Exhibit 99.1
AGREEMENT OF PURCHASE AND SALE
This Agreement, dated as of July ____, 2005, is between XXXXXX HOLDINGS
CORP., an Illinois corporation, as trustee for XXXXXX-OFP TRUST, an Illinois
trust ("SELLER"), and HARVARD PROPERTY TRUST, LLC, a Delaware limited liability
company, d/b/a Behringer Harvard Funds ("BUYER").
ARTICLE I
PURCHASE AND SALE OF PROPERTY
SECTION 1.1 PURCHASE AND SALE.
Seller agrees to sell to Buyer, and Buyer agrees to purchase from
Seller, subject to the terms, covenants and conditions set forth herein, the
following property (collectively, the "PROPERTY"):
(A) REAL PROPERTY. The land legally described in EXHIBIT A
attached hereto and made a part hereof located in the City of Minneapolis, State
of Minnesota, together with (1) all improvements located thereon or therein (the
"IMPROVEMENTS"), (2) all of Seller's interest in and to all rights, benefits,
privileges, easements, tenements, hereditaments, rights-of-way and other
appurtenances thereto, including all development and air rights, and (3) all of
Seller's interest in all strips and gores and any land lying in the bed of any
street, road or alley, open or proposed, adjoining such land (all of the
foregoing being hereinafter collectively referred to as the "REAL PROPERTY");
(B) LEASES. All of the landlord's interest in and to all of
the Leases (as defined in Section 2.1(b) below) of the Real Property, including
Leases entered into after the date of this Agreement as permitted by this
Agreement;
(C) TANGIBLE PERSONAL PROPERTY. All of the equipment,
machinery, furniture, furnishings, supplies and other tangible personal
property, if any, owned by Seller and now or hereafter located on and used
exclusively in the operation, ownership or maintenance of the Real Property
(collectively, the "TANGIBLE PERSONAL PROPERTY"), but specifically excluding
from, and not considered part of, the Tangible Personal Property (1) any items
of personal property owned by tenants of the Property, (2) any items of personal
property listed in SCHEDULE 1 attached hereto and made a part hereof, (3) any
items of personal property owned by third parties and leased to Seller listed on
EXHIBIT G, and (4) proprietary computer software, systems and equipment and
related licenses used in connection with the operation or management of the
Property; and
(D) INTANGIBLE PERSONAL PROPERTY. To the extent assignable
at no cost to Seller, all intangible personal property, if any, owned by Seller
and related to the Real Property and the Improvements, including, without
limitation: any trade names and trademarks associated with the Real Property and
the Improvements; any plans and specifications and other architectural and
engineering drawings for the Improvements; any warranties; any Service Contracts
(as defined in Section 2.1(b) below) and other contract rights related to the
Property (but only to the extent Seller's obligations thereunder are expressly
assumed by Buyer pursuant to the Assignment of
Leases as defined in Section 8.3(a)(3) below); and any governmental permits,
approvals and licenses (including any pending applications) (collectively, the
"INTANGIBLE PERSONAL PROPERTY").
SECTION 1.2 PURCHASE PRICE.
(A) The purchase price of the Property is Fifty-Seven
Million One Hundred Fifty Thousand and no/100 Dollars ($57,150,000.00) (the
"PURCHASE PRICE").
(B) The Purchase Price shall be paid as follows:
(1) Within three (3) business days after the
Effective Date, Buyer shall deposit in escrow with First American Title
Insurance Company (the "TITLE COMPANY") cash or other immediately available
funds in the amount of Two Million Five Hundred Thousand and no/100 Dollars
($2,500,000.00), which sum shall be increased to Five Million and no/100 Dollars
($5,000,000.00) within three (3) business days after the expiration of the
Contingency Period, provided this Agreement has not been terminated prior to the
end of the Contingency Period (the "Deposit"). One Million and no/100 Dollars
($1,000,000.00) of the Deposit (the "INITIAL PORTION") shall be non-refundable
to Buyer from and after the Effective Date for any reason whatsoever except as
otherwise expressly provided herein. In the event Buyer waives or is deemed to
have waived Buyer's right to terminate this Agreement pursuant to Section 2.2
below, the entire Deposit shall be non-refundable to Buyer for any reason
whatsoever except as otherwise expressly provided herein.
The Deposit shall be held in an interest bearing account and all interest
thereon, less investment fees, if any, shall be deemed a part of the Deposit. If
the sale of the Property as contemplated hereunder is consummated, then the
Deposit shall be paid to Seller at the Closing (as defined in Section 1.2(b)(2)
below) and credited against the Purchase Price. If the sale of the Property is
not consummated due to Seller's default hereunder, then Buyer may elect, as
Buyer's sole and exclusive remedy, either to: (1) terminate this Agreement and
receive a refund of the Deposit (including the Initial Portion), in which event
neither party shall have any further rights or obligations hereunder except as
provided in Sections 6.1, 9.3 and 9.9 below, or (2) enforce specific performance
of this Agreement. Buyer shall not have any other rights or remedies hereunder
as a result of any default by Seller prior to Closing, and Buyer hereby waives
any other such remedy as a result of a default hereunder by Seller. If the sale
is not consummated due to any default by Buyer hereunder, then Seller shall
retain the Deposit as liquidated damages as its sole and exclusive remedy.
Seller shall not have any other rights or remedies hereunder as a result of any
default by Buyer prior to Closing, and Seller hereby waives any other such
remedy as a result of a default hereunder by Buyer. The parties have agreed that
Seller's actual damages, in the event of a failure to consummate this sale due
to Buyer's default prior to Closing, would be extremely difficult or
impracticable to determine. After negotiation, the parties have agreed that,
considering all the circumstances existing on the date of this Agreement, the
amount of the Deposit is a reasonable estimate of the damages that Seller would
incur in such event.
(2) The balance of the Purchase Price (plus or minus
the prorations pursuant to Section 8.5 hereof) shall be paid to Seller in cash
or by wire transfer of other
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immediately available funds at the consummation of the purchase and sale
contemplated hereunder (the "CLOSING").
ARTICLE II
CONDITIONS
SECTION 2.1 BUYER'S CONDITIONS PRECEDENT.
Subject to the provisions of Section 9.3 hereof, Seller has provided
and/or shall provide Buyer and its consultants and other agents and
representatives with access to the Property to perform Buyer's inspections and
review and determine the present condition of the Property. Seller has either
delivered to Buyer's offices or made available to Buyer at the Property copies
of all Due Diligence Materials (as defined in Section 2.2 below) in Seller's
possession or reasonably accessible to Seller, except as otherwise specifically
provided herein. Notwithstanding anything to the contrary contained herein, the
Due Diligence Materials shall expressly exclude (i) those portions of the Due
Diligence Materials that would disclose Seller's cost of acquisition of the Real
Property, or cost of construction of the Improvements and related soft costs, or
any estimates of costs to repair, replace, remediate or maintain the Real
Property, (ii) any reports, presentations, summaries and the like prepared for
any of Seller's boards, committees, partners or investors in connection with its
consideration of the acquisition of the Real Property, construction of the
Improvements or sale of the Property, (iii) any proposals, letters of intent,
draft contracts or the like prepared by or for other prospective purchasers of
the Property or any part thereof, (iv) Seller's internal memoranda,
attorney-client privileged materials, or internal appraisals, and (v) any
information which is the subject of a confidentiality agreement between Seller
and a third party (the items described in clauses (i), (ii) (iii), (iv) and (v)
being collectively referred to as the "CONFIDENTIAL INFORMATION"). Buyer's
obligation to purchase the Property is conditioned upon Buyer's review and
approval of the following, within the applicable time periods described in
Sections 2.2 and 4.1 hereof:
(A) Title to the Property and survey matters in accordance
with Article IV below.
(B) The Due Diligence Materials, including, but not limited
to, tenant leases, any guaranties thereof and any other occupancy agreements,
and all amendments and modifications thereof (collectively, the "LEASES")
affecting the Property, and of all contracts pertaining to the operation of the
Property, including all management, leasing, service and maintenance agreements
listed on EXHIBIT G, and equipment leases listed on EXHIBIT G (collectively, the
"SERVICE CONTRACTS").
(C) The physical condition of the Property.
(D) The zoning, land use, building, environmental and other
statutes, rules, or regulations applicable to the Property.
(E) Operating statements and financial books and records
pertaining to the operation of the Property for each of the three (3) most
recent years during which the Property has been owned by Seller and for the
current year (to the extent available), current rent roll,
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schedule of accounts receivable, tenant correspondence files, current real
estate tax bills, any warranties, licenses, permits, certificates of occupancy
and plans and specifications either in Seller's possession or within Seller's
control at the Property, a list of Tangible Personal Property in such form as
Seller shall have in its possession for the Property, other agreements or
documents pertaining to the Property which will be binding on Buyer after
Closing, and the other items listed on EXHIBIT L attached hereto.
SECTION 2.2 CONTINGENCY PERIOD.
Buyer shall have until 5:00 p.m. (Central time) on the day that is
fifteen (15) days after the Effective Date (such period being referred to herein
as the "CONTINGENCY PERIOD") to review and approve the matters described in
Sections 2.1(b)-(e) above in Buyer's sole discretion (provided that title and
survey review and approval shall be governed by the provisions of Section 4.1
below). If Buyer disapproves of any such matters, then Buyer may terminate this
Agreement by notifying Seller thereof in writing before the end of the
Contingency Period and, in such instance, the Deposit (other than the Initial
Portion, provided that if Buyer properly terminates pursuant to Section 4.1,
Section 4.1 shall control) shall be returned to Buyer, the Initial Portion shall
be paid to Seller, and neither party shall have any further rights or
obligations hereunder except as provided in Sections 6.1, 9.3 and 9.9 below. In
the event Buyer fails to provide Seller with notice of termination prior to the
expiration of the Contingency Period, Buyer shall be deemed to have approved all
of the matters described in Sections 2.1(a)-(e) above (subject to the provisions
of Section 4.1 below as to title and survey matters), including, without
limitation, all documents, Service Contracts and other contracts, agreements,
Leases, reports and other items and materials related to the Property prepared
by or on behalf of Seller and delivered or made available to Buyer
(collectively, the "DUE DILIGENCE MATERIALS"), and the entire Deposit shall
become nonrefundable except as expressly provided herein.
SECTION 2.3 AUDIT BY BUYER.
Buyer has advised Seller that Buyer must cause to be prepared up to
three (3) years of audited financial statements in respect of the Property in
compliance with the policies of Buyer and certain laws and regulations,
including, without limitation, Securities and Exchange Commission Regulation
S-X, Rule 3-14. Seller agrees to use reasonable efforts to cooperate with
Buyer's auditors in the preparation of such audited financial statements (it
being understood and agreed that the foregoing covenant shall survive the
Closing). Without limiting the generality of the preceding sentence (a) Seller
shall, during normal business hours, allow Buyer's auditors reasonable access to
such books and records maintained by Seller (and Seller's manager of the
Property) in respect of the Property as necessary to prepare such audited
financial statements; (b) Seller shall use reasonable efforts to provide to
Buyer such financial information and supporting documentation as are necessary
for Buyer's auditors to prepare audited financial statements; (c) Seller will
make available for interview by Buyer and Buyer's auditors the manager of the
Property or other agents or representatives of Seller responsible for the
day-to-day operation of the Property and the keeping of the books and records in
respect of the operation of the Property; and (d) if Seller has audited
financial statements with respect to the Property, Seller shall promptly provide
Buyer's auditors with a copy of such audited financial statements. If after the
Closing Date Seller obtains an audited financial statement in respect of the
Property for a fiscal period prior to the Closing Date that was not completed as
of the Closing
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Date, then Seller shall promptly provide Buyer with a copy of such audited
financial statement, and the foregoing covenant shall survive Closing. Seller's
agreement to cooperate under this Section 2.3 shall not include any obligation
to pay costs or expenses incurred in connection with any audit performed by
Buyer. Seller makes no representation or warranty concerning the accuracy or
completeness of any books, records, financial information and/or supporting
documentation reviewed by Buyer in connection with performing any audit nor
shall any matter discovered during the audit process be deemed an "Exception
Matter" as defined in Section 3.2 hereof.
ARTICLE III
BUYER'S EXAMINATION
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF SELLER.
Subject to the disclosures contained in SCHEDULE 2 attached hereto and
made a part hereof (the "DISCLOSURE ITEMS"), matters contained in the Due
Diligence Materials, and any matters of public record where the Property is
located, Seller hereby makes the following representations and warranties with
respect to the Property. Notwithstanding anything to the contrary contained
herein or in any document delivered in connection herewith, Seller shall have no
liability with respect to the Disclosure Items.
(A) Seller has not (i) made a general assignment for the
benefit of creditors, (ii) filed any voluntary petition in bankruptcy or
suffered the filing of any involuntary petition by Seller's creditors, (iii)
suffered the appointment of a receiver to take possession of all, or
substantially all, of Seller's assets, (iv) suffered the attachment or other
judicial seizure of all, or substantially all, of Seller's assets, (v) admitted
in writing its inability to pay its debts as they come due, or (vi) made an
offer of settlement, extension or composition to its creditors generally.
(B) Seller is not a "foreign person" as defined in Section
1445 of the Internal Revenue Code of 1986, as amended (the "CODE") and any
related regulations.
(C) This Agreement has been, and all documents executed by
Seller which are to be delivered to Buyer at Closing will be, duly authorized,
executed and delivered by Seller; and this Agreement does not and such other
documents will not violate any provision of any agreement or judicial order to
which Seller is a party or to which Seller or, to the best of Seller's
knowledge, the Property is subject.
(D) The only Leases in force for the Property are set forth
in a tenant list attached hereto as EXHIBIT B and made a part hereof and to the
best of Seller's knowledge Seller has received no written notice of any default
by Seller with respect to such Leases which has not been cured. Seller has
delivered or will promptly deliver to Buyer true and complete copies of each
Lease. To Seller's knowledge, there is no material default by the tenant or
landlord under any Lease.
(E) The only Service Contracts that will be in effect for
the Property at Closing are set forth in a list of Service Contracts attached
hereto as EXHIBIT G and made a part hereof. Seller has delivered or will
promptly deliver to Buyer true and complete copies of each
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Service Contract. To Seller's knowledge, there is no material default under any
Service Contract by any party thereto.
(F) To the best of Seller's knowledge, there is no
litigation or governmental proceeding (including, but not limited to any
condemnation proceeding) pending or threatened with respect to the Property, or
with respect to Seller which impairs Seller's ability to perform its obligations
under this Agreement, except for any personal injury or property damage action
for which there is adequate insurance coverage.
(G) To the best of Seller's knowledge, Seller does not know
of any and has not received any written notice from any governmental authority
of any violation of any law, code, regulation, statute, ordinance, condition, or
restriction of record applicable to the Property (including, without limitation,
any Environmental Law as defined in Section 3.6(a)(2) below) that has not been
corrected.
(H) Seller has no employees.
(I) Except as provided on SCHEDULE 5, attached hereto, all
leasing commissions attributable to the execution of Leases existing as of the
Effective Date or the move-in of tenants occupying the Property as of the
Effective Date have either been paid in full or will be paid in full before the
Closing. Except as may be set forth in the Leases, there are no agreements
obligating the owner of the Property to pay leasing commissions upon the renewal
or extension of the Leases.
Each of the representations and warranties of Seller contained in this
Section 3.1: (1) shall be true in all material respects as of the date of
Closing, subject in each case to (A) any Exception Matters (as defined below),
(B) the Disclosure Items, and (C) other matters expressly permitted in this
Agreement or otherwise specifically approved in writing; and (2) shall survive
the Closing as provided in Section 3.3 below.
SECTION 3.2 NO LIABILITY FOR EXCEPTION MATTERS.
As used herein, the term "EXCEPTION MATTER" shall refer to a matter
which would make a representation or warranty of Seller contained in this
Agreement untrue or incorrect and which is disclosed to Buyer in the Due
Diligence Materials, the Disclosure Items, or otherwise, or by written notice,
or is otherwise discovered by Buyer before the Closing, including, without
limitation, matters disclosed in any tenant estoppel certificate or from
interviews with tenants, property managers or any other person. If Buyer first
obtains knowledge of any material Exception Matter after the close of the
Contingency Period and prior to Closing and such Exception Matter was not
contained in the Due Diligence Materials or the Disclosure Items, Buyer's sole
remedy shall be to terminate this Agreement on the basis thereof, upon written
notice to Seller within the earlier of (a) five (5) days following Buyer's
discovery of such Exception Matter or (b) the Closing, which ever occurs first,
in which event the Deposit (including the Initial Portion) shall be returned to
Buyer, unless within five (5) days after receipt of such notice or by the
Closing, as the case may be, Seller notifies Buyer in writing that it elects to
attempt to cure or remedy such Exception Matter, in which event there shall be
no return of the Deposit unless and until Seller is unable to so cure or remedy
within the time period set forth
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below. Seller shall be entitled to extend the Closing Date (as defined in
Section 8.2 below) for up to fifteen (15) business days in order to attempt to
cure or remedy any Exception Matter. Buyer's failure to give notice within five
(5) days after it has obtained knowledge of a material Exception Matter shall be
deemed a waiver by Buyer of such Exception Matter. Seller shall have no
obligation to cure or remedy any Exception Matter, even if Seller has notified
Buyer of Seller's election to attempt to cure or remedy any Exception Matter
(except as specifically provided in Section 4.1(c) hereof), and, subject to
Buyer's right to terminate this Agreement as set forth above, Seller shall have
no liability whatsoever to Buyer with respect to any Exception Matters. Upon any
termination of this Agreement, neither party shall have any further rights nor
obligations hereunder, except as provided in Sections 6.1, 9.3 and 9.9 below. If
Buyer obtains knowledge of any Exception Matter before the Closing, but
nonetheless elects to proceed with the acquisition of the Property, Seller shall
have no liability with respect to such Exception Matter, notwithstanding any
contrary provision, covenant, representation or warranty contained in this
Agreement.
SECTION 3.3 SURVIVAL OF SELLER'S REPRESENTATIONS AND WARRANTIES OF
SALE.
The representations and warranties of Seller contained herein or in any
Other Documents shall survive for a period of ending on January 31, 2006. Any
claim which Buyer may have against Seller for a breach of any such
representation or warranty, whether such breach is known or unknown, which is
not specifically asserted by written notice to Seller within such period and
which is not the basis for an action commenced within sixty (60) days after the
expiration of such period shall not be valid or effective, and Seller shall have
no liability with respect thereto.
SECTION 3.4 SELLER'S KNOWLEDGE.
For purposes of this Agreement and any document delivered at Closing,
whenever the phrase "TO THE BEST OF SELLER'S KNOWLEDGE" or the "KNOWLEDGE" of
Seller or words of similar import are used, they shall be deemed to mean and are
limited to the current actual knowledge only of Xxxxx X. Xxxxxx, Xxxxxx Xxxxxx
and Xxx Xxxxxx, at the times indicated only, and not any implied, imputed or
constructive knowledge of such individual(s) or of Seller or any Seller Related
Parties (as defined in Section 3.7 below), and without any independent
investigation or inquiry having been made or any implied duty to investigate,
make any inquiries or review the Due Diligence Materials. Furthermore, it is
understood and agreed that such individual(s) shall have no personal liability
in any manner whatsoever hereunder or otherwise related to the transactions
contemplated hereby.
SECTION 3.5 REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer represents and warrants to Seller as follows:
(A) This Agreement and all documents executed by Buyer which
are to be delivered to Seller at Closing do not and at the time of Closing will
not violate any provision of any agreement or judicial order to which Buyer is a
party or to which Buyer is subject.
(B) Buyer has not (i) made a general assignment for the
benefit of creditors, (ii) filed any voluntary petition in bankruptcy or
suffered the filing of any involuntary petition by Buyer's creditors, (iii)
suffered the appointment of a receiver to take possession of all, or
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substantially all, of Buyer's assets, (iv) suffered the attachment or other
judicial seizure of all, or substantially all, of Buyer's assets, (v) admitted
in writing its inability to pay its debts as they come due, or (vi) made an
offer of settlement, extension or composition to its creditors generally.
(C) Buyer has been duly organized, is validly existing and
is in good standing in the state in which it was formed. If required to do so,
on or before Closing, Buyer or its assignee permitted hereby will be qualified
to do business in the state in which the Real Property is located. This
Agreement has been, and all documents executed by Buyer which are to be
delivered to Seller at Closing will be, duly authorized, executed and delivered
by Buyer.
(D) Other than Seller's Broker (as defined in Section 6.1
below), Buyer has had no contact with any broker or finder with respect to the
Property.
Each of the representations and warranties of Buyer contained in this
Section shall be deemed remade by Buyer as of the Closing and shall survive the
Closing.
SECTION 3.6 BUYER'S INDEPENDENT INVESTIGATION.
(A) By Buyer electing to proceed (and not terminating the
Agreement) under Section 2.2, Buyer will be deemed to have acknowledged and
agreed that it has been given a full opportunity to inspect and investigate each
and every aspect of the Property, either independently or through agents of
Buyer's choosing, including, without limitation:
(1) All matters relating to title and survey,
together with all governmental and other legal requirements such as taxes,
assessments, zoning, use permit requirements and building codes.
(2) The physical condition and aspects of the
Property, including, without limitation, the interior, the exterior, the square
footage within the improvements on the Real Property and within each tenant
space therein, the structure, the foundation, roof, paving, parking facilities,
utilities, and all other physical and functional aspects of the Property. Such
examination of the physical condition of the Property shall include an
examination for the presence or absence of Hazardous Materials, as defined
below, which shall be performed or arranged by Buyer (subject to the provisions
of Section 9.3 hereof) at Buyer's sole expense. For purposes of this Agreement,
"HAZARDOUS MATERIALS" shall mean inflammable explosives, radioactive materials,
asbestos, asbestos-containing materials, polychlorinated biphenyls, lead,
lead-based paint, radon, mold, under and/or above ground tanks, hazardous
materials, hazardous wastes, hazardous substances, oil, or related materials,
which are listed or regulated in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections 6901, et
seq.), the Resources Conservation and Recovery Act of 1976 (42 U.S.C. Section
6901, et seq.), the Clean Water Act (33 U.S.C. Section 1251, et seq.), the Safe
Drinking Water Act (14 U.S.C. Section 1401, et seq.), the Hazardous Materials
Transportation Act (49 U.S.C. Section 1801, et seq.), and the Toxic Substance
Control Act (15 U.S.C. Section 2601, et seq.), and any other applicable federal,
state or local laws (collectively, "ENVIRONMENTAL LAWS"). Buyer acknowledges
that the Property contains a minor amount of asbestos and/or asbestos containing
materials and, without intending to limit any other
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exceptions, disclosures or limitations set forth in this Agreement, Buyer fully
accepts such condition.
(3) Any easements and/or access rights affecting the
Property.
(4) The Leases and all matters in connection
therewith, including, without limitation, the ability of the tenants to pay the
rent and the economic viability of the tenants.
(5) The Service Contracts and any other documents or
agreements of significance affecting the Property.
(6) All other matters of material significance
affecting the Property, including, but not limited to, the financial condition
of the Property, as set forth in the Due Diligence Materials or otherwise.
(B) Except as expressly stated herein, Seller makes no
representation or warranty as to the truth, accuracy or completeness of any
materials, data or information delivered by Seller to Buyer in connection with
the transaction contemplated hereby. Buyer acknowledges and agrees that all
materials, data and information delivered by Seller to Buyer in connection with
the transaction contemplated hereby are provided to Buyer as a convenience only
and that any reliance on or use of such materials, data or information by Buyer
shall be at the sole risk of Buyer, except as otherwise expressly stated herein.
Without limiting the generality of the foregoing provisions, Buyer acknowledges
and agrees that (a) any environmental or other report with respect to the
Property which is delivered by Seller to Buyer shall be for general
informational purposes only, (b) Buyer shall not have any right to rely on any
such report delivered by Seller to Buyer, but rather will rely on its own
inspections and investigations of the Property and any reports commissioned by
Buyer with respect thereto, (c) neither Seller, any affiliate of Seller nor the
person or entity which prepared any such report delivered by Seller to Buyer
shall have any liability to Buyer for any inaccuracy in or omission from any
such report and (d) the failure to deliver any report as to the environmental or
other condition of the Property, including any proposal for work at the Property
which was not performed by Seller, shall not be actionable by Buyer under this
Agreement or otherwise.
(C) EXCEPT AS EXPRESSLY SET FORTH IN SECTION 3.1 ABOVE AND
ELSEWHERE IN THIS AGREEMENT, BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT
SELLER IS SELLING AND BUYER IS PURCHASING THE PROPERTY ON AN "AS IS WITH ALL
FAULTS" BASIS AND THAT BUYER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES
OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, FROM SELLER, ANY SELLER RELATED
PARTIES, OR THEIR AGENTS OR BROKERS, OR ANY OTHER PERSON ACTING OR PURPORTING TO
ACT ON BEHALF OF SELLER, AS TO ANY MATTERS CONCERNING THE PROPERTY, INCLUDING
WITHOUT LIMITATION: (i) the quality, nature, adequacy and physical condition and
aspects of the Property, including, but not limited to, the structural elements,
foundation, roof, appurtenances, access, landscaping, parking facilities and the
electrical, mechanical, HVAC, plumbing, fire safety, sewage, and utility
systems, facilities and appliances, the square footage within the improvements
on the Real Property and within each
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tenant space therein, (ii) the quality, nature, adequacy, and physical condition
of soils, geology and any groundwater, (iii) the existence, quality, nature,
adequacy and physical condition of utilities serving the Property, (iv) the
development potential of the Property, and the Property's use, habitability,
merchantability, or fitness, suitability, value or adequacy of the Property for
any particular purpose, (v) the zoning or other legal status of the Property or
any other public or private restrictions on use of the Property, (vi) the
compliance of the Property or its operation with any applicable codes, laws,
regulations, statutes, ordinances, covenants, conditions and restrictions of any
governmental or quasi-governmental entity or of any other person or entity,
(vii) the presence of asbestos and other Hazardous Materials on, under or about
the Property, (viii) the quality of any labor and materials used in any
improvements on the Real Property, (ix) the condition of title to the Property,
(x) the Leases, Service Contracts, or other documents or agreements affecting
the Property, or any information contained in any rent roll furnished to Buyer
for the Property, (xi) the value, economics of the operation or income potential
of the Property, or (x) any other fact or condition which may affect the
Property, including without limitation, the physical condition, value, economics
of operation or income potential of the Property. In addition, Seller shall have
no legal obligation to apprise Buyer regarding any event or other matter
involving the Property which occurs after the Effective Date or to otherwise
update the Due Diligence Materials, unless and until an event or other matter
occurs which would cause Seller to be unable to remake any of its
representations or warranties contained in this Agreement.
SECTION 3.7 RELEASE.
Without limiting the above, and subject to the representations and
warranties of Seller contained in Section 3.1 hereof, Buyer on behalf of itself
and its successors and assigns waives its right to recover from, and forever
releases and discharges, Seller, Seller's affiliates, the partners, trustees,
beneficiaries, shareholders, members, managers, directors, officers, employees
and agents and representatives of each of them, and their respective heirs,
successors, personal representatives and assigns (collectively, the "SELLER
RELATED PARTIES"), from any and all demands, claims, legal or administrative
proceedings, losses, liabilities, damages, penalties, fines, liens, judgments,
costs or expenses whatsoever (including, without limitation, court costs and
attorneys' fees and disbursements), whether direct or indirect, known or
unknown, foreseen or unforeseen, that may arise on account of or in any way be
connected with (i) the physical condition of the Property including, without
limitation, all structural elements, all mechanical, electrical, plumbing,
sewage, heating, ventilating, air conditioning and other systems, the
environmental condition of the Property and the presence of Hazardous Materials
on, under or about the Property, or (ii) any law or regulation applicable to the
Property, including, without limitation, any Environmental Law and any other
federal, state or local law. Nothing contained in the foregoing provisions,
however, will limit the liability of Seller under actions commenced after
Closing with respect to any obligation or representation of Seller which by the
terms of this Agreement survives Closing.
SECTION 3.8 SURVIVAL.
The provisions of this Article III shall survive the Closing subject to
the limitations and qualifications contained in such provisions and in Section
9.11 hereof.
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ARTICLE IV
TITLE
SECTION 4.1 CONDITIONS OF TITLE.
(A) Seller has delivered to Buyer a title commitment (the
"TITLE COMMITMENT") from the Title Company and copies of all underlying
documents relating to title exceptions referred to therein. Seller has also
furnished to Buyer a copy of that certain As-Built Survey for One Financial
Plaza dated July 26, 1999 (the "EXISTING Survey") prepared by Xxxxx X. Xxxxxxx
Co., Inc. Seller has ordered from the surveyor that prepared the Existing Survey
an ALTA Survey of the Real Property (the "SURVEY"). Seller shall provide Buyer a
copy of the Survey promptly upon receipt. The Survey shall be certified to the
Title Company, Buyer, Buyer's Lender (upon receipt of such lender's name) and
Seller and shall otherwise be sufficient to ensure that the Title Company may
issue the Title Policy without any standard survey exception. The cost of the
Survey shall be paid as provided in Section 8.5(b).
(B) No later than five (5) business days after the Effective
Date (the "TITLE REVIEW DATE"), Buyer shall furnish Seller with a written
statement of objections, if any, to the Title Commitment and the Existing Survey
(collectively, "OBJECTIONS"). All Objections (whether to the Title Commitment,
Existing Survey, the Survey, or a Title Commitment Update) must be made in good
faith and be reasonable given the context of the size, scope and nature of the
transaction contemplated by this Agreement (it being agreed that any Objection
made at the suggestion of, or in consideration of, the lender providing
financing for Buyer's acquisition of the Property shall be deemed to be made in
good faith and reasonable). The matters listed on SCHEDULE 4 attached hereto and
made a part hereof (collectively, the "Permitted Title Exceptions") shall not be
the basis for an Objection. Upon Buyer's receipt of the Survey, and/or in the
event the Title Company amends or updates the Title Commitment after the Title
Review Date (a "TITLE COMMITMENT UPDATE"), Buyer shall furnish Seller with a
written statement of Objections to any matter first raised in the Survey and/or
in the Title Commitment Update within five (5) business days after its receipt
of the Survey or such Title Commitment Update, as the case may be (each, an
"UPDATE REVIEW PERIOD"), provided that Buyer may not Object to any matter shown
on the Survey unless it was not disclosed on the Existing Survey. Should Buyer
fail to notify Seller in writing of its Objection to any matter in the Title
Commitment or on the Existing Survey prior to the Title Review Date, or to any
matter first disclosed on the Survey or in a Title Commitment Update prior to
the Update Review Period, as applicable, Buyer shall be deemed to have approved
all such matters which shall be considered to be "CONDITIONS OF TITLE" as
defined in Section 4.1(e) below.
(C) If Seller receives a timely Objection in accordance with
Section 4.1(b) ("BUYER'S NOTICE"), Seller shall have the right, but not the
obligation, within five (5) business days after receipt of Buyer's Notice
("SELLER'S RESPONSE PERIOD"), to elect to attempt to cure any such matter upon
written notice to Buyer ("SELLER'S Response"), and may extend the Closing Date
for up to fifteen (15) business days to allow such cure. If Seller does not give
any Seller's Response, Seller shall be deemed to have elected not to attempt to
cure any such matters. Notwithstanding the foregoing, Seller shall in any event
be obligated to cure all matters or items (i) that are mortgage liens or
security interests against the Property, in each case granted by
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Seller (and not tenants of the Property or other third parties), (ii) that are
real estate tax liens, other than liens for taxes and assessments not yet
delinquent, (iii) that have been voluntarily placed against the Property by
Seller (and not tenants of the Property or other third parties) after the date
of this Agreement and that are not otherwise permitted pursuant to the
provisions hereof, and (iv) that are mechanic's liens encumbering any portion of
the Property and for which Seller engaged the contractor or supplier claiming
the lien, or any subcontractor working under a contractor engaged by Seller.
Seller shall be entitled to apply the Purchase Price towards the payment or
satisfaction of such liens, and may cure any Objection by causing the Title
Company to insure against collection of the same out of the Property.
(D) If Seller elects (or is deemed to have elected) not to
attempt to cure any Objections raised in any Buyer's Notice timely delivered by
Buyer to Seller pursuant to Section 4.1(b), or if Seller notifies Buyer that it
elects to attempt to cure any such Objection but then does not for any reason
effect such cure on or before the Closing Date as it may be extended hereunder,
then Buyer, as its sole and exclusive remedy, shall have the option of
terminating this Agreement by delivering written notice thereof to Seller within
three (3) business days after (as applicable) (i) its receipt of Seller's
Response stating that Seller will not attempt to cure any such Objection or (ii)
the expiration of Seller's Response Period if Seller does not deliver a Seller's
Response but in no event later than the Closing Date (as it may be extended
hereunder), or in the event Seller fails to cure at Closing any Objection which
Seller has previously elected to attempt to cure pursuant to a Seller's
Response. In the event of such a termination, the Deposit (excluding the Initial
Portion) shall be returned to Buyer, and neither party shall have any further
rights or obligations hereunder except as provided in Sections 6.1, 9.3 and 9.9
below. Notwithstanding the previous sentence, if the matter giving rise to
termination is a new matter that does not appear in the Title Commitment or
Existing Survey and such matter materially and adversely affects the Property,
the Initial Portion of the Deposit shall also be returned to Buyer. If no such
termination notice is timely received by Seller hereunder, Buyer shall be deemed
to have waived all such Objections in which event those Objections shall become
"CONDITIONS OF TITLE" under Section 4.1(e). If the Closing is not consummated
for any reason other than Seller's default hereunder, Buyer shall be responsible
for any title or escrow cancellation charges.
(E) At the Closing, Seller shall convey title to the
Property to Buyer by limited warranty deed in the form of EXHIBIT C attached
hereto (the "DEED"), but the deed warranties shall be subject to no exceptions
other than:
(i) Interests of tenants in possession under the Leases;
(ii) Matters created by, or with the written consent of,
Buyer;
(iii) Non-delinquent liens for real estate taxes and
assessments;
(iv) All existing laws and other governmental requirements;
and
(v) Any exceptions disclosed by the Title Commitment and any
Title Commitment Update which is approved or deemed
approved by Buyer in accordance with this Article IV
above, and any other exceptions which would be disclosed
by a survey of the Property.
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All of the foregoing exceptions shall be referred to collectively as the
"CONDITIONS OF TITLE." Subject to the terms and conditions contained elsewhere
in this Agreement, by acceptance of the Deed and the Closing of the purchase and
sale of the Property, (x) Buyer agrees it is assuming for the benefit of Seller
all of the obligations of Seller with respect to the Conditions of Title from
and after the Closing, and (y) Buyer agrees that Seller shall have conclusively
satisfied its obligations with respect to title to the Property. The provisions
of this Section shall survive the Closing.
SECTION 4.2 EVIDENCE OF TITLE.
Delivery of title in accordance with the foregoing shall be evidenced by
the willingness of the Title Company to issue, at Closing, its Owner's ALTA
Policy of Title Insurance in the amount of the Purchase Price showing title to
the Real Property vested in Buyer, subject to the Conditions of Title (the
"TITLE POLICY"). The Title Policy may contain such endorsements as reasonably
required by Buyer (including extended coverage) provided that the issuance of
such endorsements shall not be a condition to Buyer's obligations hereunder.
Buyer may obtain such title reinsurance pertaining to the Property as reasonably
required by Buyer provided the issuance of such reinsurance shall not be a
condition to Buyer's obligations hereunder. Buyer shall pay the costs for all
such endorsements and reinsurance. Seller shall have no obligation to provide
any indemnity or agreement to the Title Company or Buyer to support the issuance
of the Title Policy or any such endorsements or reinsurance other than an
affidavit as to the existing tenants of the Property and any ongoing
construction work at the Property.
ARTICLE V
RISK OF LOSS AND INSURANCE PROCEEDS
SECTION 5.1 MINOR LOSS.
Buyer shall be bound to purchase the Property for the full Purchase
Price as required by the terms hereof, without regard to the occurrence or
effect of any damage to the Property or destruction of any improvements thereon
or condemnation of any portion of the Property, provided that: (a) in the case
of damage to the Property, the cost to repair any such damage or destruction
does not exceed One Million Dollars ($1,000,000) in the estimate of an architect
or contractor selected by Seller and reasonably acceptable to Buyer, or in the
case of a condemnation, the condemnation is not material (as hereinafter
defined), and (b) upon the Closing, there shall be a credit against the Purchase
Price due hereunder equal to the amount of any insurance proceeds or
condemnation awards collected by Seller as a result of any such damage or
destruction or condemnation, plus the amount of any insurance deductible, less
any sums expended by Seller toward the restoration or repair of the Property
(the nature of which restoration or repairs, but not the right of Seller to
effect such restoration or repairs, shall be subject to the approval of Buyer,
which approval shall not be unreasonably withheld, conditioned or delayed). If
the proceeds or awards have not been collected as of the Closing, then such
proceeds or awards shall be assigned to Buyer, except to the extent needed to
reimburse Seller for sums expended to repair or restore the Property, and Seller
shall retain the rights to such proceeds and awards to such extent.
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SECTION 5.2 MAJOR LOSS.
If the cost to repair the damage or destruction as specified above
exceeds One Million no/100 Dollars ($1,000,000.00) in the estimate of an
architect or contractor selected by Seller and reasonably acceptable to Buyer or
if the condemnation is material (as hereinafter defined), then Buyer may, at its
option to be exercised within ten (10) days of Seller's notice (which notice
shall include a copy of the estimate of cost to repair in accordance with
Section 5.1(a)) of the occurrence of the damage or destruction or the
commencement of condemnation proceedings (but not later than the Closing Date),
either terminate this Agreement or consummate the purchase for the full Purchase
Price as required by the terms hereof. If Buyer elects to terminate this
Agreement by delivering written notice thereof to Seller or fails to give Seller
notice within such time period that Buyer will proceed with the purchase, then
this Agreement shall terminate, the Deposit (including the Initial Portion)
shall be returned to Buyer and neither party shall have any further rights or
obligations hereunder except as provided in Sections 6.1, 9.3 and 9.9 below. If
Buyer elects to proceed with the purchase, then upon the Closing, there shall be
a credit against the Purchase Price due hereunder equal to the amount of any
insurance proceeds or condemnation awards collected by Seller as a result of any
such damage or destruction or condemnation, plus the amount of any insurance
deductible, less any sums expended by Seller toward the restoration or repair of
the Property (the nature of which restoration or repairs, but not the right of
Seller to effect such restoration or repairs, shall be subject to the approval
of Buyer, which approval shall not be unreasonably withheld, conditioned or
delayed). If the proceeds or awards have not been collected as of the Closing,
then such proceeds or awards shall be assigned to Buyer, except to the extent
needed to reimburse Seller for sums expended to repair or restore the Property,
and Seller shall retain the rights to such proceeds and awards to such extent. A
condemnation shall be deemed material if any portion of fee simple title to the
Property is taken or if such condemnation results in an easement or right of
occupancy or possession that causes the Property to be in violation of any
existing laws or regulations (including, but not limited to, zoning regulations)
or permanently, materially and adversely affects the existing access to the
Property.
ARTICLE VI
BROKERS AND EXPENSES
SECTION 6.1 BROKERS.
