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Exhibit 10.16
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CMD 103A (8/98)
Base Years
OFFICE LEASE
WITH
OpenSite Technologies, Inc.
SUITE(S): 100
BUILDING: 0000 Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx Xxxxxxxx 00000
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TABLE OF CONTENTS
ARTICLE 1: BASIC PROVISIONS............................................1
ARTICLE 2: TERM AND COMMENCEMENT.......................................3
ARTICLE 3: BASE RENT AND ADDITIONAL RENT...............................4
ARTICLE 4: CONDITION OF PREMISES.......................................7
ARTICLE 5: QUIET ENJOYMENT.............................................8
ARTICLE 6: UTILITIES AND SERVICES......................................8
ARTICLE 7: USE, COMPLIANCE WITH LAWS, AND RULES.......................11
ARTICLE 8: MAINTENANCE AND REPAIRS....................................12
ARTICLE 9: ALTERATIONS AND LIENS......................................12
ARTICLE 10: INSURANCE, SUBROGATION, AND WAIVER OF CLAIMS...............14
ARTICLE 11: CASUALTY DAMAGE............................................15
ARTICLE 12: CONDEMNATION...............................................17
ARTICLE 13: ASSIGNMENT AND SUBLETTING..................................17
ARTICLE 14: PERSONAL PROPERTY, RENT AND OTHER TAXES....................20
ARTICLE 15: LANDLORD'S REMEDIES........................................21
ARTICLE 16: SECURITY DEPOSIT...........................................24
ARTICLE 17: ATTORNEYS' FEES AND VENUE..................................25
ARTICLE 18: SUBORDINATION, ATTORNMENT AND LENDER PROTECTION............25
ARTICLE 19: ESTOPPEL CERTIFICATES......................................26
ARTICLE 20: RIGHTS RESERVED BY LANDLORD................................26
ARTICLE 21: RIGHT TO CURE..............................................27
ARTICLE 22: INDEMNIFICATION............................................28
ARTICLE 23: RETURN OF POSSESSION.......................................29
ARTICLE 24: HOLDING OVER...............................................30
ARTICLE 25: NOTICES....................................................30
ARTICLE 26: REAL ESTATE BROKERS........................................31
ARTICLE 27: NO WAIVER..................................................31
ARTICLE 28: TELECOMMUNICATION LINES....................................31
ARTICLE 29: HAZARDOUS MATERIALS........................................32
ARTICLE 30: DEFINITIONS................................................34
ARTICLE 31: OFFER......................................................39
ARTICLE 32: MISCELLANEOUS..............................................39
ARTICLE 33: ENTIRE AGREEMENT...........................................41
EXHIBITS................................................ Listed in Article 1.P
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OFFICE LEASE
THIS OFFICE LEASE ("Lease") is made and entered into as of the __ day
of June, 1999, by and between CMD PROPERTIES, INC., ("Landlord"), an Illinois
corporation, and OpenSite Technologies, Inc. ("Tenant"), a Delaware corporation.
ARTICLE 1: BASIC PROVISIONS
This Article contains the basic lease provisions between Landlord and
Tenant.
A. Building: Located at 0000 Xxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx
Xxxxxxxx (the "Property", as further described in
Article 30).
B. Premises: Suite 100 located on the 1st floor of the Building as
outlined or cross-hatched on Exhibit A hereto.
C. Commencement Date: July 1, 1999, subject to Articles 2 and 4.
D. Expiration Date: February 28, 2006, subject to Articles 2 and 4.
E. Rentable Area: The rentable area of the Premises shall be deemed to
be 25,033 square feet, and the rentable area of the
Property shall be deemed to be 50,052 square feet,
for purposes of this Lease, subject to Article 30.
The preceding measurements were made using the
BOMA/ANSI Standards as of June 7, 1996.
F. Tenant's Share: Fifty and 01/100 percent (50.01%), subject to Article
30.
G. Base Rent: Tenant shall pay monthly Base Rent pursuant to the
following schedule and as described in Article 3:
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Period Monthly Base Rent
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Commencement Date - 6/30/00 $34,420.38
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7/1/00 - 6/30/01 $35,463.42
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7/1/01 - 6/30/02 $36,506.46
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7/1/02 - 6/30/03 $37,549.50
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7/1/03 - 6/30/04 $38,592.54
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7/1/04 - 6/30/05 $39,635.58
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7/1/05 - Expiration Date $40,678.68
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H. Additional Rent: Tenant shall pay Tenant's Share of Taxes and Expenses
in excess of the amounts respectively for 2000 ("Base
Tax Year") and 2000 ("Base Expense Year"), as further
described in Article 3.
I. Permitted Use: General office use, subject to Article 7.
J. Security Deposit: $34,420.38, subject to Article 16.
K. Broker (if any): Advantis
L. Guarantor(s): N/A
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M. Landlord's Notice Address (subject to Article 25):
x/x XXX Xxxxxx Xxxxxxxxx, Xxx., Xxxxx 000, 0000
Xxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx Xxxxxxxx 00000,
Attn.: Regional Manager; with copies c/o CMD Realty
Investors, Inc., 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, Attn.: General Counsel and
Attn.: Asset Manager.
N. Tenant's Notice Address (subject to Article 25):
Until the Commencement Date: OpenSite Technologies,
Inc., 0000 Xxxxxxxx Xx., Xxxxx 000, Xxxxxx, XX 00000
Attn: V.P. Finance/COO
On the Commencement Date: OpenSite Technologies,
Inc., 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, XX
00000. Attn: V.P. Finance/COO
With a copy to: Xxxxxx X. Xxxxxxxx, Esq., Xxxxxxxx,
Xxxxxxx & Xxxxx, CrossPointe Plaza, 0000 Xxxxx Xxxxx,
Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx 00000.
O. Rent Payments: Rent shall be paid to Landlord c/o The First National
Bank of Chicago, X.X. Xxx 00000, Xxxxxxx, Xxxxxxxx
00000-0000, or such other parties and addresses as to
which Landlord shall provide thirty (30 ) days'
advance notice.
P. Exhibits: This Lease includes, and incorporates by this
reference:
Exhibit A: Premises
Exhibit B: Rules
Exhibit C: Work Letter
Exhibit D: Cleaning Specifications
Exhibit E: Extension Option
Exhibit F: Letter of Credit Requirements
Exhibit G: Tenant Exterior Sign
Exhibit H: Tenant's Name on Landlord's Monument Sign
The foregoing provisions shall be interpreted and applied in accordance
with the other provisions of this Lease. The terms of this Article, and the
terms defined in Article 30 and other Articles, shall have the meanings
specified therefor when used as capitalized terms in other provisions of this
Lease or related documentation (except as expressly provided to the contrary
therein).
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ARTICLE 2: TERM AND COMMENCEMENT
A. Term. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Premises for the Term, subject to the other provisions of this
Lease. The term ("Term") of this Lease shall commence on the Commencement Date
and end on the Expiration Date set forth in Article 1, unless sooner terminated
as provided in this Lease, subject to adjustment as provided below and the other
provisions of this Lease.
B. Early Commencement. The Commencement Date, Rent and Tenant's other
obligations shall be advanced to such earlier date as Tenant, with Landlord's
written permission, commences occupying the Premises for the operation and
conduct of business. If such event occurs with respect to a portion of the
Premises, the Commencement Date, Rent and Tenant's other obligations shall be so
advanced with respect to such portion (and fairly prorated based on the rentable
square footage involved). During any period that Tenant shall be permitted to
enter the Premises prior to the Commencement Date other than to occupy the same
for the operation and conduct of business (e.g., to perform alterations or
improvements), Tenant shall comply with all terms and provisions of this Lease,
except those provisions requiring the payment of Rent. Landlord shall permit
early entry, so long as the Premises are legally available, Landlord has
completed any work required to be performed by Landlord under this Lease (or can
reasonably accommodate the scheduling of minor work Tenant desires to perform,
such as cabling, without delaying any such Landlord work), and Tenant is in
compliance with the other provisions of the Lease, including the insurance
requirements.
C. Commencement Delays. The Commencement Date and Rent and Tenant's
other obligations relating thereto shall be postponed to the extent Tenant is
not reasonably able to occupy the Premises for the operation and conduct of
business because Landlord fails, by the Commencement Date set forth in Article 1
to: (i) deliver possession of the Premises and (ii) substantially complete the
improvements to the Premises required to be performed by Landlord under Exhibit
C to this Lease, except to the extent that Tenant, its space planners,
architects, contractors, agents or employees in any way contribute to such
failure. The substantial completion referred to in subsection (ii) above,
Section 4B of the Lease and in Exhibit C shall be deemed to have occurred when
evidenced by the city of Durham inspector's issuance of a temporary certificate
of occupancy and a certificate of substantial completion issued by the Architect
(as defined in Exhibit C). If such failure occurs with respect to a portion of
the Premises, the Commencement Date, Rent and Tenant's other obligations shall
be so postponed with respect to such portion (and fairly prorated based on the
rentable square footage involved). If the Commencement Date is postponed
pursuant to the foregoing provisions for a ninety (90) day initial grace period,
Tenant shall have the right to terminate this Lease by notice to Landlord given
within ten (10) days thereafter, subject to Landlord's right to cure as provided
in Article 21. Any such delay in the Commencement Date shall not subject
Landlord to liability for loss or damage resulting therefrom, and Tenant's sole
recourse with respect thereto shall be the postponement of Rent and other
obligations and right to terminate this Lease described herein.
D. Adjustments to Dates and Other Matters; Confirmation. If the
Commencement Date is advanced to an earlier date as provided above, the
Expiration Date shall not be changed. If the Commencement Date is postponed as
provided above, the Expiration Date shall be extended by the same length of time
and all other specific dates within this Lease (including Base Rent increases)
shall likewise be postponed. If the Commencement Date occurs other than on the
first day of a calendar month, then the Term shall be extended so that the
Expiration Date is the last day of the calendar month in which it would
otherwise occur, and the dates for any fixed increases in the Base Rent shall be
adjusted so that they occur on the first day of the calendar month following the
month in which they would otherwise occur. Tenant shall execute a confirmation
of any dates, as adjusted herein, in such form as Landlord may reasonably
request; any failure to respond within thirty (30) days after requested shall be
deemed an acceptance of the matters set forth in Landlord's confirmation. If
Tenant disagrees with Landlord's adjustment of such dates, then Tenant shall pay
Rent and perform all other obligations, in the amounts and on the dates set
forth in Article 1, subject to retroactive and prospective adjustment between
the parties promptly after the matter is resolved.
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ARTICLE 3: BASE RENT AND ADDITIONAL RENT
A. Base Rent. Tenant shall pay Landlord the monthly Base Rent set forth
in Article 1 in advance on or before the first day of each calendar month during
the Term; provided, Tenant shall pay Base Rent for the first full calendar month
for which Base Rent shall be due (and any initial partial month) when Tenant
executes this Lease.
B. Taxes and Expenses. Effective January 1, 2001, Tenant shall pay
Landlord Tenant's Share of Taxes and Expenses in excess of the amounts of Taxes
and Expenses respectively for the Base Tax Year and Base Expense Year in the
manner described below. The foregoing capitalized terms shall have the meanings
specified therefor in Articles 1 and 30.
C. Payments.
(i) Commencing January 1, 2001, Landlord may reasonably estimate in
advance the amounts Tenant shall owe for Taxes and Expenses for any full or
partial calendar year of the Term; such estimate shall be made by Landlord in
good faith and shall contain a listing in reasonable detail for categories of
Expenses. In such event, Tenant shall pay such estimated amounts, on a monthly
basis, on or before the first day of each calendar month, together with Tenant's
payment of Base Rent. Such estimate may be reasonably adjusted from time to time
by Landlord, but not more than once per calendar year.
(ii) Within 120 days after the end of each calendar year (beginning
with the calendar year 2001), or as soon thereafter as practicable, Landlord
shall provide a statement (the "Statement") to Tenant showing: (a) the amount of
actual Taxes and Expenses for such calendar year, with a listing in reasonable
detail of amounts for categories of Expenses, (b) any amount paid by Tenant
towards Taxes and Expenses during such calendar year on an estimated basis, and
(c) any further revised estimate of Tenant's obligations for Taxes and Expenses
for the current calendar year.
(iii) If the Statement shows that Tenant's estimated payments were less
than Tenant's actual obligations for Taxes and Expenses for such year, Tenant
shall pay the difference within thirty (30) days after Landlord sends the
Statement. If the Statement shows that Tenant's estimated payments exceeded
Tenant's actual obligations for Taxes and Expenses, Landlord shall credit the
difference against the payment of Rent next due. If the Term shall have expired
or been terminated and no further Rent shall be due, Landlord shall provide a
refund of such difference at the time Landlord sends the Statement.
(iv) If the Statement shows a further increase in Tenant's estimated
payments for the current calendar year (beginning with the calendar year 2001),
Tenant shall: (a) thereafter pay the new estimated amount until Landlord further
revises such estimated amount, and (b) pay the difference between the new and
former estimates for the period from January 1 of the current calendar year
through the month in which the Statement is sent within thirty (30) days after
Landlord sends the Statement, provided that Landlord has sent the Statement by
April 30 of the calendar year following the calendar year to which the Statement
relates. If Landlord sends the Statement after April 30 of the calendar
following the calendar year to which the Statement relates, then Tenant's
payments shall be as follows: (1) within thirty (30) days after Landlord sends
the Statement, Tenant shall pay the difference between the new and former
estimates for the months of January through April of the current year, (2)
within sixty (60) days after Landlord sends the Statement, Tenant shall pay the
difference between the new and former estimates for the month of May through the
month in which Landlord sends the Statement.
D. Tax Refunds, Protest Costs, Fiscal Years and Special Assessments.
Landlord shall each year: (i) credit against Taxes any refunds received during
such year, whether or not for a prior year, (ii) include in Taxes any additional
amount paid during such year involving an adjustment to Taxes for a prior year
due to error by the taxing authority, supplemental assessment, or other reason,
(iii) for Taxes payable in installments over more than one year, include only
the minimum amounts payable each year and any interest thereon, and (iv)
include, in either Taxes or Expenses, any fees for attorneys, consultants and
experts, and other costs paid during such year in attempting to protest, appeal
or otherwise seek to reduce or minimize Taxes, whether or not successful.
Notwithstanding anything to the contrary contained in this Lease, if any taxing
authority, at any time, uses a fiscal year other than a current
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calendar year, Landlord may elect to require payments by Tenant based on: (a)
amounts paid or payable during each calendar year without regard to such fiscal
years, or (b) amounts paid or payable for or during each fiscal tax year.
E. Grossing Up Variable Expenses; Taxes. In order to allocate variable
Expenses (i.e. those items that vary based on occupancy levels, such as
janitorial and utility costs) among those parties who are incurring such
Expenses when the Property is not fully occupied during all or a portion of any
calendar year, Landlord may, in accordance with sound accounting and management
practices, determine the amount of such variable Expenses that would have been
paid had the Property been fully occupied, and the amount so determined shall be
deemed to have been the amount of Expenses for such year (rather than adjusting
Tenant's Share by subtracting vacant space from the denominator); if Landlord
makes such an adjustment to Expenses for any year following the Base Expense
Year, Landlord shall also make such an adjustment to Expenses for the Base
Expense Year. If Landlord adds a new type of expense in a subsequent year that
was not included in the Base Year (e.g. an annual HVAC maintenance contract that
was not needed during the Base Expense Year because of an HVAC warranty), then
Landlord shall make an appropriate adjustment to the Base Expense Year by adding
thereto a reasonable amount to reflect the expense that would have been incurred
if such new type of expense (e.g. such annual HVAC maintenance contract) had
been incurred in the Base Expense Year. Similarly, If Landlord is not furnishing
any particular utility or service (the cost of which, if performed by Landlord,
would be included in Expenses) to a tenant during any period, Landlord may for
such period: (i) adjust Expenses to reflect the additional amount that would
reasonably have been incurred during such period had Landlord furnished such
utility or service to such tenant, or (ii) exclude the rentable area of such
tenant from the rentable area of the Property in computing Tenant's Share of the
component of Expenses for such utility or service.
Landlord shall adjust the Taxes for the Base Tax Year to the amount
that the Taxes would have been for the Base Tax Year if the Building had been
fully occupied and fully improved.
F. Prorations; Payments After Term Ends. If the Term commences on a day
other than the first day of a calendar month or ends on a day other than the
last day of a calendar month, the Base Rent and any other amounts payable on a
monthly basis shall be prorated on a per diem basis for such partial calendar
months. If the Base Rent is scheduled to increase under Article 1 other than on
the first day of a calendar month, the amount for such month shall be prorated
on a per diem basis to reflect the number of days of such month at the then
current and increased rates, respectively. If the Term commences other than on
January 1, or ends other than on December 31, Tenant's obligations to pay
amounts towards Taxes and Expenses for such first or final calendar years shall
be prorated on a per diem basis to reflect the portion of such years included in
the Term. Tenant's and Landlord's obligations regarding Taxes and Expenses (or
any other amounts) accruing during, or relating to, the period prior to
expiration or earlier termination of this Lease, shall survive such expiration
or termination.
G. Landlord's Accounting Practices and Records. Landlord shall maintain
records respecting Taxes and Expenses and determine the same in accordance with
sound accounting and management practices consistently applied in accordance
with this Lease. Although this Lease contemplates the general computation of
Taxes and Expenses on a cash basis, Landlord shall make reasonable and
appropriate accrual adjustments to ensure that each calendar year includes
substantially the same recurring items. Landlord reserves the right to apply a
full accrual system of accounting so long as the same is consistently applied
and Tenant's obligations are not materially adversely affected, and further
provided that Landlord shall continue to pay Expenses and Taxes on a timely
basis. Tenant or its representative (acting on a non-contingent fee basis) shall
have the right to review such records by sending notice to Landlord no later
than ninety (90) days following the furnishing of the Statement specifying such
records as Tenant reasonably desires to review. Such review shall be subject to
the continuing condition that Tenant not be in Default, and subject to
reasonable scheduling by Landlord during normal business hours at the place or
places where such records are normally kept provided that such records shall be
kept within the 48 continental United States. No later than ninety (90) days
after Landlord makes such records available for review, Tenant shall send
Landlord notice specifying any exceptions that Tenant takes to matters included
in such Statement, Tenant's detailed reasons for each exception which support a
conclusion that such exception properly identifies an error in such Statement,
and a complete copy of the review report. Such Statement shall be considered
final and binding on Tenant, except as to matters to which exception is taken
after review of Landlord's records in the foregoing manner
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and within the foregoing times. The foregoing times for sending Tenant's notices
hereunder are critical to Landlord's budgeting process, and are therefore of the
essence of this Paragraph. If Tenant takes timely exception as provided herein,
Landlord may seek certification from an independent certified public accountant
or financial consultant (who shall be subject to Tenant's reasonable approval)
as to the proper amount of Taxes and Expenses or the items as to which Tenant
has taken exception. In such case: (i) such certification shall be considered
final and binding on both parties (except as to additional amounts not then
known or omitted by error), and (ii) Tenant shall pay Landlord for the cost of
such certification, unless it shows that Tenant's Share of Taxes and Expenses
were overstated by a net amount of three percent (3%) or more, in which event
Landlord shall pay the reasonable cost of such certification provided that such
reasonable cost does not exceed the amount of the overstatement. Pending review
of such records and resolution of any exceptions, Tenant shall pay Tenant's
Share of Taxes and Expenses in the amounts shown on such Statement, subject to
credit, refund or additional payment after any such exceptions are resolved.
H. Base Year Adjustments. If Taxes for the Base Tax Year are reduced as
the result of protest or otherwise, Landlord may use the final reduced amount of
Taxes for the Base Tax Year to compute Tenant's obligations for increases in
Taxes during the Term. In such case, Tenant shall pay Landlord, within fifteen
(15) days after notice, any additional amount of Taxes required by such
computation for any period that has theretofore occurred during the Term
following the Base Tax Year. Landlord may exclude from Base Year Expenses any
non-recurring items, including capital expenditures otherwise permitted under
Article 30 (and shall only include the amortization of such expenditures in
subsequent year Expenses to the extent permitted under Article 30). If Landlord
eliminates from any subsequent year Expenses a recurring category of Expenses
previously included in Base Year Expenses, Landlord may subtract such category
from Base Year Expenses commencing with such subsequent year.
I. General Payment Matters. Base Rent, Taxes, Expenses and any other
amounts which Tenant is or becomes obligated to pay Landlord under this Lease or
other agreement entered in connection herewith are sometimes herein referred to
collectively as "Rent," and all remedies applicable to the non-payment of rent
shall be applicable thereto. Tenant shall pay Rent in good funds and legal
tender of the United States of America, together with any applicable sales tax
or other taxes on Rent as further described in Article 14. Tenant shall pay Rent
without any deduction, recoupment, set-off or counterclaim, and without relief
from any valuation or appraisement laws, except as may be expressly provided in
this Lease. No delay by Landlord in providing the Statement shall be deemed a
default by Landlord or, unless Landlord fails to provide the Statement within
one (1) calendar year following the close of the calendar year to which the
Statement relates, a waiver of Landlord's right to require payment of Tenant's
obligations for actual or estimated Taxes or Expenses. In no event shall a
decrease in Taxes or Expenses serve to decrease Base Rent. Landlord may apply
payments received from Tenant to any obligations of Tenant then accrued, without
regard to such obligations as may be designated by Tenant.
ARTICLE 4: CONDITION OF PREMISES
A. General Condition of Premises. Tenant has inspected, or had an
opportunity to inspect, the Premises (and portions of the Property, Systems and
Equipment providing access to or serving the Premises), and agrees to accept the
same "as is" without any agreements, representations, understandings or
obligations on the part of Landlord to perform any alterations, repairs or
improvements, except as may be expressly provided under this Lease (which term
includes any Exhibit hereto). To the extent that Landlord has expressly agreed
to perform any improvements to the Premises under this Lease, the following
provisions shall apply.
Landlord warrants and represents that, as of the date that Landlord
delivers possession of the Premises to Tenant: (1) the Systems and Equipment
serving the Property and the systems and equipment serving the Premises (to the
extent that the same are part of the Work under Exhibit C) shall be in good
working order, and (2) the common areas of the Building shall comply with all
Laws, including, but not limited to, the Americans with Disabilities Act.
Landlord's sole liability for breach of any of the foregoing warranties shall be
the obligation to make such repairs or alterations to the Property and the
Premises as are necessary to cure the violation of the warranty.
Landlord warrants and represents that, to Landlord's actual knowledge
as of the date of this Lease: (1) the
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systems and equipment existing in the Premises are in good working order, and
(2) there are no current material violations of Laws, including but not limited
to building codes, Laws governing Hazardous Materials, or the Americans With
Disabilities Act and related state statutes, affecting Tenant's use of the
Premises. Landlord's sole liability for breach of any of the foregoing
warranties shall be the obligation to make such repairs or alterations to the
Property and the Premises as are necessary to cure the violation of the
warranty. "Landlord's actual knowledge" herein means the actual knowledge,
without investigation, of the Regional Manager for the management company for
the Property.
B. Improvements. With respect to the improvements to the Premises that
Landlord is required to perform under Exhibit C to this Lease: (i) Landlord
shall use diligent, good faith efforts to substantially complete any such
improvements to an extent that Tenant can reasonably occupy the Premises for the
operation and conduct of business by the Commencement Date set forth in Article
1, subject to Article 2 and the other provisions of this Lease, (ii) Tenant
shall use diligent, good faith efforts to cooperate, and to cause its space
planners, architects, contractors, agents and employees to cooperate, diligently
and in good faith with Landlord and any space planners, architects, contractors
or other parties designated by Landlord, such that any such improvements to the
Premises can be planned, permits can be obtained, and the work can be
substantially completed by the Commencement Date set forth in Article 1, and
(ii) the Commencement Date, Rent and Tenant's other obligations shall be subject
to postponement as further described in Article 2. In the event of any dispute
as to whether any such improvements have been substantially completed, Landlord
shall refer the matter to a third party mutually and reasonably agreeable to
both Landlord and Tenant whose decision shall be final and binding on the
parties.
