Exhibit 10.3
BEHRINGER HARVARD
TIC MANAGEMENT SERVICES LP,
ON BEHALF OF THE OWNERS
OF ALAMO PLAZA
("LANDLORD")
BEHRINGER HARVARD EXCHANGE CONCEPTS LP
("TENANT")
ALAMO PLAZA BUILDING
DENVER, COLORADO
OFFICE LEASE
TABLE OF CONTENTS
1. BASIC LEASE PROVISIONS....................................................1
2. PROJECT...................................................................2
3. TERM......................................................................3
4. RENT......................................................................4
5. USE & OCCUPANCY...........................................................6
6. SERVICES & UTILITIES......................................................7
7. REPAIRS...................................................................9
8. ALTERATIONS...............................................................9
9. INSURANCE................................................................10
10. DAMAGE OR DESTRUCTION....................................................11
11. INDEMNITY................................................................12
12. CONDEMNATION.............................................................13
13. TENANT TRANSFERS.........................................................13
14. LANDLORD TRANSFERS.......................................................13
15. DEFAULT AND REMEDIES.....................................................14
16. SECURITY DEPOSIT.........................................................16
17. MISCELLANEOUS............................................................16
i
LEASE
Landlord and Tenant enter into this Lease ("Lease") as of the Execution
Date on the following terms, covenants, conditions and provisions:
1. BASIC LEASE PROVISIONS
1.1 BASIC LEASE DEFINITIONS. In this Lease, the following defined
terms have the meanings indicated.
(a) Execution Date: November _______, 2005.
(b) Landlord: BEHRINGER HARVARD TIC MANAGEMENT SERVICES
LP, ON BEHALF OF THE OWNERS OF ALAMO PLAZA
BUILDING
(c) Tenant: BEHRINGER HARVARD EXCHANGE CONCEPTS LP, a
Texas limited partnership
(d) Building: ALAMO PLAZA BUILDING
0000 00xx Xxxxxx, Xxxxxx XX 00000
deemed to contain: 191,119 rentable square
feet ("RSF")
(e) Premises: As described on Exhibit A attached hereto.
(f) Use: Any lawful use.
(g) Scheduled Term: 36 months
(h) Scheduled
Commencement
Date: January 1, 2006.
(i) Base Rent: The following amounts payable in accordance
with Article 4:
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MONTHS ANNUAL RATE PER RSF ANNUAL BASE RENT MONTHLY BASE RENT
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1-36 $18.22 $750,000 $62,500
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(j) Tenant's Share: Zero percent (0%)
(k) Base Year: The calendar year 2006.
(l) Security Deposit: None.
(m) Notice Address: For each party, the following address(es):
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TO LANDLORD TO TENANT
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Behringer Harvard TIC Management Services LP 00000 Xxxxxx Xxxxxxx, Xxxxx 000
00000 Xxxxxx Xxxxxxx, Xxxxx 000 Xxxxxx, Xxxxx 00000
Xxxxxxx, Xxxxx 00000 Attn: Xxxxx Xxxxxx
Attention: Xx. Xxxx Xxxxx Facsimile: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxx Xxxx Company
Alamo Plaza, 0000 00xx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: Alamo Plaza Property Manager
Facsimile: (000) 000-0000
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(n) Billing Address: For each party, the following address:
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For Landlord For Tenant
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Behringer Harvard TIC Management Services LP 00000 Xxxxxx Xxxxxxx, Xxxxx 000
00000 Xxxxxx Xxxxxxx, Xxxxx 000 Xxxxxx, Xxxxx 00000
Xxxxxxx, Xxxxx 00000 Attn: Xxxxx Xxxxxx
Attention: Xx. Xxxx Xxxxx
Facsimile: (000) 000-0000
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(o) Brokers: None.
(p) Parking Allotment: None.
(q) Liability Limit: $1,000,000 for any one accident or
occurrence.
(r) Construction
Allowance: None.
(s) Business Hours: From 8:00 a.m. to 6: 00 p.m. on Monday
through Friday and from 8:00 a.m. to 12:00
noon on Saturday, excepting: New Year's Day,
Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, Christmas Day, and other
legal holidays commonly observed in similar
class office buildings in the locale of the
Building ("Holidays").
2. PROJECT
2.1 PROJECT. The Land, Building, Common Areas and Premises (as
defined in ss.1 and below) are collectively referred to as the "Project."
2.2 LAND. "Land" means the real property on which the Project,
Building and Common Areas are located, and all other leaseholds, easements or
other interests owned by Landlord in connection with the Project, Building or
Common Areas., whether Landlord's interest in the Land is in fee or is a
leasehold. The Land is subject to expansion or reduction after the Execution
Date.
2.3 BASE BUILDING. "Base Building" means Building Structure and
Mechanical Systems, collectively, defined as follows:
(a) BUILDING STRUCTURE. "Building Structure" means the foundations,
floor/ceiling slabs, roofs, exterior walls, exterior glass and
mullions, columns, beams, shafts (including elevator shafts),
stairs, stairwells, elevators, Building mechanical, electrical
and telephone closets, Common Areas, public areas, and any other
structural components in the Building. The Building Structure
excludes the Leasehold Improvements (and similar improvements to
other premises) and the Mechanical Systems.
(b) MECHANICAL SYSTEMS. "Mechanical Systems" means the mechanical,
electronic, physical or informational systems generally serving
the Building or Common Areas, including the sprinkler, plumbing,
heating, ventilating, air conditioning, lighting,
communications, security, drainage, sewage, waste disposal,
vertical transportation, fire/life safety systems.
2.4 COMMON AREAS. Tenant will have a non-exclusive right to use the
Common Areas subject to the terms of this Lease. "Common Areas" means those
interior and exterior common and public areas on the Land and in the Building
(and appurtenant easements) designated by Landlord for the non-exclusive use by
Tenant in common with Landlord, other tenants and occupants, and their
employees, agents and invitees, including any parking facilities serving the
Building that are owned or leased by Landlord.
2.5 PREMISES. Landlord leases to Tenant the Premises subject to the
terms of this Lease. Except as provided elsewhere in this Lease, by taking
possession of the Premises Tenant accepts the Premises in its "as is" condition
and with all faults, and the Premises is deemed in good order, condition, and
repair. The Premises includes the Leasehold Improvements and excludes certain
areas, facilities and systems, as follows:
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(a) LEASEHOLD IMPROVEMENTS. "Leasehold Improvements" means all
non-structural improvements in the Premises or exclusively
serving the Premises, and any structural improvements to the
Building made to accommodate Tenant's particular use of the
Premises. The Leasehold Improvements may exist in the Premises
as of the Execution Date, or be installed by Landlord or Tenant
under this Lease at the cost of either party. The Leasehold
Improvements include: (1) interior walls and partitions
(including those surrounding structural columns entirely or
partly within the Premises); (2) the interior one-half of walls
that separate the Premises from adjacent areas designated for
leasing; (3) the interior drywall on exterior structural walls,
and walls that separate the Premises from the Common Areas
(defined below); (4) stairways and stairwells connecting parts
of the Premises on different floors, except those required for
emergency exiting; (5) the frames, casements, doors, windows and
openings installed in or on the improvements described in (1-4),
or that provide entry/exit to/from the Premises; (6) all
hardware, fixtures, cabinetry, railings, paneling, woodwork and
finishes in the Premises or that are installed in or on the
improvements described in (1-5); (7) if any part of the Premises
is on the ground floor, the ground floor exterior windows
(including mullions, frames and glass); (8) integrated ceiling
systems (including grid, panels and lighting); (9) carpeting and
other floor finishes; (10) kitchen, rest room, lavatory or other
similar facilities that exclusively serve the Premises
(including plumbing fixtures, toilets, sinks and built-in
appliances); and (11) the sprinkler, plumbing, heating,
ventilating, air conditioning, lighting, communications,
security, drainage, sewage, waste disposal, vertical
transportation, fire/life safety, and other mechanical,
electronic, physical or informational systems that exclusively
serve the Premises, including the parts of each system that are
connected to the Mechanical Systems (defined below) from the
common point of distribution for each system to and throughout
the Premises.