The parties represent and warrant to each other that no broker or finder
was instrumental in arranging or bringing about this transaction except for
Northstar Partners ("SELLER'S BROKER"). At Closing, Seller shall pay the
commission due to Seller's Broker, which shall be paid pursuant to a separate
agreement between Seller and Seller's Broker. If any other person brings a claim
for a commission or finder's fee based upon any contact, dealings or
communication with Buyer or Seller, then the party with whom such contact,
dealings, or communication was made shall defend the other party (the
"INDEMNIFIED PARTY") from such claim, and shall indemnify the Indemnified Party
and hold the Indemnified Party harmless from any and all costs, damages, claims,
liabilities or expenses (including without limitation, court costs and
reasonable attorneys' fees and disbursements) incurred by the Indemnified Party
in defending against the claim. The
14
provisions of this Section 6.1 shall survive the Closing or, if the purchase and
sale is not consummated, any termination of this Agreement.
SECTION 6.2 EXPENSES.
Except as expressly provided in this Agreement, each party hereto shall
pay its own expenses incurred in connection with this Agreement and the
transactions contemplated hereby.
ARTICLE VII
LEASES AND OTHER AGREEMENTS
SECTION 7.1 BUYER'S APPROVAL OF NEW LEASES AND AGREEMENTS AFFECTING
THE PROPERTY.
Between the Effective Date and the Closing, Seller shall continue to
have the right to lease the Property in the same manner as before the making of
this Agreement, the same as though Seller were retaining the Property, provided
that Seller shall not enter into any new Lease or other agreement affecting the
Property, or modify or terminate any existing Lease or other agreement affecting
the Property, which will be binding on the Property after Closing, except as
permitted or required under any Lease and except for other agreements which are
terminable on no more than thirty (30) days' notice without payment of any
penalty or fee or other cost to Seller, without first obtaining Buyer's approval
of the proposed action, which approval will not be unreasonably withheld,
conditioned or delayed. In such case, Buyer shall specify in detail the reasons
for its disapproval of any such proposed action. If Buyer fails to give Seller
notice of its approval or disapproval of any such proposed action requiring its
approval under this Section 7.1 within three (3) business days after Seller
notifies Buyer of Seller's desire to take such action, then Buyer shall be
deemed to have given its approval. Notwithstanding anything set forth herein to
the contrary: (a) Buyer hereby approves the leasing transactions described in
SCHEDULE 3 attached hereto, (b) Buyer agrees that Seller may execute leases with
such prospective tenants on terms consistent with those described in SCHEDULE 3
in all material respects, and (c) Seller shall pay the Leasing Costs (as defined
below) incurred to facilitate such leasing transactions if such leases are
executed and delivered by Seller prior to Closing; if Seller has not paid such
Leasing Costs by Closing, Seller shall credit Buyer with the estimated Leasing
Costs for such leases remaining unpaid as of Closing, regardless of whether such
leases have been executed. Any new Lease or other agreement or amendment shall
be on Seller's standard forms for such documents with such revisions negotiated
by Seller in good faith and consistent with the economic terms approved by
Buyer. Buyer agrees to cooperate with Seller in enabling Seller to complete any
such proposed transaction requiring Buyer's approval.
SECTION 7.2 TENANT IMPROVEMENT COSTS, LEASING COMMISSIONS AND
CONCESSIONS.
Except as provided in Section 7.1 with respect to the lease transactions
described in SCHEDULE 3 (the Leasing Costs under which shall be paid by Seller),
with respect to any new Lease or Lease modification fully executed on or after
the Effective Date and approved or deemed approved or accepted by Buyer, and
with respect to any renewal or extension of any Lease pursuant to an option
existing as of the Effective Date, fully executed on or after the
15
Effective Date, all tenant improvement work, leasing commissions, reasonable
legal fees or other reasonable expenses (collectively, "LEASING COSTS") payable
with respect to such transactions shall be paid by Buyer at Closing. Buyer shall
reimburse Seller at Closing (or thereafter if paid by Seller after Closing) for
all such Leasing Costs incurred by Seller to the extent Buyer is obligated
therefor pursuant to the provisions hereof. Pursuant to the Assignment of
Leases, Buyer shall assume any then outstanding obligations with respect to
Leasing Costs and all subsequent concessions, including amounts shown on
SCHEDULE 3 for which Buyer receives a credit at Closing. With respect to any
Lease or Lease modification fully executed prior to the Effective Date and the
lease transactions described in SCHEDULE 3 attached hereto, all Leasing Costs
payable with respect to such transactions shall be paid by Seller; provided,
however, that the foregoing is not intended to place the burden on Seller of any
free rent or other costs or concessions accruing on or after the Closing Date or
for those Leasing Costs arising from the Lease or Lease modifications fully
executed prior to the Effective Date and described in SCHEDULE 5 attached
hereto, all of which shall be Buyer's responsibility, to the extent provided in
Schedule 5. Seller shall credit Buyer at Closing the amount of any such Leasing
Costs that are Seller's obligation pursuant to the provisions hereof and not
paid as of Closing and Buyer shall pay Seller at Closing the amount of any
Leasing Costs that are Buyer's obligation pursuant to the provisions hereof. As
of the Effective Date, SCHEDULE 5 lists the respective credits due Seller and
Buyer. The provisions of this Section shall survive the Closing.
SECTION 7.3 TENANT AND VENDOR NOTICES.
At the Closing, Seller shall furnish Buyer with a signed notice to be
given to each tenant of the Property and signed notices to be given to each
vendor under Service Contracts to be assumed by Buyer under Section 7.5 below.
Notices to tenant shall disclose that the Property has been sold to Buyer, that,
after the Closing, all rents should be paid to Buyer and that Buyer shall be
responsible for all the tenant's security deposit. Notices to vendors shall
disclose that the Property has been sold to Buyer and that Buyer has assumed
Seller's obligations under each such Service Contract to the extent that such
obligations accrue after Closing. The forms of the notices shall be otherwise
reasonably acceptable to the parties. Buyer covenants to deliver said notices to
each tenant and vendor as soon as reasonably possible after Closing. This
provision shall expressly survive Closing.
SECTION 7.4 MAINTENANCE OF IMPROVEMENTS AND OPERATION OF PROPERTY;
REMOVAL OF TANGIBLE PERSONAL PROPERTY.
Seller agrees to keep its customary property insurance covering the
Property in effect until the Closing (provided, however, that the terms of any
such coverage maintained in blanket form may be modified as Seller deems
necessary). Seller shall maintain all Improvements substantially in their
present condition (ordinary wear and tear, casualty and condemnation excepted),
and shall operate and manage the Property in a manner consistent with Seller's
practices in effect prior to the Effective Date, provided that Seller shall in
no event be obligated to make any capital expenditures or repairs. Seller shall
not remove any Tangible Personal Property, except as may be required for
necessary repair or replacement, and replacement shall be of approximately equal
quality and quantity as the removed item of Tangible Personal Property.
16
SECTION 7.5 SERVICE CONTRACTS.
Seller shall terminate any terminable Service Contract promptly after
receiving written notice from Buyer requesting such termination; provided,
however, that Buyer acknowledges and agrees that: (i) all costs and expenses
associated with any such termination shall be paid by Buyer; (ii) any such
termination may be conditioned on the completion of the Closing; and (iii) any
such termination shall be effective only after expiration of any notice or grace
period specified in the provisions of the applicable Service Contract (which may
not occur until after the Closing). Any and all Service Contracts not fully and
effectively terminated as of Closing shall be assumed by Buyer at Closing as
contemplated under subsection 8.3(a)(3) below. Buyer acknowledges that none of
the equipment leases are terminable in connection with the transaction
contemplated hereby and that certain other Service Contracts may not be
terminable. Notwithstanding anything set forth herein to the contrary, all
property management agreements and/or leasing agreements relating to the
Property shall be terminated at Closing, Buyer shall have no obligations or
liabilities with respect thereto (except as otherwise provided in Section 7.1
and Section 7.2) and Seller shall deliver to Buyer at Closing evidence of such
termination; provided, however, that: (a) Buyer may be subject to a "protection
list" prepared by Xxxxxx Realty Corporation ("XXXXXX"), the leasing agent for
the Property, of potential tenants for the Property; (b) if Buyer or its agent
enters into a lease with a tenant on the protection list after Closing and
within the time period covered by the applicable leasing agreement, Buyer, and
not Seller, shall be solely liable for any commission payable to the leasing
agent or broker; and (c) Buyer agrees to indemnify, defend and hold Seller
harmless from and against any and all such commissions. The agreements set forth
in clauses (a) - (c), inclusive, above, shall survive the Closing
ARTICLE VIII
CLOSING AND ESCROW
SECTION 8.1 ESCROW INSTRUCTIONS.
The Xxxxxxx Money Escrow Agreement by and among Seller, Buyer and Title
Company will be in the form of EXHIBIT H attached hereto (the "Escrow
Instructions"), which shall be executed by Seller and Buyer simultaneously with
this Agreement, for delivery to Title Company. Seller and Buyer agree to execute
such reasonable additional and supplementary escrow instructions as may be
appropriate to enable the Title Company to comply with the terms of this
Agreement.
SECTION 8.2 CLOSING.
The Closing hereunder shall be held and delivery of all items to be made
at the Closing under the terms of this Agreement shall be made at the offices of
the Title Company or as otherwise mutually agreed on the tenth (10th) day after
the expiration of the Contingency Period, and the Closing shall be completed and
all funds disbursed before 1:00 p.m. local time, or such other earlier date and
time as Buyer and Seller may mutually agree upon in writing (the "CLOSING
DATE"). Except as expressly provided herein, such date and time may not be
extended without the prior written approval of both Seller and Buyer.
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SECTION 8.3 DEPOSIT OF DOCUMENTS.
(A) At least one (1) business day before the Closing, Seller
shall deposit into escrow the following items:
(1) the duly executed and acknowledged Deed in the
form attached hereto as EXHIBIT C conveying the Real Property to Buyer subject
to the Conditions of Title;
(2) four (4) duly executed counterparts of the Xxxx
of Sale in the form attached hereto as EXHIBIT D (the "XXXX OF SALE");
(3) four (4) duly executed counterparts of an
Assignment and Assumption of Leases, Service Contracts, Warranties and Other
Intangible Property in the form attached hereto as EXHIBIT E pursuant to the
terms of which Buyer shall assume all of Seller's obligations under the Leases,
Service Contracts, and other documents and agreements affecting the Property
(the "ASSIGNMENT OF LEASES");
(4) an affidavit pursuant to Section 1445(b)(2) of
the Code, and on which Buyer is entitled to rely, that Seller is not a "foreign
person" within the meaning of Section 1445(f)(3) of the Code;
(5) a termination of Seller's existing property
management and leasing agreement with Xxxxxx and all other agreements with
Xxxxxx under which leasing commissions would otherwise be payable by Buyer to
Xxxxxx or its affiliates under the terms hereof (if any);
(6) four (4) duly executed counterparts of a master
lease between Buyer as landlord and Seller as tenant in the form attached hereto
as EXHIBIT I (the "MASTER LEASE");
(7) Seller shall cause Xxxxxx to execute and deposit
into escrow four (4) counterparts of the Lease between Buyer as landlord and
Xxxxxx as tenant for the management office located in Suite 1700 of the Building
in the form attached hereto as EXHIBIT J (the "MANAGEMENT OFFICE LEASE"); and
(8) Seller shall cause Xxxxxx to execute and deposit
into escrow four (4) counterparts of a property management and leasing
subcontract between HPT Management Services LP, a Texas limited partnership
("HPT"), as the property manager and leasing agent retained by Buyer, and
Xxxxxx, as manager and leasing agent designated by HPT, in the form attached
hereto as EXHIBIT K (the "PROPERTY MANAGEMENT AND LEASING SUBCONTRACT").
(B) At least one (1) business day before Closing, Buyer
shall deposit into escrow the following items (except for Buyer's funds which
shall be deposited on the Closing Date):
(1) immediately available funds necessary to close
this transaction, including, without limitation, the Purchase Price (less the
Deposit and interest thereon net of investment fees, if any) and funds
sufficient to pay Buyer's closing costs and share of prorations hereunder;
18
(2) four (4) duly executed counterparts of the Xxxx
of Sale;
(3) four (4) duly executed counterparts of the
Assignment of Leases;
(4) four (4) duly executed counterparts of the
Master Lease;
(5) four (4) duly executed counterparts of the
Management Office Lease; and
(6) four (4) duly executed counterparts of the
Property Management and Leasing Subcontract.
(C) Seller and Buyer shall each execute and deposit a
closing statement and such transfer tax declarations, title affidavits and such
other instruments as are reasonably required by the Title Company or otherwise
required to close the escrow and consummate the acquisition of the Property in
accordance with the terms hereof. Seller and Buyer hereby designate Title
Company as the "REPORTING PERSON" for the transaction pursuant to Section
6045(e) of the Code and the regulations promulgated thereunder and agree to
execute such documentation as is reasonably necessary to effectuate such
designation.
(D) On the Closing Date, Seller shall deliver or make
available at the Property to Buyer: originals of the Leases to the extent in
Seller's possession, or copies of any Leases not in Seller's possession together
with an affidavit from Seller as to such copies being true and complete copies
of the applicable Lease(s), copies of the tenant correspondence files, and
originals of any other items which Seller was required to furnish Buyer copies
of or make available at the Property pursuant to Sections 2.1(b) or (e) above,
to the extent in Seller's possession, except for Seller's internal books or
records that do not directly relate to the operation of the Property, which
shall be retained by Seller. Seller shall deliver possession of the Property to
Buyer as required hereunder and shall deliver to Buyer or make available at the
Property a set of keys to the Property on the Closing Date.
SECTION 8.4 ESTOPPEL CERTIFICATES.
Seller shall use commercially reasonable efforts to obtain and deliver
to Buyer, no later than five (5) business days prior to the Closing Date (the
"ESTOPPEL RETURN DATE"), a tenant estoppel certificate in substantially the form
of EXHIBIT F attached hereto executed by each tenant at the Property; provided,
however, the form of tenant estoppel certificate shall reflect appropriate
changes thereto for any tenant that has specific requirements in its Lease
regarding the form of the tenant estoppel certificate. An executed tenant
estoppel certificate in the form of EXHIBIT F (as such form may be changed for
any tenant that has specific requirements in its Lease regarding the form of the
tenant estoppel certificate) is herein referred to as a "TENANT ESTOPPEL".
Seller shall deliver each Tenant Estoppel to Buyer (regardless of whether it
complies with this Agreement) promptly following Seller's receipt thereof.
Notwithstanding anything contained herein to the contrary, it shall be a
condition precedent to the obligation of Buyer to consummate the transaction
that is the subject of this Agreement that Seller deliver to Buyer, on or before
the Estoppel Return Date, Tenant Estoppels executed by (a) tenants occupying, in
the aggregate, at least eighty-five percent (85%) of the leased square footage
at the Property, and (b) each tenant that leases more than two thousand five
hundred (2,500) square feet at the
19
Property (such condition being herein referred to as the "TENANT ESTOPPEL
CONDITION"). If the Tenant Estoppel Condition is not fulfilled as of the
Estoppel Return Date, then, for three (3) business days thereafter, Buyer shall
have the option either to (i) waive the Tenant Estoppel Condition, (ii) extend
the Closing Date for a single period of up to fourteen (14) days to allow Seller
more time to obtain additional estoppel certificates; or (iii) terminate this
Agreement, in which event the Deposit (including the Initial Portion) shall be
returned to Buyer. If Buyer elects to extend the Closing Date pursuant to clause
(ii) of the preceding sentence and the Tenant Estoppel Condition is still not
fulfilled on or before the expiration of the fourteen (14) day extension period,
then Buyer may elect one of the options set forth in clauses (i) and (iii) of
the preceding sentence.
SECTION 8.5 PRORATIONS.
(A) Rents, including, without limitation, percentage rents,
if any, and any additional charges and expenses payable by tenants under Leases,
all as and when actually collected; real property taxes and assessments due and
payable in the year in which the Closing occurs (without regard to the date
levied, assessed or accrued and without regard to any fiscal year) (provided
there shall be no proration of delinquent rents to Seller until such delinquent
rents are collected); water, sewer and utility charges; amounts payable under
any Service Contracts or other agreements or documents; annual permits and/or
inspection fees (calculated on the basis of the period covered); maintenance
charges and amounts payable under reciprocal easement agreements and other
recorded documents; vending machine and paper recycling income; and any other
income and expenses of the operation and maintenance of the Property (including,
without limitation, expenses prepaid by Seller and expenses already paid by
Seller but which are being amortized over time by Seller and with respect to
which Seller shall receive a credit at Closing in the amount of the prepaid or
unamortized portion thereof), shall all be prorated as of 11:59 p.m. on the day
immediately prior to Closing (i.e., Buyer is entitled to the income and
responsible for the expenses of the day of Closing), on the basis of a 365-day
year; provided, however, that any real estate taxes payable directly by tenants
to the governing taxing authorities or reimbursable by tenants after Closing
shall not be prorated. Buyer shall reimburse Seller for the tenant improvement
costs, leasing commissions, legal fees and other expenses, and free rent and
other concessions, as provided in Section 7.2.
All rents and other sums collected after the Closing shall be applied
and paid as provided in this Section 8.5(a). If a tenant or other payor shall
specifically designate a payment as being attributable to, or if it is readily
ascertainable that a payment received from a tenant or other payor is
attributable to a specific period of time or for a specific purpose, including,
without limitation, for operating expenses or real estate tax payments which
were not paid or were underpaid by such tenant or for reimbursement for work
performed by Seller on the tenant's premises, such payment shall be so applied.
If there is no such designation or if not so readily ascertainable, any payment
received after Closing shall be deemed a payment due after the Closing until the
tenant or other payor is current in its post-Closing obligations, and then such
payments shall be paid to Seller to the extent of any rent or other sums owing
to Seller for periods prior to Closing. Buyer shall use reasonable efforts to
collect such rents and other sums owing to Seller but shall not be required to
initiate litigation or terminate any lease. Seller retains the right to collect
any such rents and other sums from tenants and other payors after Closing;
provided, however, that Seller shall have no right to evict any tenant or to
exercise any
20
other landlord-tenant remedy other than to xxx for collection. Without intending
to limit the generality of the foregoing, Buyer and Seller acknowledge and agree
that certain rental payments by the tenants are collected monthly in arrears
and, upon receipt of such payments after Closing, such sums shall be applied
toward the period to which they properly pertain, and shall be prorated between
Seller and Buyer, with the party receiving same promptly paying to the other
party such other party's share thereof.
Reconciliations of taxes, insurance charges and other expenses owed by
tenants under Leases for the calendar year in which the Closing occurs shall be
prepared by Buyer with the cooperation of Seller within ninety (90) days
following the end of such year in accordance with the requirements set forth in
the Leases and as provided in this Section 8.5(a). For those Leases in which
tenants pay a proportionate share of taxes, insurance charges or other expenses
over a base year amount or expense stop, the proration between the parties of
the income received from tenants over such base year amount or expense stop
shall be calculated based on the total amount of such expenses for the Property
incurred by both Seller and Buyer for the entire calendar year, rather than on
the amount of such expenses actually incurred by each party for such year, in
order to enable the parties to determine if the base year amount or expense stop
for such year is exceeded. Such income as so calculated shall be prorated
between the parties based on the number of days each party owned the Property
during such year and otherwise in accordance with this Section 8.5(a).
Buyer shall promptly reimburse Seller for Seller's prorated share of all
expenses that are prepaid by Seller before Closing for which Buyer receives
reimbursement from a third party after Closing.
The amount of any cash security deposits held by Seller under Leases
(plus any interest thereon accrued prior to the date of Closing, if required by
law or contract) shall be credited against the Purchase Price (and Seller shall
be entitled to retain such cash security deposits). Seller shall receive credits
at Closing for the amount of any utility or other deposits with respect to the
Property to the extent such deposits are assignable to Buyer and are so assigned
or credited to Buyer at Closing. Buyer shall cause all utilities to be
transferred into Buyer's name and account at the time of Closing. At Closing,
Seller shall transfer to Buyer all non-cash security deposits and deliver to
Buyer all necessary consents to such transfers (or as soon as reasonably
practicable after Closing, if the procedures for such transfer reasonably
require a delay in transfer until after the Closing). Between the date of
Closing and until such transfer takes place, Seller agrees to hold any such
non-cash security deposit for the benefit of Buyer.
Seller and Buyer hereby agree that if any of the aforesaid prorations
and credits cannot be calculated accurately on the Closing Date or in the case
of rents or other charges that are paid in arrears or are otherwise not yet
ascertainable or payable as of the Closing Date, then the same shall be
calculated as soon as reasonably practicable after the Closing Date or the date
such amounts have been collected, and either party owing the other party a sum
of money based on such subsequent proration(s) or credits shall pay said sum to
the other party within thirty (30) days thereafter. Any amounts not paid within
such thirty (30) day period shall bear interest from the date actually received
by the payor until paid at the greater of (i) the rate of ten percent (10%) per
annum or (ii) the prime rate (or base rate) reported from time to time in the
"Money Rates" column or section of THE WALL STREET JOURNAL as being the base
rate on corporate loans at larger
21
United States money center commercial banks plus two (2) percent. Upon request
of either party, the parties shall provide a detailed and accurate written
statement signed by such party certifying as to the payments received by such
party from tenants and other payors from and after Closing and to the manner in
which such payments were applied, and shall make their books and records
available for inspection by the other party during ordinary business hours upon
reasonable advance notice.
Any tax refund received by Buyer or Seller after Closing (net of third
party costs incurred in obtaining such refund) shall be paid to the party(ies)
who previously paid or were responsible for such taxes, whether it be Seller,
Buyer, or tenants under the Leases, and shall be prorated appropriately. The
preceding sentence shall survive Closing.
(B) The cost of the owner's policy of title insurance and
all other title charges (including the cost of any extended coverage,
endorsements and reinsurance or co-insurance charges) and the cost of the Survey
shall be paid one-half by Seller and one-half by Buyer. Seller and Buyer shall
each pay one-half of the state deed tax in connection with recording the deed
and all recording fees. Any closing escrow fees and other closing charges of the
Title Company shall be split equally between Seller and Buyer. Buyer shall be
solely responsible for any and all costs and expenses pertaining to its
financing of the Property (although Buyer obtaining any financing is not a
condition to its obligations hereunder), including, without limitation, loan
title policies, lender's escrow and closing fees and all intangibles and
mortgage taxes. The parties will execute and deliver any required transfer or
other similar tax declarations to the appropriate governmental entity at
Closing.
(C) The total annual percentage rent payable under each
Lease for the lease year in which the Closing occurs shall be prorated between
Seller and Buyer based solely on the respective number of days of ownership of
the Property by Seller and Buyer during such year, regardless of what portion of
sales occur during the different parts of such year. At Closing, the parties
shall estimate the total percentage rent payable under each Lease for the
applicable lease year based on the percentage rent paid under such Lease for the
prior year, and Seller shall receive a credit at Closing for its prorata share
thereof. Once the final amount of percentage rent is determined, the parties
shall reprorate, and the party owing the other shall promptly remit the amount
owed no later than fifteen (15) days after the reproration is determined.
(D) The provisions of this Section 8.5 shall survive the
Closing.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 NOTICES.
Any notices required or permitted to be given hereunder shall be given
in writing and shall be delivered (a) in person, (b) by certified mail, postage
prepaid, return receipt requested, (c) by facsimile with confirmation of
receipt, or (d) by a commercial overnight courier that guarantees next business
day delivery and provides a receipt, and such notices shall be addressed as
follows:
22
To Buyer: Harvard Property Trust, LLC
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxx
Fax No: 000-000-0000
with a copy to: Xxxxxx & Xxxxxxx, L.L.P.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Fax No: 000-000-0000
To Seller: Zeller Holdings Corp
c/o Zeller Realty Group
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxxx
Fax No.: (000) 000 0000
With a copy to: Xxxxxx Realty Corporation
1700 One Financial Plaza
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Fax No.: (000) 000 0000
with a copy to: Larkin, Hoffman, Xxxx & Xxxxxxxx, Ltd.
0000 Xxxxx Xxxxx Xxxxx
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Fax No.: (000) 000 0000
or to such other address as either party may from time to time specify in
writing to the other party. Any notice or other communication sent as
hereinabove provided shall be deemed effectively given (a) on the date of
delivery, if delivered in person; (b) three (3) business days after mailing if
sent by certified mail, postage prepaid, return receipt requested; (c) one (1)
business day after being sent by a commercial overnight courier; or (d) on the
date of transmission, if sent by facsimile with confirmation of receipt. Any
notice send by the attorney representing a party, shall qualify as notice under
this Agreement.
SECTION 9.2 ENTIRE AGREEMENT.
This Agreement, together with the Exhibits and schedules hereto,
contains all representations, warranties and covenants made by Buyer and Seller
and constitutes the entire understanding between the parties hereto with respect
to the subject matter hereof. Any prior
23
correspondence, memoranda or agreements are replaced in total by this Agreement
together with the Exhibits and schedules hereto.
SECTION 9.3 ENTRY AND INDEMNITY.
In connection with any entry by Buyer, or its agents, employees or
contractors onto the Property, Buyer shall give Seller reasonable advance notice
of such entry and shall conduct such entry and any inspections in connection
therewith (a) during normal business hours, (b) so as to minimize, to the
greatest extent possible, interference with Seller's business and the business
of Seller's tenants, (c) in compliance with all applicable laws, and (d)
otherwise in a manner reasonably acceptable to Seller. Without limiting the
foregoing, prior to any entry to perform any on-site testing, including but not
limited to any borings, drillings or samplings, Buyer shall give Seller written
notice thereof, including the identity of the company or persons who will
perform such testing and the proposed scope and methodology of the testing.
Seller shall approve or disapprove, in Seller's sole discretion, any proposed
intrusive testing within three (3) business days after receipt of such notice.
If Seller fails to respond within such three (3) business day period, Seller
shall be deemed to have disapproved the proposed testing. If Buyer or its
agents, employees or contractors take any sample from the Property in connection
with any such approved testing, Buyer shall provide to Seller a portion of such
sample being tested to allow Seller, if it so chooses, to perform its own
testing. Buyer shall permit Seller or its representative to be present to
observe any tenant interview or any testing, inspection, or due diligence review
performed with respect to the Property. Upon the request of Seller, Buyer shall
promptly deliver to Seller copies of any reports relating to any testing or
other inspection of the Property performed by Buyer or its agents,
representatives, employees, contractors or consultants. Notwithstanding anything
to the contrary contained herein, Buyer shall not contact any tenant without
first obtaining the prior written consent of Seller, which shall not be
unreasonably withheld or delayed, and Seller, at Seller's election, shall be
entitled to have a representative participate in any telephone or other contact
made by Buyer to tenant and present at any meeting by Buyer with a tenant. Buyer
shall maintain, and shall assure that its contractors maintain, public liability
and property damage insurance in amounts and in form and substance consistent
with Seller's requirements for other contractors and vendors and in any event,
adequate to insure against all liability of Buyer and its agents, employees or
contractors, arising out of any entry or inspections of the Property pursuant to
the provisions hereof, and Buyer shall provide Seller with evidence of such
insurance coverage upon request by Seller. Buyer shall indemnify and hold Seller
harmless from and against any costs, damages, liabilities, losses, expenses,
liens or claims (including, without limitation, court costs and reasonable
attorneys' fees and disbursements) arising out of or relating to any entry on
the Property by Buyer, its agents, employees or contractors in the course of
performing the inspections, testings or inquiries provided for in this
Agreement, including, without limitation, any release of Hazardous Materials or
any damage to the Property; provided that Buyer shall not be liable to Seller
solely as a result of the discovery by Buyer of a pre-existing condition on the
Property to the extent the activities of Buyer, its agents, representatives,
employees, contractors or consultants do not exacerbate the condition. The
provisions of this Section 9.3 shall be in addition to any access or indemnity
agreement previously executed by Buyer in connection with the Property; provided
that in the event of any inconsistency between this Section 9.3 and such other
agreement, the provisions of this Section 9.3 shall govern. The foregoing
indemnity shall survive beyond the Closing, or, if the sale is not
24
consummated, beyond the termination of this Agreement. Buyer's right of entry,
as provided in this Section 9.3, shall continue up through the date of Closing.
SECTION 9.4 TIME.
Time is of the essence in the performance of each of the parties'
respective obligations contained herein. If the Closing Date or any other date
described in this Agreement by which one party hereto must give notice to the
other party hereto or must fulfill an obligation is a Saturday, Sunday or a day
observed by the Federal government or by the State of Minnesota government as a
legal holiday, then such Closing Date or such other date shall be automatically
extended to the next succeeding day which is not a Saturday, Sunday or legal
holiday.
SECTION 9.5 ATTORNEYS' FEES.
If either party hereto fails to perform any of its obligations under
this Agreement or if any dispute arises between the parties hereto concerning
the meaning or interpretation of any provision of this Agreement, whether prior
to or after Closing, or if any party defaults in payment of its post-Closing
financial obligations under this Agreement, then the defaulting party or the
party not prevailing in such dispute, as the case may be, shall pay any and all
costs and expenses incurred by the other party on account of such default and/or
in enforcing or establishing its rights hereunder, including, without
limitation, court costs and reasonable attorneys' fees and disbursements.
SECTION 9.6 ASSIGNMENT.
Buyer's rights and obligations hereunder shall not be assignable to any
party other than an Affiliate (as hereinafter defined) without the prior written
consent of Seller in Seller's sole discretion. Buyer may assign its rights under
this Agreement to an Affiliate without the prior written consent of Seller by
notice to Seller given at least two (2) business days prior to the Closing. For
purposes hereof, the term "AFFILIATE" shall mean: (a) an entity that controls,
is controlled by, or is under common control with Buyer; (b) any partnership in
which Buyer or Buyer's controlling member is the general partner; (c) any fund
or entity sponsored by Buyer; or (d) any entity that retains Buyer or a company
affiliated with Buyer to manage the Property. Buyer shall in no event be
released from any of its obligations or liabilities hereunder in connection with
any assignment. In no event shall Buyer have the right to assign its rights or
obligations hereunder to any party which could not truthfully make all of the
representations and warranties contained in Section 3.5 above. Subject to the
provisions of this Section, this Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns.
SECTION 9.7 COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
25
SECTION 9.8 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Minnesota.
SECTION 9.9 CONFIDENTIALITY AND RETURN OF DOCUMENTS.
(A) Seller and Buyer shall, prior to the Closing, maintain
the confidentiality of this sale and purchase and shall not, except as required
by law or governmental regulation applicable to Seller or Buyer, disclose the
terms of this Agreement or of such sale and purchase to any third parties
whomsoever other than investors or prospective investors in Seller or Buyer, the
Title Company, Seller's Broker, and such other persons whose assistance is
required in carrying out the terms of this Agreement. Buyer agrees that all
documents and information regarding the Property made available to it by Seller
or Seller's agents and the results of all tests and studies of the Property (the
"CONFIDENTIAL INFORMATION") are confidential and Buyer shall not disclose any
Confidential Information to any other person. Notwithstanding the foregoing
provisions, however (i) Buyer and Seller may disclose information (including
Confidential Information) to its consultants, attorneys, accountants,
prospective investors and lenders, and others who need to know the information
for the purpose of assisting in connection with the transaction that is the
subject of this Agreement; (ii) the foregoing covenant of confidentiality shall
not be applicable to any information published as public knowledge or otherwise
available in the public domain; and (iii) Buyer and Seller shall be permitted to
disclose such information as may be recommended by Buyer's or Seller's legal
counsel in order to comply with all financial reporting, securities laws and
other legal requirements applicable to Buyer or Seller, including any required
disclosures to the Securities and Exchange Commission. In the event the
transaction contemplated by this Agreement does not close as provided herein,
upon the request of Seller, Buyer shall promptly return to Seller all Due
Diligence Materials provided to Buyer hereunder. The provisions of this Section
9.9(a) shall not survive the Closing.
(B) Neither Seller nor Buyer shall at any time issue a press
release regarding this sale and purchase of the Property unless such release or
communication has received the prior written approval of the other party (such
approval not to be unreasonably withheld), provided, however, either party shall
have the right after Closing to issue a press release announcing the sale and
acquisition of the Property and the resulting ownership and control of the
Property without prior written approval of the other so long as the press
release does not expressly disclose the economic terms hereof. The provisions of
this Section 9.9(b) shall survive the Closing.
SECTION 9.10 INTERPRETATION OF AGREEMENT.
The article, section and other headings of this Agreement are for
convenience of reference only and shall not be construed to affect the meaning
of any provision contained herein. Where the context so requires, the use of the
singular shall include the plural and vice versa and the use of the masculine
shall include the feminine and the neuter. The term "PERSON" shall include any
individual, partnership, joint venture, corporation, trust, unincorporated
association, any other entity and any government or any department or agency
thereof, whether acting in an individual, fiduciary or other capacity.
26
SECTION 9.11 LIMITED LIABILITY.
The obligations of Seller under this Agreement and under all of the
Other Documents are intended to be binding only on the property of Seller and
shall not be personally binding upon, nor shall any resort be had to, the
private properties of any Seller Related Parties.
SECTION 9.12 AMENDMENTS.
This Agreement may be amended or modified only by a written instrument
signed by Buyer and Seller.
SECTION 9.13 NO RECORDING.
Neither this Agreement or any memorandum or short form thereof may be
recorded by Buyer.
SECTION 9.14 OFFER TO ENTER INTO A LEGALLY BINDING CONTRACT.
This Agreement, when duly executed by all of the parties hereto, shall
be binding upon and inure to the benefit of the parties hereto and their
respective permitted successors and assigns. The date on which both Seller and
Buyer have fully executed and delivered to each other a counterpart of this
Agreement (or a copy by facsimile transmission) shall be the "EFFECTIVE DATE".
SECTION 9.15 NO PARTNERSHIP.
The relationship of the parties hereto is solely that of seller and
buyer with respect to the Property and no joint venture or other partnership
exists between the parties hereto. Neither party has any fiduciary relationship
hereunder to the other.
SECTION 9.16 NO THIRD PARTY BENEFICIARY.
The provisions of this Agreement are not intended to benefit any third
parties. Without limiting the generality of the foregoing, the parties hereto
expressly acknowledge and agree that none of Seller's representations,
warranties, or covenants herein may be relied on by the Title Company, whether
by subrogation or otherwise.
SECTION 9.17 SURVIVAL.
Except as expressly set forth to the contrary herein, no
representations, warranties, covenants or agreements of Seller contained herein
shall survive the Closing.
SECTION 9.18 SURVIVAL OF ARTICLE IX.
Except as set forth in Section 9.9(a) hereof, the provisions of this
Article IX shall survive the Closing.
27
SECTION 9.19 1031 EXCHANGE.
Seller and Buyer agree to cooperate with each other in effecting for the
benefit of either party a delayed like-kind exchange of real property pursuant
to Section 1031 of the United States Internal Revenue Code and similar
provisions of applicable state law; provided that (i) neither party shall be
allowed to delay the Closing hereunder and (ii) neither party shall be obligated
to execute any note, contract, deed or other document not otherwise expressly
provided for in this Agreement providing for any personal liability, nor shall
either party be obligated to take title to any property other than the Property
as otherwise contemplated in this Agreement or incur additional expense for the
benefit of the other party. Each party shall indemnify and hold the other
harmless against any liability which arises or is claimed to have arisen on
account of any exchange proceeding that is initiated on behalf of the
indemnifying party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK;
SIGNATURES ON FOLLOWING PAGE]
28
The parties hereto have executed this Agreement as of the date set forth
in the first paragraph of this Agreement.
SELLER: XXXXXX HOLDINGS CORP., as Trustee
By: _______________________________
Name: _____________________________
Its: ______________________________
BUYER: HARVARD PROPERTY TRUST, LLC
a Delaware limited liability company
By: _______________________________
Name: _____________________________
Its: ______________________________
29
LIST OF EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit A Real Property Description
Exhibit B List of Tenant Leases
Exhibit C Deed
Exhibit D Xxxx of Sale
Exhibit E Assignment of Leases, Service Contracts, Warranties and Other
Intangible Property
Exhibit F Estoppel Certificate
Exhibit G List of Service Contracts, Equipment Leases, and Leased Personal
Property
Exhibit H Xxxxxxx Money Escrow Agreement
Exhibit I Master Lease
Exhibit J Management Office Lease
Exhibit K Property Management and Leasing Subcontract
Exhibit L Due Diligence Materials
SCHEDULES
Schedule 1 Excluded Personal Property
Schedule 2 Disclosure Items
Schedule 3 Approved Lease Transactions
Schedule 4 Permitted Title Exceptions
Schedule 5 Leasing Costs
EXHIBIT A
REAL PROPERTY DESCRIPTION
PARCEL l:
Lot 3; and that part of Xxxx 0 xxx 0, Xxxxx 00, Xxxx of Minneapolis, lying
Southwesterly of the Southwesterly line of Xxx 0, Xxxxxxx'x Xxxxxxxxxxx Xxxxxx
00, Xxxxxxxx Xxxxxx, Xxxxxxxxx. That part of Lots 6 and 7, and that part of the
Southeasterly One-half of Xxx 0, Xxxxx 00, Xxxx of Minneapolis, lying
Northeasterly of the Northeasterly line of Xxx 0, Xxxxxxx'x Xxxxxxxxxxx Xxxxxx
00, Xxxxxxxx Xxxxxx, Xxxxxxxxx, the Northwesterly line of said part of Lot 8 has
been marked by Judicial Landmarks set pursuant to Torrens Case No. 13943;
The Southeasterly 15 feet of Lots 2 and 3; Lots 4, 5, 6, 7 and 8, all in
Auditor's Subdivision Number 78, Hennepin County, Minnesota. The Northeasterly
and Northwesterly lines of said part of Lots 2 and 3 have been marked by
Judicial Landmarks set pursuant to Torrens Case No. 13943.
Lots 4 and 5, Block 88, Xxxxx & Jackin's Addition to Minneapolis, according to
the recorded plat thereof, Hennepin County, Minnesota.
PARCEL 2:
Non-exclusive appurtenant easement for access granted by and defined in Skyway
Agreement (2nd Avenue Skyway) dated January 11, 1979, filed January 19, 1982, as
Document Number 1455465, Office of Registrar of Titles, and filed January 20,
1982, as Document Number 4696711, Office of County Recorder, Hennepin County,
Minnesota.
PARCEL 3:
Non-exclusive appurtenant easements as set forth in 517 Marquette Garage/One
Financial Plaza Easement Agreement dated April 29, 1999, filed May 18, 1999, as
Document Number 3159058, Office of Registrar of Titles, and filed June 24, 1999,
as Document Number 7134651, Office of County Recorder; as amended by Amendment
to 517 Marquette Garage/One Financial Plaza Easement Agreement dated August 27,
1999, filed August 31, 1999, as Document Number 3199129, Office of Registrar of
Titles and filed August 31, 1999, as Document Number 7174302, Office of County
Recorder, Hennepin County, Minnesota.
