EXHIBIT 10.02
LEASE AGREEMENT
NTS REALTY HOLDINGS LIMITED PARTNERSHIP,
a Delaware limited partnership
(as successor in interest to Xxxxxxxxxxxx Business Center
Joint Venture, a Kentucky joint venture, and
NTS/BBC I, a Kentucky limited partnership)
("LANDLORD")
AND
SHPS, INC., a Florida corporation
("TENANT")
LEASE AGREEMENT
TABLE OF CONTENTS
Page
1. TERMS AND DEFINITIONS.................................................1
2. PREMISES AND COMMON AREAS LEASED......................................4
3. TERM, CONSTRUCTION AND POSSESSION.....................................5
4. ANNUAL BASE RENT; OPERATING EXPENSES..................................6
5. USE...................................................................9
6. PAYMENTS AND NOTICES.................................................10
7. BROKERS..............................................................11
8. HOLDING OVER.........................................................11
9. TAXES ON PERSONAL PROPERTY; SALES, USE & EXCISE TAXES................12
10. ALTERATIONS AND IMPROVEMENTS.........................................12
11. LANDLORD'S RESERVED RIGHTS...........................................14
12. MECHANICS LIENS......................................................15
13. ENTRY BY LANDLORD....................................................15
14. UTILITIES AND SERVICES; TELECOMMUNICATIONS SERVICE PROVIDERS.........16
15. INDEMNIFICATION......................................................18
16. INSURANCE AND WAIVER OF RECOVERY.....................................19
17. DAMAGE OR DESTRUCTION................................................20
18. EMINENT DOMAIN.......................................................22
19. FORCE MAJEURE........................................................22
20. DEFAULTS AND REMEDIES; BANKRUPTCY....................................23
21. ABANDONMENT OF PERSONAL PROPERTY.....................................28
22. TRANSFERS............................................................29
23. ESTOPPEL CERTIFICATE, ATTORNMENT, SUBORDINATION......................31
24. RULES AND REGULATIONS................................................32
25. CONFLICT OF LAWS.....................................................32
26. SUCCESSORS AND ASSIGNS...............................................32
27. ATTORNEYS' FEES......................................................32
28. DEFINITION OF LANDLORD...............................................32
29. WAIVER...............................................................32
30. IDENTIFICATION OF TENANT.............................................33
31. TERMS AND HEADINGS...................................................33
32. EXAMINATION OF LEASE.................................................33
33. TENANT'S AUTHORITY...................................................33
34. TIME.................................................................33
35. PRIOR AGREEMENTS; AMENDMENTS.........................................33
36. PARTIAL INVALIDITY...................................................34
37. RECORDING............................................................34
38. LIMITATION ON LIABILITY..............................................34
39. RIDERS...............................................................34
40. SIGNS AND AUCTIONS...................................................34
41. MORTGAGEE'S APPROVAL.................................................34
42. ACCORD AND SATISFACTION..............................................35
43. FINANCIAL STATEMENTS.................................................35
44. MISCELLANEOUS PROVISIONS.............................................35
45. CONSENTS BY LANDLORD.................................................36
46. DISCLAIMER; WAIVER OF JURY TRIAL ....................................36
47. ROOF RIGHTS..........................................................37
48. VENTING..............................................................37
49. HOLIDAYS.............................................................38
50. HAZARDOUS MATERIALS..................................................38
51. QUIET ENJOYMENT......................................................39
52. MOLD.................................................................39
53. OFFICE OF FOREIGN ASSETS ("OFAC") CONTROL............................40
54. HIPAA REQUIREMENTS...................................................40
EXHIBIT A - FLOOR PLAN....................................................A1
EXHIBIT B- LEGAL DESCRIPTION OF LAND......................................B1
EXHIBIT C - WORK LETTER AGREEMENT.........................................C1
EXHIBIT D - RULES AND REGULATIONS.........................................D1
EXHIBIT E- FORM OF SNDA...................................................E1
EXHIBIT F- CLEANING SPECIFICATIONS........................................F1
EXHIBIT G- NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT...................G1
EXHIBIT H - PARKING AREA..................................................H1
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is entered into as of the 12th day of
January, 2005, by and between Landlord and Tenant, as hereinafter defined.
RECITALS:
X. Xxxxxxxxxxxx Business Center Joint Venture, a Kentucky joint venture
("BBCJV") comprised of NTS-Properties IV, Ltd., a Kentucky limited partnership,
NTS-Properties VII, Ltd., a Florida limited partnership and ORIG, LLC, a
Kentucky limited liability company (successor by merger with NTS-Properties
Plus, Ltd.) entered into that certain Lease dated April 28, 1994 pursuant to
which BBCJV leased to Prudential Service Bureau, Inc. ("Prudential") the entire
building known as Xxxxxxxxxxxx Business Center IA ("BBCIA") containing
approximately 100,640 rentable square feet of space (the "BBCIA Lease").
Pursuant to that certain Assignment and Assumption of Lease dated as of March
31, 1998, Xxxxx HealthPlan Service Bureau, Inc., a Kentucky corporation
(formerly known as Prudential Service Bureau, Inc.) assigned the BBCIA Lease to
Xxxxx HealthPlan Services, Inc., a Florida corporation, now known as SHPS, Inc.
and the Tenant under this Lease. The term of the BBCIA Lease expires July 31,
2005.
B. NTS/BBC I, a Kentucky limited partnership, entered into that certain
Lease dated as of April 28, 1994 pursuant to which NTS/BBCI leased to Prudential
the entire building known as Xxxxxxxxxxxx Business Center IB ("BBCIB")
containing approximately 60,049 rentable square feet of space (the "BBCIB
Lease"). Pursuant to that certain Assignment and Assumption of Lease dated as of
March 31, 1998, Xxxxx HealthPlan Service Bureau, Inc., a Kentucky corporation
(formerly known as Prudential Service Bureau, Inc.) assigned the BBCIB Lease to
Xxxxx HealthPlan Services, Inc., a Florida corporation, now known as SHPS, Inc.
and the Tenant under this Lease. The term of the BBCIB Lease expires on July 31,
2005.
C. Landlord (as successor in interest to Xxxxxxxxxxxx Business Center Joint
Venture and NTS/BBC I) and Tenant desire to enter into a new Lease pursuant to
which Landlord will lease each of the entire buildings consisting of BBCIA and
BBCIB to Tenant pursuant to the terms and conditions contained herein, which
Lease shall, as of January 12, 2005, replace and supercede the BBCIA Lease and
the BBCIB Lease, which Landlord and Tenant agree shall terminate as of midnight
January 11, 2005.
Subject to all of the terms, provisions, covenants and conditions set forth
herein, and in consideration of the mutual covenants, obligations and agreements
contained in this Lease, Landlord and Tenant agree as follows:
1. TERMS AND DEFINITIONS. As used in this Lease, the following terms shall
have the meanings set forth herein:
A. Landlord. NTS Realty Holdings Limited Partnership, a Delaware
limited partnership (as successor in interest to Xxxxxxxxxxxx
Business Center Joint Venture, and NTS/BBCI).
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B. Tenant. SHPS, Inc., a Florida corporation.
C. Commencement Date. January 12, 2005
D. Building. The buildings designated as Xxxxxxxxxxxx Business
Center IA (consisting of approximately 100,640 Rentable square
feet of space) and Xxxxxxxxxxxx Business Center IB (consisting of
approximately 60,049 Rentable square feet of space),
collectively, located in the development known as Xxxxxxxxxxxx
Business Center, together with all interior areas common to both,
and the outdoor courtyard located between such buildings and
enclosed by a gated entrance.
E. Building Address. 00000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000
F. Premises. Approximately 160,689 square feet of rentable area in
the Building as outlined on Exhibit "A" attached hereto and made
a part hereof, which comprises all of the rentable area in the
Building, as improved in accordance with the Work Letter
Agreement attached hereto and made a part hereof as Exhibit "C".
Within thirty (30) days after the Commencement Date, the Rentable
square footage of the Premises shall be confirmed by a licensed
architect mutually agreed upon by Landlord and Tenant, and shall
be measured in accordance with "Standard Method for Measuring
Floor Area in Office Building," published by the Secretariat,
Buildings, Owners Managers Association International (ANSI/BOMA
265.1-1996), approved June 7, 1996 ("BOMA").
G. Land. That certain tract of land situated in Jefferson County,
Kentucky more particularly described on Exhibit B attached hereto
and made a part hereof and upon which the Building is located.
H. Permitted Use. Executive and other general and administrative
office use, as a customer call center, as indoor warehouse or
storage space, as supply or warehouse distribution center, for
educational purposes, as athletic facilities, for medical
purposes or as medical facilities, or for any other similar
commercial use permitted by and conforming with applicable laws
(including parking requirements), building codes and use
restrictions (but not including any residential, industrial or
agricultural use), and for purposes incidental and ancillary
thereto, in accordance with all applicable laws, building codes
and use restrictions recorded in the public records of Jefferson
County, Kentucky prior to the date of this Lease, and for no
other purpose whatsoever.
I. Annual Base Rent. Years 1-5 $10.12 per Rentable square foot;
Years 6-11 $11.42 per Rentable square foot.
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So long as Tenant is not in default under this Lease, Tenant
shall receive a credit against Annual Base Rent due in the first
Lease Year of the Term equal, in the aggregate, to $300,000.00,
which shall be credited against Tenant's Monthly Base Rent
Installment in the first (1st) three (3) months during the Term.
J. Monthly Base Rent Installment. Years 1-5- $135,514.39
Years 6-11-$152,922.37
If the Rentable square footage of the Premises as determined by
the calculation made pursuant to Section 1.F. hereof differs from
the approximate number of Rentable square feet stated in Section
1.F. hereof, the Monthly Base Rent Installment amounts set forth
above shall be appropriately adjusted to reflect such difference.
K. Security Deposit. None.
L. Tenant's Proportionate Share. 100%.
M. Landlord's Work. All of the work to be performed in the
Premises by Landlord pursuant to the provisions of the Work
Letter Agreement.
N. Tenant's Work. All of the work to be performed by Tenant
pursuant to the provisions of the Work Letter Agreement.
O. Plans and Specifications. The plans and specifications to be
provided by Tenant pursuant to the Work Letter Agreement and
pursuant to which the Tenant Finish will be completed.
P. Tenant Finish. The aggregate of the Landlord's Work and the
Tenant's Work, as defined in the Work Letter Agreement.
Q. Parking Area. The parking surfaces serving the Building and
located on the Land and outlined on Exhibit H attached
hereto and made a part hereof, consisting of approximately
842 parking spaces.
R. Term. Eleven (11) years commencing on January 12, 2005 and
ending January 11, 2016 (the "Expiration Date"), and any
Renewal Term(s), as defined in this Lease.
S. Lease Year. Each consecutive twelve (12) month period during
the Term commencing on the Commencement Date.
T. Brokers. Tenant's Broker: Xxxxx & Xxxxx/Commercial Kentucky
("GE/CK"). Tenant's Co-Broker: Xxxxxxx & Xxxxxxxxx (to be
paid by GE/CK).
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U. Operating Expense Stop. $2.62 per Rentable square foot of
space in the Building.
V. Tenant Improvement Allowance. $2,000,000.00 to be made
available to Tenant upon the Commencement Date of this
Lease, and to be held in Landlord's Escrow Account and
disbursed to Tenant pursuant to the terms and conditions set
forth in the Work Letter Agreement.
2. PREMISES AND COMMON AREAS.
A. Premises. Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord, the Premises on the terms and conditions contained herein.
Tenant shall also have the exclusive right to use the outdoor courtyard located
between the buildings comprising the Building and enclosed by a gated entrance
and may limit access to such courtyard to its employees, agents, guests and
invitees subject to Landlord's rights to enter as set forth in this Lease.
B. Common Areas. Landlord grants to Tenant the non-exclusive
right to use the sidewalks, driveways and other areas of the Land directly
benefiting the Building in common with others (the "Common Areas"). Landlord
represents, warrants and covenants that throughout the Term of this Lease
Tenant, and its customers, invitees and employees, shall have access to and the
right to use the driveways and entranceways currently used by Tenant and its
customers, invitees, and employees to access the Premises and the Parking Area,
and Landlord, and its successors and assigns, shall not alter or obstruct such
driveways and entranceways without prior reasonable notice to Tenant, and shall
not alter such driveways or entranceways in a manner which would reduce Tenant's
Parking Area (as such term is defined below) or permanently impair or
unreasonably interfere with Tenant's access to the parking area or the Leased
Premises. Landlord agrees to maintain the Common Areas in good condition and
repair in a manner consistent with other comparable office buildings located in
the Xxxxxxxxxxxx Industrial Park area in Louisville, Kentucky.
C. Reserved Rights. Landlord reserves the right from time to
time, without unreasonable interference with Tenant's Permitted Use or enjoyment
of the Premises, to alter or relocate any Common Area facility serving the
Building, except as otherwise provided herein.
D. Parking. Tenant and its employees and visitors shall have the
non-exclusive right to use, without charge, any of the surface parking
facilities at the Building (which parking is outlined on Exhibit H hereto and
consists of approximately 842 parking spaces (the "Parking Area")). Landlord
represents, warrants and covenants that throughout the Term of this Lease,
Tenant, and its customers, invitees and employees, shall have access to and the
right to use the Parking Area, and Landlord, and its successors and assigns,
shall not alter or reconfigure such Parking Area without Tenant's prior written
consent (except for such alterations and reconfigurations which do not reduce
the Parking Area). Landlord may reserve spaces for visitors, small cars and
handicapped individuals, and Tenant and its employees and visitors shall park in
such parking spaces accordingly. Landlord reserves the right to temporarily
close a portion of the parking areas in order to make repairs, perform
maintenance or replace the parking surface and shall use reasonable efforts to
minimize interference with Tenant's use of the
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Premises. Tenant shall not use the parking areas in any manner for the storage
of materials, parts, supplies, trailers, equipment or machinery, nor shall
Tenant use the parking areas in any manner which could obstruct or interfere
with the rights or safety of other tenants or persons. Landlord agrees that
during the Term of this Lease they shall not grant to any owner of the land upon
which the BBCII building is located any further rights to use the parking areas
outlined on Exhibit H.
3. TERM, CONSTRUCTION AND POSSESSION.
A. Term. The Term shall commence on the Commencement Date and shall
continue in full force and effect until the Expiration Date, unless earlier
terminated as provided herein.
B. Option to Renew. Landlord grants Tenant the option to renew this
Lease with respect to the entire Premises for one (1) period of five (5) years
(a "Renewal Term"); provided that this Lease is in full force and effect, and
Tenant shall not be in Default or shall not have displayed a regular pattern of
default in the performance of its duties and obligations under this Lease on the
date Tenant elects to renew and on the date any Renewal Term is to commence.
Each Renewal Term shall begin on the first day following the expiration of the
Initial Term or the then current Renewal Term. To exercise the option to renew
granted herein, Tenant shall give written notice to Landlord of its exercise of
the option to renew no more than sixteen (16) months and no less than twelve
(12) months prior to the expiration of the Initial Term or the then current
Renewal Term. All of the terms, covenants and conditions contained in this Lease
for the Initial Term shall remain in full force and effect and shall apply
during a Renewal Term, except that the Annual Base Rent, Tenant Improvement
Allowance and Operating Expense Stop shall be negotiated between Landlord and
Tenant for the Renewal Term. Any Transfer in violation of the provisions of
Paragraph 22 of this Lease shall automatically terminate Tenant's Option to
Renew hereunder as of the date which is one day prior to the effective date of
such Transfer.
C. Construction of Improvements to Premises and Building. The Premises
and Building shall be improved in accordance with the terms of the Work Letter
Agreement and the Tenant Finish shall be performed by Landlord and/or Tenant as
set forth in the Work Letter Agreement. The cost of construction of improvements
exceeding the Approved Plans shall be paid by Tenant as set forth in the Work
Letter Agreement.
D. Possession. Tenant has possession of the Premises as of the date
hereof under the BBCIA Lease and the BBCIB Lease, and Tenant's possession shall
continue notwithstanding the termination of the BBCIA Lease and the BBCIB Lease
on January 11, 2005, pursuant to this Lease on the Commencement Date of this
Lease.
E. 2004 Rent Refund. So long as Tenant is not in default under the
BBCIA Lease or the BBCIB Lease prior to the Commencement Date, or under this
Lease, Tenant shall be entitled to payment by Landlord on the Commencement Date
of an amount representing a refund of a portion of Tenant's 2004 rent payments
under the BBCIA Lease and BBCIB Lease in the sum of $300,000.00.
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4. ANNUAL BASE RENT; OPERATING EXPENSES.
A. Tenant shall pay the Annual Base Rent to Landlord at the location
designated from time to time by Landlord pursuant to Paragraph 6 hereof, in the
amount of the Monthly Base Rent Installment from and after the Commencement
Date, in advance on or prior to the first (1st) day of each and every calendar
month during the Term without demand, deduction, abatement, set-off,
counterclaim or prior notice; provided, however, that so long as Tenant is not
in Default under this Lease, Tenant shall receive a credit against Annual Base
Rent due during the first Lease year of the Term equal, in the aggregate, to
$300,000.00, which amount shall be credited against Tenant's Monthly Base Rent
Installment for the first (1st) three (3) months during the Term commencing in
January, 2005 until such credit is exhausted. If the Term commences or ends on a
day other than the first day of a month, then the Monthly Base Rent Installment
for such partial month period shall be prorated on the basis of thirty (30) days
to the month and shall be paid on the first day of such partial month. In the
event any Federal, State or local governmental body imposes any tax or levy on
any Rent, Tenant hereby agrees to pay as additional rent the amount of any such
tax or levy, and such tax or levy will be added to the Rent.
B. The Annual Base Rent shall be adjusted from time to time in
accordance with this Paragraph 4 to reflect increases in the expenses of
operating the Building ("Expenses"). The Annual Base Rent, including the
adjustments made pursuant to this Paragraph 4 and any other amounts due and
owing from Tenant to Landlord under this Lease, is referred to in this Lease as
the "Rent." If the Expenses (as such term is defined below) in any Lease Year or
partial Lease Year after the first Lease Year exceed the Operating Expense Stop,
Annual Base Rent shall be adjusted on an annual basis, as provided in the
immediately preceding sentence, to include Tenant's Proportionate Share of such
excess. After the end of each calendar year during the Term, but in no event
later than one hundred twenty (120) days after the end of each such calendar
year, Landlord will provide Tenant with a written notice ("Statement") setting
forth the amount of any adjustments to Annual Base Rent, together with a
statement of Expenses for the previous calendar year. Landlord agrees to use
reasonable efforts to deliver the Statement to Tenant by March 31st of each
calendar year. Within thirty (30) days following receipt of the Statement,
Tenant shall pay to Landlord: [i] the adjustment to Annual Base Rent for the
previous calendar year after credit for any estimated payments which Tenant has
made pursuant to this Paragraph; and [ii] an estimated adjustment to Annual Base
Rent for the months which have lapsed in the then-current calendar year based on
the previous calendar year's increase in Expenses and Landlord's good faith
projection of the increase in Expenses during the then-current calendar year
after credit for any estimated payments made by Tenant pursuant to this
Paragraph. Commencing with the month following the month in which the Statement
is dated and continuing until such time as Tenant receives Landlord's next
Statement, the Monthly Base Rent Installments shall be adjusted to include
Tenant's Proportionate Share of any Expenses in excess of the Operating Expense
Stop based on Expenses for the previous calendar year and Landlord's good faith
projection of the increase in Expenses for the then-current calendar year. The
adjusted portion of the payments of Annual Base Rent shall be credited against
the actual Expenses as shown in Landlord's next Statement. If the next Statement
shows that Tenant has overpaid and if Tenant is not then in Default under this
Lease, Landlord shall credit such overpayment against the next accruing payments
of Rent until the overpayment is reduced to
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zero. If the next Statement shows that Tenant has underpaid, Tenant shall,
within ten (10) days of receipt of such Statement, pay to Landlord the full
amount of such underpayment. The obligation to pay the adjustments to Annual
Base Rent shall survive any termination of this Lease. Notwithstanding any other
provision herein to the contrary, it is agreed that in the event the Tenant is
not occupying the entire Building during any partial calendar year or any full
calendar year, an adjustment shall be made by Landlord in computing the Expenses
for such year so that the Expenses shall be computed for such year as though the
Building had been fully occupied by Tenant during such calendar year and as
though the entire Building had been provided with the building services to be
provided Tenant under this Lease during such calendar year, and the Annual Base
Rent payable by Tenant shall in no event be less than the Annual Base Rent
specified in Paragraph 1 hereof. Landlord agrees not to collect from Tenant more
than 100% of Expenses on a fully and grossed-up basis in any one calendar year
during the Term. Failure of Landlord to provide a Statement within a certain
period of time after the end of a calendar year shall not constitute a waiver by
Landlord of its rights to payment due pursuant to this Paragraph 4 and the
obligations of Tenant hereunder shall survive the expiration or other
termination of this Lease.