(b) EXCLUSIONS FROM THE PREMISES. The Premises does not include: (1)
any areas above the finished ceiling or integrated ceiling
systems, or below the finished floor coverings that are not part
of the Leasehold Improvements, (2) janitor's closets, (3)
stairways and stairwells to be used for emergency exiting or as
Common Areas, (4) rooms for Mechanical Systems or connection of
telecommunications equipment, (5) vertical transportation
shafts, (6) vertical or horizontal shafts, risers, chases, flues
or ducts, and (7) any easements or rights to natural light, air
or view.
2.6 BUILDING STANDARD. "Building Standard" means the minimum or
exclusive type, brand, quality or quantity of materials Landlord designates for
use in the Building from time to time.
2.7 TENANT'S PERSONAL PROPERTY. "Tenant's Personal Property" means
those trade fixtures, furnishings, equipment, work product, inventory,
stock-in-trade and other personal property of Tenant that are not permanently
affixed to the Project in a way that they become a part of the Project and will
not, if removed, impair the value of the Leasehold Improvements that Tenant is
required to deliver to Landlord at the end of the Term under ss.3.3.
3. TERM
3.1 TERM. "Term" means the period that begins on the Commencement
Date and ends on December 31, 2008 (the "Expiration Date"), subject to earlier
termination as may be further provided in this Lease. "Month" means a full
calendar month of the Term.
3.2 HOLDOVER. If Tenant keeps possession of the Premises after the
end of the Term (a "Holdover") without Landlord's prior written consent (which
may be withheld in its sole discretion), then in addition to the remedies
available elsewhere under this Lease or by Law, Tenant will be a tenant at
sufferance and must comply with all of Tenant's obligations under this Lease,
except that during the Holdover Tenant will pay 150% of the monthly Rent last
payable under this Lease, without prorating for any partial month of Holdover.
Tenant shall indemnify and defend Landlord from and against all claims and
damages, both consequential and direct, that Landlord suffers due to Tenant's
failure to return possession of the Premises to Landlord at the end of the Term.
Landlord's deposit of Tenant's Holdover payment will not constitute Landlord's
consent to a Holdover, or create or renew any tenancy.
3.3 CONDITION ON EXPIRATION. By the end of the Term, Tenant will
return possession of the Premises to Landlord vacant, free of Tenant's Personal
Property, in broom-clean condition, and with all Leasehold Improvements in good
working order and repair (excepting ordinary wear and tear), except that Tenant
will remove Tenant's Wiring and those Leasehold Improvements and Alterations
that, when approved by Landlord, were required to be removed at the end of the
Term. If Tenant fails to return possession of the Premises to Landlord in this
condition, Tenant shall reimburse
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Landlord for the costs incurred to put the Premises in the condition required
under this ss.3.3, including Landlord's standard administration fee. Tenant's
Personal Property left behind in the Premises after the end of the Term will be
considered abandoned and Landlord may move, store, retain or dispose of these
items at Tenant's cost, including Landlord's standard administration fee.
4. RENT
4.1 BASE RENT. During the Term, Tenant shall pay all Base Rent in
advance, in monthly installments, on the 1st of each calendar month. Base Rent
for any partial month will be prorated.
4.2 ADDITIONAL RENT. Tenant's obligation, if any, to pay Taxes and
Expenses under this ss.4.2 is referred to in this Lease as "Additional Rent."
(a) TAXES. For each calendar year after the Base Year (each, a
"Comparison Year"), Tenant shall pay as in the manner described
below the Tenant's Share of the amount that Taxes for the
Comparison Year exceed Taxes for the Base Year. "Taxes" means
the total costs incurred by Landlord for: (1) real and personal
property taxes and assessments (including ad valorem and special
assessments) levied on the Project and Landlord's personal
property used in connection with the Project; (2) taxes on rents
or other income derived from the Building; (3) capital and
place-of-business taxes; (4) taxes, assessments or fees in lieu
of the taxes described in (1-3); and (5) the reasonable costs
incurred to reduce the taxes described in (1-4). Taxes excludes
net income taxes and taxes paid under ss.4.3.
(b) EXPENSES. For each Comparison Year, Tenant shall pay in the
manner described below the Tenant's Share of the amount that
Expenses for the Comparison Year exceed Expenses for the Base
Year. "Expenses" means the total costs incurred by Landlord to
operate, manage, administer, equip, secure, protect, repair,
replace, refurbish, clean, maintain, decorate and inspect the
Project, including a market fee to manage the Project of not
less than three percent (3%) of the gross revenue of the
Project. Expenses that vary with occupancy will be calculated as
if the Building is 100% occupied and operating and all such
services are provided to all tenants.
(1) Expenses include:
(A) Standard Services provided under ss.6.1;
(B) Repairs and maintenance performed under ss.7.2;
(C) Insurance maintained under ss.11.1 (including
deductibles paid);
(D) Wages, salaries and benefits of personnel to the
extent they render services to the Project;
(E) Costs of operating the Project management office
(including reasonable rent);
(F) Amortization installments of costs required to
be capitalized and incurred to:
(i) Comply with laws ("Government Mandated
Expenses");
(ii) Reduce other Expenses or the rate of
increase in other Expenses ("Cost-Saving
Expenses"); or
(iii) Improve or maintain the safety, health
or access of Project occupants, and
otherwise maintain the quality,
appearance, or integrity of the Project
("Well-Being Expenses").
(2) Expenses exclude:
(A) Taxes;
(B) Mortgage payments (principal and interest), and
ground lease rent;
(C) Commissions, advertising costs, attorney's fees
and costs of improvements in connection with
leasing space in the Building;
(D) Costs reimbursed by insurance proceeds or
tenants of the Building (other than as
Additional Rent);
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(E) Depreciation;
(F) Except for the costs identified in
ss.4.2(b)(1)(F), costs required to be
capitalized according to sound real estate
accounting and management principles,
consistently applied;
(G) Collection costs and legal fees paid in disputes
with tenants;
(H) Costs to maintain and operate the entity that is
Landlord (as opposed to operation and
maintenance of the Project); and
(I) In the Base Year, only, installments of costs
amortized under subsection (c) of this ss.4.2;
and
(J) Costs of operating the parking facilities.
(c) AMORTIZATION AND ACCOUNTING PRINCIPLES.
(1) Each item of Government Mandated Expenses and Well-Being
Expenses will be fully amortized in equal annual
installments, with interest on the principal balance at
Amortization Rate, over the number of years, not to
exceed 10, that Landlord projects the item of Expenses
will be productive for its intended use, without
replacement, but properly repaired and maintained.
(2) Each item of Cost-Saving Expenses will be fully
amortized in equal annual installments, with interest on
the principal balance at the Amortization Rate, over the
number of years that Landlord reasonably estimates for
the present value of the projected savings in Expenses
(discounted at the Amortization Rate) to equal the cost.
(3) Any item of Expenses of significant cost that is not
required to be capitalized but is unexpected or does not
typically recur may, in Landlord's discretion, be
amortized in equal annual installments, with interest on
the principal balance at the Amortization Rate, over a
number of years determined by Landlord.
(4) "Amortization Rate" means the prime rate of Citibank,
N.A. (or a comparable financial institution selected by
Landlord), plus 3%.
