Xxxxxxxxxxxx, Xxxxxxx 00000
Tenant: Interactive Intelligence, Inc.
Prior to 0000 Xxxxxx, Xxxxx 000
Commencement Date: Xxxxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxx
After
Commencement Date: Interactive Intelligence, Inc.
***
________________________________
________________________________
M. Guarantor(s): None;
N. Landlord's Share of Operating Expenses: $3.75 per square foot of the
Rentable Area.
SECTION 1.02. LEASE OF PREMISES.
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord under
the terms and conditions herein the Leased Premises.
ARTICLE 2 - TERM AND POSSESSION
SECTION 2.01. TERM.
The term of this Lease (the "Lease Term") shall be the period of time specified
in Item F of the Basic Lease Provisions and shall commence on such date which is
thirty (30) days after Substantial Completion, as defined in Section 2.02.D,
below (the "Commencement Date"). The "Occupancy Date" shall be the date of
Substantial Completion.
SECTION 2.02. CONSTRUCTION.
A. SHELL WORK. The scope of the work for the shell improvements ("Shell Work")
to be performed by Landlord is set forth in the preliminary plans and
specifications, working drawings and written descriptions thereto all of which
are listed on the attached PRELIMINARY EXHIBIT B-1. Landlord will prepare final
plans and specifications and actual working drawings which shall be
substantially similar to PRELIMINARY EXHIBIT B-1 and which, upon completion and
Tenant's approval, shall be substituted and attached hereto as EXHIBIT B-1
("Shell Plans and Specifications"). Landlord shall, at its sole cost and
_______________________
*** To be the address of the Building after completion
expense, construct in a good and workmanlike manner all of the improvements and
supply all work, labor, materials and equipment necessary to complete the Shell
Work in accordance with the Shell Plans and Specifications, which shall include,
without limitation, the complete construction of the Building and all Common
Areas, including the installation of landscaping, parking lots, driveways and
all improvements as shown on the Shell Plans and Specifications for the benefit
of the Leased Premises. Shell Work shall also include all monument and other
signage and infrastructure improvements for Interactive Park as shown on the
attached EXHIBIT B-1A.
B. TENANT FINISH IMPROVEMENTS. Landlord agrees to perform and complete the work
on the tenant finish improvements for the Leased Premises ("Tenant Finish
Improvements") in accordance with Tenant's plans and specifications which shall
be mutually agreed upon by both Landlord and Tenant and, upon completion,
attached hereto as EXHIBIT B-2 ("Interior Plans and Specifications"). Landlord
shall allow Tenant to review the major subcontractor bids associated with such
work. Landlord shall provide an allowance for the costs of the tenant finish
improvements to the Leased Premises in an amount not to exceed Twenty-three
Dollars ($23.00) per rentable square foot of the Leased Premises (the "Tenant
Finish Allowance"). Landlord further agrees to provide an allowance for the
costs of initial space planning and construction drawing services, to be
completed by Tenant's selected space planner, in the amount of One Dollar and
Twenty-five Cents ($1.25) per rentable square foot of the Leased Premises (the
"Design Allowance"). The Tenant Finish Allowance shall be used to construct and
pay for the Tenant Finish Improvements and , any remaining balance may be used
for costs of wiring, cabling, relocation and other associated expenses of
Tenant. The Tenant Finish Allowance shall be paid by Landlord directly to the
Construction Manager (as hereinafter defined), contractor, and/or subcontractors
performing the Tenant Finish Improvements, and after completion of all Tenant
Finish Improvements and payment of all costs relating thereto, the remaining
balance shall be made available to Tenant for payment of such wiring, cabling,
relocation and other associated expenses of Tenant, which expenses shall be
reimbursed to Tenant by Landlord within thirty (30) days of Landlord's receipt
of invoices for such other expenses from Tenant, provided that the final costs
of the Tenant Finish Improvements shall have been determined. Any unused portion
of the Tenant Finish Allowance up to an amount not to exceed Three Dollars
($3.00) per rentable square foot of the Leased Premises shall be applied in
equal monthly installments toward Tenant's Minimum Annual Rent hereunder over
the initial Lease Term hereof. Tenant shall reimburse Landlord for any cost or
expense attributable to the Tenant Finish Improvements which exceeds the Tenant
Finish Allowance no later than the Commencement Date. The Design Allowance shall
be paid by Landlord directly to Tenant's space planner within thirty (30) days
after Landlord receives invoices for the design services provided by such space
planner for the Leased Premises. Tenant shall be solely responsible for any
costs charged by such space planner in excess of the Design Allowance.
Landlord and Tenant hereby agree that all work on the Tenant Finish Improvements
in the Leased Premises shall be performed by Duke Construction Limited
Partnership or another affiliate of Landlord (collectively, the "Construction
Manager") which shall receive a construction management fee of ten percent (10%)
of the total costs of the Tenant Finish Improvements, including general
conditions. The Construction Manager will competitively bid all tenant finish
improvements, will use commercially reasonable efforts to obtain at least three
(3) bids, and will manage the entire construction process. In the event the
Construction Manager determines, after the bidding process, that the tenant
finish improvements cannot be completed for the amount of the Tenant Finish
Allowance, Landlord hereby agrees to confer with Tenant concerning possible
revisions to the Interior Plans and Specifications.
C. PROJECT DESIGN SCHEDULE AND PERMITS. The Shell Plans and Specifications and
the Interior Plans and Specifications shall be finalized and the Shell Work and
Tenant Finish Improvements shall be constructed by Landlord in accordance with
the Project Schedule attached hereto as EXHIBIT B-3. Landlord shall apply for
and obtain as expeditiously as possible, at its sole cost and expense, all
permits, licenses and certificates necessary for the construction and completion
of the Shell Work and Tenant Finish Improvements and for the occupancy of the
Building.
D. SUBSTANTIAL COMPLETION. The Leased Premises shall be deemed to be
substantially completed ("Substantially Complete" or "Substantial Completion")
at such time as the Shell Work and the Tenant Finish Improvements have all been
completed in substantial accordance with EXHIBIT B-1, B-1A AND B-2 subject only
to minor punch list items of work which do not substantially interfere with
Tenant's use of the Building, the Common Areas or the Leased Premises in
accordance with the terms of this Lease. Landlord shall provide a written notice
to Tenant of its best estimate of the date of Substantial Completion at least
seven (7) days prior thereto. In the event Landlord and Tenant do not agree upon
the date of Substantial Completion, Landlord shall furnish Tenant with the
architect of record's architect's certificate of substantial completion which
shall conclusively establish such date. If Substantial Completion has
not occurred on or before July 1, 2002 as extended for any Tenant Caused Delays,
as hereinafter defined, or force majeure event, then Landlord shall pay to
Tenant Five Thousand Dollars ($5,000.00) per day for each day that Substantial
Completion is delayed. If Substantial Completion has not occurred on or before
November 1, 2002 as extended for any Tenant Caused Delays, or force majeure
event, Tenant may terminate this Lease by providing written notice thereof to
Landlord within fifteen (15) days after such period and thereafter each party
shall be released from further liability hereunder. In the event that the date
of Substantial Completion is delayed due to any force majeure event, Landlord
will use commercially reasonable efforts to provide interim space to Tenant at
market rental rates.
E. LANDLORD'S WARRANTY. Landlord warrants that the Building and the Leased
Premises will be free from defects for a period of one (1) year after the
Commencement Date. In addition, Landlord shall thereafter assign to Tenant or
make available for Tenant's benefit any assignable warranties from
non-affiliated third parties applicable to the construction performed and
equipment installed in the Leased Premises in accordance with this Section.
F. FIXTURING. Tenant shall have the right and privilege of going into the first
(1st), fourth (4th) and fifth (5th) floors of the Leased Premises commencing
sixty (60) days prior to the Occupancy Date, as hereinafter defined, and the
remaining two (2) floors commencing thirty (30) days prior to the Occupancy Date
and continuing through the Occupancy Date, to complete interior decoration work
and to otherwise prepare the Leased Premises for its occupancy, subject to
Tenant Caused Delays or any other events beyond Landlord's control, provided,
however, that its schedule in so doing shall be communicated to and coordinated
with Landlord so as not to unreasonably interfere with or delay other work of
Landlord in the Leased Premises. Landlord shall have no liability whatsoever for
any loss or damage to any of Tenant's fixtures, equipment or any other items
brought into the Leased Premises prior to the Occupancy Date. Notwithstanding
the foregoing, all of the terms and conditions of this Lease will become
effective upon Tenant taking possession of the Leased Premises for fixturing
purposes as contemplated by this Section, except for payment of Minimum Annual
Rent and Annual Rental Adjustment, which shall commence on the Commencement
Date.
G. TENANT CAUSED DELAYS. Tenant Caused Delay or Delays shall mean any delay
caused by or resulting from the following or any combination of the following:
(1) failure of Tenant to fully comply with the Project Schedule attached hereto
as EXHIBIT B-3; (2) any change orders requested by Tenant; (3) failure of Tenant
to timely or properly arrange its furnishings or be present for any scheduled
walk-through of the Leased Premises, Building or Common Areas; (4) failure of
Tenant to respond promptly to any reasonable request of Landlord; (5) Tenant's
fixturing of the Leased Premises prior to the Commencement Date unless
coordinated with Landlord in accordance with Section 2.02.E above; or (6)
arising from or in connection with Section 3.02.D, below.
H. COMPLIANCE. Landlord shall cause all construction performed by or on behalf
of Landlord hereunder to be made in accordance with all applicable laws, rules,
codes, ordinances and regulations, including the Americans With Disabilities and
all applicable governmental zoning and building ordinances and codes in effect
as of the time of Substantial Completion of the Shell Work and Tenant Finish
Improvements, respectively. Such construction shall be in a good and workmanlike
manner with new materials and the Shell Work and public areas will be of similar
quality to the Six Parkwood Crossing building and in conformity with the
requirements set forth in EXHIBIT B-1.
SECTION 2.03. TENANT'S ACCEPTANCE OF THE LEASED PREMISES.
Upon delivery of possession of the Leased Premises to Tenant as hereinbefore
provided, Tenant shall execute a letter of understanding acknowledging (i) the
Commencement Date and Expiration Date of this Lease, and (ii) that Tenant has
accepted the Leased Premises for occupancy and the date of such acceptance and
that the condition of the Leased Premises, including the Tenant Finish
Improvements, and the Building, to Tenant's knowledge, was at the time
satisfactory and in conformity with the provisions of this Lease in all
respects, except for any patent defects as to which Tenant shall give written
notice to Landlord within thirty (30) days after such delivery and except for
any latent defects as to which Tenant shall give written notice to Landlord
within one (1) year after the Commencement Date. Landlord shall promptly
thereafter correct all such defects. Such letter of understanding shall become a
part of this Lease. If Tenant takes possession of and occupies the Leased
Premises, Tenant shall be deemed to have accepted the Leased Premises in the
manner described in this Section 2.03, even though the letter of understanding
provided for herein may not have been executed by Tenant. Landlord's obligations
under this Section 2.03 are in addition to Landlord's warranty obligation under
Subsection 2.02E.
SECTION 2.04. SURRENDER OF THE PREMISES.
Upon the expiration or earlier termination of this Lease, Tenant shall
immediately surrender the Leased Premises to Landlord in broom-clean condition
and in good order, condition and repair except for ordinary wear and tear,
condemnation and damage which Tenant is not obligated to repair. Tenant shall
remove its personal property, computer equipment, wiring and cabling (including
above ceiling) in the Leased Premises, at its sole cost and expense. Tenant
shall, at its expense, promptly repair any damage
caused by any such removal, and shall restore the Leased Premises to the
condition existing prior to the installation of the items so removed except for
ordinary wear and tear, condemnation and damage which Tenant is not obligated to
repair. All Tenant property which is not removed by the later of (i) ten (10)
days following Landlord's written demand therefore or (ii) termination hereof
shall be conclusively deemed to have been abandoned and Landlord shall be
entitled to dispose of such property at Tenant's cost without incurring any
liability to Tenant. The provisions of this section shall survive the expiration
or other termination of this Lease.
SECTION 2.05. HOLDING OVER.
If Tenant retains possession of the Leased Premises after the expiration or
earlier termination of this Lease, with Landlord's consent, Tenant shall become
a tenant from month to month at One Hundred Twenty-five Percent (125%) of the
Monthly Rental Installment and Annual Rental Adjustment for the Leased Premises
in effect upon the date of such expiration or earlier termination, and otherwise
upon the terms, covenants and conditions herein specified, so far as applicable.
Acceptance by Landlord of rent after expiration or earlier termination of the
Lease Term shall not result in a renewal of this Lease. Notwithstanding such
month-to-month tenancy, Tenant shall vacate and surrender the Leased Premises to
Landlord upon Tenant being given thirty (30) days' prior written notice from
Landlord to vacate which notice may be given at anytime during a month. This
Section 2.04 shall in no way constitute a consent by Landlord to any holding
over by Tenant upon the expiration or earlier termination of the Lease Term, nor
limit Landlord's remedies in such event.
ARTICLE 3 - RENT
SECTION 3.01. BASE RENT.
Tenant shall pay to Landlord the Minimum Annual Rent in the Monthly Rental
Installments in advance, without deduction or offset on the Commencement Date
and on or before the first day of each and every calendar month thereafter
during the Lease Term. The Monthly Rental Installments for any partial calendar
month at the beginning or end of the Lease Term shall be prorated.
SECTION 3.02. ANNUAL RENTAL ADJUSTMENT DEFINITIONS.
A. "ANNUAL RENTAL ADJUSTMENT" - shall mean the amount of Tenant's
Proportionate Share of Operating Expenses for a particular calendar
year as well as one hundred percent (100%) of Real Estate Taxes payable
during said calendar year.