ARTICLE 5: QUIET ENJOYMENT
Landlord agrees that, if Tenant timely pays the Rent and performs the
terms and provisions hereunder, Tenant shall hold and enjoy the Premises during
the Term free of lawful claims by any party acting by or through Landlord,
subject to all other terms and provisions of this Lease.
ARTICLE 6: UTILITIES AND SERVICES
A. Standard Landlord Utilities and Services. Landlord shall provide the
following utilities and services (the cost of which shall be included in
Expenses):
(i) Heat and air-conditioning to provide a temperature required, in
Landlord's reasonable opinion and in accordance with applicable Law, for
occupancy of the Premises as offices during Building Hours (as defined in
Article 30).
(ii) Water from city mains for drinking, lavatory and toilet purposes
only, at those points of supply provided for nonexclusive general use of tenants
at the Property, or points of supply in the Premises installed by or with
Landlord's written consent for such purposes.
(iii) Cleaning and trash removal in and about the Premises
substantially in accordance with the specifications attached hereto as Exhibit
D.
(iv) Passenger elevator service at all times (if the Property has such
equipment serving the Premises, and subject to changes in the number of
elevators in service after Building Hours or at other times), and freight
elevator service (if the Property has such equipment serving the Premises, and
subject to scheduling by Landlord), in common with Landlord and other parties.
(v) Electricity for building-standard overhead office lighting
fixtures, and equipment and accessories customary for offices, where: (a) Tenant
uses an amount of electricity that is generally consistent with average office
use at the Property, as reasonably determined by Landlord, (b) the Systems and
Equipment are suitable, and the safe and lawful capacity thereof is not
exceeded, and (c) sufficient capacity remains at all times for other existing
and
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future tenants, as reasonably determined by Landlord. Landlord shall include in
Expenses the cost of replacement of lamps, starters and ballasts for lighting
fixtures within the Premises.
(vi) Sprinklering of the Building in accordance with applicable Laws.
(vii) Landscaping and snow removal services comparable to those
provided as standard services by landlords for office space in comparable
buildings in the vicinity.
B. Additional Utilities and Services. Landlord shall seek to provide
such extra utilities or services as Tenant may from time to time request, if the
same are reasonable and feasible for Landlord to provide and do not involve
modifications or additions to the Property or existing Systems and Equipment,
and if Landlord shall receive Tenant's request within a reasonable period prior
to the time such extra utilities or services are required. Landlord may comply
with written or oral requests by any officer or employee of Tenant, unless
Tenant shall notify Landlord of, or Landlord shall request, the names of
authorized individuals (up to 3 for each floor on which the Premises are
located) and procedures for written requests. Tenant shall pay for the actual
cost to Landlord of any extra utilities or services, including Landlord's
actual, reasonable out-of-pocket costs for architects, engineers, consultants
and other parties relating to such extra utilities or services, and a fee equal
to five percent (5%) of such costs. All payments for such extra utilities or
services shall be due at the same time as the installment of Base Rent with
which the same are billed, or if billed separately, shall be due within fifteen
(15) days after such billing. Landlord shall not be responsible for inadequate
air-conditioning or ventilation whenever the use or occupancy of the Premises
exceeds the normal capacity or design loads of, affects the temperature or
humidity otherwise maintained by, or otherwise adversely affects the operation
of, the Systems and Equipment for the Property, whether due to items of
equipment or machinery generating heat, above-normal concentrations of personnel
or equipment, or alterations to the Premises made by or through Tenant without
balancing the air or installing supplemental HVAC equipment. In any such case,
Landlord may elect to balance the air and/or install, operate, maintain and
replace such supplemental HVAC equipment during the Term, at Tenant's expense,
as an extra utility or service (or require that Tenant arrange for the same as
Work under Article 9). Notwithstanding the foregoing to the contrary, in lieu of
charging separately for additional utilities and services, Landlord may
reasonably elect from time to time to expand the amounts of services and
utilities available without separate charge, in which case the costs thereof
shall be included in Expenses, subject to the following sentence. In the event
that, in any calendar year, any increase in Expenses resulting from the
expansion of the amounts of services and utilities included in Expenses pursuant
to the preceding sentence is estimated to exceed $0.50 per rentable square foot
in the aggregate in any calendar year, then Landlord shall be required to obtain
Tenant's approval (which shall not be unreasonably withheld, conditioned or
delayed) of any amounts exceeding $0.50 per rentable square foot, provided that
this sentence shall not apply to: (1) any increase in Expenses due to a
reasonable increase in normal Building hours, and (2) any increase in Expenses
due to changes in how a service or utility already included in Expenses is
furnished.
Notwithstanding anything to the contrary contained herein, it is
understood and agreed by the parties that, due to the size and manner of design
of the Building, HVAC services shall be available at all times without
additional charge therefor (other than as part of Expenses), except that
Landlord reserves the right pursuant to Article 6A(v) above to determine in a
reasonable manner and charge Tenant for the cost of electricity used by Tenant
in excess of average office use. If Tenant disputes the excess electricity
charges as determined by Landlord, Tenant shall have the right, at Tenant's
expense, to engage a consultant to provide another determination of such charges
and Landlord agrees to reasonably and in good faith consider the merit and
accuracy of such alternative determination in making its final determination of
the excess electricity charges.
C. Monitoring. Landlord may install and operate meters, submeters or
any other reasonable system for monitoring or estimating any services or
utilities used by Tenant in excess of those required to be provided by Landlord
under this Article (including a system for Landlord's engineer to reasonably
estimate any such excess usage). If such system indicates such excess services
or utilities, Tenant shall pay Landlord's charges and fees as described in
Paragraph B above for installing and operating such system and any supplementary
air-conditioning, ventilation, heat, electrical or other systems or equipment
(or adjustments or modifications to the existing Systems and Equipment) which
Landlord may make, and Landlord's charges for such amount of excess services or
utilities
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used by Tenant.
D. Interruptions and Changes. Landlord shall have no liability for
interruptions, variations, shortages, failures, changes in quality, quantity,
character or availability of any utilities or services caused by repairs,
maintenance, replacements, alterations (including any freon retrofit work),
labor controversies, accidents, inability to obtain services, utilities or
supplies, governmental or utility company acts or omissions, requirements,
guidelines or requests, or other causes beyond Landlord's reasonable control (or
under any circumstances with respect to utilities or services not required to be
provided by Landlord hereunder). Under no circumstances whatsoever shall any of
the foregoing be deemed an eviction or disturbance of Tenant's use and
possession of the Premises or any part thereof, serve to xxxxx Rent, or relieve
Tenant from performance of Tenant's obligations under this Lease; provided,
however, after Landlord's receipt of notice, Landlord shall act reasonably and
in good faith to cure the interruption or curtailment of services or utilities
as soon as practicable thereafter.
E. Abatement of Rent. Notwithstanding Paragraph D above to the
contrary, if: (a) any services or utilities required to be provided by Landlord
hereunder are interrupted or discontinued as a result of Landlord's negligence
(and not caused by Tenant or its employees, agents or contractors), and Tenant
is unable to and does not use, the Premises as a result of such interruption or
discontinuance, and (b) Tenant shall have given written notice respecting such
interruption or discontinuance to Landlord, and Landlord shall have failed to
cure such interruption or discontinuance within five (5) consecutive business
days after receiving such notice, Base Rent hereunder shall thereafter be abated
until such time as such services or utilities are restored or Tenant begins
using the Premises again, whichever shall first occur. Notwithstanding anything
to the contrary contained herein, if Tenant, or its contractors, or their
respective officers, employees, contractors, invitees or agents, delay Landlord
in restoring the utilities or services, Landlord shall have additional time to
complete the restoration equal to such delay and Tenant shall pay Landlord all
Rent for the period of such delay.
ARTICLE 7: USE, COMPLIANCE WITH LAWS, AND RULES
A. Use of Premises. Tenant shall use the Premises only for the
permitted use identified in Article 1, and no other purpose whatsoever, subject
to the other provisions of this Article and this Lease. Unless expressly
permitted in Article 1, Tenant shall not use or permit the Premises to be used
as a: (i) social-welfare office, (ii) medical, dental, psychology, psychiatry,
or science office or laboratory, (iii) multi-party "executive" or "legal" suite
type offices, (iv) data processing, telecommunications or telemarketing center,
(v) school, educational or training facility, (vi) employment, placement,
recruiting or clerical support agency, (vii) computerized vehicle sales, loan or
"finder" service, (viii) governmental, quasi-governmental, trade association or
union office or activities, (ix) travel agency or reservation center, (x) radio
or television studio or broadcasting or recording facility, or (xi) retail real
estate brokerage, retail stock brokerage, retail bank or other retail financial
institution, loan office, depository, check-cashing or wire-transferring
service.
B. Compliance With Laws. Subject to Section 4A and except to the extent
that such compliance is allocated to Landlord elsewhere under this Lease, the
Tenant shall comply with all Laws relating to the Premises and Tenant's use of
the Premises and Property, and shall promptly reimburse (within thirty (30) days
after Tenant's receipt of Landlord's invoice) Landlord for any expenses Landlord
incurs for work or other matters relating to areas outside of the Premises in
order to comply with Laws as a result of Tenant's use of the Premises or
Property; provided, Tenant shall not be required by this provision to perform
structural or capital improvements to the Premises unless required by a Law
pertaining to: (i) Tenant's particular use of the Premises (as opposed to a Law
that applies to office tenants in general), (ii) Work performed by or for Tenant
or any Transferee (i.e. excluding any improvements or work that Landlord is
required to perform under this Lease), or (iii) other acts or omissions of
Tenant or any Transferee.
Landlord shall comply with all Laws affecting the structure or common
areas of the Property (the cost of which shall be included in Expenses, but only
to the extent permitted in the definition thereof in Article 30), except to the
extent that such compliance is Tenant's responsibility under this Lease or is
the responsibility of another occupant of the Property. To the best of
Landlord's actual knowledge as of the date of this Lease and as of the
Commencement Date, there are no current violations of Laws affecting the
Premises or Tenant's use of the Property.
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C. Rules. Tenant shall comply with the Rules set forth in Exhibit B
attached hereto (the "Rules"). Landlord shall have the right, by notice to
Tenant, to reasonably amend such Rules and supplement the same with other
reasonable Rules relating to the Property, or the promotion of safety, care,
efficiency, cleanliness or good order therein provided that such amended Rules
are not contrary to this Lease. Although Landlord shall not discriminate against
Tenant in the enforcement of the Rules, nothing herein shall be construed to
give Tenant or any other Person any claim, demand or cause of action against
Landlord arising out of the violation of Laws or the Rules by any other tenant
or visitor of the Property, or out of the enforcement, modification or waiver of
the Rules by Landlord in any particular instance.
D. Other Requirements. So long as Tenant receives written notification
of the applicable requirements, Tenant shall not use or permit the Premises or
Property to be used in a way that will: (i) violate the requirements of
Landlord's insurers, the American Insurance Association, or any board of
underwriters, (ii) cause a cancellation of Landlord's policies, impair the
insurability of the Property, or increase Landlord's premiums (any such increase
shall be paid by Tenant without such payment being deemed permission to continue
such activity or a waiver of any other remedies of Landlord), or (iii) violate
the requirements of any certificates of occupancy issued for the Premises or the
Property, or any other requirements, covenants, conditions or restrictions
affecting the Property at any time (provided none of the foregoing shall
prohibit or materially impair use of the Premises as set forth in Article 1 in
compliance with the other provisions of this Lease and the enjoyment of the
other rights accorded to Tenant under this Lease).
ARTICLE 8: MAINTENANCE AND REPAIRS
Except for customary cleaning and trash removal provided by Landlord
under Article 6, casualty damage to be repaired by Landlord under Article 11 and
any other obligations of Landlord hereunder, Tenant shall keep and maintain (or
cause to be kept and maintained) the Premises in good and sanitary condition,
working order and repair, in compliance with all applicable Laws as described in
Article 7, and as required under other provisions of this Lease, including the
Rules (including any carpet and other flooring material, paint and
wall-coverings, doors, windows, ceilings, interior surfaces of walls, lighting,
plumbing and other fixtures, alterations, improvements, and systems and
equipment in or exclusively serving the Premises whether installed by Landlord
or Tenant). In the event that any repairs, maintenance or replacements are
required, Tenant shall promptly notify Landlord and arrange for the same either:
(i) through Landlord for such reasonable charges as Landlord may establish from
time to time, payable within fifteen (15) days after billing, or (ii) at
Tenant's option, by engaging such contractors or staff as Landlord shall first
designate or approve in writing to perform such work, all in a first class,
workmanlike manner approved by Landlord in advance in writing and otherwise in
compliance with Article 9 respecting "Work". Tenant shall promptly notify
Landlord concerning the necessity for any repairs or other work hereunder and
upon completion thereof. Tenant shall pay Landlord for any repairs, maintenance
and replacements to areas of the Property outside the Premises caused, in whole
or in part, as a result of moving any furniture, fixtures, or other property to
or from the Premises, or otherwise by Tenant or its employees, agents,
contractors, or visitors (subject to Article 10C). Except as provided in the
preceding sentence, or for damage covered under Article 11, Landlord shall keep
the roof, structure, Systems and Equipment, and common areas of the Property in
good and sanitary condition, working order and repair (the cost of which shall
be included in Expenses to the extent permitted in the definition thereof in
Article 30).
ARTICLE 9: ALTERATIONS AND LIENS
A. Alterations and Approval. Tenant shall not attach any fixtures,
equipment or other items to the Premises, or paint or make any other additions,
changes, alterations or improvements to the Premises or the Systems and
Equipment serving the Premises (all such work is referred to collectively herein
as the "Work"), without the prior written consent of Landlord. Landlord shall
not unreasonably withhold, condition or delay consent, except that Landlord
reserves the right to withhold consent in Landlord's sole discretion for Work
affecting the structure, safety, efficiency or security of the Property or
Premises, the Systems and Equipment, or the appearance of the Premises from any
common or public areas. Landlord may only require removal of Work installed by
or for Tenant as provided
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under Article 23.
Notwithstanding the foregoing to the contrary, Tenant may perform minor
Work in the Premises without Landlord's consent, and without paying Landlord's
fee described below (but subject to paying Landlord's out-of-pocket costs as
described below), provided: (i) such work shall be primarily cosmetic in nature
(i.e. shall primarily consist of paint, carpeting and/or wall-coverings), shall
not affect the Systems or Equipment, and shall not affect the structure of the
Property, (ii) Tenant shall give reasonable advance notice to, and shall
coordinate the scheduling of such work with, Landlord, (iii) such Work shall not
cost more than $50,000 in the aggregate in any twelve (12) month period, and
(iv) such Work shall be subject to all other provisions of this Lease,
including, but not limited to, the other provisions of this Article (other than
Paragraph B), and the Rules attached hereto as Exhibit B.
B. Approval Conditions. Landlord reserves the right to impose
reasonable requirements as a condition of such consent or otherwise in
connection with the Work, including requirements that Tenant: (i) use parties
contained on Landlord's approved list (if reputable and available on
commercially reasonable terms) or submit for Landlord's prior written approval
the names, addresses and background information concerning all architects,
engineers, contractors, subcontractors and suppliers Tenant proposes to use,
(ii) submit for Landlord's written approval detailed plans and specifications
prepared by licensed and competent architects and engineers, (iii) obtain and
post permits, (iv) provide additional insurance, bonds (or evidence reasonably
satisfactory to Landlord that the contractor(s) to be used by Tenant are
bondable) and/or other reasonable security and/or documentation protecting
against damages, liability and liens, (v) use union labor (if Landlord uses
union labor in the Durham area or if the use of non-union labor would cause
strikes, picketing, boycotts or other labor disturbances, disputes or unrest at
the Property or at Landlord's other buildings in the Durham area), (vi) permit
Landlord or its representatives to inspect the Work at reasonable times, and
(vii) comply with such other reasonable requirements as Landlord may impose
concerning the manner and times in which such Work shall be done. Landlord may
require that all Work be performed under Landlord's supervision. If Landlord
consents, inspects, supervises, recommends or designates any architects,
engineers, contractors, subcontractors or suppliers, the same shall not be
deemed a warranty as to the adequacy of the design, workmanship or quality of
materials, or compliance of the Work with the plans and specifications or any
Laws.
C. Performance of Work. All Work shall be performed: (i) in a
thoroughly first class, professional and workmanlike manner, (ii) only with
materials that are new, high quality, and free of material defects, (iii) only
by parties, and strictly in accordance with plans, specifications, and other
matters, approved or designated by Landlord in advance in writing, (iv) so as
not to adversely affect the Systems and Equipment or the structural components
of the Property, (v) diligently to completion and so as to avoid any
disturbance, disruption or inconvenience to other tenants and the operation of
the Property, and (vi) in compliance with all Laws, the Rules and other
provisions of this Lease, and such other reasonable requirements as Landlord may
impose concerning the manner and times in which such Work shall be done. Any
floor, wall or ceiling coring work or penetrations or use of noisy or heavy
equipment, any of which occurs at or near a demising wall and which may
interfere with the conduct of business by other tenants at the Property shall,
at Landlord's option, be performed at times other than Building Hours (at
Tenant's sole cost). If Tenant fails to perform the Work as required herein or
the materials supplied fail to comply herewith or with the specifications
approved by Landlord, and Tenant fails to cure such failure within 48 hours
after written or oral notice by Landlord (except notice shall not be required in
emergencies), Landlord shall have the right to stop the Work until such failure
is cured (which shall not limit Landlord's other remedies and shall not serve to
xxxxx the Rent or Tenant's other obligations under this Lease). Upon completion
of any Work hereunder, Tenant shall provide Landlord with "as built" plans,
copies of all construction contracts, and proof of payment for all labor and
materials.
D. Liens. Tenant shall pay all costs for the Work when due. Tenant
shall keep the Property, Premises and this Lease free from any mechanic's,
materialman's, architect's, engineer's or similar liens or encumbrances, and any
claims therefor, or stop or violation notices, in connection with any Work.
Tenant shall give Landlord notice at least ten (10) days prior to the
commencement of any Work (or such additional time as may be necessary under
applicable Laws), to afford Landlord the opportunity of posting and recording
appropriate notices of non-responsibility. Tenant shall remove any such claim,
lien or encumbrance, or stop or violation notices of record, by bond or
otherwise within thirty (30) days after notice by Landlord. If Tenant fails to
do so, Landlord may pay the amount (or any portion
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thereof) or take such other action as Landlord deems necessary to remove such
claim, lien or encumbrance, or stop or violation notices, without being
responsible for investigating the validity thereof. The amount so paid and costs
incurred by Landlord shall be deemed additional Rent under this Lease payable
upon demand, without limitation as to other remedies available to Landlord.
Nothing contained in this Lease shall authorize Tenant to do any act which shall
subject Landlord's title to, or any Lender's interest in, the Property or
Premises to any such claims, liens or encumbrances, or stop or violation
notices, whether claimed pursuant to statute or other Law or express or implied
contract.
E. Landlord's Fees and Costs. Tenant shall pay Landlord a fee for
reviewing, scheduling, monitoring, supervising, and providing access for or in
connection with the Work, in an amount equal to five percent (5%) of the total
cost of the Work (including costs of plans and permits therefor), and Landlord's
out-of-pocket costs, including any costs for security, utilities, trash removal,
temporary barricades, janitorial, engineering, architectural or consulting
services, and other matters in connection with the Work, payable within fifteen
(15) days after billing.
ARTICLE 10: INSURANCE, SUBROGATION, AND WAIVER OF CLAIMS
A. Required Insurance. Tenant shall maintain during the Term: (i)
commercial general liability ("CGL") insurance, with limits of not less than
$1,000,000 for personal injury, bodily injury or death, and property damage or
destruction (including loss of use thereof), combined single limit, for any one
occurrence, and $2,000,000 in the aggregate per policy year, with endorsements:
(a) for contractual liability covering Tenant's indemnity obligations under this
Lease, and (b) adding Landlord, the management company for the Property, and
other parties reasonably designated by Landlord, as additional insureds, and
(ii) primary, noncontributory, extended coverage or "all-risk" property damage
insurance (including installation floater insurance during any alterations or
improvements that Tenant makes to the Premises after the improvements made
pursuant to Exhibit C) covering any alterations or improvements beyond any work
or allowance provided by Landlord under this Lease (provided that Tenant shall
be required to insure improvements made pursuant to Exhibit C only to the extent
that the cost of such improvements exceeds $2.00 per rentable square foot over
the Allowance given by Landlord pursuant to Exhibit C, as further set forth
below), and Tenant's personal property, business records, fixtures and
equipment, for damage or other loss caused by fire or other casualty or cause
including, but not limited to, vandalism and malicious mischief, theft, water
damage of any type, including sprinkler leakage, bursting or stoppage of pipes,
explosion, business interruption (for at least nine (9) months), and other
insurable risks in amounts not less than the full insurable replacement value of
such property and full insurable value of such other interests of Tenant
(subject to reasonable deductible amounts).
B. Certificates and Other Matters. Tenant shall provide Landlord with
certificates evidencing the coverage required hereunder prior to the
Commencement Date, or Tenant's entry to the Premises for delivery of materials
or construction of improvements or any other purpose (whichever first occurs).
Such certificates shall state that such insurance coverage may not be reduced,
canceled or allowed to expire without at least thirty (30) days' prior written
notice to Landlord, and shall include, as attachments, originals of the
additional insured endorsements to Tenant's CGL policy required above. Tenant
shall provide renewal certificates to Landlord at least thirty (30) days prior
to expiration of such policies. Except as provided to the contrary herein, any
insurance carried by Landlord or Tenant shall be for the sole benefit of the
party carrying such insurance. Tenant's insurance policies shall be primary to
all policies of Landlord and any other additional insureds (whose policies shall
be deemed excess and non-contributory). All insurance required hereunder shall
be provided by responsible insurers licensed in the State in which the Property
is located, and shall have a general policy holder's rating of at least A- and a
financial rating of at least X in the then current edition of Best's Insurance
Reports. Landlord disclaims any representation as to whether the foregoing
coverages will be adequate to protect Tenant.
C. Mutual Waiver of Claims and Subrogation. Notwithstanding anything to
the contrary contained in this Lease (including indemnity provisions), the
parties hereby mutually hereby waive all claims against each other for all
losses covered or required to be covered hereunder by their respective insurance
policies, and waive all rights of subrogation of their respective insurers; for
purposes hereof, any deductible amount shall be treated as though it were
recoverable under such policies. SUCH MUTUAL WAIVER OF CLAIMS SHALL APPLY
REGARDLESS OF THE
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NEGLIGENCE OR GROSS NEGLIGENCE OF THE OTHER PARTY OR ITS AFFILIATES, AGENTS OR
EMPLOYEES. The parties agree that their respective insurance policies are now,
or shall be, endorsed such that said waiver of subrogation shall not affect the
right of the insured to recover thereunder.
D. Landlord's Insurance. Landlord agrees to maintain, as part of
Expenses, during the Term, commercial general liability insurance, and property
damage insurance on the Property covering such risks and in such amounts as
Landlord shall deem commercially reasonable, and such other insurance as
Landlord shall deem commercially reasonable (subject to such deductibles,
self-insurance retention amounts, blanket and umbrella policy arrangements or
other features as Landlord deems commercially reasonable); provided, (i) such
commercial general liability insurance shall be at least One Million Dollars
($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00) general
aggregate, and (ii) such property damage insurance shall cover the Building, and
leasehold improvements to the extent provided or paid for by Landlord (provided
that Landlord shall be required to insure improvements made pursuant to Exhibit
C to the extent that the cost of such improvements does not exceed $2.00 per
rentable square foot over the Allowance given by Landlord pursuant to Exhibit
C), and shall be in the amount of the full replacement cost, excluding
basements, footings and foundations (subject, in each case, to such deductibles,
self-insurance retention amounts, blanket and umbrella policy arrangements or
other features as Landlord deems commercially reasonable).