(5) Landlord will otherwise use sound real estate accounting
and management principles, consistently applied, to
determine Additional Rent.
(d) ESTIMATES. Landlord will reasonably estimate Additional Rent
each calendar year that Additional Rent may be payable. Tenant
will pay the estimated Additional Rent in advance, in monthly
installments, on the first day of each month, until the estimate
is revised by Landlord. Landlord may reasonably revise its
estimate during a calendar year and the monthly installments
after the revision will paid based on the revised estimate. The
aggregate estimates of Additional Rent paid by Tenant in a
calendar year is the "Estimated Additional Rent."
(e) SETTLEMENT. As soon as practical after the end of each calendar
year that Additional Rent is payable, Landlord will give Tenant
a statement of the actual Additional Rent for the calendar year.
The statement of Additional Rent is conclusive, binds Tenant,
and Tenant waives all rights to contest the statement, except
for items of Additional Rent to which Tenant objects by notice
to Landlord given within 90 days after receipt of Landlord's
statement; however, Tenant's objection will not relieve Tenant
from its obligation to pay Additional Rent pending resolution of
any objection. If the Additional Rent exceeds the Estimated
Additional Rent for the calendar year, then Tenant shall pay the
underpayment to Landlord in a lump sum as Rent within 30 days
after receipt of Landlord's statement of Additional Rent. If the
Estimated Additional Rent exceeds the Additional Rent for the
calendar year, then Landlord shall credit the overpayment
against Rent next due. However, if the Term ends during a
calendar year, then Landlord may, in Landlord's sole discretion,
elect either of the following: (1) to forego the settlement of
Additional Rent for the calendar year that is otherwise required
and accept the Estimated Additional Rent payable in the calendar
year in satisfaction of Tenant's obligations to pay Additional
Rent for the final calendar year, or (2) to have Landlord's and
Tenant's obligations under this ss.4.2(e) survive the end of the
Term.
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4.3 OTHER TAXES. Upon demand, Tenant will reimburse Landlord for
taxes paid by Landlord on (a) Tenant's Personal Property, (b) Rent, (c) Tenant's
occupancy of the Premises, or (d) this Lease. If Tenant cannot lawfully
reimburse Landlord for these taxes, then the Base Rent will be increased to
yield to Landlord the same amount after these taxes were imposed as Landlord
would have received before these taxes were imposed.
4.4 TERMS OF PAYMENT. "Rent" means all amounts payable by Tenant
under this Lease. If a time for payment of an item of Rent is not specified in
this Lease, then Tenant will pay Rent within 30 days after receipt of Landlord's
statement or invoice. Unless otherwise provided in this Lease, Tenant shall pay
Rent without notice, demand, deduction, abatement or setoff, in lawful U.S.
currency, at Landlord's Billing Address. Landlord will send invoices payable by
Tenant to Tenant's Billing Address; however, neither Landlord's failure to send
an invoice nor Tenant's failure to receive an invoice for Rent will relieve
Tenant of its obligation to timely pay Rent. Each partial payment by Tenant
shall be deemed a payment on account; and, no endorsement or statement on any
check or any accompanying letter shall constitute an accord and satisfaction, or
affect Landlord's right to collect the full amount due. No payment by Tenant to
Landlord will be deemed to extend the Term or render any notice, pending suit or
judgment ineffective. By notice to the other, each party may change its Billing
Address.
4.5 LATE PAYMENT. If Landlord does not receive all or part of any
item of Rent within ten (10) days after same becomes due, then Tenant shall pay
Landlord a "Late Charge" of 5% of the overdue amount. Tenant agrees that the
Late Charge is not a penalty, and will compensate Landlord for costs not
contemplated under this Lease that are impracticable or extremely difficult to
fix. Landlord's acceptance of a Late Charge does not waive Tenant's default.
5. USE & OCCUPANCY
5.1 USE. Tenant shall use and occupy the Premises only for the Use.
Landlord does not represent or warrant that the Project is suitable for the
conduct of Tenant's particular business.
5.2 COMPLIANCE WITH LAWS AND DIRECTIVES.
(a) TENANT'S COMPLIANCE. Subject to the remaining terms of this
Lease, Tenant shall comply at Tenant's expense with all
directives of Landlord's insurers or laws concerning:
(1) The Leasehold Improvements and Alterations,
(2) Tenant's use or occupancy of the Premises,
(3) Tenant's employer/employee obligations,
(4) A condition created by Tenant,
(5) Tenant's failure to comply with this Lease or its
invitees,
(6) The negligence of Tenant, the Tenant Parties, or
Tenant's Affiliates or contractors, or
(7) Any chemical wastes, contaminants, pollutants or
substances that are hazardous, toxic, infectious,
flammable or dangerous, or regulated by any local, state
or federal statute, rule, regulation or ordinance for
the protection of health or the environment ("Hazardous
Materials") that are introduced to the Project, handled
or disposed by Tenant or its Affiliates, or any of their
contractors.
(b) LANDLORD'S COMPLIANCE. Subject to the remaining terms of this
Lease, Landlord shall comply at Landlord's cost with all
directives of Landlord's insurers or laws concerning the Project
other than those that are Tenant's obligation under subsection
(a). The costs of compliance under this subsection (b) will be
included in Expenses to the extent allowed under ss.4.2.
5.3 OCCUPANCY. Tenant shall not interfere with Building services or
other tenants' rights to quietly enjoy their respective premises or the Common
Areas. Tenant shall not make or continue any nuisance, including any
objectionable odor, noise, fire hazard, vibration, or wireless or
electromagnetic transmission. Tenant's will not maintain any Leasehold
Improvements or use the Premises in a way that increases the cost of insurance
required under ss.9.2, or requires insurance in addition to the coverage
required under ss.9.2.
5.4 PROHIBITED PERSONS AND TRANSACTIONS. Tenant represents and
warrants to Landlord that (a) Tenant is currently in compliance with and shall
at all times during the Scheduled Term (including any extension thereof) remain
in compliance with the regulations of the Office of Foreign Asset Control
(""OFAC"") of the Department of the
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Treasury (including those named on the OFAC"s Specially Designated and Blocked
Persons List) and any statute, executive order (including the September 24,
2001, Executive Order No. 13224 Blocking Property and Prohibiting Transactions
with Persons Who Commit, Threaten to Commit or Support Terrorism (the
""Executive Order"")), or other governmental action relating thereto; and (b)
Tenant is not, and will not be, a person with whom Landlord is restricted from
doing business under the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA
Patriot Act), H. R. 3152, Public Law 107-56 and the Executive Order and the
regulations promulgated thereunder and including persons and entities named on
the OFAC Specially Designated Nations and Blocked Persons List.
6. SERVICES & UTILITIES
6.1 STANDARD SERVICES.
(a) STANDARD SERVICES DEFINED. "Standard Services" means:
(1) Heating, ventilation and air-conditioning ("HVAC")
during Business Hours as reasonably required to
comfortably use and occupy the Premises and interior
Common Areas;
(2) Tempered water from the public utility for use in Common
Areas rest rooms;
(3) Janitorial services to the Premises and interior Common
Areas 5 days a week, except Holidays, to the extent
reasonably determined by Landlord;
(4) Access to the Premises (by at least 1 passenger elevator
if not on the ground floor);
(5) Building standard bulbs are provided to Tenant,
specialty bulbs will be billed to Tenant;
(6) Labor to replace fluorescent tubes and ballasts in
Building Standard light fixtures in the Premises; and
(7) Electricity from Landlord's selected provider(s) for
lighting in the Common Areas and as follows from
convenience outlets in the Premises: Building Standard
lighting (1 three amp fixture per each 80 RSF of the
Premises), Building Standard HVAC and the operation of
customary quantities and types of office equipment
(excluding data processing), so long as (i) the
connected load does not exceed three (3) xxxxx per RSF
of the Premises and .08 kilowatt hour per month per RSF
of the Premises, and (ii) any item of electrical
equipment does not (singly) consume more than 500 xxxxx
per hour at rated capacity or require a voltage other
than one hundred twenty (120) volts single phase.