B. "OPERATING EXPENSES" - shall mean the REASONABLE amount of all of
Landlord's costs and expenses paid or incurred in operating, repairing,
replacing and maintaining the Building (including the Common Areas as
defined below) in good condition and repair for a particular calendar
year, including by way of illustration and not limitation: insurance
premiums and deductibles; water, sewer, electrical and other utility
charges other than the separately billed electrical and other charges
paid by Tenant as provided in this Lease; service and other charges
incurred in the repair, replacement, operation and maintenance of the
elevators and the heating, ventilation and air-conditioning system;
cleaning and other janitorial services; tools and supplies; repair
costs; landscape maintenance costs; security services; license, permit
and inspection fees; management or administrative fees not to exceed
three and one-half percent (3 1/2%) of the gross rents for the
Building; supplies, costs, wages and related employee benefits payablE
for the management, maintenance and operation of the Building;
maintenance, repair and replacement of the driveways, parking and
sidewalk areas (including snow and ice removal), landscaped areas, and
lighting; maintenance and repair costs, dues, fees and assessments
incurred under any covenants or owners association (which, if created,
shall be according to reasonable and customary standards for Class A
office parks) (the "Covenants"). Operating Expenses shall not include
the cost of any capital improvement except as follows: reasonable costs
and expenses which would, under generally accepted accounting
principals, be regarded as operating and maintenance costs and
expenses, including those which would normally be amortized over a
period not to exceed five (5) years; amortization of capital
improvements that produce a net reduction in operating costs together
with interest at the rate of ten percent (10%) per annum on the
unamortized balance thereof (but not to exceed the amount of the
reduction in operating costs); the cost or portion thereof reasonably
allocable to the Building or the Land, amortized over such period as
Landlord shall reasonably determine, together with interest of ten
percent (10%) per annum on the unamortized balance, of any capital
improvements made to the Building by Landlord after the date of this
Lease which are required under governmental law or regulation that was
not applicable to the Building at the time the Building was
constructed.
Operating Expenses shall not include expenses incurred by Landlord with
regard to: (i) Landlord's warranty obligations hereunder; (ii)
replacement of the roof, foundation or structure of the Building, or
correction of any construction defect, or restoration or repair of any
damage by fire, windstorm or other casualty to the extent covered by
insurance of the type to be maintained by Landlord hereunder; (iii)
repairs, replacement or maintenance to the extent directly caused by
the negligence or intentional misconduct of Landlord or its affiliates
or their agents, employees or contractors or other tenants of the
Building, if any; (iv) expenses incurred at the request of a specific
tenant which benefit only that tenant; (v) expenses incurred in leasing
or procuring tenants, including tenant finish improvements; (vi) legal
expenses or costs incidental to any disputes or negotiations with
tenants or mortgagees; (vii) interest or principal payments (or late
charges, fees or premiums) on any mortgage or other similar
indebtedness of Landlord; (viii) any ground lease rental; (ix) rental
for items (except when needed in connection with normal repairs and
maintenance of permanent systems) which if purchased, rather than
rented, would constitute a capital improvement which is specifically
excluded in this Section; (x) costs incurred by Landlord due to
violation by Landlord or other tenants of the Building, if any, of the
terms and conditions of any lease of space in the Building; (xi)
advertising and promotional expenditures, and costs of signs in or on
the Building identifying the owner of the Building or other tenants'
signs, excluding interior Building signage/directionals; (xii) Real
Estate Taxes which are paid directly by Tenant pursuant to Section
3.03; (xiii) costs resulting from Landlord's breach hereof; (xiv) any
depreciation allowance or other expense of charge in respect to any
capital improvements, except as otherwise specifically provided in this
Lease; (xv) any cost billed to and paid directly or reimbursed by a
tenant or for which Landlord is otherwise reimbursed in any manner;
(xvi) cost for which Landlord has been compensated by management or
administrative fee; or (xvii) extraordinary parking lot repairs.
C. "TENANT'S PROPORTIONATE SHARE OF OPERATING EXPENSES" - shall be an
amount equal to the remainder of (i) the product of Tenant's Building
Expense Percentage times the Building Operating Expenses less (ii)
Landlord's Share of Operating Expenses, provided that such amount shall
not be less than zero.
D. "REAL ESTATE TAXES" - shall include (i) any form of real estate tax or
assessment or service payments in lieu thereof, and (ii) any license
fee, commercial rental tax, improvement bond or other similar charge or
tax (other than inheritance, income or estate taxes) imposed upon the
Building or Common Areas (or against Landlord's business of leasing the
Building) in lieu of real estate taxes, assessments or revise payments
during the Lease Term by any authority having the power to so charge or
tax, together with reasonable costs and expenses of contesting the
validity or amount of Real Estate Taxes.
Tenant desires to obtain and maintain real estate tax abatement
deductions for the Building, and Tenant shall use its best efforts to
promptly obtain said abatements. Tenant shall make the payment of any
and all application and other fees associated therewith. Should
Tenant's tax abatement application not be successful by the
thirty-third (33rd) day after the date of execution of this Lease,
Tenant may terminate this Lease by giving written notice of such
termination to Landlord and this Lease shall terminate and the parties
shall be released from all liability hereunder except that Tenant shall
reimburse Landlord for all of Landlord's out-of-pocket costs and
expenses incurred in the preparation of the construction documents
through the date Landlord receives said termination notice. Tenant
shall make such payment to Landlord within ten (10) days of receipt of
Landlord's invoice. Landlord agrees not to apply for a building permit
or otherwise commence construction until Tenant's real estate tax
abatement application is approved; provided, however, that if the
Project Schedule cannot be complied with as a result thereof, such
delay will constitute a Tenant Caused Delay. Immediately upon execution
of this Lease, Tenant shall prepare and file any required applications,
forms, resolutions, agreements or other materials, whether for or on
behalf of Tenant or Landlord. To permit Tenant to take the actions
necessary to obtain and maintain property tax abatement deductions on
the Building, Landlord shall (i) upon reasonable notice from Tenant,
execute such tax abatement applications, forms, resolutions,
agreements, and other materials, provided the same shall be in a form
reasonably acceptable to Landlord; (ii) upon reasonable notice from
Tenant, provide Tenant with information in its possession with respect
to the Building necessary to prepare such applications, forms,
resolutions, agreements and other materials; (iii) upon reasonable
notice from Tenant, either appear or authorize Tenant to appear on
behalf of Landlord at any public hearing related to obtaining or
maintaining real estate tax abatement on the Building; and (iv) shall
forward to Tenant promptly upon receipt any notice of assessment or
change in assessment relating to the Building. Tenant further
understands and agrees that it is responsible for any and all Real
Estate Taxes accruing during the Lease Term with regard to the Building
and the Land and agrees to indemnify and hold harmless Landlord from
and against any and all losses, claims or damages resulting from
Tenant's failure to comply with its obligations under this Section or
under any
agreement between Landlord and Tenant and the City of Indianapolis,
Indiana with respect to real estate tax abatement for the Building and
Land, except to the extent of such losses, claims or damages directly
resulting from Landlord's failure to comply with its obligations under
this Section or under any agreement between Landlord and Tenant and the
City of Indianapolis, Indiana with respect to real estate tax
abatement. Notwithstanding anything contained herein to the contrary,
in the event Tenant is successful in obtaining real estate tax
abatement for the Building, Landlord hereby agrees that the full amount
which is abated is for the benefit of Tenant.
E. "COMMON AREAS" - shall mean the areas of the Building and the Land
which are designed for use in common by all tenants of the Building and
their respective employees, agents, customers, invitees and others, and
includes, by way of illustration and not limitation, entrances and
exits, hallways and stairwells, elevators, restrooms, sidewalks,
driveways, parking areas, landscaped areas and other areas as may be
designated by Landlord as part of the Common Areas of the Building.
Tenant shall have the exclusive right to the use of the Common Areas
except that Landlord shall have the right to permit others to use the
Common Areas for nominal uses, such as jogging on marked trails and
sidewalks, and to grant easements for utilities. Landlord shall not
reduce or materially modify any portion of the Common Areas without
Tenant's written consent.
SECTION 3.03. PAYMENT OF ADDITIONAL RENT.
In addition to the Minimum Annual Rent specified in this Lease, Tenant shall pay
to Landlord as "Additional Rent" for the Leased Premises, in each calendar year
or partial calendar year, during the Lease Term, an amount equal to the Annual
Rental Adjustment excluding Real Estate Taxes for such calendar year or partial
calendar year. In the case of the calendar year of the Commencement Date,
Landlord shall provide such notice prior to the Commencement Date. The Annual
Rental Adjustment excluding Real Estate Taxes shall be estimated annually by
Landlord, and written notice thereof shall be given to Tenant prior to the
beginning of each calendar year. Tenant shall pay to Landlord each month, at the
same time the Monthly Rental Installment is due, an amount equal to one-twelfth
(1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If
the cost of utility, janitorial or other services increase during a calendar
year, Landlord may increase the estimated Annual Rental Adjustment excluding
Real Estate Taxes during such year by giving Tenant written notice to that
effect, and thereafter Tenant shall pay to Landlord, in each of the remaining
months of such year, an amount equal to the amount of such increase in the
estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder
of the year divided by the number of months remaining in such year. Within a
reasonable time after the end of each calendar year, Landlord shall prepare and
deliver to Tenant a statement showing the actual Annual Rental Adjustment
excluding Real Estate Taxes. Within thirty (30) days after receipt of the
aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit
against the next rent payment or payments due from Tenant, as the case may be,
the difference between the actual Annual Rental Adjustment excluding Real Estate
Taxes for the preceding calendar year and the estimated amount paid by Tenant to
Landlord during such year. In addition, Tenant shall pay, before delinquency,
any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to
the appropriate taxing authority. If Tenant fails for any reason to pay the Real
Estate Taxes when same is due and payable, Landlord shall have the right, but
not the obligation, to pay the Real Estate Taxes directly to the taxing
authority and Tenant shall immediately reimburse Landlord for the cost thereof.
Such amount shall accrue interest from the date Landlord pays such amount,
pursuant to Section 3.04, below, shall include any penalties, late fees and any
interest assessed due to such delinquency.
Tenant or its accountants shall have the right to inspect, at reasonable time
and in a reasonable manner, during the one hundred twenty (120) day period
following the delivery of Landlord's statement of the actual amount of the
Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books
of account and records as pertain to and contain information concerning such
costs and expenses for the Building for the prior calendar year in order to
verify the amounts thereof.
In the event the first audit discloses (i) errors made during the prior calendar
year which, when totaled, indicate that the sum overcharged to and paid by
Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real
Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"),
the audit shall be at the expense of Landlord, not to exceed Two Thousand Five
Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is
less than five percent (5%) of the Total Expenses, the audit shall be at the
expense of Tenant.
For each subsequent audit, where the audit discloses errors exceeding five
percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if
the audit discloses errors equal to or less than five percent (5%) of the Total
Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than
eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall
also pay to Landlord
as additional rent Seventy-five Dollars ($75.00) per hour for each additional
hour that Tenant's audit takes of Landlord's property manager's or asset
manager's time, provided such audit discloses no error or an error greater than
five percent (5%) of the Total Expenses. The results of the audit (regardless of
the degree of the error, if any) shall be binding upon Landlord and Tenant, and
Landlord shall thereafter, if appropriate, change its method of calculating the
Operating Expenses consistent with the results of the audit. Tenant agrees to
hold the information obtained from such audit confidential and shall not
disclose the same without Landlord's express written permission except as
necessary to enforce the Lease or protect Tenant's rights hereunder.
If Tenant shall not elect to cause an audit within the time period permitted
hereby, then Landlord's statement shall be conclusively deemed to have been
approved and accepted by Tenant. Pending resolution of any dispute with respect
to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual
Rental Adjustment as shown on such statement, and upon final determination of
the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund
any overpayment to Tenant or Tenant shall promptly pay any amount due to
Landlord, as applicable.
SECTION 3.04. LATE CHARGES.
Tenant acknowledges that Landlord shall incur certain additional unanticipated
administrative and legal costs and expenses if Tenant fails to timely pay any
payment required hereunder. Therefore, in addition to the other remedies
available to Landlord hereunder, if any payment required to be paid by Tenant to
Landlord hereunder shall become overdue, such unpaid amount shall bear interest
from the due date thereof to the date of payment at the prime rate (as defined
by a bank or financial institution used by Landlord) of interest ("Prime Rate")
plus six percent (6%) per annum.
ARTICLE 4 - SECURITY DEPOSIT
[INTENTIONALLY OMITTED]
ARTICLE 5 - OCCUPANCY AND USE
SECTION 5.01. USE.
The Leased Premises shall be used by Tenant for the Permitted Use and for no
other purposes without the prior written consent of Landlord. Notwithstanding
the foregoing and subject to the provisions of Section 7.03, below, Tenant shall
have the right, at Tenant's sole cost and expense, to build an indoor athletic
facility such as tennis or basketball for exclusive use by Tenant and its
employees on the Land. The location, size and design of the facility shall be
subject to the mutual approval of Landlord and Tenant.
SECTION 5.02. COVENANTS OF TENANT REGARDING USE.
Tenant shall (i) use and maintain the Leased Premises and conduct its business
thereon in a safe, careful, reputable and lawful manner, (ii) comply with the
Covenants and all laws, rules, regulations, orders, ordinances, directions and
requirements of any governmental authority or agency, now in force or which may
hereafter be in force applicable to Tenant's use or occupancy of the Leased
Premises, including without limitation those which shall impose upon Landlord or
Tenant any duty with respect to or triggered by a change in the use or
occupation of, or any improvement or alteration by Tenant to, the Leased
Premises after Tenant's occupancy thereof, (iii) comply with and obey all
reasonable directions of Landlord, including the Building Rules and Regulations
attached hereto as EXHIBIT C. Tenant shall not use the Leased Premises, or allow
the Leased Premises to be used, for any purpose or in any manner which would
invalidate any policy of insurance now or hereafter carried on the Building or
increase the rate of premiums payable on any such insurance policy unless Tenant
reimburses Landlord for any increase in premium charged.
SECTION 5.03. LANDLORD'S RIGHTS REGARDING USE.