C. Operating Expenses. "Expenses" shall mean all expenses and costs of
operating and maintaining the Building, including, without limitation, the
following costs: [a] wages of all employees providing labor and/or services in
connection with the Building (including employment taxes and fringe benefits) to
the extent of their services in connection with the Building (provided, however,
the applicable portion of the cost of salaries of management and executive
personnel who perform services in connection with the Building shall not exceed
five percent (5%) of the annual Building gross revenue); [b] janitorial labor
and materials; [c] electricity, gas, sewer, water, telephone, trash disposal and
other utilities including, but not limited to any cable, DSL or WI-FI services,
to the extent not directly metered and billed to Tenant by the applicable
utility company; [d] maintenance and repairs (including, but not limited to,
maintenance and service contracts for HVAC systems, elevators and other
mechanical, electrical or plumbing systems); [e] landscaping, parking and
service road maintenance and repair; [f] insurance premiums; [g] any and all
real estate taxes and/or personal property taxes assessed on the Land and
Building and personal property of Landlord therein, including any increases in
real estate taxes, and any increases realized when any partial or full tax
relief which presently may be afforded to the Building expires, and further
including any tax imposed as a substitute for or supplement to presently
existing real estate and/or personal property taxes, and including any tax
assessed or imposed upon, against or on account of the Rent reserved hereunder,
but excluding any tax in the nature of income or similar taxes, or any penalty
or interest assessed due to Landlord's late payment of any such taxes; [h]
reasonable expenses of Landlord in exercising their judgment in attempting to
reduce or limit real estate and/or personal property taxes (any refunds to be
credited against such taxes and Expenses in the year received); [i] costs of
repairs that extend the life of the Building and costs of capital improvements
to the extent necessary to comply with applicable governmental rules and
regulations (including, but not limited to, the Americans with Disabilities Act
of 1990, as amended), such costs to be amortized over the useful life of said
improvements utilizing a 10% discount factor; [j] expense of Building management
fees, provided such expense shall not exceed three percent (3%) of total annual
Building gross revenue in any calendar year; [k] capital expenses which reduce
any component cost of Expenses (such cost to be reasonably amortized by Landlord
and Expenses to include only the cost as so amortized by Landlord during the
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calendar year for which such computation is made); [l] any tax or levy on any
Rent imposed by a Federal, State or local governmental body except for taxes in
the nature of an income or similar tax; and [m] permit, licensing and inspection
fees;
Expenses shall not include: [i] costs of alterations, renovations,
improvements or decorations (including permits, licensing and inspection fees)
of any other tenant's or occupant's premises or vacant space in the Building
(excluding Common Areas); [ii] principal and interest payments or other debt
service payments, or, if applicable, ground lease payments, including any
payments made on loans secured by the Building; [iii] costs of capital
expenditures or capital improvements (except as provided above under inclusions
in Expenses); [iv] depreciation of the Building; [v] legal fees, brokerage fees,
leasing commissions, advertising costs or other related expenses incurred by
Landlord in connection with the leasing of space in the Building; [vi] repairs,
alterations, additions, improvements or replacements made to rectify or correct
any defect in the original design, materials or workmanship of the Building;
[vii] damage and repairs attributable to fire or other casualty; [viii] damage,
repairs and other costs necessitated by the negligence or willful misconduct of
Landlord or Landlord's employees or agents; [ix] Landlord's general overhead
expenses not attributable to the Building; [x] legal fees, accounting fees and
other expenses incurred in connection with disputes with tenants or occupants of
the Building or associated with tenants or the defense of Landlord's title to or
interest in the Building; [xi] costs incurred due to Landlord's violation of any
lease in the Building or due to the violation by tenants of the Building of any
terms and conditions of their leases; [xii] amortization, debt service, or other
payments on loans made by Landlord; [xiii] costs of Landlord's Work in
accordance with the terms of the Work Letter Agreement and costs incurred in
performing work or furnishing services for individual tenants, which work or
services are in excess of work and services provided to such tenants under their
respective leases; [xiv] all costs incurred which are subject to reimbursement
by other tenants of the Building or other parties, including expenses for repair
or replacement paid by proceeds of insurance or condemnation awards; [xv] costs
of Building security personnel and materials necessary for the normal operation
of such security personnel; [xvi] costs of Tenant's separately metered
utilities: [xvii] costs incurred in the investigation, monitoring, abatement,
remediation or removal of hazardous materials (unless caused or permitted by
Tenant in violation of the terms of this Lease); [xviii] costs recoverable by
Landlord pursuant to insurance policies; [xix] costs resulting from Landlord's
default under this Lease; [xx] costs resulting from deficiencies in the design,
construction or workmanship of Landlord's Work to the extent of any express
warranties therefor; [xxi] advertising, legal (except as expressly provided for
herein), marketing and promotional expenditures; [xxii] salaries or other
compensation paid to asset managers, leasing agents, directors or executive
officers of Landlord above the rank of manager or not involved in the day-to-day
management of the Building; [xxiii] penalties, fines late payment charges or
interest incurred as a result of late payment of any Expenses not caused by
Tenant, and violation of any law, by Landlord; [xxiv] reserves; [xxv] costs of
goods and /or services supplied by Landlord or by affiliates of Landlord to the
extent that the resulting cost of any such goods and/or services exceeds the
cost of similar goods and/or services when rendered by unaffiliated third
parties on a competitive basis; [xxvi] costs relating to Landlord's acquisition
or sale of sculpture, painting or other objects of art; [xxvii] costs of
Landlord's charitable and political contributions; and [xxviii] any expenses
that Landlord could have avoided by taking advantage of discounts offered by
suppliers and vendors or by competitively bidding any of the services by which
Expenses are incurred among the available suppliers and vendors. For any
applicable year that begins prior to the Commencement
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Date or ends after the expiration date of this Lease, the amount of Expenses due
for that calendar year shall be apportioned on a per diem basis so that only
that portion attributable to the portion of such calendar year that occurs
during the Term of this Lease shall be payable by Tenant.
Notwithstanding anything contained in Subparagraphs 4B. and 4C.,
Landlord agrees that Expenses shall not increase by more than 4% per Rentable
square foot per calendar year on a cumulative basis over Tenant's Operating
Expense Stop; provided, however, the following Expenses shall not be subject to
any such limitation on increases: real estate taxes, property taxes, insurance,
snow and ice removal, utilities, and special, non-customary requests by Tenant
or its agents or employees for repair and/or replacement of already operational
items.
D. Audit of Building Expenses. Within thirty days (30) days after
receipt by Tenant of the Statement, Tenant may conduct an audit of Landlord's
Building Expense records on a one time per calendar year basis for the
immediately preceding calendar year's Expenses only. Tenant and its auditors
shall be provided access to Building Expense records for such immediately
preceding calendar year upon reasonable advance written notice to Landlord
during the regular office hours of NTS Development Company ("NTS"). Tenant shall
bear the entire costs of such audit except as provided below. Tenant shall
deliver to Landlord a copy of such audit results within five (5) days of receipt
by Tenant. No audit shall be conducted at any time during which Tenant is in
Default under this Lease. No sub-tenant, assignee or any other person or entity
shall have the right to conduct an audit of Landlord's Building Expenses, unless
such person or entity unless the Transfer was permitted or consented to by
Landlord pursuant to Paragraph 22 of this Lease and is in possession of the
Premises for at least part of the calendar year for which Building Expenses are
being audited. If the estimated amount of Expenses paid by Tenant for such year
exceeds Tenant's Proportionate Share of actual Expenses, Landlord shall apply
such excess as a lump sum to the next accruing payment (or, if necessary,
payments) of Rent. In the event such audit reflects that the statement has
overstated Tenant's Proportionate Share of Expenses for such calendar year by at
least 5%, Landlord shall pay reasonable costs of such audit.
E. Janitorial Services. Notwithstanding any other provision of this
Lease to the contrary, Tenant shall be responsible for all janitorial and
day-xxxxxx services to the Premises five (5) evenings per week (Monday through
Friday), which shall at a minimum, include the provision of all standard
restroom supplies in the Building restrooms (both general usage and private
restrooms) and meet the standards set forth on Exhibit F attached hereto and
made a part hereof by this reference.
5. USE. Tenant shall use and occupy the Premises only for the Permitted
Use, and for no other business or purpose without the prior written consent of
the Landlord. Tenant shall not use or occupy the Premises in violation of any
applicable law, rule, regulation or ordinance or certificate of use and
occupancy issued for the Building, and shall immediately discontinue any use of
the Premises which is declared by any governmental authority having jurisdiction
to be a violation of law, rule, regulation or ordinance or of said certificate
of use and occupancy. As a material consideration to this Lease, Tenant
covenants that Tenant shall not permit the Premises to be occupied by any
person, firm or corporation other than the Tenant whose name appears on this
Lease unless such occupancy is in compliance with the terms of Paragraph 22. of
this Lease regarding Transfers. Tenant shall comply with any direction of any
governmental
9
authority having jurisdiction which shall, by reason of the nature of Tenant's
use or occupancy of the Premises, impose any duty upon Tenant or Landlord with
respect to the Premises or with respect to the use or occupation thereof. Tenant
will, at its own cost, promptly comply with and carry out all orders,
requirements or conditions now or hereafter imposed upon it by the ordinance,
laws and/or regulations of the municipality, county and/or state in which the
Premises are located, whether required of Landlord or otherwise, in the conduct
of Tenant's business. Tenant will indemnify and hold Landlord harmless from all
penalties, claims and demands resulting from Tenant's failure or negligence in
this respect. Tenant shall not do or permit to be done anything which will
invalidate or increase the cost of any fire, extended coverage or any other
insurance policy covering the Building and/or property located therein and shall
comply with all rules, orders, regulations and requirements of the Fire
Department or Fire Xxxxxxxx or any other person or organization performing a
similar function. Tenant shall promptly upon demand reimburse Landlord as
additional rent for any additional premium charged for any such policy by reason
of Tenant's failure to comply with the provisions of this Paragraph 5. Tenant
shall not cause, maintain or permit any nuisance in, on or about the Building.
Tenant shall not commit or suffer to be committed any waste in or upon the
Premises. Notwithstanding the foregoing, Tenant shall not be obligated to
correct any structural defects in the Building, or to make any capital
improvements or structural repairs to the Building unless such improvements or
repairs are required by any federal, state or local laws, statutes, ordinances,
rules, regulations or requirements as a result of Tenant's particular use of the
Premises.
6. PAYMENTS AND NOTICES.
A. Notice and Address Provisions. All Rent and other sums payable by
Tenant to Landlord hereunder shall be paid to Landlord at the address designated
by Landlord in Paragraph 1 above or at such other place as Landlord may
hereafter designate in writing. Any notice required or permitted to be given
hereunder must be in writing and may be served personally or by a national air
courier service for next business day delivery, or by United States certified or
registered mail, return receipt requested, addressed to Tenant at the Building
or to Tenant at its address designated in Paragraph 1; and shall be deemed
delivered when personally delivered, within one (1) business day after deposited
with a national air courier service or within three (3) business days after
deposited in the United States Mail in accordance with the foregoing. Either
party may by ten (10) business days prior written notice to the other, specify a
different address for notice purposes except that Landlord may in any event use
the Premises as Tenant's address for notice purposes. If more than one tenant is
named under this Lease, service of any notice upon any one of said tenants shall
be deemed as service upon all of said tenants.
B. Payments; Late Charges. Tenant shall pay all Rent and other sums of
money as shall become due and payable by Tenant to Landlord in lawful money of
the United States of America in the times and the manner provided in this Lease,
without demand, deduction, abatement, set-off, counterclaim or prior notice,
except as specifically provided for in this Lease. Tenant hereby acknowledges
that late payment to Landlord of Rent or other sums due hereunder will cause
Landlord to incur costs not contemplated by this Lease, the exact amount which
would be extremely difficult to ascertain. If any Rent or other sum due from
Tenant is not received on or before its due date, then Tenant shall pay to
Landlord immediately upon Landlord's demand therefore a service charge equal to
the lesser of five (5%) percent of such overdue amount or the fee charged by
Landlord's lender as a late fee on its mortgage loan affecting the Premises,
plus
10
any attorneys' fees and costs incurred by Landlord by reason of Tenant's failure
to pay Rent and other charges due hereunder. Additionally, all Rent under this
Lease shall bear interest from the expiration of any cure period applicable to
such payment until paid at the lesser of twelve percent (12%) per annum, the
default rate charged to Landlord by its lender under its mortgage loan affecting
the Premises, or the maximum non-usurious rate of interest then permitted by the
applicable laws of the state in which the Building is located or the United
States of America, whichever shall permit the higher nonusurious rate, such
interest being in addition to and cumulative of any other rights and remedies
which Landlord may have with regard to failure of Tenant to make any such
payments under this Lease.
7. BROKERS. Landlord and Tenant each represents and warrants to the other
that they have not dealt with any real estate broker or salesperson in
connection with the negotiation or execution of this Lease (other than NTS
Development Company who represented Landlord and GE/CK and Xxxxxxx & Xxxxxxxxx
who represented Tenant). Landlord shall pay to GE/CK a renewal commission equal
to Four Hundred Thousand Dollars ($400,000.00), payable within thirty (30) days
after the full execution of this Lease by Landlord and Tenant. GE/CK shall be
solely responsible for the payment of any co-brokerage fees, including those
payable to Xxxxxxx & Xxxxxxxxx, if any. Tenant represents and warrants to
Landlord that there are no other brokers', finders' or agents' fees due with
respect to this transaction or Tenant's previous attempts to lease or buy space
for use as its offices and Tenant shall indemnify and hold harmless Landlord
from and against any and all costs, expenses, reasonable attorneys' fees,
liability or claims for any compensation, commission or charges claimed by any
real estate broker or agent (other than those named above) alleged to have been
incurred by Tenant. Landlord represents and warrants to Tenant that there are no
other brokers', finders' or agents' fees due with respect to this transaction,
and Landlord shall indemnify and hold harmless Tenant from and against any and
all costs, expenses, reasonable attorneys' fees, liability or claims for any
compensation, commission or charges claimed by any real estate broker or agent
(other than those named above) alleged to have been incurred by Landlord.
8. HOLDING OVER. If, without the execution of a new Lease or written
extension or written consent of Landlord, Tenant shall hold over after the
expiration of the Term, then notwithstanding the provisions of K.R.S. 383.160,
Tenant shall be deemed to be occupying the Premises as a Tenant from month to
month, which tenancy may be terminated by Landlord at any time upon thirty (30)
days written notice to Tenant. No holding over by Tenant after the expiration or
termination of this Lease shall be construed to extend or renew the Term or in
any other manner be construed as permission by Landlord to holdover. During such
hold-over tenancy, Tenant shall: [a] pay to Landlord the greater of: (i) one
hundred twenty-five percent (125%) of the Rent payable for the month immediately
preceding the commencement of the holding over period computed on a per month
basis; or (ii) one hundred twenty-five percent (125%) of the then-current market
rent for the Premises or similar premises in the Xxxxxxxxxxxx Industrial Park
area in Louisville, Kentucky, unless Landlord notifies Tenant in writing to the
contrary; and [b] be bound by all the terms, covenants and conditions as herein
specified as far as applicable notwithstanding the foregoing. If Tenant fails to
surrender the Premises upon the termination of this Lease, in addition to any
other liabilities to Landlord arising there from, Tenant shall indemnify and
hold Landlord harmless from loss or liability resulting from such failure,
including any claims made by any succeeding tenants founded on such failure.
11
9. TAXES ON PERSONAL PROPERTY; SALES, USE AND EXCISE TAXES. Tenant shall
pay at least ten (10) days before delinquency all taxes, charges or other
governmental impositions assessed against or levied upon any of Tenant's
personal property, equipment or trade fixtures located in or about the Premises.
Tenant shall also pay before delinquency any and all taxes and assessments,
license, business, occupation or other taxes, fees or charges levied, assessed
or imposed upon Tenant's business operations in the Premises. Tenant shall
furnish Landlord upon demand with satisfactory evidence of payment of all such
amounts by Tenant.
10. ALTERATIONS AND IMPROVEMENTS; REPAIRS AND MAINTENANCE
A. Acceptance of Premises. Tenant has occupied the Premises
continually under the BBCIA Lease and the BBCIB Lease and has had the
opportunity to completely inspect the Premises and accepts the Premises and the
Building in its "AS IS, WHERE IS" and with all faults in their condition as of
the Commencement Date, subject to the specific terms and requirements of this
Lease and the Work Letter Agreement. Except as expressly provided in this Lease
or in the Work Letter Agreement, Landlord shall have no obligation to furnish,
equip or improve the Premises or the Building. Upon the Commencement Date,
Tenant's occupancy of the Premises and the Building shall be conclusive evidence
that Tenant accepts the Premises and the Building as being suitable for its
intended purpose and in good and satisfactory condition, acknowledges that the
Premises and the Building comply fully with Landlord's covenants and obligations
under this Lease, except as expressly provided herein or in the Work Letter
Agreement, and waives any defects in the Premises and/or the Building except as
expressly provided in this Lease.
B. Improvements and Alterations. Tenant shall not make or allow to be
made (except as otherwise provided in this Lease or in the Work Letter
Agreement) any improvements, alterations or physical additions in or to the
Premises or the Building ("Alterations") without first obtaining the prior
written consent of Landlord, including Landlord written approval of Tenant's
contractor(s) and of the plans, working drawings and specifications relating
thereto; provided, however, Tenant may make non-structural Alterations to the
Premises without Landlord's consent unless such Alteration involves the HVAC
system, the electrical system or the telephone and telecommunication systems in
the Building (except that Landlord's consent shall not be required for minor
adjustments or additions to such systems which do not increase capacity or
decrease efficiency or cause an increase in our insurance rates or our liability
under the National Electric Code), or is for Alterations costing in excess of
$10,000.00 in the aggregate. Landlord agrees to notify Tenant of its approval or
disapproval of such plans for Alterations within ten (10) business days of
receipt of Tenant's plans. Any disapproval notice shall include Landlord's
suggestions for changes to such plans. Approval by Landlord of any of Tenant's
drawings, plans and specifications prepared in connection with any alterations,
improvements, modifications or additions to the Premises or the Building which
require Landlord's consent shall not constitute a representation or warranty of
Landlord as to the adequacy or sufficiency of such drawings, plans and
specifications, or alterations, improvements, modifications or additions to
which they relate, for any use, purpose or condition, but such approval shall
merely be the consent of Landlord as required hereunder. Except as otherwise
expressly provided in the Work Letter Agreement, any and all furnishing,
equipping and improving of, or other Alteration and addition to the Premises
and/or the Building shall be: (i) made at Tenant's sole risk, cost and expense;
(ii) performed in a
12
prompt, good and xxxxxxx-like manner using materials of similar quality to
materials used in the Tenant Finish or otherwise existing in the Building; (iii)
constructed in accordance with all plans and specifications approved in writing
by Landlord, if required, prior to the commencement of any such work; (iv)
prosecuted diligently and continuously to completion so as to minimize
interference with the performance of Landlord's obligations under this Lease or
any mortgage or ground lease covering or affecting all or any part of the
Building or the Land and any work being done by contractors engaged by Landlord
with respect to or in connection with the Building; and (v) performed by
contractors approved in writing by Landlord. Tenant shall notify Landlord upon
completion of such alterations, improvements, modifications or additions and
Landlord may inspect same for workmanship and compliance with the approved plans
and specifications, if any. With respect to any Alteration which requires
Landlord's consent hereunder, Tenant and its contractor shall comply with all
reasonable requirements Landlord may impose on Tenant or its contractor with
respect to such work (including, but not limited to, insurance, indemnity and
bonding requirements), and shall deliver to Landlord a complete copy of the
"As-Built" or final plans and specifications for all Alterations or physical
additions so made in or to the Premises and/or the Building within sixty (60)
days after completing the work. Tenant shall not place safes, vaults, filing
cabinets and systems, libraries or other excessively heavy furniture or
equipment on the second floor of the Building without Landlord's prior written
consent.
C. Title to Alterations. All alterations, physical additions,
modifications or improvements in or to the Premises (including fixtures, other
than trade fixtures) shall, when made, become the property of Landlord and shall
be surrendered to Landlord upon termination or expiration of this Lease or
termination of Tenant's right to occupy the Premises, whether by lapse of time
or otherwise, without any payment, reimbursement or compensation therefore;
provided, however, that (i) Tenant shall retain title to and shall remove from
the Premises movable equipment, furniture or trade fixtures owned by Tenant; and
(ii) Tenant shall repair any damage caused by removal of same. The rights
conferred to Landlord under this Section 10(C.) shall be in addition to (and not
in conflict with) any other rights conferred on Landlord by this Lease, in
equity or at law.
D. Repairs by Landlord. Landlord shall operate, maintain and repair
the Building (and make such capital improvements and replacements to the
Building) in a manner consistent with the condition to which the Building is
renovated by Landlord's Work and Tenant's Work when such Work is completed as
contemplated by this Lease and the Work Letter Agreement, from and after the
date of completion of such Work, reasonable wear and tear excepted, and except
for items which are damaged due to the negligence or willful misconduct of
Tenant, its agents, contractors, employees, licensees, contractors or invitees;
and shall repair all damage to the Building and the Premises, reasonable wear
and tear excepted, and unless caused by the negligence or willful misconduct of
Tenant, its agents, contractors, employees, licensees or invitees. Except as
provided in Section 10.E. below, Landlord is also obligated to perform all other
maintenance and repairs necessary or appropriate to cause the Premises to be
maintained in good condition (reasonable wear and tear excepted) and in
compliance with all applicable laws, rules, regulations and ordinances. All
expenses in connection with the operation and maintenance of the Building
pursuant to this Paragraph 10 shall be part of the Building's Expenses,
including but not limited to those items listed below, unless otherwise
indicated below or unless specifically excluded from Expenses pursuant to
Paragraph 4C. hereof:
13
(i) Landlord agrees that following the Commencement Date, they shall
replace, at their cost, any HVAC units or HVAC items which are either ten
(10) years old or older, become defective, or are incapable of repair
during the Term of the Lease, except for any supplemental HVAC units
installed by Tenant and any HVAC units serving the kitchen area of the
cafeteria located in the Premises. Landlord's obligations to replace such
HVAC units or HVAC items shall commence on or after the Commencement Date
with the initial repair and replacement of the HVAC units complete within
sixty (60) days after the Commencement Date, and such replacement shall be
affected by Landlord as necessary in accordance with above-stated
standards. Also, effective as of the Commencement Date, Landlord shall be
responsible for maintenance and repair of the HVAC system except for any
supplemental HVAC units installed by Tenant and any HVAC units serving the
kitchen area of the cafeteria, such costs to be included as part of
Building Expenses;
(ii) Landlord shall use its best efforts (without incurring additional
costs to Landlord) to assist Tenant in achieving any electrical cost
reductions under available programs;
(iii) Effective as of the Commencement Date, Landlord shall be
responsible for all repairs and maintenance to all elevators in the
Building, with such costs to be included in Expenses for the Building;
(iv) All entrances to the Building contain after-hours primary card
readers which shall be maintained and repaired by Landlord, such costs to
be included in Expenses; and
(v) In order to effectuate Landlord's required maintenance and repairs
for the Building, Landlord shall have an on-site maintenance employee for
the Building for an eight (8) hour workday (7:30 a.m. - 4:00 p.m.), Monday
through Friday, excluding Holidays (as such term is defined herein), as
well as a twenty-four hour maintenance response line and "on-call"
maintenance personnel for maintenance calls for the Building.
