EXHIBIT 10.26
OFFICE LEASE
BETWEEN
FORD MOTOR LAND DEVELOPMENT CORPORATION, LANDLORD
AND
SPHERIS OPERATIONS INC., TENANT
TABLE OF CONTENTS
Section 1: Basic Definitions and Provisions
a. Premises
b. Term
c. Permitted Use
d. Occupancy Limitation
e. Base Rent
f. Rent Payment Address
g. Security Deposit
h. Business Hours
i. Electrical Service
j. After Hours HVAC Rate
k. Parking
l. Construction Fee
m. Notice Addresses
n. Broker
Section 2. Leased Premises
a. Premises
b. Rentable Square Foot Determination and Tenant's Proportionate
Share
c. Common Areas
d. Building
Section 3: Term
a. Commencement and Expiration Dates
b. Possession Date
c. Notice of Completion of Tenant Improvements
d. Substantial Completion
e. Early Occupancy
f. Right to Occupy
g. Commencement Agreement
Section 4: Use
a. Permitted Use
b. Prohibited Uses
c. Prohibited Equipment in Premises
Section 5: Rent
a. Payment Obligations
b. Base Rent
c. Additional Rent
Section 6: Security Deposit
a. Amount of Deposit
b. Application of Deposit
c. Refund of Deposit
d. Letter of Credit Option
Section 7: Services by Landlord
a. Base Services
b. Landlord's Maintenance
c. No Abatement
d. Tenant's Obligation to Report Defects
e. Limitation on Landlord's Liability
Section 8: Tenant's Acceptance and Maintenance of Premises
a. Acceptance of Premises
b. Move-in Obligations
c. Tenant's Maintenance
d. Alterations to Premises
e. Restoration of Premises
f. Landlord's Performance of Tenant's Obligations
g. Construction Liens
h. Communications Compliance
Section 9: Property of Tenant
a. Property Taxes
b. Removal
Section 10: Signs
Section 11: Access to Premises
a. Tenant's Access
b. Landlord's Access
c. Emergency Access
Section 12: Tenant's Compliance
a. Laws
b. Rules and Regulations
Section 13: ADA Compliance
a. Tenant's Compliance
b. Landlord's Compliance
c. ADA Notices
Section 14: Insurance Requirements
a. Indemnification
b. Tenant's Insurance
c. Tenant's Property Insurance
d. Certificates of Insurance
e. Mutual Waiver of Subrogation
Section 15: Indemnity
a. Indemnity
b. Defense Obligation
Section 16: Quiet Enjoyment
Section 17: Subordination; Attornment; Non-Disturbance; and Estoppel
Certificate
a. Subordination and Attornment
b. Non-Disturbance
c. Estoppel Certificates
d. Attorney in Fact
e. Modifications Requested by Lender
Section 18: Assignment - Sublease
a. Landlord Consent
b. Definition of Assignment
c. Permitted Assignments/Subleases
d. Notice to Landlord
e. Prohibited Assignments/Sublease
f. Limitation on Rights of Assignee/Sublessee
g. Tenant Not Released
h. Landlord's Right to Collect Sublease Rents Upon Tenant Default
i. Excess Rents
j. Landlord's Fees
k. Unauthorized Assignment or Sublease
Section 19: Damages to Premises
a. Landlord's Restoration Obligations
b. Termination of Lease by Landlord
c. Termination of Lease by Tenant
d. Tenant's Restoration Obligations
e. Rent Abatement
f. Waiver of Claims
Section 20: Eminent Domain
a. Effect on Lease
b. Right to Condemnation Award
Section 21: Environmental Compliance
a. Hazardous Material
b. Hazardous Material Laws
c. Indemnity
d. Tenant's Covenants
e. Inspections by Landlord
f. Property
g. Tenant's Liability after Termination of Lease
Section 22: Default
a. Tenant's Default
b. Landlord's Remedies
c. Landlord's Expenses
d. Remedies Cumulative
e. No Accord and Satisfaction
f. No Reinstatement
g. Summary Ejectment
h. Surrender
Section 23: Multiple Defaults
a. Loss of Option Rights
b. Increased Security Deposit
c. Effect on Notice Rights and Cure Periods
Section 24: Bankruptcy
a. Trustee's Rights
b. Adequate Assurance
c. Assumption of Lease Obligations
Section 25: Notices
a. Addresses
b. Form; Delivery; Receipt
c. Address Changes
d. Notice by Legal Counsel
Section 26: Holding Over
Section 27: Intentionally Deleted
Section 28: Broker's Commissions
a. Broker
b. Landlord's Obligation
c. Indemnity
Section 29: Miscellaneous
a. No Agency
b. Force Majeure
c. Building Standard Improvements
d. Limitation on Damages
e. Satisfaction of Judgments Against Landlord
f. Interest
g. Legal Costs
h. Sale of Premises or Building
i. Time of the Essence
j. Transfer of Security Deposit
k. Tender of Premises
l. Tenant's Financial Statements
m. Recordation
n. Partial Invalidity
o. Binding Effect
p. Entire Agreement
q. Good Standing
r. Terminology
s. Headings
t. Choice of Law
u. Effective Date
v. Designation of Representatives
w. Execution
x. No Light, Air or View Easement
y. Landlord's Right to Grant Easements
z. No Waiver
Section 30: Special Conditions
a. Renewal Option
b. Right of First Offer
c. Personal Property
d. Approval by Industrial Development Board of Xxxxxxxxxx
County, Tennessee
Section 31: Addendum and Exhibits
a. Addendum
b. Exhibit A - Premises
c. Exhibit A-1 - Workletter
d. Exhibit B - Rules & Regulations
e. Exhibit C - Commencement Agreement
f. Exhibit D - Janitorial Services
g. Exhibit E - License Agreement
h. Exhibit F - Xxxx of Sale
i. Exhibit G - Work Letter
STATE OF TENNESSEE : ______________________
COUNTY OF XXXXXXXXXX : ____________________
OFFICE LEASE
THIS LEASE ("Lease"), made this 13th day of June, 2006, by and between FORD
MOTOR LAND DEVELOPMENT CORPORATION, A DELAWARE CORPORATION ("Landlord") and
SPHERIS OPERATIONS INC., A TENNESSEE CORPORATION, ("Tenant"), provides as
follows:
1. BASIC DEFINITIONS AND PROVISIONS. The following basic definitions and
provisions apply to this Lease:
a. Premises
Rentable Square Feet: 70,209
Tenant's Proportionate Share: 14.25%
Building/Floors: Floor 1 (20,969 rsf), Floor 2 (23,606 rsf) and Floor 3
(23,876 rsf), in Building C and a portion of the existing
Data Center (1,758 RSF) on Floor 1 in Building A* of the
Office Complex
Street Address: 0000 Xxxxxxxxx Xxxxxxx
City/County: Franklin, Xxxxxxxxxx
State/Zip Code: Tennessee 37067
* The portion of floor 1 in building A that is included in
the Premises is cross-hatched on the Exhibit A-3 attached
hereto. Said space is sometimes referenced to herein as the
"Data Center"
b. Term.
XXXXX 0 XXX XXXXX 0 XX
XXXXXXXX X AND DATA CENTER
IN BUILDING A:
Number of Months: 120
Est. Commencement Date: October 15, 2006
Est. Expiration Date: Xxxxxxx 00, 0000
Xxxxxxxxx Xxxx: (2) 60-month Extension Terms
0
XXXXX 0 XX XXXXXXXX X:
Number of Months: Up to 120 months, but no less than 108 months (depending on when the
Commencement Date for such space occurs)
Commencement Date: A date selected by Tenant upon written notice to Landlord, provided that
such Commencement Date may be no later than the first day of the
thirteenth (13th) month after the actual Commencement Date for Floor 2 and
Floor 3
Est. Expiration Date: October 31, 2016
Extension Terms: (2) 60-month Extension Terms
c. Permitted Use (i) Medical transcription technology and services, office and
administrative functions, shipping and receiving, and/or (ii) general
office use.
d. Occupancy No more than 5 persons per one thousand (1,000) rentable square feet.
Limitation:
e. Base Rent. The minimum base rent for the Term is payable in monthly
installments on or before the 1st day of each month during the Lease Term in
accordance with the following Base Rent Schedule:
XXXXX 0*, XXXXX 0 XXX XXXXX 0, XXXXXXXX X AND DATA CENTER, BUILDING A:
ANNUAL BASE
MONTHS RENT/RSF MONTHLY RENT
------ ----------- ------------
Months 1-6 $ 0.00 $ 0.00
Months 7-12 $19.50 $ 80,015.00**
Months 13-24 $20.00 $117,015.00
Months 25-36 $20.50 $119,940.38
Months 37-48 $21.00 $122,865.75
Months 49-60 $21.50 $125,791.13
Months 61-72 $22.00 $128,716.50
Months 73-84 $22.50 $131,641.88
Months 85-96 $23.00 $134,567.25
Months 97-108 $23.50 $137,492.63
Months 109-120 $24.00 $140,418.00
* Base Rent for Floor 1 (when the same commences) shall be at the then
escalated Base Rent rate for the remainder of the Leased Premises;
provided, however, that Tenant shall pay no Base Rent with respect to
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Floor 1 until the earlier of (a) the date that is six (6) months after the
Commencement Date for Floor 1, or (b) the first day of the thirteenth
(13th) month of the Term.
** This rental amount for months 7 - 12 does not include any rent with respect
to Floor 1. Accordingly, this rental amount shall increase with respect to
any month (during months 7 through 12, inclusive) in which Base Rent is
required to be paid with respect to Floor 1, the amount of such increase to
be equal to $34,074.63 (prorated for any partial month).
Extension Term Base Rent: The Fair Market Rental Value, as determined in
Section 30 a, for each Extension Term.
f. Rent Payment Address. FORD MOTOR LAND DEVELOPMENT
CORPORATION
Dept. 186-01
XX Xxx 00000
Xxxxxxx, XX 00000-0000
g. Security Deposit. Months Balance
1-12 $500,000
13-24 $400,000
25-36 $300,000
37-48 $200,000
49-60 $100,000
Tenant shall provide Landlord a cash security deposit, or equivalent letter of
credit per the terms of Letter of Credit Option in 6.(d) below, (the "Security
Deposit") in an amount equal Five Hundred Thousand Dollars ($500,000) within
fifteen (15) days of Lease execution. This Security Deposit shall be reduced by
One Hundred Thousand Dollars ($100,000.00) per year of Term until Landlord
retains One Hundred Thousand Dollars ($100,000.00) to be held until the
expiration of the sixtieth (60th) month of Term at which time, provided Tenant
is not in Default, Landlord shall waive Tenant's obligation and return to Tenant
any held Security Deposit. In the event at any time during the Term Tenant
provides audited financial statements demonstrating shareholder equity, in
accordance with generally accepted accounting principles, in excess of One
Hundred Million Dollars ($100,000,000.00), Landlord shall waive any requirement
for the Security Deposit and return to Tenant any held Security Deposit within
thirty (30) days. Upon any such waiver of Tenant's obligation to maintain a
Security Deposit, all terms and provisions of Article 6 hereof shall thereafter
be null and void.
h. Business Hours. 7:00 A.M. to 6:00 P.M. on Business Days and
8:00 A.M. to 1:00 P.M. on Saturdays. The term
"Business Day" shall mean Monday through
Friday, but excludes the following holidays
or the days on which the holidays are
designated for observance: New Year's Day,
Memorial Day, Independence
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Day, Labor Day, Thanksgiving Day and
Christmas Day.
i. Electrical Service. No more than 4 xxxxx per usable square foot
for convenience outlets and lighting.
j. After Hours HVAC Rate. $35.00 per hour, per floor, with a minimum of
two (2) hours per occurrence.
k. Parking. Unreserved; not to exceed 5 spaces per 1,000
rentable square feet.
l. Construction Fee. Not Applicable
m. Notice Addresses.