In addition to the rights specified elsewhere in this Lease, Landlord shall have
the following rights regarding the use of the Leased Premises or the Common
Areas, each of which may be exercised without notice or liability to Tenant
except as herein provided to the contrary: (a) if Tenant or a Permitted
Transferee does not lease one hundred percent (100%) of the Building, Landlord
may install such signs, advertisements or notices or tenant identification
information on the directory board or tenant access doors as it shall deem
necessary or proper; provided the same does not materially interfere with access
to the Leased Premises; (b) if Tenant or a Permitted Transferee does not lease
one hundred percent (100%) of the Building, Landlord shall have the right at any
time to control, change but not materially diminish or otherwise alter the
Common Areas in such manner as it reasonably deems necessary; (c) Landlord, its
employees and agents and any mortgagee of the Building shall have the right to
enter any part of the Leased Premises at reasonable times and upon reasonable
notice and with the presence of a Tenant representative (except in the case of
an emergency) for the purposes of examining or inspecting the same, showing the
same to prospective purchasers, mortgagees or tenants and making such repairs,
alterations or improvements to the Leased Premises or the Building as Landlord
may deem necessary or desirable. Landlord shall incur no liability to Tenant for
such entry, nor shall such entry constitute an eviction of Tenant or a
termination of this Lease, or entitle Tenant to any abatement of rent therefor;
providing Landlord shall use commercially reasonable efforts to minimize
interference with Tenant's use of the Leased Premises in the exercise of its
rights hereunder.
ARTICLE 6 - UTILITIES AND OTHER BUILDING SERVICES
SECTION 6.01. SERVICES TO BE PROVIDED.
Provided Tenant is not in default, Landlord shall furnish to Tenant, except as
noted below, the following utilities and other building services to the extent
reasonably necessary for Tenant's comfortable use and occupancy of the Leased
Premises for the Permitted Use or as may be required by law or directed by
governmental authority:
(a) Heating, ventilation and air-conditioning between the hours of 7:00
a.m. and 8:00 p.m. Monday through Friday and 7:00 a.m. to 1:00 p.m. on
Saturday of each week except on legal holidays and HVAC twenty-four
(24) hours per day, seven (7) days per week, for the computer labs
identified on the construction documents;
(b) Electrical current not to exceed seven (7) xxxxx per square foot;
provided, however, additional wattage not to exceed fifteen (15) xxxxx
per square foot shall be provided to the HVAC system and computer labs
(approximately 7,000 square feet);
(c) Water in the Common Areas and Leased Premises for lavatory and drinking
purposes;
(d) Automatic elevator service;
(e) Cleaning and janitorial service in the Leased Premises and Common Areas
on Monday through Friday of each week except legal holidays; provided,
however, Tenant shall be responsible for carpet cleaning other than
routine vacuuming;
(f) Washing of windows at intervals reasonably established by Landlord;
(g) Replacement of all lamps, bulbs, starters and ballasts in Building
standard lighting (Landlord's standard tenant finish improvements being
described in EXHIBIT B) as required from time to time as a result of
normal usage;
(h) Cleaning and maintenance of the Common Areas, including the removal of
rubbish, ice and snow; and
(i) Except as otherwise provided in this Lease, repair and maintenance of
the Leased Premises, the Building and Common Areas.
(j) Access to the Leased Premises twenty-four (24) hours a day, seven (7)
days a week; and
(k) Twenty-four (24) hours, seven (7) days per week monitoring of the
exterior door locking system.
Upon reasonable advance written notice, the foregoing services may be increased
or decreased at the reasonable request of Tenant. In the event of utility
deregulation, Landlord shall choose the utility service provider. Charges for
utilities and services provided by Landlord, if any, shall not exceed the
charges that would have been payable if such utilities and services had been
directly billed by the utilities or service providers to Tenant.
SECTION 6.02. ADDITIONAL SERVICES.
If Tenant requests any other utilities or building services in addition to those
identified above or any of the above utilities or building services in
frequency, scope, quality or quantity substantially greater than those which
Landlord reasonably determines are normally required by tenants in comparable
office buildings conducting operations similar to Tenant, then Landlord shall
use reasonable efforts to attempt to furnish Tenant with such additional
utilities or building services. In the event Landlord is able to and does
furnish such additional utilities or building services, the costs thereof shall
be borne by Tenant, who
shall reimburse Landlord monthly for the same as additional rent at the same
time Monthly Rental Installments and other additional rent is due.
If any lights, density of staff, machines or equipment used by Tenant in the
Leased Premises materially affect the temperature otherwise maintained by the
Building's air-conditioning system or generate substantially more heat in the
Leased Premises than that which would normally be generated by that typically
used by tenants in comparable office buildings and such usage materially
overburden the Building's systems and equipment, then Landlord shall have the
right to install any machinery or equipment which Landlord considers reasonably
necessary in order to correct such material overburden, including equipment
which modifies the Building's air-conditioning system; provided, however,
Landlord shall consult with Tenant prior to installation of any such machinery
or equipment. All reasonable costs expended by Landlord to install any such
machinery and equipment and any additional costs of operation and maintenance
occasioned thereby shall be borne by Tenant, who shall reimburse Landlord for
the same as provided in this Section 6.02.
SECTION 6.03. INTERRUPTION OF SERVICES.
Tenant understands, acknowledges and agrees that any one or more of the
utilities or other building services identified in Section 6.01 may be
interrupted by reason of accident, emergency or other causes beyond Landlord's
control, or may be discontinued or diminished temporarily by Landlord or other
persons until certain repairs, alterations or improvements can be made. Landlord
shall not be liable in damages or otherwise for any failure or interruption of
any utility service and no such failure or interruption shall entitle Tenant to
terminate this Lease or withhold sums due hereunder.
Notwithstanding anything in this Lease to the contrary, Landlord shall use
commercially reasonable efforts to promptly restore utility service and in the
event restoration of service is within Landlord's control and Landlord fails to
use commercially reasonable efforts to restore such service within a reasonable
time, thereby causing all or a material portion of the Leased Premises to be
rendered untenantable (meaning that Tenant is unable to use such space in the
normal course of its business) by Tenant for the use permitted under this Lease
for more than three (3) consecutive days after notice from Tenant to Landlord
that such service has been interrupted, Minimum Annual Rent and Annual Rental
Adjustment shall xxxxx on a per diem basis in the proportion which the
untenantable portion of the Leased Premises bears to the total area of the
Leased Premises for each day after such three (3) day period during which the
Leased Premises remain untenantable.
ARTICLE 7 - REPAIRS, MAINTENANCE AND ALTERATIONS
SECTION 7.01. REPAIR AND MAINTENANCE OF BUILDING.
Landlord shall make all necessary repairs to the Building, including the
exterior walls, exterior doors, windows, corridors and other Common Areas, and
Landlord shall keep the Building and the Common Areas in a safe, clean and neat
condition and use reasonable efforts to keep all equipment used in connection
therewith in good condition and repair, the costs of which shall be included in
Operating Expenses to the extent provided in Section 3.02, provided, however,
that to the extent any of the foregoing items require repair because of the
negligence, misuse or default of Tenant, its employees or agents, Landlord shall
make such repairs solely at Tenant's expense except to the extent covered by
insurance of the type to be maintained by Landlord hereunder.
SECTION 7.02. REPAIR AND MAINTENANCE OF LEASED PREMISES.
Landlord shall keep and maintain the Leased Premises in good order, condition
and repair, the costs of which shall be included in Operating Expenses to the
extent provided in Section 3.02, provided, however, that to the extent any items
in the Leased Premises require repair because of the negligence, misuse or
default of Tenant, its employees or agents, Landlord shall make such repairs
solely at Tenant's expense except to the extent covered by insurance of the type
to be maintained by Landlord hereunder.
SECTION 7.03. ALTERATIONS.
Tenant shall not permit alterations in or to the Leased Premises unless and
until the plans have been approved by Landlord in writing, which approval as to
interior non-structural alterations shall not be unreasonably withheld,
conditioned or delayed. As a condition of such approval, Landlord may require
Tenant to remove the alterations and restore the Leased Premises upon
termination of this Lease; otherwise, all such alterations shall at Landlord's
option become a part of the realty and the property of Landlord, and shall not
be removed by Tenant. Tenant shall ensure that all alterations shall be made in
accordance with all applicable laws, regulations and building codes, in a good
and workmanlike manner and of quality equal to or better than the original
construction of the Building. No person shall be
entitled to any lien derived through or under Tenant for any labor or material
furnished to the Leased Premises, and nothing in this Lease shall be construed
to constitute a consent by Landlord to the creation of any lien. If any lien is
filed against the Leased Premises for work claimed to have been done for or
material claimed to have been furnished to Tenant, Tenant shall cause such lien
to be discharged of record within thirty (30) days after filing. Tenant shall
indemnify Landlord from all costs, losses, expenses and attorneys' fees in
connection with any construction or alteration under this Section 7.03, not
performed by Landlord or an affiliate, and any related lien. Notwithstanding
anything contained herein to the contrary, Tenant shall have the right, without
Landlord's consent, and in compliance with all other provisions of this Section,
to make any non-structural alterations to the Leased Premises which do not
materially impact the Building's mechanical or electrical systems, and the
aggregate cost of which does not exceed Fifty Thousand Dollars ($50,000.00) per
project for a total project cost not to exceed One Hundred Fifty Thousand
Dollars ($150,000.00) per year, provided that Tenant gives Landlord fifteen (15)
business days prior written notice of any such alteration, along with copies of
all plans and specifications relating thereto and complies with Landlord's
reasonable and customary procedures.
SECTION 7.04. TRADE FIXTURES.
Any trade fixtures installed on the Leased Premises by Tenant at its own
expense, such as movable partitions, counters, shelving, showcases, mirrors and
the like, may, and, at the request of Landlord, shall be removed on the
expiration or earlier termination of this Lease, provided that Tenant is not
then in default, that Tenant bears the cost of such removal, and further that
Tenant repairs at its own expense any and all damage to the Leased Premises
resulting from such removal. If Tenant fails to remove any and all such trade
fixtures from the Leased Premises on the expiration or earlier termination of
this Lease, all such trade fixtures shall become the property of Landlord unless
Landlord elects to require their removal, in which case Tenant shall, at its
expense, promptly remove the same and restore the Leased Premises to their prior
condition.
ARTICLE 8 - CASUALTY
SECTION 8.01. CASUALTY.
In the event of total or partial destruction of the Building or the Leased
Premises by fire or other casualty, Landlord agrees to promptly restore and
repair the Building or Leased Premises; provided, however, Landlord's obligation
hereunder shall be limited to the reconstruction of the Building, Leased
Premises and the Tenant Finish Improvements as were originally required to be
made by Landlord. Landlord shall give Tenant written notice within thirty (30)
days of the casualty of Landlord's estimated date to complete such restoration
and repair. In the event that such notice discloses that such date of completion
is more than one hundred eighty (180) days from the casualty date, Landlord and
Tenant shall endeavor in good faith to agree upon a schedule for the completion
of such repair or rebuilding. If no such agreement is reached within thirty (30)
days of Tenant's receipt of notice estimating the date of completion, Tenant may
terminate this Lease, effective upon the date of casualty, by delivery of
written notice thereof to Landlord within fifteen (15) days of the expiration of
the thirty (30) day negotiating period identified above. Rent shall
proportionately xxxxx during the time that the Leased Premises or part thereof
are unusable because of any such damage until substantial completion of the
restoration. Notwithstanding the foregoing, if the Leased Premises are destroyed
by a casualty which is not covered by the insurance required hereunder or, if
covered, such insurance proceeds are not released by any mortgagee entitled
thereto or are insufficient to rebuild the Building, then Landlord may, upon
thirty (30) days' written notice delivered to Tenant within thirty (30) days of
the casualty, terminate this Lease with respect to matters thereafter accruing.
All restoration shall comply with all construction requirements imposed hereby
on the original construction of the Building, Leased Premises or the original
Tenant Finish Improvements.
SECTION 8.02. ALL RISK COVERAGE INSURANCE.
During the Lease Term, Landlord shall maintain all risk coverage insurance on
the Building, including the Leased Premises, for the full replacement value of
the Building, against loss or damage by fire or other casualty (namely, the
perils against which insurance is afforded by a standard fire insurance policy
and extended coverage endorsement) and plate glass insurance, but shall not
protect Tenant's property on the Leased Premises or the Building; and,
notwithstanding the provisions of Section 9.01 and Section 9.03, neither party
shall be liable for any damage to the other's property, regardless of cause,
including the negligence of either party and its employees, agents and invitees.
Tenant hereby expressly waives any right of recovery against Landlord for damage
to any property of Tenant located in or about the Leased Premises, however
caused, including the negligence of Landlord and its employees, agents and
invitees. Notwithstanding the provisions of Section 9.01 below, Landlord hereby
expressly waives any rights of recovery against Tenant for damage to the Leased
Premises, the Building, Common Areas or other property of Landlord located
therein, however caused, including the negligence of Tenant and its
employees, agents and invitees which is insured against under Landlord's all
risk coverage insurance or which would have been insured against had Landlord
carried the all risk coverage insurance as required above. All insurance
policies maintained by Landlord or Tenant as provided in this Lease shall
contain an agreement by the insurer waiving the insurer's right of subrogation
against the other party to this Lease.
ARTICLE 9 - LIABILITY INSURANCE
SECTION 9.01. TENANT'S RESPONSIBILITY.
Tenant shall assume the risk of, be responsible for, have the obligation to
insure against, and indemnify Landlord and hold it harmless from any and all
liability for any loss of or damage or injury to any person (including death
resulting therefrom) or property (other than Landlord's property as provided in
Section 8.02) occurring in the Leased Premises, regardless of cause, except for
any loss or damage from fire or other casualty as provided in Section 8.02 and
except for that caused directly by the sole negligence of Landlord or its
employees, agents, customers and invitees; and Tenant hereby releases Landlord
from any and all liability for the same. Tenant's obligation to indemnify
Landlord hereunder shall include the duty to defend against any claims asserted
by reason of such loss, damage or injury and to pay any judgments, settlements,
costs, fees and expenses, including attorneys' fees, incurred in connection
therewith. This provision shall survive the expiration or earlier termination of
this Lease.
SECTION 9.02. TENANT'S INSURANCE.
Tenant shall carry general public liability and property damage insurance,
issued by one or more insurance companies reasonably acceptable to Landlord,
with the following minimum coverages:
(a) Worker's Compensation: minimum statutory amount.
(b) Commercial General Liability Insurance, including blanket, contractual
liability, broad form property damage, personal injury, completed
operations, products liability, and fire damage: Not less than
$3,000,000 Combined Single Limit for both bodily injury and property
damage.