E. Repairs by Tenant. Subject to the provisions of Paragraph 10.D.
above, Tenant shall be responsible, at its own cost and expense, for all repair
or maintenance of any damage to Tenant's equipment and trade fixtures in the
Premises, together with any damage to the Premises or the Building (or any part
thereof) caused by Tenant or any of Tenant's employees, contractors, agents,
invitees or licensees. Tenant or its agents, contractors or vendors shall also
be responsible for, and shall pay all costs associated with operating,
maintaining and repairing any and all equipment, furniture, fixtures,
furnishings and improvements located or used in connection with the
cafeteria/kitchen located in the Premises.
11. LANDLORD'S RESERVED RIGHTS. Landlord reserves the following rights: [a]
to change the street address of the Building if required to do so by any
governmental agency upon giving prior written notice thereof to Tenant; [b] to
have signage on, or to change, the freestanding entrance sign; [c] to designate
and control all sources furnishing Building-related services to Tenant and the
other tenants (except for security services and janitorial services); [d]
14
during the final twelve (12) months of the Term to display "for rent" or "for
sale" signs on and exhibit and otherwise prepare the Premises for reoccupancy;
[e] to have Tenant provide access to any areas of the Premises if Tenant has
requested maintenance or repairs to be done to such areas; [f] during the last
year of the Term to exhibit the Premises to prospective lessees; [g] to take any
and all measures necessary or reasonable for the operation, safety, protection
or preservation of the Building, whether structural or otherwise, in and about
the Building or any part thereof after prior notice to Tenant (provided that in
an emergency, no such notice shall be required), and during the continuance of
any such work to temporarily close doors, entryways, public spaces and corridors
in the Building and to reasonably interrupt or temporarily suspend Building
services or facilities, provided that Landlord shall, if practicable (and unless
due to an emergency), cause such closure, interruption or suspension to occur
outside of Tenant's normal business hours; and [h] to install an energy
management system to more accurately monitor and control heat, ventilating and
air conditioning in the Building. Landlord may enter upon the Premises and may
exercise any or all of the foregoing rights without being deemed guilty of an
eviction (actual or constructive) or disturbance of Tenant's use or possession
and without being liable in any manner to Tenant and without affecting Tenant's
obligations hereunder, provided that Landlord is not negligent in the exercise
of such rights.
12. MECHANICS LIENS. No mechanic's or other lien shall be allowed to be
filed against the estate of Landlord by reason of any work performed by Tenant
pursuant to this Lease or by reason of any consent given by Landlord to Tenant
to improve the Premises. Tenant shall pay promptly all persons furnishing labor
or materials with respect to any work performed by Tenant and/or its
contractor(s) on or about the Premises. In the event any mechanic's or other
lien shall at any time be filed against the Premises, Building and/or Land by
reason of work, labor, services or materials performed or furnished, or alleged
to have been performed or furnished, to Tenant or to any one holding the
Premises through or under Tenant, Tenant shall, within fourteen (14) days of the
notice of filing thereof to Tenant, cause the same to be discharged of record or
appropriately bonded to the reasonable satisfaction of Landlord. If Tenant shall
fail to cause such lien to be so discharged or bonded after being notified of
the filing thereof, then, in addition to any other right or remedy of Landlord,
Landlord may bond or discharge the same by paying the amount claimed to be due,
and the amount so paid by Landlord, including reasonable attorney's fees
incurred by Landlord either defending against such lien or in procuring the
discharge of such lien, together with interest thereon at the maximum rate of
twelve percent (12%) per annum, shall be due and payable by Tenant to Landlord
as Rent. Tenant shall have no power or authority to do any act or make any
contract which may create or be the foundation for any lien, mortgage or other
encumbrance upon the reversion or other estate of Landlord, or of any interest
in the Building or the Land.
13. ENTRY BY LANDLORD. Landlord reserves and shall at any and all times
have, the right to enter the Building to inspect the same, to supply any service
to be provided by Landlord to Tenant hereunder, to show the Premises to
prospective purchasers or lenders as allowed under Section 11 hereof, to post
notices of nonresponsibility, to alter, improve or repair the Premises or any
other portion of the Building in accordance with the terms of this Lease, all
without being deemed guilty of any eviction of Tenant and without abatement of
rent and may, in order to carry out such purposes, erect scaffolding and other
necessary structures where reasonably required by the character of the work to
be performed, provided that the business of Tenant shall be interfered with as
little as is reasonably practicable. To the extent necessary to
15
carry out each of the aforesaid purposes, Landlord shall at all times be granted
access to all of the doors in, upon and about the Premises, excluding Tenant's
vaults and safes, and Landlord shall have the right to use any and all means
which Landlord may deem proper to open said doors in an emergency in order to
obtain entry to the Premises, and any entry to the Premises obtained by Landlord
by any of said means, or otherwise, shall not under any circumstances be
construed or deemed to be a forcible or unlawful entry into, or a detainer of,
the Premises, or an eviction of Tenant from the Premises or any portion thereof,
and any damages caused on account thereof shall be paid by Tenant. Tenant hereby
waives any claim for damages for any injury or inconvenience to or interference
with Tenant's business, any loss of occupancy or quiet enjoyment of the
Premises, and any other loss occasioned thereby. It is understood and agreed
that no provision of this Lease shall be construed as obligating Landlord to
perform any repairs, alterations or decorations except as otherwise expressly
agreed herein to be performed by Landlord. Tenant shall not change the locks on
the entries to the Premises without first obtaining the written consent of
Landlord, and in such event Tenant's new locks shall be tied into the master
locking system for the Building.
14. UTILITIES AND SERVICES; TELECOMMUNICATIONS SERVICE PROVIDERS.
A. Utilities and Services. Landlord shall furnish the following
utilities and services during reasonable hours of generally recognized business
days, subject to the conditions and in accordance with the standards set forth
in writing by Landlord from time to time during the Term and delivered to
Tenant: (i) water for lavatory and drinking purposes; (ii) snow removal service;
and (iii) elevator service. All other utilities and services shall be provided
to the Building by utility and service providers chosen by and under contract
directly with Tenant (except that Landlord shall have to approve any such
providers of service to the Building) and shall be separately metered to and/or
paid for solely by Tenant directly to the applicable utility company or service
provider, including, but not limited to, electricity, gas, janitorial service,
trash disposal and telecommunications service and security service (but
excluding water, snow removal and elevator service which shall be paid by
Landlord and shall be included in the Expenses for the Building). Tenant's
janitorial service provider shall provide at a minimum the services set forth as
the Janitorial and Carpet Maintenance specifications listed on Exhibit F
attached hereto. Landlord shall not impose a fee if Tenant elects to sell its
waste paper and other recyclable materials. Any and all security guard services
required by Tenant shall be arranged for by Tenant at Tenant's sole cost and
expense. The Tenant shall notify Landlord of the name and contact information
for the security service in case of emergency.
B. Interruption of Services. In no event shall Landlord be liable to
Tenant for any loss, cost, expense or damage incurred due to any interruption or
failure of any services or utilities, to be provided by Landlord, if such
interruption is beyond the reasonable control of Landlord, nor shall Tenant be
entitled to any deductions, abatement or set-off of Rent. Tenant shall obtain
and maintain, at its sole expense, business interruption insurance in reasonable
amounts to provide coverage for a period of at least twelve (12) months for any
such interruption in utilities or services during the Term of this Lease.
C. Telecommunications Service Providers. In the event that Tenant
wishes to utilize the service of a telephone or telecommunications service
provider ("Provider") whose
16
equipment is not servicing the Building as of the date of Tenant's execution of
this Lease or the completion of Tenant's Work, no such Provider shall be
permitted to install its wires or other equipment within the Building unless
Tenant has first secured the prior written consent of Landlord which consent
shall not be unreasonably withheld, conditioned, denied or delayed.
(i) Requirements for Landlord's Consent. Until Landlord
determines, in its sole discretion, that all of the following requirements have
been satisfied, Landlord shall not be required to grant their consent to permit
Provider to install its wires and other equipment within the Building:
(a) Telecommunications Agreement. Provider has executed a
form of telecommunications service agreement, reasonably acceptable to Landlord.
(b) No Expense. Tenant and Provider have agreed that
Landlord shall incur no expense whatsoever with respect to any aspect of
Provider's provision of its services, including, without limitation, the costs
of installation or removal of equipment or wiring, materials or service.
Notwithstanding the foregoing, Tenant has agreed to fully reimburse Landlord, or
to cause Provider to fully reimburse Landlord, on demand, for any expenses
Landlord incurs relating to any aspect of Provider's provision of its devices,
including, without the costs of reviewing Provider's plans, the costs (including
attorney's fees and expenses) of negotiating the telecommunications service
agreement between Landlord and Provider, and any other costs incurred by
Landlord with respect to Provider or its installation, including any cost of
removal of such wiring and equipment at the end of the Term of this Lease;
(c) Financial Statements and Other Items. Provider has
agreed to comply with the insurance provisions of this Lease, and has supplied
Landlord with such written indemnities, insurance verifications, financial
statements, and such other items as Landlord has requested to protect its
financial interests and the interest of the Building relating to the proposed
activated of Provider;
(d) Building Rules. Provider has agreed to abide by such
rules and regulations, job site rules, and such other requirements as determined
by Landlord, in its sole discretion, to protect the interest of the Building,
Landlord, and other tenants (if any) in the Building;
(e) Sufficient Space. Landlord has determined, in its sole
discretion, that there is sufficient space in the Building for the placement of
all of Provider's wiring and equipment, and Provider has agreed that all of its
equipment shall be located within the Premises;
(f) Provider's Good Standing. Provider has provided Landlord
with proof that Provider is duly licensed and reputable;
(g) Compensation for Wiring Space. Provider has agreed to
compensate Landlord the amount determined by Landlord for all of the space used
in the Building outside the Premises for Provider's wiring, and for all costs
that may be incurred by Landlord in arranging for access by Provider's
personnel; security for Provider's equipment; and
17
any other such costs as Landlord may expect to incur; and
(h) Services to Other Tenants. Provider has agreed not to
utilize the wiring and/or equipment installed in the Building to provide any
services to any tenants or occupants of the Building, other than Tenant, or to
any other properties other than the Building.
(ii) Consent Is Not Landlord's Warranty. Landlord's consent under
this Section 14 shall not be deemed to be any kind of warranty or representation
by Landlord, including, without limitation, any warranty or representation as to
the suitability, competence, or financial strength of Provider.
(iii) No Third-Party Rights. The provisions of this Paragraph 14
may be enforced solely by Tenant and Landlord, and are not for the benefit of
any other party, specifically, without limitation, no telephone or
telecommunications provider shall be deemed a third-party beneficiary of this
Lease.
(iv) Tenant Pays Expenses. All telephone and telecommunications
services desired by Tenant shall be ordered and utilized at the sole expense and
risk of Tenant.
(v) Tenant Responsible for Service Interruptions. To the extent
that service by Provider is interrupted, curtailed, or discontinued, Landlord
shall have no obligation or liability whatsoever with respect thereto.
Additionally, such interruption, curtailment, or discontinuance of service shall
not:
(a) Constitute an actual of constructive eviction of tenant,
in whole or in part;
(b) Entitle Tenant to any abatement, set-off or diminution
of rent;
(c) Relieve or release Tenant from any of its obligations
under this Lease; or
(d) Entitle Tenant to terminate this Lease, and Tenant shall
have the sole obligation, at its own expense, to obtain
substitute service.
15. INDEMNIFICATION. Tenant shall defend, indemnify and hold harmless
Landlord, its respective agents, employees, officers, directors, partners,
shareholders and members ("Landlord's Related Parties") from and against any and
all liabilities, judgments, demands, causes of action, claims, losses, damages,
costs and expenses, including reasonable attorneys' fees and costs arising from:
(i) Tenant's use, occupancy, conduct or operation of the Premises or the conduct
of its business, or from any activity, work, or thing done, permitted or
suffered by Tenant in or about the Premises; (ii) any breach or default in the
performance of any obligation on Tenant's part to be performed under the terms
of this Lease; (iii) any act, neglect, fault or omission of Tenant, or of any of
its officers, contractors, agents, servants, employees, guests, invitees or
visitors, in or about the Building, Premises or Land; or (iv) any accident,
18
injury or damage occurring in, on or about the Premises. This indemnification
shall survive the expiration or other termination of this Lease. This provision
shall not be construed to make Tenant responsible for any loss, damage,
liability or expense caused solely by the negligence or willful misconduct of
Landlord or Landlord's Related Parties. Notwithstanding the provisions of this
Paragraph 15 to the contrary, neither Landlord nor its agents shall be liable
for any damage to property entrusted to employees in the Building, nor for loss
of or damage to any of Tenant's property by theft or otherwise. Tenant shall
give prompt notice to Landlord in case of fire or accidents in the Premises or
in the Building or of defects therein.
Landlord shall defend, indemnify and hold harmless Tenant, its agents,
employees, officers, directors, partners, shareholders and members ("Tenant's
Related Parties") from and against any and all liabilities, judgments, demands,
causes of action, claims, losses, damages, costs and expenses, including
reasonable attorneys' fees and costs arising from: (i) any breach or default in
the performance of any obligation on Landlord's part to be performed under the
terms of this Lease; (ii) any act, neglect, fault or omission of Landlord, or
any of its officers, contractors, agents, servants, employees or visitors in or
about the Building, Premises or Land; and (iii) any accident, injury or damage
occurring in, on or about the Land (other than the Premises) and the Common
Areas. This indemnification shall survive the expiration or other termination of
this Lease. This provision shall not be construed to make Landlord responsible
for any loss, damage, liability or expense to the extent caused by the
negligence or willful misconduct of Tenant or Tenant's Related Parties.
16. INSURANCE AND WAIVER OF RECOVERY.
A. Tenant's Insurance. Tenant shall at all times during the Term
maintain in full force and effect with respect to the Premises and the Building
a policy or policies of: (i) comprehensive general liability insurance providing
minimum coverage amounts of Two Million Dollars ($2,000,000.00) for bodily
injury, including death for any one occurrence, One Million Dollars
($1,000,00.00) for property damage and Two Million ($2,000,000.00) combined
single limit, (ii) "All-Risk" insurance providing for full replacement value on
the Tenant's personal property, trade fixtures and equipment in the Building,
(iii) worker's compensation and employer's liability insurance in form and
amount satisfactory to Landlord, (iv) business interruption and rent insurance
in such amounts as will reimburse Tenant for direct or indirect loss of earnings
attributable to the perils commonly insured against by prudent tenants and
sufficient to continue to pay rent and all other payments to Landlord for a
period of twelve (12) months, (v) insurance against acts of terrorism, provided
that such coverage is commercially available at commercially reasonable
premiums. The annual premium for terrorism insurance shall be commercially
reasonable if it is less than or equal to one hundred percent (100%) of the
then-annual cost of the "all-risk" insurance policy required in Subsection (ii)
above; and (vi) such other coverages as may be reasonably required by Landlord
or any mortgagee of the Land or Building, each in the standard form generally in
use in the state in which the Premises are located from a company or companies
satisfactory to Landlord. The amount of such insurance coverages shall be
subject to increase upon the reasonable request of Landlord. Such insurance
shall be subject to modification, cancellation or nonrenewal only upon thirty
(30) days notice to Landlord and any mortgagee of the Land or Building. Tenant,
at or prior to the Commencement Date, and thereafter not less than thirty (30)
days prior to the expiration of any such policy, shall furnish Landlord with a
certificate of insurance of such coverage with a paid statement for the
19
premium due, such certificate to be in a form acceptable to Landlord and any
mortgagee of the Land or Building and naming Landlord, Landlord's managing agent
and any such mortgagee as additional insureds as their interests may appear (or
in the case of a mortgagee, by means of a standard mortgagee endorsement) and
shall specifically make reference to the indemnification obligations of Tenant
under this Lease. All insurance policies obtained by Tenant shall be written as
primary policies and not contradicting with or in excess of coverage which
Landlord may carry, if any.
B. Waiver of Subrogation. Landlord and Tenant hereby mutually waive
any and all rights of recovery, claims, actions or causes of action arising in
any manner in its (the "Injured Party's") favor against the other party for real
or personal property loss or damage occurring to the Premises or to the Building
or any part thereof or any personal property located therein, to the extent the
loss or damage is covered by the Injured Party's insurance, or would have been
covered by the insurance the Injured Party is required to carry under this
Lease. Landlord and Tenant shall be obligated to obtain consents from their
insurance carriers to a waiver of all rights of subrogation against each other
by inclusion of such a clause in their respective policies or by endorsements
thereto to the extent permitted by the laws and regulations governing insurance
in the state in which the Building is located.
C. Landlord's Insurance. Landlord shall, throughout the Term, maintain
"All-Risk" insurance on the Building (excluding any personal property, trade
fixtures or equipment owned or used by Tenant with respect to which Tenant is
obliged to maintain insurance pursuant to the provisions of Subparagraph 16A.
above) providing for the full replacement value thereof. Landlord shall also,
throughout the Term, maintain general commercial liability insurance providing
minimum coverage amounts of Two Million Dollars ($2,000,000.00) for bodily
injury, including death for any one occurrence, One Million Dollars
($1,000,00.00) for property damage and Two Million ($2,000,000.00) combined
single limit covering the Land (other than the Premises) and the Common Areas.
Landlord shall also maintain worker's compensation and employers liability
insurance for any employees of Landlord which may be used to carry out any of
Landlord's responsibilities hereunder. Landlord may also, but shall not be
obligated to, take out and carry any other form or forms of insurance as it or
the mortgagees of Landlord may reasonably determine advisable. Notwithstanding
any contribution by Tenant to the cost of insurance premiums, as provided for
herein, Tenant acknowledges that it has no right to receive any proceeds from
any such insurance policies carried by Landlord. Landlord will not carry
insurance of any kind on Tenant's furniture or furnishings, or any fixtures,
equipment, improvements or appurtenances of Tenant under this Lease; and
Landlord shall not be obligated to repair any damage thereto or replace the
same. Upon written request of Tenant, but no more than once per Lease Year,
Landlord shall furnish to Tenant a certificate of insurance evidencing such
insurance as Landlord may carry with a paid statement for the premium due.
Landlord's insurance coverage required hereunder shall comply with the terms of
Section 16.A. hereof.
17. DAMAGE OR DESTRUCTION.
A. Landlord's Duty to Repair and Restore. If all or a substantial part
of the Premises is rendered untenantable or inaccessible by damage to all or any
part of the Building from fire, the elements, accident or other casualty
(collectively, "Casualty") then, unless either
20
party is entitled, and elects, to terminate this Lease pursuant to Subparagraphs
B. and C. hereof, Landlord shall, at its expense, use reasonable efforts to
repair and restore the Premises and/or the Building, as the case may be, to
substantially their former condition to the extent permitted by then-applicable
laws; provided, however, that in no event shall Landlord have any obligation:
(i) to make repairs or restoration beyond the extent of insurance proceeds
received by Landlord for such repairs or restoration; (ii) to repair or restore
any of Tenant's personal property, trade fixtures, equipment, alterations or
improvements (except to the extent the same is included in Landlord's Work
hereunder or to the extent Landlord receives the proceeds of any insurance
therefor; or (iii) to repair or restore the Premises and/or the Building if such
Casualty resulted from the negligence or willful act of Tenant, its employees,
officers, agents, licensees, guests or visitors ("Tenant Parties") unless Tenant
shall be liable to Landlord for the cost and expense of such repairs and
restoration or unless Landlord receives the proceeds of any insurance covering
such costs.
If Landlord is required to repair damage to the Premises and/or the
Building: (i) this Lease shall continue in full force and effect but Tenant's
Annual Base Rent from the date of the Casualty through the date of substantial
completion of the repair shall be abated with regard to any portion of the
Premises that Tenant is prevented from using by reason of such damage or its
repair, unless such Casualty resulted from the negligence or willful act of
Tenant or Tenant Parties; and (ii) in no event shall Landlord by liable to
Tenant by reason of any injury to or interference with Tenant's business or
property arising from a Casualty or by reason of any repairs to any part of the
Building necessitated by the Casualty.