A-1
EXHIBIT B
LIST OF TENANT LEASES
TENANT SUITE
------ -----
American Council of the Blind 1005
Arbor Capital Management 1000
Asian Max S215
Auxilium Partners (Quatris Fund) 2005
Buck Consultants 2260
Xxxxxxx, Inc. 2050
Xxxxxxx Group 1050
Clarity Xxxxxxxxx 1300
CityBusiness/Twin Cities, Inc., d/b/a The Business Journal 900
D. Brian's Deli S12
Xxxxx Xxxxxx & Associates 1220
Deloitte & Touche LLP 3/4/5/7/18/1900
Delphi Financial Corp 2490
Excel Bank S210
Fish Creek Ventures 801
Xxxxxx, Xxxxxx & Xxxx 1100
H. Enterprises International 2300
Hennepin Faculty L155/L160
Xxxxxx.Xxx B-10
It's Just Lunch 1240
K&B Copy L150
Kapoor Enterprises S18
Xxxx Xxxxxx Associates 1600
Xxxx, Xxxxxx, Libra et al 2500
Lawyers Office Group 1515
LeaderSource Limited 2600
Xxxxx Consulting 1720
Madison & Co. S20
Xxxxxx-Xxxxxxxx, Inc. L100/200
Xxxxxxxx Enterprises, Inc. d/b/a Freshens S211
Xxxxxx-X'Xxxxx 2400
Xxxxxxx & Xxxxx, LLC 850
Pareo 2550
Xxxx X. Xxxxxxxx 1510
Personnel Directions, Inc 800
Predictive Systems, Inc./Subleased to Xxxxxxx Title 1750
Safe Place For Newborns 1150
Spotnik, Inc. FKA: Xxxxxx Xxxxx 2190
Starbucks Coffee Company X00
Xxxxx Xxxx Xxxxxxx 0000
Xxxxxxx Xx Xxxxxx 880
Take Care Chiropractic 225
Todays Legal Staffing 1160
Top Swing Leasing 2320
Turtle Bread Company S201/S2
Woodbridge Financial Group, Inc. 1260
B-1
EXHIBIT C
DEED
-------------------------------------------------- ------------------------------- ----------------------------------------------
FORM NO. 23-M - LIMITED WARRANTY DEED
Corporation, Partnership or Limited Liability
Company to Corporation, Partnership or Limited (Top 3 inches Reserved for Minnesota Uniform Conveyancing Blanks
Liability Company Recording Data) (1/15/97)
-------------------------------------------------- ------------------------------- ----------------------------------------------
DEED TAX DUE: $
------------------------------------
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Date: , 2005
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FOR VALUABLE CONSIDERATION, XXXXXX HOLDINGS CORP., AN ILLINOIS CORPORATION, AS TRUSTEE FOR XXXXXX-OFP TRUST, AN ILLINOIS TRUST
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Grantor, hereby conveys and warrants to
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Grantee, a under the laws of
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real property in HENNEPIN County, Minnesota, described as follows:
-------------------------------------
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See Exhibit A attached hereto and made a part hereof,
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together with all hereditaments and appurtenances.
This Deed conveys after-acquired title. Grantor warrants that Grantor has not done or suffered anything to encumber the
property, EXCEPT:
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Check box if applicable:
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[X] The Seller certifies that the seller does not know of any xxxxx on the described real property.
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[ ] A well disclosure certificate accompanies this document.
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[ ] I am familiar with the property described in this instrument and I certify that the status and number of xxxxx on the
described real property have not changed since the last previously filed well disclosure certificate.
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XXXXXX HOLDINGS CORP., AS TRUSTEE
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Affix Deed Tax Stamp Here
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By
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STATE OF MINNESOTA ) -------------------------------------------------------------------------
) SS. Its
COUNTY OF HENNEPIN) ---------------------------------------------------------------
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By
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Its
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This instrument was acknowledged before me on
-----------------------------------------------------------------------------
Date
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by and
----------------------------------------------------- --------------------------------------------------------------
the and
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of XXXXXX HOLDINGS CORP., AN ILLINOIS CORPORATION, AS TRUSTEE FOR XXXXXX-OFP TRUST, AN ILLINOIS TRUST
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on behalf of the trust.
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---- -------------------------------------------------- -------------------------------------------------------------------------
NOTARIAL STAMP OR SEAL (OR OTHER TITLE OR RANK): ____________________________________________________
---- -------------------------------------------------- -------------------------------------------------------------------------
SIGNATURE OF NOTARY PUBLIC OR OTHER OFFICIAL
---- -------------------------------------------------- -------------------------------------------------------------------------
Check here if part or all of the land is Registered (Torrens)
---- -------------------------------------------------- -------------------------------------------------------------------------
Tax Statement for the real property described in this instrument should
be sent to (include name and address of Grantee):
---- -------------------------------------------------- -------------------------------------------------------------------------
------------------------------------------------------- -------------------------------------------------------------------------
C-1
------------------------------------------------------- -------------------------------------------------------------------------
THIS INSTRUMENT WAS DRAFTED BY:
---- -------------------------------------------------- -------------------------------------------------------------------------
Xxxxxx Xxxxxxx Xxxx & Xxxxxxxx, Ltd.
0000 Xxxxx Xxxxx Xxxxx
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
(000) 000-0000
---- -------------------------------------------------- -------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
C-2
EXHIBIT D
XXXX OF SALE
This Xxxx of Sale (the "XXXX OF SALE") is made and entered into
____________, 2005, by and between XXXXXX HOLDINGS CORP., an Illinois
corporation, as Trustee for XXXXXX-OFP TRUST, an Illinois Trust ("ASSIGNOR"),
and ("ASSIGNEE").
In consideration of the sum of Ten Dollars ($10) and other good and
valuable consideration paid by Assignee to Assignor, the receipt and sufficiency
of which are hereby acknowledged, Assignor does hereby assign, transfer, convey
and deliver to Assignee, its successors and assigns, all items of Tangible
Personal Property (as defined in the Agreement referred to below), if any, owned
by Assignor and situated upon and used exclusively in connection with the Real
Property (as defined in the Agreement) and more particularly described on
EXHIBIT A attached hereto and made a part hereof for all purposes, including,
without limitation, the Tangible Personal Property identified in EXHIBIT B, if
any, attached hereto and made a part hereof for all purposes (the "TANGIBLE
PERSONAL PROPERTY").
Assignee acknowledges and agrees that, except as expressly provided in,
and subject to the limitations contained in, that certain Agreement of Purchase
and Sale dated July ____, 2005, by and between Assignor and Assignee or
Assignee's affiliate (the "AGREEMENT"), Assignor has not made, does not make and
specifically disclaims any representations, warranties, promises, covenants,
agreements or guaranties of any kind or character whatsoever, whether express or
implied, oral or written, past, present or future, of, as to, concerning or with
respect to (a) the nature, quality or conditions of the Tangible Personal
Property, (b) the income to be derived from the Tangible Personal Property, (c)
the suitability of the Tangible Personal Property for any and all activities and
uses which Assignee may conduct thereon, (d) the compliance of or by the
Tangible Personal Property or its operation with any laws, rules, ordinances or
regulations of any applicable governmental authority or body, or (e) the
quality, habitability, merchantability or fitness for a particular purpose of
any of the Tangible Personal Property. However, Assignor represents and warrants
to Assignee that Assignor owns title to the Tangible Personal Property
identified on Exhibit B free and clear of any lien or encumbrance. Assignee
further acknowledges and agrees that, having been given the opportunity to
inspect the Tangible Personal Property, Assignee is relying solely on its own
investigation of the Tangible Personal Property and not on any information
provided or to be provided by Assignor, except as specifically provided in the
Agreement. Assignee further acknowledges and agrees that any information
provided or to be provided with respect to the Tangible Personal Property was
obtained from a variety of sources and that Assignor has not made any
independent investigation or verification of such information. Assignee further
acknowledges and agrees that the sale of the Tangible Personal Property as
provided for herein is made on an "as is, where is" condition and basis "with
all faults," except as specifically provided herein and subject to the
limitations contained in the Agreement.
The obligations of Assignor are intended to be binding only on the
property of Assignor and shall not be personally binding upon, nor shall any
resort be had to, the private properties of any Seller Related Parties (as
defined in the Agreement).
D-1
IN WITNESS WHEREOF, Assignor and Assignee have caused this Xxxx of Sale
to be executed on the date and year first above written.
ASSIGNOR: XXXXXX HOLDINGS CORP., an Illinois
corporation, as Trustee
By: _________________________________
Its: _________________________________
ASSIGNEE: ______________________________________
a ____________________________________
By: _________________________________
Its: _________________________________
D-2
EXHIBIT E
ASSIGNMENT OF LEASES, SERVICE CONTRACTS,
WARRANTIES AND OTHER INTANGIBLE PROPERTY
This Assignment of Leases, Service Contracts, Warranties and Other
Intangible Property (this "Assignment") is made and entered into
_______________, 2005, by and between XXXXXX HOLDINGS CORP., an Illinois
corporation, as Trustee for XXXXXX-OFP TRUST, an Illinois Trust ("ASSIGNOR"),
and ____________________________________________________________________________
_____________________________________________________________ ("ASSIGNEE").
For good and valuable consideration paid by Assignee to Assignor, the
receipt and sufficiency of which are hereby acknowledged, Assignor does hereby
assign, transfer, set over and deliver unto Assignee all of Assignor's right,
title, and interest in and to the following (collectively, the "ASSIGNED
ITEMS"): (i) those certain leases (the "LEASES") listed on EXHIBIT A attached
hereto and made a part hereof for all purposes except for Seller's right to
collect delinquent rent and other delinquent sums owing under such Leases for
the period prior to the date hereof in accordance with the Agreement (as defined
below), (ii) those certain service contracts, equipment leases, and tenant
improvement agreements (the "SERVICE CONTRACTS") listed on EXHIBIT B, if any,
attached hereto and made a part hereof for all purposes, and (iii) those certain
warranties held by Assignor (the "WARRANTIES") listed on EXHIBIT C, if any,
attached hereto and made a part hereof for all purposes, and (iv) all zoning,
use, occupancy and operating permits, and other permits, licenses, approvals and
certificates, maps, plans, specifications, and all other Intangible Personal
Property (as defined in the Agreement) owned by Assignor and used exclusively in
the use or operation of the Real Property and Personal Property (each as defined
in the Agreement), including, without limitation, any right of Assignor to use
the name "One Financial Plaza" and any other trade name owned by Assignor now
used exclusively in connection with the Real Property and any utility contracts
or other agreements or rights relating to the use and operation of the Real
Property and Personal Property (collectively, the "OTHER INTANGIBLE PROPERTY").
ASSIGNEE ACKNOWLEDGES AND AGREES, BY ITS ACCEPTANCE HEREOF, THAT, EXCEPT
AS EXPRESSLY PROVIDED IN, AND SUBJECT TO THE LIMITATIONS CONTAINED IN, THAT
CERTAIN AGREEMENT OF PURCHASE AND SALE, DATED AS OF JULY _____, 2005, BY AND
BETWEEN ASSIGNOR AND HARVARD PROPERTY TRUST, LLC (THE "AGREEMENT"), THE ASSIGNED
ITEMS ARE CONVEYED "AS IS, WHERE IS" AND IN THEIR PRESENT CONDITION WITH ALL
FAULTS, AND THAT ASSIGNOR HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS
ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES
OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR
WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO THE
NATURE, QUALITY OR CONDITION OF THE ASSIGNED ITEMS, THE INCOME TO BE DERIVED
THEREFROM, OR THE ENFORCEABILITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE OF THE ASSIGNED ITEMS.
Except as otherwise expressly provided in Article VII of the Agreement,
by accepting this Assignment and by its execution hereof, Assignee assumes the
payment and performance of, and agrees to pay, perform and discharge, all the
debts, duties and obligations to be paid, performed or discharged from and after
the Closing Date (as defined in the Agreement) by
E-1
(a) the "landlord" or the "lessor" under the terms, covenants and conditions of
the Leases, including, without limitation, brokerage commissions and compliance
with the terms of the Leases relating to tenant improvements and security
deposits, and (b) the owner under the Service Contracts, the Warranties and/or
the Other Intangible Property.
The obligations of Assignor are intended to be binding only on the
property of Assignor and shall not be personally binding upon, nor shall any
resort be had to, the private properties of any Seller Related Parties.
All of the covenants, terms and conditions set forth herein shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns.
IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment to
be executed on the day and year first above written.
ASSIGNOR: XXXXXX HOLDINGS CORP., an Illinois
corporation, as Trustee
By: _________________________________
Its: _________________________________
ASSIGNEE: ______________________________________
a ____________________________________
By: _________________________________
Its: _________________________________
E-2
EXHIBIT F
TENANT ESTOPPEL
[ADDRESS OF BUYER]
[ADDRESS OF LENDER]
RE: [Name and Address of Property]
Gentlemen:
Reference is made to that certain [LEASE AGREEMENT] dated as of
____________ __, ____ between ____________________________, a ____________, as
landlord ("LANDLORD"), and the undersigned, as tenant ("Tenant"), demising
premises at the captioned address more particularly described in the Lease (the
"PREMISES"). The lease, together with all amendments thereto included in
SCHEDULE 1 attached hereto, is herein referred to as the "LEASE". Tenant hereby
represents to the Benefited Parties (as herein defined) that the following
statements are true and correct as of the date hereof:
1. A true, correct and complete copy of the Lease (including all
amendments) is attached hereto as SCHEDULE 1. The undersigned is the Tenant
under the Lease for space at the Premises covering ___________ rentable square
feet.
2. The Lease is in full force and effect and has not been amended,
modified, supplemented or superseded except as indicated in Schedule 1. There
are no understandings, contracts, agreement or commitments of any kind
whatsoever with respect to the Premises, except as expressly provided in the
Lease.
3. The term of the Lease commenced on ________________, and expires
on _________________, subject to any rights of Tenant to extend the term as
provided therein. The base rent presently being charged is $__________. All
rentals, charges, additional rent and other obligations on the part of the
undersigned have been paid to and including ____________, 2005. No rental, other
than for the current month, has been paid in advance. The undersigned has
accepted possession and now occupies the Premises and is currently open for
business. In addition to Base Rent, the Tenant pays its pro-rata share of real
estate taxes and operating expenses.
4. Tenant has paid to Landlord a security deposit in the amount of
$____________________. Tenant has no claim against Landlord for any other
security, rental, cleaning, access card, key or other deposits or any prepaid
rentals.
F-1
5. Landlord is not in any respect in default in the performance of
the terms and provisions of the Lease, nor does any state of facts or condition
exist which, with the giving of notice or the passage of time, or both, would
result in such a default. All conditions under the Lease to be performed by
Landlord have been satisfied. Without limiting the generality of the foregoing,
all improvements to be constructed in the Premises by Landlord have been
completed to the satisfaction of Tenant and accepted by Tenant and any tenant
construction allowances have been paid in full, and all duties of an inducement
nature required of Landlord in the Lease have been fulfilled to Tenant's
satisfaction. Tenant has no claim against Landlord by reason of any restriction,
encumbrance or defect in title of the Premises of which Tenant has actual
knowledge.
6. There currently is no defense, offset, lien, claim or
counterclaim by or in favor of Tenant against Landlord under the Lease or
against the obligations of Tenant under the Lease (including, without
limitation, any rentals or other charges due or to become due under the Lease)
and Tenant is not contesting any such obligations, rentals or charges. To
Tenant's knowledge, all leasing commissions due in respect of the current term
of the Lease have been paid.
7. Tenant has no renewal, extension or expansion option, no right
of first offer or right of first refusal and no other similar right to renew or
extend the term of the Lease or expand the property demised thereunder except as
may be expressly set forth in the Lease. Tenant has no right to lease or occupy
any parking spaces within the Property except as set forth in the Lease. Tenant
is entitled to no free rent nor any credit, offsets or deductions in rent, nor
other leasing concessions other than those specified in the Lease.
8. Tenant is not in any respect in default in the performance of
the terms and provisions of the Lease nor does any state of facts or condition
exist which, with the giving of notice or the passage of time, or both, would
result in such a default. Without limiting the generality of the foregoing,
Tenant is current in its rental obligation under the Lease.
9. The undersigned has not received notice of a prior transfer,
assignment, hypothecation or pledge by Landlord of any of Landlord's interest in
the Lease other than to the holder of any first mortgage on the captioned
property.
10. There are no liens recorded against the Premises with respect to
work performed by or on behalf of Tenant or materials supplied to the demised
property.
11. Tenant has not assigned the Lease nor sublet all or any part of
the Premises, except as shown on Schedule 1 attached hereto and made a part
hereof for all purposes.
F-2
The above certifications are made to the Benefited Parties knowing that
the Benefited Parties will rely thereon in making an investment in the Premises.
For purposes hereof, the term "BENEFITED PARTIES" means the addressees of this
letter and all of the following: (a) Harvard Property Trust, LLC, a Delaware
limited liability company and its successors, assigns, and designees (including,
without limitation, any tenant in common purchasers); and (b) any lender to
which any party described in the foregoing clause (a) grants a deed of trust,
mortgage or other lien upon the Premises.
Very truly yours,
______________________,
a
By:_______________________________
Name:_____________________________
Title:____________________________
F-3
JOINDER OF GUARANTOR
The undersigned joins in the execution of this Estoppel Certificate of
the purpose of confirming to and for the benefit of the Benefited Parties (a)
that the guaranty of Tenant's obligations under the Lease executed by the
undersigned remain in full force and effect, and (b) that the undersigned has no
defenses or offsets to its obligations under the guaranty of the Lease executed
by the undersigned. The undersigned understands that the Benefited Parties will
rely upon the foregoing confirmations.
___________________________________
a _________________________________
By: _______________________________
Name: _____________________________
Title: ____________________________
F-4
EXHIBIT G
LIST OF SERVICE CONTRACTS,
EQUIPMENT LEASES AND LEASED PERSONAL PROPERTY
XXX XXXXXXXXX XXXXX
XXXXXXXXXXX, XXXXXXXXX
CONTRACT REVIEW
---------------------- --------------------- ---------------------------- ------------- ------------ ------------ ------------------
FREQUENCY OF SERVICE & COST BEGINNING
---------------------------- & ENDING
CURRENT PRIOR MOST RECENT DATE OF CANCELLATION
SERVICE/PRODUCT VENDOR YEAR YEAR BID DATE CONTRACT CLAUSE NOTES
---------------------- --------------------- -------------- ------------- ------------- ------------ ------------ ------------------
Elevator Maintenance XXXX Elevator Preventative Preventative 8/00 2/1/97 - 30 Day New Corp. Rates
Maintenance Maintenance 12/31/07 Notice Upon Negotiated 8/00
$15,540/Mo $14,730/Mo Sale
---------------------- --------------------- -------------- ------------- ------------- ------------ ------------ ------------------
Security Patrol Allied Security $195,090/ $183,780/ 1/01/01 - 30 Day In Process of
Yr Budget Yr Budget M-T-M Notice W/O Bidding Service
Cause
---------------------- --------------------- -------------- ------------- ------------- ------------ ------------ ------------------
Window Washing Columbia Building $21,385.02/ $14,680/Yr 1/04 1/01/04 - 30 Day
Services Yr Per Budget Per Budget 12/31/05 Notice W/O
Cause
---------------------- --------------------- -------------- ------------- ------------- ------------ ------------ ------------------
Snow Removal ABM Year-To-Year ABM-Removes Each
Columbia Bldg. Snowfall
Services Columbia-Removes
Curb Side-On Call
---------------------- --------------------- -------------- ------------- ------------- ------------ ------------ ------------------
Trash Removal Services Waste Management $16,800/Yr $16,800/Yr 1/04 1/1/04 - 30 Day
12/31/05 W/O Cause
---------------------- --------------------- -------------- ------------- ------------- ------------ ------------ ------------------
Xxxx Industries Paper and Cardboard $0 $0 12/03 1/1/04-
Recycling 12/13/04
---------------------- --------------------- -------------- ------------- ------------- ------------ ------------ ------------------
Janitorial ABM $35,391/Yr $348,945/Yr 12/03 1/1/04 - 30 Day Recently
12/31/06 W/O Cause Renegotiated
---------------------- --------------------- -------------- ------------- ------------- ------------ ------------ ------------------
Pest Control Xxxxx $1,275/Yr $1,200/Yr 8/04 9/1/04 - 30 Day
9/1/05 W/O Cause
---------------------- --------------------- -------------- ------------- ------------- ------------ ------------ ------------------
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---------------------- --------------------- -------------- ------------- ------------- ------------ ------------ ------------------
Alarm Monitoring Honeywell $35/MO $35/MO 5/03 5/1/92 - 30 Day
M-T-M W/O Cause
---------------------- --------------------- -------------- ------------- ------------- ------------ ------------ ------------------
Annual Outdoor Flowers Bloomin' Blossoms $2,000/Yr $2,200/Yr 3/05 5/1/05 - 30 Day
12/31/05 W/O Cause
---------------------- --------------------- -------------- ------------- ------------- ------------ ------------ ------------------
Indoor Flowers/Plants Plantscape $2,059 /MO $2,806/MO 1/04 4/1/04 - Prior year costs
3/31/06 with McCaren
Design
---------------------- --------------------- -------------- ------------- ------------- ------------ ------------ ------------------
Escalator Maintenance Schindler $1,305/MO $1,285/MO 9/17/94 30 Day
(Monthly) Notice
---------------------- --------------------- -------------- ------------- ------------- ------------ ------------ ------------------
Steam Supply/ Minneapolis Energy Metered Metered 3/1/93 - 90 Day
Chilled Water Center 2/28/12 With Cause
---------------------- --------------------- -------------- ------------- ------------- ------------ ------------ ------------------
Fire Extinguisher XX Xxxxxxx $350/Yr $950/Yr 7/5/97 30 Day
Maintenance (Yearly) W/O Cause
---------------------- --------------------- -------------- ------------- ------------- ------------ ------------ ------------------
Telecommunications Intermedia 2/12/97 - Initial Phones
Services Communications 2/28/07 (8) At No Charge,
Add Ons Charged
Mo. Current LD
Rate $.12 Per
Minute
---------------------- --------------------- -------------- ------------- ------------- ------------ ------------ ------------------
Parking Garage Standard Parking 4% Of Gross 2/21/97 60 Day
Revenue (Yearly) W/O Cause
---------------------- --------------------- -------------- ------------- ------------- ------------ ------------ ------------------
Copy Machine Contract Loffler $596/Mo $596/Mo 12/01-
12/05
---------------------- --------------------- -------------- ------------- ------------- ------------ ------------ ------------------
Fax Machine Contract Loffler $82/MO $82/MO 7/03-7/07
---------------------- --------------------- -------------- ------------- ------------- ------------ ------------ ------------------
Roof Maintenance Tremco $3,300/Yr $3,300/Yr 8/21/05- 30 Day 5th, 6th 27th,
8/20/10 Notice 28th Floor Roofs
Upon Sale
---------------------- --------------------- -------------- ------------- ------------- ------------ ------------ ------------------
After Hours Answering Time Communications $35.95 6/1/00 30 Day
Service /Mo Base (Monthly) Notice
---------------------- --------------------- -------------- ------------- ------------- ------------ ------------ ------------------
G-2
EXHIBIT H
XXXXXXX MONEY ESCROW AGREEMENT
Escrow No.:____________
Date: July ___, 2005
The sum of Two Million Five Hundred Thousand Dollars ($2,500,000.00) of
xxxxxxx money will be deposited with First American Title Insurance Company, as
escrowee ("Escrowee"), within three (3) business days after execution of the
Agreement, and an additional Two Million Five Hundred Thousand and no/100
Dollars ($2,500,000.00) of xxxxxxx money shall be deposited on or prior to ,
2005 if required under the Purchase and Sale Agreement described below. All
funds deposited with Escrowee hereunder shall be disbursed by Escrowee only upon
the joint order of the undersigned or their respective legal representatives or
assigns.
Except for any such joint order, Escrowee is hereby expressly authorized
to disregard, in its sole discretion, any and all notices or warnings given by
any of the parties hereto, or by any other person or corporation, but Escrowee
is hereby expressly authorized to comply with and obey any and all orders or
decrees entered or issued by any court, with or without jurisdiction, and in
case Escrowee obeys or complies with any such order or decree of any court it
shall not be liable to any of the parties hereto or any other person, firm or
corporation by reason of such compliance, notwithstanding any such order or
decree being entered without jurisdiction or being subsequently reversed,
modified, annulled, set aside or vacated. In case of any suit or proceeding
regarding this escrow agreement to which Escrowee is or may at any time become a
party (except a suit or proceeding arising from Escrowee's breach of its
obligations hereunder), Escrowee shall have a lien on the contents hereof for
any and all out-of-pocket costs, including reasonable attorneys' fees, whether
such attorneys shall be regularly retained or specially employed, and any other
reasonable expenses which it may have incurred or become liable for on account
thereof, and it shall be entitled to reimburse itself therefor out of said
deposit, and the undersigned jointly and severally agree to pay Escrowee, upon
demand, all such costs, fees and expenses so incurred. In no case shall the
above mentioned deposits be surrendered except on an order signed by the parties
hereto, their respective legal representatives or assigns, or in obedience of
the process or order of court as aforesaid.
Deposits made pursuant to these instructions shall be held in an
interest bearing account and may be invested on behalf of any party or parties
hereto; provided that any direction to Escrowee for such investment shall be
expressed in writing and contain the consent of all the parties to this escrow
agreement, and also provided that Escrowee is in receipt of the taxpayer's
identification number and investment forms as required. Escrowee will, upon
request, furnish information concerning its procedures and fee schedules for
investment.
In the event the Escrowee is requested to invest deposits hereunder,
Escrowee is not to be held responsible for any loss of principal or interest
which may be incurred as a result of making
H-1
the investment for the purposes of these escrow instructions unless such loss
results from the negligence or intentional misconduct of Escrowee.
Except as to deposits of funds for which Escrowee has received express
written direction concerning investment or other handling, the parties hereto
agree that the Escrowee shall be under no duty to invest or reinvest any
deposits at any time held by it hereunder. Escrowee may commingle any uninvested
deposits with other deposits or with its own funds to the extent permitted by
law, provided, however, nothing herein shall diminish Escrowee's obligation to
apply the full amount of the deposits, plus all interest and earnings thereon,
in accordance with the terms of this Agreement.
The undersigned Buyer and Seller acknowledge that the amount deposited
hereunder is the xxxxxxx money "Deposit" described in and governed by that
certain Agreement of Purchase and Sale dated July _____, 2005 between the
undersigned Seller and Buyer. Seller and Buyer agree to execute all joint
directions and take all other actions required hereunder to cause the Deposit to
be disbursed and applied in the manner required under said Agreement of Purchase
and Sale.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed and sealed as of the date first stated above.
SELLER:
XXXXXX HOLDINGS CORP., an Illinois corporation, as Trustee
By: ___________________________________
Name: ________________________________
Its: __________________________________
BUYER:
HARVARD PROPERTY TRUST, LLC, a Delaware limited
liability company
By: ___________________________________
Name: ________________________________
Its: __________________________________
ESCROW AGENT:
First American Title Insurance Company
By: ___________________________________
Name: ________________________________
Its: __________________________________
H-2
EXHIBIT I
MASTER LEASE
I-1
EXHIBIT I
ONE FINANCIAL PLAZA
MASTER LEASE
THIS LEASE is entered into and made as of the _______ day of
_________________________, 2005 by and between [HARVARD PROPERTY TRUST, LLC], a
, hereinafter called "Landlord", and XXXXXX HOLDINGS CORP., an Illinois
corporation, as trustee for XXXXXX-OFP TRUST, an Illinois trust, hereinafter
called "Tenant".
WITNESSETH:
Landlord, in consideration of the rents and covenants hereinafter set
forth, does hereby demise, let and lease to Tenant, and Tenant does hereby hire,
take and lease from Landlord, on the terms and conditions hereinafter set forth,
the following described space, hereinafter called the "Premises", to have and to
hold the same, with all appurtenances, unto Tenant for the term hereinafter
specified.
1. DESCRIPTION OF THE PREMISES
The Premises consist of approximately 25,000 rentable square feet of
vacant and undesignated office and retail space (the "rentable area") located in
the building commonly known as 000 Xxxxx Xxxxx Xxxxxx, in the City of
Minneapolis, County of Hennepin, State of Minnesota, (hereinafter called the
"Building"). The Building is located within One Financial Plaza (hereinafter
called the "Project"), as legally described on Exhibit "B" attached hereto and
made a part hereof.
2. TERM
The term of this Lease (the "Term") shall be for a period of one (1)
year and six (6) months, commencing [Closing Date] (the "Commencement Date"),
and ending [one (1) year and six (6) months after Closing] (the "Expiration
Date"), subject to adjustment as provided in Paragraph 6 hereof, unless this
Lease shall be sooner terminated as hereinafter provided.
3. RENT
Subject to the adjustment provisions of Paragraph 4 hereof, Tenant shall
pay to Landlord, at the address listed below in Paragraph 25, Rent for the
Premises in the initial monthly amount of $20,833.33, which has been calculated
by using an annual per square foot rental rate of $10.00. The first installment
of Rent shall be payable on the thirtieth (30th) day after the Commencement Date
with subsequent installments of Rent due and payable on the same date thereafter
to and including the Expiration Date. Rent shall be payable in arrears. The area
of the Premises remaining subject to this Lease (and the amount of Rent to be
paid) shall be determined as set forth in Paragraph 4 hereof.
4. REDUCTION OF AREA OF PREMISES
Landlord and Tenant intend that Tenant, through its leasing agent, will
continue to offer all vacant space in the Building (including the Premises) for
lease to third parties. The rentable area of the Premises shall be reduced from
time to time during the Term on each commencement date of each "Qualifying
Lease". For the purpose of this provision, a "Qualifying Lease" shall include
(a) any new lease executed by Landlord with a new tenant for space in the
Building, (b) any new lease or lease amendment for expansion space (but only to
the extent of such expansion) for an existing tenant in the Building, or (c) a
Lease executed by Landlord with a third party for the current management office
located in Suite 1700 of the Building. On the commencement date of each
Qualifying Lease, the area of the Premises set forth in Paragraph 1 hereof shall
be reduced by the rentable area of the space leased and monthly Rent shall be
reduced on the same date by an amount equal to one-twelfth (1/12) of the product
of the area of the space leased and $10.00.
5. TENANT FINISH IMPROVEMENTS
Landlord shall not be obligated to construct any tenant finish
improvements to the Premises. Landlord shall deliver and Tenant shall accept the
Premises in "as-is" condition.
6. DELIVERY OF POSSESSION; ADJUSTMENT OF TERM
(a) Delivery of Possession. Landlord shall deliver the Premises to
Tenant on the Commencement Date.
(b) Tenant's Acceptance of the Premises. Upon delivery of possession
of the Premises to Tenant as hereinbefore provided, Tenant shall give Landlord
an Estoppel Letter, in the form attached to this Lease, made a part hereof and
marked Exhibit "E", signed by an officer or principal of Tenant acknowledging
(i) the original or revised Commencement Date and Expiration Date of this Lease,
and (ii) that Tenant has accepted the Premises for occupancy and that the
condition of the Premises and the Building was at the time satisfactory and in
conformity with the provisions of this Lease in all respects. Tenant's Estoppel
Letter, fully executed, shall be attached to and made a part of this executed
Lease.
7. USE OF THE PREMISES
(a) Specific Use. The Premises shall be occupied and used
exclusively for general office and retail purposes and for legal purposes
incidental thereto, and shall not be used for any other purpose.
(b) Covenants Regarding Use. In connection with its use of the
Premises, Tenant agrees to do the following:
(i) Tenant shall use the Premises and conduct its business
thereon in a safe, careful, reputable and lawful manner; shall keep and
maintain the Premises in as good a condition as they were when Tenant
first took possession thereof and shall make all necessary repairs to
the Premises other than those which Landlord is obligated to make as
provided elsewhere herein.
(ii) Tenant shall not commit, nor allow to be committed, in,
on or about the Premises, the Building or the Project, any act of waste,
including any act which might deface, damage or destroy the Project,
Building, or any part thereof; use or permit to be used on the Premises
any hazardous substance, equipment or other thing which might cause
injury to person or property or increase the danger of fire or other
casualty in, on or about the Premises; permit any objectionable or
offensive noise or odors to be emitted from the Premises; or do
anything, or permit anything to be done, which would, in Landlord's
opinion, disturb or tend to disturb other tenants occupying leased space
in the Building.
(iii) Tenant shall not overload the floors of the Premises
beyond their designed weight-bearing capacity. Landlord reserves the
right to direct the positioning of all heavy equipment, furniture and
fixtures which Tenant desires to place in the Premises so as to
distribute properly the weight thereof, and to require the removal of
any equipment or furniture which exceeds the weight limit specified
herein.
(iv) Tenant shall not use the Premises, nor allow the
Premises to be used, for any purpose or in any manner which would, in
Landlord's opinion, invalidate any policy of insurance now or hereafter
carried on the Project or increase the rate of premiums payable on any
such insurance policy. Should Tenant fail to comply with this covenant,
Landlord may, at its option, require Tenant to stop engaging in such
activity or to reimburse Landlord as additional rent for any increase in
premiums charged during the term of this Lease on the insurance carried
by Landlord on the Premises and attributable to the use being made of
the Premises by Tenant.
(c) Compliance with Laws. Tenant shall not use or permit the use of
any part of the Premises for any purpose prohibited by law. Tenant shall, at
Tenant's sole expense, comply with all laws, statutes, ordinances, rules,
regulations and orders of any federal, state, municipal or other governmental
agency thereof having jurisdiction over and relating to the use, condition and
occupancy of the Premises, except that Tenant shall not be responsible for or
required to make structural repairs to the Building or the Premises unless, in
the case of the latter, they are occasioned by its own use of the Premises or
negligence.
(d) Compliance with Project Rules and Regulations. Rules and
regulations governing the use and occupancy of the Premises and all other leased
space in the Project have been adopted by Landlord for the mutual benefit and
protection of all tenants in the Project. Tenant shall comply with and conform
to the rules and regulations currently in effect, which are attached to this
Lease, made a part hereof and marked Exhibit "D". Landlord shall have the right
to change such rules and regulations or to make new rules and regulations from
time to time in any manner that it deems necessary or desirable in order to
insure the safety, care and cleanliness of the Project and the preservation of
order therein. Any such amendments to the rules and regulations shall be set
forth in writing and shall be given to Tenant, who shall thereafter comply with
and conform to the same.
(e) Compliance with Zoning. Tenant knows the character of its
operation in the Premises and that applicable zoning ordinances and regulations
are of public record. Tenant shall have sole responsibility for its compliance
therewith, and Tenant's inability so to comply shall not be cause for Tenant to
terminate this Lease.
8. UTILITIES AND OTHER BUILDING SERVICES
(a) Services to be Provided. Landlord shall furnish Tenant, between
the hours of 8:00 a.m. and 6:00 p.m. on Monday through Friday of each week
except on legal holidays and except as noted below, with the following utilities
and other building services to the extent considered by Landlord to be
reasonably necessary for Tenant's comfortable use and occupancy of the Premises
for general office use or as may be required by law or directed by governmental
authority:
(i) Heating, ventilation and air conditioning;
(ii) Electricity for lighting and operating business machines
and equipment in the Premises and the common areas and facilities of the
Building;
(iii) Water for lavatory and drinking purposes;
(iv) Automatic elevator service;
(v) Cleaning and janitorial service, including the supplying
and installing of paper towels, toilet tissue and soap in common
washrooms on Monday through Friday of each week except legal holidays;
(vi) Washing of interior and exterior windows at intervals
established by Landlord;
(vii) Replacement of all lamps, bulbs, starters and ballasts
used in common areas of the Project;
(viii) Cleaning and maintenance of the common areas and
facilities of the Project and the walks, driveways, parking lots and
landscaped areas adjacent to the Project, including the removal of
rubbish and snow; and
2.
(ix) Repair and maintenance of the Project and certain
systems within the Premises to the extent specified in Paragraph 10(a)
hereof.
(b) 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 quantities
greater than that which Landlord determines are normally required by other
tenants in the Project for general office use, 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 cost thereof shall be borne by
Tenant, who shall reimburse Landlord monthly for the same as provided in
Paragraph 8(d) hereof.
If any lights, machines or equipment (including but not limited to
computers) used by Tenant in the Premises materially affect the temperature
otherwise maintained by the Project's air conditioning system, Landlord shall
have the right to install any machinery or equipment which Landlord considers
reasonably necessary in order to restore the temperature balance between the
Premises and rest of the Project, including that which modifies the Project's
air conditioning system. All costs expended by Landlord to install any such
machinery and equipment and any additional cost of operation and maintenance
occasioned thereby shall be borne by Tenant, who shall reimburse Landlord for
the same as provided in Paragraph 8(d) hereof.
Tenant shall not install nor connect any electrical machinery or
equipment other than the business machines and equipment typically used for
general office use by tenants in office buildings comparable to the Project (a
personal computer being an example of such a typical electrical equipment) nor
any water-cooled machinery or equipment without Landlord's prior written
consent. If Landlord determines that the machinery or equipment to be so
installed or connected exceeds the designed load capacity of the Project's
electrical system or is in any way incompatible therewith will materially affect
utility costs, then Landlord shall have the right, as a condition to granting
its consent, to make such modifications to any utility system or other parts of
the Project or the Premises, or to require Tenant to make such modifications to
the equipment to be installed or connected, as Landlord considers to be
reasonably necessary before such equipment may be so installed or connected. The
cost of any such modifications shall be borne by Tenant, who shall reimburse
Landlord for the same (or any portion thereof paid by Landlord) as provided in
Paragraph 8(d) hereof.
Landlord shall have the right, at its sole cost, to install meters or
submeters to measure the amount of electricity consumed, from time to time, in
the Premises. In such event, Tenant shall pay, as additional rent, charges for
all utility services consumed in the Premises and measured by any such meters or
submeters as the same are billed to Tenant from Landlord from time to time;
provided, the cost of such services shall not exceed the rate that Tenant would
pay for comparable services if purchased directly from the utility supplying
such services. If Landlord chooses to so meter or submeter the Premises, during
the period that such meters or submeters are operating, Tenant shall have no
obligation to pay, as part of Operating Expenses, the cost of electricity
consumed in the Premises or any other occupied premises in the Building.
(c) Interruption of Services. Tenant understands, acknowledges and
agrees that any one or more of the utilities or other building services
identified above 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; that Landlord does not represent or warrant the
uninterrupted availability of such utilities or building services; and that any
such interruption shall not be deemed an eviction or disturbance of Tenant's
right to possession, occupancy and use of the Premises or any part thereof, or
render Landlord liable to Tenant in damages by abatement of rent or otherwise,
or relieve Tenant from the obligation to perform its covenants under this Lease.
(d) Payment for Utilities and Building Services. The cost of
additional utilities and other building services furnished by Landlord at the
request of Tenant or as a result of Tenant's activities as provided in Paragraph
8(b) hereof shall be borne by Tenant, who shall be separately billed therefore
and who shall reimburse and pay Landlord monthly for the same as additional
rent, at the same time the next monthly installment of Base Rent and other
additional rent is due. Tenant agrees to give reasonable advance notice, in
writing, to Landlord of its request for additional services.
(e) Energy Conservation. Notwithstanding anything to contrary in
this Paragraph 8 or elsewhere in this Lease, Landlord shall have the right to
institute such policies, programs and measures as may be necessary or desirable,
in Landlord's discretion, for the conservation and/or preservation of energy
related services, or as may be required to comply with any applicable codes,
rules and regulations, whether mandatory or voluntary.