ARTICLE 11: CASUALTY DAMAGE
A. Restoration. Tenant shall promptly notify Landlord of any damage to
the Premises by fire or other casualty. If the Premises or any common areas of
the Property providing access thereto shall be damaged by fire or other
casualty, Landlord shall use available insurance proceeds and diligently proceed
in good faith to restore the same. Such restoration shall be to substantially
the same condition as prior to the casualty, except for modifications required
by zoning and building codes and other Laws or by any Lender, any other
modifications to the common areas deemed desirable by Landlord (provided access
to the Premises is not materially impaired), and except that Landlord shall not
be required to repair or replace any of Tenant's furniture, furnishings,
fixtures, systems or equipment, or any alterations or improvements in excess of
the improvements made pursuant to Exhibit C which Landlord is required to insure
pursuant to Section 10D above. Tenant shall reasonably cooperate in approving
any plans for repairs to the Premises hereunder, and in vacating the Premises to
the extent reasonably required to avoid any interference or delay in Landlord's
repair work. Promptly following completion of Landlord's work, Tenant shall
repair and replace Tenant's furniture, furnishings, fixtures, systems or
equipment, and any alterations or improvements made by Tenant in excess of those
provided by Landlord, subject to and in compliance with the other provisions of
this Lease.
B. Abatement of Rent. Landlord shall not be liable for any
inconvenience or annoyance to Tenant or its visitors, or injury to Tenant's
business resulting in any way from such damage or the repair thereof. However,
Landlord shall allow Tenant a proportionate abatement of Rent from the date of
the casualty through the date that Landlord substantially completes Landlord's
repair obligations hereunder (or the date that Landlord would have substantially
completed such repairs, but for delays by Tenant or any other occupant of the
Premises, or any of their agents, employees, invitees, Transferees and
contractors), provided such abatement: (i) shall apply only to the extent the
Premises are untenantable for the purposes permitted under this Lease and not
used by Tenant as a result thereof, based proportionately on the square footage
of the Premises so affected and not used, and (ii) shall not apply if Tenant or
any other occupant of the Premises, or any of their agents, employees, invitees,
Transferees or contractors were negligent in causing the damage.
C. Termination of Lease by Landlord. Notwithstanding the foregoing to
the contrary, in lieu of performing the restoration work, Landlord may elect to
terminate this Lease by notifying Tenant in writing of such termination within
sixty (60) days after the date of damage (such termination notice to specify the
basis for termination and to include a termination date providing at least
thirty (30) days for Tenant to vacate the Premises), if the Property shall be
materially damaged by the negligence or intentional misconduct of Tenant or any
other occupant of the Premises, or any of their agents, employees, invitees,
Transferees or contractors, or if the Property shall be damaged by fire or other
casualty or cause such that: (i) repairs to the Premises and access thereto
cannot reasonably be
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completed within 120 days after the casualty without the payment of overtime or
other premiums, (ii) more than twenty-five percent (25%) of the Premises is
affected by the damage and fewer than twenty-four (24) months remain in the
Term, or any material damage occurs to the Premises during the last twelve (12)
months of the Term, (iii) any Lender shall require that the insurance proceeds
or any material portion thereof be used to retire the Mortgage debt (or shall
terminate the ground lease, as the case may be), provided, however, that
Landlord shall use commercially reasonable efforts to cause the Lender to permit
such insurance proceeds to be used for restoration of the Property, or the
damage is not fully covered, except for reasonable deductible amounts, by
Landlord's insurance policies, or (iv) the cost of the repairs, alterations,
restoration or improvement work would exceed thirty-five percent (35%) of the
replacement value of the Building (whether or not the Premises are affected by
the damage). Tenant agrees that the abatement of Rent provided herein shall be
Tenant's sole recourse in the event of such damage, and waives any other rights
Tenant may have under any applicable Law to perform repairs or terminate the
Lease by reason of damage to the Premises or Property.
D. Termination of Lease By Tenant. Notwithstanding Paragraph C above to
the contrary, Tenant may terminate this Lease if Tenant is unable to use all or
a substantial portion of the Premises as a result of fire or other casualty not
caused by the negligence or intentional misconduct of Tenant or its employees or
agents, and: (i) Landlord fails to commence the restoration work within sixty
(60) days after the casualty, (ii) such work is estimated (which estimate
Landlord shall provide within sixty (60) days following the casualty) to take
(without the use of overtime labor or other premiums) more than 120 days to
complete after the casualty, (iii) Landlord fails to substantially complete the
repairs to the Premises and access thereto within 180 days after the casualty,
(iv) more than 50% of the Premises is affected by the damage, and fewer than 24
months remain in the Term, or (v) more than 25% of the Premises is affected by
the damage, and fewer than 12 months remain in the Term. In order to exercise
any of the foregoing termination rights, Tenant must send Landlord at least
sixty (60) days (but not more than 120 days) advance notice specifying the basis
for termination, and such notice must be given no later than fifteen (15) days
following the occurrence of the condition serving as the basis for the
termination right invoked by Tenant. Such termination rights shall not be
available to Tenant if: (a) Landlord substantially completes the repairs to the
Premises and access thereto within thirty (30) days after Tenant's notice.
Notwithstanding anything to the contrary contained herein, if Tenant, or its
officers, employees, contractors, invitees or agents delay Landlord in
performing the repairs, Landlord shall have additional time to complete the work
equal to such delay and Tenant shall pay Landlord all Rent for the period of
such delay.
ARTICLE 12: CONDEMNATION
If at least fifty percent (50%) of the rentable area of the Premises
shall be taken by power of eminent domain or condemned by a competent authority
or by conveyance in lieu thereof for public or quasi-public use
("Condemnation"), including any temporary taking for a period of one year or
longer, this Lease shall terminate on the date possession for such use is so
taken. If: (i) less than fifty percent (50%) of the Premises is taken, but the
taking includes or affects a material portion of the Building or Property, or
the economical operation thereof, or (ii) the taking is temporary and will be in
effect for less than one year but more than thirty (30) days, then in either
such event, Landlord may elect to terminate this Lease upon at least thirty (30)
days' prior notice to Tenant. The parties further agree that: (a) if this Lease
is terminated, all Rent shall be apportioned as of the date of such termination
or the date of such taking, whichever shall first occur, (b) if the taking is
temporary, Rent shall not be abated for the period of the taking, but Tenant may
seek a condemnation award therefor (and the Term shall not be extended thereby),
and (c) if this Lease is not terminated but any part of the Premises is
permanently taken, the Rent shall be proportionately abated based on the square
footage of the Premises so taken. Landlord shall be entitled to receive the
entire award or payment in connection with such Condemnation and Tenant hereby
assigns to Landlord any interest therein for the value of Tenant's unexpired
leasehold estate or any other claim and waives any right to participate therein,
except that Tenant shall have the right to file any separate claim available to
Tenant for a temporary taking of the leasehold as described above, and for
moving expenses and any taking of Tenant's personal property, provided such
award is separately payable to Tenant and does not diminish the award available
to Landlord or any Lender.
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ARTICLE 13: ASSIGNMENT AND SUBLETTING
A. Transfers. Tenant shall not, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed as further described below: (i) assign, mortgage, pledge, hypothecate,
encumber, or permit any lien to attach to, or otherwise transfer, this Lease or
any interest hereunder, by operation of Law or otherwise, (ii) sublet the
Premises or any part thereof, (iii) permit the use of the Premises by any
Persons other than Tenant and its employees and Tenant Affiliates (all of the
foregoing are hereinafter sometimes referred to collectively as "Transfers" and
any Person to whom any Transfer is made or sought to be made is hereinafter
sometimes referred to as a "Transferee"), or (iv) advertise the Premises or
Lease for Transfers. If Tenant shall desire Landlord's consent to any Transfer,
Tenant shall notify Landlord in writing, which notice shall include: (a) the
proposed effective date (which shall not be less than thirty (30) nor more than
180 days after Tenant's notice), (b) the portion of the Premises to be
Transferred (herein called the "Subject Space"), (c) the terms of the proposed
Transfer and the consideration therefor, the name, address and background
information concerning the proposed Transferee, and a true and complete copy of
all proposed Transfer documentation, (d) financial statements (balance sheets
and income/expense statements for the current and prior year) of the proposed
Transferee, in form and detail reasonably satisfactory to Landlord, certified by
an officer, partner or owner of the Transferee, (e) at least one (1) favorable
financial and business character/reputation references respecting the Transferee
from independent third parties (including a current or recent commercial
landlord), and any other reasonable information to enable Landlord to determine
the financial responsibility, character, and reputation of the proposed
Transferee, nature of such Transferee's business and proposed use of the Subject
Space, and such other information as Landlord may reasonably require. Any
Transfer made without complying with this Article shall, at Landlord's option,
be null, void and of no effect, or shall constitute a Default under this Lease.
Whether or not Landlord shall grant consent, Tenant shall pay $500 towards
Landlord's review and processing expenses, as well as any reasonable legal fees
incurred by Landlord for outside counsel within fifteen (15) days after written
request by Landlord.
B. Approval. Landlord will not unreasonably withhold its consent to any
proposed Transfer of the Subject Space to the Transferee on the terms specified
in Tenant's notice. The parties hereby agree that it shall be reasonable under
this Lease and under any applicable Law for Landlord to withhold consent to any
proposed Transfer where one or more of the following applies (without limitation
as to other reasonable grounds for withholding consent): (i) the Transferee is
of a character or reputation or engaged in a business which is not consistent
with the quality or nature of the Property or other tenants of the Property,
(ii) the Transferee intends to use the Subject Space for purposes which are not
permitted under this Lease, (iii) the Subject Space is not regular in shape with
appropriate means of ingress and egress suitable for normal renting purposes,
would result in more than a reasonable number of occupants, or would require
increased services by Landlord, (iv) the Transferee is a government (or agency
or instrumentality thereof), (v) the proposed Transferee or any affiliate
thereof is an occupant of the Property or has negotiated to lease space in the
Property from Landlord during the prior six (6) months, (vi) the proposed
Transferee does not have, in Landlord's sole but reasonable good faith
determination, satisfactory references or a reasonable financial condition in
relation to the obligations to be assumed in connection with the Transfer, (vii)
the Transfer involves a partial or collateral assignment, or a mortgage, pledge,
hypothecation, or other encumbrance or lien on this Lease, (viii) the proposed
Transfer involves conversion, merger or consolidation of Tenant into a limited
liability company or limited liability partnership which would have the legal
effect of releasing Tenant from any obligations under this Lease, unless all or
substantially all of the business and assets of Tenant are transferred from
Tenant to the surviving limited liability company or limited liability
partnership, (ix) the proposed Transfer would cause Landlord to be in violation
of any Laws or any other lease or agreement to which Landlord is a party as of
the date of this Lease, or (x) Tenant has committed and failed to cure a
Default.
C. Transfer Premiums. If Landlord consents to a Transfer, and as a
condition thereto which the parties hereby agree is reasonable, Tenant shall
retain fifty percent (50%) of any Transfer Premium, and shall pay Landlord fifty
percent (50%) of any Transfer Premium, derived by Tenant from such Transfer.
"Transfer Premium" shall mean: (i) for a lease assignment, all consideration
paid or payable therefor, and (ii) for a sublease, all rent, additional rent or
other consideration paid by such Transferee in excess of the Rent payable by
Tenant under this Lease (on a monthly basis during the Term, and on a per
rentable square foot basis, if less than all of the Premises is transferred). In
exchange for Landlord's agreement to permit Tenant to retain fifty percent (50%)
of any Transfer Premium herein,
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Tenant shall be responsible for any costs incurred by Tenant in connection with
such Transfer, such as brokerage commissions, attorneys' fees and leasehold
improvements; Tenant shall have the right to recover the aforesaid costs prior
to making any payments of the Transfer Premium to Landlord. "Transfer Premium"
shall also include so-called "key money," or other bonus amount paid by
Transferee to Tenant, and any payment in excess of fair market value for
services rendered by Tenant to Transferee or in excess of Tenant's fair market
value for assets, fixtures, inventory, equipment or furniture transferred by
Tenant to Transferee; provided, however, that this sentence shall not apply to
sale by Tenant of all or substantially all of its assets. If part of the
consideration for such Transfer shall be payable other than in cash, Landlord's
share of such non-cash consideration shall be in such form as is reasonably
satisfactory to Landlord. Tenant shall pay the percentage of the Transfer
Premium due Landlord hereunder within fifteen (15) days after Tenant receives
any Transfer Premium from the Transferee.
D. Intentionally omitted.
E. Terms of Consent. If Landlord consents to a Transfer: (i) the terms
and conditions of this Lease, including Tenant's liability for the Subject
Space, shall in no way be deemed to have been waived or modified, (ii) such
consent shall not be deemed consent to any further Transfer by either Tenant or
a Transferee, (iii) intentionally omitted, (iv) Tenant shall deliver to
Landlord, promptly after execution, an original executed copy of all
documentation pertaining to the Transfer in form reasonably acceptable to
Landlord, and (v) Tenant shall furnish a complete statement, certified by an
independent certified public accountant, or Tenant's chief financial officer,
setting forth in detail the computation of any Transfer Premium that Tenant has
derived and shall derive from such Transfer. Landlord or its authorized
representatives shall have the right at all reasonable times to audit the books,
records and papers of Tenant and any Transferee relating to any Transfer (except
a Transfer in connection with a sale by Tenant of all or substantially all of
its assets), and shall have the right to make copies thereof. If the Transfer
Premium respecting any Transfer shall be found to have been understated, Tenant
shall pay the deficiency within fifteen (15) days after demand (and if
understated by more than five percent (5%), Tenant shall include with such
payment Landlord's costs of such audit). Any sublease hereunder shall be
subordinate and subject to the provisions of this Lease, and if this Lease shall
be terminated during the term of any sublease, whether based on Default or
mutual agreement, Landlord shall have the right to: (a) deem such sublease as
merged and canceled and repossess the Subject Space by any lawful means, or (b)
require that such subtenant attorn to and recognize Landlord as its landlord
under such sublease with respect to obligations arising thereafter, subject to
the terms of Landlord's standard form of attornment documentation. If Tenant
shall commit a Default under this Lease, Landlord is hereby irrevocably
authorized to direct any Transferee to make all payments under or in connection
with the Transfer directly to Landlord (which Landlord shall apply toward
Tenant's obligations under this Lease).
F. Certain Transfers. For purposes of this Lease, the term "Transfer"
shall also include, and all of the foregoing provisions shall apply to: (i) the
conversion, merger or consolidation of Tenant into a limited liability company
or limited liability partnership, (ii) if Tenant is a partnership or limited
liability company, the withdrawal or change, voluntary, involuntary or by
operation of law, of a majority of the partners or members, or a transfer of a
majority of partnership or membership interests, within a twelve month period,
or the dissolution of the partnership or company, and (iii) if Tenant is a
closely held corporation (i.e., whose stock is not publicly held and not traded
through an exchange or over the counter), the dissolution, merger, consolidation
or other reorganization of Tenant, or within a twelve month period: (a) the sale
or other transfer of more than an aggregate of 50% of the voting shares of
Tenant (other than to immediate family members by reason or gift or death) or
(b) the sale, mortgage, hypothecation or pledge of more than an aggregate of 50%
of Tenant's net assets.
Notwithstanding the foregoing to the contrary: (1) a transaction described in
Section 13F above shall not be deemed to be a Transfer requiring Landlord's
consent so long as, after the transaction, Tenant or the surviving entity (as
the case may be) shall directly or indirectly own all or substantially all of
the business and assets of Tenant, and (2) the sale of Tenant's stock or a
change in control of Tenant in connection with a public offering of Tenant's
stock shall not be a Transfer requiring Landlord's consent.
G. Transfer to Tenant Affiliates. Notwithstanding anything to the
contrary in this Article, Tenant may, without Landlord's consent, assign this
Lease to any party (herein referred to as a "Tenant Affiliate") which directly
or
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indirectly: (i) wholly owns or controls Tenant, (ii) is wholly owned or
controlled by Tenant, (iii) is under common ownership or control with Tenant, or
(iv) into which Tenant or any of the foregoing parties is merged, consolidated
or reorganized, or to which all or substantially all of Tenant's assets or any
such other party's assets are sold, so long as the resulting entity will be an
on-going business with a net worth and financial condition at least as strong as
that of the initial named Tenant herein on the date of this Lease (and in the
event of such a sale of all or substantially all of Tenant's assets to any
party, Tenant shall include an assignment and assumption of this Lease as part
of the assets transferred thereunder); provided: (a) Landlord shall receive at
least fifteen (15) days advance notice describing the structure of the
transaction, the parties involved, and the financial information required
herein, certified by an officer of Tenant and/or the Transferee, and a copy of
the executed transfer document (in form reasonably acceptable to Landlord
consistent with the foregoing provisions) promptly after execution, (b) Tenant
shall remain liable for all of Tenant's obligations under this Lease, (c) the
Transferee shall expressly assume all of Tenant's obligations under this Lease,
and (d) this provision shall not be deemed consent to any further sublease,
assignment or other Transfer.
ARTICLE 14: PERSONAL PROPERTY, RENT AND OTHER TAXES
Tenant shall pay, prior to delinquency, all taxes, charges or other
governmental impositions assessed against or levied upon all of Tenant's
fixtures, furnishings, personal property, built-in and modular furniture, and
systems and equipment located in or exclusively serving the Premises (to the
extent that such items are not included in Taxes), notwithstanding that certain
such items may become Landlord's property under Article 23 upon termination of
the Lease. Whenever possible, Tenant shall cause all such items to be assessed
and billed separately from the other property of Landlord. In the event any such
items shall be assessed and billed with the other property of Landlord, Tenant
shall pay Landlord its share of such taxes, charges or other governmental
impositions within fifteen (15) days after Landlord delivers a statement and a
copy of the assessment or other documentation showing the amount of impositions
applicable to Tenant's property. Tenant shall pay any rent tax, sales tax,
service tax, transfer tax, value added tax, or any other applicable tax on the
Rent, utilities or services herein, the privilege of renting, using or occupying
the Premises or collecting Rent therefrom, or otherwise respecting this Lease or
any other document entered in connection herewith.
ARTICLE 15: LANDLORD'S REMEDIES
A. Default. The occurrence of any one or more of the following events
shall constitute a "Default" by Tenant and shall give rise to Landlord's
remedies set forth in Paragraph B below: (i) failure to make when due any
payment of Rent, unless such failure is cured within five (5) business days
after notice; (ii) failure to observe or perform any term or condition of this
Lease other than the payment of Rent (or the other matters expressly described
herein), unless such failure is cured within any period of time following notice
expressly provided with respect thereto in other Articles hereof, or otherwise
within thirty (30) days following notice (provided, if the nature of Tenant's
failure is such that more time is reasonably required in order to cure, Tenant
shall not be in Default if Tenant commences to cure promptly within such period,
diligently seeks and keeps Landlord reasonably advised of efforts to cure such
failure to completion, and completes such cure within sixty (60) days following
Landlord's notice); (iii) failure to cure immediately upon notice thereof any
condition which is hazardous, materially interferes with another tenant or the
operation or leasing of the Property, or may cause the imposition of a fine,
penalty or other remedy on Landlord or its agents or affiliates, (iv) violating
Article 13 respecting Transfers, or abandoning, vacating or failing to occupy
the Premises for more than thirty (30) days coupled with a failure to pay Rent
for such period beyond the applicable cure period, or (v) (a) making by Tenant
or any guarantor of this Lease ("Guarantor") of any general assignment for the
benefit of creditors, (b) filing by or for reorganization or arrangement under
any Law relating to bankruptcy or insolvency (unless, in the case of a petition
filed against Tenant or such Guarantor, the same is dismissed within ninety (90)
days), (c) appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located in the Premises or of Tenant's
interest in this Lease, where possession is not restored to Tenant within thirty
(30) days, (d) attachment, execution or other judicial seizure of substantially
all of Tenant's assets located in the Premises or of Tenant's interest in this
Lease, (e) Tenant's or any Guarantor's convening of a meeting of its creditors
or any class thereof for the purpose of effecting a moratorium upon or
composition of its debts, (f) Tenant's or any Guarantor's insolvency or failure,
or admission of an inability, to pay debts as they mature, or (g) a violation by
Tenant
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under any other lease or agreement with Landlord or any affiliate thereof which
is not cured within the time permitted for cure thereunder. If Tenant violates
the same term or condition of this Lease within the scope of subsections (i) or
(ii) above on more than two (2) occasions during any twelve (12) month period,
and Landlord has provided notice to Tenant thereof within thirty (30) days
following each such violation, then Landlord shall have the right to exercise
all remedies for any further violations of the same term or condition during the
next twelve (12) months without providing further notice or an opportunity to
cure such violation, except that with respect to defaults in the payment of
Rent, Tenant shall have the cure period set forth in Article 30A(i) above . The
notice and cure periods herein are intended to satisfy and run concurrently with
any notice and cure periods provided by Law, and shall not be in addition
thereto; provided, Landlord may elect to comply with such notice and cure
periods provided by Law in lieu of the notice and cure periods provided herein.
B. Remedies. If a Default occurs, Landlord shall have the rights and
remedies hereinafter set forth to the extent permitted by Law, which shall be
distinct, separate and cumulative with and in addition to any other right or
remedy allowed under any Law or other provision of this Lease:
(1) Landlord may terminate this Lease, reenter and repossess the
Premises by detainer suit, summary proceedings or other lawful means, and
recover from Tenant: (i) any unpaid Rent as of the termination date, (ii) the
amount by which: (a) any unpaid Rent which would have accrued after the
termination date during the balance of the Term exceeds (b) the reasonable
rental value of the Premises under a lease substantially similar to this Lease,
taking into account, among other things, the condition of the Premises, market
conditions, the period of time the Premises may reasonably remain vacant before
Landlord is able to re-lease the same to a suitable replacement tenant, and
(iii) any other amounts necessary to compensate Landlord for all damages
proximately caused by Tenant's failure to perform its obligations under this
Lease. For purposes of computing the amount of Rent herein that would have
accrued after the termination date, Tenant's obligations for Taxes and Expenses
shall be projected based upon the average rate of increase in such items from
the Commencement Date through the termination date (or if such period shall be
less than three years, then based on Landlord's reasonable estimates). The
amounts computed in accordance with the foregoing subclauses (a) and (b) shall
both be discounted in accordance with accepted financial practice at the rate of
five percent (5%) per annum to the then present value.
(2) Landlord may terminate Tenant's right of possession, reenter and
repossess the Premises by detainer suit, summary proceedings or other lawful
means, with or without terminating this Lease (except as required by Law), and
recover from Tenant: (i) any unpaid Rent as of the date possession is
terminated, (ii) any unpaid Rent which thereafter accrues during the Term from
the date possession is terminated through the time of judgment (or which may
have accrued from the time of any earlier judgment obtained by Landlord), less
any consideration received from replacement tenants as further described and
applied pursuant to Paragraph H, below, and (iii) any other amounts necessary to
compensate Landlord for all damages proximately caused by Tenant's failure to
perform its obligations under this Lease. Tenant shall pay any such amounts to
Landlord as the same accrue or after the same have accrued from time to time
upon demand. At any time after terminating Tenant's right to possession as
provided herein, Landlord may terminate this Lease as provided in clause (1)
above by notice to Tenant, and Landlord may pursue such other remedies as may be
available to Landlord under this Lease or applicable Law.
Notwithstanding anything in this Lease to the contrary or under law or
in equity, Landlord shall not be entitled to terminate this Lease or Tenant's
rights of possession hereunder without obtaining a judgment or order from a
court of competent jurisdiction.