(c) All Risk Coverage, Vandalism and Malicious Mischief, and Sprinkler
Leakage insurance, if applicable, for the full cost of replacement of
Tenant's property.
(d) Business interruption insurance.
The insurance policies shall protect Tenant and Landlord as their interests may
appear, naming Landlord and Landlord's managing agent and mortgagee as
additional insureds, and shall provide that they may not be canceled on less
than thirty (30) days' prior written notice to Landlord. Tenant shall furnish
Landlord with Certificates of Insurance evidencing all required coverages on or
before the Commencement Date. If Tenant fails to carry such insurance and
furnish Landlord with such Certificates of Insurance after a request to do so,
Landlord may obtain such insurance and collect the cost thereof from Tenant.
Notwithstanding anything contained to the contrary herein, any and all risks
under the insurance required of Tenant under this Lease, at Tenant's option, may
be (a) insured under single policies or by a combination of policies; or (b)
insured, in whole or in part, under an excess or umbrella liability policy.
SECTION 9.03. LANDLORD'S RESPONSIBILITY.
Landlord shall assume the risk of, be responsible for, have the obligation to
insure against, and indemnify Tenant and hold it harmless from, any and all
liability for any loss of or damage or injury to person (including death
resulting therefrom) or property (other than Tenant's property as provided in
Section 8.02) occurring in, on or about the Common Areas, regardless of cause,
except for that caused by the sole negligence of Tenant and its employees,
agents, customers and invitees; and Landlord hereby releases Tenant from any and
all liability for the same. Landlord's obligation to indemnify Tenant hereunder
shall include the duty to defend against any claims asserted by reason of such
loss, damage or injury and to pay any judgments, settlements, costs, fees and
expenses, including attorneys' fees, incurred in connection therewith. This
provision shall survive the expiration or earlier termination of this Lease.
SECTION 9.04. LANDLORD'S INSURANCE.
In addition to the insurance required under Section 8.02, Landlord shall keep in
full force and effect during the term of this Lease public liability and
property damage insurance in standard form with respect to the Building and the
Common Areas and the operation thereof having a minimum limit of combined
coverage of bodily injury and property damage of not less then Three Million
Dollars ($3,000,000.00). Landlord shall provide Tenant with copies of
certificates of insurance evidencing all
required coverage under Section 8.02 and Section 9.04. In addition, Landlord
shall name Tenant as an additional insured on such insurance policy or policies.
ARTICLE 10 - EMINENT DOMAIN
If all or any substantial part of the Building or Common Areas shall be acquired
by the exercise of eminent domain, Landlord or Tenant may terminate this Lease
by giving written notice to the other party within fifteen (15) days after
possession thereof is so taken. If all or any part of the Building, Leased
Premises or Common Areas shall be acquired by the exercise of eminent domain so
that the Leased Premises shall become untenantable by Tenant and inadequate for
the Permitted Use, Tenant may terminate this Lease by giving written notice to
Landlord within fifteen (15) days after possession thereof is so taken. All
damages awarded shall belong to Landlord; provided, however, that Tenant may
claim dislocation damages if such amount is not subtracted from Landlord's
award. If a part of the Leased Premises, Building or Common Areas shall be taken
or conveyed but the remaining part is tenantable and adequate for Tenant's use,
then this Lease shall be terminated as to the part taken or conveyed as of the
date Tenant surrenders possession; Landlord shall make such repairs, alterations
and improvements as may be necessary to render the part not taken or conveyed
tenantable to the extent the condemnation award proceeds received by Landlord
are sufficient therefor; and the rent shall be reduced in proportion to the part
of the Leased Premises so taken or conveyed.
ARTICLE 11 - ASSIGNMENT AND SUBLEASE
Tenant shall not assign this Lease or sublet the Leased Premises in whole or in
part without Landlord's prior written consent, which consent shall not be
unreasonably withheld, delayed or conditioned. In the event of any permitted
assignment or subletting, Tenant shall remain primarily liable hereunder. The
acceptance of rent from any other person shall not be deemed to be a waiver of
any of the provisions of this Lease or to be a consent to the assignment of this
Lease or the subletting of the Leased Premises. Without in any way limiting
Landlord's right to refuse to consent to any assignment or subletting of this
Lease, Landlord reserves the right to refuse to give such consent if in
Landlord's reasonable opinion the Leased Premises or Building are or may be in
any way adversely affected by the business reputation of the proposed assignee
or subtenant is unacceptable. If Landlord refuses to give its consent to any
proposed assignment or subletting of all or substantially all of the Leased
Premises, Landlord may, at its option, within thirty (30) days after receiving
notice of the proposal, terminate this Lease by giving Tenant one hundred twenty
(120) days' prior written notice of such termination, whereupon each party shall
be released from all further obligations and liability hereunder.
Notwithstanding the foregoing, Tenant may assign the Lease or sublease all or
any portion of the Leased Premises without Landlord's consent to any of the
following (a "Permitted Transferee"), provided that the business reputation
following the transfer is equal to or exceeds that of Tenant as of the date of
execution of this Lease: (i) any successor corporation or other entity resulting
from a public offering, merger or consolidation of Tenant; (ii) any purchaser of
all or substantially all of Tenant's assets; or (iii) any entity which controls,
is controlled by, or is under common control with Tenant. Tenant shall give
Landlord thirty (30) days prior written notice of such assignment or sublease.
Any Permitted Transferee shall assume in writing all of Tenant's obligations
under this Lease. Tenant shall nevertheless at all times remain fully
responsible and liable for the payment of rent and the performance and
observance of all of Tenant's other obligations under this Lease. Nothing in
this paragraph is intended to nor shall permit Tenant to transfer its interest
under this Lease as part of a fraud or subterfuge to intentionally avoid its
obligations under this Lease (for example, transferring its interest to a shell
corporation that subsequently files a bankruptcy), and any such transfer shall
constitute a Default hereunder.
ARTICLE 12 - TRANSFERS BY LANDLORD
SECTION 12.01. SALE OF THE BUILDING.
Landlord shall have the right to sell the Building at any time during the Lease
Term, subject only to the rights of Tenant hereunder; and such sale shall
operate to release Landlord from liability hereunder after the date of such
conveyance, provided the new owner assumes all liability hereunder.
SECTION 12.02. SUBORDINATION AND ESTOPPEL CERTIFICATE.
Landlord shall have the right to subordinate this Lease to any mortgage
presently existing or hereafter placed upon the Building by so declaring in such
mortgage, provided the mortgagee executes a non-disturbance, attornment and
subordination agreement reasonably acceptable to Tenant. Within ten (10) days
following receipt of a written request from Landlord, Tenant shall execute and
deliver to Landlord, without cost, any instrument reasonably necessary to
confirm the subordination of this Lease and an estoppel certificate in such form
as Landlord may reasonably request certifying (i) that, as to Tenant, this Lease
is in full force and effect and unmodified or stating the nature of any
modification, (ii) the date to
which rent has been paid, (iii) that there are not, to Tenant's actual
knowledge, any uncured defaults or specifying such defaults if any are claimed,
and (iv) any other matters or state of facts reasonably required respecting the
Lease, provided that such matters or state of facts are limited to Tenant's
actual knowledge. Such estoppel may be relied upon by Landlord and by any
purchaser or mortgagee of the Building. Notwithstanding the foregoing, if the
mortgagee shall take title to the Leased Premises through foreclosure or deed in
lieu of foreclosure, Tenant shall be allowed to continue in possession of the
Leased Premises as provided for in this Lease so long as Tenant shall not be in
default.
ARTICLE 13 - DEFAULT AND REMEDY
SECTION 13.01. DEFAULT.
The occurrence of any of the following shall be a "Default":
(a) Tenant fails to pay any Monthly Rental Installment or Additional Rent
within ten (10) days after the same is due, or Tenant fails to pay any
other amounts due Landlord from Tenant within thirty (30) days after
written notice thereof from Landlord to Tenant.
(b) Tenant fails to perform or observe any other term, condition, covenant
or obligation required under this Lease for a period of thirty (30)
days after notice thereof from Landlord; provided, however, that if the
nature of Tenant's default is such that more than thirty (30) days are
reasonably required to cure, then such default shall be deemed to have
been cured if Tenant commences such performance within said thirty (30)
day period and thereafter diligently completes the required action
within a reasonable time.
(c) Tenant shall assign or sublet all or a portion of the Leased Premises
in contravention of the provisions of Article 11 of this Lease.
(d) All or substantially all of Tenant's assets in the Leased Premises or
Tenant's interest in this Lease are attached or levied under execution
(and Tenant does not discharge the same within sixty (60) days
thereafter); a petition in bankruptcy, insolvency or for reorganization
or arrangement is filed by or against Tenant (and Tenant fails to
secure a stay or discharge thereof within sixty (60) days thereafter);
the admission in writing by Tenant that Tenant is insolvent and unable
to pay its debts as they become due; Tenant makes a general assignment
for the benefit of creditors; Tenant takes the benefit of any
insolvency action or law; the appointment of a receiver or trustee in
bankruptcy for Tenant or its assets if such receivership has not been
vacated or set aside within thirty (30) days thereafter.
In addition to the above Defaults, the parties agree that if there shall be
three (3) or more Defaults under paragraph (a) of this section during any twelve
(12) month period, regardless of whether such Defaults are ultimately cured,
then such Defaults shall, at Landlord's option, represent a separate Default.
SECTION 13.02. REMEDIES.
Upon the occurrence of any Default, Landlord shall have the following rights and
remedies, in addition to those allowed by law or in equity, any one or more of
which may be exercised without further notice to Tenant:
(a) Landlord may re-enter the Leased Premises and cure any default of
Tenant, and Tenant shall reimburse Landlord as additional rent for any
costs and expenses which Landlord thereby incurs; and Landlord shall
not be liable to Tenant for any loss or damage which Tenant may sustain
by reason of Landlord's action.
(b) Landlord may terminate this Lease and thereafter (i) neither Tenant nor
any person claiming under or through Tenant shall be entitled to
possession of the Leased Premises, and Tenant shall immediately
surrender the Leased Premises to Landlord; and (ii) Landlord may
re-enter the Leased Premises and dispossess Tenant and any other
occupants of the Leased Premises by any lawful means and may remove
their effects, without prejudice to any other remedy which Landlord may
have. Upon the termination of Tenant's right to possession of the
Leased Premises, with or without terminating this Lease, Landlord may
declare the present value discounted at a rate of ten percent (10%) of
all rent which would have been due under this Lease for the balance of
the Lease Term less the present value discounted at the rate of ten
percent (10%) of all net rent that Landlord reasonably estimates that
Landlord will receive via a reletting of the Leased Premises for the
balance of the Lease Term after taking into account anticipated vacancy
periods, to be immediately due and payable, whereupon Tenant shall be
obligated to pay the same to Landlord. In addition, Tenant shall pay to
Landlord all costs and expenses which
Landlord may incur by reason of Tenant's default ("Default Damages"),
which shall include without limitation expenses of preparing the Leased
Premises for re-letting, demolition, repairs, tenant finish
improvements and brokers' and attorneys' fees, it being expressly
understood and agreed that the liabilities and remedies specified in
this subsection (b) shall survive the termination of this Lease.
(c) Landlord may, without terminating this Lease, re-enter the Leased
Premises and re-let on a commercially reasonable terms all or any part
thereof for a term different from that which would otherwise have
constituted the balance of the Lease Term and for rent and on terms and
conditions different from those contained herein, whereupon Tenant
shall be immediately obligated to pay to Landlord as liquidated damages
the present value (as calculated in subsection (b) above of the
difference between the rent provided for herein and that provided for
in any lease covering a subsequent re-letting of the Leased Premises,
for the period which would otherwise have constituted the balance of
the Lease Term, together with all of Landlord's Default Damages.
(d) Landlord may xxx for injunctive relief or to recover damages for any
loss resulting from the breach.
(e) If Landlord terminates this Lease or Tenant's right to possession,
Landlord's duty to mitigate its damages under this Lease shall be as
follows: (1) Landlord shall be required only to use reasonable efforts
to mitigate, which shall not exceed such efforts as Landlord generally
uses to lease other space in other buildings which it leases, and (2)
Landlord shall not be deemed to have failed to mitigate if it incurs
costs and expenses for repairs, maintenance, changes, alterations and
improvements to the Leased Premises (whether to prevent damage or to
prepare the Leased Premises for reletting), brokerage commissions,
advertising costs, attorneys' fees, any economic incentives given to
replacement tenants, and costs of collecting rent from replacement
tenants. The obligations set forth in this paragraph shall not serve to
shift the burden of proof from Tenant to Landlord with respect to
proving whether or not Landlord mitigated its damages.
SECTION 13.03. LANDLORD'S DEFAULT AND TENANT'S REMEDIES.
Landlord shall be in default if it fails to perform any term, condition,
covenant or obligation required under this Lease for a period of thirty (30)
days after written notice thereof from Tenant to Landlord; provided, however,
that if the term, condition, covenant or obligation to be performed by Landlord
is such that it cannot reasonably be performed within thirty days, such default
shall be deemed to have been cured if Landlord commences such performance within
said thirty-day period and thereafter diligently undertakes to complete the
same. Upon the occurrence of any such default, Tenant may xxx for injunctive
relief or to recover damages for any loss directly resulting from the breach,
but Tenant shall not be entitled to terminate this Lease or withhold, offset or
xxxxx any sums due hereunder. Notwithstanding the foregoing, it shall be a
default under and breach of this Lease by Landlord if it shall fail to perform
or observe any term, condition, covenant or obligation required to be performed
or observed by it under this Lease, which failure prevents Tenant from
conducting its normal business operations in the Leased Premises, for a period
of ten (10) days after notice thereof from Tenant; provided, however, that if
the term, condition, covenant or obligation to be performed by Landlord is of
such nature that the same cannot reasonably be performed within such ten-day
period, such default shall be deemed to have been cured if Landlord commences
such performance within said ten-day period and thereafter diligently undertakes
to complete the same and does so complete the required action within a
reasonable time. Upon the occurrence of any such default, Tenant may xxx for
injunctive relief or to recover damages for any loss resulting from the breach,
but Tenant shall not be entitled to terminate this Lease or withhold or xxxxx
any rent due hereunder except as specifically provided elsewhere in this Lease.