B. Landlord's and Tenant's Right to Terminate. Landlord or Tenant may
elect to terminate this Lease following damage caused by any Casualty under the
following circumstances: (i) if, in Landlord's reasonable judgment, the Premises
and the Building cannot be substantially repaired and restored under applicable
laws within two hundred seventy (270) days from the date of the Casualty; or
(ii) if adequate proceeds are not, for any reason, made available to Landlord
from Landlord's insurance policies to make the required repairs. Landlord only,
and not Tenant, may elect to terminate this Lease following damage caused by any
Casualty under the following circumstances: (a) if thirty percent (30%) or more
of the Premises is damaged or destroyed (including, without limitation, by smoke
or water damage); (b) if thirty percent (30%) or more of the Building is damaged
or destroyed (including, without limitation, by smoke or water damage); (c) if
the Building is damaged or destroyed (including, without limitation, by smoke or
water damage) to the extent that, in Landlord's sole judgment, the cost to
repair and/or restore the Building would exceed twenty-five (25%) percent of the
full replacement cost of the Building; or (d) if the Casualty occurs during the
last twenty-four (24) months of the Term (provided that if such Casualty occurs
during the last twenty-four (24) months of the Term and Tenant pays to Landlord,
on demand, the unamortized costs of all Tenant Finish or other improvements made
to the Building or Premises by Landlord, or made at Landlord's expense, plus a
penalty equal to twenty percent (20%) of the Annual Base Rent which would be due
for the remainder of the Term if the Lease were not terminated, Tenant may elect
to terminate this Lease).
C. Notice. If any of the circumstances described in Subparagraph B.
above occur or arise, Landlord shall notify Tenant in writing of that fact
within 120 days after the date
21
of the Casualty and in such notice Landlord shall also advise Tenant whether
Landlord has elected to terminate this Lease as provided in Subparagraph B.
hereof.
D. Waiver. Tenant hereby waives the provisions of any applicable
statutory or common law permitting the termination of a lease agreement in the
event of damage to, or destruction of, any part or all of the Premises and/or
the Building by a Tenant.
18. EMINENT DOMAIN. If the whole of the Building (or the real property upon
which it is located) or the whole of the Premises shall be taken by the exercise
of the power of eminent domain or pursuant to any agreement in lieu of the
exercise of such power (hereinafter called a "Condemnation Proceeding"), then
this Lease shall terminate as of the date of the taking of possession by the
condemning authority (such date being hereinafter called the "Taking Date"). If
less than the whole of the Building (or the real property upon which it is
located) or less than the whole of the Premises shall be taken in a Condemnation
Proceeding, Tenant may at its option terminate this Lease as of the Taking Date
by giving notice of its exercise of such option within sixty (60) days after the
Taking Date, provided that as a result of such taking the Premises (or the
remaining portion thereof) in the reasonable opinion of Landlord or Tenant may
no longer be adequately used for the Permitted Use. If a portion of the Premises
shall be taken and Tenant shall not exercise its option to terminate this Lease
or if such taking shall not give rise to such option to terminate, then this
Lease shall terminate on the Taking Date only as to that portion of the Premises
so taken but shall remain in full force and effect with respect to that portion
of the Premises not so taken, and the Rent and other charges payable by Tenant
hereunder shall be reduced in the ratio in which the diminution of the rentable
square footage of the Premises following the Taking Date shall bear to the
rentable square footage thereof immediately prior to such Taking Date. All
income, rent, awards or interest derived from any Condemnation Proceeding shall
belong to and be the property of Landlord, but this shall not preclude Tenant
from making a claim in such Condemnation Proceeding for the taking of Tenant's
personal property and fixtures, for Tenant's moving expenses and for the value
of Tenant's leasehold improvements to the extent directly paid for by Tenant to
a third-party contractor without credit or reimbursement from Landlord.
19. FORCE MAJEURE. Neither Landlord nor Tenant shall be required to perform
any term provision, condition or covenant in this Lease (other than the
obligation of Tenant to pay Rent as provided herein) so long as such performance
is delayed or prevented by "Force Majeure". "Force Majeure" shall mean acts of
God, strikes, injunctions, lock-outs, material or labor restrictions by any
government or authority, civil rights, floods, fire, theft, public enemy,
insurrection, war, terrorist act, court order, requisition or order of
governmental body or authority and any other cause not reasonably within the
control of Landlord or Tenant, as applicable, and which by the exercise of due
diligence by Landlord or Tenant, as applicable, is unable, wholly or in part to
prevent or overcome. Neither Landlord nor any mortgagee shall be responsible to
Tenant for any loss or damage to any property or person occasioned by any Force
Majeure or for any damage or inconvenience which may arise through repair or
alteration of any part of the Building as a result of any Force Majeure.
22
20. DEFAULTS AND REMEDIES; BANKRUPTCY.
A. Defaults. The occurrence of any one or more of the following events
shall constitute a default by Tenant under this Lease ("Default");
(i) if Tenant shall fail to pay any installment of Rent or any
other sum required to be paid by Tenant under this Lease and
such failure shall continue for ten (10) days after payment
thereof is due; or
(ii) if Tenant shall default in the observance or performance of
any of the other covenants or conditions in this Lease to be
performed by Tenant (including any of the Rules and
Regulations now or hereafter established to govern the
Building) and such default shall continue for thirty (30)
days after written notice to Tenant, or if such default is
of a nature that it cannot be cured within thirty (30) days,
if Tenant shall fail to commence to cure such default within
such thirty (30) day period or to diligently pursue such
cure;
Provided, however, that if Tenant shall default with respect to
such payments or observances or performances more than twice in
any six (6) month period within the Term, then no notice of any
further default with respect to such matters within such period
shall be required hereunder; or
(iii)if a default involves a hazardous condition or an event
which in Landlord's judgment is materially detrimental to
the Building and within the control of Tenant, and is not
cured by Tenant immediately upon written notice to Tenant;
or
(iv) if the interest of Tenant in this Lease shall be levied upon
under execution or other legal process; or
(v) if any voluntary petition in bankruptcy or for corporate
reorganization or any similar relief shall be filed by
Tenant, or if any involuntary petition in bankruptcy shall
be filed against Tenant under any federal or state
bankruptcy or insolvency act and shall not have been
dismissed within sixty (60) days following the filing
thereof, or if a receiver or trustee shall be appointed for
Tenant or any of the property of Tenant by any court and
such receiver shall not be dismissed within sixty (60) days
from the date of appointment, or if Tenant shall make an
assignment for the benefit of creditors, or if Tenant shall
admit in writing its inability to meet its debts as they
mature; or
(vi) if Tenant shall abandon or vacate the Premises or any
substantial
23
portion thereof, or if the Premises or any substantial
portion thereof are vacant for more than thirty (30) days
during the Term.
B. Remedies. Landlord may treat the occurrence of any one or more of
the foregoing Defaults as a breach of this Lease and thereupon at its option
may, without further notice or demand except as specifically provided for
herein, exercise any one or more of the following described remedies, in
addition to all other rights and remedies provided at law or in equity:
(i) Landlord may continue this Lease in full force and effect,
and this Lease shall continue in full force and effect as long as
Landlord does not terminate this Lease, and Landlord shall have the
right to collect all Rent and other charges hereunder when due; and/or
(ii) Landlord shall have the right at any time thereafter to give
written notice of termination to Tenant and on the termination date
specified in such notice (which shall not be less than ten (10) days
after the giving of such notice), unless the Default is cured on or
before such termination date, this Lease shall terminate and come to
an end as fully and completely as if such date were the day herein
definitely fixed for the expiration of this Lease, and Tenant shall
remain liable as hereinafter set forth. In the event of any such
termination of this Lease, Landlord may then or at any time
thereafter, re-enter the Premises as set forth hereafter. If this
Lease is so terminated, then Tenant shall pay Landlord on demand: (a)
the amount of all past due Rent and other losses and damages which
Landlord may suffer as a direct result of Tenant's default; (b) the
amount of any unamortized improvements to the Building and/or the
Premises paid for by Landlord; (c) the amount of any unamortized
brokerage commissions or other costs paid by Landlord in connection
with this Lease; and (d) a sum equal to the amount by which (if any):
(x) the present value of the total Rent and other benefits which would
have accrued to Landlord under this Lease for the remainder of the
Term, if the terms of this Lease had been fully complied with by
Tenant, discounted at eight percent (8%) per annum, exceeds (y) the
total fair market value of the Premises for the balance of the Term.
In the event Landlord shall elect to terminate this Lease, Landlord
shall have all the rights of free entry upon the Premises, without
becoming liable for damages or being guilty of trespass; and/or
(iii) Landlord shall have the right, upon not less than ten (10)
days prior written notice given in accordance with applicable law,
unless the Default is cured within such ten (10) day period, to
re-enter and repossess the Premises by forcible entry or unlawful
detainer suit or other judicial process in compliance with applicable
law, and remove all persons and property (including, without
limitation, Tenant and Tenant's property) therefrom, without
terminating this Lease, in which event Landlord shall be obligated to
use commercially reasonable efforts to re-let the Premises for the
account of Tenant, for such rent and upon such terms as shall be
reasonably satisfactory to Landlord. If Landlord re-enters and re-lets
as provided herein, then such re-entry or re-letting shall not be
construed as a termination of this Lease (unless Landlord has given
written notice to Tenant of termination of this Lease pursuant to
subsection (ii) above), and Tenant shall be liable to Landlord and
shall pay to Landlord all Rent and other amounts due
24
and payable by Tenant under the terms of this Lease (reduced by any
sums received by Landlord through any re-letting of the Premises);
provided, in no event shall Tenant be entitled to any excess of sums
obtained by Landlord by re-letting over and above the Rent provided in
this Lease to be paid by Tenant to Landlord. If Landlord shall fail to
re-let the Premises after using commercially reasonable efforts to do
so, Tenant shall remain liable for monthly Rent as the same comes due
under this Lease, or, in lieu thereof, at Landlord's sole option,
Tenant shall pay to Landlord, upon demand, a sum equal to the then due
amounts described in clauses (a) through (d) in subsection (ii) above.
Landlord shall have the right to make such alterations and repairs to
the Premises that they may deem necessary in their commercially
reasonable discretion to procure a replacement tenant for the
Premises. Tenant shall also pay to Landlord as soon as ascertained,
any reasonable costs and expenses incurred by Landlord in such
re-letting or in making such alterations and repairs not covered by
the rentals received from such re-letting. Landlord may file suit from
time to time to recover such sums falling due and no suit or recovery
of any portion due Landlord hereunder shall be any defense to any
subsequent action brought for any amount not previously reduced to
judgment in favor of Landlord. Notwithstanding any such re-entry
and/or re-letting without termination, Landlord may at any time
thereafter elect to terminate this Lease and/or exercise any of its
rights pursuant to Subparagraph 20B of this Lease.
(iv) Landlord may enter upon the Premises and do whatever Tenant
is obligated to do under the terms of this Lease and Tenant agrees to
reimburse Landlord on demand for any expenses which Landlord may incur
in affecting compliance with Tenant's obligation under this Lease plus
fifteen percent (15%) of such cost to cover overhead, plus interest at
the past due rate provided in Paragraph 6.B. of this Lease, and Tenant
further agrees that Landlord shall not be liable for any damages
resulting to Tenant from such action. No action taken by Landlord
under this Subparagraph 20.B.(iv) shall relieve Tenant from of its
obligations under this Lease or from any consequences or liabilities
arising from the failure to perform such obligations;
(v) Without waiving such Default, apply all or any part of the
Security Deposit and/or any unapplied prepaid rent to secure the
Default or to any damages suffered as a result of the default to the
extent of the amount of damages suffered. Tenant shall reimburse
Landlord for the amount of such depletion of the Security Deposit
and/or any prepaid rent on demand;
(vi) Change all door locks and other security devices of the
Tenant at the Premises and/or the Building, and Landlord shall not be
required to provide new keys to the Tenant except during Tenant's
regular business hours, and only upon the condition that Tenant has
secured any and all Defaults hereunder, and in the case where Tenant
owes Rent to the Landlord, reimbursed Landlord for all Rent and other
sums due Landlord hereunder. Landlord, on terms and conditions
satisfactory to Landlord in its sole discretion, may upon request from
Tenant's employees, enter the Premises for the purpose of retrieving
therefrom personal property of such employees, provided, Landlord
shall have no obligation to do so; and/or
25
(vii)Exercise any and all other remedies available to Landlord
under this Lease, at law or in equity.
Landlord agrees that it shall use reasonable efforts to mitigate the
damages caused by Tenant's default under this Lease, if required to do so by
applicable law.
C. Re-entry. If Tenant fails to allow Landlord to re-enter and
repossess the Premises, Landlord shall have full and free license to enter into
and upon the Premises with or without process of law for the purpose of
repossessing the Premises, expelling or removing the Tenant and any others who
may be occupying or otherwise within the Premises, removing any and all property
there from and changing all door locks to the Premises. Landlord may take these
actions without being deemed in any manner guilty of trespass, eviction or
forcible entry or detainer, without accepting surrender of the possession of the
Premises by Tenant, and without incurring any liability for any damages
resulting therefrom, including without limitation, any liability arising under
applicable state law and without relinquishing Landlord's right to Rent or any
other right given to Landlord hereunder, or by operation of law, or in equity,
Tenant hereby waiving any right to claim damage for such re-entry and expulsion,
including without limitation, any rights granted to Tenant by applicable state
law.
D. Bankruptcy. The following shall be events of bankruptcy ("Events of
Bankruptcy") under this Lease:
[1] Tenant's becoming insolvent, as that term is defined under
the Bankruptcy Code, or under the insolvency laws of any state,
district, commonwealth or territory of the United States (the
"Insolvency Laws"):
[2] The appointment of a receiver or custodian for any material
part of Tenant's property or assets, or the institution of a
foreclosure action upon any material part of Tenant's real or personal
property;
[3] The filing of a voluntary petition under the provisions of
the Bankruptcy Code or Insolvency Laws;
[4] The filing of an involuntary petition against Tenant as the
subject debtor under the Bankruptcy Code or Insolvency Laws, which
either [a] is not dismissed within thirty (30) days of filing, or [b]
results in the issuance of an order for relief against the debtor; or
[5] Tenant's making or consenting to an assignment for the
benefit of creditors or a common law composition of creditors.
Upon the occurrence of an Event of Bankruptcy, Landlord shall have all
rights and remedies available to Landlord pursuant to Subparagraph 20.B. hereof;
provided that, while a case under the Bankruptcy Code is pending in which Tenant
is the subject debtor and only for so long as Tenant or its Trustee in
Bankruptcy (hereinafter referred to as "Trustee") is in compliance with the
provisions of Subparagraphs E., F. and G. below, Landlord shall not exercise its
rights and remedies pursuant to Subparagraph 20.B. hereof.
26
E. Assumption. If Tenant becomes the subject debtor in a case pending
under the Bankruptcy Code, Landlord's right to terminate this Lease pursuant to
Subparagraph 20.B. above shall be subject to the rights of Trustee to assume or
assign this Lease. Trustee shall not have the right to assume or assign this
Lease unless Trustee promptly [i] cures all defaults under this Lease, [ii]
compensates Landlord for monetary damages incurred as a result of such defaults,
and [iii] provides "adequate assurance of future performance" on the part of the
Tenant as debtor in possession or on the part of the assignee tenant.
F. Adequate Assurance. Landlord and Tenant hereby agree in advance
that "adequate assurance of future performance," as used in Subparagraph E.
above, shall mean that all of the following minimum criteria must be met:
[1] Trustee must agree that Tenant's business shall be conducted
in a first-class manner, and that no liquidating sales, auctions, or
other non-first-class business operations shall be conducted on the
Premises;
[2] Trustee must agree that the use of the Premises as stated in
this Lease will remain unchanged and that no prohibited use shall be
permitted;
[3] Trustee must agree that the assumption or assignment of this
Lease will not violate or affect the rights of any sublessees of space
in the Premises;
[4] Trustee must pay to Landlord at the time the next monthly
installment of Rent is due under this Lease, in addition to such
Monthly Base Rent Installment of rent, an amount equal to the Monthly
Base Rent Installments due under this Lease for the next three (3)
months, said amount to be held by Landlord in escrow until either
Trustee or Tenant defaults in its payment of rent or other obligations
under this Lease (whereupon Landlord shall have the right to draw on
such escrowed funds to pay all or any portion of unpaid sums due under
this Lease) or until the expiration of this Lease (whereupon the funds
shall be returned to Trustee or Tenant); and
[5] Tenant or Trustee must agree to pay to Landlord promptly at
any time Landlord is authorized to and does draw on the escrow account
the amount necessary to restore such escrow account to the original
level required by Subparagraph [4] of this Subparagraph F.
G. Termination. In the event Tenant is unable to [i] cure its
defaults, [ii] promptly reimburse the Landlord for its monetary damages, [iii]
pay the rent and all other payments required of Tenant under this Lease when due
hereunder, or [iv] meet the criteria and obligations imposed by Subparagraph
20.F. above, Tenant agrees in advance that it has not met its burden to provide
"adequate assurance of future performance," and this Lease may be terminated by
Landlord in accordance with Subparagraph 20.B. above.
H. Landlord's Liens. Landlord does not hereby waive any lien on or
security interest in any of Tenant's personal property, fixtures, furniture and
equipment of Tenant situated on the Premises which Landlord may have as security
for the payment of Rent owed and the
27
performance of the agreements of this Lease by Tenant; provided, however,
Landlord agrees to subordinate any such lien or security interest and execute a
subordination, in form and substance acceptable to Landlord, of any such lien if
required or requested by any lender or creditor of Tenant which holds a lien on
or security interest in such personal property, fixtures, furniture or
equipment.
I. Remedies Cumulative. All rights, options and remedies of Landlord
contained in this Lease shall be construed and held to be cumulative, and not
one of them shall be exclusive of the other, and Landlord shall have the right
to pursue any one or all of such remedies or any other remedy or relief which
may be provided by law, whether or not stated in this Lease. No waiver of any
default of Tenant hereunder shall be implied from any acceptance by Landlord of
any Rent or other payments due hereunder or any omission by Landlord to take any
action on account of default if such default persists or is repeated, and no
express waiver shall affect defaults other than as specified in said waiver. The
consent or approval of Landlord to or of any act by Tenant requiring Landlord's
consent or approval shall not be deemed to waive or render unnecessary
Landlord's consent or approval to or of any subsequent similar acts by Tenant.
J. Landlord's Defaults. Landlord shall in no event be in default in
the performance of any of its obligations under this Lease unless and until
Landlord shall have failed to perform such obligation within thirty (30) days
(or, if the default is of a nature that it cannot be cured within thirty (30)
days, such additional time as is reasonably required to correct any such
default) after notice by Tenant to Landlord in writing and pursuant to the terms
of this Lease specifying wherein Landlord has failed to perform any such
obligation. If Landlord fails to cure such a default within such time period,
then Tenant may cure such default on behalf of Landlord and Landlord shall
reimburse Tenant for its actual out-of-pocket costs of curing such default
within ten (10) business days after receipt of a written request for
reimbursement from Tenant accompanied by any invoices or other documents
evidencing Tenant's payment of such costs to cure.
21. ABANDONMENT OF PERSONAL PROPERTY. Any personal property left in the
Premises or any personal property of Tenant left about the Building at the
expiration or termination of this Lease, the termination of Tenant's right to
occupy the Premises or the abandonment or vacating of the Premises by the Tenant
shall be deemed abandoned by Tenant and may, at the option of Landlord, be
immediately removed from the Premises or such other space by Landlord and stored
by Landlord at the full risk and cost of Tenant. Landlord shall in no event be
responsible for value, preservation or safe keeping thereof. In the event that
Tenant does not reclaim such personal property and pay all costs for any storage
and moving thereof within ten (10) days after the expiration or termination of
the Lease, the termination of Tenant's right to occupy the Premises or the
abandonment or vacating of the Premises by Tenant, Landlord may dispose of such
personal property in any way that it deems proper. If Landlord shall sell any
such personal property, it shall be entitled to retain from the proceeds the
amount of any Rent or other expenses due Landlord, together with the cost of
storage and moving in the expense of sale. Notwithstanding anything contained to
the contrary, in addition to the rights provided herein with respect to any such
property, Landlord shall have the option of exercising any of its other rights
or remedies provided in this Lease or exercise any rights or remedies available
to Landlord at law or in equity.
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22. TRANSFERS.
A. Prohibited. Tenant shall not, by operation of law or otherwise, do
or allow any of the following (collectively, a "Transfer") without the prior
written consent of Landlord, except as may otherwise be expressly provided for
in this Paragraph 22:
(i) assign, transfer, mortgage, pledge, hypothecate or otherwise
encumber this Lease, the Premises, the Building or any part of or
interest in this Lease, the Premises or the Building;
(ii) grant any concession or license within the Building;
(iii) sublet all or any part of the Premises (provided, Landlord
agrees that it shall not unreasonably withhold its consent to a
subletting of the Premises if neither Tenant nor its brokers or agents
have advertised the Premises as being available for subletting at a
rental rate less than the rental rate charged under this Lease and
Tenant is not released from performing its obligations under this
Lease); or
(iii) permit any other party to occupy or use all or any part of the
Premises, except as otherwise provided herein.
This prohibition against a Transfer includes, without limitation, (a)
any subletting or assignment which would otherwise occur by operation of
law, merger, consolidation, reorganization, transfer or other change of
Tenant's corporate or proprietary structure; (b) an assignment or
subletting to or by a receiver or Trustee in any Federal or state
bankruptcy, insolvency or other proceeding; (c) the sale, assignment or
transfer of all or substantially all of the assets of Tenant, with or
without specific assignment of this Lease; (d) the change in control of
Tenant; or (e) conversion of Tenant to a limited liability entity.
If Tenant requests Landlord's consent to any Transfer, then Tenant
shall provide Landlord with a written description of all terms and
conditions of the proposed Transfer, copies of the proposed documentation,
and the following information about the proposed transferee: name and
address; reasonably satisfactory information about its business and
business history; its proposed use of the Premises; a copy of the proposed
sublease or assignment agreement; banking, financial and other credit
information; and general references sufficient to enable Landlord to
determine the proposed transferee's creditworthiness and character.
Landlord's consent to any sublease of all or any part of the Premises shall
not release Tenant from performing its obligations under this Lease, but
Tenant shall remain primarily liable therefor. Landlord's consent to any
Transfer shall not waive Landlord's rights as to any subsequent Transfer.