LANDLORD: FORD MOTOR LAND DEVELOPMENT CORPORATION
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
with a copy to: Ford Motor Company
Office of the General Counsel
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
Attn: Real Estate Counsel
Phone #: 000-000-0000
Facsimile #: 000-000-0000
TENANT: SPHERIS OPERATIONS INC.
000 Xxxx Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Chief Administrative Officer
Phone: 000-000-0000
Facsimile #:000-000-0000
with a copy to: Xxxx Xxxxx & Xxxx, PLC
2700 AmSouth Center
000 Xxxxxxxxx Xx.
Xxxxxxxxx, XX 00000-0000
Attn: D. Xxxx Xxxxxx, Esq.
Phone: 000-000-0000
Facsimile #: 000-000-0000
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n. Broker. CB Xxxxxxx Xxxxx
000 0xx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxx Xxxxxxx
Phone: (000) 000-0000
Facsimile # (000) 000-0000
o. Buildings Building A and Building C of the Office
Complex as depicted and labeled as Building A
and "Building C" on the site plan attached
hereto as Exhibit A-1 (the "Site Plan")
p. Office Complex The land described on Exhibit A-2 attached
hereto, together with all buildings
(consisting of Buildings A, B, C and D, as
shown on the Site Plan and consisting of
492,807 rentable square feet in the
aggregate) and other improvements located
thereon.
2. LEASED PREMISES.
a. Premises. Landlord leases to Tenant and Tenant leases from Landlord the
Premises identified in Section 1a and as more particularly shown on EXHIBIT A,
attached hereto. All of the perimeter walls of the Premises, any balconies,
terraces or roofs adjacent to the Premises (including any installations on said
walls, balconies, terraces and roofs), and any space in and/or adjacent to the
Premises used for shafts, stairways, stacks, pipes, conduits, ducts, mail
chutes, conveyors, pneumatic tubes, electric or other utilities, fans or other
facilities (but excluding such facilities that are reasonably intended to be
occupied by Tenant for the Permitted Use) of the Building and the use thereof,
as well as access thereto through the Premises (upon reasonable prior notice and
at and for such times as shall not unreasonably interfere with Tenant's
business) for the purpose of such use and the operation, improvement,
replacement, addition, repair, maintenance, or decoration thereof, are expressly
reserved to Landlord.
b. Rentable Square Foot Determination and Tenant's Proportionate Share. The
parties acknowledge that all square foot measurements are approximate and agree
that the square footage figures in Section 1a shall be conclusive for all
purposes with respect to this Lease. The term "Tenant's Proportionate Share"
shall mean the percentage figure specified in Item 1a. Tenant's Proportionate
Share has been computed on the basis of the rentable square feet area of the
Premises divided by the total rentable square feet of Buildings A, B, C and D of
the Office Complex (the "Office Complex Buildings"). In the event the final
design of any of the Office Complex Buildings (including any new buildings that
may hereafter be constructed within the Office Complex) is hereafter modified
such that the rentable area of the Premises or the Office Complex Buildings
(including any new buildings that may hereafter be constructed within the Office
Complex) differs from the square footage set forth herein or in the event any
new buildings are constructed within the Office Complex, Landlord shall
recalculate the rental square foot determination and Tenant's Proportionate
Share based upon such modification or change for the remainder of the Term and
shall notify Tenant of such recomputed rentable square foot determination and
Tenant's Proportionate Share.
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c. Common Areas. Tenant shall have non-exclusive access to (and use of) the
common areas of the Building and the Office Complex. The common areas generally
include space that is not included in portions of the building set aside for
leasing to tenants or reserved for Landlord's exclusive use, including parking
areas, driveways, building signs, landscaping, paving, sidewalks, hallways,
stairways, elevators, common entrances, lobbies, restrooms and other similar
public areas and access ways including such automobile parking lot facilities in
the Building and/or the Office Complex as Landlord may designate from time to
time ("Common Areas"), provided that Landlord shall have the right to eliminate,
substitute and/or rearrange such areas which may theretofore have been so
designated as Landlord deems appropriate in its discretion; provided, however,
that in no event may Landlord take any such action that would permanently reduce
the available parking in the vicinity of the Building or permanently impair
Tenant's ingress and egress to and from the Building. Landlord has the exclusive
right to (i) designate the Common Areas, (ii) change the designation of any
Common Area and otherwise modify the Common Areas, and (iii) permit special use
of the Common Areas, including temporary exclusive use for special occasions;
provided, however, that in no event may Landlord take any such action that would
permanently reduce the available parking in the vicinity of the Building or
permanently impair Tenant's ingress and egress to and from the Building. Tenant
shall not unreasonably interfere with the rights of others to use the Common
Areas. All use of the Common Areas shall be subject to the rules and regulations
described in Section 12(b) hereof. Any temporary reduction of the available
parking in the vicinity of the Building or any temporary impairment of the
ingress and egress to and from the Building shall (x) occur only during cases of
emergency or as reasonably necessary in connection with any repairs, alterations
or construction by Landlord, and (y) be accomplished in such a manner to allow
minimal interference with Tenant's access to, and parking on, the Common Areas
to the extent practicable in light of the then-current situation.
d. Building. The term "Building" shall mean the buildings designated in
Item 1o and the land and other real property in the parcel more particularly
described on Exhibit "A" hereto, and all other improvements on or appurtenances
to said parcel. Landlord reserves the right to make such changes, alterations,
additions, improvements, repairs or replacements in or to the Building
(including the Premises) and the fixtures and equipment thereof, as well as in
the street entrances, halls, passages, elevators, escalators and stairways and
other parts of the Building, and to erect, maintain, and use pipes, ducts and
conduits in and through the Premises, all as it may reasonably deem necessary or
desirable; provided, however, that (a) there be no unreasonable obstruction of
the means of access to the Premises or unreasonable interference with the use of
the Premises, and (b) in no event shall Landlord take any such action that would
permanently reduce available parking.
3. TERM.
a. Commencement and Expiration Dates. Section 1b sets forth the
Commencement Date for Floor 1, the Estimated (Est.) Commencement Date for Floor
2 and Floor 3 in Building C and the Data Center in Building A and the Estimated
(Est.) Expiration Date. Notwithstanding the listing of such dates, Landlord and
Tenant hereby agree that (i) the actual Commencement Date with respect to Floor
2 and Floor 3 in Building C and the Data Center in Building A shall be adjusted
to be the date of substantial completion (as defined below) of the Work (as
defined below), (ii) the Commencement Date with respect to Floor 1 shall be the
date specified in
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Tenant's notice described in Section 1b above, but not later than September 1,
2007, and (iii) the actual Expiration Date with respect to the entire Leased
Premises shall be the date that is one hundred twenty (120) months after the
actual Commencement Date with respect to Floor 2 and Floor 3 in Building C and
the Data Center in Building A; provided, however, that if such Expiration Date
is a date other than the last day of a month, then the Expiration Date shall be
extended to the last day of such month. The Lease Term or "Term" shall commence
on the actual Commencement Date for Floor 2 and Floor 3 in Building C and the
Data Center in Building A and shall expire on the actual Expiration Date
described above, unless extended for one of more of the Extension Terms
described in Section 1b above.
b. Possession Date. Landlord anticipates that the Tenant Improvements (as
defined in the Workletter) will be substantially complete on or before Estimated
Commencement Date for Floor 2 and Floor 3 in Building C and the Data Center in
Building A. With the exception of Tenant Delays, in the event the Improvements
are not substantially completed by December 31, 2006, Tenant, at its option, may
terminate this Lease by providing notice of such termination to Landlord. For
purposes of this Lease, the Improvements shall be deemed to be substantially
complete in accordance with Paragraph 3d.
c. Notice of Completion of Tenant Improvements. Landlord shall advise
Tenant of the anticipated date of substantial completion at least forty-five
(45) days prior thereto.
d. Substantial Completion. For purposes of this Lease the terms
"substantial completion", "substantially complete" and terms of similar import
shall mean that the first business day following a weekend after the date that
(1) the work has been completed in accordance with the Workletter except for
minor insubstantial details ("punch list items") which do not affect the use and
occupancy of the space to which they relate (which punch list items shall be
completed by Landlord as soon as possible thereafter), (2) Landlord certifies to
Tenant in writing that such work has been so completed in accordance with the
requirements set forth in the Workletter, and (3) a temporary certificate of
occupancy or certificate of occupancy has been issued for the space and
delivered to Tenant.
e. Early Occupancy.
(i) Landlord shall permit Tenant and its agents to enter the Premises
from and after the date that is forty-five (45) days prior to the
anticipated Commencement Date (as set forth in the notice
described in Section 3c above), at the same time that Landlord's
contractors are working in the space, in order that Tenant may
install phone systems, cabling, furniture, fixtures and equipment
or perform other work through its own contractors approved in
advance (not to be unreasonably withheld) in writing by Landlord.
The foregoing license to enter prior to the Commencement Date is
conditioned upon Tenant's workers and mechanics working in
harmony and not interfering with the labor employed by Landlord,
Landlord's mechanics or contractors or with any other tenants or
their contractors. Such license is further conditioned upon
Tenant complying with all the insurance requirements contained in
the Lease, together with worker's compensation insurance, and
certificates of such insurance being furnished to Landlord prior
to entry upon the Premises. If any time such
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entry shall cause disharmony or interference to other contractors
or labor, to include strikes or other work stoppages, this
license may be immediately suspended by Landlord upon notice to
Tenant until such time as Landlord receives reasonably
satisfactory assurances that such disharmony or interference
shall cease. Such entry shall be deemed to be under all of the
terms, covenants, provisions, and conditions of the Lease except
as to the covenant to pay Rent. Landlord shall not be liable in
any way for any injury, loss or damage which may occur to any of
Tenant's personal property, including, but not limited to,
decorations, phone systems, cabling, furniture, fixtures,
equipment or installations so made prior to the Commencement
Date, the same being solely at Tenant's risk. In addition, Tenant
agrees (i) any such entry by Tenant shall be at Tenant's sole
risk, (ii) Tenant, together with its employees, agents and
independent contractors will be subject to and will work under
the direction of Landlord's contractor, and (iii) Tenant and its
agents and contractors agree to comply with all applicable laws,
regulations, permits and other approvals required to perform its
work during the early entry on the Premises.