(b) STANDARD SERVICES PROVIDED. During the Term, Landlord will
provide the Standard Services to Tenant. The cost of the
Standard Services is included in Expenses. Landlord is not
responsible for any inability to provide Standard Services due
to either: the concentration of personnel or equipment in the
Premises; or Tenant's use of equipment in the Premises that is
not customary office equipment, has special cooling
requirements, or generates heat.
6.2 ADDITIONAL SERVICES. Unless Tenant obtains Landlord's prior
written consent, Tenant will not use utilities or services in excess of the
Standard Services. If Landlord so consents, Landlord may provide utilities and
services in excess of the Standard Services subject to the following; however,
if Tenant shall fail to pay for such Additional Services, in addition to
Landlord's other remedies under the Lease, Landlord may discontinue the
Additional Services:
(a) HVAC. If Tenant requests HVAC service to the Premises during
non-Business Hours, Tenant will give Landlord at least 24 hour
notice of same, and Tenant will pay as Rent Landlord's scheduled
rate for this service.
(b) LIGHTING. Landlord will furnish both Building Standard and
non-Building Standard lamps, bulbs, ballasts and starters that
are part of the Leasehold Improvements for purchase by Tenant at
Landlord's cost, plus Landlord's standard administration fee.
Landlord will install non-Building Standard items at Landlord's
scheduled rate for this service.
(c) OTHER UTILITIES AND SERVICES. Tenant will pay as Rent the actual
cost of utilities or services (other than HVAC and lighting
addressed in (a) and (b)) either used by Tenant or provided at
Tenant's request in
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excess of that provided as part of the Standard Services, plus
Landlord's standard administration fee. Tenant's excess
consumption may be estimated by Landlord unless either Landlord
requires or Tenant elects to install Building Standard meters to
measure Tenant's consumption.
(d) ADDITIONAL SYSTEMS AND METERING. Landlord may require Tenant, at
Tenant's expense, to upgrade or modify existing Mechanical
Systems serving the Premises or the Leasehold Improvements to
the extent necessary to meet Tenant's excess requirements
(including installation of Building Standard meters to measure
the same).
6.3 ALTERNATE ELECTRICAL BILLING. Landlord may elect at any time
during the Term after the Base Year, and continuing for the remainder of the
Term, to separately meter Tenant's total consumption of electricity in the
Premises, including lighting and convenience outlets. If Landlord so elects,
then Landlord shall notify Tenant of such election and in lieu of including
consumption of electricity of tenanted premises in Expenses, Tenant shall pay to
Landlord as Rent the actual cost of Tenant's electricity consumption to the
extent that it exceeds Tenant's Proportional Share of the consumption of
electricity of tenanted premises in the Base Year (as reasonably estimated by
Landlord if this consumption was not then separately metered), plus Landlord's
standard administration fee.
6.4 TELECOMMUNICATIONS SERVICES. Tenant will contract directly with
third party providers and will be solely responsible for paying for all
telephone, data transmission, video and other telecommunication services
("Telecommunication Services") subject to the following:
(a) PROVIDERS. Each Telecommunications Services provider that does
not already provide service to the Building shall be subject to
Landlord's approval, which Landlord may withhold in Landlord's
sole discretion. Without liability to Tenant, the license of any
Telecommunications Services provider servicing the Building may
be terminated under the terms of the license, or not renewed
upon the expiration of the license.
(b) TENANT'S WIRING. Landlord may, in its sole discretion, designate
the location of all wires, cables, fibers, equipment, and
connections ("Tenant's Wiring") for Tenant's Telecommunications
Services, restrict and control access to telephone cabinets and
rooms. Tenant may not use or access the Base Building, Common
Areas or roof for Tenant's Wiring without Landlord's prior
written consent, which Landlord may withhold in Landlord's sole
discretion, or for which Landlord may charge a fee determined by
Landlord.
(c) TENANT SOLE BENEFICIARY. This ss.6.4 is solely for Tenant's
benefit, and no one else shall be considered a third party
beneficiary of these provisions.
(d) REMOVAL OF EQUIPMENT. Any and all telecommunications equipment
and other facilities for telecommunications transmission
(including, without limitation, Tenant's Wiring) installed in
the Premises or elsewhere in the Building by or on behalf of
Tenant shall be removed prior to the expiration of earlier
termination of the Term by Tenant at its sole cost or, at
Landlord's election, by Landlord at Tenant's sole cost, with the
cost thereof to be paid as additional rent. Landlord shall have
the right, however, upon written notice to Tenant given no later
than thirty (30) days prior to the expiration or earlier
termination of the Term, to require Tenant to abandon and leave
in place, without additional payment to Tenant or credit against
rent, any or all or Tenant's Wiring and related infrastructure,
or selected components thereof, whether located in the Premises
or elsewhere in the Building.
6.5 INTERRUPTION OF SERVICES.
(a) Without breaching the Lease, Landlord may:
(1) Comply with laws or voluntary government or industry
guidelines concerning the services to be provided by
Landlord or obtained by Tenant under this Article 6;
(2) Interrupt, limit or discontinue the services to be
provided by Landlord or obtained by Tenant under this
Article 6 as may be reasonably required during an
emergency or Force Majeure event; or
(3) If Landlord gives Tenant reasonable prior notice and
uses commercially reasonable efforts not to disturb
Tenant's use of the Premises for the Use, interrupt,
limit or discontinue the
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services to be provided by Landlord or obtained by
Tenant under this Article 6 to repair and maintain the
Project under ss.7.2, or make any improvements or
changes to the Project.
(b) ABATEMENT FOR INTERRUPTION OF STANDARD SERVICES. If all or a
part of the Premises is untenantable because of an interruption
in a utility service that prevents Landlord from providing any
of the Standard Services for more than (7) seven consecutive
days, then from the 8th consecutive day of interruption until
the Standard Services are restored, Landlord shall xxxxx
Tenant's Rent, subject to the following:
(1) Landlord will only xxxxx Rent to the extent the Premises
are untenantable and not actually used by Tenant to
conduct business;
(2) Landlord will only xxxxx Rent if the interruption of
Standard Services is within Landlord's reasonable
control to remedy; and
(3) Landlord will only xxxxx Rent to the extent the
interruption in Rent covered by insurance Landlord
maintains under ss.9.2, and
(c) NO OTHER LIABILITY. Except as provided under (b), Landlord will
not be liable in any manner for any interruption in services to
be provided by Landlord or obtained by Tenant under this Article
6 (including damage to Tenant's Personal Property, consequential
damages, actual or constructive eviction, or abatement of any
other item of Rent).
7. REPAIRS
7.1 TENANT'S REPAIRS. Except as provided in Articles 10 and 12,
during the Term Tenant shall, at Tenant's cost, repair
and maintain (and replace, as necessary) the Leasehold
Improvements and keep the Premises in good order and
condition. Tenant's work under this ss.7.1 (a) is
subject to the prior approval and supervision of
Landlord, (b) must be performed in compliance with laws
and Building rules and regulations, and (c) must be
performed in a first-class, lien free and workmanlike
manner, using materials not less than Building Standard.