In the event that Tenant is in default of any of its continuing obligations
under this Lease while the Premises or any part thereof are subject to a
Transfer, Landlord may collect directly from such transferee all rents or
other sums relating to the Premises becoming due to Tenant or Landlord and
apply such rents and other sums against the Rent and any other sums payable
hereunder. If the aggregate annual rental, bonus or other consideration
paid by a
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transferee for any such space exceeds the sum of (y) Tenant's Rent to be
paid to Landlord for such space during such period and (z) Tenant's costs
and expenses actually incurred in connection with such Transfer, including
reasonable brokerage fees, reasonable costs of finishing or renovating the
space affected and reasonable cash rental concessions, which costs and
expenses are to be amortized over the term of the Transfer, then twenty
five percent (25%) of such excess shall be paid to Landlord within fifteen
(15) days after such amount is earned by Tenant. Such overage amounts in
the case of a sublease shall be calculated and adjusted (if necessary) on a
lease year (or partial lease year) basis and there shall be no cumulative
adjustment for the Term. Landlord shall have the right to audit Tenant's
books and records relating to the Transfer. Tenant authorizes its
transferees to make payments of rent and any other sums due and payable,
directly to Landlord upon receipt and notice from Landlord to do so. Any
attempt to Transfer by Tenant in violation of the terms and covenants of
this Paragraph 22 shall be void and shall constitute a Default by Tenant
under this Lease. In the event that Tenant requests that Landlord consider
a sublease or assignment hereunder, Tenant shall pay (i) Landlord's
reasonable fees, not to exceed $1,000.00 per transaction, incurred in
connection with the consideration of such request, and (ii) all attorneys'
fees and costs incurred by Landlord in connection with the consideration of
such request or such sublease or assignment.
Notwithstanding anything to the contrary contained in this Paragraph 22,
Tenant may assign this Lease or sublease or license the Premises in whole or in
part, upon ten (10) days prior written notice to Landlord (but without the
consent of Landlord) to an "Affiliate" of Tenant. An "Affiliate" is any company
which controls Tenant, is controlled by Tenant, or is controlled by the same
company which controls Tenant. For purpose of this Paragraph 22, "Control" means
ownership of at least fifty percent (50%) of the outstanding voting securities
of such company. Furthermore, in the event any assignment would occur by
operation of law pursuant to a merger, consolidation or change in Tenant's
corporate structure by Tenant, or the acquisition of Tenant by another entity,
Landlord agrees not to unreasonably withhold its consent to such assignment (and
the parties agree that it shall be reasonable for Landlord to review and take
into consideration such proposed transferee's financial condition and
creditworthiness in making such determination) if all of the other terms and
conditions for an assignment contained in the immediately preceding subparagraph
of this Paragraph 22 are met by Tenant and shall continue to be applicable to
Tenant. Landlord agrees to provide Tenant with written notice of its consent or
refusal to consent to such an assignment within ten (10) days after receipt of a
written request therefor from Tenant, which request shall include all of the
items listed in the first sentence of the immediately preceding subparagraph of
this Paragraph 22.
B. Landlord's Transfer. Landlord shall have the right at any time to
sell, transfer or assign, in whole or in part by operation of law or otherwise,
their rights, benefits, privileges, duties, obligations or interests in this
Lease or in the Premises, the Building, or the Land and all other property
referred to herein, without the prior consent of Tenant, and such sale, transfer
or assignment shall be binding on Tenant. After such sale, transfer or
assignment, Tenant shall attorn to such purchaser, transferee or assignee, and
Landlord shall be released from all liabilities and obligations under this Lease
accruing after the effective date of such sale, transfer or
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assignment, provided Tenant shall be provided with a commercially reasonable
non-disturbance agreement from such transferee, as described below.
23. ESTOPPEL CERTIFICATE, ATTORNMENT, SUBORDINATION.
A. Subordination. Provided that Landlord has obtained, in favor of
Tenant, a written agreement of the ground lessor or any mortgagee of Landlord,
that Tenant's use and possession of the Premises and other rights under this
Lease shall not be disturbed so long as Tenant is not in Default under this
Lease, this Lease shall be subject and subordinated at all times to (a) all
ground or underlying leases now existing or which may hereinafter be executed
affecting the Property, and (b) the lien or liens of all mortgages and deeds of
trust in any amount or amounts whatsoever now or hereafter placed on the Land
and/or Building or Landlord's replacements and extensions thereof, and to each
advance made or hereafter to be made thereunder. Tenant shall execute and
deliver upon execution of this Lease, and, thereafter, within fifteen (15)
business days after delivery of a written request therefor a subordination,
non-disturbance and attornment agreement ("SNDA") in form and substance similar
to the form SNDA attached hereto and made a part hereof as Exhibit E. Tenant
shall attorn to any other party succeeding to Landlord's interest in the
Premises, whether by purchase, foreclosure, deed in lieu of foreclosure, power
of sale, termination of lease or otherwise, only upon such party's request and
at such party's sole discretion but not otherwise. Notwithstanding the above,
Tenant agrees that any successor in interest to Landlord shall not be (a) liable
for any act or omission of, or subject to any rights of setoff, claims or
defenses otherwise assertable by Tenant against, any prior owner of the Land
and/or Building (including without limitation, Landlord) (b) bound by any rents
paid more than one (1) month in advance to any prior owner, (c) liable for any
Security Deposit not paid over to such successor by Landlord, and (d) if such
successor is a mortgagee or a ground lessor whose address has been previously
given to Tenant, bound by any modification, amendment, extension or cancellation
of the Lease not consented to in writing by such mortgagee or ground lessor.
Tenant shall not seek to enforce any remedy it may have for any default on the
part of Landlord without first giving written notice by certified mail, return
receipt requested, specifying the default in reasonable detail, to any mortgagee
or lessor under a lien instrument or ground lease covering the Land and/or
Building whose address has been given to Tenant, and affording such mortgagee or
lessor a reasonable opportunity to perform Landlord's obligations hereunder.
Tenant hereby irrevocably appoints Landlord as its attorney-in-fact in its name,
place and stead to execute any such SNDA which Tenant fails to execute within
fifteen (15) business days after delivery of a written request for such SNDA.
B. Estoppel Certificate or Three-Party Agreement. Tenant agrees within
fifteen (15) business days (ten (10) business days for the Landlord's first loan
to close after the date of this Lease) following written request by Landlord (a)
to execute, acknowledge and deliver to Landlord and any other persons specified
by Landlord, a certificate or three-party agreement among Landlord, Tenant
and/or any third-party dealing with Landlord, certifying (i) that this Lease is
unmodified and in full force and effect, or, if modified, stating the nature of
such modification (ii) the date to which the Rent and other charges are paid in
advance, if any, (iii) that there are not, to Tenant's knowledge, any uncured
defaults on the part of Landlord hereunder, or so specifying such defaults, if
any, as are claimed and/or (iv) any other matters as such third party may
reasonably require in connection with the business dealings of Landlord
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and/or such third-party and (b) to deliver to Landlord current financial
statements of Tenant, including a balance sheet and a profit and loss statement
for at least two (2) years, all prepared in accordance with generally accepted
accounting principles consistently applied. Tenant's failure to deliver such
certificate or three-party agreement within such fifteen (15) business day
period shall be conclusive upon Tenant (x) that this Lease is in full force and
effect without modification except as may be represented by Landlord, (y) that
to Tenant's knowledge there are no uncured defaults in Landlord's performance,
and (z) that no Rent has been paid in advance except as set forth in this Lease.
Tenant hereby irrevocably appoints Landlord its attorney-in-fact in its name,
place and stead to execute any such certificate or three-party agreement which
Tenant fails to execute within such fifteen (15) business day period.
24. RULES AND REGULATIONS. Tenant shall, and shall cause its employees,
invitees, agents, visitors and licensees to, observe faithfully and comply with
the "Rules and Regulations," set forth on Exhibit D attached hereto as a part
hereof, and any violation of such Rules and Regulations shall be a default by
Tenant under this Lease. Landlord shall have the right to make reasonable
changes in and additions to these rules and regulations, provided such changes
and additions do not unreasonably affect the conduct of Tenant's business.
Landlord shall not be responsible to Tenant for the violation or non-performance
by any other tenant or occupant of the Building of any of said Rules and
Regulations. Tenant acknowledges that it has received a copy of the Rules and
Regulations.
25. CONFLICT OF LAWS. This Lease shall be governed by and construed under
the laws of the State in which the Premises are located.
26. SUCCESSORS AND ASSIGNS. Except as otherwise provided in this Lease, all
of the covenants, conditions and provisions of this Lease shall be binding upon
and shall inure to the benefit of the parties hereto and their respective heirs,
personal representatives and permitted successors and assigns, and shall survive
the termination of this Lease.
27. ATTORNEYS' FEES. If it becomes necessary for Landlord or Tenant to
employ an attorney or to bring suit for the possession of the Premises, for the
recovery of any sum due under this Lease, or because of the breach of any
provisions of this Lease, or for any other relief against the other party
hereunder, then all costs and expenses, including reasonable attorneys' fees,
whether or not suit is filed, incurred by the claiming party shall be paid by
the other party if the claiming party's claim is successful.
28. DEFINITION OF LANDLORD. The term "Landlord" as used in this Lease, so
far as covenants or obligations on the part of Landlord are concerned, shall be
limited to mean and include only the owner of the Building and Land designated
as "Landlord" in Paragraph 1. In the event of any transfer, assignment or other
conveyance or transfers of any such title or leasehold, Landlord herein named
(and in case of any subsequent transfers or conveyances, the then grantor) shall
be automatically freed and relieved from and after the date of such transfer,
assignment or conveyance of all liability as respects the performance of any
covenants or obligations on the part of Landlord contained in this Lease
thereafter to be performed.
29. WAIVER. The waiver by Landlord of any breach of any term, covenant or
condition herein contained shall not be deemed to be a waiver of any subsequent
breach of the
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same or any other term, covenant or condition herein contained, nor shall any
custom or practice which may grow up between the parties in the administration
of the terms hereof be deemed a waiver of, or in any way affect, the right of
Landlord to insist upon the performance by Tenant in strict accordance with said
terms. The subsequent acceptance of Rent hereunder by Landlord shall not be
deemed to be a waiver of any preceding breach by Tenant of any term, covenant or
condition of this Lease, other than the failure of Tenant to pay the particular
Rent so accepted, regardless of Landlord's knowledge of such preceding breach at
the time of acceptance of such Rent.
30. IDENTIFICATION OF TENANT. If more than one person or entity executes
this Lease as Tenant, [a] each of them shall be jointly and severally liable for
the keeping, observing and performing of all of the terms, covenants,
conditions, provisions and agreements of this Lease to be kept, observed and
performed by Tenant, and [b] the term "Tenant" as used in this Lease shall mean
and include each of them jointly and severally and the act of or notice from, or
notice or refund to, or the signature of, any one or more of them, with respect
to the tenancy of this Lease, including, but not limited to, any renewal,
extension, expiration, termination or modification of this Lease, shall be
binding upon each and all of the persons executing this Lease as Tenant with the
same force and effect as if each and all of them had so acted or so given or
received such notice or refund or so signed.
31. TERMS AND HEADINGS. The words "Landlord" and "Tenant" as used herein
shall include the plural as well as the singular. Words used in any gender
include other genders. The Paragraph headings of the Lease are not a part of
this Lease and shall have no effect upon the construction or interpretation of
any part hereof.
32. EXAMINATION OF LEASE. Submission of the form of this Lease for
examination shall not bind Landlord in any manner, and no lease or other
obligation of Landlord shall arise until this instrument is signed by both
Landlord and Tenant, approved by the holder of any mortgage, deed of trust or
other financial encumbrance on the Building having such approval rights, and
delivery is made to each party.
33. TENANT'S AUTHORITY. Each of Landlord and Tenant, hereby covenants and
warrants that: [a] it is a duly organized, validly existing entity in good
standing, authorized and qualified to transact business in the Commonwealth of
Kentucky with no proceedings pending or contemplated for its dissolution or
reorganization, voluntarily or involuntarily; [b] the person executing this
Lease on its behalf is an officer of same who is duly authorized to sign and
execute this Lease on its behalf; and [c] this Lease is a valid and binding
obligation of such party, enforceable in accordance with its terms.
34. TIME. Time is of the essence with respect to the performance and
observance of all the terms, covenants and conditions contained in this Lease.
35. PRIOR AGREEMENTS; AMENDMENTS. This Lease contains all of the agreements
of the parties hereto with respect to any matter covered or mentioned in this
Lease and, as of the Commencement Date, no prior agreement or understanding
(including the BBCIA Lease or the BBCIB Lease, which shall terminate as of the
Commencement Date) pertaining to any such matter shall be effective for any
purpose. No provision of this Lease may be amended
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or added to except by an agreement in writing signed by the parties hereto or
their respective successors in interest.
36. PARTIAL INVALIDITY. If any term, covenant or condition of this Lease or
the application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term, covenant or condition to persons or circumstances other than those to
which it is held invalid or unenforceable, shall not be affected thereby; and
such term, covenant or condition of this Lease shall be valid and be enforced to
the fullest extent permitted by law.
37. RECORDING. Tenant shall not record this Lease nor a short form
memorandum thereof, without the prior written consent of the Landlord. Tenant
shall pay all costs, fees and other expenses in connection with or prerequisite
to recording.
38. LIMITATION ON LIABILITY. Anything contained in this Lease to the
contrary notwithstanding, Tenant agrees that Tenant shall look solely to the
estate and property of the Landlord in the Land and Building for the collection
of any judgment (or other judicial process) requiring the payment of money by
Landlord in the event of any default or breach by Landlord with respect to any
of the terms and provisions of this Lease to be observed and/or performed by
Landlord, subject, however, to the prior rights of any ground or underlying
lessor or the holder of any mortgage covering the Land and Building, and no
other assets of the Landlord shall be subject to levy, execution or other
judicial process for the satisfaction of Tenant's claims. In the event Landlord
conveys or transfers its interest in the Land or Building, or in this Lease,
except as collateral security for a loan, upon such conveyance or transfer
Landlord (and in the case of any subsequent conveyances or transfers, the then
grantor or transferor) shall be entirely released and relieved from all
liability with respect to the performance or any covenants and obligations on
the part of the Landlord to be performed hereunder from and after the date of
such conveyance or transfer; it being intended hereby that the covenants and
obligations on the part of the Landlord to be performed hereunder shall subject
as aforesaid, be binding on Landlord, its successors and assigns only during and
in respect of its period of ownership of an interest in the Land or Building or
in this Lease. This provision shall not be deemed, construed or interpreted to
be or constitute any agreement, express or implied, between Landlord and Tenant
that the Landlord's interest hereunder and in the Land and Building shall be
subject to impressments of an equitable lien or otherwise.
39. RIDERS. Clauses, plats, riders and exhibits, if any, affixed to this
Lease are made a part hereof.
40. SIGNS AND AUCTIONS. Tenant shall not place any sign upon the Premises
or the Building or conduct any auction on the Land or in the Building without
Landlord's prior written consent.
41. MORTGAGEE'S APPROVAL. If any mortgagee of the Building requires any
commercially reasonable modification of the terms and provisions of this Lease
as a condition to its financing, then Landlord shall have the right to cancel
and terminate this Lease if Tenant unreasonably withholds, delays or conditions
its approval or execution of such modification(s) beyond thirty (30) days after
Landlord's request therefore, so long as such requested
34
modifications do not materially change the financial or other business terms of
this Lease. Upon such cancellation by Landlord, this Lease shall be null and
void and neither party shall have any liability either for damages or otherwise
to the other by reason of such cancellation. In no event, however, shall Tenant
be required to agree, and Landlord shall not have any right of cancellation for
Tenant's refusal to agree, to any modification of the provisions of this Lease
relating to: [a] the amount of Rent or other charges reserved herein; [b] the
size and/or location of the Premises; [c] the duration and/or Commencement Date
of the Term, [d] reducing the improvements to be made by Landlord to the
Premises pursuant to this Lease or the Work Letter Agreement, or [e] other
financial or other business terms of this Lease.
42. ACCORD AND SATISFACTION. No payment by Tenant or receipt by Landlord of
a lesser amount than the Rent payment herein stipulated shall be deemed to be
other than on account of the Rent, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as Rent be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such Rent or pursue any
other remedy provided in this Lease. Tenant agrees that each of the foregoing
covenants and agreements shall be applicable to any covenant or agreement either
expressly contained in this Lease or imposed by any statute or at common law.
43. FINANCIAL STATEMENTS. At any time during the Term of this Lease, but in
no event more often than one (1) time during any Lease Year, Tenant shall, upon
ten (10) days prior written notice from Landlord, provide Landlord with its most
recent financial statement and financial statements of the two (2) years prior
to the Tenant's last financial statement year. Such statement shall be prepared
in accordance with generally accepted accounting principles and audited by an
independent certified public accountant (monthly or quarterly financial
statements may be unaudited). In the event, and for so long as, Tenant is a
publicly traded company subject to the reporting rules and regulations of the
Securities Exchange Commission, Landlord shall not require Tenant to deliver
such financial statements provided Tenant has given Landlord information
sufficient for them to retrieve or download such financial statements from the
Internet.
44. MISCELLANEOUS PROVISIONS.
A. Except with respect to those obligations specifically required
hereunder to be performed prior to the Commencement Date, all of the other
conditions, covenants and agreements of this Lease shall be deemed to be
effective as of the Commencement Date.
B. Nothing contained herein will be deemed or construed by the parties
hereto, nor by any third party, as creating the relationship of principal and
agent or of partnership or of joint venture between the parties hereto, it being
understood and agreed that neither the computation of Rent, nor any other
provision contained herein nor any acts of the parties herein, shall be deemed
to create any relationship between the parties hereto other than the
relationship of Landlord and Tenant.
C. All negotiations, correspondences, space plans and other
information pertaining to this Lease are to be kept strictly confidential
(except that Landlord may make such disclosures as it deems necessary to their
respective employees, agents, contractor or advisors,
35
and as Landlord may be required pursuant to any law, rule, regulation, order or
code) and Tenant shall not disclose the terms, covenants and conditions of this
Lease to any other party (except its attorneys, brokers and professional
consultants) without having first obtained the written consent of Landlord.
45. CONSENTS BY LANDLORD. In all circumstances under this Lease where the
prior consent or permission of Landlord is required before Tenant is authorized
to take any particular type of action, such consent must be in writing and the
matter of whether to grant such consent or permission shall be within the sole
and exclusive judgment and discretion of Landlord, and it shall not constitute
any nature of breach by Landlord under this Lease or any defense to the
performance of any covenant, duty or obligation of Tenant under this Lease that
Landlord denied, conditioned, delayed or withheld the granting of such consent
or permission, whether or not the denial, condition, delay or withholding of
such consent or permission was prudent or reasonable or based on good cause,
unless otherwise specifically so stated. With respect to any provision of this
Lease which provides that Tenant shall obtain Landlord's prior consent or
approval, Landlord may withhold such consent or approval for any reason in its
sole discretion, unless the provision specifically states that the consent or
approval will not be unreasonably withheld. With respect to any provision of
this Lease which provides that Landlord shall not unreasonably deny, withhold,
condition or delay any consent or any approval, Tenant, in no event, shall be
entitled to make, nor shall Tenant make any claim for, and Tenant hereby waives
any claim for any money damages; nor shall Tenant claim any money damages by way
of setoff, counterclaim or defense, based upon any claim or assertion by Tenant
that Landlord has unreasonably denied, withheld, conditioned or delayed any
consent or approval and the Tenant's sole remedy shall be an action or
proceeding to enforce any such provision, or for specific performance,
injunction or declaratory judgment.
46. DISCLAIMER; WAIVER OF JURY TRIAL.
A. DISCLAIMER. LANDLORD AND TENANT EXPRESSLY ACKNOWLEDGE AND AGREE, AS
A MATERIAL PART OF CONSIDERATION FOR LANDLORD'S ENTERING INTO THIS LEASE WITH
TENANT, THAT, EXCEPT AS OTHERWISE SET FORTH IN THIS LEASE, LANDLORD HAS MADE NO
WARRANTIES TO TENANT AS TO THE USE OR CONDITION OF THE PREMISES OR THE BUILDING,
EITHER EXPRESSED OR IMPLIED, AND LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY
IMPLIED WARRANTY THAT THE PREMISES OR THE BUILDING ARE SUITABLE FOR TENANTS
INTENDED COMMERCIAL PURPOSE OR ANY OTHER WARRANTY (EXPRESSED OR IMPLIED)
REGARDING THE PREMISES OR THE BUILDING. EXCEPT AS EXPRESSLY SET FORTH IN THIS
LEASE OR IN THE WORK LETTER AGREEMENT, LANDLORD AND TENANT EXPRESSLY AGREE THAT
THERE ARE NO, AND SHALL NOT BE ANY, IMPLIED WARRANTIES OF MERCHANTABILITY,
HABITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER KIND ARISING OUT OF
THIS LEASE, ALL SUCH OTHER EXPRESSED OR IMPLIED WARRANTIES IN CONNECTION
HEREWITH BEING EXPRESSLY DISCLAIMED AND WAIVED; PROVIDED, HOWEVER, LANDLORD
HEREBY REPRESENTS TO TENANT THAT THEY HAVE NOT BEEN NOTIFIED OF ANY OUTSTANDING
BUILDING DEPARTMENT VIOLATIONS OR OPEN ALTERATION APPLICATIONS WITH RESPECT TO
THE BUILDING. LANDLORD SHALL USE ITS BEST EFFORTS TO OBTAIN
36
A CERTIFICATE OF OCCUPANCY BASED ON THE THEN CURRENT CONFIGURATION AND USE OF
THE PREMISES UPON COMPLETION OF THE BUILDING IMPROVEMENTS CONTAINED IN THE WORK
LETTER AGREEMENT. LANDLORD SHALL AGREE TO ASSIST TENANT WITH ANY BUILDING PERMIT
APPROVALS, AT NO COST OR EXPENSE TO LANDLORD.