(ii) At Tenant's option upon written notice to Landlord, at any time
after the execution of this Lease, Tenant may elect to occupy and
use Floor 1 as interim space. Tenant's use and occupancy of such
space shall be upon the same terms and conditions as are set
forth in this Lease, except that no Base Rent or Additional Rent
shall be due or payable with respect thereto. Tenant's use and
occupancy of Floor 1 shall not constitute or be deemed to be the
Commencement Date with respect to Floor 1 and shall not
constitute the commencement of the Lease Term; provided, however,
that said Commencement Date for Floor 1 shall automatically be
deemed to have occurred if Tenant shall fail to vacate and
surrender its interim possession of Floor 1 by the date that is
thirty (30) days after the actual Commencement Date for Floor 2
and Floor 3.
f. Right to Occupy. Tenant shall not occupy the Premises until Tenant has
complied with all of the following requirements to the extent applicable under
the terms of this Lease: (i) delivery of all certificates of insurance, (ii)
payment of Security Deposit, if a Security Deposit is indicated in Section 1 g,
, and (iii) if Tenant is an entity, receipt of a good standing certificate from
the State where it was organized and a certificate of authority to do business
in the State in which the Premises are located (if different); provided,
however, that the requirement set forth in clause (iii) above shall not be a
requirement for Tenant's possession of the Premises pursuant to Sections 3(b) or
3(e) above. Tenant's failure to comply with these (or any other conditions
precedent to occupancy under the terms of this Lease) shall not delay the
Commencement Date.
g. Commencement Agreement. The actual Commencement Date for Xxxxx 0 xxx
Xxxxx 0 xx Xxxxxxxx X, the Commencement Date for Floor 1 of Building C and Data
Center, Building A, Term, and Expiration Date shall be set forth in a
Commencement Agreement similar to Exhibit C, attached hereto, to be prepared by
Landlord and executed by the parties.
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4. USE.
a. Permitted Use. The Premises may be used only for Tenant's Permitted Use
as defined in Section 1c and in accordance with the Occupancy Limitation as set
forth in Section 1d.
b. Prohibited Uses. Tenant shall not use the Premises:
(i) In violation of the restrictive covenants described in Section
9.10 of that certain Declaration of Protective Covenants and
Owners Association for Cool Springs East Side dated October 4,
1994, of record in Book 1235, page 725, Register's Office for
Xxxxxxxxxx County, Tennessee (the "Protective Covenants"), a copy
of which has been provided by Landlord to Tenant, or in violation
of the rules and regulations described in Section 12b hereof;
(ii) In any manner that constitutes a nuisance or trespass, or will in
any way violate any law, statute, ordinance or governmental rule
or regulation now in force or which may hereafter be enacted or
promulgated,
(iii) In any manner that will adversely affect or interfere with any
services required to be furnished by Landlord to Tenant, or to
any other tenants or occupants of the Building or with the proper
and economical rendition of any such service.
(iv) In any manner that will in any way obstruct or interfere with the
rights of other tenants of the Building or injure them, or use or
allow the Premises to be used for any unlawful purpose, or commit
or suffer to be committed any waste in, on or about the Premises;
(v) In any manner which increases any insurance premiums, or makes
such insurance unavailable to Landlord on the Building; provided
that, in the event of an increase in Landlord's insurance
premiums which results from Tenant's use of the Premises,
Landlord may elect to permit the use and charge Tenant for the
increase in premiums, and Tenant's failure to pay Landlord, on
demand, the amount of such increase shall be an event of default
(in any action or proceeding wherein Landlord and Tenant are
parties, a schedule or "make up" of rates applicable to the
Building issued by the Tennessee Insurance Bureau, or other
similar body fixing such fire insurance rates, shall be
conclusive evidence of the facts therein stated and the several
items and charges in the fire insurance rates therein);
(vi) In any manner that creates unusual demands for electricity,
heating or air conditioning (except as permitted by Section 4(c)
below); or
(vii)For any purpose except the Permitted Use, unless consented to by
Landlord in writing.
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(viii) That shall cause or permit the use, generation, storage or
disposal in or about the Premises or the Building of any
substances, materials or wastes subject to regulation under
Federal, State or local laws from time to time in effect
concerning hazardous, toxic or radioactive materials (excluding
the storage and use of normal cleaning supplies and office
supplies customarily used for the Permitted Use, all of which
shall be permitted without Landlord's consent so long as such
items are stored and used in compliance with applicable
environmental laws), unless Tenant shall have received Landlord's
prior written consent, which Landlord may withhold or at any time
revoke in its sole discretion.
c. Prohibited Equipment in Premises. Tenant shall not install any equipment
in the Premises that places unusual demands on the electrical, heating or air
conditioning systems ("High Demand Equipment") without Landlord's prior written
consent. No such consent will be given if Landlord determines, in its opinion,
that such equipment may not be safely used in the Premises or that electrical
service is not adequate to support the equipment. Landlord's consent may be
conditioned, without limitation, upon separate metering of the High Demand
Equipment and Tenant's payment of all engineering, equipment, installation,
maintenance, removal and restoration costs and utility charges associated with
the High Demand Equipment and the separate meter. If High Demand Equipment used
in the Premises by Tenant affect the temperature otherwise maintained by the
heating and air conditioning system, Landlord shall have the right to install
supplemental air conditioning units in the Premises with the cost of
engineering, installation, operation and maintenance of the units to be paid by
Tenant. All costs and expenses relating to High Demand Equipment and Landlord's
administrative costs (such as reading meters and calculating invoices) shall be
Additional Rent, payable by Tenant upon demand. Notwithstanding the above, the
Tenant shall be permitted to install High Demand Equipment in the Data Center in
Building A, subject to Landlord's review and approval, which shall not be
unreasonably withheld.
5. RENT.
a. Payment Obligations. Tenant shall pay Base Rent and Additional Rent
(collectively, "Rent") on or before the first day of each calendar month during
the Term, as follows:
(i) Rent payments shall be sent to the Rent Payment Address set forth
in Section 1f.
(ii) Rent shall be paid without previous demand or notice and without
set off or deduction. Tenant's obligation to pay Rent under this
Lease is completely separate and independent from any of
Landlord's obligations under this Lease.
(iii) If the Term commences on a day other than the first day of a
calendar month, then Rent for such month shall be (i) prorated
for the period between the Commencement Date and the last day of
the month in which
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the Commencement Date falls, and (ii) due and payable on the
Commencement Date.
(iv) For each Rent payment Landlord receives after the fifth (5th) day
of the month, Landlord shall be entitled to a late charge in the
amount of five percent (5%) of all delinquent amounts.
(v) If Landlord presents Tenant's check to any bank and Tenant has
insufficient funds to pay for such check, then Landlord shall be
entitled to all default remedies provided under the terms of this
Lease and the maximum lawful bad check fee or five percent (5%)
of the amount of such check, whichever amount is less.
b. Base Rent. Tenant shall pay Base Rent as set forth in Section 1e.
c. Additional Rent. In addition to Base Rent, Tenant shall pay as rent all
sums and charges due and payable by Tenant under this Lease ("Additional Rent"),
including, but not limited to, the following:
(i) Tenant's Proportionate Share of the increase in Landlord's
Operating Expenses as set forth in the Addendum; and
(ii) Any sales or use tax imposed on rents collected by Landlord or
any tax on rents in lieu of ad valorem taxes on the Building,
even though laws imposing such taxes attempt to require Landlord
to pay the same; provided, however, if any such sales or use tax
are imposed on Landlord and Landlord is prohibited by applicable
law from collecting the amount of such tax from Tenant as
Additional Rent, then Landlord and Tenant shall amend this Lease
in order to increase the Base Rent by an amount sufficient to
cover Tenant's obligation with respect to such taxes; provided,
however, that if such an amendment shall not be effective to
avoid such tax, then Landlord, upon sixty (60) days prior notice
to Tenant, may terminate this Lease.
6. SECURITY DEPOSIT.
a. Amount of Deposit. Until such time as Tenant's obligation to maintain a
Security Deposit is waived pursuant to Section 1g above, Tenant shall deposit
with Landlord a Security Deposit in the amount set forth in Section 1g, which
sum Landlord shall retain as security for the performance by Tenant of each of
its obligations hereunder. Landlord shall not be required to keep the Security
Deposit separate from its general accounts.
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b. Application of Deposit. If Tenant at any time fails to perform any of
its obligations under this Lease, including its Rent or other payment
obligations, its restoration obligations, or its insurance and indemnity
obligations, then Landlord may, at its option, apply the Security Deposit (or
any portion) to cure Tenant's default or to pay for damages caused by Tenant's
default. If the Lease has been terminated, then Landlord may apply the Security
Deposit (or any portion) against the damages incurred as a consequence of
Tenant's breach. The application of the Security Deposit shall not limit
Landlord's remedies for default under the terms of this Lease. If Landlord
depletes the Security Deposit, in whole or in part, prior to the Expiration Date
or any termination of this Lease, then Tenant shall restore immediately the
amount so used by Landlord.
c. Refund of Deposit. Except to the extent that (i) Landlord uses the
Security Deposit to cure a default of Tenant, to pay damages for Tenant's breach
of the Lease, or to restore the Premises to the condition to which Tenant is
required to leave the Premises upon the expiration or any termination of the
Lease, and (ii) such amounts are not replenished by Tenant, then Landlord shall,
within sixty (60) days after the Expiration Date or any termination of this
Lease, refund to Tenant the Security Deposit. Tenant may not credit the Security
Deposit against any month's Rent. Upon any reduction of the required Security
Deposit amount, as set forth in Section 1(g), Landlord shall, within thirty (30)
days after any such reduction, refund to Tenant that portion of the Security
Deposit as is necessary to reduce the Security Deposit to the required amount.
d. Letter of Credit Option.
(i) At Tenant's election, in lieu of the Security Deposit in the
amounts indicated in Item 1g for years 1-5 (i.e. through the
fifth anniversary of the actual Commencement Date for Floor 2 and
Floor 3), Tenant at any time simultaneously with, or following
the execution of this Lease, shall deliver to Landlord an
irrevocable letter of credit payable in Dearborn, Michigan
running in favor of Landlord issued by a bank under the
supervision of the State of Michigan or a National Banking
Association, in the amounts indicated in 1g. The letter of credit
shall be irrevocable for the term thereof and shall provide that
it is automatically renewed for successive 1-year periods without
any action whatsoever on the part of Landlord; provided that the
issuing bank shall have the right not to renew said letter of
credit on written notice to Landlord not less than 60 days prior
to the expiration of the then current term thereof (it being
understood, however, that the privilege of the issuing bank not
to renew said letter of credit shall not, in any event, diminish
the obligation of Tenant to maintain such irrevocable letter of
credit (or a Security Deposit) with Landlord through the
expiration of the fifth (5th) year of the term hereof.
(ii) The form and terms of the letter of credit (and the bank issuing
the same) shall be reasonably acceptable to Landlord and shall
provide, among other things, in effect that:
(A) Landlord or its managing agent shall have the right to draw
down an amount up to the face amount of the letter of credit
upon the
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presentation to the issuing bank of Landlord's statement
that such amount is due to Landlord under the terms and
conditions of this Lease, it being understood that if
Landlord or its managing agent be a corporation, partnership
or other entity, then such statement shall be signed by an
officer (if a corporation), a general partner (if a
partnership), or any authorized party (if another entity).
(B) The letter of credit will be honored by the issuing bank
without inquiry as to the accuracy thereof and regardless of
whether the Tenant disputes the content of such statement.
(C) In the event of a transfer of Landlord's interest in the
Building of which the Premises are a part, Landlord shall
have the right to transfer the letter of credit to the
transferee and thereupon the Landlord shall, without any
further agreement between the parties, be released by Tenant
from all liability therefor, and it is agreed that the
provisions hereof shall apply to every transfer or
assignment of said letter of credit to a new Landlord.