9. SIGNS
Tenant shall not inscribe, paint, affix or display any signs,
advertisements or notices on or in the Project or in the Premises and visible
from outside the Premises, except for such tenant identification information as
Landlord at its own discretion permits to be included and agrees to install on
the directory board in the main lobby and on the tenant access doors to the
Premises.
10. REPAIRS, MAINTENANCE, ALTERATIONS, IMPROVEMENTS AND FIXTURES
(a) Repair and Maintenance of Project. Landlord shall keep and
maintain in good order, condition and repair the roof, exterior and interior
load-bearing walls (including any plate glass windows comprising a part
thereof), foundation, basement, the common areas and facilities of the Project
and the electrical, plumbing, heating, ventilation and air conditioning systems
serving the Premises and other parts of the Project, except that the repair and
maintenance of any electrical, plumbing, heating, ventilation and air
conditioning components which have been installed in the Premises pursuant to
the provisions of Paragraph 8(b) hereof shall be the responsibility of Tenant.
The cost of all non-capitalized repairs required to be made by Landlord shall be
an operating expense of the Project unless made necessary by the negligence,
misuse or default of Tenant, its employees, agents, customers or invitees, in
which event they shall be borne by Tenant, who shall be separately billed and
shall reimburse Landlord for the same as additional rent.
3.
(b) Repair and Maintenance of Premises. Except as provided in
Paragraph 10(a) hereof, Tenant shall, at its own expense, keep and maintain the
Premises in good order, condition and repair at all times during the Term, and
Tenant shall promptly repair all damage to the Premises and replace or repair
all damaged or broken fixtures, equipment and appurtenances with materials equal
in quality and class to the original materials, under the supervision and
subject to the approval of Landlord, and within any reasonable period of time
specified by Landlord. If Tenant fails to do so, Landlord may, but need not make
such repairs and replacements, and Tenant shall pay Landlord the cost thereof,
including Landlord's Costs, forthwith upon being billed for same. As used in
this Lease, the term "Landlord's Costs" shall mean fifteen percent (15%) of any
costs or expenses paid by Landlord, in order to reimburse Landlord for all
overhead, general conditions, fees and other costs and expenses arising from
Landlord's actions or involvement.
(c) Alterations or Improvements. Tenant shall not make, nor permit
to be made, alterations or improvements to the Premises, unless Tenant obtains
the prior written consent of Landlord thereto. If Landlord permits Tenant to
make any such alterations or improvements, Tenant shall make the same in
accordance with all applicable laws and building codes, in a good and
workmanlike manner and in quality equal to or better than the original
construction of the Project and shall comply with such requirements as Landlord
considers necessary or desirable, including without limitation the provision by
Tenant to Landlord with security for the payment of all costs to be incurred in
connection with such work, requirements as to the manner in which and the times
at which such work shall be done and the contractor or subcontractors to be
selected to perform such work and the posting and re-posting of notices of
Landlord's non-responsibility for mechanics' liens. Tenant shall promptly pay
all costs attributable to such alterations and improvements and shall indemnify,
defend and hold harmless Landlord from and against any mechanic's liens or other
liens or claims filed or asserted as a result thereof and against any costs or
expenses which may be incurred as a result of building code violations
attributable to such work. Tenant shall promptly repair any damage to the
Premises or the Project caused by any such alterations or improvements. Any
alterations or improvements to the Premises, except movable office furniture and
equipment and trade fixtures, shall at Landlord's election, either (i) become a
part of the realty and the property of Landlord, and shall not be removed by
Tenant, or (ii) be removed by Tenant upon the expiration or sooner termination
hereof and any damage caused thereby repaired at Tenant's cost and expense. In
the event Tenant so fails to remove same, Landlord may have same removed and the
Premises so repaired at Tenant's expense. At Landlord's election, Landlord and
Landlord's architect, engineers or contractors shall have the right to supervise
all construction operations within the Premises, and Tenant shall promptly pay
Landlord the cost of such supervision.
(d) Trade Fixtures. Any trade fixtures installed on the 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 Date 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 repair at its own expense any and all damage to the
Premises resulting from the original installation of and subsequent removal of
such trade fixtures. If Tenant fails so to remove any and all such trade
fixtures from the Premises on the Expiration Date 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 promptly
remove same and restore the Premises to their prior condition. In the event
Tenant so fails to remove same, Landlord may have same removed and the Premises
so repaired to their prior condition at Tenant's expense.
(e) Wiring and Cabling. Any wiring or cabling installed by Tenant in
the Premises or in shafts, ducts or portions of the Common Areas shall be
removed by Tenant at Tenant's expense on or before the Expiration Date or
earlier termination of this Lease. If Tenant fails to remove any such wiring or
cabling, Landlord may have the same removed at Tenant's expense.
(f) Storefront. If the Premises includes storefront glass entrances
or walls at or near public spaces in the Building, Tenant must have specific
approval by Landlord of all colors and materials for floorcovering,
wallcovering, furniture, open landscape partitions, and artwork prior to
installation.
(g) Reserved Rights. Landlord reserves the right to decorate and to
make, at any time or times, at its own expense, repairs, alterations, additions
and improvements, structural or otherwise, in or to the Premises, the Building,
the Project or part thereof, and to perform any acts related to the safety,
protection or preservation thereof, and during such operations to take into and
through the Premises or any part of the Building all material and equipment
required and to close or temporarily suspend operation of entrances, doors,
corridors, elevators or other facilities, provided that Landlord shall cause as
little inconvenience or annoyance to Tenant as is reasonably necessary in the
circumstances, and shall not do any act which permanently reduces the size of
the Premises. Landlord may do any such work during ordinary business hours and
Tenant shall pay Landlord for overtime and for any other expenses incurred if
such work is done during other hours at Tenant's request.
11. FIRE OR OTHER CASUALTY; CASUALTY INSURANCE
(a) Substantial Destruction of the Building. If the Building should
be substantially destroyed (which, as used herein, means destruction or damage
to at least seventy-five percent (75%) of the Building) by fire or other
casualty, either party hereto may, at its option, terminate this Lease by giving
written notice thereof to the other party within thirty (30) days of such
casualty. In such event, the rent shall be apportioned to and shall cease as of
the date of such casualty. If neither party exercises this option, then the
Premises shall be reconstructed and restored, at Landlord's expense, to
substantially the same condition as they were prior to the casualty.
(b) Substantial Destruction of the Premises. If the Premises should
be substantially destroyed, or rendered wholly untenantable for the purpose for
which they were leased, by fire or other casualty and the Building is not
substantially destroyed as provided above, then the parties hereto shall have
the following options:
(i) Tenant may require that the Premises be reconstructed
and restored, at Landlord's expense, to substantially the same condition
as they were prior to the casualty, except for repair or replacement of
Tenant's personal property,
4.
equipment and trade fixtures, which shall remain Tenant's
responsibility. This option shall be exercised by Tenant giving written
notice to Landlord within thirty (30) days after the date of the
casualty, and upon the exercise thereof rent shall be abated from the
date of the casualty until substantial completion of the reconstruction
of the Premises, whereupon this Lease shall continue in full force and
effect for the balance of the Term upon the same terms, conditions and
covenants as are contained herein. If this option is not so exercised by
Tenant, Landlord shall then have the right and option, to be exercised
within thirty (30) days following the expiration of Tenant's option
period, by the giving of written notice to Tenant, to reconstruct and
restore the Premises to substantially the same condition as they were
prior to the casualty or, Landlord, at its option, shall make available
reasonably comparable space in the Project to accommodate Tenant. In
either such event, this Lease shall continue in full force and effect
for the balance of the Term upon the same terms, conditions, and
covenants as are contained herein; provided, however, that the rent
shall be abated from the date of the casualty until substantial
completion of the reconstruction of the Premises or notice by Landlord
that comparable space is ready for Tenant to occupy. If Landlord fails
to exercise either of these aforementioned options, this Lease shall be
terminated as of the date of the casualty, to which date rent shall be
apportioned and shall cease.
(ii) If the casualty occurs during the last twelve (12)
months of the Term, either party shall have the right and option to
terminate its Lease as of the date of the casualty, which option shall
be exercised by written notice to be given by either party to the other
party within thirty (30) days therefrom. If this option is exercised,
rent shall be apportioned to and shall cease as of the date of the
casualty.
(c) Partial Destruction of the Premises. If the Premises should be
rendered partially untenantable for the purpose for which they were leased
(which, as used herein, means such destruction or damage as would prevent Tenant
from carrying on its business on the Premises to an extent not exceeding forty
percent (40%) of its normal business activity) by fire or other casualty, then
such damaged part of the Premises shall be reconstructed and restored, at
Landlord's expense, to substantially the same condition as it was prior to the
casualty; rent shall be abated in the proportion which the approximate area of
the damaged part bears to the total area in the Premises from the date of the
casualty until substantial completion of the reconstruction repairs; and this
Lease shall continue in full force and effect for the balance of the Term.
Landlord shall use reasonable diligence in completing such reconstruction
repairs, but in the event Landlord fails to complete the same within two hundred
(200) days from the date of the casualty, Tenant may, at its option, terminate
this Lease upon giving Landlord written notice to that effect, whereupon both
parties shall be released from all further obligations and liability hereunder.
(d) Casualty Insurance. Landlord shall be responsible for insuring
and shall at all times during the Term carry, as an Operating Expense of the
Project, a policy of insurance which insures the Project, including the
Premises, against loss or damage by fire or other casualty (namely, the perils
against which insurance is afforded by the standard fire insurance policy and
extended coverage endorsement); provided, however, that Landlord shall not be
responsible for, and shall not be obligated to insure against, any loss or
damage to personal property (including, but not limited to, any furniture,
machinery, equipment, goods or supplies) of Tenant or which Tenant may have on
the Premises or any trade fixtures installed by or paid for by Tenant on the
Premises or any additional improvements which Tenant may construct on the
Premises. If Tenant's operation or the Tenant Finish Improvements installed by
Landlord pursuant to the provisions of Paragraph 5(a) hereof or any alterations
or improvements made by Tenant pursuant to the provisions of Paragraph 10(c)
hereof are substantially different from the Tenant Improvements described in
Exhibit "C" and result in an increase in the premiums charged during the Term on
the casualty insurance carried by Landlord on the Project, then the cost of such
increase in insurance premiums shall be borne by Tenant, who shall reimburse
Landlord for the same as additional rent after being billed therefore. Tenant
shall at all times during the Term, carry, at its own expense, property
insurance covering its personal property, trade fixtures installed by or paid
for by Tenant or any additional improvements which Tenant may construct on the
Premises which coverage shall be no less than eighty percent (80%) of
replacement value. Tenant shall also carry business interruption insurance on
such terms as shall be reasonably satisfactory to Landlord. Tenant shall furnish
Landlord with a certificate evidencing that such coverages are in full force and
effect.
(e) Waiver of Subrogation. Landlord and Tenant hereby release each
other and each other's employees, agents, customers and invitees from any and
all liability for any loss, damage or injury to property occurring in, on or
about or to the Premises, improvements to the Project or personal property
within the Project, by reason of fire or other casualty which are covered by
applicable standard fire and extended coverage insurance policies. Because the
provisions of this paragraph will preclude the assignment of any claim mentioned
herein by way of subrogation or otherwise to an insurance company or any other
person, each party to this Lease shall give to each insurance company which has
issued to it one or more policies of fire and extended coverage insurance notice
of the terms of the mutual releases contained in this paragraph, and have such
insurance policies properly endorsed, if necessary, to prevent the invalidation
of insurance coverages by reason of the mutual releases contained in this
paragraph.
12. GENERAL PUBLIC LIABILITY, INDEMNIFICATION AND INSURANCE
(a) Tenant shall be responsible for, shall insure against, and shall
indemnify Landlord and hold it harmless from, any and all liability for any
loss, damage or injury to person or property, arising out of use, occupancy or
operations of Tenant and occurring in, on or about the Premises 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.
(b) Tenant shall at all times during the Term carry, at its own
expense, for the protection of Tenant, Landlord and Landlord's management agent,
as their interests may appear, one or more policies of general public liability
and property damage insurance, issued by one or more insurance companies
acceptable to Landlord, covering Tenant's use, occupancy and operations
providing minimum coverages of $1,000,000 combined single limit for bodily
injury and property damage per occurrence with $2,000,000 aggregate coverage.
Such insurance policy or policies shall name Landlord, its agents and employees,
as insureds and
5.
shall provide that they may not be canceled or materially changed on less than
thirty (30) days prior written notice to Landlord. Tenant shall furnish Landlord
with certificates evidencing such insurance. Should Tenant fail to carry such
insurance and furnish Landlord with copies of all such policies after a request
to do so, Landlord shall have the right to obtain such insurance and collect the
cost thereof from Tenant as additional rent. Landlord shall have the right
during the term of this Lease to adjust the minimum coverage levels stipulated
above upon written notice to Tenant. Within thirty (30) days of such written
notice, Tenant shall provide Landlord with evidence of such adjustment. Tenant
shall also provide Landlord with certificates evidencing workers' compensation
insurance coverages. Tenant's insurance coverages required hereby shall be
deemed to be additional obligations of Tenant and shall not be a discharge or
limitation of Tenant's indemnity obligations contained in Paragraph 12(a)
hereof.
(c) Landlord shall be responsible for, shall have the obligation to
insure against, and shall indemnify Tenant and hold it harmless from, any and
all liability for any loss, damage or injury to person or property occurring in,
on or about the common areas and facilities for the Project and the walks,
driveways, parking lot and landscaped areas adjacent to the Project.
(d) Landlord and its partners, shareholders, affiliates, officers,
agents, servants and employees shall not be liable for any damage to person,
property or business or resulting from the loss of use thereof sustained by
Tenant or by any other persons due to the Building or any part thereof or any
appurtenances thereof becoming out of repair, or due to the happening of any
accident or event in or about the Building, including the Premises, or due to
any act or neglect of any tenant or occupant of the Building or of any other
person. This provision shall apply particularly, but not exclusively, to damage
caused by gas, electricity, snow, ice, frost, steam, sewage, sewer gas or odors,
fire, water or by the bursting or leaking of pipes, faucets, sprinklers,
plumbing fixtures and windows and shall apply without distinction as to the
person whose act or neglect was responsible for the damage and whether the
damage was due to any of the causes specifically enumerated above or to some
other cause. Tenant agrees that all personal property located in the Premises or
upon loading docks, receiving and holding areas, or freight elevators of
Building, shall be at the risk of Tenant only, and that Landlord shall not be
liable for any loss or damage thereto or theft thereof.
13. EMINENT DOMAIN
If the whole or any part of the Premises shall be taken for public or
quasi-public use by a governmental authority under the power of eminent domain
or shall be conveyed to a governmental authority in lieu of such taking, and if
such taking or conveyance shall cause the remaining part of the Premises to be
untenantable and inadequate for use by Tenant for the purpose for which they
were leased, then Tenant may, at its option, terminate this Lease as of the date
Tenant is required to surrender possession of the Premises. If a part of the
Premises 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; and the rent shall be reduced in
proportion to the part of the Premises so taken or conveyed. All compensation
awarded for such taking or conveyance shall be the property of Landlord without
any deduction therefrom for any present or future estate of Tenant, and Tenant
hereby assigns to Landlord all its right, title and interest in and to any such
award. However, Tenant shall have the right to recover from the governmental
authority, but not from Landlord, such compensation as may be awarded to Tenant
on account of the interruption of Tenant's business, moving and relocation
expenses and depreciation to and removal of Tenant's trade fixtures and personal
property.
14. LIENS
If, because of any act or omission of Tenant or anyone claiming by,
through, or under Tenant, any mechanic's lien or other lien shall be filed
against the Premises or the Project or against other property of Landlord
(whether or not such lien is valid or enforceable as such), Tenant shall, at its
own expense, cause the same to be discharged of record within a reasonable time,
not to exceed thirty (30) days after the date of filing thereof, and shall also
defend and indemnify Landlord and hold it harmless from any and all claims,
losses, damages, judgments, settlements, cost and expenses, including attorneys'
fees, resulting therefrom or by reason thereof. If such lien is not discharged
of record within thirty (30) days after the date of filing thereof, Landlord, at
its sole option, may take all action necessary to release and remove such lien
(without any duty to investigate the validity thereof) and Tenant shall promptly
upon notice reimburse Landlord for all sums, costs and expenses (including
reasonable attorneys' fees and Landlord's Costs) incurred by Landlord in
connection with such lien.
15. RENTAL, PERSONAL PROPERTY AND OTHER TAXES
(a) Tenant shall pay before delinquency any and all taxes,
assessments, fees or charges (hereinafter referred to as "taxes"), including any
sales, gross income, rental, business occupation or other taxes, levied or
imposed upon Tenant's business operation in the Premises and any personal
property or similar taxes levied or imposed upon Tenant's trade fixtures,
leasehold improvements or personal property located within the Premises. In the
event any such taxes are charged to the account of, or are levied or imposed
upon the property of Landlord, Tenant shall reimburse Landlord for the same as
additional rent. Notwithstanding the foregoing, Tenant shall have the right to
contest in good faith any such tax and to defer payment, if required, until
after Tenant's liability therefore is finally determined.
(b) If any tenant finish improvements, trade fixtures, alterations
or improvements or business machines and equipment located in, on or about the
Premises, regardless of whether they are installed or paid for by Landlord or
Tenant and whether or not they are affixed to and become a part of the realty
and the property of Landlord, are assessed for real property tax purposes at a
valuation higher than that at which other such property in other leased space in
the Project is assessed, then Tenant shall reimburse Landlord as additional rent
for the amount of real property taxes shown on the appropriate county official's
records as having been levied upon the Project or other property of Landlord by
reason of such excess assessed valuation.
6.
16. ASSIGNMENT AND SUBLETTING
Tenant may not assign or otherwise transfer its interest in this Lease
or sublet the Premises or any part thereof without the prior written consent of
Landlord. Tenant shall notify Landlord sixty (60) days in advance of its intent
to transfer, assign or sublet all or any portion of the Premises. In the event
of any such assignment or subletting, 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 the terms, conditions
and covenants of this Lease. No assignment or subletting of the Premises or any
part thereof shall be binding upon Landlord unless such assignee or subtenant
shall deliver to Landlord an instrument (in recordable form, if requested)
containing an agreement of assumption of all of Tenant's obligations under this
Lease and Landlord shall execute a consent form. Landlord agrees to be
reasonable in its consent, but Landlord may at its sole discretion withhold its
consent to an assignment or sublease to any present tenant of Landlord in the
Property or to any tenant whose occupancy would be inconsistent with the
character of the Project or whose business is in direct competition with that of
another tenant of the Property. Upon the occurrence of an event of default, if
all or any part of the Premises are then assigned or sublet, Landlord, in
addition to any other remedies provided by this Lease or by law, may, at its
option, collect directly from the assignee or subtenant all rent becoming due to
Landlord by reason of the assignment or subletting, and Landlord shall have a
security interest in all property on the Premises to secure payment of such
sums. Landlord, at its option, may also recapture any sublet space in the event
of default. Any collection by Landlord from the assignee or subtenant shall not
be construed to constitute a novation or release of Tenant from the further
performance of its obligations under this Lease. Any rents received by Tenant
from the assignment or subletting of the Premises which exceed rents payable by
Tenant hereunder shall be immediately paid to Landlord as additional
compensation. Landlord shall, at its option, have the right to recapture all or
any part of the Premises Tenant proposes to assign or sublet upon notice from
Tenant of its intent to assign or such sublet part of the Premises. Landlord
shall have the right to transfer and assign, in whole or in part, all its rights
and obligations hereunder and in the Building, the Project and all other
property referred to herein, and upon such transfer, the transferor shall have
no further liability hereunder and Tenant shall attorn to any such transferee.
17. SUBORDINATION OF LEASE TO MORTGAGES
This Lease is subject and subordinate to any mortgage, deed of trust or
similar encumbrance including ground or underlying leases presently existing or
hereafter voluntarily placed upon the Project or the Premises, including any
renewals, extensions or modifications thereof; and the recording of any such
mortgage, deed of trust or similar encumbrance shall make it prior and superior
to this Lease regardless of the date of execution or recording of either
document. Tenant shall, at Landlord's request, execute and deliver within five
(5) days to Landlord, without cost, any instrument which may be deemed necessary
or desirable by Landlord to confirm the subordination of this Lease; and if
Tenant fails or refuses to do so, Landlord may execute such instrument in the
name and as the act of Tenant. Tenant shall attorn to any subsequent owner or
transferee of the Project regardless of whether or not a subordination agreement
has been executed by Tenant.
18. DEFAULTS AND REMEDIES
(a) Default by Tenant. The occurrence of any one or more of the
following events shall be a default and breach of this Lease by Tenant:
(i) Tenant shall fail to pay any monthly installment of Rent
within ten (10) days after the same shall be due and payable.
(ii) Tenant shall fail to perform or observe any term,
condition, covenant or obligation required to be performed or observed
by it under this Lease for a period of thirty (30) days after notice
thereof from Landlord; provided, however, that if the term, condition,
covenant or obligation to be performed by Tenant is of such nature that
the same cannot reasonably be performed within such thirty-day period,
such default shall be deemed to have been cured if Tenant commences such
performance within said thirty-day period and thereafter diligently
undertakes to complete the same, but in any event completes cure within
ninety (90) days after notices from Landlord.
(iii) Tenant makes an assignment for the benefit of creditors;
or substantially all of Tenant's assets in, on or about the Premises or
Tenant's interest in this Lease are attached or levied upon under
execution (and Tenant does not discharge the same within thirty (30)
days thereafter); or
(iv) Tenant causes or permits a hazardous condition to exist
on the Premises and fails to cure such condition immediately after
notice thereof from Landlord.
(b) Remedies of Landlord. Upon the occurrence of any event of
default set forth in Paragraph 18(a) hereof, Landlord shall have the following
rights and remedies, in addition to those allowed by law, any one or more of
which may be exercised without further notice to or demand upon Tenant:
(i) Landlord may re-enter the Premises and cure any default
of Tenant, in which event Tenant shall reimburse Landlord as additional
rent for any costs and expenses which Landlord may incur to cure such
default; and Landlord shall not be liable to Tenant for any loss or
damage which Tenant may sustain by reason of Landlord's action,
regardless of whether caused by Landlord's negligence or otherwise;
(ii) Landlord may terminate this Lease as of the date of such
default, in which event: (A) neither Tenant nor any person claiming
under or through Tenant shall thereafter be entitled to possession of
the Premises, and Tenant shall immediately thereafter surrender the
Premises to Landlord; (B) Landlord may re-enter the Premises and
dispossess Tenant or any other occupants of the Premises by summary
proceedings, ejectment or otherwise, and may remove their effects,
without prejudice to any other remedy which Landlord may have for
possession or arrearages in rent; and (C) notwithstanding the
7.
termination of this Lease, Landlord may either declare all rent which
would have been due under this Lease for the balance of the Term
immediately due and payable, whereupon Tenant shall be obligated to pay
the same to Landlord;
(iii) Landlord may terminate Tenant's right of possession of
the Premises and repossess the Premises by eviction action, without
terminating this Lease; and
(iv) Landlord may xxx for injunctive relief or to recover
damages for any loss resulting from the breach.
Any agreement for an extension of the Term or any additional period
thereafter shall not thereby prevent Landlord from terminating this Lease for
any reason specified in this Lease. If any such right of termination is
exercised by Landlord during the Term or any extension thereof, Tenant's right
to any further extension shall thereby be automatically canceled. Any such right
of termination of Landlord contained herein shall continue during the Term and
any subsequent extension hereof.
(c) Default by Landlord and Remedies of Tenant. It shall be a
default 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 for a period of thirty (30) 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 thirty-day period, 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 resulting from the breach, but Tenant shall not
be entitled to terminate this Lease or withhold or xxxxx any rent due hereunder.
(d) Non-Waiver of Defaults. The failure or delay by either party
hereto to enforce or exercise at any time any of the rights or remedies or other
provisions of this Lease shall not be construed to be a waiver thereof, nor
affect the validity of any part of this Lease or the right of either party
thereafter to enforce each and every such right or remedy or other provisions.
No waiver of any default and breach of this Lease shall be held to be a waiver
of any other default or breach. The receipt of rent by Landlord at a time after
rent is due under this Lease shall not be construed as a waiver of such default.
The receipt by Landlord 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, and Landlord may accept such payment without prejudice to
Landlord's right to recover the balance of the rent due or to pursue any other
remedies provided in this Lease. 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 Premises, and no agreement to accept such a surrender shall be
valid unless in writing and signed by Landlord.
(e) Attorney's Fees. If Tenant defaults in the performance or
observance of any of the terms, conditions, covenants or obligations contained
in this Lease and Landlord places the enforcement of all or any part of this
Lease, the collection of any rent due or to become due or the recovery of
possession of the Premises in the hands of an attorney, or if Landlord incurs
any fees or out-of-pocket costs in any litigation, negotiation or transaction in
which Tenant causes Landlord (without Landlord's fault) to be involved or
concerned, Tenant agrees to reimburse Landlord for the attorney's fees and costs
incurred thereby, whether or not suit is actually filed.
19. BANKRUPTCY OR INSOLVENCY
It is understood and agreed that the following shall apply in the event
of the bankruptcy or insolvency of Tenant:
(a) If a petition is filed by, or an order for relief is entered
against Tenant under Chapter 7 of the Bankruptcy Code and the trustee of Tenant
elects to assume this Lease for the purpose of assigning it, such election or
assignment, or both, may be made only if all of the terms and conditions of
subparagraphs (b) and (d) below are satisfied. To be effective, an election to
assume this Lease must be in writing and addressed to Landlord, and in
Landlord's business judgment, all of the conditions hereinafter stated, which
Landlord and Tenant acknowledge to be commercially reasonable, must have been
satisfied. If the trustee fails so to elect to assume this Lease within sixty
(60) days after his appointment, this Lease will be deemed to have been
rejected, and Landlord shall then immediately be entitled to possession of the
Premises without further obligation to Tenant or the trustee and this Lease
shall be terminated. Landlord's right to be compensated for damages in the
bankruptcy proceeding, however, shall survive such termination.
(b) If Tenant files a petition for reorganization under Chapters 11
or 13 of the Bankruptcy Code, or if a proceeding filed by or against Tenant
under any other chapter of the Bankruptcy Code is converted to a Chapter 11 or
13 proceeding and Tenant's trustee or Tenant as debtor-in-possession fails to
assume this Lease within sixty (60) days from the date of the filing of such
petition or conversion, then the trustee or the debtor-in-possession shall be
deemed to have rejected this Lease. To be effective any election to assume this
Lease must be in writing addressed to Landlord and, in Landlord's business
judgment, all of the following conditions, which Landlord and Tenant acknowledge
to be commercially reasonable, must have been satisfied:
(i) The trustee or the debtor-in-possession has cured or has
provided to Landlord adequate assurance, as defined in this subparagraph
(b), that:
(1) The trustee will cure all monetary defaults
under this Lease within ten (10) days from the date of
assumption and
(2) The trustee will cure all nonmonetary defaults
under this Lease within thirty (30) days from the date of
assumption.
(ii) The trustee or the debtor-in-possession has compensated
Landlord, or has provided Landlord with adequate assurance, as
hereinafter defined, that within ten (10) days from the date of
assumption Landlord will be compensated for any
8.
pecuniary loss it has incurred arising from the default of Tenant, the
trustee, or the debtor-in-possession, as recited in Landlord's written
statement of pecuniary loss sent to the trustee or debtor-in-possession.
(iii) The trustee or the debtor-in-possession has provided
Landlord with adequate assurance of the future performance of each of
Tenant's obligations under this Lease; provided, however, that:
(1) From and after the date of assumption of this
Lease, the trustee or the debtor-in-possession shall pay the
Base and Additional Rents payable under this Lease in advance in
equal monthly installments on each date that such Rents are
payable.
(2) The trustee or debtor-in-possession shall also
deposit with Landlord, as security for the timely payment of
Rent, an amount equal to three (3) months' Base Rent and other
monetary charges accruing under this Lease;
(3) If not otherwise required by the terms of this
Lease, the trustee or the debtor-in-possession shall also pay in
advance, on each day that any installment of Base Rent is
payable, one-twelfth (1/12) of Tenant's annual Taxes, Operating
Expenses, and other obligations under this Lease; and
(4) The obligations imposed upon the trustee or the
debtor-in-possession will continue for Tenant after the
completion of bankruptcy proceedings.
(iv) Landlord has determined that the assumption of this
Lease will not:
(1) Breach any provision in any other lease,
mortgage, financing agreement, or other agreement by which
Landlord is bound relating to the Property, Building or Project
in which the Premises is located; or
(2) Disrupt, in Landlord's judgment, the tenant mix
of the Building or Project or any other attempt by Landlord to
provide a specific variety of tenants in the Building or Project
which, in Landlord's judgment, would be most beneficial to all
of the tenants thereof and would enhance the image, reputation,
and profitability thereof.
(v) For purposes of this subparagraph (b), "adequate
assurance" means that:
(1) Landlord determines that the trustee or the
debtor-in-possession has, and will continue to have, sufficient
unencumbered assets, after the payment of all secured
obligations and administrative expenses, to assure Landlord that
the trustee or the debtor-in-possession will have sufficient
funds timely to fulfill Tenant's obligations under this Lease
and to keep the Premises properly staffed with sufficient
employees to conduct a fully operational, actively promoted
business in the Premises; and
(2) An order shall have been entered segregating
sufficient cash payable to Landlord and/or a valid and perfected
first lien and security interest shall have been granted in
property of Tenant, trustee, or debtor-in-possession which is
acceptable in value and kind to Landlord, to secure to Landlord
the obligation of the trustee or debtor-in-possession to cure
all monetary and nonmonetary defaults under this Lease within
the time periods set forth above.
(c) In the event this Lease is assumed by a trustee appointed for
Tenant or by Tenant as debtor-in-possession under the provisions of subparagraph
(b) above and, thereafter, Tenant is either adjudicated bankrupt or files a
subsequent petition for arrangement under Chapter 11 of the Bankruptcy Code,
then Landlord may, at its option, terminate this Lease and all the tenant's
rights under it, by giving written notice of Landlord's election so to
terminate.
(d) If the trustee or the debtor-in-possession has assumed this
Lease, pursuant to subparagraph (a) or (b) above, to assign or to elect to
assign Tenant's interest under this Lease or the estate created by that interest
to any other person, such interest or estate may be assigned only if the
intended assignee has provided adequate assurance of future performance, as
defined in this subparagraph (d), of all of the terms, covenants, and conditions
of this Lease.
(i) For purposes of this subparagraph (d), "adequate
assurance of future performance" means that Landlord has ascertained
that each of the following conditions has been satisfied:
(1) The assignee has submitted a current financial
statement, audited by a certified public accountant, which shows
a net worth and working capital in amounts determined by
Landlord to be sufficient to assure the future performance by
the assignee of the tenant's obligations under this Lease;
(2) If requested by Landlord, the assignee will
obtain guarantees, in form and substance satisfactory to
Landlord (i.e. letter(s) of credit), from one or more persons
who satisfy Landlord's standards of creditworthiness; and
(3) Landlord has obtained consents or waivers from
any third parties which may be required under any lease,
mortgage, financing arrangement, or other agreement by which
Landlord is bound, to enable Landlord to permit such assignment.
(e) When, pursuant to the Bankruptcy Code, the trustee or the
debtor-in-possession is obligated to pay reasonable use and occupancy charges
for the use of all or part of the Premises, it is agreed that such charges will
not be less than the Base Rent as defined in this Lease, plus additional rent
and other monetary obligations of Tenant included herein.
(f) Neither Tenant's interest in this Lease nor any estate of Tenant
created in this Lease shall pass to any trustee, receiver, assignee for the
benefit of creditors, or any other person or entity, nor otherwise by operation
of law under the laws of any
9.
state having jurisdiction of the person or property of Tenant, unless Landlord
consents in writing to such transfer. Landlord's acceptance of rent or any other
payments from any trustee, receiver, assignee, person, or other entity will not
be deemed to have waived, or waive, either the requirement of Landlord's consent
or Landlord's right to terminate this Lease for any transfer of Tenant's
interest under this Lease without such consent.
20. ACCESS TO THE PREMISES
Landlord, its employees and agents and any mortgagee of the Project
shall have the right to enter any part of the Premises at all reasonable times
for the purposes of examining or inspecting the same, showing the same to
prospective purchasers, mortgagees or tenants and for making such repairs,
alterations or improvements to the Premises or the Project as Landlord may deem
necessary or desirable. If representatives of Tenant shall not be present to
open and permit such entry into the Premises at any time when such entry is
necessary or permitted hereunder, Landlord and its employees and agents may
enter the Premises by means of a master key or otherwise, 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, nor entitle Tenant to any
abatement of rent therefore.
21. SURRENDER OF PREMISES
Upon the expiration or earlier termination of this Lease, Tenant shall
surrender the Premises to Landlord, together with all keys, access cards,
alterations, improvements, and other property as provided elsewhere herein, in
broom-clean condition and in good order, condition and repair, except for
ordinary wear and tear and damage which Tenant is not obligated to repair,
failing which Landlord may restore the Premises to such condition at Tenant's
expense, which shall be payable upon demand. Upon such expiration or termination
Tenant's trade fixtures, furniture and equipment shall remain Tenant's property,
and if Tenant shall not then be in default under this Lease, Tenant shall have
the right to remove the same prior to the expiration or earlier termination of
this Lease, Tenant shall promptly repair any damage caused by any such removal,
and shall restore the Premises to the condition existing prior to the
installation of the items so removed. Any of Tenant's trade fixtures, furniture
or equipment not so removed shall be considered abandoned and may be retained by
Landlord or be destroyed.
22. HOLDING OVER
If Tenant remains in possession of the Premises without the consent of
Landlord after the expiration or earlier termination of this Lease, Tenant shall
be deemed to hold the Premises as a tenant at will subject to all of the terms,
conditions, covenants and provisions of this Lease (which shall be applicable
during the holdover period), except that Tenant shall pay to Landlord twice the
last current Base Rent and Additional Rent, which rent shall be payable to
Landlord on demand. In addition, Tenant shall be liable to Landlord for all
damages occasioned by such holding over. Tenant shall vacate and surrender the
Premises to Landlord upon Tenant's receipt of notice from Landlord to vacate. No
holding over by Tenant, whether with or without the consent of Landlord, shall
operate to extend this Lease except as otherwise expressly provided herein.
23. INTENTIONALLY DELETED
24. QUIET ENJOYMENT
Except as provided in Paragraph 22 hereof to the extent that it may be
applicable, if and so long as Tenant pays the prescribed rent and performs or
observes all of the terms, conditions, covenants and obligations of this Lease
required to be performed or observed by it hereunder, Tenant shall at all times
during the term hereof have the peaceable and quiet enjoyment, possession,
occupancy and use of the Premises without any interference from Landlord or any
person or persons claiming the Premises by, through or under Landlord, subject
to any mortgages, underlying leases or other matters of record to which this
Lease is or may become subject.
25. NOTICE AND PLACE OF PAYMENT
(a) All rent and other payments required to be made by Tenant to
Landlord shall be delivered or mailed to Landlord's management agent at the
address set forth below or any other address Landlord may specify from time to
time by written notice given to Tenant.
(b) All payments required to be made by Landlord to Tenant shall be
delivered or mailed to Tenant at the address set forth in Paragraph 25(c) hereof
or at any other address within the United States as Tenant may specify from time
to time by written notice given to Landlord.
(c) Any notice, demand or request required or permitted to be given
under this Lease or by law shall be deemed to have been given if reduced to
writing and mailed by Registered or Certified mail, postage prepaid, to the
party who is to receive such notice, demand or request at the address set forth
below or at such other address as Landlord or Tenant may specify from time to
time by written notice. When delivering such notice, demand or request shall be
deemed to have been given as of the date it was so delivered or mailed.
Landlord Tenant:
[Harvard Property Trust, LLC] Xxxxxx Holdings Corp., as trustee
for Xxxxxx-OFP Trust
________________________________________ 1700 One Financial Plaza
________________________________________ 000 Xxxxx Xxxxx Xxxxxx
________________________________________ Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention:
10.
With copies to:
With a copy to:
________________________________________ Xxxxxx X. Xxxxxxxx, Esq.
________________________________________ Larkin, Hoffman, Xxxx &
________________________________________ Xxxxxxxx, Ltd.
________________________________________ 0000 Xxxxx Xxxxx Xxxxx
________________________________________ 0000 Xxxxxx Xxxxxx Xxxxx
________________________________________ Xxxxxxxxxxx, Xxxxxxxxx 00000
________________________________________
26. MISCELLANEOUS GENERAL PROVISIONS
(a) Payments Deemed Rent. Any amounts of money to be paid by Tenant
to Landlord pursuant to the provisions of this Lease, whether or not such
payments are denominated "rent" or "additional rent" and whether or not they are
to be periodic or recurring, shall be deemed rent or additional rent for
purposes of this Lease; and any failure to pay any of same as provided in
Paragraph 18(a) hereof shall entitle Landlord to exercise all of the rights and
remedies afforded hereby or by law for the collection and enforcement of
Tenant's obligation to pay rent. Tenant's obligation to pay any such rent or
additional rent pursuant to the provisions of this Lease shall survive the
expiration or other termination of this Lease and the surrender of possession of
the Premises after any holdover period.
(b) Estoppel Letters. Tenant shall, within ten (10) days following
written request from Landlord, execute, acknowledge and deliver to Landlord or
to any lender, purchaser or prospective lender or purchaser designated by
Landlord a written statement certifying (i) that this Lease is in full force and
effect and unmodified (or, if modified, stating the nature of such
modification), (ii) the date to which rent has been paid, (iii) that there are
not, to Tenant's knowledge, any uncured defaults (or specifying such defaults if
any are claimed); and (iv) such further matters as may be requested by Landlord.
Any such statement may be relied upon by any prospective purchaser or mortgagee
of all or any part of the Project. Tenant's failure to deliver such statement
within such period shall be conclusive upon Tenant that this Lease is in full
force and effect and unmodified, and that there are no uncured defaults in
Landlord's performance hereunder.
(c) Memorandum of Lease. If requested by either party, a Memorandum
of Lease, containing the information required by applicable law concerning this
Lease shall be prepared, executed by both parties and filed for record in the
office of the county recorder in Hennepin County, Minnesota.
(d) Claims for Fees. Each party hereto shall indemnify and hold
harmless the other party for any and all liability incurred in connection with
the negotiation or execution of this Lease for any real estate broker's
commission or finder's fee which has been earned by a real estate broker or
other person on such party's behalf.
(e) Applicable Law. This Lease and all matters pertinent thereto
shall be construed and enforced in accordance with the laws of the State of
Minnesota.
(f) Entire Agreement. This Lease, including all Exhibits, Riders and
Addenda, constitutes the entire agreement between the parties hereto and may not
be modified except by an instrument in writing executed by the parties hereto.
(g) Binding Effect. This Lease and the respective rights and
obligations of the parties hereto shall inure to the benefit of and be binding
upon the successors and assigns of the parties hereto as well as the parties
themselves; provided, however, that Landlord, its successors and assigns shall
be obligated to perform Landlord's covenants under this Lease only during and in
respect of their successive periods as Landlord during the term of this Lease.