B. WAIVER OF JURY TRIAL. LANDLORD AND TENANT WAIVE THE RIGHT TO A
TRIAL BY JURY AND ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE
SUBJECT MATTER OF THIS LEASE. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND
VOLUNTARILY MADE BY TENANT AND TENANT ACKNOWLEDGES THAT NEITHER LANDLORD NOR ANY
PERSON ACTING ON BEHALF OF LANDLORD HAS MADE ANY REPRESENTATIONS OF FACT TO
INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS
EFFECT. TENANT FURTHER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED (OR HAS THE
OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS LEASE AND IN THE MAKING OF
THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, AND
THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. TENANT
FURTHER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THE MEANING AND
RAMIFICATIONS OF THIS WAIVER PROVISION AND AS EVIDENCE OF SAME HAS EXECUTED THIS
LEASE.
47. ROOF RIGHTS. Tenant shall have the exclusive right to use, and shall,
upon prior reasonable written request to Landlord, be provided reasonable access
to all or any portion of the roof of the Building for use of the roof as
follows: (i) to maintain any existing communication equipment reasonably
necessary for the conduct of Tenant's business in the Building; and (ii) upon
prior written request for and approval of by Landlord (which approval shall not
be unreasonably denied, withheld, conditioned or delayed) any additional
communications equipment; provided, however, Landlord and Tenant shall mutually
agree upon the final size, location and appearance of such additional equipment,
and provided Tenant's use shall not unreasonably interfere with any other
tenant's communications or electronic devices in the Xxxxxxxxxxxx Business
Center buildings and shall not invalidate or lessen any roof warranties or
insurance policies on the Building, or violate any applicable zoning or building
code requirements, binding elements or any restrictions of record affecting the
Building. Upon expiration or other termination of this Lease, Tenant shall, at
its sole cost and expense, remove any and all of Tenant's rooftop communications
equipment and repair any damage caused by its use of the roof or the removal of
the equipment. Tenant shall not be charged an additional fee or charged for
usage of space on the roof.
48. VENTING. Unless already in place on the date of this Lease, Tenant
shall be required to obtain Landlord's prior written consent for any venting
through the Building facade or roof (including, but not limited to, the
installation of supplemental HVAC units, exhaust systems, etc.), such consent
not to be unreasonably conditioned, withheld or delayed; provided such venting
shall not invalidate or lessen any roof warranties or insurance policies on the
Building or violate any applicable zoning or building code requirements, binding
elements or any restrictions of record affecting the Building. Tenant shall at
its sole cost and expense repair any damage caused by venting through the
Building facade or roof.
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49. HOLIDAYS. The following dates shall collectively be known as "Holidays"
and individually known as a "Holiday": New Years' Day; Memorial Day;
Independence Day; Labor Day; Thanksgiving Day; the Friday following Thanksgiving
Day; Christmas Day; and any other Holiday recognized and taken by national banks
in Metro Louisville. If in the case of any Holiday a different day shall be
observed, than the respective days above-described, then that day which
constitutes the day observed by national banks and in Metro Louisville on
account of such Holiday shall constitute the Holiday under this Lease.
50. HAZARDOUS MATERIALS.
A. As used in this Lease, the term "Hazardous Materials" shall mean
and include any substance that is or contains petroleum, asbestos,
polychlorinated biphenyls, lead, or any other substance, material or waste which
is now or is hereafter classified or considered to be hazardous or toxic under
any federal, state or local law, rule, regulation or ordinance relating to
pollution or the protection or regulation of human health, natural resources or
the environment (collectively "Environmental Laws") or poses or threatens to
pose a hazard to the health or safety of persons on the Premises or any adjacent
property.
B. Tenant agrees that during its use and occupancy of the Premises, it
will not cause or permit Hazardous Materials to be present on or about the
Premises except in a manner and in quantities necessary for the ordinary
performance of Tenant's business and that it will comply with all Environmental
Laws relating to the use, storage or disposal of any such Hazardous Materials.
Landlord agrees that in the exercise of its rights and in the performance of its
obligations under this Lease, and otherwise in connection with their presence on
the Premises, they shall not cause or knowingly permit Hazardous Materials to be
present on or about the Premises except in a manner and in quantities necessary
to exercise such rights or perform such obligations, and that they will comply
with all Environmental Laws relating to the use, storage or disposal of any such
Hazardous Materials .
C. If Tenant's use of Hazardous Materials on or about the Premises
results in a release, discharge or disposal of Hazardous Materials on, in, at,
under or emanating from, the Premises or the Land on which the Premises are
located, Tenant agrees to investigate, clean up, remove or remediate such
Hazardous Materials in full compliance with (a) the requirements of (i) all
Environmental Laws and (ii) any governmental agency or authority responsible for
the enforcement of any Environmental Laws; and (b) any additional requirements
of Landlord that are reasonably necessary to protect the value of the Premises
or the Land on which the Premises are located. Landlord shall also have the
right, but not the obligation, to take whatever action with respect to any such
Hazardous Materials that it deems reasonably necessary to protect the value of
the Premises or the Land on which the Premises are located and all costs and
expenses incurred by Landlord in the exercise of such rights shall fall under
Tenant's indemnification obligations set forth in Subparagraph 50.F.
D. Upon reasonable notice to Tenant, Landlord may inspect the Premises
for the purpose of determining whether there exists on the Premises any
Hazardous Materials or other condition or activity that is in violation of the
requirements of this Lease or of any Environmental Laws. The right granted to
Landlord herein to perform inspections shall not
38
create a duty on Landlord's part to inspect the Premises, or liability on the
part of Landlord for Tenant's use, storage or disposal of Hazardous Materials,
it being understood that Tenant shall be solely responsible for all liability in
connection therewith.
E. Tenant shall surrender the Premises to Landlord upon the expiration
or earlier termination of this Lease free of debris, waste or Hazardous
Materials placed on or about Premises by Tenant or its agents, employees,
contractors or invitees, and in a condition which complies with all
Environmental Laws.
F. Tenant agrees to indemnify and hold harmless Landlord from and
against any and all claims, losses (including, without limitation, loss in value
of the Premises or the Land on which the Premises are located), liabilities and
expenses (including reasonable attorneys' fees) sustained by Landlord
attributable to (i) any Hazardous Materials placed on or about the Premises by
Tenant or its agents, employees, contractors or invitees, or (ii) Tenant's
breach of any provision of this Paragraph 50.
G. Landlord hereby represents and warrants that, to the best of
Landlord's knowledge, and except as may be specifically mentioned in, the most
recent Phase I Environmental Report conducted by Landlord, its predecessors in
interest or their lender dated April 27, 1994 issued by Law Engineering (the
"1994 Environmental Report") a copy of which has been delivered to Tenant, no
Hazardous Materials have been released, discharged or disposed of on the
Premises or the Land. Landlord agrees to pay for any cost of investigation,
removal or remediation, in accordance with the Environmental Laws, of any
Hazardous Materials on the Premises or the Land recommended to be remediated:
(i) by the 1994 Environmental Report which have not already been remediated, if
any; or (ii) by an environmental report to be obtained during the first quarter
of calendar year 2005 for Landlord's loan for the Premises, except to the extent
such Hazardous Materials were placed on the Premises or the Land by Tenant, its
agents, contractors, employees or licensees during Tenant's possession of the
Premises (whether such possession occurred under this Lease or under the BBCIA
Lease or the BBCIB Lease). Landlord agrees to indemnify and hold harmless Tenant
from and against any and all claims, losses, liabilities and expenses (including
reasonable attorneys' fees) sustained by Tenant attributable to (i) any
Hazardous Materials placed on or about the Premises by Landlord, their agents,
employees, contractors or invitees, or (ii) Landlord's breach of any provision
of this Paragraph 50.
H. The provisions of this Paragraph 50. shall survive the expiration
or earlier termination of this Lease.
51. QUIET ENJOYMENT. Tenant, upon paying the rent and performing the other
covenants and agreements set forth herein, shall peaceably and quietly enjoy the
Premises for the term hereof without hindrance on the part of Landlord, subject
to the terms and conditions hereof.
52. MOLD.
Tenant, at its sole cost and expense, shall:
39
(i) Regularly visually inspect the Premises for the presence of
mold or for any conditions that reasonably can be expected
to give rise to mold (the "Mold Conditions"), including, but
not limited to, observed or suspected instances of water
damage, mold growth, repeated complaints of respiratory
ailment or eye irritation by Tenant's employees or any other
occupants in the Premises, or any notice from a governmental
agency of complaints regarding the indoor air quality at the
Premises; and
(ii) Promptly notify Landlord in writing if it suspects mold or
Mold Conditions at the Premises.
Landlord agrees that nothing contained in the foregoing shall require
Tenant to install equipment or engage experts or take any other similar action
or expend any other out-of-pocket cost in order to fulfill its obligations under
subsection (i) above.
53. OFFICE OF FOREIGN ASSETS CONTROL ("OFAC") CERTIFICATION.
A. Certification. Tenant certifies that:
(i) It is not acting, directly or indirectly, for or on behalf
of any person, group, entity or nation named by any
Executive Order or the United States Treasury Department as
a terrorist, "Specially Designated National and Blocked
Person," or other banned or blocked person, entity, nation
or transaction pursuant to any law, order, rule or
regulation that is enforced or administered by the Office of
Foreign Assets Control; and
(ii) It is not engaged in this transaction, directly or
indirectly on behalf of, or instigating or facilitating this
transaction, directly or indirectly on behalf of, any such
person, group, entity or nation.
B. Indemnification. Tenant hereby agrees to defend, indemnify and hold
harmless Landlord from and against any and all claims, damages, losses, risks,
liabilities and expenses (including attorneys' fees and costs) arising from or
related to any breach of the foregoing certification.
54. HIPAA REQUIREMENTS. Landlord shall execute and comply with the terms of
the Non-Disclosure and Confidentiality Agreement in the form attached hereto as
Exhibit G and made a part hereof. Landlord shall promptly provide a copy of such
executed agreement to Tenant.
40
IN WITNESS WHEREOF, the parties have executed this Lease as of the day and
year first above written, but actually on the dates set forth below their
respective signatures.
Signed and Acknowledged "Tenant"
In the Presence of: SHPS, INC., a Florida corporation
________________________________ By:________________________________
Witness
Print Name:________________________
________________________________ Title: ____________________________
Witness
Date: _____________________________
"Landlord"
NTS REALTY HOLDINGS LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: NTS Realty Capital, Inc.,
a Delaware corporation, managing
general partner
By:________________________________
Xxxxx X. Russsell,
Senior Vice President
Signed and acknowledged
in the Presence of :
_________________________
Witness
_________________________
Witness
41
"EXHIBIT A"
FLOOR PLAN
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[GRAPHIC OMITTED]
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1
EXHIBIT B
LEGAL DESCRIPTION OF LAND
1
EXHIBIT B
TRACT 1:
BEGINNING at a point in the north right-of-way line of Bluegrass Parkway and the
Southeasterly corner of the tract conveyed to Xxx Xxxxxx as recorded in Deed
Book 5570, Page 686, in the Office of the Clerk of Jefferson County, Kentucky;
thence with Xxxxxx'x east line, North 14 degrees 52 minutes 15 seconds West,
326.75 feet to a point; thence leaving Xxxxxx'x line, South 53 degrees 36
minutes 36 seconds East, 108.67 feet to a point; thence North 74 degrees 49
minutes 35 seconds East, 49.50 feet to a point; thence South 15 degrees 06
minutes 11 seconds West, 63.00 feet to a point; thence South 88 degrees 11
minutes 25 seconds East, 97.90 feet to a point; thence North 14 degrees 36
minutes 02 seconds East, 89.98 feet to a point; thence North 75 degrees 13
minutes 04 seconds East, 191.81 feet to a point; thence North 07 degrees 18
minutes 03 seconds East, 192.67 feet to a point; thence North 73 degrees 52
minutes 52 seconds East, 50.65 feet to a point; thence South 82 degrees 30
minutes 51 seconds East, 194.41 feet to a point; thence with the right-of-way of
Kentucky Xxxxx Drive and with the arc of a curve to the left, having a radius of
1462.39 feet, and a chord of South 07 degrees 42 minutes 40 seconds West, 398.21
feet to a point; thence South 00 degrees 06 minutes 51 seconds East, 75.00 feet
to a point; thence with the arc of a curve to the right, having a radius of
170.00 feet, and a chord of South 19 degrees 48 minutes 52 seconds West, 115.89
feet to a point; thence South 39 degrees 44 minutes 37 seconds West, 4.03 feet
to a point; thence with the arc of a curve to the right, having a radius of
40.00 feet, and a chord of South 81 degrees 26 minutes 54 seconds West, 53.22
feet to a point in the north right-of-way line of Bluegrass Parkway; thence with
said line of Bluegrass Parkway along an arc of a curve to the left, having a
radius of 570.00 feet, and the following chords: North 68 degrees 52 minutes 51
seconds West, 237.69 feet to a point and South 87 degrees 03 minutes 02 seconds
West, 237.69 feet to the point of beginning; and being designated as Tract 1, as
more particularly shown on the Minor Subdivision Plat, approved by the
Louisville and Jefferson County Planning Commission, attached to the deed of
record in Deed Book 6489, Page 972, in the Office of the Clerk of Jefferson
County, Kentucky.
BEING a part of the same property conveyed to Xxxxxxxxxxxx Business Center Joint
Venture by deed dated December 28, 1990, of record in Deed Book 6024, Page 297,
by deed dated April 28, 1994, of record in Deed Book 6447, Page 877, by deed
dated August 4, 1994, of record in Deed Book 6489, Page 995, and by deed dated
August 4, 1994, of record in Deed Book 6490, Page 6, all in the Office of the
Clerk of Jefferson County, Kentucky.
TRACT 2:
BEING Tract III as shown on the minor subdivision plat, approved by the
Louisville and Jefferson County Planning Commission, attached to the Deed of
record in Deed Book 6024, Page 302, in the Office of the Clerk of Jefferson
County, Kentucky; and being further shown as Tract 4 on the minor subdivision
plat, approved by the Louisville and Jefferson County Planning Commission,
attached to the Deed of record in Deed Book 6489, Page 972, in the aforesaid
Clerk's Office.
2
BEING the same property conveyed to Xxxxxxxxxxxx Business Center Joint Venture
by Deed dated December 28, 1990, of record in Deed Book 6024, Page 302, in the
Office of the Clerk of Jefferson County, Kentucky.
TOGETHER WITH the right to use in common with others the access easements set
out in Declaration of Cross-Easement of record in Deed Book 5924, Page 754, as
amended in Deed Book 6365, Page 106, both in the aforesaid Clerk's Office.
TRACT 3:
BEGINNING at a point in the northerly right-of-way line of Bluegrass Parkway at
the southeasterly corner of the tract conveyed to Xxx Xxxxxx as recorded in Deed
Book 5570, Page 686, in the Office of the Clerk of Jefferson County, Kentucky;
thence North 14 degrees 52 minutes 15 seconds West, 326.75 feet to the "TRUE
POINT OF BEGINNING"; thence North 14 degrees 52 minutes 15 seconds West, 105.31
feet to point; thence North 73 degrees 52 minutes 20 seconds East, 297.02 feet
to a point; thence North 15 degrees 02 minutes 06 seconds West, 185.86 feet to a
point; thence South 74 degrees 57 minutes 54 seconds West, 42.00 feet to a
point; thence North 15 degrees 02 minutes 06 seconds West, 208.21 feet to a
point; thence South 74 degrees 55 minutes 50 seconds West, 196.17 feet to a
point; thence North 14 degrees 50 minutes 16 seconds West, 160.99 feet to a
point in the south right of way line of Interestate 64; thence with the south
right of way line of Interstate 64, North 87 degrees 41 minutes 57 seconds East,
191.00 feet to point; thence North 89 degrees 35 minutes 05 seconds East, 212.25
feet to a point; thence South 14 degrees 53 minutes 50 seconds East, 456.34 feet
to a point; thence North 73 degrees 52 minutes 20 seconds East, 27.61 feet to a
point; thence South 82 degrees 30 minutes 51 seconds East, 66.74 feet to a
point; thence South 73 degrees 52 minutes 52 seconds West, 50.65 feet to point;
thence South 07 degrees 18 minutes 03 seconds West, 192.67 feet to a point;
thence South 75 degrees 13 minutes 04 seconds West, 191.81 feet to a point;
thence South 14 degrees 36 minutes 02 seconds West, 89.98 feet to a point;
thence North 88 degrees 11 minutes 25 seconds West, 97.90 feet to a point;
thence North 15 degrees 06 minutes 11 seconds East, 63.00 feet to point; thence
South 74 degrees 49 minutes 35 seconds West, 49.50 feet to a point; thence North
53 degrees 36 minutes 36 seconds West, 108.67 feet to the "TRUE POINT OF
BEGINNING," containing 4.803 acres, more or less, and being designated as Tract
2 on the Minor Subdivision Plat, approved by the Louisville and Jefferson County
Planning Commission, attached to the deed of record in Deed Book 6489, Page 972,
in the Office of the Clerk of Jefferson County, Kentucky.
BEING a part of the same property conveyed to NTS/BBC I, by Deed dated December
27, 1989, of record in Deed Book 5924, Page 744, by Deed dated August 4, 1994,
of record in Deed Book 6489, Page 972, and by Deed dated August 4, 1994, of
record in Deed Book 6489, Page 987, all in the Office of the Clerk of Jefferson
County, Kentucky.
TOGETHER WITH the right to use in common with others the access easements set
out in Declaration of Cross-Easement of record in Deed Book 5924, Page 754, as
amended in Deed Book 6365, Page 106, both in the aforesaid Clerk's Office, and
the access easements as shown
3
on the plat attached to the Deed of record in Deed Book 6024, Page 302, in the
aforesaid Clerk's Office, and the access easements as shown on the plat attached
to the instrument of record in Mortgage Book 3030, Page 652, in the aforesaid
Clerk's Office.
4
"EXHIBIT C"
WORK LETTER AGREEMENT
Gentlemen:
You (hereinafter called "Tenant") and we (hereinafter called "Landlord")
are executing simultaneously with this Work Letter Agreement, a written lease
(the "Lease") covering those certain premises more particularly described in
Exhibit A to the Lease (hereinafter referred to as "Premises"), in the building
having an address of 00000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
This Exhibit C sets forth the work and costs of work required to complete
the improvements to the Premises (the "Tenant Finish") so that the Premises are
suitable for Tenant's continued occupancy in accordance with the Lease. To
induce Tenant to enter into the Lease (which is hereby incorporated by reference
to the extent that the provisions of this agreement may apply thereto) and in
consideration of the mutual covenants hereinafter contained, Landlord and Tenant
mutually agree as follows:
1. Landlord's Work.
1.1 Description. Subject to the terms and conditions of this Work Letter
Agreement, Landlord agrees to perform, at its sole cost and expense, the work to
Substantially Complete (as such term is defined in Section 3 of this Work Letter
Agreement) the following items on or before the dates provided below (provided
Landlord is not delayed by Tenant's failure to provide any approvals hereunder
required with respect to the Approved Landlord's Work Plans (as defined below)
or other delay caused by Tenant or by Force Majeure) in accordance with the
Approved Landlord's Work Plans, as such term is defined below (the "Landlord's
Work"):
1.1.1 The following work shall be Substantially Completed within thirty
(30) days after the full execution of the Lease by Landlord and Tenant:
A. Building Sewer System:
Landlord's maintenance personnel shall clean all sewer drain
lines and establish a preventative maintenance program to be monitored
by Landlord's maintenance personnel. Landlord shall report to Tenant
regarding the condition of the drain lines as determined and observed
during such initial cleaning. Any drain lines determined to be too
severely clogged or damaged to benefit from cleaning will be replaced
by Landlord as may be further described in subsection 1.1.4 (D)
hereof.
1.1.2 The following work shall be Substantially Completed by Landlord
within sixty (60) days after the later to occur of: (i) the Commencement Date of
the Lease; and (ii) the date on which the Landlord's Work Plans become the
Approved Landlord's Work Plans (the "Start Date"):
1
A. Exterior Window Modifications.
Landlord shall repair all leaks in exterior windows and cover all
interior building window xxxxx with a 6" x 3/8" laminate material,
which material shall be approved by Tenant, provided, however, prior
to repairing such leaks, Landlord shall consult with Tenant regarding
the method used to make such repairs, and, if Tenant elects, Landlord
shall use a method of repair that is chosen by Tenant, in its
reasonable discretion. Landlord agrees that it shall be responsible
for the costs to repair or replace any of such laminate material which
becomes damaged by any such leaks for a period of six (6) years after
the date of Substantial Completion of this item 1.1.2 (A).
B. Monument Sign:
Landlord shall install a new monument sign on Bluegrass Parkway
utilizing a brick base with side panel lit up with uplights mounted on
grade in front of the sign.
1.1.3 The following work shall be Substantially Completed by Landlord
within ninety (90) days after the Start Date:
A. Loading Docks:
Landlord shall install a recessed scissor-lift mutually approved
by Landlord and Tenant in the existing garage area.