7.2 LANDLORD'S REPAIRS. Except as provided in Articles 10 and 12,
during the Term Landlord shall, at Landlord's cost (but included as Expenses to
the extent provided in ss.4.2) repair and maintain (and replace, as necessary)
all parts of the Project that are not Tenant's responsibility to repair and
maintain under ss.7.1 (or any other tenant's responsibility under their
respective lease) and keep the Project in good order and condition according to
the standards prevailing for comparable office buildings in the area in which
the Building is located. Tenant may not repair or maintain the Project on
Landlord's behalf or offset any Rent for any repair or maintenance of the
Project that is undertaken by Tenant.
8. ALTERATIONS
8.1 ALTERATIONS BY TENANT. "Alterations" means any modifications,
additions or improvements to the Premises or Leasehold Improvements made by
Tenant during the Term, including modifications to the Base Building or Common
Areas required by law as a condition of performing the this work. Alterations
does not include Tenant Improvements made under any Workletter attached to this
Lease. Alterations are made at Tenant's sole cost and expense, subject to the
following:
(a) CONSENT REQUIRED. All Alterations require Landlord's prior
written consent. If a Design Problem exists, Landlord may
withhold its consent in Landlord's sole discretion; otherwise,
Landlord will not unreasonably withhold its consent. In either
case, Landlord may condition its consent to any item of
Alterations on the requirement that Tenant remove this item of
Alterations upon termination of this Lease. "Design Problem"
means a condition that results, or will result, from Alterations
that are proposed, being performed or have been completed that
either:
(1) Does not comply with laws;
(2) Does not meet or exceed the Building Standard;
(3) Exceeds the capacity, adversely affects, is incompatible
with, or impairs Landlord's ability to maintain,
operate, alter, modify or improve the Base Building;
(4) Affects the exterior appearance of the Building or
Common Areas;
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(5) Violates any agreement affecting the Project;
(6) Costs more to demolish than Building Standard
improvements;
(7) Violates any insurance regulations or standards for a
fire-resistive office building; or
(8) Locates any equipment, Tenant's Wiring or Tenant's
Personal Property on the roof of the Building, in Common
Areas or in telecommunications or electrical closets.
(b) PERFORMANCE OF ALTERATIONS. Alterations shall be performed by
Tenant in a good and xxxxxxx-like manner according to plans and
specifications approved by Landlord. All Alterations shall
comply with law and insurance requirements. Landlord's
designated contractors must perform Alterations affecting the
Base Building or Mechanical Systems; and, all other work will be
performed by qualified contractors that meet Landlord's
insurance requirements and are otherwise approved by Landlord.
Promptly after completing Alterations, Tenant will deliver to
Landlord "as-built" CADD plans, proof of payment, a copy of the
recorded notice of completion, and all unconditional lien
releases.
(c) BONDING. If requested by Landlord, before commencing Alterations
Tenant shall at Tenant's cost obtain bonds, or deposit with
Landlord other security acceptable to Landlord for the payment
and completion of the Alterations. These bonds or other security
shall be in form and amount acceptable to Landlord.
(d) ALTERATIONS FEE. Tenant shall pay Landlord as Rent 10% of the
total construction costs of the Alterations to cover review of
Tenant's plans and construction coordination by its own
employees. In addition, Tenant shall reimburse Landlord for the
actual cost that Landlord reasonably incurs to have engineers,
architects or other professional consultants review Tenant's
plans and work in progress, or inspect the completed
Alterations.
8.2 ALTERATIONS BY LANDLORD. Landlord may make any modifications,
additions, renovations or improvements to the Project that Landlord deems
appropriate, provided Landlord uses commercially reasonable efforts to avoid
disrupting Tenant's business.
8.3 LIENS AND DISPUTES. Tenant will keep title to the Land and
Building free of any liens concerning the Leasehold Improvements, Alterations,
or Tenant's Personal Property, and will promptly take whatever action is
required to have any of these liens released and removed of record (including,
as necessary, posting a bond or other deposit). To the extent legally permitted,
each contract and subcontract for Alterations will provide that no lien attaches
to or may be claimed against the Project other than Tenant's leasehold interest
in the Premises.
9. INSURANCE
9.1 TENANT'S INSURANCE.
(a) TENANT'S COVERAGE. During the Term, Tenant will provide and keep
in force the following coverage:
(1) Commercial general liability insurance insuring Tenant's
use and occupancy of the Premises and Common Areas, and
covering personal and bodily injury, death, and damage
to others' property of not less than the Liability
Limit. Each of these policies shall include cross
liability and severability of interests clauses, and be
written on an occurrence, and not claims-made, basis.
Each of these policies shall name Landlord and any other
party reasonably designated by Landlord as an additional
insured.
(2) Insurance required by law, including workers'
compensation insurance.
(b) INSURERS AND TERMS. Each policy required under (a) shall be
written with insurance companies licensed to do business in the
jurisdiction in which the Building is located, and be on terms
that are acceptable to Landlord.
(c) PROOF OF INSURANCE. Tenant shall provide Landlord with
certificates of insurance or other reasonable proof that the
coverage required under (a) is in effect. Tenant will provide
reasonable proof at least 30 days before any policy expires that
the expiring policy will be replaced.
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9.2 LANDLORD'S INSURANCE.
(a) LANDLORD'S COVERAGE. During the Term, Landlord will provide and
keep in force the following coverage:
(1) Commercial general liability insurance.
(2) Property insurance with special form-causes of loss
coverage (formerly known as "all risk") covering the
full replacement cost of the Project improvements
(excepting the Leasehold Improvements to be insured by
Tenant). Each of these policies shall include a
provision or endorsement in which the insurer waives its
right of subrogation against Tenant.
(3) Insurance covering the perils described in (2) for
Landlord's loss of rental income or insurable gross
profits. Each of these policies shall include a
provision or endorsement in which the insurer waives its
right of subrogation against Tenant.
(4) Boiler and machinery insurance.
(5) Other insurance that Landlord elects to maintain.
(b) TERMS. Each of the policies required under (a) will have those
limits, deductibles, retentions and other terms that Landlord
prudently determines.
10. DAMAGE OR DESTRUCTION
10.1 DAMAGE AND REPAIR. If the Leasehold Improvements, Premises or
Building is damaged by fire or other casualty, then the parties will proceed as
follows:
(a) LANDLORD'S ESTIMATES. Landlord will assess the damage to the
Project (but not the Leasehold Improvements) and notify Tenant
of Landlord's reasonable estimate of the time required to
substantially complete repairs and restoration of the Project
("Repair Estimate"). Landlord will also estimate the time that
the Premises will be untenantable ("Interruption Estimate").
Within 30 days after the later of the casualty, issuance of the
Repair Estimate, issuance of the Interruption Estimate, or
receipt of any denial of coverage or reservation of rights from
Landlord's insurer, each party may terminate the Lease by
written notice to the other on the following conditions:
(1) Landlord may elect to terminate this Lease if either:
(A) The damage occurs during the last year of the
Term and, or
(B) The Repair Estimate exceeds 180 days, or
(C) The repair and restoration is not fully covered
by insurance maintained or required to be
maintained by Landlord (subject only to those
deductibles or retentions Landlord elected to
maintain) or Landlord's insurer denies coverage
or reserves its rights on coverage or any
mortgagee of the Building requires that
insurance proceeds be applied to the
indebtedness secured by its mortgage.
(2) Tenant may elect to terminate this Lease if the
Interruption Estimate exceeds 180 days.
(b) If neither party terminates the Lease under (a), then the Lease
shall remain in full force and effect and the parties will
proceed as follows:
(1) Landlord will repair and restore the Project (but not
Leasehold Improvements) to the condition existing prior
to such damage, except for modifications required by
law. Landlord will perform such work reasonably
promptly, subject to delay for loss adjustment, Tenant
Delay and Force Majeure.
(2) Tenant will repair and restore the Leasehold
Improvements reasonably promptly to the condition
existing prior to such damage, but not less than then
current Building Standards, except for modifications
required by law.