Notwithstanding the foregoing, in the event of an Emergency Situation, as
hereinafter defined, if the default is not cured after reasonable notice to (or
diligent attempts to notify) Landlord, Tenant may cure the default at Landlord's
expense, provided that such cure is not more extensive than is reasonably
necessary under the circumstances. "Emergency Situation" as used in this Section
means a situation which poses an immediate threat to the physical well being of
persons in or on the Leased Premises or of damage to property in or on the
Leased Premises.
SECTION 13.04. LIMITATION OF LANDLORD'S LIABILITY.
If Landlord shall fail to perform any term, condition, covenant or obligation
required to be performed by it under this Lease and if Tenant shall, as a
consequence thereof, recover a money judgment against Landlord, Tenant agrees
that it shall look solely to Landlord's right, title and interest in and to the
Building for the collection of such judgment; and Tenant further agrees that no
other assets of Landlord shall be subject to levy, execution or other process
for the satisfaction of Tenant's judgment.
SECTION 13.05. NONWAIVER OF DEFAULTS.
Neither party's failure or delay in exercising any of its rights or remedies or
other provisions of this Lease shall constitute a waiver thereof or affect its
right thereafter to exercise or enforce such right or remedy or other provision.
No waiver of any default shall be deemed to be a waiver of any other default.
Landlord's receipt of less than the full rent due shall not be construed to be
other than a payment on account of rent then due, nor shall any statement on
Tenant's check or any letter accompanying Tenant's check be deemed an accord and
satisfaction. No act or omission by Landlord or its employees or agents during
the term of this Lease shall be deemed an acceptance of a surrender of the
Leased Premises, and no agreement to accept such a surrender shall be valid
unless in writing and signed by Landlord.
SECTION 13.06. ATTORNEYS' FEES.
If either party defaults in the performance or observance of any of the terms,
conditions, covenants or obligations contained in this Lease and the non-
defaulting party obtains a judgment against the defaulting party, then the
defaulting party agrees to reimburse the non-defaulting party for the attorneys'
fees incurred thereby.
ARTICLE 14 - LANDLORD'S RIGHT TO RELOCATE TENANT
[INTENTIONALLY OMITTED]
ARTICLE 15 - TENANT'S RESPONSIBILITY REGARDING ENVIRONMENTAL LAWS AND HAZARDOUS
SUBSTANCES
SECTION 15.01. ENVIRONMENTAL DEFINITIONS.
A. "Environmental Laws" - All present or future federal, state and
municipal laws, ordinances, rules and regulations applicable to the
environmental and ecological condition of the Leased Premises, the
rules and regulations of the Federal Environmental Protection Agency or
any other federal, state or municipal agency or governmental board or
entity having jurisdiction over the Leased Premises.
B. "Hazardous Substances" - Those substances included within the
definitions of "hazardous substances," "hazardous materials," "toxic
substances" "solid waste" or "infectious waste" under Environmental
Laws.
SECTION 15.02. COMPLIANCE.
Tenant, at its sole cost and expense, shall promptly comply with the
Environmental Laws including any notice from any source issued pursuant to the
Environmental Laws which shall impose any duty upon Tenant resulting from
Tenant's use, occupancy, maintenance or alteration of the Leased Premises
whether such notice shall be served upon Landlord or Tenant.
SECTION 15.03. RESTRICTIONS ON TENANT.
Tenant shall operate its business in compliance with all Environmental Laws.
Tenant shall not cause or permit the use, generation, release, manufacture,
refining, production, processing, storage or disposal of any Hazardous
Substances on, under or about the Leased Premises, or the transportation to or
from the Leased Premises of any Hazardous Substances, except as necessary and
appropriate for its Permitted Use in which case the use, storage or disposal of
such Hazardous Substances shall be performed in compliance with the
Environmental Laws and the highest standards prevailing in the industry.
SECTION 15.04. NOTICES, AFFIDAVITS, ETC.
Either party shall immediately notify the other party of (i) any violation by
it, its employees, agents, representatives, customers, invitees or contractors
of the Environmental Laws on, under or about the Leased Premises, or (ii) the
presence or suspected presence of any Hazardous Substances on, under or about
the Leased Premises and shall immediately deliver to the other party any notice
received by it relating to (i) and (ii) above from any source. Tenant shall
execute affidavits, representations and the like within five (5) days of
Landlord's request therefor concerning Tenant's actual knowledge and belief
regarding the presence of any Hazardous Substances on, under or about the Leased
Premises caused by Tenant.
SECTION 15.05. LANDLORD'S RIGHTS.
Landlord and its agents shall have the right, but not the duty, upon advance
notice and in the presence of a Tenant representative (except in the case of
emergency when no notice or representation shall be required) to inspect the
Leased Premises and conduct tests thereon to determine whether or the extent to
which there has been a violation of Environmental Laws by Tenant or whether
there are Hazardous Substances on, under or about the Leased Premises. In
exercising its rights herein, Landlord shall use reasonable efforts to minimize
interference with Tenant's business but such entry shall not constitute an
eviction of Tenant, in whole or in part, and Landlord shall not be liable for
any interference, loss, or damage to Tenant's property directly caused by
Landlord's actions so long as Landlord uses such reasonable efforts. If Tenant
and its agents fail to provide a representative to accompany Landlord or its
agents and Landlord provide advance notice as herein required, then Tenant shall
be deemed to have waived the Tenant representation requirement.
SECTION 15.06. TENANT'S INDEMNIFICATION.
Tenant shall indemnify Landlord and Landlord's managing agent from any and all
claims, losses, liabilities, costs, expenses and damages, including reasonable
attorneys' fees, costs of testing and remediation costs, incurred by Landlord in
connection with any breach by Tenant of its obligations under this Article 15.
The covenants and obligations under this Article 15 shall survive the expiration
or earlier termination of this Lease.
SECTION 15.07. EXISTING CONDITIONS.
Notwithstanding anything contained in this Article 15 to the contrary, Tenant
shall not have any liability to Landlord under this Article 15 resulting from
any conditions existing, or events occurring, or any Hazardous Substances
existing or generated, at, in, on, under or in connection with the Leased
Premises, the Building or the Land prior to the Occupancy Date of this Lease or
any Hazardous Substance on, under or about the Leased Premises caused by
Landlord or its affiliates or their agents, employees or contractors.
SECTION 15.08. LANDLORD'S REPRESENTATIONS.
Landlord represents and warrants that, to its actual knowledge based solely upon
and except as disclosed in the Environmental Report for the Land dated September
9, 1993, and its control of the Land since September 9, 1993 (a) as of the date
of execution of this Lease, there are no and, (b) prior to Tenant's occupancy,
there will be no Hazardous Substances on, under or about the Land.
SECTION 15.09. LANDLORD'S INDEMNIFICATION.
Notwithstanding anything above to the contrary, Landlord shall indemnify Tenant
from any and all claims, losses, liabilities, costs expenses and damages,
including reasonable attorneys' fees, cost of testing and remediation costs,
Tenant incurs by reason of any breach by Landlord of any representation
contained in Section 15.08 or Landlord's violation of any Environmental Laws or
the generation, use or release of any Hazardous Substances by Landlord or its
affiliates, their agents, employees or contractors on, under or about the Leased
Premises, the Building or the Land. Landlord shall bear all cost of removing or
otherwise remediating Hazardous Substances or of taking any other action
required by Environmental Laws resulting from any conditions existing or event
occurring, or any Hazardous Substance existing or generated, at, in, on, under
or in connection with the Leased Premises, the Building or the Land prior to the
Occupancy Date. The covenants and obligations under this Article 15 shall
survive the expiration or earlier termination of this Lease.
ARTICLE 16 - MISCELLANEOUS
SECTION 16.01. BENEFIT OF LANDLORD AND TENANT.
This Lease shall inure to the benefit of and be binding upon Landlord and Tenant
and their respective successors and assigns.
SECTION 16.02. GOVERNING LAW.
This Lease shall be governed in accordance with the laws of the State where the
Building is located.
SECTION 16.03. GUARANTY.
[INTENTIONALLY OMITTED]
SECTION 16.04. FORCE MAJEURE.
Landlord and Tenant (except with respect to any payment obligation) shall be
excused for the period of any delay in the performance of any obligation
hereunder when such delay is occasioned by causes beyond its control, including
but not limited to work stoppages, boycotts, slowdowns or strikes; shortages of
materials, equipment, labor or energy; unusual weather conditions; or acts or
omissions of governmental or political bodies, provided that such party shall
have used reasonable efforts to minimize the impact of any such event.
SECTION 16.05. NO REPRESENTATION OR OPTION.
Submission of this instrument for examination or signature to Tenant does not
constitute a reservation of or option for Lease, and it is not effective as a
Lease or otherwise until execution by and delivery to both Landlord and Tenant.
SECTION 16.06. INDEMNIFICATION FOR LEASING COMMISSIONS.
The parties hereby represent and warrant that the only real estate brokers
involved in the negotiation and execution of this Lease are the Brokers. In the
event that Meridian Real Estate Services claims that it is owed compensation in
connection with this Lease and the options granted herein, Tenant shall be
solely responsible for paying any compensation due Meridian Real Estate
Services. Each party shall indemnify the other from any and all liability for
the breach of this representation and warranty on its part and shall pay any
compensation to any other broker or person who may be entitled thereto.
SECTION 16.07. NOTICES.
Any notice required or permitted to be given under this Lease or by law shall be
deemed to have been given if it is written and delivered in person or by
overnight courier or mailed by certified mail, postage prepaid, to the party who
is to receive such notice at the address specified in Article 1. When so mailed,
the notice shall be deemed to have been given as of the date it was mailed.
Either party may change its address by giving written notice thereof to the
other party.
SECTION 16.08. PARTIAL INVALIDITY; COMPLETE AGREEMENT.
If any provision of this Lease shall be held to be invalid, void or
unenforceable, the remaining provisions shall remain in full force and effect.
This Lease represents the entire agreement between Landlord and Tenant covering
everything agreed upon or understood in this transaction. There are no oral
promises, conditions, representations, understandings, interpretations or terms
of any kind as conditions or inducements to the execution hereof or in effect
between the parties. No change or addition shall be made to this Lease except by
a written agreement executed by Landlord and Tenant.
SECTION 16.09. FINANCIAL STATEMENTS.
During the Lease Term and any extensions thereof, Tenant shall provide to
Landlord on an annual basis, a copy of Tenant's most recent financial statements
(certified and audited if the Minimum Annual Rent hereunder exceeds $100,000.00)
prepared as of the end of Tenant's fiscal year within thirty (30) days of the
completion thereof. Such financial statements shall be signed by Tenant who
shall attest to the truth and accuracy of the information set forth in such
statements, or if the Minimum Annual rent hereunder exceeds $100,000.00, said
statements shall be certified and audited. All financial statements provided by
Tenant to Landlord hereunder shall be prepared in conformity with generally
accepted accounting principles, consistently applied.
SECTION 16.10. REPRESENTATIONS AND WARRANTIES.
The undersigned represent and warrant that (i) such party is duly organized,
validly existing and in good standing (if applicable) in accordance with the
laws of the state under which it was organized; and (ii) the individual
executing and delivering this Lease has been properly authorized to do so, and
such execution and delivery shall bind such party. Landlord represents that the
Land is properly zoned for the Permitted Use.
SECTION 16.11. SIGNAGE.
A. EXTERIOR BUILDING SIGNAGE. Provided that Tenant complies with all
applicable federal, state and local laws, ordinances, rules and regulations
including, but not limited to, zoning and other municipal and county regulations
(collectively, "Governmental Laws"), Tenant may, at its own cost and
expense, erect two signs on the Building identifying its business consistent
with EXHIBIT B-4 attached hereto. One sign shall be located on the expressway
side of the Building, and the other sign shall be in a location mutually agreed
upon by both Tenant and Landlord on the North face of the Building, both signs
to be near the top of the Building ("Signs"). The location, style and size of
the Signs shall be subject to Landlord's prior written approval, which approval
shall not be unreasonably withheld, conditioned or delayed. Tenant agrees to
maintain such Signs in a safe, lawful and first-class condition and in
compliance with all Governmental Laws throughout the Lease Term. Upon expiration
or early termination of the Lease Term, Tenant shall remove the Signs and repair
all damage to the Building caused thereby. Landlord does not represent or
warrant that the Governmental Laws will permit Tenant to install and/or use the
Signs throughout the Lease Term; however, Landlord agrees not to take any action
which would negate Tenant's ability to maintain such Signs and to provide
reasonable cooperation to Tenant in connection with any application required by
Governmental Laws. Any language in the Lease notwithstanding, Tenant shall
indemnify and hold harmless Landlord from any and all liability for any loss of
or damage or injury to any person (including death resulting therefrom) or
property connected with or arising from the Signs or the rights granted Tenant
herein. The obligations of Tenant herein shall survive the expiration or earlier
termination of this Lease. So long as no other tenant of the Building, excluding
any Permitted Transferee, leases 30,000 or more square feet of the Building,
Tenant shall have the exclusive right to exterior building signage.
B. MONUMENT SIGN. So long as Tenant or a Permitted Transferee leases one
hundred percent (100%) of the Building, and provided that such signage is
permitted by the Governmental Laws, Landlord agrees to provide an exclusive
monument sign (the "Monument Sign") identifying Tenant's business as well as the
business of the other manor tenants in the Building, if any, throughout the
Lease Term.
SECTION 16.12. SATELLITE DISHES.
a. Provided that Tenant complies with all Governmental Laws, as defined
in Section 16.11.A, above, Tenant shall have the non-exclusive right during the
Lease Term (and the exclusive right during all periods in which Tenant or a
Permitted Transferee leases one hundred percent (100%) of the Building), at its
own cost and expense and subject to the terms hereof, to install, operate and
maintain on the roof of the Building, up to three (3) microwave satellite dishes
("Dishes") for use exclusively by Tenant. Tenant shall be solely responsible for
obtaining any necessary permits and licenses required to install and operate the
Dishes. Copies of such permits and licenses shall be provided to Landlord.