1.1.4 The following work shall be Substantially Completed by Landlord
within one hundred twenty (120) days after the Start Date:
A. Cafeteria Relocation and Upgrade:
Landlord shall move the dining area inside the Building to the
rear of the Building and install new tile flooring and wallcovering,
such wallcovering to be mutually approved by Landlord and Tenant;
Landlord shall make any changes to the existing dining and
service areas necessary to support traffic changes to the area as a
result of the relocation and upgrade of the cafeteria;
Landlord shall install a glass door and wall system which would
match the existing Building storefront glass system for view onto
courtyard;
B. Visitor's Entrance:
Landlord shall either modify the existing entrance to the
Building facing Bluegrass Parkway to extend the entranceway toward
Bluegrass Parkway out
2
from the Building, or shall create a new main entrance in the Building
at another location, in accordance with the Approved Landlord's Work
Plans;
The doorway shall be covered by Landlord by a decorative steel
canopy mounted on a newly created entrance walkway covered with brick
pavers or scored concrete which is to be extended to create a band of
paving in front of the new entranceway;
Landlord shall install new landscaping at the new entranceway.
Landlord shall add new interior finishes inside the new entranceway
and remove the steel rails on the existing staircase and repaint the
remaining structure. Landlord shall install a new railing system of
polished metal and floorcap with continuous glass bands supporting the
handrail and install ceramic tile, vinyl wallcovering, upscale
lighting and a new receptionist's desk;
C. Employee Entrance:
Landlord shall transform the existing visitors' entrance at the
rear of the Building to become the employee entrance with the same
curbing and paver treatment used on the new visitor entrance, but
without a vestibule or canopy;
D. Restrooms/Building Sewer System:
Landlord shall renovate existing restrooms by installing new
sinks and faucets, new laminate counters and handicap accessible
sloped vanities and replace existing lavatory partitions with new
partitions. Landlord shall replace existing tile floors and walls with
new tile to be mutually agreed upon by Landlord and Tenant;
If it is determined during the cleaning of the sewer drain lines
that any drain lines need to be replaced as described in subsection
1.1.1(A), then Landlord shall replace such drain lines and shall
coordinate such work with the renovation work to the restrooms
described above.
E. HVAC Upgrades:
Landlord shall add five additional HVAC units to aid with
conference rooms and areas requiring separate temperature controls;
replace existing manual thermostats with new programmable thermostat
allowing timed temperature settings and balance Building's HVAC system
once all units are installed to maximize existing equipment in
employee locations, tying all HVAC units to an automated Building
control system. Landlord shall clean all existing HVAC duct work;
3
F. Parking Lot:
Landlord shall repair the parking lot and overlay with 1 1/2" of
new pavement and re-stripe parking lot as currently striped;
G. Sidewalk and Building Repairs:
Landlord shall replace cracked and deteriorated (in Landlord's
reasonable opinion) sidewalk areas around the Premises and seal and
repair the existing expansion joint between the sidewalk and the face
of the Building. Landlord shall replace all caulked joints in the
brick face of the Building with caulk having a color of caulk which
matches the colors of the Building and is approved by Tenant;
Notwithstanding the foregoing, Landlord shall use reasonable
efforts to coordinate the work set forth in subsections 1.1.4 (B),
(C), (F) and (G) with the Tenant's Work and shall not proceed with any
such work until the same has been coordinated with Tenant, who agrees
to act reasonably and in good faith.
1.1.5 The following work shall be Substantially Completed within one
hundred fifty (150) days after the Start Date:
A. Courtyard:
Landlord shall install or construct the following items:
Resurface the existing painted concrete block walls in the
courtyard and receiving area with a heavy textured pigmented
coating similar to stucco in a neutral color to be selected
by Tenant;
Modify landscaping inside the courtyard to screen the walls
of the courtyard by adding new trees along the perimeter
that are all-consistent in size and mature enough to screen
the view of the block walls;
Fill in the existing steel gate area with concrete block
surface of the same material as the rest of the existing
concrete block;
Install a new 6'x 8' ornamental steel gate to be agreed upon
by Landlord and Tenant to allow access for periodic
maintenance to the courtyard;
Have painted a company specific motivational mural on the
20' area of wall on the existing walkway from the dining
room area to the courtyard, based upon an artists rendering
to be provided by Tenant;
Install a decorative fountain, to be agreed upon by Landlord
and Tenant, to the existing planter at the center of the
courtyard with the water lines draining into the existing
landscaping surrounding the fountain;
4
Install a decorative screen wall around the existing generator to
block the view but not hamper operation and maintenance; provided
that, at Tenant's option, Tenant may install a new generator in a
location reasonably chosen by Tenant and approved by Landlord,
which approval shall not be unreasonably withheld, in which case,
Tenant may elect to have the wall constructed around such new
generator;
Create a new outdoor dining area using pavers or scored concrete
with new outdoor employee tables and seating with parasols
mounted at each individual table outside the newly relocated
employee dining room area, all covered by a decorative steel
trellis-type structure and overlooking a terrace seating area
surrounding a circular amphitheater-type gathering area to be
used as a center point for outdoor meetings.
1.1.6 The following work shall be coordinated to be Substantially Completed
with the Tenant's Work and shall not be commenced until such coordination with
the Tenant Work has been determined, and Landlord and Tenant agree to act
reasonably and in good faith to coordinate such work and the Tenant Work:
A. Ceiling Tiles:
Landlord shall replace all existing ceiling tiles using a 2'x4'
ceiling tile that gives the appearance of a 2'x2' ceiling tile.
Ceiling tile replacement shall be done in phases during business hours
as directed by Tenant in order for Tenant to arrange for employees to
be moved to a swing space while ceiling tiles in each area of the
Building are being replaced. Landlord shall use reasonable efforts not
to disrupt Tenant's business during ceiling tile replacement;
B. Computer Cabling (coordinate with TI and F):
Landlord shall replace all computer cabling with category 6
(CAT6) computer cabling (coordinating work with ceiling tile
replacement) above ceiling tiles.
1.2 Landlord's Work Plans. Landlord, within 45 days after the full
execution of the Lease, at its sole cost and expense, shall have the work
described in subsections 1.1.2 through 1.1.6 above converted into detailed
construction plans and specifications for Landlord's Work and shall submit such
plans and specifications to Tenant for approval. Landlord's Work Plans shall be
subject to Tenant's approval, which approval shall not be unreasonably withheld,
conditioned or delayed. Tenant shall have twenty (20) business days from the
date of receipt of Landlord's Work Plans either to approve same or to notify
Landlord of its objections thereto, which objections shall be made in writing in
sufficient detail and specificity, and with suggested changes that would be
acceptable to Tenant, to enable Landlord to correct or cure same. Landlord shall
have ten (10) business days after receipt of Tenant's written objections within
which to have Landlord's Work Plans revised and submitted to Tenant for final
approval. Tenant shall provide its final approval of the Landlord's Work Plans
within ten (10) business days after
5
receipt of such revised plans. Upon such approval, Landlord and Tenant shall
each execute two (2) sets of the Landlord's Work Plans, with each party
retaining one such set. When approved by Tenant as provided for herein, such
plans and specifications shall become the "Approved Landlord's Work Plans".
Landlord shall pay all costs for design fees for Landlord's Work. It is agreed
that Landlord's obligation to substantially complete Landlord's Work by the
dates provided above is subject to: (i) any failure by Tenant to furnish plans
and specifications as provided for in Section 5 of this Work Letter Agreement;
(ii) Tenant's request for materials, finishes or installations other than those
included on the Approved Landlord's Work Plans; (iii) Tenant's request for
changes in the Approved Landlord's Work Plans; or (iv) any delay by Tenant in
responding to or approving Landlord's Work Plans within the time periods set
forth in this subsection 1.2, or any delay caused by the inability of Landlord
and Tenant to agree on final approval of Landlord's Work Plans.
2. Tenant's Work.
2.1 Tenant Improvement Allowance. Landlord shall make available to Tenant a
Tenant Improvement Allowance in the amount of Two Million Dollars ($2,000,000)
(the "Tenant Improvement Allowance") as provided for in Paragraph 1.V. of the
Lease which shall be held in an Escrow Account (over which Landlord shall
exercise disbursement authority) and disbursed in accordance with this Section 2
to be utilized to pay for Tenant's Work (as defined hereafter). "Tenant's Work"
shall mean and include all work and improvements to the Premises in accordance
with the Approved Tenant's Work Plans (as defined below) including
telecommunications and data equipment, to the extent same are included in the
Approved Tenant's Work Plans. The Tenant Improvement Allowance may be utilized
to pay the cost of space planning, development of any and all
construction-related plans, specifications and drawings, physical improvements
to the Premises, signage, telecommunication and data expenses, information
service expenses, interior decorating fees and furniture for the Premises and to
pay for any other costs included in completing Tenant's Work. Any work or items
not specified in this Subsection 2.1, or in excess of the Approved Tenant's Work
Plans, shall be performed by Tenant at its sole cost and expense, but shall
still require Landlord's prior written consent. In the event that Tenant
requires Landlord to perform any of Tenant's Work, whether utilizing the Tenant
Improvement Allowance or Tenant's own funds, Landlord shall be entitled to be
paid a construction management fee equal to 5.9% of all costs of construction
(hard and soft) of that portion of the Tenant's Work which Landlord performs,
payable to Landlord pursuant to construction draws submitted in a manner similar
to the draw requests required by Tenant for disbursal of its Tenant Improvement
Allowance as provided herein; provided, however, Landlord shall receive a 3%
construction management fee for any change orders which are a part of the
Tenant's Work which Landlord actually performs. The Tenant Improvement Allowance
shall be disbursed to Tenant on a monthly basis upon written request by Tenant
on AIA Form G-702 (or such other form as Landlord and Tenant may mutually agree
to use) accompanied by invoices, partial lien waivers and Tenant's contractor's
or architect's certification that the work for which the draw is requested is
Substantially Complete (as such term is defined below), and such other back-up
documentation as Landlord may reasonably request (provided that Tenant's draw
request which is submitted for the last draw on Tenant's Improvement Allowance
shall be accompanied by final lien waivers); provided, however, to the extent
Landlord performs the Tenant's Work, Landlord shall be responsible for obtaining
the
6
accompanying documents and information required by this sentence as a part of
its construction management duties.
2.2 Performance of Tenant's Work. In the event that Tenant contracts for
the completion of Tenant's Work with someone other than Landlord: (a) Tenant
shall provide construction documents for Landlord's review and prior written
approval before commencing construction; (b) Tenant shall agree that all of
Tenant's Work shall be completed in a good and xxxxxxx like manner in accordance
with the terms of the Lease, the Approved Tenant's Work Plans and will comply
with all applicable local, state and federal laws, ordinances, codes and
regulations including, but not limited to the Americans with Disabilities Act of
1990, as amended; and (c) Tenant shall also obtain Landlord's prior written
approval of Tenant's contractor and any sub-contractors performing work in
excess of $25,000.00.
2.3 Cost of Tenant's Work. Any of Tenant's Work which Tenant requires
Landlord to perform which is in excess of the Tenant Improvement Allowance, or
is to be paid for by Tenant using Tenant's own funds, shall be at the sole cost
of Tenant and payable on a monthly basis to Landlord.
2.4 Completion of Tenant's Work. Tenant's Work may be performed throughout
the Term after Tenant's Work Plans have become the Approved Tenant's Work Plans
in accordance with the terms of subsection 5.2 hereof, at the discretion of
Tenant, provided that Tenant's Work shall be Substantially Completed and all of
the Tenant Improvement Allowance utilized within twenty four (24) months after
the Commencement Date of the Lease ("Tenant Allowance Stop Date"); provided,
however, that if all of Tenant's Work has not been Substantially Completed and
all of the Tenant Improvement Allowance utilized within twelve (12) months after
the Commencement Date of the Lease, any amount of the Tenant Improvement
Allowance which remains in Landlord's Escrow Account as of such date may be
transferred by Landlord to an operating account and may be utilized by Landlord
for any purpose whatsoever (which utilization by Landlord shall not reduce the
total amount of Tenant Improvement Allowance to which Tenant is entitled
hereunder) unless and until Tenant shall request a disbursement thereof (or
portion thereof) prior to the Tenant Allowance Stop Date in the same manner and
in compliance with the terms set forth in subsection 2.1 hereof for
disbursements from Landlord's Escrow Account. Any amount of the Tenant
Improvement Allowance remaining in Landlord's operating account after the Tenant
Allowance Stop Date shall be disbursed to Landlord within ten (10) days
thereafter. If Tenant requires Landlord to perform Tenant's Work hereunder, any
delay in performing such work shall extend the time for Tenant's Work to be
Substantially Completed, unless such delay is caused by Tenant or by Force
Majeure.
3. Substantial Completion. The Landlord's Work and the Tenant's Work, as
applicable, shall be deemed "Substantially Complete" or "Substantially
Completed", as provided above, when such work is completed subject only to
"punch list items" which are details of construction, decoration and mechanical
and electrical adjustments which, in the aggregate, are minor or insubstantial
in character. Landlord and Tenant shall each give the other a seven (7) day
notice prior to Landlord's Work or Tenant's Work, as the case may be, being
Substantially Completed so that Landlord and Tenant can inspect the Premises
within said seven (7) day period for purposes of compiling a list of punch list
items (the "Punch List"). Landlord and/or Tenant, as applicable, shall be
obligated to begin correcting and diligently pursue the correction of Punch
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List items after completion of the Punch List, and shall complete the Punch List
items within thirty (30) days.
4. Warranty. Landlord shall warrant that the Landlord's Work will be free from
defects in workmanship or material for a period of one (1) year (except for the
windowsills, which shall have a period of six (6) years) following the date on
which Landlord's Work shall be Substantially Complete; provided, however, if
Landlord obtains a warranty reasonably acceptable to Tenant from the Contractors
(as defined herein) Tenant shall accept such warranty and look only to the
Contractors for such warranty. If within one (1) year after the Substantial
Completion of Landlord's Work (within six (6) years for the windowsills) any
part of such improvements is found not to be in compliance with the foregoing
warranties, the Landlord shall promptly correct the noncompliance at their own
expense after receipt of written notice from Tenant. Tenant shall give any such
notice promptly after discovery of the objectionable condition.
5. Plans and Specifications.
5.1 Tenant Finish. "Landlord's Work" shall mean and include all work and
improvements to the Premises described in Section 1.1 hereof, which shall be
more particularly described in the Approved Landlord's Work Plans. Any work in
excess of the Approved Landlord's Work Plans shall be performed by Tenant
utilizing the Tenant Improvement Allowance, or at Tenant's sole cost and
expense, pursuant to the terms of Section 2 hereof. The Landlord's Work shall be
performed with materials of the type and quality specified in the Approved
Landlord's Work Plans. "Tenant's Work" shall mean and include all work and
improvements to the Premises described in Section 2.1 hereof, which shall be
more particularly described in the Approved Tenant's Work Plans. The Tenant's
Work shall be performed with materials of the type and quality specified in the
Approved Tenant's Work Plans, which shall be consistent with other comparable
office buildings located in the Xxxxxxxxxxxx Industrial Park area in Louisville,
Kentucky.
5.2 Tenant Work Plans. Tenant shall cause its architect to develop and
prepare complete plans and specifications for Tenant's Work (the "Tenant's Work
Plans"), the cost of which shall be paid using the Tenant Improvement Allowance,
for all anticipated improvements to the interior and exterior of the Building,
including, without limitation, architectural, plumbing, mechanical, electrical
and engineering plans and detailed specifications for all mechanical and
electrical work, communication, data, and space planning for all improvements
including location of doors, partitioning, reflected ceiling tiles, outlets and
switches, telephone outlets, extraordinary floor requirements (in excess of 70
pounds per square foot) and other special requirements as necessary for the
Tenant's Work. Tenant shall submit the Tenant's Work Plans to Landlord within
one hundred twenty (120) days after the Commencement Date of the Lease. The
Tenant's Work Plans shall be subject to Landlord's prior written approval, which
approval shall not be unreasonably withheld, conditioned or delayed. The
Tenant's Work Plans shall provide that all work comply with all laws, statutes,
ordinances, rules or regulations of any governmental authority applicable to the
Building. During the course of preparation of Tenant's Plans, Tenant shall
consult with Landlord's architects and engineers and seek Landlord's advice
concerning the Tenant's Work to be constructed pursuant thereto so as to avoid
any unnecessary delays which may result due to incompatibility between Tenant's
Work Plans and the Landlord's
8
Work Plans, or due to the inability to obtain materials, and Landlord agrees to
so consult with and advise Tenant during the course of preparation of Tenant's
Plans. Landlord shall have ten (10) business days from the date of receipt of
the Tenant's Work Plans either to approve same or to notify Tenant of its
objections thereto, which objections shall be made in writing in sufficient
detail and specificity and with suggested changes that would be acceptable to
Landlord, to enable Tenant to correct or cure same. Tenant shall have twenty
(20) business days after receipt of Landlord's written objections within which
to have the Tenant's Work Plans revised and submitted to Landlord for final
approval. Upon such approval, Landlord and Tenant shall each execute two (2)
sets of the Tenant's Work Plans, with each party retaining one such set. The
Tenant's Work Plans, when approved by Landlord, are referred to herein
collectively as the "Approved Tenant's Work Plans."
5.3 Approved Plans. The Approved Landlord's Work Plans and Approved
Tenant's Work Plans may sometimes be referred to herein as the "Approved Plans".
The Approved Plans shall be designed and stamped by registered representatives
in their respective fields of discipline at Landlord's or Tenant's expense as
set forth in this Work Letter Agreement. Landlord shall be entitled in all
respects to rely upon the Approved Plans and any and all other plans, drawings
and information as may be supplied by Tenant. The Approved Plans shall be in
compliance with applicable building codes, the Americans with Disabilities Act
of 1990, as amended, and insurance regulations for a fire resistant Class A
building, and shall be in a form satisfactory for filing with appropriate
governmental authorities for permits and licenses required for construction.
Except for any warranty expressly provided by Landlord for Landlord's Work as
required in Section 4 hereof, Landlord's approval of the Tenant's Work Plans
shall not in any way be construed as a warranty by Landlord to Tenant with
respect to any of the Tenant Finish. Landlord and Tenant acknowledge and agree
that time is of the essence in arriving at the Approved Plans.
6. Construction of Landlord's Work.
6.1 Contracting. Landlord shall select the contractors to perform the
Landlord's Work to the Premises and shall enter into agreements with its
contractors (the "Contractors") to complete the Landlord's Work substantially in
accordance with the Approved Landlord's Work Plans.
6.2 Construction Work. Landlord shall have the Landlord's Work completed in
accordance with the Approved Landlord's Work Plans. All change orders to the
Approved Landlord's Work Plans must be approved in writing by Landlord and
Tenant, which approval shall not be unreasonably withheld, conditioned or
delayed and shall include the estimated cost of such change order. Upon approval
of a proposed change order, the Approved Landlord's Work Plans shall be deemed
revised to incorporate the change order.
In the event any change orders to either the Approved Landlord's Work Plans
and/or the Approved Tenant's Work Plans result in an increase in the costs of
the work to be done thereunder, such increase in costs shall be shall be paid
for by Tenant at its sole cost and expense on a monthly basis within ten (10)
days after the end of the month to Landlord (if the change order relates to
Landlord's Work or to Tenant's Work being performed by Landlord), or to Tenant's
contractor prior to such amount becoming delinquent. Any such amounts to be paid
9
by Tenant with respect to the Approved Tenant Work Plans may be paid for out of
the Tenant Improvement Allowance.
This Work Letter Agreement has been executed by Landlord and Tenant as of
_______, 2005.
"Tenant"
SHPS, INC., a Florida corporation
By: _______________________________
Print Name
Title: ____________________________
"Landlord"
NTS REALTY HOLDINGS LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: NTS Realty Capital, Inc.,
a Delaware corporation, managing
general partner
By: _______________________________
Print Name
Title: ____________________________
10
"EXHIBIT D"
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice shall be
installed or displayed on any part of the outside or inside of the Building
without the prior written consent of Landlord. Landlord shall have the right to
remove, at Tenant's expense and without notice, any sign installed or displayed
in violation of this rule. All approved signs or lettering on doors and walls
shall be printed, painted, affixed or inscribed at the expense of Tenant by a
person chosen by Landlord.
2. If Landlord objects in writing to any curtains, blinds, shades, screens
or hanging plants or other similar objects attached to or used in connection
with any window or door of the Premises, Tenant shall immediately discontinue
such use. No awning shall be permitted on any part of the Premises. Tenant shall
not place anything against or near glass partitions or doors or windows which
may appear unsightly, in the judgment of Landlord, from outside the Premises.
3. Tenant shall not obstruct any sidewalks, halls, passages, exits,
entrances, elevators, escalators or stairways of the Building. The halls,
passages, exits, entrances, shopping malls, elevators, escalators and stairways
are not for the general public and Landlord shall in all cases retain the right
to control and prevent access thereto of all persons whose presence in the
judgment of Landlord would be prejudiced to the safety, character, reputation
and interests of the Building and its tenants; provided that nothing herein
contained shall be construed to prevent such access to persons with whom any
tenant normally deals in the ordinary course of its business, unless such
persons are engaged in illegal activities. No Tenant and no employee or invitee
of any Tenant shall go up on the roof of the Building, except as otherwise
provided in the Lease.
4. Except as otherwise provided in the Tenant's Lease, all daily cleaning
and janitorial services for the Building and the Premises shall be provided by
Tenant in accordance with the janitorial specification attached to Tenant's
Lease as Exhibit F. Landlord shall not in any way be responsible to any Tenant
for any loss of property on the Premises, however occurring, or for any damage
to any tenant's property by the janitor.
5. Landlord will furnish Tenant, free of charge, with one set of keys to
each door lock to the Building or in the Premises, if any, and/or one (1)
security card for any card reader lock system on the exterior Building doors.
Landlord may make a reasonable charge for any additional keys and cards. Tenant
shall not alter any lock or security card reader or install a new additional
lock or bolt on any door of its Premises. Tenant, upon the termination of its
tenancy, shall deliver to Landlord the keys and cards to all doors which have
been furnished to Tenant, and in the event of loss of any cards and/or keys so
furnished, shall pay Landlord therefor.