(3) Tenant may not terminate this Lease if the actual time
to perform the repairs and restoration exceeds the
Repair Estimate, or the actual interruption exceeds the
Interruption Estimate.
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10.2 RENT ABATEMENT. If as a result of the damage or destruction
under ss.10.1 the Premises are rendered untenantable for more than 5 consecutive
days, then Tenant's Base Rent and Additional Rent shall be abated to the extent
that the Premises are untenantable, except for any period after completion of
Landlord's required repairs and restoration of the Premises and that portion of
the Project necessary for Tenant's occupancy of the Premises exceeding 15 days.
Tenant's sole remedy will be the abatement of Base Rent and Additional Rent
provided under this ss.10.2, and Landlord will not be liable to Tenant for any
other amount, including damages to Tenant's Personal Property, consequential
damages, actual or constructive eviction, or abatement of any other item of
Rent.
11. INDEMNITY
11.1 CLAIMS. "Claims" means any and all liabilities, losses, claims,
demands, damages or expenses that are suffered or incurred by a party, including
attorneys' fees reasonably incurred by that party in the defense or enforcement
of the rights of that party.
11.2 TENANT'S INDEMNITY.
(a) LANDLORD'S WAIVERS. Landlord waives any Claims against Tenant
and its Affiliates for perils insured or required to be insured
by Landlord under subsections (2) and (3) of ss.9.2(a), except
to the extent caused by the gross negligence or willful
misconduct of Tenant or its Affiliates.
(b) CLAIMS AGAINST LANDLORD. Unless waived by Landlord under (a),
Tenant will indemnify and defend Landlord and its Affiliates and
hold each of them harmless from and against Claims arising from:
(1) Any accident or occurrence on or about the Premises,
except to the extent caused by the negligence or willful
misconduct of Landlord or its Affiliates;
(2) Tenant's or its Affiliates' negligence or willful
misconduct;
(3) Tenant's failure to comply with this Lease; or
(4) Any claim for commission or other compensation by any
person other than the Brokers for services rendered to
Tenant in procuring this Lease; or
11.3 LANDLORD'S INDEMNITY.
(a) TENANT'S WAIVERS. Tenant waives any Claims against Landlord and
its Affiliates for:
(1) Peril insured or required to be insured by Tenant under
subsections (2), (3) and (8) of ss.9.1(a), and
(2) Damage caused by any public utility, public work, other
tenants or occupants of the Project, or persons other
than Landlord.
(b) CLAIMS AGAINST TENANT. Unless waived by Tenant under (a),
Landlord will indemnify and defend Tenant and its Affiliates and
hold each of them harmless from and against Claims arising from:
(1) Landlord's or its Affiliates' negligence or willful
misconduct;
(2) Landlord's default of this Lease; or
(3) Any claim for commission or other compensation by any
person other than the Brokers for services rendered to
Landlord in procuring this Lease.
11.4 AFFILIATES DEFINED. "Affiliates" means with respect to a party
(a) that party's partners, co-members and joint venturers, (b) each corporation
or other entity that is a parent or subsidiary of that party, (c) each
corporation or other entity that is controlled by or under common control of a
parent of such party, and (d) the directors, officers, employees and agents of
that party and each person or entity described in this ss.11.4(a-c).
11.5 SURVIVAL OF WAIVERS AND INDEMNITIES. Landlord's and Tenant's
waivers and indemnities under ss.11.2 and ss.11.3 will survive the expiration or
early termination of this Lease.
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12. CONDEMNATION
12.1 TAKING. "Taking" means acquiring of all or part of the Project
for any public or quasi-public use by exercise of a right of eminent domain or
under any other law, or any sale in lieu thereof. If a Taking occurs:
(a) The Lease will terminate as of the date of a Taking if
substantially all of the Premises becomes untenantable for
substantially all of the remaining Term because of the Taking.
(b) If the Lease is not terminated under (a), Landlord shall restore
or alter the Premises after the Taking to be tenantable, unless
Landlord reasonably determines that it will be uneconomical to
do so, in which case Landlord may terminate the Lease upon 60
days prior written notice to Tenant.
(c) If the Lease is not terminated under (a), more than 20% of the
Premises is untenantable because of the Taking, Tenant cannot
operate Tenant business for the Use in the Premises after such
Taking, and Landlord is unable to provide Tenant with comparable
premises in the Project, then Tenant may terminate the Lease
upon 60 days prior written notice to Landlord.
(d) If the Lease is not terminated under (a), (b) or (c), the Rent
payable by Tenant will be reduced for the term of the Taking
based upon the rentable area of the Premises made untenantable
by the Taking.
12.2 AWARDS. Landlord is entitled to the entire award for any claim
for a taking of any interest in this Lease or the Project, without deduction or
offset for Tenant's estate or interest; however, Tenant may make a claim for
relocation expenses and damages to Tenant's Personal Property and business to
the extent that Tenant's claim does not reduce Landlord's award.
13. TENANT TRANSFERS
13.1 CONSENT NOT REQUIRED. Tenant shall have the right to transfer
its interest in this Lease or the Premises without Landlord's prior consent, but
with notice to Landlord.
13.2 REPLACEMENT LEASES. For purposes hereof, (a) the term "Currently
Leased Area" means the number of rentable square feet in the Building that are
leased as of the date of this Lease (not taking into account this Lease). If
Landlord hereafter enters into a lease or any expansion of an existing lease (a
"Replacement Lease") that results in the leased area of the Building being in
excess of the Currently Existing Leased Area (such excess being herein referred
to as the "Newly Leased Area"), then Tenant may at any time thereafter, by
written notice to Landlord, delete from the Premises an area (the "Deleted
Area") containing the same number of rentable square feet as are contained in
the Newly Leased Area, and in such event Tenant shall have no further rights or
obligations under this Lease with respect to the Deleted Area and the Rent
payable under this Lease shall be reduced accordingly; provided, however, that
in the event that a Replacement Lease provides for rent abatement or "free rent"
at the beginning of the lease term, the reduction in the Rent payable hereunder
shall be offset by the amount of such rent abatement or "free rent". At such
time as Replacement Leases demising Newly Leased Area equal to the area of the
Premises have been executed, the Term of this Lease shall expire. In the event a
Replacement Lease comes into existence in respect of which a termination of this
Lease is properly exercised, promptly after the request of Tenant or Landlord,
Tenant and Landlord shall enter into a mutually acceptable amendment to this
Lease confirming the foregoing.
13.3 EFFECT OF TRANSFERS. Except as provided in Section 13.2 above,
no transfer releases Tenant from any Lease obligation. If Tenant is in Default
of this Lease, Landlord may proceed against Tenant without exhausting any
remedies against any transferee and may require (by written notice to any
transferee) any transferee to pay Transfer rent owed Tenant directly to Landlord
(which Landlord will apply against Tenant's Lease obligations). Termination of
this Lease for any reason will not result in a merger. Each sublease will be
deemed terminated upon termination of this Lease unless Landlord notifies the
subtenant in writing of Landlord's election to assume any sublease, in which
case the subtenant shall attorn to Landlord under the executory terms of the
sublease.
14. LANDLORD TRANSFERS
14.1 LANDLORD'S TRANSFER. Landlord's right to transfer any interest
in the Project or this Lease is not limited by this Lease. Upon any such
transfer, Tenant will attorn to Landlord's transferee and Landlord will be
released from liability under this Lease, except for any Lease obligations
accruing before the transfer that are not assumed by the transferee.