Tenant shall also be required, at Tenant's sole cost, to install screening
surrounding the Dishes as may be reasonably required by Landlord.
b. The size, location, design and manner of installation of the Dishes
and all related wiring and screening shall be designated and approved by
Landlord, which approval shall not be unreasonably withheld, conditioned or
delayed. After obtaining written approval of Landlord, Tenant shall have
reasonable access to the roof for installation, operation, maintenance and
repair of the Dishes and shall have the right to install all reasonable wiring
related thereto. However, unless otherwise approved by Landlord in writing, in
no event shall Tenant be permitted to penetrate the roof membrane in connection
with the installation or maintenance of the Dishes.
c. Tenant represents and warrants that the installation and maintenance
of the Dishes will not cause any damage to the structural portions of the
Building. Tenant shall be responsible for repairing any such damages to the
structure, or, at Landlord's option, Landlord shall repair any such damage at
Tenant's sole cost and expense and Tenant shall immediately reimburse Landlord
for said costs and expenses upon receipt of Landlord's invoice.
d. Tenant shall install, operate and maintain the Dishes in accordance
with Governmental Laws. Prior to installation of the Dishes, Tenant shall, on
behalf of the installer, provide Landlord with a certificate of insurance
reasonably satisfactory to Landlord.
e. Tenant reserves the right to discontinue its use of all or any of
the Dishes at any time prior to the termination of the Lease or any renewal or
extension thereof for any reason whatsoever, provided that Tenant gives thirty
(30) days prior written notice thereof to Landlord. Tenant shall be responsible
for all costs of removal and shall repair all damage to the Building caused
thereby. Notwithstanding the foregoing, Tenant agrees within ten (10) days after
written notice from Landlord to remove the Dishes in the event any governmental
entity or applicable law or regulation requires removal thereof. Such removal
shall be in accordance with all of the terms and conditions set forth herein. If
Tenant elects not to remove the Dishes from the Building, upon expiration or
earlier termination of this Lease, or after expiration of the ten (10) day
notice period provided herein, Landlord may deem the Dish(es) to have been
abandoned by Tenant and they shall become the property of Landlord.
f. Any language in the Lease notwithstanding, Landlord shall not be
liable and Tenant shall indemnify, defend and hold Landlord harmless from and
against any and all liability, damages (including but not limited to personal
injury, death, or property damages), costs, expenses, and attorneys' fees
incurred by Landlord arising from any Dish related cause whatsoever, including
those arising from the installation, use, maintenance and removal thereof,
except to the extent of Landlord's negligence or willful misconduct and only to
the extent not covered by insurance required to be maintained by Landlord.
g. Notwithstanding the grant of this right, Landlord shall maintain
control over the roof of the Building, and nothing herein shall be deemed
Landlord's consent for Tenant to use the roof for any other purpose than the
installation, operation, maintenance and repair of the Dishes in conjunction
with the operation of its business.
h. Tenant represents and warrants that it shall use the Dishes solely
for its own use and not for any "resale", leasing or licensing use.
SECTION 16.13. PARKING.
Tenant shall have the exclusive right to use all surface parking areas located
on the Land. Landlord shall provide the underground parking facility depicted on
EXHIBIT B-1. Collectively, such surface and underground parking areas shall
contain a minimum of four (4) parking spaces per 1,000 square feet of space in
the Building at all times during the term hereof. Subject to Governmental Laws,
Tenant shall have the exclusive right to designate all or any portion of such
parking as reserved parking or visitor only parking. Tenant shall not be
required to pay a fee for the use of such parking spaces. Only one vehicle shall
be parked in each space at any one time.
SECTION 16.14. RELOCATION AND DISCRETIONARY ALLOWANCES.
In addition to the Tenant Finish Allowance and Design Allowance, and for and in
consideration of Tenant leasing the Leased Premises for the term and otherwise
under and in accordance with this Lease, Landlord hereby agrees to provide to
Tenant:
(a) a relocation allowance in the amount of One Hundred Twenty-five
Thousand Dollars ($125,000.00) (the "Relocation Allowance"); and
(b) a discretionary allowance in the amount of Six Hundred Thirty
Thousand Dollars ($630,000). The allowances are payable upon the later to occur
of (i) payment by Tenant of the first Monthly Rental Installment, or (ii) the
Commencement Date, except that Two Hundred Sixty Thousand Dollars ($260,000.00)
of the discretionary allowance shall be paid to Tenant within thirty (30) days
of the later to occur of (a) execution of this Lease by Landlord and Tenant, or
(b) extinguishment (either through the passage of time or voluntary waiver) of
Tenant's right to terminate this Lease pursuant to Section 3.02.D.
SECTION 16.15. RIGHT OF FIRST OFFER TO PURCHASE THE BUILDINGS.
During the original Lease Term (and any extension thereto pursuant to the
exercise of Tenant's expansion rights under Sections 16.16, 16.17, 16.18 and/or
16.20), provided that (i) Tenant (as used in this Section 16.15, the term
"Tenant" shall also include any Permitted Transferee that succeeds to Tenant's
rights under Article 11, above) is not in Default at the time it exercises this
option or purchases the Building; and (ii) Tenant originally named herein or a
Permitted Transferee remains in possession of all or substantially all of the
Leased Premises, Landlord shall notify Tenant in writing ("Landlord's Notice")
if, at any time during the original Lease Term, Landlord intends to sell the
Building to a third party unaffiliated with Landlord, provided, however, that
Landlord shall have no obligation to notify Tenant if (a) the Building is part
of a multi-building package being offered for sale by Landlord, or (b) or the
prospective purchaser is a mortgagee holding a mortgage on the Building, or a
successor to Landlord which has obtained or is in the process of obtaining fee
title interest in the Building as a result of foreclosure or any mortgage deed
in lieu thereof, or (c) a person or entity which is owned, controlled, or under
common or joint control by Landlord (the sale to which shall not extinguish
Tenant's rights under this Section). Upon receipt of Landlord's Notice, Tenant
shall have the option to purchase the Building at the purchase price and
Landlord shall provide Tenant with pertinent information regarding the operation
of the Building ("Information") and upon such other terms and conditions as are
set forth in Landlord's Notice ("Right of First Offer to Purchase Building").
Tenant shall have ten (10) business days after receipt of Landlord's Notice in
which to notify Landlord of its election to purchase the Building on the terms
and conditions contained in Landlord's Notice. In the event Tenant fails to
notify Landlord of its agreement to purchase the Building upon the terms and
conditions contained in Landlord's Notice within said ten (10) business day
period, such failure shall be conclusively deemed a rejection to
purchase the Building, whereupon Tenant shall have no further rights with
respect to purchasing the Building and Landlord shall be free to sell the
Building to a third party, providing that (i) Landlord may not sell the Building
to a third party unaffiliated with Landlord for a price which is less than
ninety-five percent (95%) of Landlord's offer price to Tenant within six (6)
months of the date of Landlord's Notice and (ii) if Landlord does not sell the
Building at a price at least ninety-five percent (95%) of Landlord's offer price
to Tenant within such six (6) month period, Tenant's right of first offer under
this Section shall be reinstated. If Tenant properly exercises its Right of
First Offer to Purchase the Building, then within thirty (30) days of Tenant
notifying Landlord of its agreement to purchase the Building pursuant to this
Section or such additional time as agreed by Landlord and Tenant in writing,
Landlord and Tenant shall enter into a purchase agreement containing the terms
and conditions set forth in Landlord's Notice and such other mutually agreed
upon terms and conditions. Tenant acknowledges and agrees that this Right of
First Offer to Purchase Building is personal in nature to Interactive
Intelligence, Inc. and may not be assigned except to a Permitted Transferee
without the prior written consent of Landlord, which consent may be withheld for
any reason.
In the event that any building(s) are constructed pursuant to Tenant's exercise
of its option under Sections 16.16, 16.17, 16.18 or 16.20 of this Lease, then
Tenant's Right of First Offer to Purchase the Building as set forth in this
Section 16.15 shall apply to each building so constructed (i.e., Phase I
Building, Phase II Building and Phase II Building).
SECTION 16.16. PHASE I BUILDING EXPANSION OPTION.
Provided that (i) Tenant is not in Default at the time it exercises this option;
(ii) Tenant (as used in this Section 16.16, the term "Tenant" shall also include
any Permitted Transferee that succeeds to Tenant's rights under Article 11,
above) has a tangible net worth of at least Fifty Million Dollars
($50,000,000.00) at the time of exercise of the option, and (iii) Tenant
originally named herein remains in possession of all or substantially all of the
Building, Tenant shall have the option to cause Landlord to construct a new
building and related improvements on land contiguous to the Building as shown as
Phase I Building on EXHIBIT A, which new building shall contain not less than
110,000 rentable square feet and not more than 250,000 rentable square feet (the
"Phase I Building") provided that Tenant gives Landlord written notice of its
exercise of this option on or before the later of June 30, 2003 or the end of
the first (1st) year of the Lease Term. Tenant shall be required to lease 100%
of the Phase I Building for a term coterminous with the original Lease Term;
provided, however, that the minimum term for the Phase I Building shall be ten
(10) years and the Lease Term for the Leased Premises shall be extended, if
necessary, to be coterminous with the term for the Phase I Building. If Tenant
properly exercises its Phase I Building Expansion Option, then within thirty
(30) days of Landlord's receipt of such written exercise, Landlord and Tenant
shall enter into a written lease for the Phase I Building containing the terms
and conditions set forth in this Section 16.16. Except for the economic terms
and expansion rights, such lease shall be on the same terms and conditions
contained in this Lease. In addition, Landlord and Tenant shall enter into an
amendment of this Lease in the event that the lease term is extended as set
forth above in order to reflect the extended terms and applicable Minimum Annual
Rent (as set forth below) during such extended term. Provided that Tenant fully
cooperates with Landlord's building schedule, the Phase I Building will be
delivered and rent will commence no later than twelve (12) months (or fifteen
(15) months in the event the lease for the Phase I Building is executed during
the period commencing August 1 and continuing through December 31 of any year)
after execution of said lease and, if applicable, amendment of this Lease.
The Minimum Annual Rent for the Phase I Building will be derived from the
following formula:
Years 1 - 5: [(Project Costs of the Phase I Building x *.1295)
divided by .975] + Landlord's Share of Operating
Expenses
*subject to adjustment as set forth below
Example: [($100.00 x .1295) divided by .975]
+ $4.00 = $17.28
Years 6 - 10 [(Minimum Annual Rent for years 1 - 5 - Landlord's
Share of Operating Expenses) x one hundred sixteen
percent (116%)] + Landlord's Share of Operating
Expenses
Example: [($17.28 - $4.00) x 1.16] + $4.00 = $19.41
Years 11 - 15 [(Minimum Annual Rent for years 6 - 10 - Landlord's
Share of Operating Expenses) x one hundred sixteen
percent (116%)] + Landlord's Share of Operating
Expenses
Example: [($19.41 - $4.00) x 1.16] + $4.00 = $21.88
For purposes of this Section, "Project Costs" shall consist of the total of all
reasonable and customary hard and soft costs of constructing the Phase I
Building and common areas including the land for the Phase I Building and common
areas. All hard and soft cost items shall be competitively bid, and Landlord
agrees to obtain at least three (3) bids. The land for the Phase I Building and
common areas shall be valued at $185,000 per acre, subject to an annual increase
of five percent (5%) per year commencing June 1, 2002. The development fee shall
be an amount equal to four (4%) of the Project Costs and the construction
management fee shall be an amount equal to ten percent (10%) of the Project
Costs minus the value of the land. The Project Costs shall not include any
leasing fees and Tenant shall be solely responsible for compensating any real
estate brokers and consultants it may utilize in exercising its option. In the
event that Tenant is rated as "Investment Grade" by Xxxxx'x or Standard and
Poor's rating service at the time of its exercise of the option, then the ".975"
multiplier as used in the above formula shall be increased to ".99". In the
event that the United States Ten-Year Treasury Rate increases by more than 150
basis points from the execution date of this Lease to the execution date of the
lease for the Phase I Building, then the ".1295" multiplier as used in the above
formula shall be increased basis point for basis point for each point in excess
of 150. For example, if the United States Ten-Year Treasury Rate during the
applicable period increased by 155 basis points, then the ".1295" multiplier
would be increased to ".130".
The Annual Rental Adjustment for the Phase I Building shall be the same as set
forth in this Lease except that Landlord's Share of Operating Expenses shall be
Four Dollars ($4.00) per rentable square foot of the Phase I Building, subject
to an annual increase of three percent (3%) per year commencing on October 1,
2001 and continuing through the date of occupancy under the lease for the Phase
I Building, at which point the amount shall be fixed and no longer subject to
increase.
The Minimum Annual Rent for the Leased Premises during any extended term
necessitated by the ten (10) year coterminous provision as referenced above
shall be an amount equal to the Minimum Annual Rent then being quoted by
Landlord to prospective tenants for space of comparable size and quality and
with similar or equivalent improvements as are found in similar buildings in the
vicinity, excluding free rent and other concessions. Notwithstanding the
foregoing, in no event shall the Minimum Annual Rent during the extension term
be less than the Minimum Annual Rent payable during the last year of the
original lease term under the applicable lease or more than, on a per rentable
square foot basis, the Minimum Annual Rent for the Phase I Building during such
period covered by the extension term. The Minimum Monthly Rent shall be an
amount equal to one-twelfth (1/12) of the Minimum Annual Rent for the extension
term and shall be paid at the same time and in the same manner as provided in
the Lease. For each rentable square foot of space for which the lease term is
extended under said coterminous provision, Tenant shall receive from Landlord at
the commencement of the lease term of the Phase I Building a tenant finish
allowance equal to One Dollar ($1.00) per rentable square foot for each year of
the extended term, which allowance shall, at Tenant's discretion, be allocable
to any building in Interactive Park.
SECTION 16.17. PHASE II BUILDING EXPANSION OPTION.