(h) Severability. If any provision of this Lease shall be held to be
invalid, void or unenforceable, the remaining provisions hereof shall not be
affected or impaired, and such remaining provisions shall remain in full force
and effect.
(i) No Partnership. Landlord shall not, by virtue of the execution
of this Lease or the leasing of the Premises to Tenant, become or be deemed a
partner of Tenant in the conduct of Tenant's business on the Premises or
otherwise.
(j) Headings, Gender, etc. As used in this Lease, the word "person"
shall mean and include, where appropriate, an individual, corporation,
partnership or other entity; the plural shall be substituted for the singular,
and the singular for the plural, where appropriate; and words of any gender
shall include any other gender. The topical headings of the several paragraphs
of this Lease are inserted only as a matter of convenience and reference, and do
not affect, define, limit or describe the scope or intent of this Lease.
(k) Waiver of Jury. To the extent permitted by law, Tenant hereby
waives any right it may have to a jury trial in the event of litigation between
Tenant and Landlord pertaining to this Lease.
(l) Allocation of Rent. Landlord and Tenant agree that no portion of
the Base Rent paid by Tenant during the portion of the term of this Lease
occurring after the expiration of any period during which such rent was abated
shall be allocated by Landlord or Tenant to such rent abatement period, nor is
such rent intended by the parties to be allocable to any abatement period.
(m) Right to Change Building Name and Address. Landlord reserves the
right to change the name or street address of the Building.
(n) Requirement of Identification. Landlord, or its contractor(s),
may require all persons entering or leaving the Building during such hours as
Landlord may reasonably determine, to identify themselves by registration or
otherwise, and to establish their right to leave or enter, and to exclude or
expel any peddler, solicitor or beggar at any time from the Premises or
Building.
11.
(o) Acceptance of Tenant's Goods. Tenant authorizes Landlord and
Landlord's agents and employees to accept and sign for shipments as a
convenience and measure of traffic control with a stamp which shall indicate
that any signature is authorized only to clear the loading dock or other
receiving area as a matter of convenience, and such signature does not
constitute acceptance by the addressee and does not relieve the carrier of any
liability nor create an agency or bailment. Tenant hereby releases Landlord and
Landlord's agents and employees from any and all liability resulting from or
related to the acceptance of goods addressed to Tenant and delivered to the
Building's loading dock or other area designated for receipt of goods.
(p) Reserved Areas, Light and Air. This Lease does not give Tenant
any right to use, and Landlord hereby excludes and reserves for its sole and
exclusive use, the following areas in and about the Premises: janitor closets,
stairways and stairwells, fan, mechanical, electrical, telephone and similar
rooms (other than those installed for Tenant's exclusive use); elevator, pipe
and other vertical shafts, flues and ducts; all areas above the acoustical
ceiling and below the finished floorcovering installed in the Premises; all
other structural or mechanical elements serving other areas of the Building; and
all subterranean, mineral, air, light and view rights.
(q) Limitation of Landlord's Personal Liability. Tenant specifically
agrees to look solely to Landlord's interest in the Project for the recovery of
any judgment against Landlord, it being agreed that Landlord (and its partners
and shareholders) shall never be personally liable for any such judgment.
(r) Execution by Landlord. Submission of this instrument to Tenant,
or Tenant's agents or attorneys, for examination or signature does not
constitute or imply an offer to lease, reservation of space, or option to lease,
and this Lease shall have no binding legal effect until execution hereof by both
Landlord and Tenant.
(s) Time of Essence. Time is of the essence of this Lease and each
of its provisions.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the day and year first above written.
LANDLORD: TENANT:
[HARVARD PROPERTY TRUST, LLC] XXXXXX HOLDINGS CORP., as Trustee
XXXXXX-OFP TRUST
By: _________________________________ By: _________________________________
Name of Officer: ____________________ Name of Officer: ____________________
Title: ______________________________ Title: ______________________________
Exhibits
A) Intentionally Deleted
B) Legal Description
C) Intentionally Deleted
D) Rules & Regulations
E) Estoppel Letter
12.
EXHIBIT D
ONE FINANCIAL PLAZA RULES & REGULATIONS
Tenant agrees to observe the rights reserved to Landlord in the Lease and
agrees, for itself, its employees, agents, clients, customers, invitees and
guests, to comply with the following rules and regulations with such reasonable
modifications thereof and additions thereto as Landlord may make, from time to
time, for the Building:
1. The sidewalks, entries, passages, courtyard, corridors,
stairways and elevators shall not be obstructed by any tenants, their employees
or agents, or used by them for purposes other than ingress and egress to and
from their respective suites. Boxes, cartons or any other debris which is to be
thrown away by the cleaning crew should not be left in the corridors.
2. All heavy articles (i.e., safes) shall be carried up or into the
Premises only at such times and in such manner as shall be prescribed by
Landlord, and Landlord shall in all cases have the right to specify the proper
weight and position of any such heavy article. Any damage done to the Building
by taking in or removing any such equipment or from overloading any floor in any
way shall be paid for by Tenant. Defacing or injuring in any way any part of the
Building by Tenant, his agents or employees, shall be paid for by Tenant.
3. Tenant will refer all contractors, contractors' representatives
and installation technicians rendering any service on or to the Premises for
Tenant to Landlord for Landlord's approval and supervision before performance of
any contractual service. This provision shall apply to all work performed in the
Building, including but not limited to the installation of the telephone and
other communications equipment, electrical devices and attachments and
installations of any nature affecting floors, walls, woodwork, trim, windows,
ceilings, equipment or any other physical portion of the Building. Such
approval, if given, shall in no way make Landlord a party to any contract
between Tenant and any such contractor, and Landlord shall have no liability
therefore.
4. No sign, advertisement or notice shall be inscribed, painted or
affixed on any part of the inside or outside of said Building. Landlord will
supply building standard signage for Tenant's suite entrance, at Tenant's cost.
Any additions, deletions or changes to the door signage after the original
signage is installed shall also be at Tenant's cost. A directory in a
conspicuous space, with the names of tenants, will be provided by Landlord; any
necessary revisions to the directory will be made by Landlord within a
reasonable time after notice from Tenant of the error or change making the
revision necessary. No furniture shall be placed in front of the Building or in
any lobby or corridor without written consent of Landlord. Landlord shall have
the right to remove all other signs and furniture, without notice to Tenant, at
the expense of Tenant.
5. Tenant shall have the non-exclusive use in common with Landlord,
other tenants, their guests and invitees, of the automobile parking areas,
driveways and footways, subject to reasonable rules and regulations for the use
thereof as prescribed from time to time by Landlord. Landlord shall have the
right to designate parking areas for the use of tenants of the Project and their
employees, and tenants and their employees shall not park in parking areas not
so designated, specifically including driveways, fire lanes, loading/unloading
areas, walkways and building entrances. Tenant agrees that upon written notice
from Landlord, it will furnish Landlord, within five (5) days from receipt of
such notice, the state automobile license numbers assigned to the automobiles of
Tenant and its employees. Landlord shall not be liable for any vehicle of Tenant
or its employees that Landlord shall have towed from the premises when illegally
parked. Landlord will not be liable for damage to vehicles in the parking areas
or for theft of vehicles, personal property from vehicles, or equipment of
vehicles.
6. No tenant shall do or permit anything to be done in said
Premises or bring or keep anything therein which will in any way increase the
rate of fire insurance on said Building, or on property kept therein, or
obstruct or interfere with the rights of other tenants, or in any way injure or
annoy them, or conflict with the laws relating to fire, or with any regulations
of the fire department, or with any insurance policy upon said buildings or any
part thereof, or conflict with any rules and ordinances of the local Board of
Health or any governing bodies.
7. Employees of the Building will at all times keep a pass key, and
agents of Landlord shall at all times be allowed admittance to Tenant's
Premises.
8. No additional locks shall be placed upon any doors without the
written consent of Landlord. All keys to the Premises shall be furnished by
Landlord in a reasonable number commensurate with the square footage leased.
Additional keys shall be furnished at Tenant cost. Upon termination of this
Lease, all keys shall be surrendered, and Tenant shall then give Landlord or its
agent explanation of the combination of all locks upon any doors or vaults.
9. No windows or other openings that reflect or admit light into
the corridors or passageways, or to any other place in said Building, shall be
covered or obstructed by any tenant.
10. No person shall disturb the occupants of the Building by the use
of any musical instruments, the making of unseemly noises, or any unreasonable
noise. No animals or pets of any kind will be allowed in the building.
11. The water closets and other water fixtures shall not be used for
any purpose other than those for which they were constructed, and any damage
resulting to them from misuse, or the defacing or injury of any part of the
Building, shall be borne by the person who shall occasion it.
12. No bicycles or similar vehicles will be allowed in the Building.
Exterior parking for such vehicles will be provided.
13. Nothing shall be thrown out the windows of the Building or down
the stairways or other passages.
1.
14. Tenant shall not be permitted to use or to keep in the Building
any kerosene, camphene, burning fluid or other illuminating materials.
15. If any tenant desires, at its cost, telephonic or other
electronic connections, Landlord or its agents will direct the electricians as
to where and how the wires may be introduced, and without such directions, no
boring or cutting for wires will be permitted.
16. All mini-blinds, draperies or other window treatments Tenant
desires to install on exterior windows in the Premises shall be of such shape,
color, materials and make as shall be approved by Landlord and the same shall be
installed at Tenant's cost. Landlord or its agents shall have the right to enter
the Premises to examine the same or to make such repairs, alterations or
additions as Landlord shall deem necessary for the safety, preservation or
improvement of the Building.
17. Six months prior to the expiration of the Lease, Landlord or its
agents may show the Premises and may place on the windows or doors thereof, or
upon the bulletin board, a notice "For Rent".
18. No portion of the Building shall be used for the purpose of
lodging rooms or for any immoral or unlawful purposes.
19. All glass, locks and trimmings in or about the doors and windows
and all electric fixtures belonging to the Building shall be kept whole, and
whenever broken by anyone shall be immediately replaced or repaired and put in
order at Tenant's cost under the direction and to the satisfaction of Landlord,
and on removal shall be left whole and in good repair.
20. Tenant shall not install or authorize the installation of any
vending machines or food preparation devices without Landlord's written
approval. Landlord shall have the right to rescind this approval, if given,
without liability to Tenant for reimbursement of any Tenant costs or expenses or
to grant exclusive rights to vending machine operators.
21. Landlord reserves the right at any time to take one elevator out
of service to tenants for exclusive use by management in servicing the Building.
22. No electric heaters or electric fans are allowed on the Premises
without the prior written consent of Landlord.
23. Tenant shall list all furniture, equipment and similar articles
Tenant desires to remove from the Premises or the Building and deliver a copy to
Landlord and procure a removal permit from the Office of the Building
authorizing Building employees to permit such articles to be removed.
24. Before leaving the Premises unattended, Tenant shall close and
securely lock all doors and transoms and shut off all utilities in the Premises.
Any damage resulting from failure to do so shall be paid by Tenant.
25. Tenant shall not place any radio or television antenna on the
roof or on or in any part of the inside or outside of the Building other than
the inside of the Premises, or operate or permit to be operated any musical or
sound producing instrument or device inside or outside the Premises which may be
heard outside the Premises, or operate any electrical device from which may
emanate electrical waves which may interfere with or impair radio or television
broadcasting or reception from or in the Building or elsewhere.
26. Tenant shall not make or permit any noise, vibration or odor to
emanate from the Premises; or do anything therein tending to create, or
maintain, a nuisance; or disturb, solicit or canvass any occupant of the
Building, or do any act tending to injure the reputation of the Building.
27. Tenant shall not place anything or allow anything to be placed
near the glass of any door, partition, or window which may be unsightly from
outside the Premises; or take or permit to be taken in or out of other entrances
of the Building, or take or permit on other elevators, any item normally taken
in or out through the trucking concourse or service doors or in or on freight
elevators; or, whether temporarily, accidentally, or otherwise, allow anything
to remain in, place or store anything in, or obstruct in any way, any
passageway, exit, stairway, elevator, shipping platform, or truck concourse.
Tenant shall lend its full cooperation to keep such areas free from all
obstruction and in a clean and sightly condition and move all supplies,
furniture and equipment as soon as received directly to the Premises and move
all such items and waste, other than waste customarily removed by employees of
the Building, being taken from the Premises, directly to the shipping platform
at or about the time arranged for removal therefrom.
28. Tenant shall not do any painting or decorating in the Premises;
or xxxx, paint, cut or drill into, drive nails or screws into, or in any way
deface any part of the Premises or the Building, outside or inside, without the
prior written consent of Landlord. If Tenant desires signal, communication,
alarm or other utility or service connections installed or changed, the same
shall be made by and at the expense of Tenant, with the approval and under
direction of Landlord.
29. Upon written application by Tenant, and approval thereof by
Landlord, Landlord shall furnish freight elevator service for Tenant at times
other than those times provided for in the Lease at rates for such usage from
time to time maintained in effect by Landlord.
2.
EXHIBIT E
TENANT ESTOPPEL LETTER
[HARVARD PROPERTY TRUST, LLC]
______________________________________
______________________________________
______________________________________
______________________________________
Lease Dated: ______________, 2005
Landlord: _____________________________________________________________
Tenant: Xxxxxx Holdings Corp., as trustee for Xxxxxx-OFP Trust
Premises: One Financial Plaza
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx
Gentlemen:
The undersigned ("Tenant") hereby confirms the following as of the date hereof:
1. Tenant is the tenant under the above captioned lease (the
"Lease"). All capitalized terms contained herein have the meaning defined in the
Lease.
2. The Commencement Date of the Term is [_______________], 2005.
The Expiration Date of the Term is [____________________], 2007.
3. Tenant has accepted the Premises for occupancy and the condition
of the Premises is in conformity with the provisions of this Lease in all
respects.
4. The rentable area of the Premises is 25,000 square feet.
5. The Lease is in full force and effect; there is no existing
default on the part of Landlord under the Lease; and the Lease has not been
amended, modified, supplemented or superseded.
Dated: _______________, 2005 Xxxxxx Holdings Corp., as trustee for
XXXXXX-OFP TRUST
By: ___________________________________
Name: _________________________________
Title: ________________________________
EXHIBIT J
MANAGEMENT OFFICE LEASE
J-1
EXHIBIT J
ONE FINANCIAL PLAZA
MANAGEMENT OFFICE LEASE
THIS LEASE is entered into and made as of the _______ day of
_________________________, 2005 by and between , a , hereinafter called
"Landlord", and XXXXXX MANAGEMENT CORPORATION, an Illinois corporation,
hereinafter called "Tenant".
WITNESSETH:
Landlord, in consideration of the rents and covenants hereinafter set
forth, does hereby demise, let and lease to Tenant, and Tenant does hereby hire,
take and lease from Landlord, on the terms and conditions hereinafter set forth,
the following described space, hereinafter called the "Premises", to have and to
hold the same, with all appurtenances, unto Tenant for the term hereinafter
specified.
1. DESCRIPTION OF THE PREMISES
The Premises consist initially of approximately 4,858 rentable square
feet of space (the "rentable area") as shown on the demising plan attached as
Exhibit "A" which is referred to as suite number 1700 and is located on the
seventeenth (17th) floor in the building commonly known as 000 Xxxxx Xxxxx
Xxxxxx, in the City of Minneapolis, County of Hennepin, State of Minnesota,
(hereinafter called the "Building"). The Building is located within One
Financial Plaza (hereinafter called the "Project"), as legally described on
Exhibit "B" attached hereto and made a part hereof.
2. TERM
The term of this Lease (the "Term") shall be for a period of one (1)
year and six (6) months, commencing [Closing Date] (the "Commencement Date"),
and ending [one year and six months after Closing] (the "Expiration Date"),
subject to adjustment as provided in Paragraph 6 hereof, unless this Lease shall
be sooner terminated as hereinafter provided.
3. RENT
Tenant shall have the right to occupy the Premises without any
obligation to pay rent or utilities or make any contribution to taxes and
operating expenses of the Building.
4. INTENTIONALLY DELETED
5. TENANT FINISH IMPROVEMENTS
Landlord shall not be obligated to construct any tenant finish
improvements to the Premises. Landlord shall deliver and Tenant shall accept the
Premises in "as-is" condition.
6. DELIVERY OF POSSESSION; ADJUSTMENT OF TERM
(a) Delivery of Possession. Landlord shall deliver the Premises to
Tenant on the Commencement Date.
(b) Tenant's Acceptance of the Premises. Upon delivery of possession
of the Premises to Tenant as hereinbefore provided, Tenant shall give Landlord
an Estoppel Letter, in the form attached to this Lease, made a part hereof and
marked Exhibit "E", signed by an officer or principal of Tenant acknowledging
(i) the original or revised Commencement Date and Expiration Date of this Lease,
and (ii) that Tenant has accepted the Premises for occupancy and that the
condition of the Premises and the Building was at the time satisfactory and in
conformity with the provisions of this Lease in all respects. Tenant's Estoppel
Letter, fully executed, shall be attached to and made a part of this executed
Lease.
7. USE OF THE PREMISES
(a) Specific Use. The Premises shall be occupied and used
exclusively for general office purposes and for legal purposes incidental
thereto, and shall not be used for any other purpose.
(b) Covenants Regarding Use. In connection with its use of the
Premises, Tenant agrees to do the following:
(i) Tenant shall use the Premises and conduct its business
thereon in a safe, careful, reputable and lawful manner; shall keep and
maintain the Premises in as good a condition as they were when Tenant
first took possession thereof and shall make all necessary repairs to
the Premises other than those which Landlord is obligated to make as
provided elsewhere herein.
(ii) Tenant shall not commit, nor allow to be committed, in,
on or about the Premises, the Building or the Project, any act of waste,
including any act which might deface, damage or destroy the Project,
Building, or any part thereof; use or permit to be used on the Premises
any hazardous substance, equipment or other thing which might cause
injury to person or property or increase the danger of fire or other
casualty in, on or about the Premises; permit any objectionable or
offensive
noise or odors to be emitted from the Premises; or do anything, or
permit anything to be done, which would, in Landlord's opinion, disturb
or tend to disturb other tenants occupying leased space in the Building.
(iii) Tenant shall not overload the floors of the Premises
beyond their designed weight-bearing capacity. Landlord reserves the
right to direct the positioning of all heavy equipment, furniture and
fixtures which Tenant desires to place in the Premises so as to
distribute properly the weight thereof, and to require the removal of
any equipment or furniture which exceeds the weight limit specified
herein.
(iv) Tenant shall not use the Premises, nor allow the
Premises to be used, for any purpose or in any manner which would, in
Landlord's opinion, invalidate any policy of insurance now or hereafter
carried on the Project or increase the rate of premiums payable on any
such insurance policy. Should Tenant fail to comply with this covenant,
Landlord may, at its option, require Tenant to stop engaging in such
activity or to reimburse Landlord as additional rent for any increase in
premiums charged during the term of this Lease on the insurance carried
by Landlord on the Premises and attributable to the use being made of
the Premises by Tenant.
(c) Compliance with Laws. Tenant shall not use or permit the use of
any part of the Premises for any purpose prohibited by law. Tenant shall, at
Tenant's sole expense, comply with all laws, statutes, ordinances, rules,
regulations and orders of any federal, state, municipal or other governmental
agency thereof having jurisdiction over and relating to the use, condition and
occupancy of the Premises, except that Tenant shall not be responsible for or
required to make structural repairs to the Building or the Premises unless, in
the case of the latter, they are occasioned by its own use of the Premises or
negligence.
(d) Compliance with Project Rules and Regulations. Rules and
regulations governing the use and occupancy of the Premises and all other leased
space in the Project have been adopted by Landlord for the mutual benefit and
protection of all tenants in the Project. Tenant shall comply with and conform
to the rules and regulations currently in effect, which are attached to this
Lease, made a part hereof and marked Exhibit "D". Landlord shall have the right
to change such rules and regulations or to make new rules and regulations from
time to time in any manner that it deems necessary or desirable in order to
insure the safety, care and cleanliness of the Project and the preservation of
order therein. Any such amendments to the rules and regulations shall be set
forth in writing and shall be given to Tenant, who shall thereafter comply with
and conform to the same.
(e) Compliance with Zoning. Tenant knows the character of its
operation in the Premises and that applicable zoning ordinances and regulations
are of public record. Tenant shall have sole responsibility for its compliance
therewith, and Tenant's inability so to comply shall not be cause for Tenant to
terminate this Lease.
8. UTILITIES AND OTHER BUILDING SERVICES
(a) Services to be Provided. Landlord shall furnish Tenant, between
the hours of 8:00 a.m. and 6:00 p.m. on Monday through Friday of each week
except on legal holidays and except as noted below, with the following utilities
and other building services to the extent considered by Landlord to be
reasonably necessary for Tenant's comfortable use and occupancy of the Premises
for general office use or as may be required by law or directed by governmental
authority:
(i) Heating, ventilation and air conditioning;
(ii) Electricity for lighting and operating business machines
and equipment in the Premises and the common areas and facilities of the
Building;
(iii) Water for lavatory and drinking purposes;
(iv) Automatic elevator service;
(v) Cleaning and janitorial service, including the supplying
and installing of paper towels, toilet tissue and soap in common
washrooms on Monday through Friday of each week except legal holidays;
(vi) Washing of interior and exterior windows at intervals
established by Landlord;
(vii) Replacement of all lamps, bulbs, starters and ballasts
used in common areas of the Project;
(viii) Cleaning and maintenance of the common areas and
facilities of the Project and the walks, driveways, parking lots and
landscaped areas adjacent to the Project, including the removal of
rubbish and snow; and
(ix) Repair and maintenance of the Project and certain
systems within the Premises to the extent specified in Paragraph 10(a)
hereof.
(b) 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 quantities
greater than that which Landlord determines are normally required by other
tenants in the Project for general office use, 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 cost thereof shall be borne by
Tenant, who shall reimburse Landlord monthly for the same as provided in
Paragraph 8(d) hereof.
If any lights, machines or equipment (including but not limited to
computers) used by Tenant in the Premises materially affect the temperature
otherwise maintained by the Project's air conditioning system, Landlord shall
have the right to install any machinery or equipment which Landlord considers
reasonably necessary in order to restore the temperature balance between the
Premises and rest of the Project, including that which modifies the Project's
air conditioning system. All costs expended by Landlord to install any such
2.
machinery and equipment and any additional cost of operation and maintenance
occasioned thereby shall be borne by Tenant, who shall reimburse Landlord for
the same as provided in Paragraph 8(d) hereof.
Tenant shall not install nor connect any electrical machinery or
equipment other than the business machines and equipment typically used for
general office use by tenants in office buildings comparable to the Project (a
personal computer being an example of such a typical electrical equipment) nor
any water-cooled machinery or equipment without Landlord's prior written
consent. If Landlord determines that the machinery or equipment to be so
installed or connected exceeds the designed load capacity of the Project's
electrical system or is in any way incompatible therewith will materially affect
utility costs, then Landlord shall have the right, as a condition to granting
its consent, to make such modifications to any utility system or other parts of
the Project or the Premises, or to require Tenant to make such modifications to
the equipment to be installed or connected, as Landlord considers to be
reasonably necessary before such equipment may be so installed or connected. The
cost of any such modifications shall be borne by Tenant, who shall reimburse
Landlord for the same (or any portion thereof paid by Landlord) as provided in
Paragraph 8(d) hereof.
Landlord shall have the right, at its sole cost, to install meters or
submeters to measure the amount of electricity consumed, from time to time, in
the Premises. In such event, Tenant shall pay, as additional rent, charges for
all utility services consumed in the Premises and measured by any such meters or
submeters as the same are billed to Tenant from Landlord from time to time;
provided, the cost of such services shall not exceed the rate that Tenant would
pay for comparable services if purchased directly from the utility supplying
such services. If Landlord chooses to so meter or submeter the Premises, during
the period that such meters or submeters are operating, Tenant shall have no
obligation to pay, as part of Operating Expenses, the cost of electricity
consumed in the Premises or any other occupied premises in the Building.
(c) Interruption of Services. Tenant understands, acknowledges and
agrees that any one or more of the utilities or other building services
identified above 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; that Landlord does not represent or warrant the
uninterrupted availability of such utilities or building services; and that any
such interruption shall not be deemed an eviction or disturbance of Tenant's
right to possession, occupancy and use of the Premises or any part thereof, or
render Landlord liable to Tenant in damages by abatement of rent or otherwise,
or relieve Tenant from the obligation to perform its covenants under this Lease.
(d) Payment for Utilities and Building Services. The cost of
additional utilities and other building services furnished by Landlord at the
request of Tenant or as a result of Tenant's activities as provided in Paragraph
8(b) hereof shall be borne by Tenant, who shall be separately billed therefore
and who shall reimburse and pay Landlord monthly for the same as additional
rent, at the same time the next monthly installment of Base Rent and other
additional rent is due. Tenant agrees to give reasonable advance notice, in
writing, to Landlord of its request for additional services.
(e) Energy Conservation. Notwithstanding anything to contrary in
this Paragraph 8 or elsewhere in this Lease, Landlord shall have the right to
institute such policies, programs and measures as may be necessary or desirable,
in Landlord's discretion, for the conservation and/or preservation of energy
related services, or as may be required to comply with any applicable codes,
rules and regulations, whether mandatory or voluntary.
9. SIGNS
Tenant shall not inscribe, paint, affix or display any signs,
advertisements or notices on or in the Project or in the Premises and visible
from outside the Premises, except for such tenant identification information as
Landlord at its own discretion permits to be included and agrees to install on
the directory board in the main lobby and on the tenant access doors to the
Premises.
10. REPAIRS, MAINTENANCE, ALTERATIONS, IMPROVEMENTS AND FIXTURES
(a) Repair and Maintenance of Project. Landlord shall keep and
maintain in good order, condition and repair the roof, exterior and interior
load-bearing walls (including any plate glass windows comprising a part
thereof), foundation, basement, the common areas and facilities of the Project
and the electrical, plumbing, heating, ventilation and air conditioning systems
serving the Premises and other parts of the Project, except that the repair and
maintenance of any electrical, plumbing, heating, ventilation and air
conditioning components which have been installed in the Premises pursuant to
the provisions of Paragraph 8(b) hereof shall be the responsibility of Tenant.
The cost of all non-capitalized repairs required to be made by Landlord shall be
an operating expense of the Project unless made necessary by the negligence,
misuse or default of Tenant, its employees, agents, customers or invitees, in
which event they shall be borne by Tenant, who shall be separately billed and
shall reimburse Landlord for the same as additional rent.
(b) Repair and Maintenance of Premises. Except as provided in
Paragraph 10(a) hereof, Tenant shall, at its own expense, keep and maintain the
Premises in good order, condition and repair at all times during the Term, and
Tenant shall promptly repair all damage to the Premises and replace or repair
all damaged or broken fixtures, equipment and appurtenances with materials equal
in quality and class to the original materials, under the supervision and
subject to the approval of Landlord, and within any reasonable period of time
specified by Landlord. If Tenant fails to do so, Landlord may, but need not make
such repairs and replacements, and Tenant shall pay Landlord the cost thereof,
including Landlord's Costs, forthwith upon being billed for same. As used in
this Lease, the term "Landlord's Costs" shall mean fifteen percent (15%) of any
costs or expenses paid by Landlord, in order to reimburse Landlord for all
overhead, general conditions, fees and other costs and expenses arising from
Landlord's actions or involvement.
(c) Alterations or Improvements. Tenant shall not make, nor permit
to be made, alterations or improvements to the Premises, unless Tenant obtains
the prior written consent of Landlord thereto. If Landlord permits Tenant to
make any such alterations or improvements, Tenant shall make the same in
accordance with all applicable laws and building codes, in a good and
workmanlike manner and in quality equal to or better than the original
construction of the Project and shall comply with such requirements as
3.
Landlord considers necessary or desirable, including without limitation the
provision by Tenant to Landlord with security for the payment of all costs to be
incurred in connection with such work, requirements as to the manner in which
and the times at which such work shall be done and the contractor or
subcontractors to be selected to perform such work and the posting and
re-posting of notices of Landlord's non-responsibility for mechanics' liens.
Tenant shall promptly pay all costs attributable to such alterations and
improvements and shall indemnify, defend and hold harmless Landlord from and
against any mechanic's liens or other liens or claims filed or asserted as a
result thereof and against any costs or expenses which may be incurred as a
result of building code violations attributable to such work. Tenant shall
promptly repair any damage to the Premises or the Project caused by any such
alterations or improvements. Any alterations or improvements to the Premises,
except movable office furniture and equipment and trade fixtures, shall at
Landlord's election, either (i) become a part of the realty and the property of
Landlord, and shall not be removed by Tenant, or (ii) be removed by Tenant upon
the expiration or sooner termination hereof and any damage caused thereby
repaired at Tenant's cost and expense. In the event Tenant so fails to remove
same, Landlord may have same removed and the Premises so repaired at Tenant's
expense. At Landlord's election, Landlord and Landlord's architect, engineers or
contractors shall have the right to supervise all construction operations within
the Premises, and Tenant shall promptly pay Landlord the cost of such
supervision.
(d) Trade Fixtures. Any trade fixtures installed on the 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 Date 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 repair at its own expense any and all damage to the
Premises resulting from the original installation of and subsequent removal of
such trade fixtures. If Tenant fails so to remove any and all such trade
fixtures from the Premises on the Expiration Date 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 promptly
remove same and restore the Premises to their prior condition. In the event
Tenant so fails to remove same, Landlord may have same removed and the Premises
so repaired to their prior condition at Tenant's expense.
(e) Wiring and Cabling. Any wiring or cabling installed by Tenant in
the Premises or in shafts, ducts or portions of the Common Areas shall be
removed by Tenant at Tenant's expense on or before the Expiration Date or
earlier termination of this Lease. If Tenant fails to remove any such wiring or
cabling, Landlord may have the same removed at Tenant's expense.
(f) Storefront. If the Premises includes storefront glass entrances
or walls at or near public spaces in the Building, Tenant must have specific
approval by Landlord of all colors and materials for floorcovering,
wallcovering, furniture, open landscape partitions, and artwork prior to
installation.
(g) Reserved Rights. Landlord reserves the right to decorate and to
make, at any time or times, at its own expense, repairs, alterations, additions
and improvements, structural or otherwise, in or to the Premises, the Building,
the Project or part thereof, and to perform any acts related to the safety,
protection or preservation thereof, and during such operations to take into and
through the Premises or any part of the Building all material and equipment
required and to close or temporarily suspend operation of entrances, doors,
corridors, elevators or other facilities, provided that Landlord shall cause as
little inconvenience or annoyance to Tenant as is reasonably necessary in the
circumstances, and shall not do any act which permanently reduces the size of
the Premises. Landlord may do any such work during ordinary business hours and
Tenant shall pay Landlord for overtime and for any other expenses incurred if
such work is done during other hours at Tenant's request.
11. FIRE OR OTHER CASUALTY; CASUALTY INSURANCE
(a) Substantial Destruction of the Building. If the Building should
be substantially destroyed (which, as used herein, means destruction or damage
to at least seventy-five percent (75%) of the Building) by fire or other
casualty, either party hereto may, at its option, terminate this Lease by giving
written notice thereof to the other party within thirty (30) days of such
casualty. In such event, the rent shall be apportioned to and shall cease as of
the date of such casualty. If neither party exercises this option, then the
Premises shall be reconstructed and restored, at Landlord's expense, to
substantially the same condition as they were prior to the casualty.
(b) Substantial Destruction of the Premises. If the Premises should
be substantially destroyed, or rendered wholly untenantable for the purpose for
which they were leased, by fire or other casualty and the Building is not
substantially destroyed as provided above, then the parties hereto shall have
the following options:
(i) Tenant may require that the Premises be reconstructed
and restored, at Landlord's expense, to substantially the same condition
as they were prior to the casualty, except for repair or replacement of
Tenant's personal property, equipment and trade fixtures, which shall
remain Tenant's responsibility. This option shall be exercised by Tenant
giving written notice to Landlord within thirty (30) days after the date
of the casualty, and upon the exercise thereof rent shall be abated from
the date of the casualty until substantial completion of the
reconstruction of the Premises, whereupon this Lease shall continue in
full force and effect for the balance of the Term upon the same terms,
conditions and covenants as are contained herein. If this option is not
so exercised by Tenant, Landlord shall then have the right and option,
to be exercised within thirty (30) days following the expiration of
Tenant's option period, by the giving of written notice to Tenant, to
reconstruct and restore the Premises to substantially the same condition
as they were prior to the casualty or, Landlord, at its option, shall
make available reasonably comparable space in the Project to accommodate
Tenant. In either such event, this Lease shall continue in full force
and effect for the balance of the Term upon the same terms, conditions,
and covenants as are contained herein; provided, however, that the rent
shall be abated from the date of the casualty until substantial
completion of the reconstruction of the Premises or notice by Landlord
that comparable space is ready for Tenant to occupy. If Landlord fails
to exercise either of these aforementioned options, this Lease shall be
terminated as of the date of the casualty, to which date rent shall be
apportioned and shall cease.
4.
(ii) If the casualty occurs during the last twelve (12)
months of the Term, either party shall have the right and option to
terminate its Lease as of the date of the casualty, which option shall
be exercised by written notice to be given by either party to the other
party within thirty (30) days therefrom. If this option is exercised,
rent shall be apportioned to and shall cease as of the date of the
casualty.
(c) Partial Destruction of the Premises. If the Premises should be
rendered partially untenantable for the purpose for which they were leased
(which, as used herein, means such destruction or damage as would prevent Tenant
from carrying on its business on the Premises to an extent not exceeding forty
percent (40%) of its normal business activity) by fire or other casualty, then
such damaged part of the Premises shall be reconstructed and restored, at
Landlord's expense, to substantially the same condition as it was prior to the
casualty; rent shall be abated in the proportion which the approximate area of
the damaged part bears to the total area in the Premises from the date of the
casualty until substantial completion of the reconstruction repairs; and this
Lease shall continue in full force and effect for the balance of the Term.
Landlord shall use reasonable diligence in completing such reconstruction
repairs, but in the event Landlord fails to complete the same within two hundred
(200) days from the date of the casualty, Tenant may, at its option, terminate
this Lease upon giving Landlord written notice to that effect, whereupon both
parties shall be released from all further obligations and liability hereunder.
(d) Casualty Insurance. Landlord shall be responsible for insuring
and shall at all times during the Term carry, as an Operating Expense of the
Project, a policy of insurance which insures the Project, including the
Premises, against loss or damage by fire or other casualty (namely, the perils
against which insurance is afforded by the standard fire insurance policy and
extended coverage endorsement); provided, however, that Landlord shall not be
responsible for, and shall not be obligated to insure against, any loss or
damage to personal property (including, but not limited to, any furniture,
machinery, equipment, goods or supplies) of Tenant or which Tenant may have on
the Premises or any trade fixtures installed by or paid for by Tenant on the
Premises or any additional improvements which Tenant may construct on the
Premises. If Tenant's operation or the Tenant Finish Improvements installed by
Landlord pursuant to the provisions of Paragraph 5(a) hereof or any alterations
or improvements made by Tenant pursuant to the provisions of Paragraph 10(c)
hereof are substantially different from the Tenant Improvements described in
Exhibit "C" and result in an increase in the premiums charged during the Term on
the casualty insurance carried by Landlord on the Project, then the cost of such
increase in insurance premiums shall be borne by Tenant, who shall reimburse
Landlord for the same as additional rent after being billed therefore. Tenant
shall at all times during the Term, carry, at its own expense, property
insurance covering its personal property, trade fixtures installed by or paid
for by Tenant or any additional improvements which Tenant may construct on the
Premises which coverage shall be no less than eighty percent (80%) of
replacement value. Tenant shall also carry business interruption insurance on
such terms as shall be reasonably satisfactory to Landlord. Tenant shall furnish
Landlord with a certificate evidencing that such coverages are in full force and
effect.
(e) Waiver of Subrogation. Landlord and Tenant hereby release each
other and each other's employees, agents, customers and invitees from any and
all liability for any loss, damage or injury to property occurring in, on or
about or to the Premises, improvements to the Project or personal property
within the Project, by reason of fire or other casualty which are covered by
applicable standard fire and extended coverage insurance policies. Because the
provisions of this paragraph will preclude the assignment of any claim mentioned
herein by way of subrogation or otherwise to an insurance company or any other
person, each party to this Lease shall give to each insurance company which has
issued to it one or more policies of fire and extended coverage insurance notice
of the terms of the mutual releases contained in this paragraph, and have such
insurance policies properly endorsed, if necessary, to prevent the invalidation
of insurance coverages by reason of the mutual releases contained in this
paragraph.
12. GENERAL PUBLIC LIABILITY, INDEMNIFICATION AND INSURANCE
(a) Tenant shall be responsible for, shall insure against, and shall
indemnify Landlord and hold it harmless from, any and all liability for any
loss, damage or injury to person or property, arising out of use, occupancy or
operations of Tenant and occurring in, on or about the Premises 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.
(b) Tenant shall at all times during the Term carry, at its own
expense, for the protection of Tenant, Landlord and Landlord's management agent,
as their interests may appear, one or more policies of general public liability
and property damage insurance, issued by one or more insurance companies
acceptable to Landlord, covering Tenant's use, occupancy and operations
providing minimum coverages of $1,000,000 combined single limit for bodily
injury and property damage per occurrence with $2,000,000 aggregate coverage.
Such insurance policy or policies shall name Landlord, its agents and employees,
as insureds and shall provide that they may not be canceled or materially
changed on less than thirty (30) days prior written notice to Landlord. Tenant
shall furnish Landlord with certificates evidencing such insurance. Should
Tenant fail to carry such insurance and furnish Landlord with copies of all such
policies after a request to do so, Landlord shall have the right to obtain such
insurance and collect the cost thereof from Tenant as additional rent. Landlord
shall have the right during the term of this Lease to adjust the minimum
coverage levels stipulated above upon written notice to Tenant. Within thirty
(30) days of such written notice, Tenant shall provide Landlord with evidence of
such adjustment. Tenant shall also provide Landlord with certificates evidencing
workers' compensation insurance coverages. Tenant's insurance coverages required
hereby shall be deemed to be additional obligations of Tenant and shall not be a
discharge or limitation of Tenant's indemnity obligations contained in Paragraph
12(a) hereof.
(c) Landlord shall be responsible for, shall have the obligation to
insure against, and shall indemnify Tenant and hold it harmless from, any and
all liability for any loss, damage or injury to person or property occurring in,
on or about the common areas and facilities for the Project and the walks,
driveways, parking lot and landscaped areas adjacent to the Project.
(d) Landlord and its partners, shareholders, affiliates, officers,
agents, servants and employees shall not be liable for any damage to person,
property or business or resulting from the loss of use thereof sustained by
Tenant or by any other persons due to
5.
the Building or any part thereof or any appurtenances thereof becoming out of
repair, or due to the happening of any accident or event in or about the
Building, including the Premises, or due to any act or neglect of any tenant or
occupant of the Building or of any other person. This provision shall apply
particularly, but not exclusively, to damage caused by gas, electricity, snow,
ice, frost, steam, sewage, sewer gas or odors, fire, water or by the bursting or
leaking of pipes, faucets, sprinklers, plumbing fixtures and windows and shall
apply without distinction as to the person whose act or neglect was responsible
for the damage and whether the damage was due to any of the causes specifically
enumerated above or to some other cause. Tenant agrees that all personal
property located in the Premises or upon loading docks, receiving and holding
areas, or freight elevators of Building, shall be at the risk of Tenant only,
and that Landlord shall not be liable for any loss or damage thereto or theft
thereof.