C. Mitigation of Damages. If Landlord terminates this Lease or Tenant's
right to possession, Landlord shall be obligated to mitigate Landlord's damages,
provided, however, that: (i) Landlord shall be required only to use reasonable
efforts to mitigate, which shall not exceed such efforts as Landlord generally
uses to lease other space at the Property, (ii) Landlord will not be deemed to
have failed to mitigate if Landlord or its affiliates lease any other portions
of the Property or other projects owned by Landlord or its affiliates in the
same geographic area, before reletting all or any portion of the Premises, and
(iii) any failure to mitigate as described herein with respect to any period of
time shall only reduce the Rent and other amounts to which Landlord is entitled
hereunder by the reasonable rental value of the Premises during such period,
taking into account the factors described in clause B(1)
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above. In recognition that the value of the Property depends on the rental rates
and terms of leases therein, Landlord's rejection of a prospective replacement
tenant based on an offer of rentals below fair market value (as reasonably
determined by Landlord) for new leases of comparable space at the Property at
the time in question, or at Landlord's option, below the rates provided in this
Lease, or containing terms less favorable than those contained herein, shall
not, in and of itself, give rise to a claim by Tenant that Landlord failed to
mitigate Landlord's damages. If Landlord has not terminated this Lease or
Tenant's right to possession, Landlord shall have no obligation to mitigate
under any circumstances and may permit the Premises to remain vacant or
abandoned; in such case, Tenant may seek to mitigate damages by attempting to
sublease the Premises or assign this Lease pursuant to Article 13.
D. Reletting. If this Lease or Tenant's right to possession is
terminated, or Tenant abandons the Premises, Landlord may: (i) enter and secure
the Premises, change the locks, install barricades, remove any improvements,
fixtures or other property of Tenant therein, perform any decorating,
remodelling, repairs, alterations, improvements or additions and take such other
actions as Landlord shall determine in Landlord's sole discretion to prevent
damage or deterioration to the Premises or prepare the same for reletting, and
(ii) relet all or any portion of the Premises (separately or as part of a larger
space), for any rent, use or period of time (which may extend beyond the Term
hereof), and upon any other terms as Landlord shall determine in Landlord's sole
discretion, directly or as Tenant's agent (if permitted or required by
applicable Law). The consideration received from such reletting shall be applied
pursuant to the terms of Paragraph H hereof, and if such consideration, as so
applied, is not sufficient to cover all Rent and damages to which Landlord may
be entitled hereunder, Tenant shall pay any deficiency to Landlord as the same
accrues or after the same has accrued from time to time upon demand, subject to
the other provisions hereof.
E. Specific Performance, Collection of Rent and Acceleration. Landlord
shall at all times have the right without prior demand or notice except as
required by applicable Law to: (i) seek any declaratory, injunctive or other
equitable relief, and specifically enforce this Lease or restrain or enjoin a
violation of any provision hereof, and (ii) xxx for and collect any unpaid Rent
which has accrued.
F. Late Charges, Interest, and Returned Checks. Beginning with the next
such occurrence within twelve (12) months after Landlord's written notice to
Tenant that Rent or any portion thereof was not received within five (5)
business days after the date that it was due, Tenant shall pay, as additional
Rent, a service charge of Two Hundred Fifty Dollars ($250.00) or three and
00/100 percent (3.0%) of the delinquent amount, whichever is greater, if any
portion of Rent is not received within five (5) business days after it is due.
In addition, any Rent not paid when due shall accrue interest from the due date
at the Default Rate until payment is received by Landlord. Such service charges
and interest payments shall not be deemed consent by Landlord to late payments,
nor a waiver of Landlord's right to insist upon timely payments at any time, nor
a waiver of any remedies to which Landlord is entitled as a result of the late
payment of Rent. If Landlord receives two (2) or more checks from Tenant which
are returned by Tenant's bank for insufficient funds, Landlord may require that
all checks thereafter be bank certified or cashier's checks (without limiting
Landlord's other remedies). All bank service charges resulting from any returned
checks shall be borne by Tenant.
G. Landlord's Cure of Tenant Violations. If Tenant fails to perform any
obligation under this Lease for ten (10) days after notice thereof by Landlord
(except that no notice shall be required in emergencies), Landlord shall have
the right (but not the duty), to perform such obligation on behalf and for the
account of Tenant. In such event, Tenant shall reimburse Landlord upon demand,
as additional Rent, for all expenses incurred by Landlord in performing such
obligation, and interest thereon at the Default Rate from the date such expenses
were incurred. Landlord's performance of Tenant's obligations hereunder shall
not be deemed a waiver or release of Tenant therefrom.
H. Other Matters. No re-entry or repossession, repairs, changes,
alterations and additions, reletting, or any other action or omission by
Landlord shall be construed as an election by Landlord to terminate this Lease
or Tenant's right to possession, nor shall the same operate to release Tenant in
whole or in part from any of Tenant's obligations hereunder, unless express
notice of such intention is sent by Landlord to Tenant (and if applicable Law
permits, and Landlord shall not have expressly terminated this Lease in writing,
then any termination shall be deemed
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a termination of Tenant's right of possession only). Landlord may bring suits
for amounts owed by Tenant hereunder or any portions thereof, as the same accrue
or after the same have accrued, and no suit or recovery of any portion due
hereunder shall be deemed a waiver of Landlord's right to collect all amounts to
which Landlord is entitled hereunder, nor shall the same serve as any defense to
any subsequent suit brought for any amount not theretofore reduced to judgment.
Landlord may pursue one or more remedies against Tenant and need not make an
election of remedies until findings of fact are made by a court of competent
jurisdiction. All rent and other consideration paid by any replacement tenants
shall be applied at Landlord's option: (i) first, to the Costs of Reletting,
(ii) second, to the payment of all costs of enforcing this Lease against Tenant
or any Guarantor, (iii) third, to the payment of all interest and service
charges accruing hereunder, (iv) fourth, to the payment of Rent theretofore
accrued, and (v) with the residue, if any, to be held by Landlord and applied to
the payment of Rent and other obligations of Tenant as the same become due (and
with any remaining residue to be retained by Landlord). "Costs of Reletting"
shall include without limitation, all costs and expenses incurred by Landlord
for any repairs or other matters described in Paragraph D above, brokerage
commissions, advertising costs, attorneys' fees, any economic incentives given
to enter leases with replacement tenants, and costs of collecting rent from
replacement tenants. Landlord shall be under no obligation to observe or perform
any provision of this Lease on its part to be observed or performed which
involves the payment of money by Landlord to Tenant, or the performance of
alterations or improvements to the Premises, while Tenant is in violation or
Default of this Lease. The times set forth herein for the curing of Defaults by
Tenant are of the essence of this Lease. Tenant hereby irrevocably waives any
right otherwise available under any Law to redeem or reinstate this Lease, or
Tenant's right to possession, after this Lease, or Tenant's right to possession,
is terminated based on a Default by Tenant.
ARTICLE 16: SECURITY DEPOSIT
Tenant shall deposit with Landlord a letter of credit ("Letter of
Credit") in the amount set forth in Article 1 ("Security Deposit"), upon
Tenant's execution and submission of this Lease. The Security Deposit shall
serve as security for the prompt, full and faithful performance by Tenant of the
terms and provisions of this Lease. If Tenant commits a Default, Landlord may
use or apply the whole or any part of the Security Deposit for the payment of
Tenant's obligations hereunder. The use or application of the Security Deposit
or any portion thereof shall not prevent Landlord from exercising any other
right or remedy provided hereunder or under any Law and shall not be construed
as liquidated damages. In the event the Security Deposit is reduced by such use
or application, Tenant shall deposit with Landlord within ten (10) days after
notice, an amount sufficient to restore the full amount of the Security Deposit.
Unless required by applicable Law, Landlord shall not be required to keep any
cash portion of the Security Deposit separate from Landlord's general funds or
pay interest on the Security Deposit. Notwithstanding the foregoing to the
contrary, the parties agree that so long as Tenant has fully and faithfully
complied with all provisions of this Lease, the Letter of Credit shall be
reduced to zero (--0--) within sixty (60) days after the earlier to occur of (a)
the twenty fourth (24th) full calendar month of the Term, or (b) the date that
Tenant completes a public offering of its stock. Tenant shall not assign, pledge
or otherwise transfer any interest in the Security Deposit except as part of an
assignment of this Lease approved by Landlord under Article 13, and any attempt
to do so shall be null and void. See Exhibit F for additional requirements
regarding the Letter of Credit.
ARTICLE 17: ATTORNEYS' FEES AND VENUE
In the event of any litigation or arbitration between the parties
relating to this Lease, the Premises or Property (including pretrial, trial,
appellate, administrative, bankruptcy or insolvency proceedings), the prevailing
party shall be entitled to recover its attorneys' fees and costs as part of the
judgment, award or settlement therein. In the event of a breach of this Lease by
either party which does not result in litigation but which causes the
non-breaching party to incur attorneys' fees or costs, the breaching party shall
reimburse such reasonable fees and costs to the non-breaching party upon demand.
If either party or any of its officers, directors, trustees, beneficiaries,
partners, agents, affiliates or employees shall be made a party to any
litigation or arbitration commenced by or against the other party and is not at
fault, the other party shall pay all costs, expenses and attorneys' fees
incurred by such parties in connection with such litigation. Any action or
proceeding brought by either party against the other for any matter
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arising out of or in any way relating to this Lease, the Premises or the
Property, shall be heard, at Landlord's option, in the court having jurisdiction
located closest to the Property.
ARTICLE 18: SUBORDINATION, ATTORNMENT AND LENDER PROTECTION
This Lease is subject and subordinate to all Mortgages now or hereafter
placed upon the Property, and all other encumbrances and matters of public
record applicable to the Property; provided, this Lease shall only be
subordinate to Mortgages made hereafter if the holders thereof agree to enter
into their commercially reasonable standard forms of subordination,
non-disturbance and attornment agreement with Tenant. Whether before or after
any foreclosure or power of sale proceedings are initiated or completed by any
Lender or a deed in lieu is granted (or any ground lease is terminated), Tenant
agrees, upon written request of any such Lender or any purchaser at such sale,
to attorn and pay Rent to such party, and recognize such party as Landlord
(provided such Lender or purchaser shall agree not to disturb Tenant's occupancy
and other rights of Tenant hereunder so long as Tenant does not Default
hereunder, on a form of agreement customarily used by, or otherwise reasonably
acceptable to, such party). However, in the event of attornment, no Lender shall
be: (i) liable for any act or omission of Landlord, or subject to any offsets or
defenses which Tenant might have against Landlord (arising prior to such Lender
becoming Landlord under such attornment), or (ii) liable for any security
deposit or bound by any Rent prepaid more than one (1) month and not actually
received by Lender. Any Lender may elect to make this Lease prior to the lien of
its Mortgage by written notice to Tenant, and if the Lender of any prior
Mortgage shall require, this Lease shall be prior to any subordinate Mortgage;
such elections shall be effective upon written notice to Tenant, or shall be
effective as of such earlier or later date set forth in such notice. Tenant
agrees to give any Lender by certified mail, return receipt requested, a copy of
any notice of default served by Tenant upon Landlord, provided that prior to
such notice Tenant has been notified in writing (by way of service on Tenant of
a copy of an assignment of leases, or otherwise) of the address of such Lender.
Tenant further agrees that if Landlord shall have failed to cure such default
within the time permitted Landlord for cure under this Lease, any such Lender
whose address has been provided to Tenant shall have an additional period of
thirty (30) days in which to cure (or such additional time as may be required
due to causes beyond such Lender's reasonable control, including time to obtain
possession of the Property by appointment of receiver, power of sale or judicial
action). Except as expressly provided to the contrary herein, the provisions of
this Article shall be self-operative; however Tenant shall execute and deliver,
within ten (10) days after request therefor, such documentation as Landlord or
any Lender may request from time to time, whether prior to or after a
foreclosure or power of sale proceeding is initiated or completed, a deed in
lieu is delivered, or a ground lease is terminated, in order to further confirm
or effectuate the matters set forth in this Article in recordable form.
Landlord hereby represents and warrants that there is no Mortgage
encumbering the Property as of the date of this Lease.
ARTICLE 19: ESTOPPEL CERTIFICATES
Tenant shall from time to time, within fifteen (15) days after written
request from Landlord, execute, acknowledge and deliver a statement certifying:
(i) that this Lease is unmodified and in full force and effect or, if modified,
stating the nature of such modification and certifying that this Lease as so
modified, is in full force and effect (or specifying the ground for claiming
that this Lease is not in force and effect), (ii) the dates to which the Rent
has been paid, and the amount of any Security Deposit, (iii) that Tenant is in
possession of the Premises, and paying Rent on a current basis with, to Tenant's
actual knowledge, no offsets, defenses or claims, or specifying the same if any
are claimed, (iv) that there are not, to Tenant's actual knowledge, any uncured
defaults on the part of Landlord or Tenant, or specifying the same if any are
claimed, and (v) certifying such other factual matters as Landlord may
reasonably request, or as may be reasonably requested by Landlord's current or
prospective Lenders, insurance carriers, auditors, and prospective purchasers
(and including a comparable certification statement from any subtenant
respecting its sublease). Any such statement may be relied upon by any such
parties. If Tenant shall fail to execute and return such statement within the
time required herein, Tenant shall be in Default, and shall be deemed to have
agreed with the matters set forth therein (which shall not be in limitation of
Landlord's other remedies).
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ARTICLE 20: RIGHTS RESERVED BY LANDLORD
Except to the extent expressly limited herein, Landlord reserves full
rights to control the Property (which rights may be exercised without subjecting
Landlord to claims for constructive eviction, abatement of Rent, damages or
other claims of any kind), including more particularly, but without limitation,
the following rights:
A. General Matters. To: (i) change the name or street address of the
Property or designation of the Premises, (ii) install and maintain signs on and
about the Property, and grant any other Person the right to do so, (iii) retain
at all times, and use in appropriate instances, keys to all doors within and
into the Premises, (iv) grant to any Person the right to conduct any business or
render any service at the Property, whether or not the same are similar to the
use permitted Tenant by this Lease, (v) have access for Landlord and other
tenants of the Property to any mail chutes located on the Premises according to
the rules of the United States Postal Service (and to install or remove such
chutes), and (vi) in case of fire, invasion, insurrection, riot, civil disorder,
public excitement or other dangerous condition, or threat thereof: (a) limit or
prevent access to the Property, (b) shut down elevator service, (c) activate
elevator emergency controls, and (d) otherwise take such action or preventative
measures deemed necessary by Landlord for the safety of tenants of the Property
or the protection of the Property and other property located thereon or therein
(but this provision shall impose no duty on Landlord to take such actions, and
no liability for actions taken in good faith).
B. Access To Premises. Subject to the following provisions, to enter
the Premises in order to: (i) inspect the Premises during normal business hours,
(ii) supply cleaning service or other services to be provided Tenant hereunder,
(iii) show the Premises (during normal business hours and after at least one (1)
business day prior notice) to current and prospective Lenders, insurers,
purchasers, governmental authorities, and their representatives, and during the
last twelve (12) months of Tenant's occupancy, show the Premises (during normal
business hours and after at least one (1) business days' prior notice) to
prospective tenants and leasing brokers, and (iv) intentionally omitted, and (v)
perform any work or take any other actions under Paragraph C below, or exercise
other rights of Landlord under this Lease or applicable Laws. However, except in
emergencies, or for cleaning or other routine services to be provided Tenant
under this Lease, Landlord shall: (a) provide reasonable advance written or oral
notice to Tenant's on-site manager or other appropriate person, (b) take
reasonable steps to minimize any disruption to Tenant's business, and (c) at
Tenant's option, be accompanied during entry into the Premises by a
representative of Tenant. If Tenant requests that any such access occur before
or after Building Hours, and Landlord schedules the work accordingly, Tenant
shall pay all overtime and other additional costs in connection therewith.
C. Changes To The Property. Subject to the last sentence of this
Paragraph, to: (i) paint and decorate, (ii) perform repairs or maintenance,
(iii) add land, buildings, easements or other interests to, or sell or eliminate
the same from, the Property, grant interests and rights in the Property to other
parties, and convert common areas to rentable areas and rentable areas to common
areas, and (iv) make replacements, restorations, renovations, alterations,
additions and improvements, structural or otherwise (including freon retrofit
work), in and to the Property or any part thereof, including any adjacent
building, structure, facility, land, street or alley, or change the uses thereof
(other than Tenant's permitted use under this Lease), including changes,
reductions or additions of corridors, entrances, doors, lobbies, parking
facilities and other areas, structural support columns and shear walls,
elevators, stairs, escalators, mezzanines, solar tint windows or film, kiosks,
planters, sculptures, displays, and other amenities and features therein, and
changes relating to the connection with or entrance into or use of the Property
or any other adjoining or adjacent building or buildings, now existing or
hereafter constructed. In connection with such matters, Landlord may among other
things erect scaffolding, barricades and other structures, open ceilings, close
entry ways, restrooms, elevators, stairways, corridors, parking and other areas
and facilities, and take such other actions as Landlord deems appropriate.
However, Landlord shall: (a) maintain reasonable access to the Premises, (b) in
connection with entering the Premises, comply with Paragraph B above, and (c) to
the extent that, in Landlord's reasonable opinion, the Premises are materially
affected, give Tenant reasonable prior notice of such changes to the Property.
Notwithstanding anything to the contrary contained herein, changes which may be
made by Landlord as permitted under this Section shall not increase Tenant's
Share.
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ARTICLE 21: RIGHT TO CURE
If Landlord shall fail to perform any obligation under this Lease
required to be performed by Landlord, Landlord shall not be deemed to be in
default hereunder nor subject to any claims for damages of any kind, unless such
failure shall have continued for a period of thirty (30) days (or, in an
emergency situation, five (5) days) after notice thereof by Tenant (provided, if
the nature of Landlord's failure is such that more time is reasonably required
in order to cure, Landlord shall not be in default if Landlord commences to cure
within such applicable period and thereafter diligently seeks to cure such
failure to completion). If Landlord shall default and fail to cure as provided
herein, Tenant shall have such rights and remedies as may be available to Tenant
under applicable Laws, subject to the other provisions of this Lease; provided,
Tenant shall have no right of self-help to perform repairs or any other
obligation of Landlord (except as set forth in the following paragraph), and
shall have no right to withhold, set-off, or xxxxx Rent, except as may be
expressly provided in this Lease (including, without limitation, Section 6E),
and shall have no right to terminate this Lease without entry of an order and
judgment by a court of competent jurisdiction (provided that should Tenant prove
a breach by Landlord entitling Tenant to terminate this Lease, Tenant shall not
be responsible for performance of obligations under this Lease arising after the
earlier to occur of the following:
(a) the effective termination date as determined by the court
in its order or judgment, or
(b) the later to occur of: (i) Landlord's breach giving rise
to such termination, or (ii) any applicable period for Landlord to cure
following notice or other time period specifically set forth in this Lease, such
as the time periods set forth in Article 11.D (as determined by the court in its
order or judgment); provided, in any case, Tenant shall comply with all
obligations under this Lease until Tenant vacates the Premises in the condition
required Article 23 of this Lease. Tenant hereby expressly waives the provisions
of any Law to the contrary.
Notwithstanding anything to the contrary contained herein, if Landlord
fails to make any repairs within the Premises which Landlord is obligated to
perform under this Lease, and which do not affect the Systems or Equipment, and
such failure directly and adversely affects Tenant's use of the Premises, and
Tenant gives Landlord reasonable advance notice of Tenant's intent to perform
such work, describing the same in detail, and enclosing a copy of the proposed
contract (which notice shall be at least ten (10) days in advance, except to the
extent that there is an immediate threat to Tenant's property or business or to
persons), then Tenant may make such repairs in a good and workmanlike manner
using a contractor which is then currently approved in writing by Landlord to
perform work in the Property provided Landlord has previously provided to Tenant
such a list (and in absence of such list, such repairs shall be made by a
contractor selected by Tenant), at a competitive and reasonable cost, and
subject to all of the other provisions of this Lease respecting work at the
Property other than those provisions requiring any additional approvals from
Landlord, and the Property rules and regulations pertaining thereto. In such
case, Landlord shall reimburse Tenant therefor within thirty (30) days after the
completion of the repairs by Tenant and Landlord's receipt of a copy of the paid
invoice and reasonable supporting documentation, including, but not limited to,
recordable lien releases and affidavits of payment in statutory form acceptable
to Landlord, but Tenant shall have no right to withhold or set off such amount
against Rent.
ARTICLE 22: INDEMNIFICATION
Subject to the provisions of Articles 10C and 11, Tenant shall defend,
indemnify and hold Landlord harmless from and against any and all claims,
demands, losses, penalties, fines, fees, charges, assessments, liabilities,
damages, judgments, orders, decrees, actions, administrative or other
proceedings, costs and expenses (including reasonable attorneys' and expert
witness fees, and court costs actually incurred), arising or alleged to arise
from: (i) any violation or breach of this Lease or applicable Law by any Tenant
Parties (as defined below), (ii) damage, loss or injury to persons, property or
business directly or indirectly arising out of any Tenant Party's use of the
Premises or negligent use of the Property, or out of any other intentional
misconduct or negligent act or omission of any Tenant Parties, and (iii) any
other damage, loss or injury to persons, property or business occurring in,
about or from the Premises, except to the extent that such other damage, loss or
injury to persons, property or business is caused by the negligence or
intentional misconduct of Landlord. For purposes of this provision, "Tenant
Parties" shall mean
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Tenant, any other occupant of the Premises and any of their respective agents,
employees, invitees, Transferees and contractors.
Subject to Articles 10C and 11 of this Lease, and excluding matters
covered by Tenant's foregoing indemnity obligations, Landlord shall defend,
indemnify and hold harmless Tenant from and against claims, demands, losses,
penalties, fines, fees, charges, assessments, liabilities, damages, judgments,
orders, decrees, actions, administrative or other proceedings, costs and
expenses (including reasonable attorneys' and expert witness fees, and court
costs) arising in the common areas of the Property from or relating to any loss
of life, damage or injury to persons, property or business to the extent caused
by or in connection with any violation of this Lease by, or any intentional
misconduct or negligent acts or omissions of, Landlord or Landlord's agents or
employees.
ARTICLE 23: RETURN OF POSSESSION
A. General Provisions. At the expiration or earlier termination of this
Lease or Tenant's right of possession, Tenant shall vacate and surrender
possession of the entire Premises in the condition required under Article 8 and
the Rules, ordinary wear and tear and casualty damage excepted, shall surrender
all keys and key cards, and any parking transmitters, stickers or cards, to
Landlord, and shall remove all personal property and office trade fixtures that
may be readily removed without damage to the Premises or Property (and Tenant
hereby waives any statutory notices to vacate or quit the Premises upon
expiration of this Lease), subject to the following provisions.
B. Landlord's Property. All improvements, fixtures and other items,
including ceiling light fixtures; HVAC equipment (unless paid for by Tenant);
plumbing fixtures; hot water heaters; fire suppression and sprinkler systems;
Lines under Article 28; interior partitioning, built-in shelves and cabinets,
interior stairs, wall coverings, carpeting and other flooring, blinds, drapes
and window treatments (unless paid for by Tenant); in or serving the Premises,
whether installed by Tenant or Landlord, and any other items installed or
provided by Landlord or at Landlord's expense, shall be Landlord's property and
shall remain upon the Premises, all without compensation, allowance or credit to
Tenant, unless Landlord elects otherwise as provided in Paragraph C below.
C. Removal of Items by Tenant. Notwithstanding the foregoing to the
contrary, if prior to expiration or earlier termination of this Lease or within
thirty (30) days thereafter Landlord so directs by notice, Tenant shall promptly
remove such of the items described in Paragraph B above as are designated in
such notice and restore the Premises to the condition prior to the installation
of such items in a good and workmanlike manner; provided, Landlord shall not
require removal of any such items that: (i) already existed in the Premises
before this Lease and Tenant's occupancy of the Premises, or (ii) involve office
improvements that are installed by or for Tenant pursuant to the provisions of
this Lease (including any Exhibit hereto) except to the extent that Landlord
reserves the right to require such removal in connection with Landlord's
approval of the plans for such improvements.