(iii) If, as a result of any such application of all or any part of
such security, the amount so available under the letter of credit
shall, when aggregated with any cash Security Deposit then held
by Landlord, be less than the amounts indicated in Section 1g,
Tenant shall forthwith provide Landlord with additional letter(s)
of credit (or shall increase the cash Security Deposit) in an
amount equal to the deficiency.
(iv) Tenant further covenants that it will not assign or encumber said
letter of credit or any part thereof and that neither Landlord
nor its successors or assigns will be bound by any such
assignment, encumbrance, attempted assignment or attempted
encumbrance.
(v) Without limiting the generality of the foregoing, if the letter
of credit expires earlier than the end of the fifth year of the
term of this Lease, or the issuing bank notifies Landlord that it
shall not renew the letter of credit, Landlord will accept a
renewal thereof or substitute letter of credit (such renewal or
substitute letter of credit to be in effect not later than 30
days prior to the expiration thereof), irrevocable and
automatically renewable as provided above upon the same terms as
the expiring letter of credit or such other terms as may be
reasonably acceptable to Landlord. However, (A) if the letter of
credit is not timely renewed or a substitute letter of credit (or
cash Security Deposit) is not timely received, or (B) if Tenant
fails to maintain the letter of credit (or cash Security Deposit)
in the amount and terms set forth in this Section, Tenant, at
least 30 days prior to the expiration of the letter of credit, or
immediately upon its failure to comply with each and every term
of this Section, must deposit with Landlord cash security in the
amounts required by, and to be held subject to and in accordance
with, all of the terms and conditions set forth in Section 6
hereof, failing which the Landlord may present such letter of
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credit to the bank in accordance with the terms of this Section,
and the entire sum secured thereby shall be paid to Landlord, to
be held by Landlord as provided in this Section.
e. Obligation Upon Transfer by Landlord. In the event of a transfer of
Landlord's interest in the Building of which the Premises are a part, Landlord
shall transfer the letter of credit and/or any Security Deposit to the
transferee, shall obtain such transferee's agreement to assume Landlord's
obligations under this Lease with respect to such letter of credit and Security
Deposit and thereupon the Landlord shall, without any further agreement between
the parties, be released by Tenant from all liability therefor, and it is agreed
that the provisions hereof shall apply to every transfer of the Building to a
new Landlord.
f. Letter of Credit Proceeds. In the event Landlord draws upon any letter
of credit posted hereunder, the proceeds of such letter of credit shall be
applied by Landlord for any purpose described in Section 6b above (to the same
extent that the Security Deposit may be used for such purposes), with any
remaining proceeds being held by Landlord as a Security Deposit under Section 6a
above.
g. Replacement Security. At any time during the term hereof, Tenant may
replace any Security Deposit and/or letter(s) of credit posted hereunder with
new letter(s) of credit, a cash Security Deposit or a combination thereof
("Replacement Security") so long as (i) any letters of credit comply with the
requirements of Section 6d above, and (ii) the aggregate amount of all letters
of credit, plus the amount of any cash Security Deposit, held by Landlord equals
the amount of Security Deposit required by Section 1g hereof. Upon the delivery
of any Replacement Security to Landlord, Landlord shall release and deliver to
Tenant the Security Deposit and/or letters of credit that are being replaced.
7. SERVICES BY LANDLORD.
a. Base Services. Provided that Tenant is not then in default beyond
applicable periods of notice and cure, Landlord shall cause to be furnished to
the Building, or as applicable, the Premises, in common with other tenants the
following services:
(i) Water (if available from city mains) for drinking, lavatory and
toilet purposes and interior sprinkler systems.
(ii) Electricity (if available from the utility supplier) for the
building standard fluorescent lighting and for the operation of
general office machines, such as electric typewriters, desk top
computers, dictating equipment, adding machines and calculators,
and general service non production type office copy machines;
provided that Landlord shall have no obligation to provide more
than the amount of power for convenience outlets and lighting as
set forth in Section 1i. Landlord will provide emergency back-up
power throughout the second floor and in the Tenant's
IS/Communications room as long at it remains on the second floor.
The existing electrical systems are designed to provide
approximately 3 xxxxx/ft of 120 volt AC power to each floor area.
Lighting is supplied separate via the 277 volt AC system.
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Each floor has a bulk lighting and power capacity of
approximately 10 xxxxx/ft based on the existing bus risers and
the emergency distribution on the second floor. This is
independent of the heating and cooling systems serving these
areas. Additional bulk capacity is available at the main
switchboard but would require new devices and/or reconfigurations
to access as well as feeder distribution to points of
utilization. Exact capacity would require verification of total
building existing load verses service size. Electrical power is
provided by TVA through Middle Tennessee Electric Co-op. The
building is connected to two substations by means of an automatic
transfer switch. In the event of loss of power from the primary
substation, the switch automatically transfers to the secondary
substation within approximately 3 seconds. The existing building
generators provide emergency power to all life safety lighting
and security needs, as well as emergency back up power to the
elevators and to the 2nd floor of each individual building
including all electrical circuits, lighting and HVAC. The Data
Center will be separately metered for electricity at Tenant's
sole cost, subject to review and approval of plans and
specifications by Landlord, which shall not be unreasonably
withheld.
(iii) Operatorless elevator service.
(iv) Building standard fluorescent lighting fixtures; Tenant shall
service, replace and maintain at its own expense any incandescent
fixtures, table lamps, or lighting other than the building
standard fluorescent light, and any dimmers or lighting controls
other than controls for the building standard fluorescent
lighting.
(v) Heating and air conditioning for the reasonably comfortable use
and occupancy of the Premises during Business Hours as set forth
in Section 1h; provided that, heating and cooling conforming to
any governmental regulation prescribing limitations thereon shall
be deemed to comply with this service. As a component of the HVAC
system, an automatic damper system operates in the event that a
roof top unit for Floors 1-5 should fail. If failure occurs, the
air supply from the lower level unit is re-routed to supply air
to the floor in question.
(vi) After Business Hours, weekend and holiday heating and air
conditioning at the After Hours HVAC rate set forth in Section
1j, with such charges subject to commercially reasonable annual
increases (consistent with any increase in Landlord's actual
utility costs) as reasonably determined by Landlord.
(vii) Janitorial services five (5) days a week (excluding National and
State holidays) after Business Hours, described in Exhibit D
attached hereto.
(viii) Non-exclusive use of the unreserved parking spaces of the
Building, not to exceed the Parking specified in Section 1k, for
use by Tenant's employees
15
and visitors in common with the other tenants and their employees
and visitors.
(ix) Interior security guard services for the Building to monitor the
parking lot and other Common Areas as well as the interior of the
Building. Additional security services shall be provided to
Tenant at Tenant's cost. Tenant shall have access to the Premises
24 hours/day, 7 days a week. Ingress and egress is currently
accessed by a card key system.
(x) Fiber optic communication cabling to the Building is provided by
Bellsouth. The Building is served as a RAC (Remote Access
Circuit) off the ring. Landlord offers Tenant the right to
install fiber according to Tenant's needs, subject to approval by
Bellsouth. Landlord makes no representations as to the current
status of cabling within the Premises.
(xi) Landlord will maintain or cause to maintain a fitness facility
within the Office Complex. Landlord will also provide or cause to
be provided onsite food service within the Office Complex with
minimum operating hours of 7:30 AM to 2:00 PM., Monday through
Friday. Landlord shall provide 24/7 vending machine and banking
(ATM) services within the Office Complex.
(xii) Tenant shall be permitted to use the Conference Rooms located in
the lower level of Building C, on a first come, first served
basis, upon one (1) day prior written notice. Rental for each
Conference Room shall be at the rate specified below, and shall
be subject to the terms of this Lease. Tenant will be allowed to
use the Conference Rooms up to five (5) times per year at no
charge; any subsequent use of the Conference Rooms will be at the
rate of $25 per occurrence. Tenant will be responsible for
leaving the Conference Rooms in clean condition.
b. Landlord's Maintenance. Landlord shall maintain and make all repairs and
replacements to the Building (including Building fixtures and equipment), Common
Areas and Building Standard Improvements in the Premises, all in a manner
consistent with the maintenance of Class A office space, except for repairs and
replacements that Tenant must make under Section 8. Landlord's maintenance shall
include the roof, foundation, exterior walls, interior structural walls, all
structural components, and all Building systems, such as mechanical, electrical,
HVAC and plumbing. Repairs or replacements shall be made within a reasonable
time (depending on the nature of the repair or replacement needed) after
receiving notice from Tenant or Landlord having actual knowledge of the need for
a repair or replacement.
c. No Abatement. Except as provided below, there shall be no abatement or
reduction of Rent by reason of any of the foregoing services not being
continuously provided to Tenant. Landlord shall have the right to shut down the
Building systems (including electricity and HVAC systems) to the extent
reasonably necessary for required maintenance and safety inspections, and in
cases of emergency; provided, however, that Landlord shall use commercially
reasonable efforts to cause any such shutdown of services to occur at such
times, and in such manner, so as to provide minimal interference with Tenant's
business operations, and
16
shall consult with Tenant as to how to achieve such result (unless, in case of
emergency, consultation with Tenant is not practical). In the event of any
failure or interruption of the services described above that continues for more
than 72 consecutive hours, Tenant shall be entitled to an equitable abatement of
Rent for each day that such failure or interruption continues if such failure or
interruption materially and adversely affects Tenant's ability to operate its
business within the Premises.
d. Tenant's Obligation to Report Defects. Tenant shall promptly report to
Landlord any defective condition in or about the Premises known to Tenant.
e. Limitation on Landlord's Liability. Landlord shall not be liable to
Tenant for any damage caused to Tenant and its property due to the Building or
any part or appurtenance thereof being improperly constructed or being or
becoming out of repair, or arising from the leaking of gas, water, sewer or
steam pipes, or from problems with electrical service.
8. TENANT'S ACCEPTANCE AND MAINTENANCE OF PREMISES.
a. Acceptance of Premises. Subject to the terms of the attached Workletter,
if any, Tenant's occupancy of the Premises is Tenant's representation to
Landlord that (i) Tenant has examined and inspected the Premises, (ii) finds the
Premises to be as represented by Landlord and satisfactory for Tenant's intended
use, and (iii) constitutes Tenant's acceptance of the Premises "as is". Landlord
makes no representation or warranty as to the condition of the Premises except
as may be specifically set forth in the Workletter or in this Lease. In no event
shall the foregoing provision be construed as a waiver of any of Landlord's
repair obligations under Section 7b or any of Landlord's obligations under the
Workletter
b. Move-In Obligations. Tenant shall schedule its move-in with the
Landlord's Property Manager. Unless otherwise approved by Landlord's Property
Manager, move in shall not take place during Business Hours. During Tenant's
move-in, a representative of Tenant must be on-site with Tenant's moving company
to insure proper treatment of the Building and the Premises. Elevators,
entrances, hallways and other Common Areas must remain in use for the general
public during business hours. Any specialized use of elevators or other Common
Areas must be coordinated with Landlord's Property Manager. Tenant must properly
dispose of all packing material and refuse in accordance with the Rules and
Regulations described in Section 12b. Subject to Section 14e, any damage or
destruction to the Building or the Premises due to moving will be the sole
responsibility of Tenant.
c. Tenant's Maintenance. Tenant shall: (i) keep the Premises and fixtures
(excluding those items that Landlord is obligated to repair pursuant to Section
7b) in the same or better condition as it existed on the Commencement Date; (ii)
make repairs and replacements to the Premises or Building needed because of
Tenant's misuse or negligence (subject, however, to Section 14e); (iii) repair
and replace Non-Standard Improvements, including any special equipment or
decorative treatments, installed by or at Tenant's request that serve the
Premises (unless the Lease is ended because of casualty loss or condemnation);
and (iv) not commit waste.
d. Alterations to Premises. Tenant shall make no structural or interior
alterations to the Premises. If Tenant requests such alterations and such
alterations are structural in nature, then Tenant shall provide Landlord with a
complete set of construction drawings. If Landlord
17
consents to the alterations, then the Landlord shall determine the actual cost
of the work to be done. Tenant may then either agree to pay Landlord to have the
work done or withdraw its request for alterations; provided, however, that at
Tenant's request, Landlord shall not unreasonably withhold its consent to
allowing Tenant and/or Tenant's contractors to perform such work. All such
alterations are subject to the prior written approval of Landlord, which
approval shall not be unreasonably withheld, conditioned or delayed. Subject to
the terms of this paragraph, and notwithstanding any provision of this Lease to
the contrary, Landlord agrees to allow Tenant to construct (i) a data center
within the Premises and to install equipment (which may include generator,
condensers, UPS, etc.) in the Building and around the land surrounding the
Building necessary to facilitate the operation of Tenant's data center, and (ii)
an opening in the curtain wall of Floor 1 of Building C, to install two (2) four
foot doors within such opening, to improve the outside area for delivery access
and to install other improvements (which may include a large dumpster) to the
Building and the land surrounding the Building necessary to facilitate the
operation of Tenant's Fulfillment Center. All such alterations shall be
performed by Tenant's contractors (which shall be subject to Landlord's
approval, not to be unreasonably withheld), at Tenant's sole cost and expense.