1
6. Except for regular or overnight mail and other such deliveries, all
equipment, furniture, supplies, merchandise and other packages shall be received
at the rear loading dock and carried only in the freight elevators.
7. Tenant shall not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to carry and
which is allowed by law. Landlord shall have the right to prescribe the weight,
size and position of all equipment, materials, furniture or other property
brought into the Building. Heavy objects shall, if considered necessary by
Tenant, stand on such platforms as determined by Landlord to be necessary to
properly distribute the weight. Business machines and mechanical equipment
belonging to Tenant, which causes noise or vibration that may be transmitted to
the structure of the Building or to any space therein to such a degree as to be
objectionable to Landlord or to any Tenant's expense, on vibration eliminators
or other devices sufficient to eliminate noise or vibration. The persons
employed to move such equipment in or out of the Building must be acceptable to
Landlord. Landlord will not be responsible for loss of, or damage to, any such
equipment or other property from any cause, and all damage done to the Building
by maintaining or moving such equipment or other property shall be repaired at
the expense of Tenant.
8. Tenant shall not use or keep in Premises any kerosene, gasoline or
inflammable or combustible fluid or material other than those limited quantities
necessary for the operation or maintenance of office equipment. Tenant shall not
use or permit to be used in the Premises any foul or noxious gas or substance,
or permit or allow the Premises to be occupied or used in a manner offensive or
objectionable to Landlord or other occupants of the project by reason of noise,
odors or vibrations, nor shall Tenant bring into or keep on or about the
Premises any birds or animals.
9. Tenant shall not use any method of heating or air-conditioning other
than that supplied by Landlord, except for supplemental HVAC equipment installed
by Tenant in accordance with the terms of the Lease.
10. Tenant agrees to cooperate fully with Landlord to assure the most
effective operation of the Building's heating and air-conditioning and to comply
with any governmental energy-saving rules, laws or regulations of which Tenant
has actual notice, and shall refrain from attempting to adjust controls other
than room thermostats installed for Tenant's use.
11. Landlord reserves the right, exercisable without liability to Tenant,
to change the street address of the Building if required to do so by any
governmental agency, and shall give prior written notice thereof to Tenant.
12. Tenant shall be responsible for all persons for whom it requests keys,
passes or special key cards and shall be liable to Landlord for all acts of such
persons. Landlord reserves the right to prevent access to the Building in case
of invasion, mob, riot, public excitement or other commotion by closing the
doors or by other appropriate action.
2
13. Tenant shall close and lock the doors of its Premises and entirely shut
off all water faucets or other water apparatus, and electricity, gas or air
outlets before Tenant and its employees leave the Premises.
14. The plumbing system, toilet rooms, toilets, urinals, wash bowls,
appliances and other apparatus shall not be used for any purpose other than that
for which they were constructed and no foreign substance of any kind whatsoever
shall be thrown therein. The expense of any breakage, stoppage or damage
resulting from the violation of this rule shall be borne by the Tenant.
15. Tenant shall not in any way deface the Premises or any part thereof.
Landlord reserves the right to direct electricians as to where and how
telephone, facsimile and computer wires are to be introduced to the Premises.
Tenant shall not cut or bore holes for wires. Tenant shall repair any damage
resulting from noncompliance with this rule.
16. Canvassing, soliciting and distribution of handbills or any other
written material, and peddling in the Building are prohibited, and Tenant shall
cooperate to prevent same.
17. Landlord reserves the right to exclude or expel from the Building any
person who, in Landlord's judgment, is intoxicated or under the influence of
liquor or drugs or who is in violation of any of the Rules and Regulations of
the Building.
18. Tenant shall store all its trash and garbage within its Premises.
Tenant shall not place in any trash box or receptacle any material which cannot
be disposed of in the ordinary and customary manner of trash and garbage
disposal. All garbage and refused disposal shall be made in accordance with
directions issued from time to time by Landlord.
19. The Premises shall not be used for the storage of merchandise held for
sale to the general public, or for lodging or for manufacturing of any kind, nor
shall the Premises be used for any improper, immoral or objectionable purpose.
Except for Tenant's cafeteria operation for which it is solely responsible, no
cooking shall be done or permitted by Tenant on the Premises, except that use by
Tenant of Underwriters Laboratory approved equipment for brewing coffee, tea,
hot chocolate, and similar beverages or for microwaving food shall be permitted,
provided that such equipment and use is in accordance with all applicable
federal, state, county and city laws, codes, ordinances, rules and regulations.
20. Tenant shall not use in any space or in the public halls of the
Building any hand trucks except those equipped with rubber tires and side guards
or such other material-handing equipment as Landlord may approve. Tenant shall
not bring any other vehicles of any kind into the Building.
3
21. Without the written consent of Landlord, Tenant shall not use the name
of the Building in connection with or in promoting or advertising the business
of Tenant except as Tenant's address.
22. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
23. Tenant assumes any and all responsibility for protecting its Premises
from theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
24. The requirements of Tenant will be attended to only upon appropriate
request to Landlord's property management and/or maintenance personnel in
accordance with the terms of the Lease.
25. Tenant shall use the parking areas only for regular and occasional
parking, not longtime storage of vehicles, and shall not park any vehicles in
the Building parking areas other than automobiles, motorcycles, motor driven or
non-motor driven bicycles or four-wheeled trucks.
26. Landlord may waive any one or more of these Rules and Regulations for
the benefit of Tenant or any other tenant, but no such waiver by Landlord shall
be construed as a further waiver of such Rules and Regulations in favor of
Tenant or any other tenant, nor prevent Landlord from thereafter enforcing any
such Rules and Regulations against any or all of the tenants of the Building.
27. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of premises in the Building.
28. Tenant shall be responsible for the observance of all of the foregoing
rules by Tenant's employees, agents, clients, customers, invitees and guests.
29. Employees of Tenant shall not smoke in any areas of the Building.
However, Tenant may permit smoking within the courtyard area.
4
EXHIBIT E
RECORDING REQUESTED BY
_________________________
WHEN RECORDED MAIL TO
The Northwestern Mutual Life Ins. Co.
000 Xxxx Xxxxxxxxx Xxx. - Xx X00XX
Xxxxxxxxx, XX 00000
Attn:
Loan No. SPACE ABOVE THIS LINE FOR RECORDER'S USE
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT is entered into as of_____________________, 20___,
between_____________________________ , whose mailing address
is___________________________, ("Tenant"),______________________, whose mailing
address is_________________________, ("Borrower"), and THE NORTHWESTERN MUTUAL
LIFE INSURANCE COMPANY, a Wisconsin corporation ("Lender"), whose address for
notices is 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, Attention: Real
Estate Investment Department, Reference Loan No. .
RECITALS
A. Tenant is the lessee or successor to the lessee, and Borrower is the
lessor or successor to the lessor under a certain lease dated______________,
20___ (the "Lease").
B. Lender has made, or will make, a mortgage loan to be secured by a
mortgage, deed to secure a debt or deed of trust from Borrower for the benefit
of Lender (as it may be amended, restated or otherwise modified from time to
time, the "Lien Instrument") encumbering the fee title to and/or leasehold
interest in the land described in Exhibit A attached hereto and the improvements
thereon (collectively, the "Property"), wherein the premises covered by the
Lease (the "Demised Premises") are located.
C. Borrower and Lender have executed, or will execute, an Absolute
Assignment of Leases and Rents (the "Absolute Assignment"), pursuant to which
(i) the Lease is assigned to Lender and (ii) Lender grants a license back to
Borrower permitting Borrower to collect all rents, income and other sums payable
under the Lease until the revocation by Lender of such license, at which time
all rents, income and other sums payable under the Lease are to be paid to
Lender.
1
D. Lender has required the execution of this Agreement by Borrower and
Tenant as a condition to Lender making the requested mortgage loan or consenting
to the Lease.
E. Tenant acknowledges that, as its consideration for entering into this
Agreement, Tenant will benefit by entering into an agreement with Lender
concerning Tenant's relationship with any purchaser or transferee of the
Property (including Lender) in the event of foreclosure of the Lien Instrument
or a transfer of the Property by deed in lieu of foreclosure (any such purchaser
or transferee and each of their respective successors or assigns is hereinafter
referred to as "Successor Landlord").
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Tenant, Borrower and
Lender agree as follows:
1. Tenant and Borrower agree for the benefit of Lender that:
(a) Tenant shall not pay, and Borrower shall not accept, any rent or
additional rent more than one month in advance;
(b) Except as specifically provided in the Lease, Tenant and Borrower
will not enter into any agreement for the cancellation of the
Lease or the surrender of the Demised Premises without Lender's
prior written consent;
(c) Tenant and Borrower will not enter into any agreement amending or
modifying the Lease without Lender's prior written consent,
except for amendments or modifications specifically contemplated
in the Lease for confirming the lease commencement date, the rent
commencement date, the term, the square footage leased, the
renewal or extension of the Lease, or the leasing of additional
space at the Property;
(d) Tenant will not terminate the Lease because of a default
thereunder by Borrower unless Tenant shall have first given
Lender written notice and a reasonable opportunity to cure such
default;
(e) Tenant, upon receipt of notice from Lender that it has exercised
its rights under the Absolute Assignment and revoked the license
granted to Borrower to collect all rents, income and other sums
payable under the Lease, shall pay to Lender all rent and other
2
payments then or thereafter due under the Lease, and any such
payments to Lender shall be credited against the rent or other
obligations due under the Lease as if made to Borrower;
(f) Tenant will not conduct any dry cleaning operations on the
Demised Premises using chlorinated solvents nor will Tenant use
any chlorinated solvents in the operation of their business on
the Demised Premises; and
(g) Tenant shall pay any and all termination fees due and payable
under the Lease directly to Lender.
2. The Lease is hereby subordinated in all respects to the Lien Instrument
and to all renewals, modifications and extensions thereof, subject to the terms
and conditions hereinafter set forth in this Agreement, but Tenant waives, to
the fullest extent it may lawfully do so, the provisions of any statute or rule
of law now or hereafter in effect that may give or purport to give it any right
or election to terminate or otherwise adversely affect the Lease or the
obligations of Tenant thereunder by reason of any foreclosure proceeding.
3. Borrower, Tenant and Lender agree that, unless Lender shall otherwise
consent in writing, the fee title to, or any leasehold interest in, the Property
and the leasehold estate created by the Lease shall not merge but shall remain
separate and distinct, notwithstanding the union of said estates either in
Borrower or Tenant or any third party by purchase, assignment or otherwise.
4. If the interests of Borrower in the Property are acquired by a Successor
Landlord:
(a) If Tenant shall not then be in default in the payment of rent or
other sums due under the Lease or be otherwise in material
default under the Lease, the Lease shall not terminate or be
terminated and the rights of Tenant thereunder shall continue in
full force and effect except as provided in this Agreement;
(b) Tenant agrees to attorn to Successor Landlord as its lessor;
Tenant shall be bound under all of the terms, covenants and
conditions of the Lease for the balance of the term thereof,
including any renewal options which are exercised in accordance
with the terms of the Lease;
(c) The interests so acquired shall not merge with any other
interests of Successor Landlord in the Property if such merger
would result in the termination of the Lease;
3
(d) If, notwithstanding any other provisions of this Agreement, the
acquisition by Successor Landlord of the interests of Borrower in
the Property results, in whole or part, in the termination of the
Lease, there shall be deemed to have been created a lease between
Successor Landlord and Tenant on the same terms and conditions as
the Lease, except as modified by this Agreement, for the
remainder of the term of the Lease with renewal options, if any;
and
(e) Successor Landlord shall be bound to Tenant under all of the
terms, covenants and conditions of the Lease, and Tenant shall,
from and after Successor Landlord's acquisition of the interests
of Borrower in the real estate, have the same remedies against
Successor Landlord for the breach of the Lease that Tenant would
have had under the Lease against Borrower if the Successor
Landlord had not succeeded to the interests of Borrower;
provided, however, that Successor Landlord shall not be:
(i) Liable for the breach of any representations or warranties
set forth in the Lease or for any act, omission or
obligation of any landlord (including Borrower) or any other
party occurring or accruing prior to the date of Successor
Landlord's acquisition of the interests of Borrower in the
Demised Premises, except for any repair and maintenance
obligations of a continuing nature as of the date of such
acquisition;
(ii) Liable for any obligation to construct any improvements in,
or make any alterations to, the Demised Premises, or to
reimburse Tenant by way of allowance or otherwise for any
such improvements or alterations constructed or made, or to
be constructed or made, by or on behalf of Tenant in the
Demised Premises;
(iii)Subject to any offsets or defenses which Tenant might have
against any landlord (including Borrower) prior to the date
of Successor Landlord's acquisition of the interests of
Borrower in the Demised Premises;
(iv) Liable for the return of any security deposit under the
Lease unless such security deposit
4
shall have been actually deposited with Successor Landlord;
(v) Bound to Tenant subsequent to the date upon which Successor
Landlord transfers its interest in the Demised Premises to
any third party;
(vi) Liable to Tenant under any indemnification provisions set
forth in the Lease; or
(vii)Liable for any damages in excess of Successor Landlord's
equity in the Property.
The provisions of this paragraph shall be effective and self-operative
immediately upon Successor Landlord succeeding to the interests of Borrower
without the execution of any other instrument.
5. Tenant represents and warrants that Tenant, all persons and entities
owning (directly or indirectly) an ownership interest in Tenant and all
guarantors of all or any portion of the Lease: (i) are not, and shall not
become, a person or entity with whom Lender is restricted from doing business
with under regulations of the Office of Foreign Asset Control ("OFAC") of the
Department of the Treasury (including, but not limited to, those named on OFAC's
Specially Designated and Blocked Persons list) or under any statute, executive
order (including, but not limited to, the September 24, 2001 Executive Order
Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten
to Commit, or Support Terrorism), or other governmental action; (ii) are not
knowingly engaged in, and shall not engage in, any dealings or transaction or be
otherwise associated with such persons or entities described in (i) above; and
(iii) are not, and shall not become, a person or entity whose activities are
regulated by the International Money Laundering Abatement and Financial
Anti-Terrorism Act of 2001 or the regulations or orders thereunder.
6. This Agreement may not be modified orally or in any other manner except
by an agreement in writing signed by the parties hereto or their respective
successors in interest. In the event of any conflict between the terms of this
Agreement and the terms of the Lease, the terms of this Agreement shall prevail.
This Agreement shall inure to the benefit of and be binding upon the parties
hereto, their respective heirs, successors and assigns, and shall remain in full
force and effect notwithstanding any renewal, extension, increase, or refinance
of the indebtedness secured by the Lien Instrument, without further
confirmation. Upon recorded satisfaction of the Lien Instrument, this Agreement
shall become null and void and be of no further effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
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TENANT:
By:
Attest:
Secretary
Add appropriate acknowledgment for Tenant.
(Signatures of Borrower and Lender continued on following pages)
6
(Signatures continued)
BORROWER:
By:
Attest:
Secretary
Add appropriate acknowledgment for Borrower.
(Signature of Lender continued on following pages)
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(Signatures continued)
LENDER: THE NORTHWESTERN
MUTUAL LIFE INSURANCE
COMPANY, a Wisconsin
corporation
By: Northwestern
Investment Management
Company, LLC, a
Delaware limited liability
company, its wholly-owned
affiliate and
authorized representative
By:________________________
, Managing Director
Attest:____________________
, Assistant Secretary
Add appropriate acknowledgment for Northwestern
Add scriveners statement
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EXHIBIT "A"
(Description of Property)
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EXHIBIT F
Janitorial and Carpet Maintenance
Daily Cleaning Requirements:
o Dust horizontal surfaces of desks, tables, chairs, window xxxxx,
pictures and all permanent office furnishings.
o Damp clean horizontal surfaces for removal of spillage, marks, and
food/drink rings.
o Empty all trash receptacles and remove trash to a collection point.
Damp wipe spills.
o Vacuum all carpeting including foot grills, corners and edges.
Rearrange conference chairs.
o Clean, polish, and sanitize drinking fountains.
o Clean fingerprints and smudges from entrance glass, partitions,
counters, walls and jambs.
o Sweep and mop hard surface floors and stairways with chemically
treated mop head.
o Spot wash hard surface floors to remove stains or spillage marks; Damp
mop all entry ways and dining room.
o Spray Buff all hard surface floors (add wax if needed).
o Clean elevator cabs, doors and floors.
o Wipe dining room tables; microwaves, general service areas. Insure
chairs and pedestals/legs free of debris or spills. Sweep and mop food
serving area; buff as needed.
o Clean microwaves nightly.
o Proved a Day-Xxxxxx for an 8 hours shift. Their main responsibility
but not limited to cleaning of all restrooms, lobbies and empting of
trash in cafeteria.
Restroom
o Empty trash receptacles and wash.
o Empty sanitary napkin receptacle and wipe, using a disinfectant.
o Clean and polish dispensers, mirrors, and fixtures.
o Clean and disinfect wash basins, commodes, top and bottom of seats and
urinals.
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o Wash with a germicidal detergent.
o Dust top of partitions, mirrors and fixtures.
o Restock all paper products and hand soap.
o Sweep and mop floors.
Weekly Cleaning Schedule:
o Food service area (behind serving line) floor scrub, after 3:00 pm.
o High dusting, such as air vents, door xxxxx, ceiling corners and
edges, etc.
o Scrub all epoxy/ceramic floors.
Semi-Annual Cleaning Schedule:
o Strip and re-wax all hard flooring, including all kitchen prep and
serving areas.
Equipment and Supplies:
o Tenant or its contractor will provide chemicals, equipment, all the
restroom use products; hand soap and trash can liners, labor and
supervision.
CARPET MAINTENANCE PROGRAM
High Traffic Areas:
o Monthly spot cleaning
o Monthly light moisture cleaning
o Quarterly deep pile extraction
Medium Traffic Areas:
o Monthly spot cleaning
o Quarterly light moisture cleaning
o Semi-annual deep pile extraction
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Low Traffic Areas:
o Monthly spot cleaning
o Semi-annual deep pile extraction
High Traffic Areas: All aisles and stairwells
Medium Traffic Areas: All cubicles
Low Traffic Areas: All offices
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EXHIBIT G
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (the "Agreement") is entered into as of
___________, by and between SHPS, Inc. ("SHPS"), and NTS Realty Holdings Limited
Partnership ("NTS").
Whereas, SHPS desires that NTS provide on-site maintenance services pursuant to
the Lease Agreement entered into between SHPS and NTS dated _______ for lease of
the premises at 00000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxx, XX 00000.
Whereas, in the course of conducting on-site maintenance services, NTS may be
exposed to certain Protected Health Information and/or certain SHPS Information
relating to SHPS' business operations.
Now, Therefore, in consideration of the foregoing and of the mutual promises and
agreements contained herein, the parties hereto agree as follows:
1. Definitions
A. HIPAA. The Health Insurance Portability and Accountability Act of
1996.
B. Protected Health Information (or "PHI"). For the purposes of this
Agreement, "Protected Health Information" shall have the same meaning
as the term "protected health information" in 45 C.F.R. 164.501 of the
HIPAA privacy regulations, limited to the information created or
received by SHPS from or on behalf of its clients.
C. SHPS Information. For the purposes of this Agreement, "SHPS
Information" includes but is not limited to all confidential or
proprietary information belonging to SHPS or to any client or
prospective client of SHPS or to any third party with which SHPS
conducts business.
2. Confidentiality of Information. NTS agrees that it and its personnel
working in SHPS' offices may overhear, see, or otherwise inadvertently
learn of PHI and/or SHPS Information. Such information will be maintained
in strict confidence by NTS and its personnel, using such degree of care as
is appropriate to avoid unauthorized use or disclosure, and NTS will not
make such PHI or SHPS Information available to any other party. NTS agrees
that neither PHI nor SHPS Information may be further used or disclosed for
any reason whatsoever. In addition, NTS agrees that it will immediately
notify SHPS of any and all instances of which it is aware in which the
confidentiality of either PHI or SHPS Information has been breached. NTS
further agrees to take whatever steps are necessary to mitigate any harmful
effect of a disclosure by NTS or its personnel of PHI and/or SHPS
Information.
3. Indemnification. NTS agrees to indemnify, defend, and hold SHPS and its
directors, officers and employees harmless from any and all claims,
lawsuits, settlements, judgments, costs, penalties and expenses (including
attorneys' fees) resulting from or arising out of a violation of the terms
and conditions in this Agreement.
4. Remedies. NTS acknowledges and agrees that any breach, or threatened
breach, of this Agreement shall result in irreparable harm and substantial
damages to SHPS. Accordingly, without prejudice to the rights and remedies
otherwise available to SHPS, NTS agrees that SHPS
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shall be entitled to equitable relief by way of injunction if NTS breaches
or threatens to breach any of the provisions of this Agreement. It is
further understood and agreed that no failure or delay by SHPS in
exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude
any other remedy or the exercise thereof, or the exercise of any right,
power or privilege hereunder.
5. Survival of Agreement. The terms of this Non-Disclosure and Confidentiality
Agreement will survive the termination of this Agreement.
6. Miscellaneous.
a) This Agreement shall be governed by and construed in accordance with
the laws of the state of Kentucky without regard to its principles of
conflicts of laws.
b) This Agreement binds the parties and their respective successors,
assigns, agents, employers, subsidiaries and affiliates.
c) This Agreement may be executed in one or more counterparts, each of
which shall for all purposes be deemed an original.
In witness whereof, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the day and year set forth above.
Dated at Louisville, Kentucky this ______ day of __________________,20____.
SHPS, INC.
By_________________________
Name:
Title:
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Dated at____________________ this_________ day of_____________________, 20____.
NTS REALTY HOLDINGS LIMITED
PARTNERSHIP, a Delaware
limited partnership
By:NTS Realty Capital, Inc.,
a Delaware corporation,
managing general partner
By:________________________
Title: ____________________
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