If Tenant elects to remove any HVAC equipment and/or back-up generators
that were paid for by Tenant, it is understood and agreed that Tenant's
obligation to restore the Premises shall include both the obligation to repair
any physical damage to the Premises or Property caused by such removal and to
re-balance the HVAC system within the Premises to the extent that such
re-balancing is necessary because of such removal of HVAC equipment being
removed by Tenant.
D. Tenant's Failure to Remove Items. If Tenant shall fail to remove any
items from the Premises as required hereunder, Landlord may do so and Tenant
shall pay Landlord's charges therefor upon demand. All such property removed
from the Premises by Landlord pursuant to any provisions of this Lease or any
Law may be handled or stored by Landlord at Tenant's expense, and Landlord shall
in no event be responsible for the value, preservation or safekeeping thereof.
All such property not removed from the Premises or retaken from storage by
Tenant within thirty (30) days after expiration or earlier termination of this
Lease or Tenant's right to possession shall, at Landlord's option, be
conclusively deemed to have been conveyed by Tenant to Landlord as if by xxxx of
sale without payment by Landlord. Unless prohibited by applicable Law, Landlord
shall have a lien against such property for the costs incurred in removing and
storing the same.
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ARTICLE 24: HOLDING OVER
Unless Landlord expressly agrees otherwise in writing, Tenant shall pay
Landlord 150% for the first month and 200% thereafter of the amount of Rent then
applicable prorated on a per diem basis for each day that Tenant shall fail to
vacate or surrender possession of the Premises or any part thereof after
expiration or earlier termination of this Lease as required under Article 23,
together with all damages (direct and consequential) sustained by Landlord on
account thereof. Tenant shall pay such amount of Rent monthly in advance
(subject to refund of any partial month occupancy), and such other amounts on
demand. The foregoing provisions, and Landlord's acceptance of any such amounts,
shall not serve as permission for Tenant to hold-over, nor serve to extend the
Term (although Tenant shall remain a tenant-at-sufferance bound to comply with
all other provisions of this Lease until Tenant properly vacates the Premises,
including Article 23). Landlord shall have the right at any time after
expiration or earlier termination of this Lease or Tenant's right to possession
to reenter and possess the Premises and remove all property and persons
therefrom, and Landlord shall have such other remedies for holdover as may be
available to Landlord under other provisions of this Lease or applicable Laws.
ARTICLE 25: NOTICES
Except as expressly provided to the contrary in this Lease, every
notice or other communication to be given by either party to the other with
respect hereto or to the Premises or Property, shall be in writing and shall not
be effective for any purpose unless the same shall be served personally or by
national air courier service providing for next business day delivery, or United
States certified mail, return receipt requested, postage prepaid, to the parties
at the addresses set forth in Article 1, or such other address or addresses as
Tenant or Landlord may from time to time designate by notice given as above
provided. Every notice or other communication hereunder shall be deemed to have
been given as of the third business day following the date of such mailing (or
as of any earlier date evidenced by a receipt from such national air courier
service or the United States Postal Service) or immediately if personally
delivered. Notices not sent in accordance with the foregoing shall be of no
force or effect until received by the foregoing parties at such addresses
required herein.
ARTICLE 26: REAL ESTATE BROKERS
Landlord and Tenant hereby mutually: (i) represent and warrant to each
other that they have dealt only with the broker, if any, designated in Article 1
(whose commission, if any, shall be paid pursuant to separate written agreement
by the party signing such agreement) as broker, agent or finder in connection
with this Lease, and (ii) agree to defend, indemnify and hold each other
harmless from and against any and all claims, demands, losses, liabilities,
damages, judgments, costs and expenses (including reasonable attorneys' and
expert witness fees, and court costs), arising or alleged to arise from any
breach of their respective foregoing representation and warranty under this
Article.
ARTICLE 27: NO WAIVER
No provision of this Lease will be deemed waived by either party unless
expressly waived in writing and signed by the waiving party. No waiver shall be
implied by delay or any other act or omission of either party. No waiver by
either party of any provision of this Lease shall be deemed a waiver of such
provision with respect to any subsequent matter relating to such provision, and
Landlord's consent or approval respecting any action by Tenant shall not
constitute a waiver of the requirement for obtaining Landlord's consent or
approval respecting any subsequent action. Acceptance of Rent by Landlord
directly or through any agent or lock-box arrangement shall not constitute a
waiver of any breach by Tenant of any term or provision of this Lease (and
Landlord reserves the right to return or refund any untimely payments if
necessary to preserve Landlord's remedies). No acceptance of a lesser amount of
Rent shall be deemed a waiver of Landlord's right to receive the full amount
due, nor shall any endorsement or statement on any
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check or payment or any letter accompanying such check or payment be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the full amount due. The acceptance of
Rent or of the performance of any other term or provision from, or providing
directory listings or services for, any Person other than Tenant shall not
constitute a waiver of Landlord's right to approve any Transfer. No delivery to,
or acceptance by, Landlord or its agents or employees of keys, nor any other act
or omission of Tenant or Landlord or their agents or employees, shall be deemed
a surrender, or acceptance of a surrender, of the Premises or a termination of
this Lease, unless stated expressly in writing by Landlord.
ARTICLE 28: TELECOMMUNICATION LINES
A. Telecommunication Lines. Subject to Landlord's continuing right of
supervision and approval, which approval shall not be unreasonably withheld,
conditioned or delayed and the other provisions hereof, Tenant may: (i) install
telecommunication lines ("Lines") connecting the Premises to any Property
terminal block already serving or available to serve the Premises, or (ii) use
such Lines as may currently exist and already connect the Premises to such
terminal block. Such terminal block may comprise, or be connected through riser
or other Lines with, a main distribution frame ("MDF") for the Property.
Landlord disclaims any representations, warranties or understandings concerning
the capacity, design or suitability of any such terminal or MDF, Property riser
Lines, or related equipment. If there is, or will be, more than one tenant in
the Property, at any time, Landlord may allocate, and periodically reallocate,
connections to the terminal blocks and MDF based on the proportion of rentable
area each tenant leases, or the type of business operations or requirements of
such tenants, in Landlord's reasonable discretion. Landlord may arrange for an
independent contractor to review Tenant's requests for approval hereunder,
monitor or supervise Tenant's installation, connection and disconnection of
Lines, and provide other such services, or Landlord may provide the same. In
each case, Tenant shall pay Landlord's fees and costs therefor as provided in
Article 9.
B. Installation. Tenant may install and use Tenant's Lines and make
connections and disconnections at the terminal blocks as described above,
provided Tenant shall: (i) obtain Landlord's prior written approval of all
aspects thereof, (ii) use an experienced and qualified contractor designated or
approved in writing in advance by Landlord (whom Landlord may require to enter
an access and indemnity agreement on Landlord's then-standard form of agreement
therefor), (iii) comply with such inside wire standards as Landlord may adopt
from time to time, and all other provisions of this Lease, including Article 9
respecting Work, and the Rules respecting access to the wire closets, (iv) not
install Lines in the same sleeve, chaseway or other enclosure in close proximity
with electrical wire, and not install PVC-coated Lines under any circumstances,
(v) thoroughly test any riser Lines to which Tenant intends to connect any Lines
to ensure that such riser Lines are available and are not then connected to or
used for telephone, data transmission or any other purpose by any other party
(whether or not Landlord has previously approved such connections), and not
connect to any such unavailable or connected riser Lines, and (vi) not connect
any equipment to the Lines which may create an electromagnetic field exceeding
the normal insulation ratings of ordinary twisted pair riser cable or cause
radiation higher than normal background radiation, unless the Lines therefor
(including riser Lines) are appropriately insulated to prevent such excessive
electromagnetic fields or radiation (and such insulation shall not be provided
by the use of additional unused twisted pair Lines). As a condition to
permitting installation of new Lines, Landlord may require that Tenant remove
any existing Lines located in or serving the Premises which are not being used.
C. Limitation of Liability. Except to the extent due to Landlord's
intentional misconduct or grossly negligent acts, Landlord shall have no
liability for damages arising, and Landlord does not warrant that the Tenant's
use of the Lines will be free, from the following (collectively called "Line
Problems"): (i) any eavesdropping, wire-tapping or theft of long distance access
codes by unauthorized parties, (ii) any failure of the Lines to satisfy Tenant's
requirements, or (iii) any capacitance, attenuation, cross-talk or other
problems with the Lines, any misdesignation of the Lines in the MDF room or wire
closets, or any shortages, failures, variations, interruptions, disconnections,
loss or damage caused by or in connection with the installation, maintenance,
replacement, use or removal of any other Lines or equipment at the Property by
or for other tenants at the Property, by any failure of the environmental
conditions at or the power supply for the Property to conform to any
requirements of the Lines or any other problems associated with any Lines or by
any other cause. Under no circumstances shall any Line Problems be deemed an
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actual or constructive eviction of Tenant, render Landlord liable to Tenant for
abatement of any Rent or other charges under the Lease, or relieve Tenant from
performance of Tenant's obligations under the Lease as amended herein. Landlord
in no event shall be liable for damages by reason of loss of profits, business
interruption or other consequential damage arising from any Line Problems.
ARTICLE 29: HAZARDOUS MATERIALS
A. Hazardous Materials Generally Prohibited. Except as provided herein,
Tenant shall not transport, use, store, maintain, generate, manufacture, handle,
dispose, release, discharge, spill or leak any "Hazardous Material" (as defined
in Article 30), or permit Tenant's employees, agents, contractors, or other
occupants of the Premises to engage in such activities on or about the Property.
However, the foregoing provisions shall not prohibit the transportation to and
from, and use, storage, maintenance and handling within, the Premises of
substances customarily and lawfully used in the business which Tenant is
permitted to conduct in the Premises under this Lease, as an incidental and
minor part of such business, and provided: (i) such substances shall be properly
labeled, contained, used and stored only in small quantities reasonably
necessary for such permitted use of the Premises and the ordinary course of
Tenant's business therein, strictly in accordance with applicable Laws, highest
prevailing standards, and the manufacturers' instructions therefor, (ii) such
substances shall not be disposed of, released, discharged or permitted to spill
or leak in or about the Premises or the Property (and under no circumstances
shall any Hazardous Material be disposed of within the drains or plumbing
facilities in or serving the Premises or Property or in any other public or
private drain or sewer, regardless of quantity or concentration), (iii) if any
applicable Law or Landlord's trash removal contractor requires that any such
substances be disposed of separately from ordinary trash, Tenant shall make
arrangements at Tenant's expense for such disposal in approved containers
directly with a qualified and licensed disposal company at a lawful disposal
site, (iv) any remaining such substances shall be completely, properly and
lawfully removed from the Property upon expiration or earlier termination of
this Lease, and (v) for purposes of removal and disposal of any such substances,
Tenant shall be named as the owner, operator and generator, shall obtain a waste
generator identification number, and shall execute all permit applications,
manifests, waste characterization documents and any other required forms.
B. Clean Up Responsibility. If any Hazardous Material is released,
discharged or disposed of, or permitted to spill or leak, in violation of the
foregoing provisions, Tenant shall immediately and properly clean up and remove
the Hazardous Materials from the Premises, Property and any other affected
property and clean or replace any affected personal property (whether or not
owned by Landlord) in compliance with applicable Laws and then prevailing
industry practices and standards, at Tenant's expense (without limiting
Landlord's other remedies therefor). Such clean up and removal work ("Tenant
Remedial Work") shall be considered Work under Article 9 and subject to the
provisions thereof, including Landlord's prior written approval (except in
emergencies), and any testing, investigation, feasibility and impact studies,
and the preparation and implementation of any remedial action plan required by
any court or regulatory authority having jurisdiction or reasonably required by
Landlord. In connection therewith, Tenant shall provide documentation evidencing
that all Tenant Remedial Work or other action required hereunder has been
properly and lawfully completed (including a certificate addressed to Landlord
from a environmental consultant reasonably acceptable to Landlord, in such
detail and form as Landlord may reasonably require). If any Hazardous Material
is released, discharged, disposed of, or permitted to spill or leak on or about
the Property and is not caused by Tenant or other occupants of the Premises, or
their agents, employees, Transferees, or contractors, such release, discharge,
disposal, spill or leak shall be deemed casualty damage under Article 11 to the
extent that the Premises and Tenant's use thereof is affected thereby; in such
case, Landlord and Tenant shall have the obligations and rights respecting such
casualty damage provided under this Lease.
C. Miscellaneous. Tenant shall immediately upon written request from
time to time provide Landlord with copies of all material safety data sheets,
permits, approvals, memos, reports, correspondence, complaints, demands, claims,
subpoenas, requests, remediation and cleanup plans, and all papers of any kind
filed with or by any regulatory authority and any other books, records or items
pertaining to Hazardous Materials that are subject to the provisions of this
Article (collectively referred to herein as "Tenant's Hazardous Materials
Records"). Tenant shall pay, prior to delinquency, any and all fees, taxes
(including excise taxes), penalties and fines arising from or based on Tenant's
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activities involving Hazardous Material on or about the Premises or Property,
and shall not allow such obligations to become a lien or charge against the
Property or Landlord. If Tenant violates any provision of this Article with
respect to any Hazardous Materials, Landlord may: (i) require that Tenant
immediately remove all Hazardous Materials from the Premises and discontinue
using, storing and handling Hazardous Materials in the Premises, and/or (ii)
pursue such other remedies as may be available to Landlord under this Lease or
applicable Law.
ARTICLE 30: DEFINITIONS
(A) "Building" shall mean the structure (or the portion thereof owned
by Landlord) identified in Article 1.
(B) "Building Hours" shall mean 8:00 A.M. to 6:00 P.M. Monday through
Friday, and 8:00 A.M. to 12:00 P.M. on Saturday (if comparable buildings in the
area have standard Saturday hours), excluding Holidays. "Holidays" shall mean
New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day,
Christmas Day, and any other state or federal holidays observed by majority of
businesses in the Durham area.
(C) "Default Rate" shall mean the rate of interest announced from time
to time by the main Chicago office of Bank of America or its successor ("Bank")
as its published Prime Rate plus four percent (4%) per annum, unless a lesser
rate shall then be the maximum rate permissible by law, in which event the said
lesser rate shall be charged. The term "Prime Rate" means the rate of interest
announced by Bank from time to time as its "Prime Rate" Rate or "Corporate Base
Rate" (or other such designation as determined by Landlord), of interest,
changing automatically and simultaneously with each change in the Prime Rate
made by Bank from time to time. Any publication issued or published by Bank or a
certificate signed by an officer of Bank stating its Prime Rate as of a date
shall be conclusive evidence of the Prime Rate on that date. If during the Term
hereof, Bank should not issue or publish the Prime Rate, then Landlord shall
designate a similar rate published by any national banking association.
(D) "Expenses" shall mean all expenses, costs and amounts (other than
Taxes) of every kind and nature relating to the ownership, management, repair,
maintenance, replacement, insurance and operation of the Property, including,
without limitation (except as expressly set forth herein), any amounts paid for:
(i) Utility Costs, (ii) complying with Laws (but subject to the exclusions set
forth below), (iii) insurance, not limited to that required under this Lease,
and which may include flood, earthquake, boiler, rent loss, workers'
compensation and employers' liability, builders' risk, automobile and other
coverages, including a reasonable allocation of costs under any blanket
policies, (iv) supplies, materials, tools, equipment, uniforms, and vehicles
used in the operation, repair, maintenance, security, and other services for the
Property, including rental, installment purchase and financing agreements
therefor and interest thereunder, (v) accounting, alarm monitoring, security,
janitorial, trash removal, snow and ice removal, and other services, (vi)
customary management fees, not to exceed four percent (4%) of gross revenues of
the Property (vii) compensation and benefits for any personnel to the extent
such persons are engaged in the operation, repair, maintenance, security or
other services for the Property at or below the level of senior property
manager, and employer's FICA contributions, unemployment taxes or insurance, any
other taxes which may be levied on such compensation and benefits, and data or
payroll processing expenses relating thereto (if personnel handle other
properties, the foregoing expenses shall be allocated appropriately between the
Property and such other properties), (viii) payments under any easement, cross
or reciprocal easement, operating agreement, declaration, covenant, or other
agreement or instrument pertaining to the sharing of costs for common areas or
other matters in a development or complex of which the Property is a part, (ix)
sales, use, value-added or other taxes on supplies or services for the Property,
(x) the costs of operating and maintaining any on-site office at the Property or
an adjoining property (such costs to be appropriately allocated between the
Property and any such adjoining property served by such office), including the
fair rental value thereof, (xi) operation, maintenance, repair, installation,
replacement, inspection, testing, painting, decorating and cleaning of the
Property, and any items located off-site but installed for the benefit of the
Property, including Property identification and pylon signs, directional signs,
traffic signals and markers, flagpoles and canopies, sidewalks, curbs,
stairways, parking structures, lots, loading and service areas and driveways,
storm and sanitary drainage systems, irrigation systems, elevators, escalators,
trash compactors, and Systems and Equipment, landscaping, and all other aspects
of the Property, including common area fixtures, equipment and other items
therein or thereon, doors, locks and hardware, windows, gutters, downspouts,
roof flashings and roofs.
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The foregoing provision is for definitional purposes only and shall not be
construed to impose any obligation upon Landlord to incur such expenses, nor as
a limitation as to other Expenses that Landlord may incur with respect to the
Property. Landlord may retain independent contractors (or affiliated contractors
at market rates) to provide any services or perform any work, in which case the
costs thereof shall be deemed Expenses. Expenses shall, however, exclude:
(1) the following items: (a) interest and amortization on
Mortgages, and other debt costs or ground lease payments, if any, except as
provided herein, (b) depreciation of buildings and other improvements (except
permitted amortization of certain capital expenditures as provided below), (c)
legal fees in connection with leasing, tenant disputes or enforcement of leases,
(d) real estate brokers' commissions or marketing costs, (e) improvements or
alterations to tenant spaces, (f) the cost of providing any service directly to,
and paid directly by, any tenant, (g) costs of any items to the extent Landlord
receives reimbursement from insurance proceeds or from a warranty or other such
third party (such proceeds to be deducted from Expenses in the year in which
received); (h) items charged as Taxes under this Lease, (i) Mortgage principal,
interest or penalties or any other costs associated with the financing of the
Property, (j) leasing commissions, finder's fees and all other leasing expenses
incurred in procuring tenants in the Property, including marketing, promotion
and advertising expenses in connection with leasing of space, (k) the cost of
constructing tenant improvements or installations for any tenant in the
Property, including any relocation costs, (l) expenditures for repairing and/or
replacing any defect in any tenant improvement work performed by Landlord
pursuant to the provisions of any lease for space in the Property, (m) lease
takeover or termination costs incurred by Landlord in connection with any lease
in the Property, including any tax payments required to be made in connection
therewith, (n) any amount (other than management fees) paid to any affiliate of
Landlord to the extent that such payments materially exceed competitive charges
from an equivalent quality provider that would have been paid at arms-length for
comparable services and goods, (o) expenses, fines, interest or penalties
payable by Landlord resulting from non-compliance with any Laws or late payment
of Taxes, unless caused by Tenant (in which case, Tenant shall pay the same as a
separate obligation of Tenant and not as part of Expenses), (p) attorneys' fees
and disbursements incurred in connection with the leasing of space or
enforcement of leases in the Property (including without limitation the
enforcement of any lease or the surrender, termination or modification of any
lease of space in the Property), (q) attorneys' fees and disbursements and other
costs in connection with any judgment, settlement or arbitration award
(including arbitration fees and expenses) resulting from any tort or contract
liability on the part of Landlord and the amount of such settlement, judgment or
award, except for business related tort or contract liabilities where Tenant is
contributorily liable (in which case, Tenant shall pay its share of the same as
a separate obligation and not as part of Expenses), (r) Landlord's cost of any
utilities or services supplied to any tenant or occupant in the Property and for
which Landlord is directly reimbursed (other than through Expenses) as an
additional charge (provided Landlord may characterize payments received from a
tenant in connection with any lease surrender or cancellation as Landlord deems
appropriate without causing any such items to be excluded from Expenses), (s)
costs of acquiring, leasing or restoring any items in the nature of "fine art,"
(rather than decorative art work and seasonal decorations), (t) the cost of
repairs and replacements incurred by reason of fire or other casualty or
condemnation, to the extent Landlord is reimbursed therefor by insurance
proceeds or condemnation award, (u) rent paid under any ground lease or
underlying lease of the land beneath the Property (but including charges such as
Taxes and Expenses under this Lease), (v) any costs that duplicate costs for
which Landlord is reimbursed by Tenant under other provisions of this Lease, (w)
expenses (including, without limitation, attorneys' fees and overtime pay)
incurred in curing a default by Landlord under this Lease or any other lease of
space in the Property, including, without limitation, a contract for services at
the Property, or under any mortgage or insurance policy affecting the Property,
but only to the extent that such expenses are greater than the expenses Landlord
would have incurred had Landlord timely performed such obligation, (x) to the
extent any costs that are otherwise permitted to be included in Expenses are
incurred with respect to both the Property and other properties (including,
without limitation, salaries, fringe benefits and other compensation of
Landlord's personnel who provide services to both the Property and such other
properties), there shall be excluded from Expenses a fair and reasonable
percentage thereof that is properly allocable to such other properties, (y) the
cost of installing a cafeteria, auditorium, conference room, telecommunications
facility (such as a microwave dish or antenna) or other such facility and the
cost of operating and maintaining any such facility, if such facility is
operated by Landlord and not leased to a third party (except to the extent that
Landlord elects to credit revenues, if any, derived from such facilities against
Expenses), (z) any compensation paid to clerks, attendants or other persons in
commercial concessions operated by Landlord or any affiliate (except to the
extent that Landlord elects to credit revenues, if any, derived from such
concessions against Expenses), (aa) Landlord's general
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corporate overhead and general and administrative expenses to the extent same
are not specifically incurred in connection with the ownership, management,
repair, maintenance, replacement, insurance and operation of the Property, and
(bb) the costs of curing or repairing any defects in the initial construction of
the Building.
(2) capital expenditures, except those: (a) made primarily to
reduce Expenses or increases therein, or to comply with Laws or insurance
requirements (excluding capital expenditures to cure violations of Laws or
insurance requirements that existed prior to the Commencement Date or which
relate to the initial construction of the Building or the Property), or (b) for
replacements (as opposed to additions or new improvements) of roofs, parking
areas, and nonstructural items located in the common areas of the Property
required to keep such areas in good condition; provided, any such permitted
capital expenditure shall be amortized for purposes of this Lease (with interest
at the prevailing loan rate available to Landlord when the cost was incurred)
over: (x) the period during which the reasonably estimated savings in Expenses
equals the expenditure, if applicable, or (y) the useful life of the item as
reasonably determined by Landlord, but in no event less than five (5) years.
(E) "Hazardous Material" shall include, but not be limited to: (i) any
flammable, explosive, toxic, radioactive, biological, corrosive or otherwise
hazardous chemical, substance, liquid, gas, device, form of energy, material or
waste or component thereof, (ii) petroleum-based products, diesel fuel, paints,
solvents, lead, radioactive materials, cyanide, biohazards, infectious or
medical waste and "sharps", printing inks, acids, DDT, pesticides, ammonia
compounds, and any other items which now or subsequently are found to have an
adverse effect on the environment or the health and safety of persons or animals
or the presence of which require investigation or remediation under any Law or
governmental policy, and (iii) any item defined as a "hazardous substance",
"hazardous material", "hazardous waste", "regulated substance" or "toxic
substance" under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. ss.9601, et seq., Hazardous
Materials Transportation Act, 49 U.S.C. ss.1801, et seq., Resource Conservation
and Recovery Act of 1976, 42 U.S.C. ss.6901 et seq., Clean Water Act, 33 U.S.C.
ss.1251, et seq., Safe Drinking Water Act, 14 U.S.C. ss.300f, et seq., Toxic
Substances Control Act, 15 U.S.C. ss.2601, et seq., Atomic Energy Act of 1954,
42 U.S.C. ss.2014 et seq., and any similar federal, state or local Laws, and all
regulations, guidelines, directives and other requirements thereunder, all as
may be amended or supplemented from time to time.