In the event that Tenant (as used in this Section 16.17, the term "Tenant" shall
also include any Permitted Transferee that succeeds to Tenant's interest under
Article 11, above) has properly exercised its Phase I Building Expansion Option,
then provided that (i) Tenant is not in Default at the time it exercises this
option; (ii) Tenant has a tangible net worth of at least Seventy-five Million
Dollars ($75,000,000.00) at the time of exercise of the option, and (iii) Tenant
originally named herein remains in possession of all or substantially all of the
Building, Tenant shall have the option to cause Landlord to construct one (1) or
two (2) new buildings and related improvements as shown as Phase II Building
site on EXHIBIT A, which, (i) if Tenant chooses to have one (1) building built,
shall contain approximately 180,000 rentable square feet, or (ii) if Tenant
chooses to have two (2) buildings built, each building shall contain not less
than approximately 60,000 rentable square feet each and not more than
approximately 120,000 rentable square feet each and, collectively, the rentable
square footage of the two new buildings shall equal approximately 180,000
rentable square feet (the "Phase II Building") provided that Tenant gives
Landlord written notice of its exercise of this option on or before the later of
May 31, 2005 or the end of the third (3rd) year of the Lease Term. Tenant shall
be required to lease one hundred percent (100%) of the Phase II Building for a
term coterminous with the Lease Term for the Leased Premises and the Phase I
Building and, if applicable, the Phase III Building; provided, however, that the
minimum term for the Phase II Building shall be ten (10) years and the Lease
Term for the Leased Premises and the Phase I Building and, if applicable, the
Phase III Building shall be extended, if necessary, to be coterminous with the
term for the Phase II Building. If Tenant properly exercises its Phase II
Building Expansion Option, then within thirty (30) days of Landlord's receipt of
such written exercise, Landlord and Tenant shall enter into a written lease for
the Phase III Building containing the terms and conditions set forth in this
Section 16.17. Except for the economic terms and expansion rights, such lease
shall be on the same terms and conditions contained in this Lease. In addition,
Landlord and Tenant shall enter into an amendment of this Lease and the lease
for the Phase I Building and, if applicable, the Phase III Building
in the event that the Lease Term is extended as set forth above in order to
reflect the extended term and applicable Minimum Annual Rent (as set forth
below) during such extended term. Provided that Tenant fully cooperates with
Landlord's building schedule, the Phase II Building will be delivered and rent
will commence no later than twelve (12) months (or fourteen (14) months in the
event the lease for the Phase II Building is executed during the period
commencing August 1 and continuing through December 31 of any year) after
execution of said lease and, if applicable, amendment of this Lease and the
leases for the Phase I Building and Phase II Building.
The Minimum Annual Rent for the Phase II Building will be derived from the
following formula:
Years 1 - 5: [(Project Costs of the Phase II Building x *.1295)
divided by .975] + Landlord's Share of Operating
Expenses
*subject to adjustment as set forth below
Example: [($100.00 x .1295) divided by .975]
+ $4.00 = $17.28
Years 6 - 10 [(Minimum Annual Rent for years 1 - 5 - Landlord's
Share of Operating Expenses) x one hundred sixteen
percent (116%)] + Landlord's Share of Operating
Expenses
Example: [($17.28 - $4.00) x 1.16] + $4.00 = $19.41
Years 11 - 15 [(Minimum Annual Rent for years 6 - 10 - Landlord's
Share of Operating Expenses) x one hundred sixteen
percent (116%)] + Landlord's Share of Operating
Expenses
Example: [($19.41 - $4.00) x 1.16] + $4.00 = $21.88
For purposes of this Section, "Project Costs" shall consist of the total of all
reasonable and customary hard and soft costs of constructing the Phase II
Building and common areas including the land for the Phase II Building and
common areas. All hard and soft cost items shall be competitively bid, and
Landlord agrees to obtain at least three (3) bids. The land for the Phase II
Building and common areas shall be valued at $185,000 per acre, subject to an
annual increase of five percent (5%) per year commencing June 1, 2002. The
development fee shall be an amount equal to four (4%) of the Project Costs and
the construction management fee shall be an amount equal to ten percent (10%) of
the Project Costs minus the value of the land. The Project Costs shall not
include any leasing fees and Tenant shall be solely responsible for compensating
any real estate brokers and consultants it may utilize in exercising its option.
In the event that Tenant is rated as "Investment Grade" by Xxxxx'x or Standard
and Poor's rating service at the time of its exercise of the option, then the
".975" multiplier as used in the above formula shall be increased to ".99". In
the event that the United States Ten-Year Treasury Rate increases by more than
150 basis points from the execution date of this Lease to the execution date of
the lease for the Phase II Building, then the ".1295" multiplier as used in the
above formula shall be increased basis point for basis point for each point in
excess of 150. For example, if the United States Ten-Year Treasury Rate during
the applicable period increased by 155 basis points, then the ".1295" multiplier
would be increased to ".130".
The Annual Rental Adjustment for the Phase II Building shall be the same as set
forth in this Lease except that Landlord's Share of Operating Expenses shall be
Four Dollars ($4.00) per rentable square foot of the Phase II Building, subject
to an annual increase of three percent (3%) per year commencing on October 1,
2001 and continuing through the date of occupancy under the lease for the Phase
II Building, at which point the amount shall be fixed and no longer subject to
increase.
The Minimum Annual Rent for the Leased Premises and the Phase I Building and, if
applicable, the Phase III Building during any extended term necessitated by the
ten (10) year coterminous provision as referenced above shall be an amount equal
to the Minimum Annual Rent then being quoted by Landlord to prospective tenants
for space of comparable size and quality and with similar or equivalent
improvements as are found in similar buildings in the vicinity, excluding free
rent and other concessions. Notwithstanding the foregoing, in no event shall the
Minimum Annual Rent during the extension term be less than the Minimum Annual
Rent payable during the last year of the original lease term under the
applicable lease or more than, on a per rentable square foot basis, the Minimum
Annual Rent for the Phase II Building during such period covered by the
extension term. The Minimum Monthly Rent shall be an amount equal to one-twelfth
(1/12) of the Minimum Annual Rent for the extension term and shall be paid at
the same time and in the same manner as provided in the Lease. For each rentable
square foot of space for which the lease term(s) is(are) extended under said
coterminous provision, Tenant shall receive from Landlord at the commencement of
the lease term of the Phase II Building a tenant finish allowance equal to One
Dollar ($1.00) per rentable square foot for each year of the extended term(s),
which allowance shall, at Tenant's discretion, be allocable to any building in
Interactive Park.
Tenant acknowledges and agrees that the rights set forth in this Section 16.17
are contingent upon Tenant properly exercising its Phase I Building Expansion
Option and in the event that Tenant fails to properly exercise said option on or
before the later of May 31, 2003 or the end of the first (1st) year of the Lease
Term, this option shall be null and void and of no further effect.
SECTION 16.18. PHASE III BUILDING EXPANSION OPTION.
In the event that Tenant (as used in this Section 16.18, the term "Tenant" shall
also include any Permitted Transferee that succeeds to Tenant's interest under
Article 11, above) has properly exercised its Phase I Building Expansion Option,
then during the original Lease Term, provided that (i) Tenant is not in Default
at the time it exercises this option; (ii) Tenant has a tangible net worth of at
least Seventy-five Million Dollars ($75,000,000.00) at the time of exercise of
the option, and (iii) Tenant originally named herein remains in possession of
all or substantially all of the Building, Tenant shall have the option to cause
Landlord to construct a new building or buildings, as the case may be, and
related improvements on land as shown as Phase III Building on EXHIBIT A, which
new building shall contain not less than approximately 110,000 rentable square
feet and not more than approximately 250,000 rentable square feet (the "Phase
III Building") provided that Tenant gives Landlord written notice of its
exercise of this option on or before the end of the Lease Term. Tenant shall be
required to lease 100% of the Phase III Building for a term coterminous with the
Lease Term for the Leased Premises and the Phase I Building and, if applicable,
Phase II Building; provided, however, that the minimum term for the Phase III
Building shall be ten (10) years and the Lease Term for the Leased Premises,
Phase I Building and, if applicable, Phase II Building shall be extended, if
necessary, to be coterminous with the term for the Phase III Building. If Tenant
properly exercises its Phase III Building Expansion Option, then within thirty
(30) days of Landlord's receipt of such written exercise, Landlord and Tenant
shall enter into a written lease for the Phase III Building containing the terms
and conditions set forth in this Section 16.16. Except for the economic terms
and expansion rights, such lease shall be on the same terms and conditions
contained in this Lease. In addition, Landlord and Tenant shall enter into an
amendment of this Lease and the lease for the Phase I Building and, if
applicable, Phase II Building in the event that the lease term is extended as
set forth above in order to reflect the extended term and applicable Minimum
Annual Rent ( as set forth below) during such extended term.
Provided that Tenant fully cooperates with Landlord's building schedule, the
Phase III Building will be delivered and rent will commence no later than twelve
(12) months (or fifteen (15) months in the event a new lease for the Phase III
Building is executed during the period commencing August 1 and continuing
through December 31 of any year) after execution of said lease and, if
applicable, amendment of this Lease.
The Minimum Annual Rent for the Phase III Building will be derived from the
following formula:
Years 1 - 5: [(Project Costs of the Phase III Building x *.1295)
divided by .975] + Landlord's Share of Operating
Expenses
*subject to adjustment as set forth below
Example: [($100.00 x .1295) divided by .975]
+ $4.00 = $17.28
Years 6 - 10 [(Minimum Annual Rent for years 1 - 5 - Landlord's
Share of Operating Expenses) x one hundred sixteen
percent (116%)] + Landlord's Share of Operating
Expenses
Example: [($17.28 - $4.00) x 1.16] + $4.00 = $19.41
Years 11 - 15 [(Minimum Annual Rent for years 6 - 10 - Landlord's
Share of Operating Expenses) x one hundred sixteen
percent (116%)] + Landlord's Share of Operating
Expenses
Example: [($19.41 - $4.00) x 1.16] + $4.00 = $21.88
For purposes of this Section, "Project Costs" shall consist of the total of all
reasonable and customary hard and soft costs of constructing the Phase III
Building and common areas including the land for the Phase III Building and
common areas. All hard and soft cost items shall be competitively bid, and
Landlord agrees to obtain at least three (3) bids. The Phase III Building and
common areas shall be valued at $185,000 per acre, subject to an annual increase
of five percent (5%) per year commencing June 1, 2002. The development fee shall
be an amount equal to four (4%) of the Project Costs and the construction
management fee shall be an amount equal to ten percent (10%) of the Project
Costs minus the value of the land. The Project Costs shall not include any
leasing fees and Tenant shall be solely
responsible for compensating any real estate brokers and consultants it may
utilize in exercising its option. In the event that Tenant is rated as
"Investment Grade" by Xxxxx'x or Standard and Poor's rating service at the time
of its exercise of the option, then the ".975" multiplier as used in the above
formula shall be increased to ".99". In the event that the United States
Ten-Year Treasury Rate increases by more than 150 basis points from the
execution date of this Lease to the execution date of the lease for the Phase
III Building, then the ".1295" multiplier as used in the above formula shall be
increased basis point for basis point for each point in excess of 150. For
example, if the United States Ten-Year Treasury Rate during the applicable
period increased by 155 basis points, then the ".1295" multiplier would be
increased to ".130".
The Annual Rental Adjustment for the Phase III Building shall be the same as set
forth in this Lease except that Landlord's Share of Operating Expenses shall be
Four Dollars ($4.00) per rentable square foot of the Phase III Building, subject
to an annual increase of three percent (3%) per year commencing on October 1,
2001 and continuing through the date of occupancy under the lease for the Phase
III Building, at which point the amount shall be fixed and no longer subject to
increase.
The Minimum Annual Rent for the Leased Premises, Phase I Building and Phase II
Building during any extended term necessitated by the ten (10) year coterminous
provision as referenced above shall be an amount equal to the Minimum Annual
Rent then being quoted by Landlord to prospective tenants for space of
comparable size and quality and with similar or equivalent improvements as are
found in similar buildings in the vicinity, excluding free rent and other
concessions. Notwithstanding the foregoing, in no event shall the Minimum Annual
Rent during the extension term be less than the Minimum Annual Rent payable
during the original lease term under the applicable lease or more than, on a per
rentable square foot basis, the Minimum Annual Rent for the Phase III Building
during such period covered by the extension term. The Minimum Monthly Rent shall
be an amount equal to one-twelfth (1/12) of the Minimum Annual Rent for the
extension term and shall be paid at the same time and in the same manner as
provided in the Lease. For each rentable square foot of space for which the
lease term(s) is(are) extended under said coterminous provision, Tenant shall
receive from Landlord at the commencement of the lease term of the Phase III
Building a tenant finish allowance equal to One Dollar ($1.00) per rentable
square foot for each year of the extended term(s), which allowance shall, at
Tenant's discretion, be allocable to any building in Interactive Park.
Tenant acknowledges and agrees that the rights set forth in this Section 16.18
are contingent upon Tenant properly exercising its Phase I Building Expansion
Option and in the event that Tenant fails to properly exercise said option on or
before the later of May 31, 2003 or the end of the first (1st) year of the Lease
Term and the later of May 31, 2005, this option shall be null and void and of no
further effect.
SECTION 16.19. OPTION TO EXTEND.
Provided (i) Tenant (as used in this Section 16.19, the term "Tenant" shall also
include any Permitted Transferee that succeeds to Tenant's interest under
Article 11, above) is not in Default hereunder at the time it exercises this
option, (ii) the creditworthiness of Tenant is no less than on the date hereof,
(iii) Tenant originally named herein remains in possession of all or
substantially all of the Leased Premises, Tenant shall have the option to extend
the Original Term for five (5) successive periods of five (5) years each (the
"Extension Term(s)"). The Extension Term shall be upon the same terms and
conditions contained in the Lease during the initial Lease Term (the "Original
Term") except (i) this provision giving five (5) extension options shall be
amended to reflect the remaining options to extend, if any and (ii) the Minimum
Annual Rent shall be adjusted as set forth below (the "Rent Adjustment"). Tenant
shall exercise such option by (i) delivering to Landlord, no later than nine (9)
months prior to the expiration of the Original Term or, if applicable, the
Extension Term, written notice of Tenant's desire to extend the Original Term
or, if applicable, the Extension Term, and (ii) delivering to Landlord within
fifteen (15) business days of receipt of the Rent Adjustment, written notice of
its rejection thereof (which rejection shall terminate Tenant's option to
extend), or that Tenant disputes Landlord's determination of the Rental
Adjustment and shall include Tenant's good faith determination of what the
Rental Adjustment should be. In the case of a notice disputing the Rental
Adjustment, Landlord and Tenant shall mutually work together for a period of ten
(10) days to resolve the dispute and, if unable to agree upon the Rental
Adjustment within said period, Landlord and Tenant shall in good faith
participate in non-binding arbitration of the Rental Adjustment for a period of
thirty (30) days. Unless Landlord otherwise agrees in writing, Tenant's failure
to timely exercise such option shall waive it and any succeeding option.