Notwithstanding the above paragraph, Tenant shall have the right to make
nonstructural and nonsystems related alterations ("Tenant Alterations") up to a
value of $15,000.00 per occurrence (not to exceed $60,000 during any 12-month
period) without Landlord's prior written consent (which consent shall not be
unreasonably withheld), provided Tenant shall provide notice to Landlord of its
intent to make the Tenant Alterations. Such notice shall include a copy of plans
and specifications (if such alterations are of a character that would reasonably
require plans and specifications) and copies of all permits, if required by the
appropriate municipality, and any contracts for such Tenant Alterations. All
Tenant Alterations shall be performed by contractors approved by Landlord which
approval shall not be unreasonably withheld, and in accordance with all
applicable laws and the rules and regulations described in Section 12b.
e. Restoration of Premises. At the expiration or earlier termination of
this Lease, Tenant shall (i) deliver each and every part of the Premises in the
same or better repair and condition as it existed at the Commencement Date,
ordinary wear and tear and damage by casualty excepted, and (ii) restore the
Premises at Tenant's sole expense to the same condition as existed at the
Commencement Date, ordinary wear and tear and damage by casualty excepted. If
Tenant has required or installed Non-Standard Improvements, such improvements
shall be removed as part of Tenant's restoration obligation unless, at the time
such Non-Standard Improvements were installed, Landlord informed Tenant in
writing that (x) removal of such improvements would not be required, or (y)
Landlord would require Tenant to leave such improvements in the Premises. Tenant
shall repair any damage caused by the removal of any Non-Standard Improvements.
"Non-Standard Improvements" means such items as (i) High Demand Equipment and
separate meters, (ii) all wiring and cabling from the point of origin to the
termination point, (iii) raised floors for computer or communications systems,
(iv) telephone equipment, security systems, and UPS systems, (v) equipment
racks, (vi) alterations installed by or at the request of Tenant after the
Commencement Date, and (vii) any other improvements that are not part of the
Building Standard Improvements.
f. Landlord's Performance of Tenant's Obligations. If Tenant does not
perform its maintenance or restoration obligations in a timely manner,
commencing the same within five (5) days after receipt of notice from Landlord
specifying the work needed, and thereafter diligently
18
and continuously pursuing the work until completion, then Landlord shall have
the right, but not the obligation, to perform such work. Any amounts expended by
Landlord on such maintenance or restoration shall be Additional Rent to be paid
by Tenant to Landlord within thirty (30) days after demand.
g. Construction Liens. Tenant shall have no power to do any act or make any
contract that may create or be the foundation of any lien, mortgage or other
encumbrance upon the reversionary or other estate of Landlord, or any interest
of Landlord in the Premises. NO CONSTRUCTION LIENS OR OTHER LIENS FOR ANY LABOR,
SERVICES OR MATERIALS FURNISHED TO THE PREMISES SHALL ATTACH TO OR AFFECT THE
INTEREST OF LANDLORD IN AND TO THE PREMISES OR THE BUILDING. Tenant shall keep
the Premises and the Building free from any liens arising out of any work
performed, materials furnished, or obligations incurred by or on behalf of
Tenant. Should any lien or claim of lien be filed against the Premises or the
Building by reason of any act or omission of Tenant or any of Tenant's agents,
employees, contractors or representatives, then Tenant shall cause the same to
be canceled and discharged of record by bond or otherwise within twenty (20)
days after Tenant receives notice of the filing thereof. Should Tenant fail to
discharge the lien within twenty (20) days, then Landlord may discharge the
lien. The amount paid by Landlord to discharge the lien (whether directly or by
bond), plus all administrative and legal costs incurred by Landlord, shall be
Additional Rent payable on demand. The remedies provided herein shall be in
addition to all other remedies available to Landlord under this Lease or
otherwise.
h. Communications Compliance. Tenant acknowledges and agrees that any and
all telephone and telecommunication services desired by Tenant shall be ordered
and utilized at the sole expense of Tenant. Unless Landlord requests otherwise
or consents in writing, all of Tenant's telecommunications equipment shall be
located and remain solely in the Premises in accordance with reasonable rules
and regulations adopted by Landlord from time to time, and shall be subject to
the restrictive covenants set forth in the Protective Covenants, which requires
the prior written approval by the Owners Association for any communication
equipment installed outside the Building. Landlord agrees to cooperate with
Tenant in seeking such approval. Landlord shall not have any responsibility for
the maintenance of Tenant's telecommunications equipment, including wiring; nor
for any wiring or other infrastructure to which Tenant's telecommunications
equipment may be connected. Tenant agrees that, to the extent any
telecommunications service is interrupted, curtailed or discontinued, Landlord
shall have no obligation or liability with respect thereto. Landlord shall have
the right, upon reasonable prior oral or written notice to Tenant, to interrupt
or turn off telecommunications facilities in the event of emergency or as
necessary in connection with repairs to the Building or installation of
telecommunications equipment for other tenants of the Building; provided,
however, Landlord shall use commercially reasonable efforts to cause any such
interruption to occur at such time, and in such manner, so as to provide minimal
interference with Tenant's business operations and shall consult with Tenant as
to how to achieve such result (unless in case of emergency, consultation with
Tenant is not practical). Tenant may utilize the services of any telephone or
telecommunications provider that it may elect, but Tenant shall be responsible
for any cost associated with the installation of any new lines to or within the
Building. Tenant shall be permitted to install and implement its own wireless
network within the Premises so long as such wireless system does not interfere
with the wireless systems(s) used by other tenants in the Building, but shall
not be permitted to install antennae and satellite receiver dishes to the
exterior of the Building, without Landlord's prior written consent, which
consent shall not be
19
unreasonably withheld; provided, however, that Tenant shall be permitted to
install a satellite dish on the exterior of the Building upon Tenant's execution
of the License Agreement attached hereto as Exhibit F. Landlord shall use good
faith efforts to restrict other tenants from using wireless services or other
devices that would block Tenant's use of its own wireless service At Landlord's
option, Tenant may be required to remove any and all telecommunications
equipment (including wireless equipment) installed in the Premises or elsewhere
in or on the Building by or on behalf of Tenant, including wiring, or other
facilities for telecommunications transmittal prior to the expiration or
termination of the Lease and at Tenant's sole cost. Installation of any approved
satellite dishes shall be subject to Landlord's standard license agreement in
Exhibit F attached hereto.
9. PROPERTY OF TENANT.
a. Property Taxes. Tenant shall pay when due all taxes levied or assessed
upon Tenant's equipment, fixtures, furniture, leasehold improvements and
personal property located in the Premises.
b. Removal. Provided Tenant is not in default, Tenant may remove all
fixtures and equipment which it has placed in the Premises; provided, however,
Tenant must repair all damages caused by such removal. If Tenant does not remove
its property from the Premises upon the expiration or earlier termination (for
whatever cause) of this Lease, such property shall be deemed abandoned by
Tenant, at the option of Landlord, and Landlord may dispose of the same in
whatever manner Landlord may elect without any liability to Tenant.
10. SIGNS. Tenant may not erect, install or display any sign or advertising
material upon the exterior of the Building or Premises (including any exterior
doors, walls or windows) without the prior written consent of Landlord, which
consent may be withheld in Landlord's sole discretion. Door and directory
signage shall be provided and installed by the Landlord in accordance with
building standards at Landlord's expense, unless otherwise provided in the
Workletter attached as Exhibit A-1. In the event exterior monument signs become
available to tenants in the Building, Tenant shall be entitled to its prorata
share of space on such monument signs, to be installed at Tenant's expense, and
subject to Landlord's then existing sign criteria established for the Building
and all laws, regulations and covenants and restrictions affecting the Building.
20
11. ACCESS TO PREMISES.
a. Tenant's Access. Tenant, its agents, employees, invitees, and guests,
shall have access to the Premises and reasonable ingress and egress to common
and public areas of the Building twenty-four hours a day, seven days a week;
provided, however, Landlord by reasonable regulation may control such access for
the comfort, convenience, safety and protection of all tenants in the Building,
or as needed for making repairs and alterations. Tenant shall be responsible for
providing access to the Premises to its agents, employees, invitees and guests
after business hours and on weekends and holidays, but in no event shall
Tenant's use of and access to the Premises during non-business hours compromise
the security of the Building. Tenant may relocate its Fulfillment Center
operation to the Premises for shipping and receiving computer equipment and
shall utilize double doors located on the ground floor of Building C on the
Building B side.
b. Landlord's Access. Landlord shall have the right, at all reasonable
times and upon reasonable oral notice, either itself or through its authorized
agents, to enter the Premises (i) to make repairs, alterations or changes as
Landlord deems necessary, (ii) to inspect the Premises, mechanical systems and
electrical devices, and (iii) to show the Premises to prospective mortgagees and
purchasers. However, no access shall be permitted to Data Center without a
representative of Tenant, except in an emergency. Tenant shall reasonably
cooperate with Landlord to arrange for a representative to be present to carry
out (i), (ii) and (iii) above. Within one hundred eighty (180) days prior to the
Expiration Date, Landlord shall have the right, either itself or through its
authorized agents, to enter the Premises at all reasonable times, and upon
reasonable prior notice, to show prospective tenants.
c. Emergency Access. Landlord shall have the right to enter the Premises at
any time without notice in the event of an emergency.