(F) "Landlord" shall mean only the landlord from time to time, except
that for purposes of any provisions defending, indemnifying and holding Landlord
harmless hereunder, "Landlord" shall include past, present and future landlords
and their respective partners, beneficiaries, trustees, officers, directors,
employees, shareholders, principals, agents, affiliates, successors and assigns.
(G) "Law" or "Laws" shall mean all federal, state, county and local
governmental and municipal laws, statutes, ordinances, rules, regulations,
codes, decrees, orders and other such requirements, applicable equitable
remedies and decisions by courts in cases where such decisions are considered
binding precedents in the State in which the Property is located, and decisions
of federal courts applying the Laws of such State, at the time in question. This
Lease shall be interpreted and governed by the Laws of the State in which the
Property is located.
(H) "Lender" shall mean the holder of any Mortgage at the time in
question, and where such Mortgage is a ground lease, such term shall refer to
the ground lessor (and the term "ground lease" although not capitalized is
intended throughout this Lease to include any superior or master lease).
(I) "Mortgage" shall mean all mortgages, deeds of trust, ground leases
and other such encumbrances now or hereafter placed upon the Property or
Building, or any part thereof, and all renewals, modifications, consolidations,
replacements or extensions thereof, and all indebtedness now or hereafter
secured thereby and all interest thereon.
(J) "Person" shall mean an individual, trust, partnership, limited
liability company, joint venture, association, corporation and any other entity.
(K) "Premises" shall mean the area within the Building identified in
Article 1 and Exhibit A. Possession of
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areas necessary for utilities, services, safety and operation of the Property,
including the Systems and Equipment, fire stairways, perimeter walls, space
between the finished ceiling of the Premises and the slab of the floor or roof
of the Property thereabove, and the use thereof together with the right to
install, maintain, operate, repair and replace the Systems and Equipment,
including any of the same in, through, under or above the Premises in locations
that will not materially interfere with Tenant's use of the Premises, are hereby
excepted and reserved by Landlord, and not demised to Tenant.
(L) "Property" shall mean the Building, and any common or public areas
or facilities, easements, corridors, lobbies, sidewalks, loading areas,
driveways, landscaped areas, skywalks, parking rights, garages and lots, and any
and all other rights, structures or facilities operated or maintained in
connection with or for the benefit of the Building, and all parcels or tracts of
land on which all or any portion of the Building or any of the other foregoing
items are located, and any fixtures, machinery, apparatus, Systems and
Equipment, furniture and other personal property located thereon or therein and
used in connection in connection with the operation thereof. If the Building
shall be part of a development or complex of buildings or structures
collectively owned by Landlord or its affiliates, the Property shall, at
Landlord's option, also be deemed to include such other of those buildings or
structures as Landlord shall from time to time designate, and shall initially
include such buildings and structures (and related facilities and parcels on
which the same are located) as Landlord shall have incorporated by reference to
the total rentable area of the Property in Article 1.
(M) "Rent" shall have the meaning specified therefor in Article 3.
(N) "Systems and Equipment" shall mean any plant, machinery,
transformers, duct work, cable, wires, and other equipment, facilities, and
systems designed to supply light, heat, ventilation, air conditioning and
humidity or any other services or utilities, or comprising or serving as any
component or portion of the electrical, gas, steam, plumbing, sprinkler,
communications, alarm, security, or fire/life/safety systems or equipment, or
any elevators, escalators or other mechanical, electrical, electronic, computer
or other systems or equipment for the Property, except to the extent that any of
the same serves particular tenants exclusively (and "systems and equipment"
without capitalization shall refer to such of the foregoing items serving
particular tenants exclusively).
(O) "Taxes" shall mean all amounts (unless required by Landlord to be
paid under Article 14) for federal, state, county, or local governmental,
special district, improvement district, municipal or other political subdivision
taxes, fees, levies, assessments, charges or other impositions of every kind and
nature in connection with the ownership, leasing and operation of the Property,
whether foreseen or unforeseen, general, special, ordinary or extraordinary
(including real estate and ad valorem taxes, general and special assessments
(provided, if special assessments are payable in installments, Landlord shall
include in Taxes the minimum amount payable each year, with any required
interest thereon), transit taxes, water and sewer rents, license and business
license fees, use or occupancy taxes, taxes based upon the receipt of rent
including gross receipts or sales taxes applicable to the receipt of rent or
service or value added taxes, personal property taxes, taxes on fees paid by
Landlord for property management services, and taxes or charges for fire
protection, streets, sidewalks, road maintenance, refuse or other services). If
the method of taxation of real estate prevailing at the time of execution hereof
shall be, or has been, altered so as to cause the whole or any part of the Taxes
now, hereafter or heretofore levied, assessed or imposed on real estate to be
levied, assessed or imposed on Landlord, wholly or partially, as a capital stock
levy or otherwise, or on or measured by the rents, income or gross receipts
received therefrom, then such new or altered taxes attributable to the Property
shall be included within the term "Taxes," except that the same shall not
include any portion of such tax attributable to other income of Landlord not
relating to the Property. Tenant shall pay Tenant's Share of increased Taxes
whether Taxes are increased as a result of increases in the assessment or
valuation of the Property (whether based on a sale, change in ownership or
refinancing of the Property or otherwise), increases in tax rates, reduction or
elimination of any rollbacks or other deductions available under current law,
scheduled reductions of any tax abatement, as a result of the elimination,
invalidity or withdrawal of any tax abatement, or for any other cause
whatsoever. Notwithstanding the foregoing, there shall be excluded from Taxes
all excess profits taxes, franchise taxes, gift taxes, capital stock taxes,
inheritance and succession taxes, estate taxes, federal and state income taxes,
and other taxes to the extent applicable to Landlord's general or net income (as
opposed to rents, receipts or income attributable to operations at the
Property).
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(P) "Tenant" shall be applicable to one or more Persons as the case may
be, the singular shall include the plural, and if there be more than one Tenant,
the obligations thereof shall be joint and several. When used in the lower case,
"tenant" shall mean any other tenant, subtenant or occupant of the Property.
(Q) "Tenant's Share" of Taxes and Expenses shall be the percentage set
forth in Article 1, but if the rentable area of the Premises changes due to the
addition or subtraction of space under this Lease or by amendment, Tenant's
Share shall thereupon become the rentable area of the Premises divided by the
rentable area of the Property, excluding any parking facilities, subject at all
times to adjustment under Article 3. Tenant acknowledges that the "rentable area
of the Premises" under this Lease includes the so-called "usable area," without
deduction for columns or projections, multiplied by a load or conversion factor
pursuant to BOMA/ANSI standard as of June 7, 1996, to reflect a share of certain
areas, which may include lobbies, corridors, mechanical, utility, janitorial,
boiler and service rooms and closets, restrooms, and other public, common and
service areas. Except as provided expressly to the contrary herein, the
"rentable area of the Property" shall include all rentable area of all space
leased or available for lease at the Property, which Landlord may reasonably
re-determine from time to time, to reflect remeasurements, re-configurations,
additions or modifications to the Property; provided, however, that Tenant's
Share shall not increase beyond the percentage set forth in Article 1 except due
to the addition of space to the Premises as set forth above. If the Property, or
any development or complex of which it is a part, shall contain non-office uses
during any period, Landlord may determine, in accordance with sound accounting
and management practices, Tenant's Share of Taxes and Expenses for only the
office portion of the Property or of such development or complex; in such event,
Tenant's Share shall be based on the ratio of the rentable area of the Premises
to the rentable area of such office portion for such period.
R. "Utility Costs" shall include costs for electricity, power, gas,
steam, oil or other fuel, water, sewer and other such services for the Property,
including sales or other taxes thereon.
ARTICLE 31: OFFER
The submission and negotiation of this Lease shall not be deemed an
offer to enter the same by Landlord (nor an option or reservation for the
Premises), but the solicitation of such an offer by Tenant. Tenant agrees that
its execution of this Lease constitutes a firm offer to enter the same which may
not be withdrawn for a period of five (5) business days after delivery to
Landlord. During such period and in reliance on the foregoing, Landlord may, at
Landlord's option, deposit any Security Deposit and Rent, proceed with any
plans, specifications, alterations or improvements, and permit Tenant to enter
the Premises, but such acts shall not be deemed an acceptance of Tenant's offer
to enter this Lease, and such acceptance shall be evidenced only by Landlord
signing and delivering this Lease to Tenant.
ARTICLE 32: MISCELLANEOUS
A. Captions and Interpretation. The captions of the Articles and
Paragraphs of this Lease are for convenience of reference only and shall not be
considered or referred to in resolving questions of interpretation. Tenant
acknowledges that it has read this Lease and that it has had the opportunity to
confer with counsel in negotiating this Lease; accordingly, this Lease shall be
construed neither for nor against Landlord or Tenant, but shall be given a fair
and reasonable interpretation in accordance with the meaning of its terms. The
neuter shall include the masculine and feminine, and the singular shall include
the plural. The term "including" shall be interpreted to mean "including, but
not limited to."
B. Survival of Provisions. All obligations (including indemnity, Rent
and other payment obligations) or rights of either party arising during or
attributable to the period prior to expiration or earlier termination of this
Lease shall survive such expiration or earlier termination.
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C. Severability. If any term or provision of this Lease or portion
thereof shall be found invalid, void, illegal, or unenforceable generally, or
with respect to any particular party, by a court of competent jurisdiction, it
shall not affect, impair or invalidate any other terms or provisions or the
remaining portion thereof, or its or their enforceability with respect to any
other party.
D. Intentionally Omitted.
E. Memorandum of Lease. Either party or any Lender shall have the right
to record a memorandum of lease with respect to this Lease. The party desiring
such recordation shall (i) prepare a memorandum of lease (in a form which shall
be reasonably acceptable to the other party) and furnish it to the other party
for execution, and (ii) record the memorandum of lease at its sole expense and
furnish the other party with a date-stamped copy of such recorded memorandum. If
requested by Landlord, Tenant shall execute and deposit with Landlord a
Discharge of Lease (in a form which shall be reasonably acceptable to Tenant) to
be held by Landlord in escrow until the Lease has been terminated or has expired
in accordance with its terms. Upon such termination or expiration, Landlord
shall have the right, at its expense, to record such Discharge of Lease.
F. Light, Air and Other Interests. This Lease does not grant any legal
rights to "light and air" outside the Premises nor any particular view visible
from the Premises, nor any easements, licenses or other interests unless
expressly contained in this Lease.
G. Authority. If Tenant is any form of corporation, partnership,
limited liability company or partnership, association or other organization,
Tenant and all Persons signing for Tenant below hereby represent that this Lease
has been fully authorized and no further approvals are required, and Tenant is
duly organized, in good standing and legally qualified to do business in the
Premises (and has any required certificates, licenses, permits and other such
items).
H. Partnership Tenant. If Tenant is a partnership, all current and new
general partners shall be jointly and severally liable for all obligations of
Tenant hereunder and as this Lease may hereafter be modified, whether such
obligations accrue before or after admission of future partners or after any
partners die or leave the partnership. Tenant shall cause each new partner to
sign and deliver to Landlord written confirmation of such liability, in form and
content satisfactory to Landlord, but failure to do so shall not avoid such
liability.
I. Successors and Assigns; Transfer of Property and Security Deposit.
Each of the terms and provisions of this Lease shall be binding upon and inure
to the benefit of the parties' respective heirs, executors, administrators,
guardians, custodians, successors and assigns, subject to Article 13 respecting
Transfers and Article 18 respecting rights of Lenders. Subject to Article 18, if
Landlord shall convey or transfer the Property or any portion thereof in which
the Premises are contained to another party, such party shall thereupon be and
become landlord hereunder, shall be deemed to have fully assumed all of
Landlord's obligations under this Lease accruing during such party's ownership,
including the return of any Security Deposit, and Landlord shall be free of all
such obligations accruing from and after the date of conveyance or transfer.
J. Limitation of Landlord's Liability. Tenant agrees to look solely to
Landlord's interest in the Property for the enforcement of any judgment, award,
order or other remedy under or in connection with this Lease or any related
agreement, instrument or document or for any other matter whatsoever relating
thereto or to the Property or Premises. Under no circumstances shall any present
or future, direct or indirect, principals or investors, general or limited
partners, officers, directors, shareholders, trustees, beneficiaries,
participants, advisors, managers, employees, agents or affiliates of Landlord,
or of any of the other foregoing parties, or any of their heirs, successors or
assigns have any liability for any of the foregoing matters. In no event shall
either party be liable to the other party hereunder for any consequential
damages.
K. Confidentiality. Tenant shall keep the content and all copies of
this Lease, related documents or amendments now or hereafter entered, and all
proposals, materials, information and matters relating thereto, including the
results of any review of Landlord's records under Article 3, strictly
confidential, and shall not disclose,
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disseminate or distribute any of the same, or permit the same to occur, except
on an "as needed" basis to the extent reasonably required for proper business
purposes by Tenant's employees, attorneys, insurers, auditors, lenders, brokers
and Transferees (and Tenant shall obligate any such parties to whom disclosure
is permitted to honor the confidentiality provisions hereof), and except as may
be required by Law or court proceedings.
Landlord shall keep the content and all copies of any financial
statements or other financial information given to Landlord by Tenant strictly
confidential, and shall not disclose, disseminate or distribute any of the same,
or permit the same to occur, except on an "as needed" basis to the extent
reasonably required for proper business purposes by Landlord's employees,
attorneys, insurers, auditors, lenders, brokers and transferees (and Landlord
shall obligate any such parties to whom disclosure is permitted to honor the
confidentiality provisions hereof), and except as may be required by Law or
court proceedings.
ARTICLE 33: ENTIRE AGREEMENT
This Lease, together with the Exhibits and other documents listed in
Article 1 (WHICH ARE HEREBY COLLECTIVELY INCORPORATED HEREIN AND MADE A PART
HEREOF AS THOUGH FULLY SET FORTH), contains all the terms and provisions between
Landlord and Tenant relating to the matters set forth herein and no prior or
contemporaneous agreement or understanding pertaining to the same shall be of
any force or effect, except for any such contemporaneous agreement specifically
referring to and modifying this Lease and signed by both parties. Without
limitation as to the generality of the foregoing, Tenant hereby acknowledges and
agrees that Landlord's leasing agents and field personnel are only authorized to
show the Premises and negotiate terms and conditions for leases subject to
Landlord's final approval, and are not authorized to make any agreements,
representations, understandings or obligations binding upon Landlord respecting
the condition of the Premises or Property, suitability of the same for Tenant's
business, the current or future amount of Taxes or Expenses or any component
thereof, the amount of rent or other terms applicable under other leases at the
Property, whether Landlord is furnishing the same utilities or services to other
tenants at all, on the same level or on the same basis, or any other matter, and
no such agreements, representations, understandings or obligations not expressly
contained herein or in such contemporaneous agreement shall be of any force or
effect. TENANT HAS RELIED ON TENANT'S INSPECTIONS AND DUE DILIGENCE IN ENTERING
THIS LEASE, AND NOT ON ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
CONCERNING THE HABITABILITY, CONDITION OR SUITABILITY OF THE PREMISES OR
PROPERTY FOR ANY PARTICULAR PURPOSE OR ANY OTHER MATTER NOT EXPRESSLY CONTAINED
HEREIN. This Lease, including the Exhibits referred to above, may not be
modified, except in writing signed by both parties.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
first set forth above.
LANDLORD: CMD PROPERTIES, INC., an Illinois corporation,
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxx, Vice-President
TENANT: OpenSite Technologies, Inc. [SEAL]
A Delaware corporation
By: /s/ Xxxxx X. Xxxx
Name:
Its:
CERTIFICATE
I, _________________________, as ______________________ of the
aforesaid
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Tenant, hereby certify that the individual(s) executing the foregoing Lease on
behalf of Tenant was/were duly authorized to act in his/their capacities as set
forth above, and his/their action(s) are the action of Tenant.
(Corporate Seal) __________________________________________
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EXHIBIT A: PREMISES
(Floor Plate Showing Premises Cross-Hatched)
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EXHIBIT B: RULES
(1) Access to Property. Before or after Building Hours, or such other
hours as Landlord shall determine from time to time, access to and within the
Property and/or to the passageways, lobbies, entrances, exits, loading areas,
corridors, elevators or stairways and other areas in the Property may be
restricted and access gained by use of a key to the outside doors of the
Property, or pursuant to such reasonable security procedures Landlord may from
time to time impose. Landlord shall in all cases retain the right to control and
prevent access to such areas by Persons engaged in activities which are illegal
or violate these Rules, or whose presence in the judgment of Landlord shall be
prejudicial to the safety, character, reputation and interests of the Property
and its tenants (and Landlord shall have no liability in damages for such
actions taken in good faith). No Tenant and no employee or invitee of Tenant
shall enter areas reserved for the exclusive use of Landlord, its employees or
invitees or other Persons. Tenant shall keep doors to corridors and lobbies
closed except when persons are entering or leaving.
(2) Signs. Landlord, at its expense, shall cause building standard
suite identification signage to be placed on or adjacent to the main entrance
door of the Premises, and shall provide directory strips for any Property
directory consistent with Landlord's standard practices at the Property. Tenant
shall not paint, display, inscribe, maintain or affix any sign, placard,
picture, advertisement, name, notice, lettering or direction on any part of the
outside or inside of the Property, or on any part of the inside of the Premises
which can be seen from the outside of the Premises, without the prior consent of
Landlord, and then only such name or names or matter and in such color, size,
style, character and material, and with professional designers, fabricators and
installers as may be first approved or designated by Landlord in writing.
Landlord shall prescribe the suite number and identification sign for the
Premises (which shall be prepared and installed by Landlord at its expense).
Landlord reserves the right, without notice to Tenant, to remove at Tenant's
expense all matter not so installed or approved.
(3) Window and Door Treatments Tenant shall not place anything or allow
anything to be placed in the Premises near the glass of any door, partition,
wall or window which may be unsightly from outside the Premises, and Tenant
shall not place or permit to be placed any article of any kind on any window
ledge or on the exterior walls. Blinds, shades, awnings or other forms of inside
or outside window devices shall not be placed in or about the outside windows or
doors in the Premises except to the extent, if any, that the design, character,
shape, color, material and make thereof is first approved or designated by
Landlord. Tenant shall not install or remove any solar tint film from the
windows.
(4) Balconies and Patios. If the Premises has access to a patio or
balcony, Tenant shall have a license to enter such area, subject to the
following provisions: (i) Tenant's access to such area shall be limited to the
area immediately adjoining the Premises (and bounded by an extension of the
demising lines of the Premises), and Landlord reserves the right to install
materials separating Tenant's area from the area adjoining other tenants'
premises, (ii) Tenant shall use such area only in a manner that is quiet and
compatible with the nature of the Building as an office building, which only
involves the use of benches or outdoor furniture approved by Landlord in
writing, and which will not bother, disturb or annoy any other occupants of the
Property, and (iii) Tenant's use thereof shall be subject to the other
provisions of this Lease, including the other Rules.
(5) Lighting and General Appearance of Premises. Landlord reserves the
right to designate and/or approve in writing all internal lighting that may be
visible from the public, common or exterior areas. The design, arrangement,
style, color, character, quality and general appearance of the portion of the
Premises visible from public, common and exterior areas, and contents of such
portion of the Premises, including furniture, fixtures, signs, art work, wall
coverings, carpet and decorations, and all changes, additions and replacements
thereto shall at all times have a neat, professional, attractive, first class
office appearance.
(6) Property Tradename, Likeness, Trademarks. Tenant shall not in any
manner use the name of the Property for any purpose other than as Tenant's
business address, or use any tradenames or trademarks of Landlord, any other
tenant, or their affiliates, or any picture or likeness of the Property, for any
purpose, in any letterheads, circulars, notices, advertisements or other
material whatsoever.
(7) Deliveries and Removals. Furniture, freight and other large or
heavy articles, and all other deliveries may be brought into the Property only
at times and in the manner designated by Landlord, and always at the Tenant's
sole responsibility and risk. Landlord may inspect items brought into the
Property or Premises with respect to weight or dangerous nature or compliance
with this Lease or Laws. Landlord may (but shall have no obligation to) require
that all furniture, equipment, cartons and other articles removed from the
Premises or the Property be listed and a removal permit therefor first be
obtained from Landlord. Tenant shall not take or permit to be taken in or out of
other entrances or elevators of the Property any item normally taken, or which
Landlord otherwise reasonably requires to be taken, in or out through service
doors or on freight elevators. Landlord may impose reasonable charges (not to
exceed Landlord's actual costs) and requirements for the use of loading areas,
and reserves the right to alter schedules upon reasonable notice to Tenant. Any
hand-carts used at the Property shall have rubber wheels and sideguards, and no
other material-handling equipment may be used without Landlord's prior written
approval.
40
(8) Outside Vendors. Tenant shall not obtain for use upon the Premises
janitor or other services, except from Persons designated or approved by
Landlord. Any Person engaged by Tenant to provide any other services shall be
subject to scheduling and direction by the manager or security personnel of the
Property. Vendors must use freight elevators and service entrances.
(9) Overloading Floors; Vaults. Tenant shall not overload any floor or
part thereof in the Premises or Property, including any public corridors or
elevators therein, by bringing in or removing any large or heavy articles, and
Landlord may prohibit, or direct and control the location and size of, safes and
all other heavy articles and require at Tenant's expense supplementary supports
of such material and dimensions as Landlord may deem necessary to properly
distribute the weight.
(10) Locks and Keys. Tenant shall use such standard key system
designated by Landlord on all keyed doors to and within the Premises, excluding
any permitted vaults or safes (but Landlord's designation shall not be deemed a
representation of adequacy to prevent unlawful entry or criminal acts, and
Tenant shall maintain such additional insurance as Tenant deems advisable for
such events). Tenant shall not attach or permit to be attached additional locks
or similar devices to any door or window, change existing locks or the mechanism
thereof, or make or permit to be made any keys for any door other than those
provided by Landlord. Landlord shall provide to Tenant, at no charge to Tenant,
all keys needed in connection with Tenant's initial occupancy of the Premises,
up to a maximum of 75 keys per lock. If more than 75 keys for one lock are
desired, Landlord will provide them upon payment of Landlord's charges. In the
event of loss of any keys furnished by Landlord, Tenant shall pay Landlord's
reasonable charges therefor. The term "key" shall include mechanical, electronic
or other keys, cards and passes.
(11) Safety And Security Devices, Services And Programs. Safety and
security devices, services and programs provided by Landlord, if any, while
intended to deter crime and ensure safety, may not in given instances prevent
theft or other criminal acts, or ensure safety of persons or property. The risk
that any safety or security device, service or program may not be effective, or
may malfunction, or be circumvented by a criminal, is assumed by Tenant with
respect to Tenant's property and interests, and Tenant shall obtain insurance
coverage to the extent Tenant desires protection against such criminal acts and
other losses, as further described in Article 10. Tenant agrees to cooperate in
any reasonable safety or security program developed by Landlord or required by
Law.
(12) Utility Closets and Connections. Landlord reserves the right to
control access to and use of, and monitor and supervise any work in or
affecting, the "wire" or telephone, electrical, plumbing or other utility
closets, the Systems and Equipment, and any changes, connections, new
installations, and wiring work relating thereto (or Landlord may engage or
designate an independent contractor to provide such services). Tenant shall
obtain Landlord's prior written consent for any such access, use and work in
each instance, and shall comply with such requirements as Landlord may impose,
and the other provisions of Article 6 respecting electric installations and
connections, Article 28 respecting telephone Lines and connections, and Article
9 respecting Work in general. Tenant shall have no right to use any broom
closets, storage closets, janitorial closets, or other such closets, rooms and
areas whatsoever. Tenant shall not install in or for the Premises any equipment
which requires more electric current than Landlord is required to provide under
this Lease, without Landlord's prior written approval, and Tenant shall
ascertain from Landlord the maximum amount of load or demand for or use of
electrical current which can safely be permitted in and for the Premises, taking
into account the capacity of electric wiring in the Property and the Premises
and the needs of tenants of the Property, and shall not in any event connect a
greater load than such safe capacity.