13. EMINENT DOMAIN
If the whole or any part of the Premises shall be taken for public or
quasi-public use by a governmental authority under the power of eminent domain
or shall be conveyed to a governmental authority in lieu of such taking, and if
such taking or conveyance shall cause the remaining part of the Premises to be
untenantable and inadequate for use by Tenant for the purpose for which they
were leased, then Tenant may, at its option, terminate this Lease as of the date
Tenant is required to surrender possession of the Premises. If a part of the
Premises 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; and the rent shall be reduced in
proportion to the part of the Premises so taken or conveyed. All compensation
awarded for such taking or conveyance shall be the property of Landlord without
any deduction therefrom for any present or future estate of Tenant, and Tenant
hereby assigns to Landlord all its right, title and interest in and to any such
award. However, Tenant shall have the right to recover from the governmental
authority, but not from Landlord, such compensation as may be awarded to Tenant
on account of the interruption of Tenant's business, moving and relocation
expenses and depreciation to and removal of Tenant's trade fixtures and personal
property.
14. LIENS
If, because of any act or omission of Tenant or anyone claiming by,
through, or under Tenant, any mechanic's lien or other lien shall be filed
against the Premises or the Project or against other property of Landlord
(whether or not such lien is valid or enforceable as such), Tenant shall, at its
own expense, cause the same to be discharged of record within a reasonable time,
not to exceed thirty (30) days after the date of filing thereof, and shall also
defend and indemnify Landlord and hold it harmless from any and all claims,
losses, damages, judgments, settlements, cost and expenses, including attorneys'
fees, resulting therefrom or by reason thereof. If such lien is not discharged
of record within thirty (30) days after the date of filing thereof, Landlord, at
its sole option, may take all action necessary to release and remove such lien
(without any duty to investigate the validity thereof) and Tenant shall promptly
upon notice reimburse Landlord for all sums, costs and expenses (including
reasonable attorneys' fees and Landlord's Costs) incurred by Landlord in
connection with such lien.
15. RENTAL, PERSONAL PROPERTY AND OTHER TAXES
(a) Tenant shall pay before delinquency any and all taxes,
assessments, fees or charges (hereinafter referred to as "taxes"), including any
sales, gross income, rental, business occupation or other taxes, levied or
imposed upon Tenant's business operation in the Premises and any personal
property or similar taxes levied or imposed upon Tenant's trade fixtures,
leasehold improvements or personal property located within the Premises. In the
event any such taxes are charged to the account of, or are levied or imposed
upon the property of Landlord, Tenant shall reimburse Landlord for the same as
additional rent. Notwithstanding the foregoing, Tenant shall have the right to
contest in good faith any such tax and to defer payment, if required, until
after Tenant's liability therefore is finally determined.
(b) If any tenant finish improvements, trade fixtures, alterations
or improvements or business machines and equipment located in, on or about the
Premises, regardless of whether they are installed or paid for by Landlord or
Tenant and whether or not they are affixed to and become a part of the realty
and the property of Landlord, are assessed for real property tax purposes at a
valuation higher than that at which other such property in other leased space in
the Project is assessed, then Tenant shall reimburse Landlord as additional rent
for the amount of real property taxes shown on the appropriate county official's
records as having been levied upon the Project or other property of Landlord by
reason of such excess assessed valuation.
16. ASSIGNMENT AND SUBLETTING
Tenant may not assign or otherwise transfer its interest in this Lease
or sublet the Premises or any part thereof without the prior written consent of
Landlord. Tenant shall notify Landlord sixty (60) days in advance of its intent
to transfer, assign or sublet all or any portion of the Premises. In the event
of any such assignment or subletting, 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 the terms, conditions
and covenants of this Lease. No assignment or subletting of the Premises or any
part thereof shall be binding upon Landlord unless such assignee or subtenant
shall deliver to Landlord an instrument (in recordable form, if requested)
containing an agreement of assumption of all of Tenant's obligations under this
Lease and Landlord shall execute a consent form. Landlord agrees to be
reasonable in its consent, but Landlord may at its sole discretion withhold its
consent to an assignment or sublease to any present tenant of Landlord in the
Property or to any tenant whose occupancy would be inconsistent with the
character of the Project or whose business is in direct competition with that of
another tenant of the Property. Upon the occurrence of an event of default, if
all or any part of the Premises are then assigned or sublet, Landlord, in
addition to any other remedies provided by this Lease or by law, may, at its
option, collect directly from the assignee or subtenant all rent becoming due to
Landlord by reason of the assignment or subletting, and Landlord shall have a
security interest in all property on the Premises to secure payment of such
sums. Landlord, at its option, may also recapture any sublet space in the event
of default. Any collection by Landlord from the assignee or subtenant shall not
be construed to constitute a novation or release of Tenant from the further
performance of its obligations under this Lease. Any rents
6.
received by Tenant from the assignment or subletting of the Premises which
exceed rents payable by Tenant hereunder shall be immediately paid to Landlord
as additional compensation. Landlord shall, at its option, have the right to
recapture all or any part of the Premises Tenant proposes to assign or sublet
upon notice from Tenant of its intent to assign or such sublet part of the
Premises. Landlord shall have the right to transfer and assign, in whole or in
part, all its rights and obligations hereunder and in the Building, the Project
and all other property referred to herein, and upon such transfer, the
transferor shall have no further liability hereunder and Tenant shall attorn to
any such transferee.
17. SUBORDINATION OF LEASE TO MORTGAGES
This Lease is subject and subordinate to any mortgage, deed of trust or
similar encumbrance including ground or underlying leases presently existing or
hereafter voluntarily placed upon the Project or the Premises, including any
renewals, extensions or modifications thereof; and the recording of any such
mortgage, deed of trust or similar encumbrance shall make it prior and superior
to this Lease regardless of the date of execution or recording of either
document. Tenant shall, at Landlord's request, execute and deliver within five
(5) days to Landlord, without cost, any instrument which may be deemed necessary
or desirable by Landlord to confirm the subordination of this Lease; and if
Tenant fails or refuses to do so, Landlord may execute such instrument in the
name and as the act of Tenant. Tenant shall attorn to any subsequent owner or
transferee of the Project regardless of whether or not a subordination agreement
has been executed by Tenant.
18. DEFAULTS AND REMEDIES
(a) Default by Tenant. The occurrence of any one or more of the
following events shall be a default and breach of this Lease by Tenant:
(i) Tenant shall fail to perform or observe any term,
condition, covenant or obligation required to be performed or observed
by it under this Lease for a period of thirty (30) days after notice
thereof from Landlord; provided, however, that if the term, condition,
covenant or obligation to be performed by Tenant is of such nature that
the same cannot reasonably be performed within such thirty-day period,
such default shall be deemed to have been cured if Tenant commences such
performance within said thirty-day period and thereafter diligently
undertakes to complete the same, but in any event completes cure within
ninety (90) days after notices from Landlord.
(ii) Tenant makes an assignment for the benefit of creditors;
or substantially all of Tenant's assets in, on or about the Premises or
Tenant's interest in this Lease are attached or levied upon under
execution (and Tenant does not discharge the same within thirty (30)
days thereafter); or
(iii) Tenant causes or permits a hazardous condition to exist
on the Premises and fails to cure such condition immediately after
notice thereof from Landlord.
(b) Remedies of Landlord. Upon the occurrence of any event of
default set forth in Paragraph 18(a) hereof, Landlord shall have the following
rights and remedies, in addition to those allowed by law, any one or more of
which may be exercised without further notice to or demand upon Tenant:
(i) Landlord may re-enter the Premises and cure any default
of Tenant, in which event Tenant shall reimburse Landlord as additional
rent for any costs and expenses which Landlord may incur to cure such
default; and Landlord shall not be liable to Tenant for any loss or
damage which Tenant may sustain by reason of Landlord's action,
regardless of whether caused by Landlord's negligence or otherwise.
(ii) Landlord may terminate this Lease as of the date of such
default, in which event: (A) neither Tenant nor any person claiming
under or through Tenant shall thereafter be entitled to possession of
the Premises, and Tenant shall immediately thereafter surrender the
Premises to Landlord; and (B) Landlord may re-enter the Premises and
dispossess Tenant or any other occupants of the Premises by summary
proceedings, ejectment or otherwise, and may remove their effects,
without prejudice to any other remedy which Landlord may have for
possession or arrearages in rent.
(iii) Landlord may xxx for injunctive relief or to recover
damages for any loss resulting from the breach.
Any agreement for an extension of the Term or any additional period
thereafter shall not thereby prevent Landlord from terminating this Lease for
any reason specified in this Lease. If any such right of termination is
exercised by Landlord during the Term or any extension thereof, Tenant's right
to any further extension shall thereby be automatically canceled. Any such right
of termination of Landlord contained herein shall continue during the Term and
any subsequent extension hereof.
(c) Default by Landlord and Remedies of Tenant. It shall be a
default 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 for a period of thirty (30) 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 thirty-day period, 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 resulting from the breach, but Tenant shall not
be entitled to terminate this Lease or withhold or xxxxx any rent due hereunder.
(d) Non-Waiver of Defaults. The failure or delay by either party
hereto to enforce or exercise at any time any of the rights or remedies or other
provisions of this Lease shall not be construed to be a waiver thereof, nor
affect the validity of any part of this Lease or the right of either party
thereafter to enforce each and every such right or remedy or other provisions.
No waiver of any default and breach of this Lease shall be held to be a waiver
of any other default or breach. The receipt of rent by Landlord at a time after
rent is due under this Lease shall not be construed as a waiver of such default.
The receipt by Landlord of less than the full rent
7.
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, and Landlord may accept
such payment without prejudice to Landlord's right to recover the balance of the
rent due or to pursue any other remedies provided in this Lease. 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 Premises, and no agreement
to accept such a surrender shall be valid unless in writing and signed by
Landlord.
(e) Attorney's Fees. If Tenant defaults in the performance or
observance of any of the terms, conditions, covenants or obligations contained
in this Lease and Landlord places the enforcement of all or any part of this
Lease, the collection of any rent due or to become due or the recovery of
possession of the Premises in the hands of an attorney, or if Landlord incurs
any fees or out-of-pocket costs in any litigation, negotiation or transaction in
which Tenant causes Landlord (without Landlord's fault) to be involved or
concerned, Tenant agrees to reimburse Landlord for the attorney's fees and costs
incurred thereby, whether or not suit is actually filed.
19. BANKRUPTCY OR INSOLVENCY
It is understood and agreed that the following shall apply in the event
of the bankruptcy or insolvency of Tenant:
(a) If a petition is filed by, or an order for relief is entered
against Tenant under Chapter 7 of the Bankruptcy Code and the trustee of Tenant
elects to assume this Lease for the purpose of assigning it, such election or
assignment, or both, may be made only if all of the terms and conditions of
subparagraphs (b) and (d) below are satisfied. To be effective, an election to
assume this Lease must be in writing and addressed to Landlord, and in
Landlord's business judgment, all of the conditions hereinafter stated, which
Landlord and Tenant acknowledge to be commercially reasonable, must have been
satisfied. If the trustee fails so to elect to assume this Lease within sixty
(60) days after his appointment, this Lease will be deemed to have been
rejected, and Landlord shall then immediately be entitled to possession of the
Premises without further obligation to Tenant or the trustee and this Lease
shall be terminated. Landlord's right to be compensated for damages in the
bankruptcy proceeding, however, shall survive such termination.
(b) If Tenant files a petition for reorganization under Chapters 11
or 13 of the Bankruptcy Code, or if a proceeding filed by or against Tenant
under any other chapter of the Bankruptcy Code is converted to a Chapter 11 or
13 proceeding and Tenant's trustee or Tenant as debtor-in-possession fails to
assume this Lease within sixty (60) days from the date of the filing of such
petition or conversion, then the trustee or the debtor-in-possession shall be
deemed to have rejected this Lease. To be effective any election to assume this
Lease must be in writing addressed to Landlord and, in Landlord's business
judgment, all of the following conditions, which Landlord and Tenant acknowledge
to be commercially reasonable, must have been satisfied:
(i) The trustee or the debtor-in-possession has cured or has
provided to Landlord adequate assurance, as defined in this subparagraph
(b), that:
(1) The trustee will cure all monetary defaults
under this Lease within ten (10) days from the date of
assumption and
(2) The trustee will cure all nonmonetary defaults
under this Lease within thirty (30) days from the date of
assumption.
(ii) The trustee or the debtor-in-possession has compensated
Landlord, or has provided Landlord with adequate assurance, as
hereinafter defined, that within ten (10) days from the date of
assumption Landlord will be compensated for any pecuniary loss it has
incurred arising from the default of Tenant, the trustee, or the
debtor-in-possession, as recited in Landlord's written statement of
pecuniary loss sent to the trustee or debtor-in-possession.
(iii) The trustee or the debtor-in-possession has provided
Landlord with adequate assurance of the future performance of each of
Tenant's obligations under this Lease; provided, however, that:
(1) From and after the date of assumption of this
Lease, the trustee or the debtor-in-possession shall pay the
Base and Additional Rents payable under this Lease in advance in
equal monthly installments on each date that such Rents are
payable.
(2) The trustee or debtor-in-possession shall also
deposit with Landlord, as security for the timely payment of
Rent, an amount equal to three (3) months' Base Rent and other
monetary charges accruing under this Lease;
(3) If not otherwise required by the terms of this
Lease, the trustee or the debtor-in-possession shall also pay in
advance, on each day that any installment of Base Rent is
payable, one-twelfth (1/12) of Tenant's annual Taxes, Operating
Expenses, and other obligations under this Lease; and
(4) The obligations imposed upon the trustee or the
debtor-in-possession will continue for Tenant after the
completion of bankruptcy proceedings.
(iv) Landlord has determined that the assumption of this
Lease will not:
(1) Breach any provision in any other lease,
mortgage, financing agreement, or other agreement by which
Landlord is bound relating to the Property, Building or Project
in which the Premises is located; or
(2) Disrupt, in Landlord's judgment, the tenant mix
of the Building or Project or any other attempt by Landlord to
provide a specific variety of tenants in the Building or Project
which, in Landlord's judgment, would be most beneficial to all
of the tenants thereof and would enhance the image, reputation,
and profitability thereof.
(v) For purposes of this subparagraph (b), "adequate
assurance" means that:
8.
(1) Landlord determines that the trustee or the
debtor-in-possession has, and will continue to have, sufficient
unencumbered assets, after the payment of all secured
obligations and administrative expenses, to assure Landlord that
the trustee or the debtor-in-possession will have sufficient
funds timely to fulfill Tenant's obligations under this Lease
and to keep the Premises properly staffed with sufficient
employees to conduct a fully operational, actively promoted
business in the Premises; and
(2) An order shall have been entered segregating
sufficient cash payable to Landlord and/or a valid and perfected
first lien and security interest shall have been granted in
property of Tenant, trustee, or debtor-in-possession which is
acceptable in value and kind to Landlord, to secure to Landlord
the obligation of the trustee or debtor-in-possession to cure
all monetary and nonmonetary defaults under this Lease within
the time periods set forth above.
(c) In the event this Lease is assumed by a trustee appointed for
Tenant or by Tenant as debtor-in-possession under the provisions of subparagraph
(b) above and, thereafter, Tenant is either adjudicated bankrupt or files a
subsequent petition for arrangement under Chapter 11 of the Bankruptcy Code,
then Landlord may, at its option, terminate this Lease and all the tenant's
rights under it, by giving written notice of Landlord's election so to
terminate.
(d) If the trustee or the debtor-in-possession has assumed this
Lease, pursuant to subparagraph (a) or (b) above, to assign or to elect to
assign Tenant's interest under this Lease or the estate created by that interest
to any other person, such interest or estate may be assigned only if the
intended assignee has provided adequate assurance of future performance, as
defined in this subparagraph (d), of all of the terms, covenants, and conditions
of this Lease.
(i) For purposes of this subparagraph (d), "adequate
assurance of future performance" means that Landlord has ascertained
that each of the following conditions has been satisfied:
(1) The assignee has submitted a current financial
statement, audited by a certified public accountant, which shows
a net worth and working capital in amounts determined by
Landlord to be sufficient to assure the future performance by
the assignee of the tenant's obligations under this Lease;
(2) If requested by Landlord, the assignee will
obtain guarantees, in form and substance satisfactory to
Landlord (i.e. letter(s) of credit), from one or more persons
who satisfy Landlord's standards of creditworthiness; and
(3) Landlord has obtained consents or waivers from
any third parties which may be required under any lease,
mortgage, financing arrangement, or other agreement by which
Landlord is bound, to enable Landlord to permit such assignment.
(e) When, pursuant to the Bankruptcy Code, the trustee or the
debtor-in-possession is obligated to pay reasonable use and occupancy charges
for the use of all or part of the Premises, it is agreed that such charges will
not be less than the Base Rent as defined in this Lease, plus additional rent
and other monetary obligations of Tenant included herein.
(f) Neither Tenant's interest in this Lease nor any estate of Tenant
created in this Lease shall pass to any trustee, receiver, assignee for the
benefit of creditors, or any other person or entity, nor otherwise by operation
of law under the laws of any state having jurisdiction of the person or property
of Tenant, unless Landlord consents in writing to such transfer. Landlord's
acceptance of rent or any other payments from any trustee, receiver, assignee,
person, or other entity will not be deemed to have waived, or waive, either the
requirement of Landlord's consent or Landlord's right to terminate this Lease
for any transfer of Tenant's interest under this Lease without such consent.
20. ACCESS TO THE PREMISES
Landlord, its employees and agents and any mortgagee of the Project
shall have the right to enter any part of the Premises at all reasonable times
for the purposes of examining or inspecting the same, showing the same to
prospective purchasers, mortgagees or tenants and for making such repairs,
alterations or improvements to the Premises or the Project as Landlord may deem
necessary or desirable. If representatives of Tenant shall not be present to
open and permit such entry into the Premises at any time when such entry is
necessary or permitted hereunder, Landlord and its employees and agents may
enter the Premises by means of a master key or otherwise, 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, nor entitle Tenant to any
abatement of rent therefore.
21. SURRENDER OF PREMISES
Upon the expiration or earlier termination of this Lease, Tenant shall
surrender the Premises to Landlord, together with all keys, access cards,
alterations, improvements, and other property as provided elsewhere herein, in
broom-clean condition and in good order, condition and repair, except for
ordinary wear and tear and damage which Tenant is not obligated to repair,
failing which Landlord may restore the Premises to such condition at Tenant's
expense, which shall be payable upon demand. Upon such expiration or termination
Tenant's trade fixtures, furniture and equipment shall remain Tenant's property,
and if Tenant shall not then be in default under this Lease, Tenant shall have
the right to remove the same prior to the expiration or earlier termination of
this Lease, Tenant shall promptly repair any damage caused by any such removal,
and shall restore the Premises to the condition existing prior to the
installation of the items so removed. Any of Tenant's trade fixtures, furniture
or equipment not so removed shall be considered abandoned and may be retained by
Landlord or be destroyed.
22. HOLDING OVER
If Tenant remains in possession of the Premises without the consent of
Landlord after the expiration or earlier termination of this Lease, Tenant shall
be deemed to hold the Premises as a tenant at will subject to all of the terms,
conditions, covenants and
9.
provisions of this Lease (which shall be applicable during the holdover period),
except that Tenant shall pay to Landlord twice the last current Base Rent and
Additional Rent, which rent shall be payable to Landlord on demand. In addition,
Tenant shall be liable to Landlord for all damages occasioned by such holding
over. Tenant shall vacate and surrender the Premises to Landlord upon Tenant's
receipt of notice from Landlord to vacate. No holding over by Tenant, whether
with or without the consent of Landlord, shall operate to extend this Lease
except as otherwise expressly provided herein.
23. INTENTIONALLY DELETED
24. QUIET ENJOYMENT
Except as provided in Paragraph 22 hereof to the extent that it may be
applicable, if and so long as Tenant pays the prescribed rent and performs or
observes all of the terms, conditions, covenants and obligations of this Lease
required to be performed or observed by it hereunder, Tenant shall at all times
during the term hereof have the peaceable and quiet enjoyment, possession,
occupancy and use of the Premises without any interference from Landlord or any
person or persons claiming the Premises by, through or under Landlord, subject
to any mortgages, underlying leases or other matters of record to which this
Lease is or may become subject.
25. NOTICE AND PLACE OF PAYMENT
(a) All rent and other payments required to be made by Tenant to
Landlord shall be delivered or mailed to Landlord's management agent at the
address set forth below or any other address Landlord may specify from time to
time by written notice given to Tenant.
(b) All payments required to be made by Landlord to Tenant shall be
delivered or mailed to Tenant at the address set forth in Paragraph 25(c) hereof
or at any other address within the United States as Tenant may specify from time
to time by written notice given to Landlord.
(c) Any notice, demand or request required or permitted to be given
under this Lease or by law shall be deemed to have been given if reduced to
writing and mailed by Registered or Certified mail, postage prepaid, to the
party who is to receive such notice, demand or request at the address set forth
below or at such other address as Landlord or Tenant may specify from time to
time by written notice. When delivering such notice, demand or request shall be
deemed to have been given as of the date it was so delivered or mailed.
Landlord Tenant:
Xxxxxx Management Corporation
________________________________________ 1700 One Financial Plaza
________________________________________ 000 Xxxxx Xxxxx Xxxxxx
________________________________________ Xxxxxxxxxxx, Xxxxxxxxx 00000
________________________________________ Attention:
With copies to:
With a copy to:
________________________________________ Xxxxxx X. Xxxxxxxx, Esq.
________________________________________ Larkin, Hoffman, Xxxx &
________________________________________ Xxxxxxxx, Ltd.
________________________________________ 0000 Xxxxx Xxxxx Xxxxx
________________________________________ 0000 Xxxxxx Xxxxxx Xxxxx
________________________________________ Xxxxxxxxxxx, Xxxxxxxxx 00000
________________________________________
26. MISCELLANEOUS GENERAL PROVISIONS
(a) Intentionally deleted.
(b) Estoppel Letters. Tenant shall, within ten (10) days following
written request from Landlord, execute, acknowledge and deliver to Landlord or
to any lender, purchaser or prospective lender or purchaser designated by
Landlord a written statement certifying (i) that this Lease is in full force and
effect and unmodified (or, if modified, stating the nature of such
modification), (ii) the date to which rent has been paid, (iii) that there are
not, to Tenant's knowledge, any uncured defaults (or specifying such defaults if
any are claimed); and (iv) such further matters as may be requested by Landlord.
Any such statement may be relied upon by any prospective purchaser or mortgagee
of all or any part of the Project. Tenant's failure to deliver such statement
within such period shall be conclusive upon Tenant that this Lease is in full
force and effect and unmodified, and that there are no uncured defaults in
Landlord's performance hereunder.
(c) Memorandum of Lease. If requested by either party, a Memorandum
of Lease, containing the information required by applicable law concerning this
Lease shall be prepared, executed by both parties and filed for record in the
office of the county recorder in Hennepin County, Minnesota.
(d) Claims for Fees. Tenant is a licensed real estate broker under
the laws of the State of Minnesota but does not claim and shall not receive any
real estate broker's commission or fee in connection with the execution of this
Lease. Each party hereto shall indemnify and hold harmless the other party for
any and all liability incurred in connection with the negotiation or execution
of this Lease for any real estate broker's commission or finder's fee which has
been earned by a real estate broker or other person on such party's behalf.
10.
(e) Applicable Law. This Lease and all matters pertinent thereto
shall be construed and enforced in accordance with the laws of the State of
Minnesota.
(f) Entire Agreement. This Lease, including all Exhibits, Riders and
Addenda, constitutes the entire agreement between the parties hereto and may not
be modified except by an instrument in writing executed by the parties hereto.
(g) Binding Effect. This Lease and the respective rights and
obligations of the parties hereto shall inure to the benefit of and be binding
upon the successors and assigns of the parties hereto as well as the parties
themselves; provided, however, that Landlord, its successors and assigns shall
be obligated to perform Landlord's covenants under this Lease only during and in
respect of their successive periods as Landlord during the term of this Lease.
(h) Severability. If any provision of this Lease shall be held to be
invalid, void or unenforceable, the remaining provisions hereof shall not be
affected or impaired, and such remaining provisions shall remain in full force
and effect.
(i) No Partnership. Landlord shall not, by virtue of the execution
of this Lease or the leasing of the Premises to Tenant, become or be deemed a
partner of Tenant in the conduct of Tenant's business on the Premises or
otherwise.
(j) Headings, Gender, etc. As used in this Lease, the word "person"
shall mean and include, where appropriate, an individual, corporation,
partnership or other entity; the plural shall be substituted for the singular,
and the singular for the plural, where appropriate; and words of any gender
shall include any other gender. The topical headings of the several paragraphs
of this Lease are inserted only as a matter of convenience and reference, and do
not affect, define, limit or describe the scope or intent of this Lease.
(k) Waiver of Jury. To the extent permitted by law, Tenant hereby
waives any right it may have to a jury trial in the event of litigation between
Tenant and Landlord pertaining to this Lease.
(l) Intentionally deleted.
(m) Right to Change Building Name and Address. Landlord reserves the
right to change the name or street address of the Building.
(n) Requirement of Identification. Landlord, or its contractor(s),
may require all persons entering or leaving the Building during such hours as
Landlord may reasonably determine, to identify themselves by registration or
otherwise, and to establish their right to leave or enter, and to exclude or
expel any peddler, solicitor or beggar at any time from the Premises or
Building.
(o) Acceptance of Tenant's Goods. Tenant authorizes Landlord and
Landlord's agents and employees to accept and sign for shipments as a
convenience and measure of traffic control with a stamp which shall indicate
that any signature is authorized only to clear the loading dock or other
receiving area as a matter of convenience, and such signature does not
constitute acceptance by the addressee and does not relieve the carrier of any
liability nor create an agency or bailment. Tenant hereby releases Landlord and
Landlord's agents and employees from any and all liability resulting from or
related to the acceptance of goods addressed to Tenant and delivered to the
Building's loading dock or other area designated for receipt of goods.
(p) Reserved Areas, Light and Air. This Lease does not give Tenant
any right to use, and Landlord hereby excludes and reserves for its sole and
exclusive use, the following areas in and about the Premises: janitor closets,
stairways and stairwells, fan, mechanical, electrical, telephone and similar
rooms (other than those installed for Tenant's exclusive use); elevator, pipe
and other vertical shafts, flues and ducts; all areas above the acoustical
ceiling and below the finished floorcovering installed in the Premises; all
other structural or mechanical elements serving other areas of the Building; and
all subterranean, mineral, air, light and view rights.
(q) Limitation of Landlord's Personal Liability. Tenant specifically
agrees to look solely to Landlord's interest in the Project for the recovery of
any judgment against Landlord, it being agreed that Landlord (and its partners
and shareholders) shall never be personally liable for any such judgment.
(r) Execution by Landlord. Submission of this instrument to Tenant,
or Tenant's agents or attorneys, for examination or signature does not
constitute or imply an offer to lease, reservation of space, or option to lease,
and this Lease shall have no binding legal effect until execution hereof by both
Landlord and Tenant.
(s) Time of Essence. Time is of the essence of this Lease and each
of its provisions.
27. ADDITIONAL PROVISIONS
Additional provisions of this Lease are set forth in Paragraphs 28
through 32 of the Addendum to Lease attached hereto and made a part hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the day and year first above written.
LANDLORD: TENANT:
_________________________________ XXXXXX MANAGEMENT CORPORATION, an
Illinois corporation
By: _________________________________ By: _________________________________
Name of Officer: ____________________ Name of Officer: ____________________
Title: ______________________________ Title: ______________________________
Exhibits
A) Demising Plan
B) Legal Description
C) Intentionally Deleted
D) Rules & Regulations
E) Estoppel Letter
11.
EXHIBIT D
ONE FINANCIAL PLAZA RULES & REGULATIONS
Tenant agrees to observe the rights reserved to Landlord in the Lease and
agrees, for itself, its employees, agents, clients, customers, invitees and
guests, to comply with the following rules and regulations with such reasonable
modifications thereof and additions thereto as Landlord may make, from time to
time, for the Building:
1. The sidewalks, entries, passages, courtyard, corridors,
stairways and elevators shall not be obstructed by any tenants, their employees
or agents, or used by them for purposes other than ingress and egress to and
from their respective suites. Boxes, cartons or any other debris which is to be
thrown away by the cleaning crew should not be left in the corridors.
2. All heavy articles (i.e., safes) shall be carried up or into the
Premises only at such times and in such manner as shall be prescribed by
Landlord, and Landlord shall in all cases have the right to specify the proper
weight and position of any such heavy article. Any damage done to the Building
by taking in or removing any such equipment or from overloading any floor in any
way shall be paid for by Tenant. Defacing or injuring in any way any part of the
Building by Tenant, his agents or employees, shall be paid for by Tenant.
3. Tenant will refer all contractors, contractors' representatives
and installation technicians rendering any service on or to the Premises for
Tenant to Landlord for Landlord's approval and supervision before performance of
any contractual service. This provision shall apply to all work performed in the
Building, including but not limited to the installation of the telephone and
other communications equipment, electrical devices and attachments and
installations of any nature affecting floors, walls, woodwork, trim, windows,
ceilings, equipment or any other physical portion of the Building. Such
approval, if given, shall in no way make Landlord a party to any contract
between Tenant and any such contractor, and Landlord shall have no liability
therefore.
4. No sign, advertisement or notice shall be inscribed, painted or
affixed on any part of the inside or outside of said Building. Landlord will
supply building standard signage for Tenant's suite entrance, at Tenant's cost.
Any additions, deletions or changes to the door signage after the original
signage is installed shall also be at Tenant's cost. A directory in a
conspicuous space, with the names of tenants, will be provided by Landlord; any
necessary revisions to the directory will be made by Landlord within a
reasonable time after notice from Tenant of the error or change making the
revision necessary. No furniture shall be placed in front of the Building or in
any lobby or corridor without written consent of Landlord. Landlord shall have
the right to remove all other signs and furniture, without notice to Tenant, at
the expense of Tenant.
5. Tenant shall have the non-exclusive use in common with Landlord,
other tenants, their guests and invitees, of the automobile parking areas,
driveways and footways, subject to reasonable rules and regulations for the use
thereof as prescribed from time to time by Landlord. Landlord shall have the
right to designate parking areas for the use of tenants of the Project and their
employees, and tenants and their employees shall not park in parking areas not
so designated, specifically including driveways, fire lanes, loading/unloading
areas, walkways and building entrances. Tenant agrees that upon written notice
from Landlord, it will furnish Landlord, within five (5) days from receipt of
such notice, the state automobile license numbers assigned to the automobiles of
Tenant and its employees. Landlord shall not be liable for any vehicle of Tenant
or its employees that Landlord shall have towed from the premises when illegally
parked. Landlord will not be liable for damage to vehicles in the parking areas
or for theft of vehicles, personal property from vehicles, or equipment of
vehicles.
6. No tenant shall do or permit anything to be done in said
Premises or bring or keep anything therein which will in any way increase the
rate of fire insurance on said Building, or on property kept therein, or
obstruct or interfere with the rights of other tenants, or in any way injure or
annoy them, or conflict with the laws relating to fire, or with any regulations
of the fire department, or with any insurance policy upon said buildings or any
part thereof, or conflict with any rules and ordinances of the local Board of
Health or any governing bodies.
7. Employees of the Building will at all times keep a pass key, and
agents of Landlord shall at all times be allowed admittance to Tenant's
Premises.
8. No additional locks shall be placed upon any doors without the
written consent of Landlord. All keys to the Premises shall be furnished by
Landlord in a reasonable number commensurate with the square footage leased.
Additional keys shall be furnished at Tenant cost. Upon termination of this
Lease, all keys shall be surrendered, and Tenant shall then give Landlord or its
agent explanation of the combination of all locks upon any doors or vaults.
9. No windows or other openings that reflect or admit light into
the corridors or passageways, or to any other place in said Building, shall be
covered or obstructed by any tenant.
10. No person shall disturb the occupants of the Building by the use
of any musical instruments, the making of unseemly noises, or any unreasonable
noise. No animals or pets of any kind will be allowed in the building.
11. The water closets and other water fixtures shall not be used for
any purpose other than those for which they were constructed, and any damage
resulting to them from misuse, or the defacing or injury of any part of the
Building, shall be borne by the person who shall occasion it.
12. No bicycles or similar vehicles will be allowed in the Building.
Exterior parking for such vehicles will be provided.
13. Nothing shall be thrown out the windows of the Building or down
the stairways or other passages.
1.
14. Tenant shall not be permitted to use or to keep in the Building
any kerosene, camphene, burning fluid or other illuminating materials.
15. If any tenant desires, at its cost, telephonic or other
electronic connections, Landlord or its agents will direct the electricians as
to where and how the wires may be introduced, and without such directions, no
boring or cutting for wires will be permitted.
16. All mini-blinds, draperies or other window treatments Tenant
desires to install on exterior windows in the Premises shall be of such shape,
color, materials and make as shall be approved by Landlord and the same shall be
installed at Tenant's cost. Landlord or its agents shall have the right to enter
the Premises to examine the same or to make such repairs, alterations or
additions as Landlord shall deem necessary for the safety, preservation or
improvement of the Building.
17. Six months prior to the expiration of the Lease, Landlord or its
agents may show the Premises and may place on the windows or doors thereof, or
upon the bulletin board, a notice "For Rent".
18. No portion of the Building shall be used for the purpose of
lodging rooms or for any immoral or unlawful purposes.
19. All glass, locks and trimmings in or about the doors and windows
and all electric fixtures belonging to the Building shall be kept whole, and
whenever broken by anyone shall be immediately replaced or repaired and put in
order at Tenant's cost under the direction and to the satisfaction of Landlord,
and on removal shall be left whole and in good repair.
20. Tenant shall not install or authorize the installation of any
vending machines or food preparation devices without Landlord's written
approval. Landlord shall have the right to rescind this approval, if given,
without liability to Tenant for reimbursement of any Tenant costs or expenses or
to grant exclusive rights to vending machine operators.
21. Landlord reserves the right at any time to take one elevator out
of service to tenants for exclusive use by management in servicing the Building.
22. No electric heaters or electric fans are allowed on the Premises
without the prior written consent of Landlord.
23. Tenant shall list all furniture, equipment and similar articles
Tenant desires to remove from the Premises or the Building and deliver a copy to
Landlord and procure a removal permit from the Office of the Building
authorizing Building employees to permit such articles to be removed.
24. Before leaving the Premises unattended, Tenant shall close and
securely lock all doors and transoms and shut off all utilities in the Premises.
Any damage resulting from failure to do so shall be paid by Tenant.
25. Tenant shall not place any radio or television antenna on the
roof or on or in any part of the inside or outside of the Building other than
the inside of the Premises, or operate or permit to be operated any musical or
sound producing instrument or device inside or outside the Premises which may be
heard outside the Premises, or operate any electrical device from which may
emanate electrical waves which may interfere with or impair radio or television
broadcasting or reception from or in the Building or elsewhere.
26. Tenant shall not make or permit any noise, vibration or odor to
emanate from the Premises; or do anything therein tending to create, or
maintain, a nuisance; or disturb, solicit or canvass any occupant of the
Building, or do any act tending to injure the reputation of the Building.
27. Tenant shall not place anything or allow anything to be placed
near the glass of any door, partition, or window which may be unsightly from
outside the Premises; or take or permit to be taken in or out of other entrances
of the Building, or take or permit on other elevators, any item normally taken
in or out through the trucking concourse or service doors or in or on freight
elevators; or, whether temporarily, accidentally, or otherwise, allow anything
to remain in, place or store anything in, or obstruct in any way, any
passageway, exit, stairway, elevator, shipping platform, or truck concourse.
Tenant shall lend its full cooperation to keep such areas free from all
obstruction and in a clean and sightly condition and move all supplies,
furniture and equipment as soon as received directly to the Premises and move
all such items and waste, other than waste customarily removed by employees of
the Building, being taken from the Premises, directly to the shipping platform
at or about the time arranged for removal therefrom.
28. Tenant shall not do any painting or decorating in the Premises;
or xxxx, paint, cut or drill into, drive nails or screws into, or in any way
deface any part of the Premises or the Building, outside or inside, without the
prior written consent of Landlord. If Tenant desires signal, communication,
alarm or other utility or service connections installed or changed, the same
shall be made by and at the expense of Tenant, with the approval and under
direction of Landlord.
29. Upon written application by Tenant, and approval thereof by
Landlord, Landlord shall furnish freight elevator service for Tenant at times
other than those times provided for in the Lease at rates for such usage from
time to time maintained in effect by Landlord.
2.
EXHIBIT E
TENANT ESTOPPEL LETTER
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
Lease Dated: ______________, 2005
Landlord: ______________________________________________________________
Tenant: Xxxxxx Management Corporation
Premises: One Financial Plaza, Suite 1700
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx
Gentlemen:
The undersigned ("Tenant") hereby confirms the following as of the date hereof:
1. Tenant is the tenant under the above captioned lease (the
"Lease"). All capitalized terms contained herein have the meaning defined in the
Lease.
2. The Commencement Date of the Term is _______________, 2005. The
Expiration Date of the Term is ____________________, 2007, subject to the
provisions of Paragraph 29 of the Lease Addendum.
3. Tenant has accepted the Premises for occupancy and the condition
of the Premises is in conformity with the provisions of this Lease in all
respects.
4. The rentable area of the Premises is 4,858 square feet.
5. The Lease is in full force and effect; there is no existing
default on the part of Landlord under the Lease; and the Lease has not been
amended, modified, supplemented or superseded.
Dated: _______________, 2005 XXXXXX MANAGEMENT CORPORATION
By: ____________________________________
Name: __________________________________
Title: _________________________________
ADDENDUM
ATTACHED TO AND MADE A PART OF
ONE FINANCIAL PLAZA LEASE
BY AND BETWEEN
_________________________ AS LANDLORD
AND
XXXXXX MANAGEMENT CORPORATION, AS TENANT
ADDITIONAL LEASE PROVISIONS
THIS ADDENDUM contains additional terms and conditions of the Lease
attached hereto. The terms and conditions contained in this Addendum shall
supersede any conflicting provisions contained in the attached Lease.
28. MANAGEMENT SUBCONTRACT. Tenant has contracted with an affiliate of
Landlord to provide management services for the Building pursuant to a Property
Management and Leasing Subcontract dated the date of this Lease (the "Management
Subcontract"). Except as otherwise provided herein, Landlord and Tenant intend
that Tenant be permitted to use and occupy the Premises during the term of the
Management Subcontract. In the event that the Management Subcontract is
terminated for any reason, Landlord shall have the right to terminate this Lease
at any time thereafter by giving Tenant at least sixty (60) days written notice.
29. EARLY LEASE TERMINATION. In addition to termination rights set
forth in the printed form portion of this Lease, Tenant may terminate
this Lease at any time by giving Landlord at least sixty (60) days prior
written notice.