Landlord shall notify Tenant of the amount of the Rent Adjustment no later than
sixty (60) days after receipt of Tenant's exercise of its option. If Tenant
properly exercises its option to extend, Landlord and Tenant shall execute an
amendment to the Lease reflecting the terms and conditions of the Extension
Term.
The Minimum Annual Rent for the applicable Extension Term shall be an amount
equal to the Minimum Annual Rent then being quoted by Landlord to prospective
tenants of the Building for space of
comparable size and quality and with similar or equivalent improvements as are
found in the Building, and if none, then in similar buildings in the vicinity,
excluding free rent and other concessions; provided, however, that in no event
shall the Minimum Annual Rent per square foot during any Extension Term be less
than the highest Minimum Annual Rent per square foot payable during the
immediately preceding term. The Minimum Monthly Rent shall be an amount equal to
one-twelfth (1/12) of the Minimum Annual Rent for the Extension Term and shall
be paid at the same time and in the same manner as provided in the Lease.
SECTION 16.20. RIGHT OF FIRST OFFER FOR THE VIFI EXPANSION SPACE.
In the event that (a) Landlord chooses to construct a new office building and
related improvements on land contiguous to the building commonly known as 0000
Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx Corporate Park, as shown on EXHIBIT A (currently
planned to contain approximately 90,000 rentable square feet ("ViFi Expansion
Space")), and (b) Virtual Financial Services, its successors and assigns
("ViFi") have waived all rights to the ViFi Expansion Space, then provided that
(i) Tenant (as used in this Section 16.20, the term "Tenant" shall also include
any Permitted Transferee that succeeds to Tenant's interest under Article 11,
above) is not in Default at the time it exercises this option, (ii) Tenant has a
tangible net worth of not less than Seventy-five Million Dollars
($75,000,000.00) at the time of exercise, and (iii) Tenant originally named
herein remains in possession of all or substantially all of the Leased Premises,
Landlord shall notify Tenant in writing ("Landlord's Notice") of the
availability of such new office building for lease before entering into a lease
with a third party other than ViFi for all or part of the ViFi Expansion Space.
Tenant shall have five (5) business days from its receipt of Landlord's Notice
to deliver to Landlord a written acceptance agreeing to lease the entire ViFi
Expansion Space on the terms and conditions contained in Landlord's Notice. In
the event Tenant fails to notify Landlord of its acceptance within said five (5)
business day period, such failure shall be conclusively deemed a waiver of
Tenant's Right of First Offer for the ViFi Expansion Space and a rejection of
the ViFi Expansion Space, whereupon Tenant shall have no further rights with
respect to the ViFi Expansion Space and Landlord shall be free to lease the ViFi
Expansion Space to one or more third parties. In the event Tenant accepts the
ViFi Expansion Space on the terms and conditions specified in Landlord's Notice,
the term for the ViFi Expansion Space shall be coterminous with the term for the
original Leased Premises; provided, however, that the minimum term for the ViFi
Expansion Space shall be ten (10) years and the Term for the original Leased
Premises shall be extended, to be coterminous with the term for the ViFi
Expansion Space. The Minimum Annual Rent for the ViFi Expansion Space shall be
equal to the rate which is then being quoted by Landlord to prospective new
tenants for the ViFi Expansion Space, excluding free rent and other concessions,
provided, however, that in no event shall Tenant's Minimum Annual Rent per
square foot for the ViFi Expansion Space be less than the highest Minimum Annual
Rent per square foot payable during the original Lease Term for the original
Leased Premises. The Minimum Annual Rent for the original Leased Premises during
any such extended term shall be an amount equal to the Minimum Annual Rent then
being quoted by Landlord to prospective new tenants of the ViFi Expansion Space,
excluding free rent and other concessions, provided, however, that in no event
shall the Minimum Annual Rent during such extended term be less than the highest
Minimum Annual Rent payable during the original Lease Term for the original
Leased Premises. It is understood and agreed that this Right of First Offer for
the ViFi Expansion Space is subject to and subordinate to any and all rights
granted to ViFi prior to the date hereof.
SECTION 16.21. NAME CHANGE OF PARK.
Upon the later to occur of (i) Tenant's possession and occupancy of the Leased
Premises, or (ii) payment by Tenant of the first Monthly Rental Installment and
for so long as Interactive Intelligence, Inc. remains the "Tenant" hereunder and
is open and operating in all or substantially all of the Leased Premises under
the tradename Interactive Intelligence, ,Landlord shall change the name of
Woodland Corporate Park to "Interactive Park". Such change of name shall include
all internal and external signage and all advertising and promotional material.
The cost of such change shall be borne by Landlord. If Tenant shall assign all
of its interest under the Lease to a Permitted Transferee, Landlord shall, if so
requested by the Permitted Transferee, change the name of Interactive Park to a
name mutually acceptable to Landlord and the Permitted Transferee; provided,
however, that all costs of such name change shall be borne by the Permitted
Transferee.
SECTION 16.22. INFRASTRUCTURE IMPROVEMENTS.
Landlord and/or Tenant have negotiated and obtained or will obtain from the City
of Indianapolis and the State of Indiana infrastructure improvements for
construction or improvement to the sanitary sewer, storm water sewer, water line
and entrance road that will service the Building and Common Areas and related
improvements (collectively, the "Infrastructure Grant"). Landlord acknowledges
and agrees that the value of such improvements is Two Hundred Five Thousand
Dollars ($205,000.00). Landlord agrees to pay such amount to Tenant upon
completion of the infrastructure improvements or, if such
improvements are not entirely completed by the City and the State, to pay such
portion of such amount that corresponds to the value of such items completed.
SECTION 16.23. EARLY OCCUPANCY.
Landlord will allow Tenant to take possession and occupancy of the
Leased Premises on the Occupancy Date, which shall be one month prior to the
Commencement Date. All of the terms and conditions of this Lease will become
effective upon Tenant taking possession and occupancy of the Leased Premises,
except for the payment of Minimum Annual Rent and Annual Rental Adjustment,
which will commence on the Commencement Date.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the day and year first above written.
LANDLORD:
DUKE-WEEKS REALTY LIMITED PARTNERSHIP,
an Indiana limited partnership
By: Duke-Weeks Realty Corporation,
its general partner
By: /s/ Xxxxx Xxxxx
-----------------------------
Xxxxx Xxxxx
Senior Vice President
Indiana Office
TENANT:
INTERACTIVE INTELLIGENCE, INC., an Indiana corporation
By: /s/ Xxxx X. Xxxxx
-----------------------------
Printed: Xxxx X. Xxxxx
Title: Executive Vice President
STATE OF Indiana )
---------
) SS:
COUNTY OF Xxxxxx )
------
Before me, a Notary Public in and for said County and State, personally
appeared XXXX X. XXXXX, by me known to be the EXECUTIVE VICE PRESIDENT of
Interactive Intelligence, Inc., an Indiana corporation, who acknowledged the
execution of the foregoing "Office Lease" on behalf of said corporation.
WITNESS my hand and Notarial Seal this 1st day of April , 2001.
/s/ Xxxxx X. Xxxx
------------------------
Notary Public
Xxxxx X. Xxxx
------------------------
(Printed Signature)
My Commission Expires: Xxxxx 00, 0000
Xx County of Residence: Xxxxxx
EXHIBIT C
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or used for any purpose
other than ingress and egress.
2. No awnings or other projections shall be attached to the outside
walls of the Building. Neither the interior nor the exterior of any windows
shall be coated or otherwise sunscreened without written consent of Landlord.
3. No sign, advertisement, notice or handbill shall be exhibited,
distributed, painted or affixed by any tenant on, about or from any part of the
Leased Premises or the Building without the prior written consent of Landlord.
In the event of the violation of the foregoing by any tenant, Landlord may
remove or stop same without any liability, and may charge the expense incurred
in such removal or stopping to tenant. The lobby directory will be provided
exclusively for the display of the name and location of tenants only, and
Landlord reserves the right to exclude any other names therefrom. Nothing may be
placed on the exterior of corridor walls or corridor doors other than Landlord's
standard lettering.
4. The sashes, sash doors, windows, and doors that reflect or admit
light and air into halls, passageways or other public places in the Building
shall not be covered or obstructed by tenant.
5. The sinks and toilets and other plumbing fixtures shall not be used
for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein. All
damages resulting from any misuse of the fixtures shall be borne by the tenant
who, or whose subtenants, assignees or any of their servants, employees, agents,
visitors or licensees shall have caused the same.
6. No tenant shall xxxx, paint, drill into, or in any way deface any
part of the Leased Premises or the Building. Landlord shall direct electricians
as to where and how telephone or telegraph wires are to be introduced.
7. No bicycles, vehicles, birds or animals of any kind (except seeing
eye dogs) shall be brought into or kept in or about the Leased Premises. No
tenant shall cause or permit any unusual or objectionable odors to be produced
or permeate the Leased Premises.
8. No tenant shall occupy or permit any portion of the Leased Premises
to be occupied as an office for the manufacture or sale of liquor, narcotics, or
tobacco in any form, or as a medical office, or as a xxxxxx or manicure shop, or
an employment bureau without the express written consent of Landlord. The Leased
Premises shall not be used for lodging or sleeping or for any immoral or illegal
purpose.
9. No tenant shall make, or permit to be made any unseemly or
disturbing noises or disturb or interfere with occupants of this or neighboring
buildings or premises or those having business with them, whether by the use of
any musical instrument, radio, phonograph, unusual noise, or in any other way.
No tenant shall throw anything out of doors, windows or down the passageways.
10. No tenant, subtenant or assignee nor any of its servants,
employees, agents, visitors or licensees, shall at any time bring or keep upon
the Leased Premises any inflammable, combustible or explosive fluid, chemical or
substance or firearm.
11. No additional locks or bolts of any kind shall be placed upon any
of the doors or windows by any tenant, nor shall any changes be made in existing
locks or the mechanism thereof if the same unreasonably interferes with
Landlord's ability to perform its obligations under the Lease. Each tenant must
upon the termination of his tenancy, restore to the Landlord all keys of doors,
offices, and toilet rooms, either furnished to, or otherwise procured by, such
tenant and in the event of the loss of keys so furnished, such tenant shall pay
to the Landlord the cost of replacing the same or of changing the lock or locks
opened by such lost key if Landlord shall deem it necessary to make such
changes.
Exhibit "C"
Page 1 of 2
12. No Tenant shall overload the floors of the Leased Premises. All
damage to the floor, structure or foundation of the Building due to improper
positioning or storage items or materials shall be repaired by Landlord at the
sole cost and expense of tenant, who shall reimburse Landlord immediately
therefor upon demand. Landlord reserves the right to inspect all safes, freight
or other bulky articles to be brought into the Building and to exclude from the
Building all safes, freight or other bulky articles which violate any of these
Rules and Regulations or the Lease of which these Rules and Regulations are a
part. The Landlord reserves the right to prescribe the weight and position of
all safes, which must be placed upon supports approved by Landlord to distribute
the weight.
13. No tenant shall purchase janitorial or maintenance or other like
services, from any person or persons not approved by Landlord, which approval
shall not be unreasonably withheld, delayed or conditioned.
14. Landlord agrees that Tenant shall have the right to use pictures of
the Building and the address and name of the Building, campus and Park in any of
its promotional materials. Landlord shall have the right to prohibit any
advertising by any tenant which, in Landlord's opinion tends to impair the
reputation of the Building or its desirability as an office location, and upon
written notice from Landlord any tenant shall refrain from or discontinue such
advertising.
15. Landlord reserves the right to require all persons entering the
Building between the hours of 8 p.m. and 7 a.m. and at all hours on Sunday and
legal holidays to register with Landlord's security personnel. Tenant shall be
responsible for all persons entering the Building at tenant's invitation,
express or implied. Landlord shall in no case be liable for damages for any
error with regard to the admission to or exclusion from the Building of any
person. In case of an invasion, mob riot, public excitement or other
circumstances rendering such action advisable in Landlord's opinion, Landlord
reserves the right without any abatement of rent to require all persons to
vacate the Building and to prevent access to the Building during the continuance
of the same for the safety of the tenants and the protection of the Building and
the property in the Building.
16. Outside parties are prohibited from canvassing, soliciting and
peddling in the Building, and each tenant shall report and otherwise cooperate
to prevent the same.
17. All office equipment of any electrical or mechanical nature shall
be placed by tenant in the Leased Premises in settings which will, to the
maximum extent possible, absorb or prevent any vibration, noise and annoyance.
18. No air-conditioning unit or other similar apparatus shall be
installed or used by any tenant without the written consent of Landlord, which
consent shall not be unreasonably withheld, delayed or conditioned.
19. There shall not be used in any space, or in the public halls of the
Building, either by any tenant or others, any hand trucks except those equipped
with rubber tires and rubber side guards.
20. The Building is a smoke-free Building. Smoking is strictly
prohibited within the Building. Smoking shall only be allowed in areas
designated as a smoking area by Landlord. Tenant and its employees,
representatives, contractors or invitees shall not smoke within the Building or
throw cigar or cigarette butts or other substances or litter of any kind in or
about the Building, except in receptacles placed in it for that purpose.
21. Tenants will see that all doors are securely locked.
22. Parking spaces associated with the Building are intended for the
exclusive use of passenger vehicles. Except for intermittent deliveries, no
vehicles other than passenger vehicles may be parked in a parking space without
the express written permission of Landlord.
23. Tenant shall be responsible for and cause the proper disposal of
medical waste, including hypodermic needles, created by its employees.
It is Landlord's desire to maintain in the Building the highest standard of
dignity and good taste consistent with comfort and convenience for tenants. Any
action or condition not meeting this high standard should be reported directly
to Landlord.
Exhibit "C"
Page 2 of 2