(13) Plumbing Equipment. The toilet rooms, urinals, wash bowls, drains,
sewers and other plumbing fixtures, equipment and lines shall not be misused or
used for any purpose other than that for which they were constructed and no
foreign substance of any kind whatsoever shall be thrown therein.
(14) Trash. All garbage, refuse, trash and other waste shall be kept in
the kind of container, placed in the areas, and prepared for collection in the
manner and at the times and places specified by Landlord, subject to Article 29
respecting Hazardous Materials. Landlord reserves the right to require that
Tenant participate in any recycling program designated by Landlord.
(15) Alcohol, Drugs, Food and Smoking. Landlord reserves the right to
exclude or expel from the Property any person who, in the judgment of Landlord,
is intoxicated or under the influence of liquor or drugs, or who shall in any
manner do any act in violation of any of these Rules. Tenant shall not at any
time manufacture, sell, use or give away, any spirituous, fermented,
intoxicating or alcoholic liquors on the Premises, nor permit any of the same to
occur (except in connection with occasional client or business events, including
cocktail parties, conducted in the Premises, provided: (i) the same shall not
violate any Laws or other provisions of these Rules or the Lease, and shall in
no event disturb or bother any other occupant of the Property, (ii) the same
shall be in the ordinary course of Tenant's business (e.g. excluding a New
Year's Eve party), (iii) Tenant shall have for each such event "host liquor
liability insurance" if no such items are sold, and full liquor liability
insurance if any such items are sold, in each case in the amount of Tenant's CGL
policy required under this Lease and naming the same Additional Insureds
required with respect to such CGL policy under this Lease, and (iv) if Landlord
so requests in writing, Tenant shall thereafter provide reasonable advance
notice of such events to Landlord, which notices shall include a certificate of
insurance evidencing the coverage required herein). Tenant shall not at any time
xxxx, sell, purchase or give away, food in any form by or to any of Tenant's
agents or employees or any other parties on the Premises, nor permit any of the
same to occur (other than in microwave ovens and coffee makers properly
maintained in good and safe working order and repair in lunch rooms or kitchens
for employees as may be permitted or installed by Landlord, and which do not
violate any Laws or bother or annoy any other tenant). Tenant and its employees
shall not smoke tobacco on any interior part of the Property except those areas,
if any, that are designated or approved as smoking areas by Landlord.
41
(16) Use of Common Areas; No Soliciting. Tenant shall not use the
common areas, including areas adjacent to the Premises, for any purpose other
than ingress and egress, and any such use thereof shall be subject to the other
provisions of this Lease, including these Rules. Without limiting the generality
of the foregoing, Tenant shall not allow anything to remain in any passageway,
sidewalk, court, corridor, stairway, entrance, exit, elevator, parking or
shipping area, or other area outside the Premises. Tenant shall not use the
common areas to canvass, solicit business or information from, or distribute any
article or material to, other tenants or invitees of the Property. Tenant shall
not make any room-to-room canvass to solicit business or information or to
distribute any article or material to or from other tenants of the Property and
shall not exhibit, sell or offer to sell, use, rent or exchange any products or
services in or from the Premise unless ordinarily embraced within the Tenant's
use of the Premises expressly permitted in the Lease.
(17) Energy and Utility Conservation. Tenant shall not waste
electricity, water, heat or air conditioning or other utilities or services, and
agrees to cooperate fully with Landlord to assure the most effective and energy
efficient operation of the Property and shall not allow the adjustment (except
by Landlord's authorized Property personnel) of any controls. Tenant shall not
obstruct, alter or impair the efficient operation of the Systems and Equipment,
and shall not place any item so as to interfere with air flow. Tenant shall keep
corridor doors closed and shall not open any windows, except that if the air
circulation shall not be in operation, windows which are openable may be opened
with Landlord's consent. If reasonably requested by Landlord (and as a condition
to claiming any deficiency in the air-conditioning or ventilation services
provided by Landlord), Tenant shall close any blinds or drapes in the Premises
to prevent or minimize direct sunlight.
(18) Landlord Access to Systems and Equipment. Tenant shall not place
partitions, furniture or other obstructions in the Premises which may prevent or
impair Landlord's access to the Systems and Equipment for the Property or the
systems and equipment for the Premises.
(19) Unattended Premises. Before leaving the Premises unattended,
Tenant shall close and securely lock all doors or other means of entry to the
Premises and shut off all lights and water faucets in the Premises (except heat
to the extent necessary to prevent the freezing or bursting of pipes).
(20) Going-Out-Of-Business Sales and Auctions. Tenant shall not use, or
permit any other party to use, the Premises for any distress, fire, bankruptcy,
close-out, "lost our lease" or going-out-of-business sale or auction. Tenant
shall not display any signs advertising the foregoing anywhere in or about the
Premises. This prohibition shall also apply to Tenant's creditors.
(21) Labor Harmony. Tenant shall not use (and upon notice from Landlord
shall cease using) contractors, services, workmen, labor, materials or
equipment, or labor and employment practices that, in Landlord's good faith
judgment, may cause strikes, picketing or boycotts or disturb labor harmony with
the workforce or trades engaged in performing other work, labor or services in
or about the Property.
(22) Prohibited Activities. Tenant shall not: (i) use strobe or
flashing lights in or on the Premises, (ii) install or operate any internal
combustion engine, boiler, machinery, refrigerating (except for a refrigerator
in connection with a kitchen to which Landlord has consented within the
Premises), heating or air conditioning equipment in or about the Premises, (iii)
use the Premises for housing, lodging or sleeping purposes or for the washing of
clothes, (iv) place any radio or television antennae other than inside of the
Premises, (v) operate or permit to be operated any musical or sound producing
instrument or device which may be heard outside the Premises, (vi) use any
source of power other than electricity, (vii) operate any electrical or other
device from which may emanate electrical, electromagnetic, x-ray, magnetic
resonance, energy, microwave, radiation or other waves or fields which may
interfere with or impair radio, television, microwave, or other broadcasting or
reception from or in the Property or elsewhere, or impair or interfere with
computers, faxes or telecommunication lines or equipment at the Property or
elsewhere, or create a health hazard, (viii) bring or permit any bicycle or
other vehicle, or dog (except in the company of a blind person or except where
specifically permitted) or other animal or bird in the Property, (ix) make or
permit objectionable noise, vibration or odor to emanate from the Premises, (x)
do anything in or about the Premises or Property that is illegal, immoral,
obscene, pornographic, or anything that may in Landlord's good faith opinion
create or maintain a nuisance, cause physical damage to the Premises or
Property, interfere with the normal operation of the Systems and Equipment,
impair the appearance, character or reputation of the Premises or Property,
create waste to the Premises or Property, cause demonstrations, protests,
loitering, bomb threats or other events that may require evacuation of the
Building, (xi) advertise or engage in any activities which violate the spirit or
letter of any licensing requirements of any professional or business
organization, (xii) throw or permit to be thrown or dropped any article from any
window or other opening in the Property, (xiii) use the Premises for any
purpose, or permit upon the Premises or Property anything, that may be dangerous
to persons or property (including firearms or other weapons (whether or not
licensed or used by security guards) or any explosive or combustible articles or
materials), (xiv) place vending or game machines in the Premises, except vending
machines for employees, (xv) adversely affect the indoor air quality of the
Premises or Property, or (xvi) do or permit anything to be done upon the
Premises or Property in any way tending to disturb, bother, annoy or interfere
with Landlord or any other tenant at the Property or the tenants of neighboring
property, or otherwise disrupt orderly, quiet use and occupancy of the Property.
42
(23) Transportation Management. Tenant shall comply with all present or
future programs intended to manage parking, transportation or traffic in and
around the Property, and in connection therewith, Tenant shall take responsible
action for the transportation planning and management of all employees located
at the Premises by working directly with Landlord, any governmental
transportation management organization or any other transportation-related
committees or entities. Such programs may include, without limitation: (i)
restrictions on the number of peak-hour vehicle trips generated by Tenant; (ii)
increased vehicle occupancy; (iii) implementation of an in-house ridesharing
program and an employee transportation coordinator; (iv) working with employees
and any Property or area-wide ridesharing program manager; (v) instituting
employer-sponsored incentives (financial or in-kind) to encourage employees to
rideshare; and (vi) utilizing flexible work shifts for employees.
(24) Parking. If the Property now or hereafter contains, or Landlord
has obtained the right to use for the Property, a parking garage, structure,
facility or area ("Parking Facility"), the following Rules shall apply therein:
(i) Cars must be parked entirely within the stall lines, and only small
or other qualifying cars may be parked in areas reserved for such cars; all
directional signs, arrows and speed limits must be observed; spaces reserved for
disabled persons must be used only by vehicles properly designated; washing,
waxing, cleaning or servicing of any vehicle is prohibited; every xxxxxx is
required to park and lock his own car, except to the extent that Landlord adopts
a valet parking system; in areas requiring an attendant or security personnel,
hours shall be reasonably established by Landlord or its parking operator from
time to time; parking is prohibited in areas: (a) not striped or designated for
parking, (b) aisles, (c) where "no parking" signs are posted, (d) on ramps, and
(e) loading areas and other specially designated areas. Delivery trucks and
vehicles shall use only those areas designated therefor.
(ii) Parking stickers, key cards or any other devices or forms of
identification or entry shall remain the property of Landlord. Such devices must
be displayed as requested and may not be mutilated in any manner. Devices are
not transferable and any device in the possession of an unauthorized holder will
be void. Loss or theft of such devices must be reported to Landlord or any
garage manager immediately. Any parking devices reported lost or stolen which
are found on any unauthorized car will be confiscated and the illegal holder
will be subject to prosecution. Lost or stolen devices found by Tenant or its
employees must be reported to Landlord or the office of the garage immediately.
(iii) Except as may be expressly provided to the contrary in any other
Exhibit to this Lease: (a) parking for Tenant and its employees and visitors
shall be in areas designated by Landlord from time to time, on a "first come,
first served," unassigned, unreserved basis, in common with Landlord and other
tenants at the Property, and their employees and visitors, and other Persons to
whom Landlord shall grant the right or who shall otherwise have the right to use
the same, and (b) in no event shall Tenant and Tenant's employees and visitors
use more spaces than the number derived by applying Tenant's Share (as defined
in the Lease) to the total number of unassigned spaces in the area or areas
designated by Landlord from time to time to serve the Premises. In addition,
Landlord reserves the right to: (x) adopt additional requirements or procedures
pertaining to parking, including systems with charges favoring carpooling, and
validation systems, (y) assign specific spaces, and reserve spaces for small and
other size cars, disabled persons, and other tenants, customers of tenants or
other parties, and (z) restrict or prohibit full size vans and other large
vehicles.
(iv) Except for any general unassigned, uncovered surface lot spaces
for which charges would be inconsistent with market practices for comparable
properties, or as may be provided in any other Exhibit to this Lease, Landlord
reserves the right to impose such daily or monthly parking charges as Landlord
may establish from time to time. Any such monthly fees shall be paid in advance
prior to the first of each month. Failure to do so will automatically cancel
such parking privileges, and incur a charge at the posted daily parking rate. No
deductions from the monthly rate will be made for days on which the Parking
Facility is not used by Tenant or its designees. In case of any violation of
these rules, Landlord may also refuse to permit the violator to park, and may
remove the vehicle owned or driven by the violator from the Property without
liability whatsoever, at such violator's risk and expense. Landlord reserves the
right to close all or a portion of the Parking Facility in order to make repairs
or perform maintenance services, or to alter, modify, re-stripe or renovate the
same, or if required by casualty, strike, condemnation, act of God, Law or
governmental requirement or guideline, termination or modification of any lease
or other agreement by which Landlord obtained parking rights, or any other
reason beyond Landlord's reasonable control. In the event access is denied for
any reason, any monthly parking charges shall be abated to the extent access is
denied, as Tenant's sole recourse.
(25) Responsibility for Compliance. Tenant shall be responsible for
ensuring compliance with these Rules, as they may be amended, by Tenant's
employees and as applicable, by Tenant's agents, invitees, contractors,
subcontractors, and suppliers. Tenant shall cooperate with any reasonable
program or requests by Landlord to monitor and enforce the Rules, including
providing vehicle numbers and taking appropriate action against such of the
foregoing parties who violate these provisions.
43
CMD 108A (8/98)
EXHIBIT C Minor Work
Landlord Performance
WORK LETTER Allowance
This Work Letter is an Exhibit to the foregoing document (referred to
herein for convenience as the "Lease Document").
I. The Work
Landlord shall arrange for the following items of work (the "Work") to
be performed in the Premises, provided that Tenant is not then in violation of
the Lease Document:
See Schedule 1
If any of the items of Work listed above are shown in a plan, then a
copy of such plan is referred to and/or attached hereto as "Schedule 1."
II. Building-Standard Materials and Other Matters
The Work shall consist of Landlord's current building standard
materials and finishes, unless otherwise expressly specified above. If Landlord
requires further choices or plans to be approved by Tenant respecting the above
Work (e.g. color choices or locations respecting the above items), Tenant shall:
(i) choose from such choices, if any, that Landlord makes available to Tenant as
building standard, and (ii) approve/sign/initial any such further plans as
requested by Landlord. If any such further choices or approvals are required,
Tenant shall not unreasonably withhold or delay such choices or approvals. If
Tenant's representative fails to provide such choices or approvals within five
(5) business days after Landlord requests the same from such representative,
Landlord may make such choices and approvals for Tenant and proceed with the
Work. Landlord reserves the right to substitute comparable or better materials
and items for those specified, so long as they do not materially and adversely
affect the appearance of the Premises. Any personal property, trade fixtures or
equipment, including, but not limited to, modular or other furniture, and items
for communications or computer systems (except for cabling), whether or not
shown on any plan, shall be provided by Tenant, at Tenant's sole cost.
III. Costs, Allowance and Administrative Fee.
(a) Landlord shall provide an allowance of $125,163 ("Allowance")
toward the Cost of the Work. The "Cost of the Work" includes, without
limitation, all costs for or relating to the Work, including, but not limited
to, any plans, drawings, reports, studies, tests, contractors' charges, permits,
sales taxes, and any demolition, preparation or other work required in
connection with the Work, including without limitation, modifications to any
building systems and equipment, either within or outside the Premises required
as a result of the layout, design, or construction of the Work or in order to
obtain building permits for the Work to be performed within the Premises (unless
Landlord requires that the Work be revised to eliminate the necessity for such
additional work), and Landlord's administrative fee ("Administrative Fee") equal
to five percent (5%) of all other amounts included in the Cost of the Work. If
all or any portion of the Allowance shall not be used for the items permitted
hereunder, Tenant shall have the right to use such funds for its costs with
respect to the exterior signs pursuant to Exhibits G and H and for permanent
leasehold improvements to the Premises provided that such improvements are made
during the calendar year 1999. Any portion of the Allowance not so used shall
belong to Landlord.
(b) Tenant shall bear any portion of the Cost of the Work exceeding the
Allowance ("Tenant's Cost"). Landlord may reasonably estimate Tenant's Cost, and
reasonably revise any such estimate from time to time. Tenant shall deposit any
such estimated amount of Tenant's Cost (or the increase reflected in any such
revised estimate) with Landlord within five (5) business days after Landlord so
requests. Landlord shall have no obligation to proceed with the Work (or proceed
to seek permits or proceed with any demolition or other preliminary Work) until
Landlord shall have received such deposit from Tenant. If the Work involves
progress payments, Landlord
44
shall apply the amounts deposited by Tenant first. If, after final completion
and payment for the Cost of the Work, the actual amount of Tenant's Cost exceeds
any amount paid by Tenant as an estimate of Tenant's Cost, Tenant shall pay the
difference to Landlord within five (5) business days after Landlord so requests.
If any such estimated amount exceeds the actual amount of Tenant's Cost,
Landlord shall promptly provide a credit or refund of the difference. Tenant's
Cost shall be deemed "Rent" under the Lease Document (and all remedies for the
non-payment of Rent shall be available to Landlord therefor).
(c) Landlord shall pay for the full cost of the demising wall defined
as the wall separating the Premises from the common area corridor, which cost
shall not be deducted from the Allowance.
IV. Miscellaneous.
(a) If this Work Letter is attached as an Exhibit to an amendment to an
existing lease ("Original Lease"), whether such amendment adds or relocates
space or makes any other modifications, the term "Lease Document" herein shall
refer to such amendment, or the Original Lease as amended, as the context
implies. By way of example, in such case, references to the "Premises" herein
shall refer to such additional or relocated space under such amendment, unless
expressly provided to the contrary herein. Capitalized terms not otherwise
defined herein shall have the meanings ascribed thereto in the Lease Document.
(b) This Exhibit is intended to supplement and be subject to the
provisions of the Lease Document, including, without limitation, those
provisions requiring that any modification or amendment be in writing and signed
by authorized representatives of both parties. This Exhibit shall not apply to
any additional space added to the Premises at any time, whether by any options
or rights under the Lease Document or otherwise, or to any portion of the
Premises in the event of a renewal or extension of the Term of the Lease
Document, whether by any options or rights under the Lease Document or
otherwise, unless expressly so provided in the Lease Document or any amendment
or supplement thereto.
45
SCHEDULE 1
PLAN
Prepared By: Xxxxxxx X Xxxxxxx Architects, P.A.
Dated: Construction Drawings dated June 3, 1999
Revised: n/a
Sheets: Cover page, X-0, X-0, X-0, X-0
46
EXHIBIT D
JANITORIAL SPECIFICATIONS
PAGE 1 OF 2
TENANT SPACES
Daily
Empty all trash containers and remove to dumpster in parking lot.
Replace trash container liners if soiled or torn.
Vacuum carpet in usage/traffic areas accessible to upright vacuum.
Spot clean carpets.
Mop wood floors using treated dust mops.
Spot clean spills and marks from resilient floors.
Dust all office furniture where accessible.
Spot clean partition glass.
Clean drinking fountains using an approved cleaner.
Turn off lights as instructed by property manager.
Lock all doors as instructed by property manager.
Report any maintenance/repair problems to property manager.
Weekly
Vacuum all carpet areas including edges.
Damp mop all resilient floors.
Dust baseboards and other low dusting.
Dust vertical surfaces.
Dust door louvers and any ventilation louvers within hand reach.
Dust window xxxxx and flat surfaces within hand reach.
Spot clean doors and door frames.
Monthly
Do high dusting (tops of door frames, partitions, picture frames, etc.)
Dust window blinds.
Spot clean wall switch plates.
Quarterly
Strip resilient floors and apply new finish, remove wax accumulation in
corners and around edges.
Dust/vacuum wood panels, air supply/return vents and ceiling tiles
adjacent to air vents.
47
EXHIBIT D
JANITORIAL SPECIFICATIONS
PAGE 2 OF 2
RESTROOMS
Daily
Clean as required all walls, partitions, ledges, xxxxx, counters and
doors.
Damp wipe partitions adjacent to urinals.
Empty waste containers and remove to dumpster in parking lot.
Clean mirrors.
Wet mop floors using a disinfecting cleaner.
Clean and sanitize toilets, urinals and sanitary napkin receptacles.
Refill all dispensers to include hand towels, toilet tissue, hand soap,
and sanitary napkins.
Dust ledges and partition tops.
Turn off lights.
Report any maintenance/repair problems to property manager.
Monthly
Wash toilet partitions and ceramic tile walls with non-streaking
cleaner.
Machine scrub floors.
Do any dusting as may be needed.
ELEVATOR LOBBIES AND BUILDING HALLWAYS
Daily
Mop floors using treated dust mops/damp mop spillage on resilient
floors.
Spray buff as needed to maintain excellent appearance.
Vacuum carpets.
Spot clean carpets.
Dust any ledges or surfaces within hand reach.
Empty and wipe cigarette urns, clean sand by sifting.
Spot clean walls and doors.
Clean and polish drinking fountains.
48
EXHIBIT E CMD 116B (8/98)
Market Rates
EXTENSION OPTION
1. Option to Extend. Subject to the other provisions hereof, Landlord
hereby grants Tenant one option ("Extension Option") to extend the current Term
of the Lease for an additional period of five (5) consecutive years from the
expiration of the prior period ("Extension Period"), on the same terms and
conditions then in effect under this Lease immediately prior to the Extension
Period, except as modified by the "Market Rates, Terms and Conditions" further
described below, and except that Tenant shall have no further option to extend.
Tenant may exercise the Extension Option only by giving Landlord written notice
thereof ("Tenant's Exercise Notice") no earlier than fifteen (15), and no later
than twelve (12), full calendar months prior to commencement of the subject
Extension Period. Tenant's Exercise Notice hereunder shall be unconditional and
irrevocable (except as expressly provided herein).
2. Financial Information. Tenant's Exercise Notice shall include
detailed financial information for Tenant's business (including balance sheets,
income/expense statements, federal and state tax returns, bank balances, bank
and credit references for the immediately preceding three (3) years and through
the last full calendar quarter of the current year, certified to be complete and
accurate by Tenant's chief financial officer). If Landlord determines that
Tenant's financial condition is not at least as good as Tenant's financial
condition as of the date of this Lease, based on the financial information
requested and provided, and such additional credit information as Landlord may
obtain independently, Landlord may elect to require reasonable additional
security or other provisions as part of the Extension Documentation, or to
reject Tenant's Exercise Notice by written notice to Tenant.
3. Market Rates, Terms and Conditions. Within thirty (30) days after
receiving Tenant's notice and financial information, Landlord shall provide
Tenant with notice ("Landlord's Notice") of the Market Rates, Terms and
Conditions. The term "Market Rates, Terms and Conditions" herein shall mean
Landlord's good faith determination of the Base Rent and other terms and
conditions that a comparable, ready and willing landlord, and a comparable,
ready and willing tenant, would mutually accept on a negotiated arm's length
basis for a lease extension for the Premises for the subject Extension Period,
taking into account when the Extension Period will commence and expire, the
location, quality and age of the Building, the location, size, configuration and
use of the Premises, the method of determining rentable area, that the Premises
constitutes non-sublease, unencumbered, non-equity space, and any other relevant
term or provision in making such determination, subject to the following: (a)
Landlord shall have no obligation to provide leasehold improvements or an
allowance therefor, except that Landlord may at Landlord's option provide new
building standard carpet and paint or an allowance therefor to replace such
existing items when they become reasonably necessary following commencement of
the Extension Period (in which case, the new Base Rent shall be increased to
reflect the amortization thereof with interest at the loan rate then available
to Landlord), (b) Landlord shall have no obligation to provide any other
economic concessions or incentives, except that Landlord may at Landlord's
option provide such items (in which case, the new Base Rent shall be increased
to reflect the amortization thereof with interest at the loan rate then
available to Landlord), and (c) if Landlord pays any brokerage commissions or
other such fees in connection with Tenant's extension herein, the new Base Rent
shall be increased to reflect the amortization thereof with interest at the loan
rate then available to Landlord.
4. Disagreement Concerning Market Rates Terms and Conditions. If the
Market Rates, Terms and Conditions determined by Landlord are not acceptable to
Tenant, then Tenant may, no later than fifteen (15) days after Landlord's
Notice, either: (a) revoke its exercise of the Extension Option by notice
("Tenant Revocation Notice") to Landlord, in which case the Extension Option and
Tenant's exercise thereof shall thereupon be null, void and of no further
effect, or (b) leave Tenant's Exercise Notice irrevocably and unconditionally in
effect and provide notice ("Arbitration Request Notice") of Tenant's desire to
arbitrate in accordance with this Exhibit. If Tenant fails to provide a Tenant
Revocation Notice or Arbitration Request Notice within the time required herein,
then Tenant shall be deemed to have unconditionally and irrevocably exercised
the Extension Option and accepted the Market Rates, Terms and Conditions
contained in Landlord's Notice.