13
14.2 SUBORDINATION. This Lease is, and will at all times be, subject
and subordinate to each ground lease, mortgage, deed to secure debt or deed of
trust now or later encumbering the Building, including each renewal,
modification, supplement, amendment, consolidation or replacement thereof (each,
an "Encumbrance"). At Landlord's request, Tenant will, without charge, promptly
execute, acknowledge and deliver to Landlord (or, at Landlord's request, the
Encumbrance holder) any instrument reasonably necessary to evidence this
subordination. Notwithstanding the foregoing, each Encumbrance holder may
unilaterally elect to subordinate its Encumbrance to this Lease.
14.3 ATTORNMENT. Tenant will automatically attorn to any transferee
of Landlord's interest in the Project that succeeds Landlord by reason of a
termination, foreclosure or enforcement proceeding of an Encumbrance, or by
delivery of a deed in lieu of any foreclosure or proceeding (a "Successor
Landlord"). In this event, the Lease will continue in full force and effect as a
direct lease between the Successor Landlord and Tenant on all of the terms of
this Lease, except that the Successor Landlord shall not be:
(a) Liable for any obligation of Landlord under this Lease, or be
subject to any counterclaim, defense or offset accruing before
Successor Landlord succeeds to Landlord's interest;
(b) Bound by any modification or amendment of this Lease made
without Successor Landlord's consent,
(c) Bound by any prepayment of more than one month's Rent;
(d) Obligated to return any Security Deposit not paid over to
Successor Landlord, or
(e) Obligated to perform any improvements to the Premises (or
provide an allowance therefor). Upon Successor Landlord's
request, Tenant will, without charge, promptly execute,
acknowledge and deliver to Successor Landlord any instrument
reasonably necessary required to evidence such attornment.
14.4 ESTOPPEL CERTIFICATE. Within 10 days after receipt of Landlord's
written request, Tenant (and each guarantor of the Lease) will execute,
acknowledge and deliver to Landlord a certificate upon which Landlord and each
existing or prospective Encumbrance holder may rely confirming the following (or
any exceptions to the following):
(a) The Commencement Date and Expiration Date;
(b) The documents that constitute the Lease, and that the Lease is
unmodified and in full force and effect;
(c) The date through which Rent has been paid;
(d) That neither Landlord nor Tenant is in Default;
(e) That Landlord has satisfied all Lease obligations to improve the
Premises (or provide Tenant an allowance therefor) and Tenant
has accepted the Premises;
(f) That Tenant solely occupies the Premises; and
(g) Such other matters concerning this Lease or Tenant's occupancy
that Landlord may reasonably require.
15. DEFAULT AND REMEDIES
15.1 TENANT'S DEFAULT AND REMEDIES.
(a) Tenant will be in "Default" of this Lease if Tenant either:
(1) Fails to pay Rent when due, and the failure continues
for 3 days after Landlord notifies Tenant of this
failure under ss.17.2 (Tenant waiving any other notice
that may be required by law);
(2) Fails to perform a non-monetary Lease obligation of
Tenant and the failure continues for 10 days after
Landlord notifies Tenant of this failure, but:
(A) In an emergency Landlord may require Tenant to
perform this obligation in a reasonable time of
less than 10 days, or
(B) If it will reasonably take more than 10 days to
perform this obligation, then Tenant will have a
reasonable time not exceeding 30 days to perform
this obligation, but
14
only if Tenant commences performing this
obligation within 10 days after Landlord
notifies Tenant of this failure;
(3) Consummates a Transfer that violates Article 13;
(4) Fails, within 15 days after it occurs, to
discharge any attachment or levy on Tenant's
interest in this Lease; or
(5) Fails, within 60 days after it occurs, to have
vacated or dismissed any appointment of a
receiver or trustee of Tenant's assets (or any
Lease guarantor's assets), or any voluntary or
involuntary bankruptcy or assignment for the
benefit of Tenant's creditors (or any Lease
guarantor's creditors).
(b) If Tenant is in Default, Landlord may, without prejudice
to the exercise of any other remedy, exercise any remedy
available under law, including those described below:
(1) Landlord may enter the Premises as reasonably
required and cure Tenant's Default on Tenant's
behalf without releasing Tenant from any Lease
obligation, and Tenant shall reimburse Landlord
on demand for all costs of such cure, plus
Landlord's standard administration fee.
(2) Landlord may terminate this Lease upon notice to
Tenant (on a date specified in the notice) and
recover possession of the Premises from Tenant.
At Landlord's election, either:
(A) Landlord may recover any Rent unpaid as
of the termination date, and Tenant will
remain liable for the payment when due
of Rent for the remaining Term, less the
proceeds that Landlord receives in
reletting the Premises, but only after
Landlord is reimbursed from these
proceeds for the expenses Landlord
incurs to recover possession of the
Premises and relet the Premises; or
(B) Landlord may recover any Rent unpaid as
of the termination date, and further
recover the present value as of the
termination date (calculated using the
then current discount rate of the
Federal Reserve Bank of New York) of the
Rent to be paid for the Term remaining
after the termination date (assuming 8%
annual increases in Additional Rent)
exceeds the proceeds that Landlord
receives in reletting the Premises, but
only after Landlord is reimbursed from
these proceeds for the expenses Landlord
incurs to recover possession of the
Premises and relet the Premises.
(3) Landlord may use reasonably necessary force to
enter and take possession of all or any part of
the Premises, expel Tenant or any other
occupant, and remove their personal property,
and the entry will not constitute a trespass or
terminate the Lease. After regaining possession
of the Premises, Landlord may relet the Premises
for Tenant's account, but Landlord will not be
responsible or liable if Landlord fails to do so
or is unable to collect rent due from any
reletting. Tenant will continue to pay Rent due,
less a credit for the proceeds that Landlord
receives in reletting the Premises, but only
after Landlord is reimbursed from these proceeds
for the expenses Landlord incurs to recover
possession of the Premises and relet the
Premises.
(4) For any amounts owed under (1), (2) or (3),
recover interest at the greater of the interest
rate permitted under law or 10% ("Default Rate")
from the date each amount is due until paid by
Tenant.
15.2 LANDLORD'S DEFAULT AND REMEDIES.
(a) Landlord will be in "Default" of this Lease if Landlord fails to
perform any Lease obligation of Landlord and this failure
continues for 20 days after Tenant notifies Landlord of such
failure, or such longer period of time as is reasonable if more
than 20 days is reasonably required to perform this obligation
if performance commences within this 20-day period and is
diligently prosecuted to completion.
15
(b) If Landlord is in Default, then Tenant may exercise any remedy
available under law that is not waived or limited under this
Lease, subject to the following:
(1) Tenant may not terminate this Lease due to any Landlord
Default until Tenant notifies each Encumbrance holder
and each Encumbrance holder is provided a reasonable
opportunity to gain legal possession of the Project and,
after gaining possession, cure the Default.
(2) Landlord's liability under this Lease is limited to
Landlord's interest in the Building, and if Landlord is
comprised of more than one entity, the liability of each
entity comprising Landlord shall be several only (not
joint) based upon such entity's proportionate share of
ownership in the Building.
(3) No liability under this Lease is assumed by Landlord's
Affiliates.
(4) Any liability of Landlord to Tenant (or any person or
entity claiming by, through or under Tenant) for any
default by Landlord under the Lease or any matter
relating to the occupancy or use of the Premises and/or
the Building shall be limited to Tenant's actual direct,
but not consequential, damages therefore.
15.3 ENFORCEMENT COSTS. If Landlord or Tenant brings any action
against the other to enforce or interpret any provision of this Lease (including
any claim in a bankruptcy or an assignment for the benefit of creditors), the
prevailing party will be entitled to recover from the other reasonable costs and
attorneys' fees incurred in such action.
15.4 JURY TRIAL. Landlord and Tenant each waive trial by jury in any
action, proceeding or counterclaim brought by either party against the other
concerning any matter related to this Lease.