12. TENANT'S COMPLIANCE.
a. Laws. Tenant shall comply with all applicable laws, ordinances and
regulations affecting the Premises, whether now existing or hereafter enacted
("Laws"). Notwithstanding the foregoing, Tenant shall have no obligations to
make structural alterations to the Premises unless and until (i) such structural
alterations are required solely as a result of Tenant's particular use of the
Premises (as opposed to office use in general), (ii) Tenant has received written
demand to make such structural alterations from an applicable governmental
authority having jurisdiction and ability to enforce such demand, and (iii)
Tenant, if it so desires, shall have had the opportunity to appeal and/or
contest any such requirement.
b. Rules and Regulations. Tenant shall comply with the Rules and
Regulations attached as Exhibit B. The Rules and Regulations may be reasonably
modified from time to time by Landlord, effective as of the date that is 15 days
after notice of such modification is delivered to Tenant, provided such rules
are uniformly applicable to all tenants in the Building. Any conflict between
this Lease and the Rules and Regulations shall be governed by the terms of this
Lease.
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13. ADA COMPLIANCE.
a. Tenant's Compliance. Tenant, at Tenant's sole expense, shall comply with
all laws, rules, orders, ordinances, directions, regulations and requirements of
federal, state, county and municipal authorities now in force, which shall
impose any duty upon Landlord or Tenant with respect to the use or occupation of
the Premises or alteration of the Premises to accommodate persons with special
needs, including using all reasonable efforts to comply with The Americans With
Disabilities Act (the "ADA"). Notwithstanding the foregoing, Tenant shall have
no obligations to make structural alterations to the Premises unless and until
(i) such structural alterations are required solely as a result of Tenant's
particular use of the Premises (as opposed to office use in general), (ii)
Tenant has received written demand to make such structural alterations from an
applicable governmental authority having jurisdiction and ability to enforce
such demand, and (iii) Tenant, if it so desires, shall have had the opportunity
to appeal and/or contest any such requirement.
b. Landlord's Compliance. Landlord represents that, to the best of
Landlord's knowledge, the Building and the Common Areas are in compliance with
the ADA. Landlord, at Landlord's sole expense, shall use all reasonable efforts
to meet the requirements of the ADA as it applies to the Common Areas and
restrooms of the Building; but Landlord shall have no responsibility for ADA
compliance with respect to the Premises (unless the applicable requirement
relates to general office use and is not required solely as a result of Tenant's
particular use of the Premises). Landlord shall not be required to make changes
to the Common Areas or restrooms of the Building to comply with ADA standards
adopted after construction of the Building unless specifically required to do so
by law.
c. ADA Notices. If Tenant receives any notices alleging a violation of ADA
relating to any portion of the Building or Premises (including any governmental
or regulatory actions or investigations regarding non-compliance with ADA), then
Tenant shall notify Landlord in writing within ten (10) days of such notice and
provide Landlord with copies of any such notice. If Landlord receives any
notices alleging a violation of ADA relating to any portion of the Building or
Premises (including any governmental or regulatory actions or investigations
regarding non-compliance with ADA), then Landlord shall notify Tenant in writing
within ten (10) days of such notice and provide Tenant with copies of any such
notice.
14. INSURANCE REQUIREMENTS.
a. Indemnity. Tenant shall indemnify and save harmless Landlord and its
parent, subsidiaries and affiliates and their respective officers, directors and
employees, agents and assigns (herein called "Indemnitees") from and against all
liabilities, obligations, losses, damages, penalties, claims, actions, suits,
costs, charges, subrogations and expenses, including without limitation, fees
and expenses of legal counsel asserted against the Indemnitees, or any of them,
by reason of actual or alleged (i) injury or death to persons (including without
limitation, employees of one or more of the Indemnitees or of Tenant and
employees of its contractors, subcontractors, vendors or agents), (ii) damage to
the property of any person or legal entity (including without limitation, the
property of one or more of the Indemnitees and the property of its contractors,
subcontractors, vendors, agents or employees), as a result of or arising out of
use of the Premises by Tenant, or its contractors, subcontractors, vendors,
agents and/or employees.
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However, the foregoing agreement to indemnify and hold the Indemnitees harmless
shall not be applicable to the extent that such liabilities, obligations,
losses, damages, penalties, claims, actions, suits, costs, charges, subrogations
and expenses are caused by the sole negligence or intentional misconduct of the
Indemnitees. The provisions of this paragraph (a) of Section 14 shall survive
the termination of this Lease with respect to any damage, injury or death
occurring prior to such termination.
b. Landlord Indemnity. Landlord shall indemnify and save harmless Tenant
and its parent, subsidiaries and affiliates and their respective officers,
directors and employees, agents and assigns (herein called "Tenant Indemnitees")
from and against all liabilities, obligations, losses, damages, penalties,
claims, actions, suits, costs, charges, subrogations and expenses, including
without limitation, fees and expenses of legal counsel asserted against the
Tenant Indemnitees, or any of them, by reason of actual or alleged (i) injury or
death to persons (including without limitation, employees of one or more of the
Tenant Indemnitees or of Tenant and employees of its contractors,
subcontractors, vendors or agents), (ii) damage to the property of any person or
legal entity (including without limitation, the property of one or more of the
Tenant Indemnitees and the property of its contractors, subcontractors, vendors,
agents or employees), as a result of or arising out of Landlord's obligations
under the Lease with respect to the Premises or the Common Areas (or its
contractors, subcontractors, vendors, agents and/or employees). However, the
foregoing agreement to indemnify and hold the Tenant Indemnitees harmless shall
not be applicable to the extent that such liabilities, obligations, losses,
damages, penalties, claims, actions, suits, costs, charges, subrogations and
expenses are caused by the sole negligence or intentional misconduct of the
Tenant Indemnitees. The provisions of this paragraph (b) of Section 14 shall
survive the termination of this Lease with respect to any damage, injury or
death occurring prior to such termination.
c. Tenant's Insurance. At its sole cost and expense, Tenant shall procure
and maintain continuously throughout the term of this Lease from such companies
as are reasonably acceptable to Landlord and listed in the most current "Best's
Insurance Guide" as possessing a minimum policy holders rating of "A-"
(Excellent) and a financial category no lower than "VI" ($25,000,000 to
$50,000,000 of adjusted policy holders surplus). The following insurance shall
cover Tenant's activities under this Lease whether such activities be by itself
or by any subcontractor or by anyone directly or indirectly employed by any of
them, or by anyone for whose acts any of them may be liable:
(i) Workers' Compensation Insurance with statutory limits or a State
Certificate of self-insurance and Employer's Liability coverage
with limits of not less than $1,000,000 per occurrence.
(ii) Occurrence type Commercial General Liability Insurance, including
but not limited to blanket contractual liability coverage, for
bodily injury including death, personal injury, and property
damage with limits of not less than $1,000,000 combined single
limit per occurrence.
(iii) Automobile Liability insurance covering all owned, hired and
non-owned vehicles with limits of not less than $1,000,000
combined single limit per occurrence.
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(iv) Umbrella Liability Insurance in excess of the above coverage with
limits of not less than $5,000,000.
From time to time, Tenant shall increase the limits of such policy to such
higher limits as Landlord shall reasonably require, but in no event greater than
the insurance coverage customarily carried by companies and businesses similar
to Tenant in the Nashville, Tennessee area. With the exception of Workers'
Compensation, each insurance policy listed above, and any excess or umbrella
policy carried by Tenant with additional limits than those specified above, must
name Landlord as an additional insured under the policy(s). All insurance
policies of the Tenant shall be endorsed to state that the policy will be
primary, and will not be excess to or contributory with, any self-insurance or
insurance policies carried by Landlord. The insurance policies shall
specifically include the liability assumed hereunder by Tenant. The insurance
policy shall provide that the policy may not be canceled without thirty (30)
days' prior written notice to Landlord. Tenant shall furnish to Landlord an
acceptable certificate of insurance evidencing the coverage required herein on
or before the Commencement Date, and thereafter at least thirty (30) days before
the expiration dates of the expiring policy. The furnishing of acceptable
evidence of required coverage should not relieve Tenant from any liability or
obligation for which it is otherwise responsible to Landlord.
In the event Tenant hereafter performs any alterations to the Premises,
Tenant shall require that its subcontractors procure and/or maintain insurance
coverage at the limits described above. Tenant shall indemnify and be fully
responsible for any cost to Landlord resulting from said subcontractor's failure
to procure and/or maintain said insurance.
d. Tenant's Property Insurance. Tenant shall also carry the equivalent of
ISO Special Form Property Insurance on Tenant's Property for full replacement
value and with coinsurance waived. For purposes of this provision, "Tenant's
Property" shall mean Tenant's personal property and fixtures, and any
Non-Standard Improvements to the Premises. Tenant shall neither have, nor make,
any claim against Landlord for any loss or damage to the Tenant's Property,
unless such damage is due to the failure of Landlord to satisfy its maintenance
obligation under Section 7b above.
e. Certificates of Insurance. Prior to taking possession of the Premises,
and annually thereafter, Tenant shall deliver to Landlord certificates or other
evidence of insurance satisfactory to Landlord. All such policies shall be non
assessable and shall contain language to the extent obtainable that: (i) any
loss shall be payable notwithstanding any act or negligence of Landlord or
Tenant that might otherwise result in forfeiture of the insurance, (ii) that the
policies are primary and non contributing with any insurance that Landlord may
carry, and (iii) that the policies cannot be canceled, non-renewed, or coverage
reduced except after thirty (30) days' prior notice to Landlord. If Tenant fails
to provide Landlord with such certificates or other evidence of insurance
coverage, Landlord may obtain such coverage and the cost of such coverage shall
be Additional Rent payable by Tenant upon demand.
f. Mutual Waiver of Subrogation. Notwithstanding anything set forth in this
Lease to the contrary, Landlord and Tenant each hereby waive any and all rights
of recovery against the other and its parent, subsidiaries and affiliates, and
their respective officers, directors, stockholders, agents, and employees,
relating to losses, injuries or damage of any nature whatsoever to property or
person for which such other party is insured or is required to be
24
insured by the terms of this Lease or for which such party would be insured if
such party had procured ISO Special Form Property Insurance on such party's
property. This mutual subrogation waiver will preclude the assignment of any
insurance claim by way of subrogation to any insurer. Landlord and Tenant agree
to give immediately to each appropriate insurer written notice, if required, of
the terms of these mutual waivers, and if necessary, have said insurance
policies properly endorsed to prevent the invalidation of the insurance
coverages by reason of these waivers, if required by the respective insurance
policies. Landlord and Tenant each shall indemnify the other against any loss or
expense, including but not limited to reasonable attorney's fees, resulting from
the failure to obtain such insurance subrogation waiver.
15. INDEMNITY. Subject to the insurance requirements, releases and mutual
waivers of subrogation set forth in this Lease, Tenant agrees as follows:
a. Tenant's Indemnity. Tenant shall indemnify and hold Landlord harmless
from and against any and all claims, damages, losses, liabilities, lawsuits,
costs and expenses (including attorneys' fees at all tribunal levels) arising
out of or related to (i) any activity, work, or other thing done, permitted or
suffered by Tenant in or about the Premises, (ii) any breach or default by
Tenant in the performance of any of its obligations under this Lease, or (iii)
any act or neglect of Tenant, or any officer, agent, employee, contractor,
servant, invitee or guest of Tenant.
b. Defense Obligation. If any such action is brought against Landlord with
respect to any event for which Tenant has agreed to indemnify Landlord pursuant
to Section 15a above, then Tenant, upon notice from Landlord, shall defend the
same through counsel reasonably acceptable to Landlord. The provisions of this
Section shall survive the termination of this Lease.