30. PARKING. As of the date of this Lease, Tenant uses 13 parking stalls
(including 4 parking stalls in the loading dock area) in the Building for
corporate and property employees. Tenant shall continue to have the right to use
such parking stalls at no cost as long as Tenant continues to be the property
manager for the Building. If the Management Subcontract is terminated, Tenant's
rights to all parking stalls shall expire sixty (60) days after the date of such
termination.
31. RELOCATION OF PREMISES. The parties acknowledge that the Premises are
used for both (a) personnel who devote one hundred percent (100%) of their time
to managing and leasing the Building under the terms of the Management
Subcontract (the "Building Personnel") and (b) personnel other than Building
Personnel ("Other Personnel"). As a part of Tenant's obligations to Landlord
under the Management Subcontract, Tenant will offer the Premises for lease to
third parties. If the Premises are leased to a third party and space similar in
size to the Premises is available on or above the seventeenth (17th) floor of
the Building, Tenant shall relocate to such available space and such space shall
thereafter constitute the Premises. If space of comparable size is not then
available on or above the seventeenth (17th) floor of the Building, Landlord may
require Tenant to relocate to other space of comparable size which is suitable
for Tenant's office use in any location in the Building designated by Landlord
and such space shall thereafter constitute the Premises. If space of comparable
size is not then available in any location in the Building, Landlord shall
relocate the Building Personnel to such smaller space in the Building as
Landlord deems appropriate (and such space shall thereafter constitute the
Premises) and Tenant shall relocate the Other Personnel outside the Building
(unless otherwise agreed in writing between Landlord and Tenant). Landlord may
relocate Tenant to other space in the Building one or more times pursuant to the
foregoing provisions, and in each case the terms and conditions contained in
this Lease shall apply to the substitute Premises. In addition, Tenant agrees to
relocate the Other Personnel from the Premises to space located outside of the
Building at such time as Tenant (or an affiliate) has acquired another building
in the Minneapolis CBD.
1.
32. STORAGE SPACE. So long as this Lease remains in effect, Tenant shall
have a license to use at no additional charge an approximately 150 square foot
storage room located in the lower level of the Building that Tenant may use
during the Term at no additional charge.
LANDLORD: TENANT:
XXXXXX MANAGEMENT CORPORATION
By: _________________________________ By: _________________________________
Name: _______________________________ Name: _______________________________
Title: ______________________________ Title: ______________________________
2.
EXHIBIT K
PROPERTY MANAGEMENT AND LEASING SUBCONTRACT
PROPERTY MANAGEMENT AND LEASING SUBCONTRACT
This PROPERTY MANAGEMENT AND LEASING AGREEMENT SUBCONTRACT (this
"Agreement") is made and entered into as of the ___ day of ________, 2005, by
and between HPT MANAGEMENT SERVICES LP, Texas limited partnership (the
"Manager"), and XXXXXX MANAGEMENT CORPORATION, an Illinois corporation ("Xxxxxx
Management") and XXXXXX REALTY CORPORATION, an Illinois corporation ("Xxxxxx
Realty") (collectively, the "Subcontractor").
RECITALS
A. _______________________, a __________________________________
("Owner") has acquired the land described on EXHIBIT A attached hereto together
with the office building and related facilities located thereon, having a street
address of 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx (the "Property");
X. Xxxxxxxxx Harvard REIT I, Inc., a Maryland corporation ("XX
XXXX"), Behringer Harvard Operating Partnership I LP, a Texas limited
partnership ("BH OP"), and Manager have entered into that certain Second Amended
and Restated Property Management and Leasing Agreement dated as of February 11,
2005 (the "Master Agreement"), pursuant to which XX XXXX and BH OP retained
Manager to manage and coordinate the leasing of certain properties acquired by
XX XXXX, BH OP or their Affiliates.
C. Owner is an Affiliate of XX XXXX and BH OP and has retained
Manager to manage and coordinate the leasing of the Property in accordance with
the terms of the Master Agreement.
D. Manager wishes to subcontract certain of its duties under the
Master Agreement in respect of the Property and Subcontractor wishes to perform
such duties and receive the fees and other consideration provided for herein;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound hereby, do
hereby agree, as follows:
ARTICLE I
DEFINITIONS
Except as otherwise specified or as the context may otherwise require,
the following terms have the respective meanings set forth below for all
purposes of this Agreement, and the definitions of such terms are equally
applicable both to the singular and plural forms thereof:
K-1
1.1 "Affiliate" means, with respect to any Person, (i) any Person
directly or indirectly owning, controlling or holding, with the power to vote,
10% or more of the outstanding voting securities of such other Person; (ii) any
Person 10% or more of whose outstanding voting securities are directly or
indirectly owned, controlled or held, with the power to vote, by such other
Person; (iii) any Person directly or indirectly controlling, controlled by or
under common control with such other Person; (iv) any executive officer,
director, trustee or general partner of such other Person; and (v) any legal
entity for which such Person acts as an executive officer, director, trustee or
general partner.
1.2 "Gross Revenues" means all amounts actually collected as rents
or other charges for the use and occupancy of the Properties, but shall exclude
interest and other investment income of Owner and proceeds received by Owner for
a sale, exchange, condemnation, eminent domain taking, casualty or other
disposition of assets of Owner.
1.3 "Improvements" means buildings, structures, equipment from time
to time located on the Property and all parking and common areas located on the
Property.
1.4 "Lease" means, unless the context otherwise requires, any lease
or sublease of the Property made by Owner as landlord or by its predecessor.
1.6 "Management Fees" has the meaning set forth in Section 5.1
hereof.
1.7 "Person" means an individual, corporation, association, business
trust, estate, trust, partnership, limited liability company or other legal
entity.
1.8 "Property" means the land described on EXHIBIT A attached hereto
and the office building and related facilities located thereon, having a street
address of 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx.
ARTICLE II
APPOINTMENT OF SUBCONTRACTOR; SERVICES TO BE PERFORMED
2.1 APPOINTMENT OF SUBCONTRACTOR. Manager hereby engages and retains
Xxxxxx Management as the manager and engages and retains Xxxxxx Realty as the
leasing agent of the Property, and Subcontractor hereby accepts such appointment
on the terms and conditions hereinafter set forth; it being understood that this
Agreement shall cause each Subcontractor to be, at law, Manager's agent upon the
terms contained herein. Xxxxxx Management and Xxxxxx Realty shall jointly
perform the obligations of Subcontractor under this Agreement except that those
obligations which may be performed only by a licensed real estate broker shall
be performed by Xxxxxx Realty.
2.2 GENERAL DUTIES. Subcontractor shall devote its best efforts to
performing its duties hereunder to manage, operate, maintain and lease the
Property in a diligent, careful and vigilant manner. The services of
Subcontractor are to be of scope and quality not less than those generally
performed by professional property managers of other similar properties in the
area.
K-2
Subcontractor shall make available to Manager and Owner the full benefit of the
judgment, experience and advice of the members of Subcontractor's organization
and staff with respect to the policies to be pursued by Owner relating to the
operation and leasing of the Property.
2.3 SPECIFIC DUTIES. Subcontractor's duties include the following:
(a) LEASE OBLIGATIONS. Subcontractor shall perform all
duties of the landlord under all Leases insofar as such duties relate to
operation, maintenance, and day-to-day management. Subcontractor shall
also provide or cause to be provided, at Owner's expense, all services
normally provided to tenants of like premises, including where
applicable and without limitation, gas, electricity or other utilities
required to be furnished to tenants under Leases, normal repairs and
maintenance, and cleaning, and janitorial service. Subcontractor shall
arrange for and supervise the performance of all installations and
improvements in space leased to any tenant that are either expressly
required under the terms of the lease of such space or that are
customarily provided to tenants.
(b) MAINTENANCE. Subcontractor shall cause the Property to
be maintained in the same manner as similar properties in the area.
Subcontractor's duties and supervision in this respect shall include,
without limitation, cleaning of the interior and the exterior of the
Improvements and the public common areas on the Property and the making
and supervision of repair, alterations, and decoration of the
Improvements, subject to and in strict compliance with this Agreement,
the Master Agreement, and the Leases. Construction activities undertaken
by Subcontractor, if any, will be limited to activities related to the
management, operation, maintenance, and leasing of the Property (e.g.,
repairs, renovations, and leasehold improvements). Subcontractor's
duties shall exclude construction management for any capital
improvements performed on the Property (except to the extent required
under Section 2.3(a) of this Agreement).
(c) LEASING FUNCTIONS. Subcontractor shall coordinate the
leasing of the Property and shall negotiate and use its best efforts to
secure executed Leases from qualified tenants, and to execute same on
behalf of Owner, if requested, for available space in the Property, such
Leases to be in form and on terms approved by Owner, Manager and
Subcontractor, and to bring about complete leasing of the Property.
Subcontractor shall be responsible for the hiring of all leasing agents,
as necessary for the leasing of the Property, and to otherwise oversee
and manage the leasing process on behalf of Owner.
(d) NOTICE OF VIOLATIONS. Subcontractor shall forward to
Manager and Owner promptly upon receipt all notices of violation or
other notices from any governmental authority, and board of fire
underwriters or any insurance company, and shall make such
recommendations regarding compliance with such notice as shall be
appropriate.
(e) PERSONNEL. Any personnel hired by Subcontractor to
maintain, operate and lease the Property shall be the employees or
independent contractors of Subcontractor and not of Manager or Owner.
Subcontractor shall use due care in the selection and supervision of
such employees or independent contractors. Subcontractor shall be
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responsible for the preparation of and shall timely file all payroll tax
reports and timely make payments of all withholding and other payroll
taxes with respect to each employee.
(f) UTILITIES AND SUPPLIES. Subcontractor shall enter into
or renew contracts for electricity, gas, steam, landscaping, fuel, oil,
maintenance and other services as are customarily furnished or rendered
in connection with the operation of similar rental property in the area.
(g) EXPENSES. Subcontractor shall analyze all bills received
for services, work and supplies in connection with maintaining and
operating the Property and shall forward all bills to Manager, or to
such other party as may be directed in writing by Manager, promptly upon
receipt thereof.
(h) MONIES COLLECTED. Subcontractor shall use commercially
reasonable efforts to collect all rent and other monies due from tenants
of the Property and any sums otherwise due Owner with respect to the
Property in the ordinary course of business. Subcontractor is authorized
to request, demand, collect and provide receipt for all such rent and
other monies and to institute legal proceedings in the name of Owner for
the collection thereof and for the dispossession of any tenant in
default under its Lease. Subcontractor shall deliver all such funds and
monies to Manager, or to such other party or into such account as shall
be directed in writing by Manager, promptly upon receipt thereof.
(i) OWNERSHIP AGREEMENTS. Owner and/or Manager will provide
Subcontractor with copies of (and will be provided with copies of
future) Articles of Incorporation, Agreements of Limited Partnership,
Joint Venture Partnership Agreements and Operating Agreements, each as
may be amended from time to time, of Owner, as applicable (the
"Ownership Agreements") and once such Ownership Agreements are so
provided, Subcontractor shall become familiar with the terms thereof.
Subcontractor shall use reasonable care to avoid any act or omission
that, in the performance of its duties hereunder, shall in any way
conflict with the terms of Ownership Agreements.
(j) SIGNS. Subcontractor shall place and remove, or cause to
be placed and removed, such signs upon the Property as Subcontractor
deems appropriate, subject, however, to the terms and conditions of the
Leases and to any applicable ordinances and regulations.
2.4 APPROVAL OF LEASES, CONTRACTS, ETC. In fulfilling its duties to
Manager and Owner, Subcontractor may and hereby is authorized to enter into any
leases, contracts or agreements on behalf of Owner in the ordinary course of the
management, operation, maintenance and leasing of the Property.
2.5 RECORDS AND REPORTS.
(a) RECORDS. Subcontractor will maintain adequate records of
funds from the Property that come into the possession of Subcontractor,
but Subcontractor will be not be responsible for general maintenance of
office records and books of account in respect of
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the Property. Subcontractor will use reasonable efforts to cooperate
with Manager, Owner, and any accountants retained by Manager or Owner,
with respect to the preparation of books and records relating to the
Property, any audit of such books and records, and financial reporting
matters. Owner and Manager and persons designated by Owner or Manager
shall at all reasonable times have access to and the right to audit and
make independent examinations of any books and records relating to the
Property that are in the possession or under the control of
Subcontractor.
(b) MONTHLY REPORTS. Subcontractor will provide Manager or
Owner with such reports concerning the Property as Manager or Owner may
reasonably request.
(c) BUDGETS AND LEASING PLANS. Not later than November 15 of
each calendar year, Subcontractor shall prepare and submit to Manager
and Owner for approval an operating budget and a marketing and leasing
plan for the Property for the calendar year immediately following such
submission. In connection with the acquisition of the Property by Owner,
Subcontractor shall prepare a budget and marketing and leasing plan for
the remainder of the 2005 calendar year within twenty (20) days after
the date hereof. The budget and marketing and leasing plan shall be in
the form approved by Owner. As often as reasonably necessary during the
period covered by any such budget, Subcontractor may submit to Manager
and Owner for approval an updated budget or plan incorporating such
changes as shall be necessary to reflect cost over-runs and the like
during such period. If Manager and Owner do not disapprove any such
budget within 30 days after receipt thereof by Manager or Owner, as the
case may be, such budget shall be deemed approved. If Manager or Owner
shall disapprove any such budget or plan, it shall so notify
Subcontractor within said 30-day period and explain the reasons
therefor. If Manager or Owner disapproves of any budget or plan,
Subcontractor shall submit a revised budget or plan, as applicable,
within 10 days of receipt of the notice of disapproval, and Manager and
Owner shall have 10 days to provide notice to Subcontractor if it
disapproves of any such revised budget or plan. Subcontractor will not
incur any costs other than those estimated in any budget except for:
(i) tenant improvements and real estate commissions required
under a Lease;
(ii) maintenance or repair costs under $5,000;
(iii) costs incurred in emergency situations in which action
is immediately necessary for the preservation or safety
of the Property, or for the safety of occupants or other
persons (or to avoid the suspension of any necessary
service of the Property);
(iv) expenditures for real estate taxes and assessment; and
(v) maintenance supplies for the Property calling for an
aggregate purchase price less than $25,000 per annum.
Budgets prepared by Subcontractor shall be for planning and
informational purposes only, and Subcontractor shall have no liability
to Owner or Manager for any failure to
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meet any such budget. However, Subcontractor will use its best efforts
to operate within the approved budget.
(d) LEGAL REQUIREMENTS. Subcontractor shall execute and file
when due all forms, reports, and returns required by law relating to the
employment of its personnel. Subcontractor shall be responsible for
notifying Manager and Owner in the event it receives notice that any
Improvement on the Property or any equipment therein does not comply
with the requirements of any statute, ordinance, law or regulation of
any governmental body or of any public authority or official thereof
having or claiming to have jurisdiction thereover. Subcontractor shall
promptly forward to Manager and Owner any complaints, warnings, notices
or summonses received by it relating to such matters. Subcontractor is
authorized to disclose the ownership of the Property by Owner to any
such officials. Owner is obligated to indemnify, protect, defend, save
and hold Subcontractor and its stockholders, officers, directors,
employees, managers, independent contractors, successors and assigns
(collectively, the "Indemnified Parties") harmless of and from any and
all Losses (as defined in Section 3.5(a) hereof) that may be imposed on
them or any or all of them by reason of the failure of Owner to correct
any present or future violation or alleged violation of any and all
present or future laws, ordinances, statutes, or regulations of any
public authority or official thereof, having or claiming to have
jurisdiction thereover, of which it has actual notice.
ARTICLE III
AUTHORITY GRANTED TO MANAGER AND CERTAIN OWNER OBLIGATIONS
3.1 AUTHORITY AS TO TENANTS, ETC. Manager hereby delegates to
Subcontractor the following authority and powers (all of which shall be
exercised either in the name of Subcontractor, as manager of the Property, or in
the name of Owner entered into by Subcontractor as Owner's authorized agent, and
Owner shall assume all expenses in connection with such matters):
(a) to advertise the Property or any part thereof and to
display signs thereon, as permitted by law;
(b) to lease the Property to tenants;
(c) to cause references of prospective tenants to be
investigated, it being understood and agreed by the parties hereto that
Subcontractor does not guarantee the creditworthiness or collectibility
of accounts receivable from tenants, users or lessees; and to negotiate
new Leases and renewals and cancellations of existing Leases that shall
be subject to the approval of Manager and Owner;
(d) to charge tenants all or any of the following, subject
to the approval of Owner and Manager: a late rent administrative charge,
interest on delinquent accounts, a non-negotiable check charge, credit
report fee, a subleasing administrative charge and/or broker's
commission; and Subcontractor will account for such charges and/or
commission to Manager;
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(e) to terminate tenancies at the Property and to sign and
serve in the name of Owner such notices as are deemed necessary by
Subcontractor;
(f) to institute and prosecute actions to evict tenants and
to recover possession of the Property or portions thereof;
(g) with the authorization of Manager and Owner, to xxx for
and in the name of Owner and recover rent and other sums due; and to
settle, compromise, and release such actions or suits, or reinstate such
tenancies. All expenses of litigation including, but not limited to,
attorneys' fees, filing fees, and court costs that Subcontractor shall
incur in connection with the collecting of rent and other sums, or to
recover possession of the Property or any portion thereof, shall be
deemed to be an operational expense of the Property. Subcontractor,
Manager and Owner shall concur on the selection of the attorneys to
handle such litigation.
3.2 OPERATIONAL AUTHORITY. Manager hereby delegates to Subcontractor
the following authority and powers (all of which shall be exercised either in
the name of Subcontractor, as manager of the Property, or in the name of Owner
entered into by Subcontractor as Owner's authorized agent, and Owner shall
assume all expenses in connection with such matters):
(a) to hire, supervise, discharge, and pay all labor
required for the operation and maintenance of the Property including but
not limited to on-site personnel, managers, assistant managers, leasing
consultants, engineers, janitors, maintenance supervisors and other
employees required for the operation and maintenance of the Property,
including personnel spending a portion of their working hours (to be
charged on a pro rata basis) at the Property. All expenses of such
employment shall be deemed operational expenses of the Property to the
extent set forth in an approved budget or otherwise authorized by this
Agreement.
(b) to make or cause to be made all ordinary repairs and
replacements necessary to preserve the Property in its present condition
and for the operating efficiency thereof and all alterations required to
comply with lease requirements, and to decorate the Property; and
(c) to negotiate and enter into contracts for all items on
budgets that have been approved by Manager and Owner, any emergency
services or repairs for items not exceeding $5,000, appropriate service
agreements and labor agreements for normal operation of the Property,
which have terms not to exceed three years, and agreements for all
budgeted maintenance, minor alterations, and utility services,
including, but not limited to, electricity, gas, fuel, water, telephone,
window washing, scavenger service, landscaping, snow removal, pest
exterminating, decorating and legal services in connection with the
Leases and service agreements relating to the Property, and other
services or such of them as Subcontractor may consider appropriate.
Subcontractor shall use its best efforts to obtain the foregoing services and
utilities for the Property under terms that are as cost-effective and otherwise
favorable to Subcontractor as possible for the quality of services and utilities
required. Subcontractor is authorized to execute,
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as agent for Owner, all such contracts. In addition, Owner agrees to
specifically assume in writing all obligations under all such contracts so
entered into by Subcontractor, on behalf of Owner, upon the termination of this
Agreement, and Owner shall indemnify, protect, save, defend and hold
Subcontractor and the other Indemnified Parties harmless from and against any
and all Losses resulting from, arising out of or in any way related to such
contracts and that relate to or concern matters occurring after termination of
this Agreement, but excluding matters arising out of Subcontractor's gross
negligence or willful misconduct. Subcontractor shall secure the approval of
Manager and Owner, and execution of appropriate contracts by, Owner for any
non-budgeted and non-emergency capital items, alterations or other expenditures
in excess of $5,000 for any one item, securing for each item at least three
written bids, if practicable, or providing evidence satisfactory to Manager and
Owner that the contract amount is lower than industry standard pricing, from
responsible contractors. Subcontractor shall not contract with or make purchases
from Affiliates of Subcontractor without the prior written approval of Owner.
3.3 RENT AND OTHER COLLECTIONS. Manager hereby delegates to
Subcontractor the following authority and powers (all of which shall be
exercised either in the name of Subcontractor, as manager of the Property, or in
the name of Owner entered into by Subcontractor as Owner's authorized agent, and
Owner shall assume all expenses in connection with such matters): to collect
rents and/or assessments and other amounts owed to Owner by tenants of the
Property. Subcontractor shall deliver all amounts so collected to Manager, or to
such other party or into such account as shall be directed in writing by Manager
(the "Account"), promptly upon receipt thereof. Subcontractor shall handle any
tenant security deposits that come into its possession in accordance with
applicable state or local laws concerning security deposits and interest
thereon, if any. Subcontractor shall not be required to advance any monies for
the care or management of any Property. Owner agrees to advance all monies
necessary therefor. If Subcontractor shall elect to advance any money in
connection with the Property, Owner agrees to reimburse Subcontractor forthwith
and hereby authorizes Subcontractor to deduct such advances from any monies due
Owner. In connection with any insured losses or damages relating to the
Property, Subcontractor shall have the authority to handle all steps necessary
regarding any such claim; provided that Subcontractor will not make any
adjustments or settlements in excess of $10,000 without the prior written
consent of Manager and Owner.
3.4 CERTAIN OWNER INDEMNIFICATION OBLIGATIONS.
(a) ON TERMINATION. In the event this Agreement is
terminated for any reason prior to the expiration of its original term
or any renewal term, Owner shall indemnify, protect, defend, save and
hold Subcontractor and all of the other Indemnified Parties harmless
from and against any and all claims, causes of action, demands, suits,
proceedings, loss, judgments, damage, awards, liens, fines, costs,
attorney's fees and expenses, of every kind and nature whatsoever
(collectively, "Losses"), that may be imposed on or incurred by
Subcontractor by reason of the willful misconduct, gross negligence
and/or unlawful acts (such unlawfulness having been adjudicated by a
court of proper jurisdiction) of Owner.
(b) PROPERTY DAMAGE, ETC. Owner agrees to indemnify, defend,
protect, save and hold Subcontractor and all of the other Indemnified
Parties harmless from any and all
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Losses in connection with or in any way related to the Property and from
liability for damage to the Property and injuries to or death of any
person whomsoever, and damage to property; provided, however, that such
indemnification shall not extend to any such Losses arising out of the
gross negligence or willful misconduct of Subcontractor or any of the
other Indemnified Parties. Subcontractor shall not be liable for any
error of judgment or for any mistake of fact or law, or for any thing
that it may do or refrain from doing, except in cases of negligence or
willful misconduct.
3.6 ENVIRONMENTAL MATTERS. Owner hereby warrants and represents to
Subcontractor that to the best of Owner's knowledge, the Property will not be
used to treat, deposit, store, dispose of or place any hazardous substance that
may subject Subcontractor to liability or claims under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C.A.
Section 9607) or any constitutional provision, statute, ordinance, law, or
regulation of any governmental body or of any order or ruling of any public
authority or official thereof, having or claiming to have jurisdiction
thereover. Furthermore, Owner agrees to indemnify, protect, defend, save and
hold harmless Subcontractor and all of the other Indemnified Parties from any
and all Losses involving, concerning or in any way related to any future (but
not current or past) treatment, depositing, storage, disposal or placement by
any party other than Subcontractor of hazardous substances on the Property.
3.7 LEGAL STATUS OF PROPERTIES. Owner authorizes Subcontractor to
disclose the identity of the Owner of the Property to any governmental officials
and agrees to indemnify, protect, defend, save and hold Subcontractor and the
other Indemnified Parties harmless of and from any and all Losses that may be
imposed on them or any of them by reason of the failure of Owner to correct any
present or future violation or alleged violation of any and all present or
future laws, ordinances, statutes, or regulations of any public authority or
official thereof, having or claiming to have jurisdiction thereover, of which it
has actual notice. In the event it is alleged or charged that any Improvement or
any equipment on the Property or any act or failure to act by Owner with respect
to the Property or the sale, rental, or other disposition thereof fails to
comply with, or is in violation of, any of the requirements of any
constitutional provision, statute, ordinance, law, or regulation of any
governmental body or any order or ruling of any public authority or official
thereof having or claiming to have jurisdiction thereover, and Subcontractor, in
its sole and absolute discretion, considers that the action or position of
Owner, with respect thereto may result in damage or liability to Subcontractor,
Subcontractor shall have the right to cancel this Agreement at any time by
written notice to Owner of its election so to do, which cancellation shall be
effective upon the service of such notice. Such cancellation shall not release
the indemnities of Owner set forth in this Agreement and shall not terminate any
liability or obligation of Manager or Owner to Subcontractor for any payment,
reimbursement, or other sum of money then due and payable to Subcontractor
hereunder.
ARTICLE IV
EXPENSES
4.1 OWNER'S EXPENSES. Except as otherwise specifically provided, all
costs and expenses incurred hereunder by Subcontractor in fulfilling its duties
to Owner shall be for the account of and on behalf of Owner. Such costs and
expenses shall include the wages and salaries
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and other employee-related expenses of all on-site and off-site employees of
Subcontractor who are engaged in the operation, management, maintenance and
leasing or access control of the Property, including taxes, insurance and
benefits relating to such employees, and legal, travel and other out-of-pocket
expenses that are directly related to the management of the Property, to the
extent set forth in a budget approved by Owner and Manager. Owner shall pay, or
cause to be paid, all costs and expenses for which Owner is responsible under
this Agreement within ten (10) business days following receipt of
Subcontractor's request for payment together with supporting documentation.
4.2 SUBCONTRACTOR'S EXPENSES. Subcontractor shall, out of its own
funds, pay all of its general corporate overhead and administrative expenses.
ARTICLE V
SUBCONTRACTOR'S COMPENSATION
5.1 MANAGEMENT FEES. Commencing on the date hereof, Owner shall pay
Subcontractor property management and leasing fees in an amount equal to three
percent (3.0%) of Gross Revenues (the "Management Fees") on a monthly basis
payable on or before the 15th day of the following month, from the rental income
received from the Property over the term of this Agreement. In the event
Subcontractor assists with planning and coordinating the construction of any
tenant-paid finish-out or improvements, Subcontractor shall be entitled to
receive from any such tenant an amount equal to not greater than five percent
(5.0%) of the cost of such tenant improvements up to $750,000; three percent
(3.0%) of the cost of such improvements which exceed $750,000 and two percent
(2.0%) of the cost of such improvements which exceed $1,000,000.
5.2 LEASING FEES. In addition to the compensation paid to
Subcontractor under Section 5.1 above, Subcontractor Xxxxxx Realty shall be
entitled to receive a separate fee for the Leases of new tenants and renewals of
Leases with existing tenants in an amount not to exceed the fee customarily
charged in arm's length transactions by others rendering similar services in the
same geographic area for similar properties as determined by a survey of brokers
and agents in such area. The compensation to be paid to Subcontractor Xxxxxx
Realty with respect to Leases is set forth on EXHIBIT B attached hereto and made
a part hereof.
5.3 AUDIT ADJUSTMENT. If any audit of the records, books or accounts
relating to the Property discloses an overpayment or underpayment of Management
Fees, Manager or Subcontractor shall promptly pay to the other party the amount
of such overpayment or underpayment, as the case may be. If such audit discloses
an overpayment of Management Fees for any fiscal year of more than five percent
(5.0%) of the correct Management Fees for such fiscal year, Subcontractor shall
bear the cost of such audit.
5.4 LIMITATION ON COMPENSATION. So long as this Agreement remains in
effect, Manager and Owner shall not enter into any amendment to the Master
Agreement that would result in a reduction in the compensation payable to
Manager in respect of the Property, unless either (a) Subcontractor's written
consent to such amendment is obtained, or (b) Manager
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delivers to Subcontractor a written agreement whereby Manager agrees to pay to
Subcontractor any loss of compensation incurred by Subcontractor that results
from such amendment.
ARTICLE VI
INSURANCE AND INDEMNIFICATION
6.1 INSURANCE TO BE CARRIED.
(a) Subcontractor shall obtain and keep in full force and
effect insurance on the Property against such hazards as Owner, Manager
and Subcontractor shall deem appropriate, but in any event insurance
sufficient to comply with the Leases and Ownership Agreements shall be
maintained. All liability policies shall provide sufficient insurance
satisfactory to each of Owner, Manager and Subcontractor, and shall
contain waivers of subrogation for the benefit of Manager and
Subcontractor.
(b) Subcontractor shall obtain and keep in full force and
effect, in accordance with the laws of the state of in which the
Property is located, employer's liability insurance applicable to and
covering all employees of Subcontractor at the Property and all persons
engaged in the performance of any work required hereunder, and
Subcontractor shall furnish Manager and Owner certificates of insurers
naming Manager and Owner as a co-insured and evidencing that such
insurance is in effect.
6.2 INSURANCE EXPENSES. Premiums and other expenses of such
insurance, as well as any applicable payments in respect of deductibles shall be
borne by Owner.
6.3 COOPERATION WITH INSURERS. Subcontractor shall cooperate with
and provide reasonable access to the Property to representatives of insurance
companies and insurance brokers or agents with respect to insurance that is in
effect or for which application has been made. Subcontractor shall use its best
efforts to comply with all requirements of insurers.
6.4 ACCIDENTS AND CLAIMS. Subcontractor shall promptly investigate
and shall report in detail to Owner all accidents, claims for damage relating to
ownership, operation or maintenance of the Property, and any damage or
destruction to the Property and the estimated costs of repair thereof, and shall
prepare for approval by Manager and Owner all reports required by an insurance
company in connection with any such accident, claim, damage, or destruction.
Such reports shall be given to Manager and Owner promptly, and any report not so
given within 10 days after the occurrence of any such accident, claim, damage or
destruction shall be noted in the monthly operating statement delivered to
Manager and Owner pursuant to Section 2.5(b). With the written approval of
Manager, Subcontractor may settle any claim against an insurance company arising
out of any policy and, in connection with such claim, to execute proofs of loss
and adjustments of loss and to collect and receipt for loss proceeds.
6.5 INDEMNIFICATION. Subcontractor shall hold Manager and Owner
harmless from and indemnify and defend Manager and Owner against any and all
claims or liability for any injury or damage to any person or property
whatsoever for which Subcontractor is responsible occurring in, on, or about the
Property when such injury or damage shall be caused by the gross
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negligence or willful misconduct of Subcontractor, its agents, servants, or
employees, except to the extent that Owner or Manager, as the case may be, are
negligent or Owner or Manager recover insurance proceeds with respect to such
matter. Manager and Owner will indemnify and hold Subcontractor harmless against
all liability for injury to persons and damage to property that is caused by the
gross negligence or willful misconduct of Manager or Owner, as the case may be,
except to the extent that such injury or damage results from the negligence or
misconduct of Subcontractor or Subcontractor recovers insurance proceeds with
respect to such matter.
ARTICLE VII
TERM AND TERMINATION
7.1 TERM. This Agreement shall commence on the date first above
written and shall continue until the last day of the eighteenth (18th) full
month after this Agreement, subject to the provisions of Sections 7.2, 7.3, 7.4
and 7.5 below.
7.2 RENEWAL OF TERM. If neither party has sent notice terminating
this Agreement as of the expiration date first written above, then this
Agreement shall be automatically renewed for an additional one (1) year term. If
thereafter neither party sends notice terminating this Agreement, then this
Agreement shall likewise be automatically renewed for a one (1) year term on
each anniversary of the date of this Agreement.
7.3 EVENTS OF TERMINATION. Notwithstanding anything contained herein
to the contrary, this Agreement shall terminate upon (a) the sale of the
Property; (b) termination or expiration of the Master Agreement; (c) termination
of this Agreement as provided in SECTION 7.4 or SECTION 7.5 hereof; or (d)
termination of this Agreement by mutual written agreement of Manager and
Subcontractor.
7.4 TERMINATION BY MANAGER. Manager shall have the right to
terminate this Agreement upon written notice to Subcontractor upon the
occurrence of any of the following events:
(a) Subcontractor fails in any respect to perform a material
obligation under this Agreement and such failure is not cured (i) within
five (5) days after notice of such failure from Owner if the failure
involves the payment of money, or (ii) within thirty (30) days after
notice of such failure from Owner if the failure involves action other
than the payment of money.
(b) Subcontractor files a petition or case seeking relief
under the liquidation provisions of any bankruptcy or other debtor
relief laws of the United States or any state or other competent
jurisdiction.
(c) The occurrence of an event whereby (i) a petition or
case is filed against Subcontractor seeking relief under the bankruptcy,
arrangement, reorganization or other debtor relief laws of the United
States or any state or other competent jurisdiction, or (ii) a court of
competent jurisdiction enters an order, judgment or decree appointing a
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receiver or a trustee for Subcontractor, or for all or any part of the
property of Subcontractor, and such petition, order, judgment or decree
is not discharged within one hundred eighty (180) days after the entry
thereof.
(d) Subcontractor fails to provide to Manager within fifteen
(15) days after request by Manager customary, reasonable and truthful
certifications as Manager may reasonably request to enable Manager or
Owner to meet its financial certification obligations under the
Xxxxxxxx-Xxxxx Act of 2002 as such statute relates to financial
reporting in respect of the Property. Any such certification may be
given by Subcontractor to its actual knowledge without any duty of
investigation.
(e) Subcontractor experiences a "Change of Control." "Change
of Control" shall mean an event or a series of related events wherein
the Subcontractor ceases to be directly or indirectly owned or
controlled by Xxxxxx Realty Group or one or more of its principals.
(f) Xxxxxx-OFT Trust, an Illinois trust, defaults under that
certain Master Lease Agreement of even date herewith executed between
Owner and Xxxxxx-OFP Trust and such default is not cured within any
applicable notice or cure period set forth in such Master Lease
Agreement.
7.5 TERMINATION BY SUBCONTRACTOR. Subcontractor shall have the right
to terminate this Agreement upon written notice to Manager and Owner upon the
occurrence of any of the following events:
(a) Manager or Owner fails in any respect to perform a
material obligation under this Agreement (i) within five (5) days after
notice of such failure from Subcontractor if the failure involves the
payment of money, or (ii) within thirty (30) days after notice of such
failure from Subcontractor if the failure involves action other than the
payment of money.
(b) Manager or Owner files a petition or case seeking relief
under the liquidation provisions of any bankruptcy or other debtor
relief laws of the United States or any state or other competent
jurisdiction.
(c) The occurrence of an event whereby (i) a petition or
case is filed against Manager or Owner seeking relief under the
bankruptcy, arrangement, reorganization or other debtor relief laws of
the United States or any state or other competent jurisdiction, or (ii)
a court of competent jurisdiction enters an order, judgment or decree
appointing, without the consent of Manager or Owner, a receiver or a
trustee for Manager or Owner, as the case may be, or for all or any part
of their respective property, and such petition, order, judgment or
decree is not discharged within one hundred eighty (180) days after the
entry thereof.
(d) In the event that Subcontractor is not entitled to the
full payment of any fee due to Subcontractor under SECTION 5.1 of this
Agreement by reason of the operation of SECTION 5.4 hereof.
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7.6 SUBCONTRACTOR'S OBLIGATIONS UPON TERMINATION. Upon the
termination of this Agreement, Subcontractor shall have the following duties:
(a) Subcontractor shall deliver to Manager or its designee,
all books and records with respect to the Property.
(b) Subcontractor shall transfer and assign to Manager, or
its designee, all service contracts and personal property relating to or
used in the operation and maintenance of the Property, except personal
property paid for and owned by Subcontractor. Subcontractor shall also,
for a period of sixty (60) days immediately following the date of such
termination, make itself available to consult with and advise Manager,
or its designee, regarding the operation, maintenance and leasing of the
Property.
(c) Subcontractor shall render to Manager an accounting of
all funds of Owner in its possession and shall deliver to Manager a
statement of all Management Fees claimed to be due to Subcontractor and
shall cause funds of Owner held by Subcontractor relating to the
Property to be paid to Manager or its designee.
7.7 MANAGER'S OBLIGATIONS UPON TERMINATION. Manager shall pay or
reimburse Subcontractor for any sums of money due it under this Agreement for
services and expenses prior to termination of this Agreement. All provisions of
this Agreement that require Owner or Manager to have insured, or to protect,
defend, save, hold and indemnify or to reimburse Subcontractor shall survive any
expiration or termination of this Agreement and, if Subcontractor is or becomes
involved in any claim, proceeding or litigation by reason of having been
Subcontractor hereunder, such provisions shall apply as if this Agreement were
still in effect.
ARTICLE VIII
MISCELLANEOUS
8.1 SUBJECT TO MASTER AGREEMENT. This Agreement is subject and
subordinate in all respects to the Master Agreement. Subcontractor has received
a copy of the Master Agreement and is familiar with the terms thereof.
Subcontractor shall perform its duties under this Agreement in accordance with
the Master Agreement and will not, by its act or omission to act, cause a
default under the Master Agreement.
8.2 NOTICES. All notices, approvals, consents and other
communications hereunder shall be in writing, and, except when receipt is
required to start the running of a period of time, shall be deemed given when
delivered in person or on the fifth day after its mailing by either party by
registered or certified United States mail, postage prepaid and return receipt
requested, to the other party, at the addresses set forth after their respect
name below or at such different addresses as either party shall have theretofore
advised the other party in writing in accordance with this Section 8.1.
K-14
Manager: HPT MANAGEMENT SERVICES LP
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Chief Legal Officer
Owner:
c/o Behringer Harvard REIT I, Inc.
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Chief Legal Officer
Subcontractor: Xxxxxx Management Corporation
1700 One Financial Plaza
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
With a copy to: Zeller Management Corporation
c/oZeller Realty Group
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxxx
8.3 GOVERNING LAW; VENUE. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas, and any action
brought to enforce the agreements made hereunder or any action which arises out
of the relationship created hereunder shall be brought exclusively in Dallas
County, Texas.
8.4 ASSIGNMENT. Subcontractor may not assign or delegate its duties
and rights under this Agreement without the prior written consent of Manager and
Owner. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns.
8.5 NO WAIVER. The failure of Manager, Subcontractor or Owner to
seek redress for violation or to insist upon the strict performance of any
covenant or condition of this Agreement shall not constitute a waiver thereof
for the future.
8.6 AMENDMENTS. This Agreement may be amended only by an instrument
in writing signed by the party against whom enforcement of the amendment is
sought.
8.7 HEADINGS. The headings of the various subdivisions of this
Agreement are for reference only and shall not define or limit any of the terms
or provisions hereof.
8.8 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement to produce or account for more than
one such counterpart.
K-15
8.9 ENTIRE AGREEMENT. This Agreement contains the entire
understanding and all agreements between Manager and Subcontractor respecting
the management of the Property. There are no representations, agreements,
arrangements or understandings, oral or written, between Manager and
Subcontractor relating to the management of the Property that are not fully
expressed herein.
8.11 DISPUTES. If there shall be a dispute between or among Manager,
Subcontractor or Owner relating to this Agreement resulting in litigation, the
prevailing party in such litigation shall be entitled to recover from the other
party to such litigation such amount as the court shall fix as reasonable
attorneys' fees.