15.5 FORCE MAJEURE. "Force Majeure" means any cause or event beyond
both Landlord's and Tenant's reasonable control, including any act of God,
government act or restriction, labor disturbance, general shortage of materials
or supplies, riot, insurrection, or act of war or terrorism. Force Majeure
excuses a party from performing any non-monetary Lease obligation for a
commercially reasonable time.
15.6 RIGHT OF TERMINATION. Notwithstanding anything to the contrary
contained in this Lease, if at any time during the term of this Lease an
Affiliate of Tenant is not retained to manage the Building, then Tenant shall
have the right to terminate this Lease upon thirty (30) days written notice to
Landlord. In the event of such termination, Tenant shall be released from all
obligations under this Lease, including specifically, without limitation, the
obligation to pay Rent for the remaining Term.
16. SECURITY DEPOSIT
16.1 DEPOSIT. Tenant will deposit the Security Deposit with Landlord
on execution of this Lease. Landlord is not required to either segregate the
Security Deposit from any other funds or pay any interest on the Security
Deposit. The Security Deposit secures Tenant's performance of all Lease
obligations. Landlord may apply the Security Deposit against any cost Landlord
incurs or damage Landlord suffers because Tenant fails to perform any Lease
obligation, including payment of Rent. Upon Landlord's demand, Tenant shall
replenish any Security Deposit applied by Landlord.
16.2 REFUND. If Tenant fully and faithfully performs all of its Lease
obligations, then Landlord will refund the Security Deposit (or any balance
remaining) to Tenant within 60 days after the expiration or early termination of
the Term and Tenant's vacation and surrender of the Premises to Landlord in the
condition required by ss.3.3.3.5. If Tenant has assigned this Lease, Landlord
may return the Security Deposit to either Tenant or the then current assignee.
Landlord's transfer of the Security Deposit to any transferee of Landlord's
interest in the Building relieves Landlord of its obligations under this
section, and Tenant will look solely to Landlord's transferee for return of the
Security Deposit.
17. MISCELLANEOUS
17.1 RULES AND REGULATIONS. Tenant will comply with the Rules and
Regulations attached as Exhibit B. Landlord may reasonably modify or add to the
Rules and Regulations upon notice to Tenant. If the Rules and Regulations
conflict with this Lease, the Lease shall govern.
17.2 NOTICE. Notice to Landlord must be given to Landlord's Notice
Addresses. Notice to Tenant must be given to Tenant's Notice Addresses. By
notice to the other, either party may change its Notice Address. Each notice
must be in writing and will be validly given if either: (a) the notice is
personally delivered and receipt is acknowledged
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in writing; (b) the notice is delivered by private carrier (e.g., Federal
Express) and receipt is acknowledged in writing. If the party to receive notice
refuses to acknowledge its receipt in writing, then notice may be validly given
by mailing the notice first-class, certified or registered mail, postage
prepaid, and the notice will be deemed received by the party 2 business days
after the notice's deposit in the U.S. Mail.
17.3 RELOCATION. Landlord may relocate Tenant to other premises in
the Building ("New Premises") upon not less than 30-days' notice.
17.4 BUILDING NAME. Tenant shall not use the Building's name or image
for any purpose, other than Tenant's address. Landlord may change the name of
the Building without any obligation or liability to Tenant.
17.5 ENTIRE AGREEMENT. This Lease is deemed integrated and contains
all of each party's representations, waivers and obligations. The parties may
only modify or amend this Lease in a writing that is fully executed and
delivered by both parties.
17.6 SUCCESSORS. Unless provided to the contrary elsewhere in this
Lease, this Lease binds and inures to the benefit of each party's heirs,
successors and permissible assignees.
17.7 NO WAIVER. A party's waiver of a breach of this Lease will not
be considered a waiver of any other breach. No custom or practice that develops
between the parties will prevent either party from requiring strict performance
of the terms of this Lease. No Lease provision or act of a party creates any
relationship between the parties other than that of landlord and tenant.
17.8 INDEPENDENT COVENANTS. The covenants of this Lease are
independent. A court's declaration that any part of this Lease is invalid, void
or illegal will not impair or invalidate the remaining parts of this Lease,
which will remain in full force and effect.
17.9 CAPTIONS. The use of captions, headings, boldface, italics or
underlining is for convenience only, and will not affect the interpretation of
this Lease.
17.10 AUTHORITY. Individuals signing this Lease on behalf of either
party represent and warrant that they are authorized to bind that party.
17.11 APPLICABLE LAW. THIS LEASE IS GOVERNED BY THE LAWS OF STATE OF
COLORADO, REGARDLESS OF ITS CONFLICTS PROVISION OR CHOICE OF LAW RULES. IN ANY
ACTION BROUGHT UNDER THIS LEASE, TENANT SUBMITS TO THE JURISDICTION OF THE
COURTS OF THE STATE OF COLORADO. TO THE EXTENT PERMITTED BY LAW, LANDLORD AND
TENANT AGREE THAT VENUE FOR ANY ACTION BROUGHT BY EITHER AGAINST THE OTHER IN
CONNECTION WITH THIS LEASE SHALL LIE EXCLUSIVELY IN THE STATE OR FEDERAL COURTS
SITTING IN DENVER COUNTY, COLORADO.
17.12 CONFIDENTIALITY. Tenant will not record this Lease or a
memorandum of this Lease without Landlord's written consent. Tenant will keep
the terms of this Lease confidential and, unless required by law, may not
disclose the terms of this Lease to anyone other than Tenant's Affiliates to the
extent necessary to Tenant's business.
17.13 REASONABLENESS. Tenant's sole remedy for any claim against
Landlord that Landlord has unreasonably withheld or unreasonably delayed any
consent or approval shall be an action for injunctive or declaratory relief.
17.14 TIME. Time of the essence as to all provisions in this Lease in
which time is a factor.
17.15 QUIET ENJOYMENT. So long as Tenant is not in Default, Tenant
shall have the right to peacefully and quietly enjoy the Premises for the Term
under the terms of this Lease.
17.16 RIGHT TO ENTER PREMISES. Landlord may enter the Premises at any
reasonable time to inspect the Premises, show the Premises to prospective
lenders, purchasers or tenants, or perform Landlord's duties under this Lease.
17.17 EXHIBITS. The exhibits attached to this Lease are incorporated
herein. If any exhibit is inconsistent with the terms of this Lease, the
provisions of this Lease will govern.
17.18 LENDER APPROVAL. If a mortgagee of the Building has the right to
consent to this Lease and fails to give such consent, Landlord shall have the
right, at its sole option, to terminate and cancel this Lease. Such option shall
be exercisable by Landlord by written notice to Tenant of such termination,
whereupon this Lease shall be deemed
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cancelled and terminated, and both Landlord and Tenant shall be relieved of any
and all liabilities and obligations hereunder.
[SIGNATURES TO IMMEDIATELY FOLLOW]
HAVING READ AND INTENDING TO BE BOUND BY THE TERMS AND PROVISIONS THEREOF,
LANDLORD AND TENANT HAVE EXECUTED THIS LEASE AS OF THE EXECUTION DATE.
BEHRINGER HARVARD EXCHANGE BEHRINGER HARVARD TIC
CONCEPTS LP, A TEXAS LIMITED MANAGEMENT SERVICES LP, ON
PARTNERSHIP BEHALF OF THE OWNERS OF
XXXXXX TOWER, A TEXAS LIMITED
By: Harvard Property Trust, LLC, PARTNERSHIP
its General Partner
By: Behringer Harvard TIC MS GP,
Inc., Its General Partner
By: __________________________
Name: ________________________ By: __________________________
Title: _______________________ Name:_________________________
Title: _______________________
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