16. QUIET ENJOYMENT. Tenant shall have quiet enjoyment and possession of
the Premises provided Tenant promptly and fully complies with all of its
obligations under this Lease. No action of Landlord or other tenants working in
other space in the Building, or in repairing or restoring the Premises shall be
deemed a breach of this covenant, nor shall such action give to Tenant any right
to modify this Lease either as to term, rent payables or other obligations to be
performed. Landlord represents and warrants that it is the fee simple owner of
the Office Complex.
17. SUBORDINATION; ATTORNMENT; NON-DISTURBANCE; AND ESTOPPEL CERTIFICATE.
a. Subordination and Attornment. Tenant agrees to execute within fifteen
(15) days after request to do so from Landlord or its mortgagee an agreement:
(i) Making this Lease superior or subordinate to the interests of the
mortgagee;
(ii) Agreeing to attorn to the mortgagee;
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(iii) Giving the mortgagee notice of, and a reasonable opportunity
(which shall in no event be less than thirty (30) days after
notice thereof is delivered to mortgagee) to cure any Landlord
default and agreeing to accept such cure if effected by the
mortgagee;
(iv) Permitting the mortgagee (or other purchaser at any foreclosure
sale), and its successors and assigns, on acquiring Landlord's
interest in the Premises and the Lease, to become substitute
Landlord hereunder, with liability only for such Landlord
obligations as accrue after Landlord's interest is so acquired;
(v) Agreeing to attorn to any successor Landlord; and
(vi) Containing such other agreements and covenants on Tenant's part
as Landlord's mortgagee may reasonably request.
b. Non-Disturbance. Tenant's obligation to subordinate its interests or
attorn to any mortgagee is conditioned upon the mortgagee's agreement not to
disturb Tenant's possession and quiet enjoyment of the Premises under this Lease
so long as Tenant is in compliance with the terms of the Lease. Landlord
represents and warrants that there are no mortgages or deeds of trust currently
encumbering the Office Complex or the land on which the Office Complex is
located.
c. Estoppel Certificates. Tenant agrees to execute within ten (10) Business
Days after request, and as often as requested, estoppel certificates confirming
any factual matter requested by Landlord which is true and is within Tenant's
knowledge regarding this Lease, and the Premises, including but not limited to:
(i) the date of occupancy, (ii) Expiration Date, (iii) the amount of Rent due
and date to which Rent is paid, (iii) whether Tenant has any defense or offsets
to the enforcement of this Lease or the Rent payable, (iv) any default or breach
by Landlord, and (v) whether this Lease, together with any modifications or
amendments, is in full force and effect. Tenant shall attach to such estoppel
certificate copies of any modifications or amendments to the Lease. If Tenant
fails to deliver the certificate within ten (10) Business Days of Landlord's
request, Landlord and any lender, prospective lender, investor or purchaser may
conclusively presume and rely that, except as otherwise represented by Landlord
such facts contained therein are true. In such event, Tenant is estopped from
denying the truth of such facts.
d. Attorney in Fact. [Intentionally Deleted].
e. Modifications Requested by Lender. If, as a condition of approving this
Lease, Landlord's mortgagee shall request reasonable modifications of this
Lease, Tenant shall not unreasonably withhold or delay its agreement to such
modifications, provided that such modifications do not increase the obligations
or materially and adversely affect the rights of Tenant under this Lease.
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18. ASSIGNMENT - SUBLEASE.
a. Landlord Consent. Tenant may not assign or encumber this Lease or its
interest in the Premises arising under this Lease, and may not sublet all or any
part of the Premises without first obtaining the written consent of Landlord,
which consent shall not be withheld unreasonably. Factors which Landlord may
consider in deciding whether to consent to an assignment or sublease include
(without limitation), (i) the creditworthiness of the assignee or sublessee,
(ii) the proposed use of the Premises, (iii) whether there is other vacant space
in the Building, (iv) whether the assignee or sublessee will vacate other space
owned by Landlord, (v) whether Landlord is negotiating with the proposed
sublessee or assignee for a lease of other space owned by Landlord, and (vi) any
renovations to the Premises or special services required by the assignee or
sublessee. Landlord will not consent to an assignment or sublease that might
result in a use that conflicts with the rights of any existing tenant. One
consent shall not be the basis for any further consent.
b. Definition of Assignment. For the purpose of this Section 18, the word
"assignment" shall be defined and deemed to include the following: (i) if Tenant
is a partnership, the withdrawal or change, whether voluntary, involuntary or by
operation of law, of partners owning thirty percent (30%) or more of the
partnership, or the dissolution of the partnership; (ii) if Tenant consists of
more than one person, an assignment, whether voluntary, involuntary, or by
operation of law, by one person to one of the other persons that is a Tenant;
(iii) if Tenant is a corporation, any dissolution or reorganization of Tenant,
or the sale or other transfer of a controlling percentage (hereafter defined) of
capital stock of Tenant other than to an affiliate or subsidiary or the sale of
fifty one percent (51%) in value of the assets of Tenant; (iv) if Tenant is a
limited liability company, the change of members whose interest in the company
is fifty percent (50%) or more. The phrase "controlling percentage" means the
ownership of, and the right to vote, stock possessing at least fifty one percent
(51%) of the total combined voting power of all classes of Tenant's capital
stock issued, outstanding and entitled to vote for the election of directors, or
such lesser percentage as is required to provide actual control over the affairs
of the corporation; except that, if the Tenant is a publicly traded company,
public trades or sales of the Tenant's stock on a national stock exchange shall
not be considered an assignment hereunder even if the aggregate of the trades of
sales exceeds fifty percent (50%) of the capital stock of the company.
c. Permitted Assignments/Subleases. Notwithstanding the foregoing, Tenant
may assign this Lease or sublease part or all of the Premises without Landlord's
consent to: (i) any corporation, limited liability company, or partnership that
controls, is controlled by, or is under common control with, Tenant; or (ii) any
corporation or limited liability company resulting from the merger or
consolidation with Tenant or to any entity that acquires all of Tenant's assets
as a going concern of the business that is being conducted on the Premises;
provided however, the assignor remains liable under the Lease and the assignee
or sublessee is a bona fide entity and assumes the obligations of Tenant and
continues the same Permitted Use as provided under Section 4.
d. Notice to Landlord. Landlord must be given prior written notice of every
assignment or subletting, and failure to do so shall be a default hereunder.
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e. Prohibited Assignments/Subleases. In no event shall this Lease be
assignable by operation of any law (except as permitted by Section 18c), and
Tenant's rights hereunder may not become, and shall not be listed by Tenant as
an asset under any bankruptcy, insolvency or reorganization proceedings.
Acceptance of Rent by Landlord after any non permitted assignment or sublease
shall not constitute approval thereof by Landlord.
f. Limitation on Rights of Assignee/Sublessee. Any assignment or sublease
for which Landlord's consent is required shall not include the right to exercise
any options to renew the Lease Term, expand the Premises, or similar options,
unless specifically provided for in the consent.
g. Tenant Not Released. No assignment or sublease shall release Tenant of
any of its obligations under this Lease.
h. Landlord's Right to Collect Sublease Rents upon Tenant Default. If the
Premises (or any portion) is sublet and Tenant defaults under its obligations to
Landlord, then Landlord is authorized, at its option, to collect all sublease
rents directly from the Sublessee. Tenant hereby assigns the right to collect
the sublease rents to Landlord in the event of Tenant default. The collection of
sublease rents by Landlord shall not relieve Tenant of its obligations under
this Lease, nor shall it create a contractual relationship between Sublessee and
Landlord or give Sublessee any greater estate or right to the Premises than
contained in its Sublease.
i. Excess Rents. If Tenant assigns this Lease or subleases all or part of
the Premises at a rental rate that exceeds the rentals paid to Landlord, then
50% of any such excess (less costs of subleasing, including commissions,
marketing expenses, improvement allowances and Landlord Fees) shall be paid over
to Landlord by Tenant.
j. Landlord's Fees. Tenant shall pay Landlord all costs, not to exceed
$2,500, together with an administrative fee of $500.00 per assignment or
sublease transaction for which consent is required.
k. Unauthorized Assignment or Sublease. Any unauthorized assignment or
sublease shall constitute a default under the terms of this Lease. In addition
to its other remedies for such default, Landlord may elect to increase Base Rent
to 125% of the Base Rent reserved under the terms of this Lease.
19. DAMAGES TO PREMISES.
a. Landlord's Restoration Obligations. If the Building or Premises are
damaged by fire or other casualty ("Casualty"), then Landlord shall repair and
restore the Premises to substantially the same condition of the Premises
immediately prior to such Casualty, subject to the following terms and
conditions:
(i) [INTENTIONALLY DELETED]
(ii) [INTENTIONALLY DELETED]
28
(iii) Landlord shall have no obligation to repair and restore Tenant's
trade fixtures, decorations, signs, contents, or any Non-Standard
Improvements to the Premises.
b. Termination of Lease by Landlord. Landlord shall have the option of
terminating the Lease if: (i) the Premises is rendered wholly untenantable; (ii)
[INTENTIONALLY DELETED]; (iii) [INTENTIONALLY DELETED]; (iv) the Premises is
damaged in whole or in part during the last two years of the Term; or (v) the
Building containing the Premises is damaged (whether or not the Premises is
damaged) to an extent of fifty percent (50%) or more of the fair market value
thereof. If Landlord elects to terminate this Lease, then it shall give notice
of the cancellation to Tenant within sixty (60) days after the date of the
Casualty. Tenant shall vacate and surrender the Premises to Landlord within
thirty (30) days after receipt of the notice of termination.
c. Termination of Lease by Tenant. Tenant shall have the option of
terminating the Lease if: (i) the Premises is damaged in whole or in part during
the last two years of the Term, (ii) the damage to the Premises cannot
reasonably be repaired and restored within one hundred eighty (180) days; or
(iii) Landlord has failed to substantially restore the damaged Building or
Premises within one hundred eighty (180) days of the Casualty, as extended by
force majeure. If Landlord is delayed by force majeure, then Landlord must
provide Tenant with notice of the delays within fifteen (15) days of the force
majeure event stating the reason for the delays and a good faith estimate of the
length of the delays.
d. Rent Abatement. If Premises is rendered wholly untenantable by the
Casualty, then the Rent payable by Tenant shall be fully abated. If the Premises
is only partially damaged, then Rent and other charges shall be abated
proportionately to the portion of the Premises rendered untenantable. The
abatement shall be from the date of the Casualty until the Premises have been
substantially repaired and restored, or until Tenant's business operations are
restored in the entire Premises, whichever shall first occur. However, if the
Casualty is caused by the negligence or other wrongful conduct of Tenant or of
Tenant's subtenants, licensees, contractors, or invitees, or their respective
agents or employees, there shall be no abatement of Rent.
e. Waiver of Claims. The rights of Tenant under this Article 19 shall
constitute Tenant's exclusive remedies against Landlord in the event of a
Casualty. Tenant hereby waives all claims against Landlord for any compensation
or damage for loss of use of the whole or any part of the Premises and/or for
any inconvenience or annoyance occasioned by any Casualty and any resulting
damage, destruction, repair, or restoration.
20. EMINENT DOMAIN.
a. Effect on Lease. If all of the Premises (or a portion thereof such that
Tenant cannot continue use of the remainder) are taken under the power of
eminent domain (or by conveyance in lieu thereof), then this Lease shall
terminate as of the date possession is taken by the condemnor, and Rent shall be
adjusted between Landlord and Tenant as of such date. If only a portion of the
Premises is taken and Tenant can continue use of the remainder, then this Lease
will not terminate, but Rent shall xxxxx in a just and proportionate amount to
the loss of use occasioned by the taking.