8.12 ACTIVITIES OF SUBCONTRACTOR. Except as provided in this Section
8.12 the obligations of Subcontractor pursuant to the terms and provisions of
this Agreement shall not be construed to preclude Subcontractor from engaging in
other activities or business ventures, whether or not such other activities or
ventures are in competition with the business of Owner. Notwithstanding the
limitation contained in the previous sentence, Subcontractor agrees not to
accept another management/leasing engagement in the Minneapolis CBD during the
term of this Agreement except for Xxxxxxxx Xxxxxx Tower located at 000 Xxxxx
Xxxxx Xxxxxx. If Subcontractor breaches this Section 8.12, Manager shall have
the right to terminate this Agreement in the manner specified in Section 7.4(a)
of this Agreement.
8.13 INDEPENDENT CONTRACTOR. Subcontractor shall not be construed as
a joint venturer or partner of either Manager or Owner pursuant to this
Agreement, and none of such parties shall have the power to bind or obligate the
other party except as set forth herein. It is the intent of the parties that:
(a) the status of Manager to Owner under the Master Agreement is that of an
independent contractor; (b) the status of Subcontractor to Manager under this
Agreement is that of an independent contractor; and (c) the status of
Subcontractor to Owner is that of an independent subcontractor.
8.14 NO THIRD-PARTY RIGHTS. Nothing expressed or referred to in this
Agreement will be construed to give any Person other than the parties to this
Agreement any legal or equitable right, remedy or claim under or with respect to
this Agreement or any provision of this Agreement, except such rights as shall
inure to a successor or permitted assignee pursuant to Section 8.4.
8.15 DOCUMENTS REQUIRED BY LENDER. In the event that a mortgagee of
the Property (a "Mortgagee") requests that Subcontractor execute a document in
connection with a loan to Owner, Subcontractor will respond to such request
promptly and will not unreasonably withhold its consent to such document.
Without limiting the generality of the preceding sentence, Subcontractor agrees
that it will execute and deliver the following documents within five (5) days
after request therefor: (a) an agreement that a Mortgagee may terminate this
Agreement if a default occurs in respect of the loan secured by the Property;
(b) an estoppel certificate certifying that this Agreement is in full force and
effect and containing such other certifications as may be reasonably requested;
(c) an agreement subordinating this Agreement to any mortgage or deed or
K-16
trust held by a Mortgagee; and (d) a waiver by Subcontractor of any right to
assert a lien against the Property.
8.16 COMPLIANCE AMENDMENTS. Notwithstanding anything contained herein
to the contrary, in the event that legal counsel for Owner reasonably determines
that an amendment to this Agreement is necessary or advisable in order for this
Agreement to comply with applicable securities laws, the offering documents
pertaining to Behringer Harvard REIT I, Inc., a Maryland corporation, or the
Statement of Policy Regarding Real Estate Programs of the North American
Securities Administrators Association, Inc., effective September 29, 1993, as
amended, then Manager and Subcontractor shall, within ten (10) days after
request from Owner, execute such an amendment; provided, however, that no such
amendment may decrease the compensation to which Subcontractor is entitled
hereunder or materially increase Subcontractor's liabilities or obligations
under this Agreement without Subcontractor's written consent.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
K-17
IN WITNESS WHEREOF, the parties have executed this Property Management
and Leasing Subcontract as of the date first above written.
MANAGER:
HPT MANAGEMENT SERVICES LP
By:_________________________________
Xxxxxx X. Xxxxxxx, III
Executive Vice President
SUBCONTRACTOR:
XXXXXX MANAGEMENT CORPORATION
By:_________________________________
Name:____________________________
Title:___________________________
XXXXXX REALTY CORPORATION
By:_________________________________
Name:____________________________
Title:___________________________
K-18
CONSENT OF OWNER
By its execution below, Owner consents to the terms of the foregoing
Agreement and agrees to be bound by the representations, warranties and
covenants of Owner contained in such Agreement.
____________________________________
By:_________________________________
Name:____________________________
Title:___________________________
K-19
EXHIBIT A
Legal Description
PARCEL l:
Lot 3; that part of Xxxx 0 xxx 0, Xxxxx 00, Xxxx of Minneapolis, lying
Southwesterly of the Southwesterly line of Xxx 0, Xxxxxxx'x Xxxxxxxxxxx Xxxxxx
00, Xxxxxxxx Xxxxxx, Xxxxxxxxx. That part of Lots 6 and 7, and that part of the
Southeasterly One-half of Xxx 0, Xxxxx 00, Xxxx of Minneapolis, lying
Northeasterly of the Northeasterly line of Xxx 0, Xxxxxxx'x Xxxxxxxxxxx Xxxxxx
00, Xxxxxxxx Xxxxxx, Xxxxxxxxx, the Northwesterly line of said part of Lot 8 has
been marked by Judicial Landmarks set pursuant to Torrens Case No. 13943;
The Southeasterly 15 feet of Lots 2 and 3; Lots 4, 5, 6, 7 and 8, all in
Auditor's Subdivision Number 78, Hennepin County, Minnesota. The Northeasterly
and Northwesterly lines of said part of Lots 2 and 3 have been marked by
Judicial Landmarks set pursuant to Torrens Case No. 13943.
Lots 4 and 5, Block 88, Xxxxx & Jackin's Addition to Minneapolis, according to
the recorded plat thereof, Hennepin County, Minnesota.
PARCEL 2:
Non-exclusive appurtenant easement for access granted by and defined in Skyway
Agreement (2nd Avenue Skyway) dated January 11, 1979, filed January 19, 1982, as
Document Number 1455465, Office of Registrar of Titles, and filed January 20,
1982, as Document Number 4696711, Office of County Recorder, Hennepin County,
Minnesota.
PARCEL 3:
Non-exclusive appurtenant easements as set forth in 517 Marquette Garage/One
Financial Plaza Easement Agreement dated April 29, 1999, filed May 18, 1999, as
Document Number 3159058, Office of Registrar of Titles, and filed June 24, 1999,
as Document Number 7134651, Office of County Recorder; as amended by Amendment
to 517 Marquette Garage/One Financial Plaza Easement Agreement dated August 27,
1999, filed August 31, 1999, as Document Number 3199129, Office of Registrar of
Titles and filed August 31, 1999, as Document Number 7174302, Office of County
Recorder, Hennepin County, Minnesota.
K-20
EXHIBIT B
Leasing Commissions
Owner agrees to pay Subcontractor leasing commissions as follows:
1. RATES
(a) For all new leases and renewals of existing leases with a term
of three (3) or more years, where Subcontractor was the sole
procuring cause, the commission rate will be Three Dollars
($3.00) per rentable square foot. For all new leases with a term
of less than three (3) years, where the Subcontractor was the
sole procuring cause, the Three Dollar ($3.00) per rentable
square foot commission shall be prorated (i.e. on a lease with a
term of two (2) years the commission will equal Two Dollars
($2.00) per rentable square foot; on a lease with a term of one
and one-half (1-1/2) years, the commission will be equal to One
and 50/100 Dollars ($1.50) per rentable square foot, etc.) The
above amounts shall be defined as a "Full Commission". In the
event that an outside broker was the procuring cause, the
commission rate to Agent shall be one and one-half times a Full
Commission as calculated above (i.e. on a lease with a term of
three (3) years, the commission rate will be Four and 50/100
Dollars ($4.50) per rentable square foot; on a lease with a term
of one and one-half (1-1/2) years, the commission rate will be
Two and 25/100 Dollars ($2.25) per rentable square foot, etc.)
and Subcontractor shall pay a commission to the outside
cooperating broker. Should Owner agree to pay a higher Full
Commission to an outside broker for a particular transaction,
Owner shall pay Subcontractor 1.5 times the agreed upon Full
Commission rate. Each such increased commission shall be
approved by Owner on a case by case basis.
(b) If a lease for which a commission is payable hereunder contains
a provision that requires Tenant to take additional space at a
fixed later date, the commission rate shall be the same as that
specified in 1(a) above and shall be payable at the time of such
tenant expansion.
2. PAYMENT OF COMMISSION. For all new leases, commissions shall be payable
one-half upon execution and one-half when the tenant takes occupancy.
For renewals and/or expansions of existing tenants, commissions shall be
payable in full upon execution of a lease or lease amendment.
3. RETURN OF COMMISSION. Subcontractor agrees to return to Owner all or any
portion of the commission paid to Subcontractor if and to the extent
that the tenant either does not take occupancy under the terms of the
lease, in which event Subcontractor shall return all amounts which may
have been previously paid by Owner to Subcontractor, or, if tenant takes
occupancy of less than all of the leased premises described in the
lease, Subcontractor shall return a portion of the commission which may
have been previously paid, which portion shall be the fractional amount
of the commission paid related to the fractional portion of the leased
premises that are not occupied by tenant.
K-21
4. NO ADDITIONAL PAYMENTS. The compensation to Subcontractor provided
herein includes all costs, taxes, fees, and charges, and no additional
payments shall be made by Owner to Subcontractor in connection herewith
except as provided in this Exhibit B.
5. EXPENSES TO BE BORNE BY OWNER. So long as this Agreement remains in
effect, Owner shall provide Subcontractor with an on-site leasing office
in such location as Owner and Subcontractor shall agree and shall bear
the cost of operating and real estate tax expense for the leasing office
and other expenses except as specifically excluded in Item 6 below.
Owner shall bear the cost of third-party professional consultants such
as attorneys, accountants, and space planners utilized by Subcontractor
as designated by Owner.
6. EXPENSES TO BE BORNE BY SUBCONTRACTOR. Subcontractor shall bear the cost
of leasing staff; leasing office furniture and computer equipment;
off-site telephone; off-site office supplies.
K-22
EXHIBIT L
DUE DILIGENCE MATERIALS
A COPIES OF LEASES AND ABSTRACTS
B COPIES OF EASEMENTS, ENCROACHMENT PERMITS, AREAWAY PERMITS, ETC.
C COPIES OF SKYWAY AGREEMENTS
D EXISTING SURVEY
E 2004 PAYABLE 2005 PROPERTY TAX BILLS/STATEMENT
F YEAR-END INCOME AND EXPENSE STATEMENTS FOR DECEMBER 2002, 2003, 2004
G BUILDING SERVICE CONTRACTS WITH CONTRACT SCHEDULE
H BUILDING FLOOR PLANS
I ENVIRONMENTAL
1 Xxxxx Intertec Phase I Environmental
Site Assessment
2 Xxxxx Intertec Phase I Environmental
Site Assessment - Update
J ENVIRONMENTAL - ACM REFER TO WORKSTATION FOR REPORTS
1 XXXXX INTERTEC OPERATIONS AND MAINTENANCE PLAN
FOR ASBESTOS-CONTAINING MATERIALS - UPDATE
2 Xxxxx Intertec Summary of Asbestos-Related Services Floors
1,2,3,4,5,6,7,8,12,13,14,16,18,21,22,24,26
3 Xxxxx Intertec On-Site ACM Monitoring Floor 26
4 Xxxxx Intertec On-Site ACM Monitoring Floor 26
5 Rem-Con Post Project Submittals Abatement Floors 26 and Plaza
Entrance
6 Xxxxx Intertec On-Site ACM Monitoring Floor 24
7 EssTek Final Report
Abatement Floor 23 and 17th Floor Restrooms
8 Xxxxx Intertec On-Site ACM Monitoring Floor 22
9 Xxxxx Intertec On-Site ACM Monitoring Floor 21
10 Xxxxx Intertec On-Site ACM Monitoring
21st and 18th Floor Women's Restroom
11 EssTek Final Report - Abatement Floor 20
L-1
12 EssTek Final Report - Abatement 17th Floor
13 Xxxxx Intertec On-Site ACM Monitoring Floor 16
14 Rem-Con, Inc. Post Project Submittals - Abatement Floor 16
15 Xxxxx Intertec On-Site ACM Monitoring Suite 1500
16 Rem-Con Post Project Submittals Suite 1500
17 Xxxxx Intertec On-Site ACM Monitoring Floor 14
18 Xxxxx Intertec On-Site ACM Monitoring Floor 13
19 Xxxxx Intertec On-Site ACM Monitoring Floor 12
20 Xxxxx Intertec On-Site ACM Monitoring 11th Floor WRR
21 Xxxxx Intertec On-Site ACM Monitoring Suite 815
22 Xxxxx Intertec On-Site ACM Monitoring 0xx Xxxxx Xxxxxxx
23 Xxxxx Intertec On-Site ACM Monitoring Floor 7
24 Xxxxx Intertec On-Site ACM Monitoring 6th Floor Fan Unit
25 Xxxxx Intertec On-Site ACM Monitoring Floor 5
26 Xxxxx Intertec On-Site ACM Monitoring Floor 4
27 Xxxxx Intertec On-Site ACM Monitoring Floor 3
28 Xxxxx Intertec On-Site ACM Monitoring Floor 2
29 Xxxxx Intertec On-Site ACM Monitoring 2nd Floor Skyway
30 Xxxxx Intertec On-Site ACM Monitoring Floor 1
31 Xxxxx Intertec On-Site ACM Monitoring 1st Floor Plaza Entry
32 Xxxxx Intertec Project Manual 1992/1993 Program Floors 1,2,7,
8,10 and 26
33 Xxxxx Intertec On-Site Various ACM Monitoring Floors 1 and 2
34 Xxxxx Intertec On-Site Various ACM Monitoring Floors 2,3,4,5,6
and 27
35 Rem-Con Post Project Submittals - Abatement Floors 1,2,6,7,8,26
36 Rem-Con Post Project Submittals - Abatement Phase II 2nd
Floor - Skyway
37 Xxxxx Intertec On-Site ACM Monitoring - Entombing Air Shafts
Floors 3,4,and 5
38 Xxxxx Intertec On-Site ACM Monitoring Subbasement Boiler Room
39 Xxxxx Intertec On-Site ACM Monitoring Subbasement and Suite 2110
40 Xxxxx Intertec PLM Analysis of Bulk Samples Floor 1
41 Xxxxx Intertec Air Sample Results From 2nd Floor Northwest
Corner
42 Xxxxx Intertec Air Sample Results from Floors 3 and 4
43 Xxxxx Intertec Air Sample Results from Floor 5
44 Xxxxx Intertec Air Sample Results from Floor 5
45 Xxxxx Intertec On-Site ACM Monitoring 6th Floor Mechanical Room
46 Xxxxx Intertec Air Sample Results 12th Floor Men's RR Pipe Chase
47 Xxxxx Intertec On-Site ACM Monitoring 25th Floor Plumbing Above
Ceiling
48 Xxxxx Intertec On-Site ACM Monitoring 3rd Floor Beam Scrape
49 Xxxxx Intertec Elevator Shaft Observations
50 Xxxxx Intertec Air Sample Results From Various Locations
51 Xxxxx Intertec TEM Analysis of Air Samples Floor 22
52 Xxxxx Intertec TEM Analysis of Air Samples Floor 22
53 Xxxxx Intertec TEM Analysis of Air Samples Floor 22
54 Xxxxx Intertec Analytical Results Two Dust Wipe Samples Suite
2100
55 Xxxxx Intertec TEM Analysis of Air Samples Floor 21 - Water Leak
56 Xxxxx Intertec 1995 Quarterly Ambient Air Monitoring - 1st
Quarter
57 Xxxxx Intertec 1995 Quarterly Ambient Air Monitoring - 3rd
Quarter
58 Xxxxx Intertec 1995 Quarterly Ambient Air Monitoring - 4th
Quarter
59 Xxxxx Intertec 1994 Quarterly Ambient Air Monitoring - 1st
Quarter
L-2
60 Xxxxx Intertec 1994 Quarterly Ambient Air Monitoring - 3rd
Quarter
61 Xxxxx Intertec 1994 Quarterly Ambient Air Monitoring - 4th
Quarter
62 Xxxxx Intertec 1993 Quarterly Ambient Air Monitoring - 1st
Quarter
63 Xxxxx Intertec 1993 Quarterly Ambient Air Monitoring - 2nd
Quarter
64 Xxxxx Intertec 1993 Quarterly Ambient Air Monitoring - 3rd
Quarter
65 Xxxxx Intertec 1993 Quarterly Ambient Air Monitoring - 4th
Quarter
66 Rem-Con Post Project Submittals 12/1993 through 5/1994
67 Rem-Con Post Project Submittals Bulletin #25
K GENERAL
1 Property Report - GTG Consultants Inc.
L STRUCTURAL
1 Outrigger Repair/Repainting Project Contract - Xxxxxxx &
Xxxxxxxxx
2 2004 Loading Dock/Garage Entry Ramp Recoating Project Contract
3 2004 Ramp Recoating Warranty - Lymtal Int'l Inc.
4 2003 Parking Garage Repairs
5 2001 Loading Dock Ramp Structural Repairs Phase I - Western
Waterproofing
6 2002 Loading Dock Ramp Structural Repairs Phase II - Western
Waterproofing
7 Parking Garage P-2 Level Recoating of Surface Report - Xxxxxx
Parking Consult.
8 Parking Garage P-2 Deck Coating Replacement Contract - Western
Waterproofing
9 Loading Dock Beam, Deck & Trench Drain Contract
10 Plaza Deck Waterproofing Assessment - AMBE LTD.
11 Parking Garage Operators Permit
12 Structural Review for Permit - Xxxxxx Parking Consultants
M EXTERIOR ENVELOPE
1 Contract for Exterior Caulking - Melrose Enterprises Ltd.
2 Inspection Report - Xxxxxxxx & Assoc.
3 Inspection Report - Xxxxxxxx & Assoc.
4 Final Inspection Report - Xxxxxxxx & Assoc.
5 Dow Corning 795 Material Warranty - 20 Years
6 Contract for Warranty Repair - X.X. Xxxxxxxx
7 Application and Certification of Payment - X.X. Xxxxxxxx
N ADA UPGRADES
1 Letter From Xxxxxx Design
O COSMETIC UPGRADES
1 Corridor Renovation: P1, B, 12, 14, 15, 17, 20, 21, 22, 23
Floorcovering Contract - Mars Carpet
Floorcovering Contract - Mars Carpet
Painting P.O. - Decor'tec
L-3
Painting P.O. - Decor'tec
Wood Panel P.O. - Focal Point Fixtures
Wood Panel P.O. - Focal Point Fixtures
Drinking Fountain Removal P.O. - LBP
Drinking Fountain Removal P.O. - LBP
Drinking Fountain Removal P.O. - Xxxxxx'x Electric
Drinking Fountain Removal P.O. - Xxxxxx'x Electric
Wood Base and Panel Install P.O. - Mission Construction
P PLUMBING
1 2005 Domestic Hot Water Supply Replacement
Work Specification Project Manual Contract - HGA
Work Specification Project Manual Contract - HGA
Work Specification Project Manual - HGA
Pipe Analysis - Crane Engineers
Pipe Analysis - Crane Engineers
Water Sampling Report - Xxxxxx Companies
Contract for Plumbing Work - LBP
Electric Contract/P.O. - Xxxxxx'x Electric
Tank Recoating P.O. - TMI Coatings Inc.
List of Building Water Heaters
Q ELECTRICAL
1 Thermal Scan and Review - Infrared Consulting Services
R LIFE SAFETY
1 Fire Pump Controller Proposal - Xxxxxx'x Electric
2 Fire Pump Controller Invoice - Xxxxxx'x Electric
3 System Testing Report - Low Voltage Contractors
System Testing Report - Low Voltage Contractors
4 Emergency Generator Repair P.O. - Interstate Diesel
5 Annual Fire Pump Test - Shield Fire Protection
6 Annual Dry System Test/Inspection - Shield Fire Protection
7 Stairwell Pressurization Report - Wentz Associates Inc.
8 City of Minneapolis Final Life Safety Inspection Report
S ELEVATOR SYSTEM MODIFICATION / CAB REMODEL
1 Specification for Modernization - Elevator Consulting Services
Cab Weights Review for Interior Renovation - LBA
Interior Cab Remodel - Xxxx Architects
L-4
Working Drawings - XxXxx
Full Modernization Contract - Xxxx
T MECHANICAL
1 EMS Upgrades to Sage Max P.O. - Xxxx Automation
2 Well Sealing Contract - Xxxxxxxxx Casewell Inc.
3 Final Payment Application - Xxxxxxxxx Xxxxxxxx Inc.
4 Well Sealing Certification
5 Chiller Refrigerant Disposal P.O. - Xxxxxx Building Services
U SECURITY
1 Proposal Upgrade to Latest Version of Ccure 800 - LVC
2 P.O. for Upgrade to Latest Version of Ccure 800 - LVC
3 Proposal Upgrade to CCTV System - VTI
4 P.O. for Upgrade to CCTV System - VTI
5 Camera/Intercom Location Listing
V GENERAL COMMUNICATION
1 Time Warner Fiber
2 Cypress Communication
3 Time Warner Cable (fka Paragon Cable)
W ROOFS
1 Tremcare Platinum Maintenance Agreement
2 Tremco Proposal for Application of Aluminum Top Coat
3 Tremco P.O. for Application of Aluminum Top Coat
4 Roof Warranty - North Side Low Roof
X LOBBY RENOVATION
1 Lobby Renovation Original Contract - Xxxxx Xxxxxxxx
2 Lobby Renovation Application #10 - Xxxxx Xxxxxxxx
3 (Refer to Banker Box for Additional Files)
Y DELOITTE & TOUCHE TENANT IMPROVEMENTS - FLOORS 3, 4 and 5
1 (Refer to Banker Box for Contents)
L-5
SCHEDULE 1
EXCLUDED PERSONAL PROPERTY
EQUIPMENT & FURNISHINGS LOCATION
----------------------------------------------------------------------------------- --------------------------------
(1) Conference Room Table (Xxxxxx Xxxxxx & Associates) Mgmt. Conference Room
----------------------------------------------------------------------------------- --------------------------------
(1) Credenza Mgmt. Conference Room
----------------------------------------------------------------------------------- --------------------------------
A & M Business Interiors 19410851 2L-BS-4248168-29-CE-EI-SPC CHY
----------------------------------------------------------------------------------- --------------------------------
Woodscapes, Inc. Natural Cherry Edge, Light Cherry Top and Case
----------------------------------------------------------------------------------- --------------------------------
(12) High Back Leather Chairs Mgmt. Conference Room
----------------------------------------------------------------------------------- --------------------------------
----------------------------------------------------------------------------------- --------------------------------
4 Drawer Hutch/Desk/Credenza-Wood SVP Property Mgmt
----------------------------------------------------------------------------------- --------------------------------
(5) Material Covered Guest Chairs SVP Property Mgmt
----------------------------------------------------------------------------------- --------------------------------
3 Shelf Wood Bookcase SVP Property Mgmt
----------------------------------------------------------------------------------- --------------------------------
(1) 2 Drawer Lateral File Cabinet SVP Property Mgmt
----------------------------------------------------------------------------------- --------------------------------
IBM T42 Laptop SVP Property Mgmt
----------------------------------------------------------------------------------- --------------------------------
HP Laser Jet 4L SVP Property Mgmt
----------------------------------------------------------------------------------- --------------------------------
(1) High Back Black Leather Executive Chair SVP Property Mgmt
----------------------------------------------------------------------------------- --------------------------------
(1) Laminate Top Rectangular Work Table SVP Property Mgmt
----------------------------------------------------------------------------------- --------------------------------
(1) 5 Drawer Lateral File Cabinet SVP Property Mgmt
----------------------------------------------------------------------------------- --------------------------------
----------------------------------------------------------------------------------- --------------------------------
5 Drawer Wood Desk Construction Manager Office
----------------------------------------------------------------------------------- --------------------------------
(4) Material Covered Guest Chairs Construction Manager Office
----------------------------------------------------------------------------------- --------------------------------
Wood Work Station Table Construction Manager Office
----------------------------------------------------------------------------------- --------------------------------
(1) High Back Black Executive Chair Construction Manager Office
----------------------------------------------------------------------------------- --------------------------------
HP Deskjet 3650 Printer Construction Manager Office
----------------------------------------------------------------------------------- --------------------------------
5 Drawer Wood Credenza Construction Manager Office
----------------------------------------------------------------------------------- --------------------------------
(4) 5 Drawer Plan File Cabinets- Metal Construction Manager Office
----------------------------------------------------------------------------------- --------------------------------
Dell Inspiron 8500 Laptop Construction Manager Office
----------------------------------------------------------------------------------- --------------------------------
4 Drawer Lateral File Cabinet Construction Manager Office
----------------------------------------------------------------------------------- --------------------------------
(2) 2 Drawer Metal File Cabinet Construction Manager Office
----------------------------------------------------------------------------------- --------------------------------
Schedule 1 Page 1
----------------------------------------------------------------------------------- --------------------------------
(1) 6-Drawer Wood Desk Leasing Assistant
----------------------------------------------------------------------------------- --------------------------------
(1) High Back Leather Chair Leasing Assistant
----------------------------------------------------------------------------------- --------------------------------
Dell PC with keyboard and Flat Panel Monitor Leasing Assistant
----------------------------------------------------------------------------------- --------------------------------
2 Shelf Wood Bookcase Leasing Assistant
----------------------------------------------------------------------------------- --------------------------------
(1) 4 Drawer Lateral File Cabinet Leasing Assistant
----------------------------------------------------------------------------------- --------------------------------
4 Drawer Wood Credenza Leasing Assistant
----------------------------------------------------------------------------------- --------------------------------
HP Laserjet 4P Leasing Assistant
----------------------------------------------------------------------------------- --------------------------------
(2) Cloth Covered Guest Chairs Leasing Assistant
----------------------------------------------------------------------------------- --------------------------------
(1) 2 Drawer File Cabinet Leasing Assistant
----------------------------------------------------------------------------------- --------------------------------
----------------------------------------------------------------------------------- --------------------------------
(1) 4 Drawer Lateral File Cabinet Leasing/VP
----------------------------------------------------------------------------------- --------------------------------
(2) Leather Guest Chairs Leasing/VP
----------------------------------------------------------------------------------- --------------------------------
(1) Mid Back Black Executive Chair Leasing/VP
----------------------------------------------------------------------------------- --------------------------------
(1) Executive Desk Unit with Hutch Cradenza/Wood Leasing/VP
----------------------------------------------------------------------------------- --------------------------------
Dell PC with keyboard and Flat Panel Monitor Leasing/VP
----------------------------------------------------------------------------------- --------------------------------
(1) 2 Shelf Wooden Shelves Leasing/VP
----------------------------------------------------------------------------------- --------------------------------
(1) 2 Drawer Lateral File Cabinet Leasing/VP
----------------------------------------------------------------------------------- --------------------------------
SCHEDULE 1 - CONTINUED
----------------------------------------------------------------------------------- --------------------------------
Custom Executive Desk with Return and Hutch Senior Leasing Associate
----------------------------------------------------------------------------------- --------------------------------
Custom Executive 4 Drawer Credenza Senior Leasing Associate
----------------------------------------------------------------------------------- --------------------------------
(2) Custom Covered Guest Chairs Senior Leasing Associate
----------------------------------------------------------------------------------- --------------------------------
(1) High Back Black Leather Executive Chair Senior Leasing Associate
----------------------------------------------------------------------------------- --------------------------------
Dell Laptop Senior Leasing Associate
----------------------------------------------------------------------------------- --------------------------------
Toshiba Laptop Senior Leasing Associate
----------------------------------------------------------------------------------- --------------------------------
(2) 2 Shelf Wood Bookcase Senior Leasing Associate
----------------------------------------------------------------------------------- --------------------------------
----------------------------------------------------------------------------------- --------------------------------
Canon-Laser Class 7000 Plain Paper Facsimile Copy Room/Mgmt Office
----------------------------------------------------------------------------------- --------------------------------
Ibico, ibimatic binding machine Copy Room/Mgmt Office
----------------------------------------------------------------------------------- --------------------------------
----------------------------------------------------------------------------------- --------------------------------
(4) 4 Drawer Lateral File Cabinets Storage/Mgmt Office
----------------------------------------------------------------------------------- --------------------------------
----------------------------------------------------------------------------------- --------------------------------
(1) Wood Work Table Storage/Concourse Level
----------------------------------------------------------------------------------- --------------------------------
(1) Custom Painting Storage/Concourse Level
----------------------------------------------------------------------------------- --------------------------------
(2) 4 Drawer Lateral File Cabinets Storage/Concourse Level
----------------------------------------------------------------------------------- --------------------------------
(2) 5 Drawer Lateral File Cabinets Storage/Concourse Level
----------------------------------------------------------------------------------- --------------------------------
----------------------------------------------------------------------------------- --------------------------------
(1) Highback leather chair Leasing Assistant
----------------------------------------------------------------------------------- --------------------------------
(3) 3 Drawer Lateral File Cabinets Leasing Assistant
----------------------------------------------------------------------------------- --------------------------------
(2) 2 Drawer Lateral File Cabinets Leasing Assistant
----------------------------------------------------------------------------------- --------------------------------
(2) 3 Drawer Regular File Cabinets Leasing Assistant
----------------------------------------------------------------------------------- --------------------------------
(2) Cloth Covered Guest Chairs Leasing Assistant
----------------------------------------------------------------------------------- --------------------------------
Custom Desktop and Return Leasing Assistant
----------------------------------------------------------------------------------- --------------------------------
Dell PC with keyboard and Flat Panel Monitor Leasing Assistant
----------------------------------------------------------------------------------- --------------------------------
Schedule 1 Page 2
----------------------------------------------------------------------------------- --------------------------------
(1) Wireless Headset Leasing Assistant
----------------------------------------------------------------------------------- --------------------------------
----------------------------------------------------------------------------------- --------------------------------
5 Drawer Office Desk Construction Assistant
----------------------------------------------------------------------------------- --------------------------------
5 Drawer Office Credenza Construction Assistant
----------------------------------------------------------------------------------- --------------------------------
(1) 2 Drawer Lateral File Cabinet Construction Assistant
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Dell PC with keyboard and Monitor Construction Assistant
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(2) Cloth Covered Guest Chairs Construction Assistant
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(1) Highback Leather Chair Construction Assistant
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Dell PC with Keyboard and Monitor Concierge Office
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Canon i550 Color Printer Concierge Office
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3 Shelf Wood Bookcase Concierge Office
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Schedule 1 Page 3
SCHEDULE 2
DISCLOSURE ITEMS
Deloitte & Touche
(a) In accordance with the terms and conditions of its Lease, Deloitte &
Touche ("D & T") has exercised its right to conduct an audit of
operating expenses for the 2002 and 2003 calendar years (the "Operating
Expense Audit"). Xxxxxx Management Corporation ("ZMC"), as Managing
Agent for Seller, has received documentation from D & T advising of
certain charges that D & T considers to not be allowable as operating
expenses under the Lease (the "Challenged Items"). ZMC has reviewed and
responded to D & T's letter and agrees to one adjustment but otherwise
has advised D & T that it has been properly charged for all remaining
Challenged Items under the Lease. As of the date of this disclosure, ZMC
has not received a response from D & T.
(b) Seller shall use commercially reasonable efforts to resolve the dispute
with D & T as soon as practicable and shall be responsible for the
payment of any refund or settlement amount becoming payable to D & T as
a result of the Operating Expense Audit. Seller shall keep Purchaser
informed of Seller's progress in resolving D & T's claims and shall
consult with Purchaser on any proposed resolution of such claims. Upon
request of Purchaser, Seller will provide Purchaser with copies of
correspondence in Seller's possession pertaining to the Operating
Expense Audit and other documents in Seller's possession relating to
such audit.
(c) Seller shall bear all liability for, and hereby agrees to pay, protect,
defend (at trial and appellate levels) and save Purchaser and its
successors, assigns, agents, employees, contractors, partners and
affiliates (collectively, the "Indemnified Parties") harmless from and
against, and hereby indemnifies the Indemnified Parties from and against
any and all damages, losses, liabilities, obligations, settlement
payments, claims, litigation, costs, disbursements and expenses of any
kind or of any nature whatsoever (including, without limitation,
reasonable attorneys', consultants' and experts' fees and disbursements)
(collectively, "Costs") which may at any time be imposed upon, incurred
by or asserted or awarded against any of the Indemnified Parties arising
directly or indirectly from or out of the Operating Expense Audit with
respect to any period of time prior to the Closing Date.
(d) In the event that Seller shall fail, within ten (10) days after written
demand, to either discharge or undertake to defend any of the
Indemnified Parties against any claim, loss or liability for which such
Indemnified Party is indemnified hereunder, such Indemnified Party may,
at its sole option and election, defend or settle such claim, loss or
liability. The liability of Seller to such Indemnified Party hereunder
shall be conclusively established by such settlement, provided such
settlement is made in good faith. In such
Schedule 2 Page 1
event, such settlement consideration, together with costs and expenses
related thereto, shall be included in Costs and Seller shall be liable
for same. All Costs shall be immediately reimbursable to such
Indemnified Party when and as incurred and, in the event of any
litigation, claim or other proceedings without any requirement of
waiting for the ultimate outcome of such litigation, claim or other
proceedings.
(e) The indemnities and other obligations of Seller in this Schedule 2 shall
survive Closing until the Operating Expense Audit has been fully
resolved.
(f) Notwithstanding the provisions of Section 1.2(b)(1) and Section 2.2 of
the Agreement, if Purchaser elects to terminate the Agreement on or
before the last day of the Contingency Period and certifies to Seller
that it would have proceeded with purchasing the Property but for the
existence of the Operating Expense Audit, then the Deposit (except for
one-half of the Initial Portion) shall be refunded to Buyer.
Schedule 2 Page 2
SCHEDULE 3
APPROVED LEASE TRANSACTIONS
NONE
SCHEDULE 4
PERMITTED TITLE EXCEPTIONS
1. Agreement dated May 1, 1968, filed June 5, 1986, as Document Number
1729064, Office of Registrar of Titles, and filed November 2, 1984, as
Document Number 4939997, Office of County Recorder; as supplemented and
amended by that certain Declaration dated October 31, 1984, filed
November 2, 1984, as Document Number 1609908, Office of Registrar of
Titles, and the terms, conditions, restrictions, easements and
obligations, including obligations regarding payment of expenses, set
forth therein.
2. Dain Tower Agreement, and the terms, conditions, restrictions,
obligations and easements, including freight easements and use of truck
ramp and loading dock, set forth therein, dated October 31, 1984, filed
November 2, 1984, as Document Number 1609904, Office of Registrar of
Titles, and filed May 2, 1988, as Document Number 5402487, Office of
County Recorder.
3. Xxxxxx Building Agreement, and the terms, conditions, restrictions,
obligations, and easements, including freight easements and use of truck
ramp and loading dock, set forth therein, dated October 31, 1984, filed
November 2, 1984, as Document Number 1609905, Office of Registrar of
Titles.
4. 517 Marquette Building Declaration of Easement, and the terms,
conditions, restrictions, obligations and easements, including freight
easements and use of truck ramp and loading dock, set forth therein,
dated October 31, 1984, filed November 2, 1984, as Document Number
1609906, Office of Registrar of Titles.
5. Concourse Building Declaration of Easement, and the terms, conditions,
restrictions, obligations and easements, including freight easements and
use of truck ramp and loading dock, set forth therein, dated October 31,
1984, filed November 2, 1984, as Document Number 1609907, Office of
Registrar of Titles, and filed July 8, 1996, as Document Number 6603183,
Office of County Recorder.
6. Skyway Agreement (Second Avenue Skyway), and the terms, conditions,
restrictions, easements and obligations, including obligations regarding
payment of expenses, set forth therein, dated January 11, 1979, filed
January 19, 1982, as Document Number 1455465, Office of Registrar of
Titles, and filed January 20, 1982, as Document Number 4696711, Office
of County Recorder.
7. Agreement, and the terms, conditions, restrictions, easements, rights
and obligations set forth therein, dated August 22, 1958, filed
September 15, 1960, as Document Number 637109, Office of Registrar of
Titles.
8. Agreement, and the terms, conditions, restrictions, easements, rights
and obligations set forth therein, dated March 1, 1960, filed July 7,
1960, as Document Number 630829, Office of Registrar of Titles, and
filed July 5, 1960, in Book 2261 of Deeds on page 85, as Document Number
3240558, Office of County Recorder; and Supplement to Agreement, and the
terms, rights, easements, conditions, restrictions, and obligations set
forth therein, dated April 29, 1999, filed May 18, 1999, as Document
Number 3159057, Office of Registrar of Titles, and filed June 24, 1999,
as Document Number 7134650, Office of County Recorder.
9. 517 Marquette Garage/One Financial Plaza Easement Agreement, and the
easements, obligations, terms, conditions and restrictions set forth
therein, dated April 29, 1999, filed May 18, 1999, as Document Number
3159058, Office of Registrar of Titles, and filed June 24, 1999, as
Document Number 7134651, Office of County Recorder, as amended by
Amendment to 517 Marquette Garage/One Financial Plaza
Schedule 4 Page 1
Easement Agreement dated August 27, 1999, filed August 31, 1999, as
Document Number 3199129, Office of Registrar of Titles, and as Document
Number 7174302, Office of County Recorder.
10. Easement Agreement, and the easements, terms, conditions and obligations
set forth therein, between Dain Corporation, a Minnesota corporation,
and Energy Center Partners, a Limited Partnership, a Minnesota limited
partnership, dated December 24, 1987, filed April 20, 1988, as Document
Number 1922447, Office of Registrar of Titles, and filed April 21, 1988,
as Document Number 5399600, Office of County Recorder. (as to Parcel 3
only)
11. Easement Agreements, and the easements, terms, conditions and
obligations set forth therein, between First National Bank of
Minneapolis, a national banking association, and Energy Center Partners,
a Limited Partnership, a Minnesota limited partnership, dated December
18, 1987, filed April 21, 1988, as Document Numbers 5399598 and 5399599,
Office of County Recorder. (as to Parcel 3 only)
12. Easement Agreement for Skyway Opening by and between BF-Minnesota, Inc.,
a Minnesota corporation, as fee owner of the Southwesterly or front 92.5
feet of Xxxx 0 xxx 0, Xxxxx 00, Xxxxxxxx xx Xxxxxxxxxxx, and One Twenty
South Sixth Street Partners, a Minnesota general partnership, as fee
owner of the land, dated August 18, 1993, filed January 3, 1994, as
Document Number 6211078, Office of County Recorder, and filed August 13,
1999, as Document Number 3192824, Office of Registrar of Titles, and the
easements, rights, obligations, terms and conditions set forth therein.
Schedule 4 Page 2
SCHEDULE 5
LEASING COSTS
1. BUSINESS JOURNAL LEASE. Seller shall credit Buyer $367,360 at
Closing for Tenant Finish Improvements required to be constructed (9,184 square
feet at $40 per square foot) and a to be determined amount required to construct
a building standard corridor. In addition, Seller shall credit Buyer $39,032 at
Closing for the second one-half of the leasing commission which shall be paid
upon occupancy of the tenant ($27,552 to Xxxxxx, Xxxxx & Xxxx and $11,480 to
Xxxxxx Realty Corporation).
2. CHIROPRACTIC USA LEASE. Buyer shall pay Seller $23,880 at
Closing for additional Tenant Finish Improvements.
3. DELOITTE & TOUCHE LEASE. Buyer shall pay Seller $23,475.75 at
Closing for the portion of additional Tenant Finish Improvements paid for by
Seller as required by tenant's lease (Buyer assumes the balance of $68,284.25
additional improvements obligation in the lease).