5. Arbitration. If Tenant provides an Arbitration Request Notice within
the time required herein, each party shall within the next fifteen (15) days, at
its own cost and expense, give notice ("Arbitration Appointment Notice") to the
other party appointing a licensed commercial real estate broker with at least
seven (7) years of full-time experience leasing comparable office space in
comparable buildings in the Xxxxxxx Xxxxxx market area to determine
49
the Base Rent component ("Base Rent Component") of the Market Rates, Terms and
Conditions, including any fixed increases in such Base Rent Component, taking
into account the other provisions of this Exhibit, and the other components of
the Market Rates, Terms and Conditions contained in Landlord's Notice (such as
whether such Market Rates, Terms and Conditions include leasehold improvements
or other economic concessions, or a base year or stop level for Taxes or
Expenses). If a party does not appoint such a broker within such fifteen (15)
day period, and so fails for an additional fifteen (15) day period following
further notice from the other party requesting such appointment, and giving
notice of the name of its broker, the single broker appointed shall be the sole
broker and shall reasonably and in good faith determine the Base Rent Component.
If the two brokers are appointed by the parties as stated herein, they shall
meet promptly and attempt to determine the Base Rent Component. If they are
unable to agree on the Base Rent Component within fifteen (15) days after the
second broker has been appointed, they shall elect a third broker meeting the
standards set forth above, and who has not previously acted in any capacity for
either party, within fifteen (15) days thereafter. Each of the parties hereto
shall bear one-half of the cost of appointing the third broker and of paying the
third broker's fee. The third broker, however selected, shall be a person.
Within fifteen (15) days after the selection of the third broker, a majority of
the brokers shall determine the Base Rent Component. If a majority of the
brokers are unable to determine the Base Rent Component within such period, each
broker shall thereupon submit his final determination in writing, the three
determinations shall be added together and the total divided by three, and the
resulting quotient shall be the Base Rent Component, subject to the following
provisions. If the low or high determination are more than ten (10) percent
lower and/or higher than the middle determination, the low determination and/or
the high determination shall be disregarded. If only one determination is
disregarded, the remaining two determinations shall be added together and their
total divided by two, and the resulting quotient shall be the Base Rent
Component. If both the low determination and the high determination are
disregarded as provided herein, the middle determination shall be the Base Rent
Component. If, for any reason, the Base Rent Component has not been resolved by
the commencement of the Extension Period, Tenant shall commence paying Base
Rent, Taxes, Expenses and other sums in accordance with Landlord's Notice on the
commencement of the Extension Period, subject to retroactive and prospective
adjustment after the matter is resolved. An arbitration decision made in
accordance with this Exhibit shall be final and binding on the parties. Tenant
and the brokers shall be required to keep all matters pertaining to the
arbitration strictly confidential and shall be required to sign such
confidentiality agreements as Landlord reasonably requires.
6. General Matters. If this Exhibit is attached to an amendment to an
existing lease, the term "Lease" herein shall refer to such amendment, or the
existing lease as amended, as the context reasonably implies. If Tenant validly
exercises the Extension Option, Tenant shall execute an amendment or such other
documentation as Landlord may require to confirm the extension of the Term,
within fifteen (15) days after Landlord so requests. The Extension Option herein
shall, at Landlord's election, be conditioned on: (a) Tenant having faithfully
complied with each and every term and provision of the Lease Document at all
times, and (b) the Lease Document being in full force and effect, and Tenant not
being in default under the Lease Document, at the time Tenant seeks to exercise
the Extension Option, or at any time thereafter and prior to commencement of the
Extension Period. Tenant's exercise of the Extension Option shall not operate to
cure any default by Tenant of any of the terms or provisions in the Lease
Document, nor to extinguish or impair any rights or remedies of Landlord arising
by virtue of such default. If Tenant shall fail to properly and timely exercise
the Extension Option, then the Extension Option shall thereupon terminate.
STRICT COMPLIANCE AND TIMELINESS IN GIVING TENANT'S NOTICES HEREUNDER IS OF THE
ESSENCE OF THIS PROVISION. The Extension Option is personal to Tenant as named
in this Lease Document and its Tenant Affiliates, except that the assignee under
a complete assignment of the Lease Document shall have the right to exercise
this option. Under no circumstances shall a subtenant under a sublease of the
Premises have any right to exercise the Extension Option. Under no circumstances
shall Rent (i.e. Base Rent, Taxes, Expenses and other such amounts payable by
Tenant) during the Extension Period ever be less than 103.5% of the Rent (i.e.
Base Rent, Taxes, Expenses and other such amounts payable by Tenant) scheduled
to be in effect under the Lease Document immediately prior to the commencement
of the Extension Period, regardless of the Market Rates, Terms and Conditions
(and Landlord's Notice may so notify Tenant if such is the case). The Extension
Option shall be subordinate to, and limited by, any rights of any other parties
to expand into or lease the Premises granted prior to full execution and
delivery of this Lease Document.
50
EXHIBIT F
LETTER OF CREDIT REQUIREMENTS
1. Tenant shall deposit with Landlord, within three (3) days after
Tenant's execution and submission of this Lease, as security for the full and
prompt performance by Tenant of the terms and covenants of this Lease, a clean,
unconditional, stand-by, irrevocable Letter of Credit in favor of Landlord in
the amount of $34,420.38 substantially in the form attached hereto as Exhibit
F-1, issued by any other federally insured national banking association located
in the metropolitan area in which the Property is located with a net worth in
excess of $250,000,000 and reasonably acceptable to Landlord.
2. The Letter of Credit shall: (a) have an expiration date no earlier
than June 30, 2000 (the "Expiration Date"), or (b) shall have an original
expiration date at least one year after issued, and shall be renewed annually
and automatically through said Expiration Date, in which event, if required in
order to effectuate such extension, Tenant shall submit to Landlord original
amendments extending the expiration date (or replacement letters of credit with
extended expiration dates), on an annual basis no later than the date that is
thirty (30) days prior to the expiration date of the Letter of Credit then in
effect. Failure to so extend the expiration date of the Letter of Credit through
said Expiration Date in the foregoing manner shall constitute a Default under
this Lease entitling Landlord, in addition to all other remedies, to draw down
the Letter of Credit without notice to Tenant and to hold or apply the proceeds
thereof as a cash security deposit ("Cash Security Deposit"), as security for
the full and prompt performance by Tenant of the terms and covenants of this
Lease and apply the same as provided herein with respect to the Letter of
Credit.
3. If Tenant commits a Default under this Lease, Landlord may, but
shall not be obligated to, draw upon the Letter of Credit (but only to the
extent necessary to cure the Default) and use or apply the whole or any part of
the proceeds of the Letter of Credit so drawn for the payment of Tenant's
obligations hereunder. If Landlord draws upon the Letter of Credit and any
portion of the proceeds thereof is not required for such purposes, Landlord
shall hold such unused proceeds as a Cash Security Deposit. The use or
application of the proceeds of the Letter of Credit or any portion thereof shall
not prevent Landlord from exercising any other right or remedy provided
hereunder or under any Law and shall not be construed as liquidated damages.
Tenant shall, within ten (10) days after notice from Landlord, deposit with
Landlord in certified funds an amount equal to any portion of the Letter of
Credit or Cash Security Deposit which may be applied by Landlord to the cure of
any violation by Tenant as described hereunder.
4. The parties agree that so long as Tenant has fully and faithfully
complied with all provisions of this Lease, then, to the extent that Landlord
has not applied the Letter of Credit or Cash Security Deposit as described
herein, the Letter of Credit shall be reduced to zero (--0--) within sixty (60)
days after the earlier to occur of (a) the twenty fourth (24th) full calendar
month of the Term, or (b) the date that Tenant completes a public offering of
its stock. Tenant shall not assign, pledge or otherwise transfer any interest in
the Letter of Credit except as part of an assignment of this Lease approved by
Landlord under Article 13, and any attempt to do so shall be null and void.
51
EXHIBIT F-1
FORM OF LETTER OF CREDIT FOR SECURITY DEPOSIT
(Letterhead and Address of Bank)
___________, 19__
CMD Properties, Inc.
C/o CMD Realty Investors, Inc.
Xxxxx 000
0000 Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx Xxxxxxxx 00000
Re: Clean Irrevocable Standby Letter of Credit
No. _______________________
Ladies and Gentlemen:
We hereby establish our Clean Irrevocable Standby Letter of Credit No.
__________________ in your favor for the account of OpenSite Technologies, Inc.
("Tenant") in the aggregate amount of Thirty-four thousand Four hundred and
Twenty and 38/100 ($34,420.38).
You may draw upon such Letter of Credit at sight at the above address
or any of our other offices on or before June 30, 2000, or such annual
anniversary thereof to which such date may be extended as provided herein. This
Letter of Credit shall be automatically extended without amendment for one (1)
one year period, unless at least thirty (30) days prior to the present or any
future expiration date, we shall notify you by certified mail that we elect not
to renew this Letter of Credit (such notice to be deemed given when received by
you). Upon receipt of such notice, you may draw upon this Letter of Credit as
provided herein.
You may draw upon this Letter of Credit upon the presentation of your draft,
executed by a officer of your company or its general partner, accompanied by
his/her written statement that you are entitled to draw down the same pursuant
to that certain lease between CMD Properties, Inc., as landlord, and OpenSite
Technologies, Inc., as tenant, dated May __, 1999, by reason that the tenant has
breached or defaulted in the performance of a term or condition under the
aforesaid lease and has failed to cure the same after the expiration of any
applicable cure period, and therefore the undersigned is entitled to the amount
set forth in the draft. We will honor the same without requiring anything
further of any party or person and regardless of any contrary claims, demands or
instruction. You may make partial drawings not to exceed in the aggregate the
foregoing amount.
This Letter of Credit is binding upon, and shall inure to the benefit
of, the parties and their successors and assigns (without limitation as to the
number of times this Letter of Credit may be transferred). This Letter of Credit
sets forth our entire undertaking, and shall not be modified, amended or
expanded by reference to any other document, instrument or agreement. Except to
the extent expressly inconsistent therewith, this Letter of Credit is subject to
the Uniform Customs and Practice for Documentary Credits (1993 Revisions),
International Chamber of Commerce Publication 500, and the Uniform Commercial
Code as adopted in the State in which this Bank is located, as the same may be
revised from time to time. In the event of conflict between the Uniform Customs
and Practice and the Uniform Commercial Code, the latter shall govern and
control.
(Name of Bank)
By:_______________________________
Vice President
52
EXHIBIT G
TENANT EXTERIOR SIGN
1. Sign Space. Landlord hereby grants Tenant a non-exclusive license to
use a portion of the Property ("Sign Space") located in the area described as
the arched entryway over the main entrance to the Building, as shown on Exhibit
G-1, only for the purpose of installing a Sign ("Sign") identifying the name
"OpenSite Technologies" or other name adopted by Tenant (subject to Section 5
below) and for no other purpose, subject to the following provisions.
2. Sign Space Fees. [Intentionally Deleted]
3. Term of License. The term of this license ("License Term") shall
commence on the Commencement Date, and shall continue until the earlier to occur
of the expiration or earlier termination of the Lease or, at Landlord's option,
Tenant's abandonment of the Premises, subject to the other provisions hereof.
However, at Landlord's option by written notice to Tenant, the License Term
shall: (a) not commence until the Commencement Date, and (b) terminate at any
time thereafter that Tenant and its employees cease to occupy at least 10,000
square feet of rentable area in the Building (whether such cessation is due to
Tenant having assigned its rights under the lease or having subleased a portion
or portions of such space, or having actually vacated such space or a portion
thereof, and without limitation as to any other rights available to Landlord to
terminate this license).
4. Access. Landlord shall permit Tenant reasonable access to the Sign
for the purposes permitted hereunder, during normal business hours at the
Property upon reasonable advance notice and scheduling through Landlord's
management and security personnel. Access after normal business hours may be
granted by Landlord in its reasonable discretion, and for such reasonable
charges as Landlord shall impose. Without limiting Landlord's other rights under
the Lease, Landlord reserves the right to add or subtract other signs and
inspect and make repairs, additions or alterations to the Sign Space or area of
the Property where the Sign Space is located. In connection with exercising such
rights, Landlord may temporarily disconnect the Sign and/or move the Sign to
other comparable space. The exercise by Landlord or any of its rights under this
Paragraph shall not be deemed an eviction or disturbance of Tenant's use of the
roof.
5. Design and Installation. Tenant shall not install the Sign, or
thereafter make any alterations, or additions to the Sign without Landlord's
prior written consent, which shall not be unreasonably withheld except as
expressly otherwise set forth herein. Landlord shall approve or reject the
proposed installation of the Sign within a reasonable time after Tenant submits
(a) plans and specifications for the installation of the Sign, (b) copies of all
required governmental and quasi-governmental permits, licenses, and
authorizations which Tenant will obtain at its own expense, and (c) a
certificate of insurance evidencing the coverage required herein. Tenant's Sign
plans must be professionally prepared and shall show all aspects of the design,
including, but not limited to, font of lettering, number of letters, content,
color and finish, type and quality of materials, dimensions of the Sign and of
every detail (including letters), and all other details of the Sign, placement
of the Sign, and whether it will be illuminated. Landlord may withhold approval
of any aspect of the Sign plans affecting the appearance (including, without
limitation, the name to be used in the sign) or image of the Property in
Landlord's sole and absolute discretion, but shall not unreasonably withhold
approval of other aspects of the Sign plans. Landlord may require that any
installation or other work be done in accordance with any Property rules,
standards or other requirements for installations and/or under the supervision
of Landlord's employees or agents, and in a manner so as to avoid damage to the
Property. All installation work shall be performed in a good and workmanlike
manner, in accordance with all governmental requirements and in accordance with
all provisions of the Lease respecting Work to the Premises.
6. Removal. Upon termination of the Lease or this License, by
expiration or otherwise, Tenant shall, immediately after written request by
Landlord, disconnect and remove the Sign and fully repair and restore the Sign
Space to the same or better condition than prior to installation of the Sign,
ordinary wear and tear, and damage from fire or other casualty not the fault of
Tenant excepted. Tenant shall promptly and properly repair (or at Landlord's
option, pay Landlord's reasonable charges for repairing) during the License Term
and upon termination of the Lease or this License, any leaks or other damage or
injury to the Property (or contents thereof) caused by Tenant's use of the Sign
Space or the installation, use, maintenance or removal of the Sign. If Tenant
does not immediately repair any such leaks, damage or injury, or does not remove
the Sign when so required, Tenant hereby authorizes Landlord
53
to make such repairs or remove and dispose of the Sign and Tenant shall promptly
pay Landlord's reasonable charges for doing so.
7. Condition; Permits. As of the Commencement Date of this Lease,
Tenant agrees that Tenant has inspected the Sign Space and agrees to accept the
same hereunder "as is". Landlord does not represent or warrant that Sign or its
placement in the Sign Space will comply with any applicable federal, state,
county or local Laws or ordinances or the regulations of any of their agencies,
nor with any covenants, conditions or restrictions that may apply to the
Property, nor that the Sign Space will be suitable for Tenant's purposes. Tenant
shall at all times comply with any applicable federal, state, county or local
laws or ordinances, and all applicable covenants, conditions and restrictions,
pertaining to Tenant's installation and use of the Sign. Tenant's failure or
inability to obtain any necessary permits, approvals, variances or waivers
respecting the Sign and Sign Space shall not excuse Tenant from any obligations
under this Lease; any variances or waivers shall be subject to Landlord's prior
written approval to determine whether such variances or waivers may limit any
rights to place or maintain other Signs at the Property or otherwise adversely
affect Landlord or the Property.
8. Miscellaneous Sign Provisions.
(a) Tenant shall maintain the Sign in good, sightly and first class
appearance, condition and repair, and so as not to detract from the appearance
or image of the Property.
(b) The Sign shall not be illuminated unless Landlord expressly
approves or requires such illumination in writing. If Landlord approves or
requires illumination, Tenant shall ensure that the Sign is fully and completely
illuminated each night between sunset and midnight (or such other time as
Landlord may require, but not beyond sunrise), at Tenant's sole cost and
expense.
(c) Landlord reserves the right to install or permit other parties to
install other signs on or about the Property.
(d) Landlord reserves the right to take, or to grant others the right
to take, pictures or films of the Property, and to use the same as Landlord
wishes without compensation to Tenant.
(e) If Tenant shall fail to maintain, repair, or illuminate (if
approved or required by Landlord hereunder), the Sign in the condition required
hereunder for 48 hours after written notice by Landlord, Landlord may so repair,
maintain and illuminate the Sign, at Tenant's cost and expense (which Tenant
shall pay to Landlord as additional rent, when billed by Landlord), without
limiting Landlord's other rights and remedies.
(f) Once installation of the Sign has commenced, it shall be completed
as soon as possible, and in no event later than three (3) business days
thereafter.
(g) Notwithstanding anything to the contrary contained herein, Landlord
reserves the right to require, by written notice to Tenant, that Tenant prepare
and submit acceptable Sign plans, obtain permits and any other governmental
approvals, install and illuminate the Sign as soon as possible and in no event
later than three (3) months after the Commencement Date under the Lease.
(h) Tenant shall ensure that the Sign does not interfere with any views
from any windows in the Property, nor interfere in any way with the ability of
Landlord or its tenants and occupants of the Property and neighboring properties
to receive radio, television, telephone, microwave, short-wave, long-wave or
other signals of any sort that are transmitted through the air or atmosphere,
nor interfere with the use of electric, electronic or other facilities,
appliances, personal property and fixtures, nor interfere in any way with the
use of any antennas, satellite dishes or other electronic or electric equipment
or facilities currently or hereafter located on or about the Property or other
property.
54
9. Other Provisions. Except to the extent expressly inconsistent
herewith, all rights and obligations of the parties respecting the Premises
under the Lease shall apply to the Sign Space, including, without limitation,
obligations respecting compliance with Laws, hazardous materials, repairs,
casualty damage, indemnities and insurance (including waivers of insurers'
subrogation rights). If Tenant shall violate this Exhibit, Landlord shall have
the right to cancel this license on five (5) days' written notice, unless within
such period Tenant cures such violation. In any such events, Landlord may also
take action to discontinue providing utilities to the Sign. In case of
violations with respect to the same term or condition under this Exhibit more
than three (3) times during any twelve (12) month period, the next violation of
such term or condition during the succeeding twelve (12) month period, shall at
Landlord's election constitute an incurable violation. Such remedies shall be
cumulative and in addition to any other rights or remedies available to Landlord
at law or equity or provided under the Lease.
10. Tenant's Personal Rights. This license is personal to the Tenant
entity which has entered into and signed this document and to an assignee of
Tenant's entire interest in the Lease. Under no circumstance whatsoever shall
the assignee under a partial assignment of the Lease, or a subtenant under a
sublease of the Premises, have any right herein.
55
EXHIBIT G-1
[Location and Description of Sign Space area]
56
CMD 129A (8/98)
EXHIBIT H
TENANT'S NAME ON LANDLORD'S MONUMENT SIGN
1. Monument Listing. Landlord hereby grants Tenant a non-exclusive
license to have the name "OpenSite Technologies" or other name adopted by Tenant
(subject to Section 5 below) listed (such listing is referred to herein as the
"Monument Listing") on the existing monument sign (i.e., the tenant directory
sign) located in the area of the land adjoining the Building ("Monument") as
shown on Exhibit H-1, subject to the following provisions.
2. Monument Listing Fees. [Intentionally omitted.]
3. Term of License. The term of this license ("License Term") shall
commence on the Commencement Date, and shall continue until the earlier to occur
of the expiration or earlier termination of the Lease or, at Landlord's option,
Tenant's abandonment of the Premises, subject to the other provisions hereof.
However, at Landlord's option by written notice to Tenant, the License Term
shall: (a) not commence until the Commencement Date, and (b) terminate at any
time thereafter that Tenant and its employees cease to occupy at least 10,000
square feet of rentable area in the Building (whether such cessation is due to
Tenant having assigned its rights under the lease or having subleased a portion
or portions of such space, or having actually vacated such space or a portion
thereof, and without limitation as to any other rights available to Landlord to
terminate this license).
4. Landlord Design/Fabrication/Installation. Except as provided below,
Landlord shall install the Monument Listing within a reasonable time after
mutual execution of this document and Tenant's occupancy of the Premises,
subject to delays beyond Landlord's reasonable control, and the other provisions
hereof. Landlord reserves the right to arrange for the fabrication and
installation of the Monument Listing using Landlord's current design criteria or
standard signage. Tenant shall reimburse Landlord for its out-of-pocket costs
for the design, fabrication and installation of the Monument Listing within
fifteen (15) days after Landlord bills the same.
5. Tenant Design/Fabrication/Installation. If Tenant desires to design
and/or fabricate and/or install its own Monument Listing, or desires to make any
alterations to the Monument Listing, and Landlord is willing to consider the
same, Tenant shall first submit for Landlord's written approval: (a) the name
and address of the professional sign designer/fabricator/installer to be used by
Tenant, (b) a professionally prepared plan ("Monument Listing Plan"), showing
all aspects of the design, including, but not limited to, font of lettering,
number of letters, content, color and finish, type and quality of materials,
dimensions of the Monument Listing and of every detail (including letters), and
all other details of the Monument Listing and all components thereof, and (c)
copies of all required governmental and quasi-governmental permits, licenses,
and authorizations which Tenant will obtain at its own expense. Landlord may
withhold or condition approval of the Monument Listing Plan, or any aspect
thereof (including, without limitation, the name to be used in the sign), or
approval of the designer/fabricator/installer in Landlord's sole and absolute
discretion. Landlord shall arrange for installation of any Monument Listing
fabricated by Tenant's sign professional, unless Landlord specifically approves
of, or requires, installation by Tenant's sign professional. If Landlord
approves of, or requires, fabrication or installation of the Monument Listing by
Tenant's sign professional, Tenant shall ensure that such work be done in a good
and workmanlike manner, strictly in accordance with the approved Monument
Listing Plan, and in accordance with the Property rules, standards or other
requirements for such work and/or under the supervision of Landlord's employees
or agents, in a manner so as to avoid damage to any part of the Property.
6. Maintenance and Removal. Tenant shall reimburse Landlord for: (a)
Tenant's pro rata share of the costs of maintaining and repairing the Monument
incurred during any period that Tenant and one or more other parties have
Monument Listings on the Monument (such share to be based on an equal division
of costs between such parties), and (b) all costs of maintaining and repairing
the Monument incurred during any period that Tenant is the only party with a
Monument Listing on the Monument. Upon termination of the Lease or this license,
by expiration or otherwise, Landlord may remove and dispose of the Monument
Listing and repair and restore the Monument to the same condition as prior to
installation of the Monument Listing; Tenant shall pay Landlord's reasonable
charges for doing so. Tenant shall pay any charges hereunder, as additional
Rent, within fifteen (15) days after billing.
7. Landlord's General Rights. Without limiting Landlord's other rights
under the Lease or available at
57
law, Landlord reserves the right to designate and change the position of
Tenant's Listing on the Monument, add or subtract other tenant names and signs,
and inspect and make repairs, additions or alterations to the Monument or area
of the Property where the Monument is located. In connection with exercising
such rights, Landlord may replace or move the Monument, and may temporarily
remove the Monument Listing in connection therewith. Landlord reserves the right
to take, or to grant others the right to take, pictures or films of the
Property, and to use the same as Landlord wishes without compensation to Tenant.
The exercise by Landlord or any of its rights hereunder shall not be deemed an
eviction or a violation of Tenant's rights.
8. Tenant's Personal Rights. This license is personal to the Tenant
entity which has entered into and signed this document and to an assignee of
Tenant's entire interest in the Lease. Under no circumstance whatsoever shall
the assignee under a partial assignment of the Lease, or a subtenant under a
sublease of the Premises, have any right herein.
58
EXHIBIT H-1
[Location and Description of Monument Listing]