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b. Right to Condemnation Award. Landlord shall be entitled to receive and
retain the entire condemnation award for the taking of the Building and
Premises. Tenant shall have no right or claim against Landlord for any part of
any award received by Landlord for the taking. Tenant shall have no right or
claim for any alleged value of the unexpired portion of this Lease or its
leasehold estate. Tenant, however, shall not be prevented from making a claim
against the condemning party (but not against Landlord) for any moving expenses
or for costs of removal, relocation, business interruption expense, loss of
profits, or taking of Tenant's personal property (other than its leasehold
estate) to which Tenant may be entitled; provided that any such award shall not
reduce the amount of the award otherwise payable to Landlord for the taking of
the Building and Premises.
21. ENVIRONMENTAL COMPLIANCE.
a. Hazardous Material. "Hazardous Material" shall mean any of the
following: asbestos or any substance containing more than 0.1 percent asbestos
and deemed hazardous under any Hazardous Material Law (defined below); the group
of organic compounds known as polychlorinated biphenyls; flammable explosives;
radioactive materials; chemicals known to cause cancer or reproductive toxicity;
pollutants, effluents, contaminants, emissions or related materials and any
items included in the definition of hazardous or toxic wastes, materials or
substances under the Hazardous Material Laws; and any mixture of a Hazardous
Material (regardless of concentration) with other materials.
b. Hazardous Material Laws. "Hazardous Material Laws" shall mean any law
relating to environmental conditions and industrial hygiene, including, without
limitation, the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.
S. C. 6901 et seq., the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA"), 42 U. S. C. 9601 et seq., as amended by the
Superfund Amendments and Reauthorization Act of 1986 ("XXXX"), the Hazardous
Materials Transportation Act, 49 U. S. C. 1801, et seq., the Federal Water
Pollution Control Act, 33 U. S. C. 1251 et seq., the Clean Air Act, 42 U. S. C.
7401 et seq., the Clean Water Act, 33 U. S. C. 7401, et seq., the Toxic
Substances Control Act, 15 U. S. C. 2601 et seq., the Safe Drinking Water Act,
42 U. S. C. 300f et seq., and all similar federal, state and local environmental
statutes, ordinances and the regulations, orders, decrees now or hereafter
promulgated thereunder.
c. Indemnity. Tenant shall and hereby does agree to pay, protect, defend,
indemnify and hold Landlord harmless from and against any and all loss, damages,
expenses, fees, claims, costs and liabilities (including, but not limited to,
attorneys' fees and costs of litigation) arising out of or in any manner related
to the generation, storage, use, treatment or disposal of Hazardous Materials or
violation of Hazardous Materials Laws at the Premises and the Common Area by
Tenant or its agents, employees or contractors. Landlord shall and hereby does
agree to pay, protect, defend, indemnify and hold Tenant harmless from and
against any and all loss, damages, expenses, fees, claims, costs and liabilities
(including, but not limited to attorney's fees and cost of litigation) arising
out of or in any manner related to the generation, storage, use, treatment or
disposal of Hazardous Materials or violation of Hazardous Materials Laws at the
Premises by Landlord or its agents, employees or contractors.
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d. Tenant's Covenants. Tenant covenants and agrees that (a) it will not
violate any Hazardous Materials Laws (b) no activity shall be undertaken on the
Premises or the Common Area which would cause: (i) the Premises or the Common
Area to become a hazardous waste treatment, storage or disposal facility within
the meaning of, or otherwise bring the Premises or the Common Area within the
ambit of, any Hazardous Material Law, (ii) a release or threatened release of
Hazardous Material from the Premises or the Common Area within the meaning of,
or otherwise bring the Premises or the Common Area within the ambit of, any
Hazardous Material Law, or (iii) the discharge of Hazardous Material into any
watercourse, body of surface or subsurface water or wetland, or into the
atmosphere of any Hazardous Material which would require a permit under any
Hazardous Material Law; (c) no activity shall be undertaken with respect to the
Premises or the Common Area which would cause a violation or support a claim
under any Hazardous Material Law; (d) no underground storage tanks or
underground deposits will be located on the Premises or the Common Area. The
foregoing shall not prohibit the proper use and storage by Tenant of normal
cleaning supplies and office supplies customarily used for the Permitted Use,
all of which shall be permitted so long as such items are stored and used in
compliance with Hazardous Materials Laws.
e. Inspections by Landlord. Landlord and its engineers, technicians, and
consultants (collectively the "Auditors") may, from time to time as Landlord
deems appropriate, conduct periodic tests and examinations ("Audits") of the
Premises to confirm and monitor Tenant's compliance with this Section 21. Such
Audits shall be conducted in such a manner as to minimize the interference with
Tenant's Permitted Use; however in all cases, the Audits shall be of such nature
and scope as shall be reasonably required by then existing technology to confirm
Tenant's compliance with this Section 21. Tenant shall fully cooperate with
Landlord and its Auditors in the conduct of such Audits. The cost of such Audits
shall be paid by Landlord unless an Audit shall disclose a material failure of
Tenant to comply with this Section 21, in which case, the cost of such Audit,
and the cost of all subsequent Audits made during the Term and within thirty
(30) days thereafter (not to exceed two (2) such Audits per calendar year),
shall be paid for on demand by Tenant.
f. Property. For the purposes of this Section 21, the term "Property" shall
include the Premises, Building, all Common Areas, the real estate upon which the
Building is located; all personal property (including that owned by Tenant); and
the soil, ground water, and surface water of the real estate upon which the
Building is located.
g. Tenant's Liability After Termination of Lease. The covenants contained
in this Section 21 shall survive the expiration or termination of this Lease,
and shall continue for so long as Landlord and its successors and assigns may be
subject to any expense, liability, charge, penalty, or obligation against which
Tenant has agreed to indemnify Landlord under this Section 21.
22. DEFAULT.
a. Tenant's Default. Tenant shall be in default under this Lease if Tenant:
(i) Fails to pay when due any Base Rent, Additional rent, or any
other sum of money which Tenant is obligated to pay, as provided
in this Lease and
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such default continues for more than five (5) days after written
notice thereof is delivered by Landlord to Tenant; provided,
however, that Landlord shall not be obligated to give Tenant
notice of such default more than once in any 12-month period.
(ii) Breaches any other agreement, covenant or obligation in this
Lease and such breach is not remedied within fifteen (15) days
after Landlord gives Tenant notice specifying the breach, or if
such breach cannot, with due diligence, be cured within fifteen
(15) days, Tenant does not commence curing within fifteen (15)
days and with reasonable diligence completely cure the breach
within a reasonable period of time after the notice;
(iii) Files any petition or action for relief under any creditor's law
(including bankruptcy, reorganization, or similar action), either
in state or federal court, or has such a petition or action filed
against it which is not stayed or vacated within sixty (60) days
after filing; or
(iv) Makes any transfer in fraud of creditors as defined in Xxxxxxx
000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code (11 U.S.C. 548, as
amended or replaced), has a receiver appointed for its assets
(and the appointment is not stayed or vacated within thirty (30)
days), or makes an assignment for benefit of creditors.
(v) If this Lease or any estate of Tenant hereunder shall be levied
upon under any attachment or execution and such attachment or
execution is not vacated within thirty (30) days.
b. Landlord's Remedies. In the event of a Tenant default (including the
expiration of any notice and cure periods set forth above), Landlord at its
option may do one or more of the following:
(i) Terminate this Lease and recover all damages caused by Tenant's
breach, including consequential damages for lost future rent for
the remaining Term of this Lease (excluding any Extension Terms
that have not yet been exercised);
(ii) Repossess the Premises, with or without terminating, and relet
the Premises at such amount as Landlord deems reasonable; all
rent received by Landlord from such reletting shall be applied
first to all reasonable costs and expenses incurred by Landlord
in connection with such re-letting and then to reduce Tenant's
obligations hereunder, with Tenant being responsible for any
deficiency for the remaining Term of this Lease (excluding any
Extension Terms that have not yet been exercised);
(iii) [INTENTIONALLY DELETED]
(iv) Bring action for recovery of all amounts then due from Tenant;
32
(v) Lock the Premises and deny Tenant access thereto without
obtaining any court authorization; or
(vi) Pursue any other remedy available in law or equity.
c. Landlord's Expenses; Attorneys Fees. All reasonable expenses of Landlord
in repairing, restoring, or altering the Premises for reletting as general
office space, together with leasing fees and all other expenses in seeking and
obtaining a new Tenant, shall be charged to and be a liability of Tenant.
Landlord's reasonable attorneys' fees in pursuing any of the foregoing remedies,
or in collecting any Rent or Additional Rent due by Tenant hereunder, shall be
paid by Tenant.
d. Remedies Cumulative. All rights and remedies of Landlord are cumulative,
and the exercise of any one shall not be an election excluding Landlord at any
other time from exercise of a different or inconsistent remedy. No exercise by
Landlord of any right or remedy granted herein shall constitute or effect a
termination of this Lease unless Landlord shall so elect by notice delivered to
Tenant. The failure of Landlord to exercise its rights in connection with this
Lease or any breach or violation of any term, or any subsequent breach of the
same or any other term, covenant or condition herein contained shall not be a
waiver of such term, covenant or condition or any subsequent breach of the same
or any other covenant or condition herein contained.
e. No Accord and Satisfaction. No acceptance by Landlord of a lesser sum
than the Rent, Additional Rent and other sums then due shall be deemed to be
other than on account of the earliest installment of such payments due, nor
shall any endorsement or statement on any check or any letter accompanying any
check or payment be deemed as accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such installment or pursue any other remedy provided in this Lease.
f. No Reinstatement. No payment of money by Tenant to Landlord after the
expiration or termination of this Lease shall reinstate or extend the Term, or
make ineffective any notice of termination given to Tenant prior to the payment
of such money. After the service of notice or the commencement of a suit, or
after final judgment granting Landlord possession of the Premises, Landlord may
receive and collect any sums due under this Lease, and the payment thereof shall
not make ineffective any notice or in any manner affect any pending suit or any
judgment previously obtained.
g. Summary Ejectment. Tenant agrees that in addition to all other rights
and remedies Landlord may obtain an order for summary ejectment from any court
of competent jurisdiction without prejudice to Landlord's rights to otherwise
collect rents or breach of contract damages from Tenant.
h. Surrender. The voluntary or other surrender of this Lease by Tenant, or
a mutual cancellation thereof, shall not work a merger, and shall, at the option
of Landlord, terminate all or any existing subleases or subtenancies, or may, at
the option of Landlord, operate as an assignment to it of any or all such
subleases or subtenancies.
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i. Mitigation. Landlord shall use commercially reasonable efforts to
mitigate Tenant's damages hereunder.
23. MULTIPLE DEFAULTS.
a. Loss of Option Rights. Tenant acknowledges that any rights or options of
first refusal, or to extend the Term, to expand the size of the Premises, to
purchase the Premises or the Building, or other similar rights or options which
have been granted to Tenant under this Lease are conditioned upon the prompt and
diligent performance of the terms of this Lease by Tenant. Accordingly, should
Tenant default under this Lease (beyond applicable periods of notice and cure)
on two (2) or more occasions during any consecutive twelve (12) month period, in
addition to all other remedies available to Landlord, all such rights and
options shall automatically, and without further action on the part of any
party, expire and be of no further force and effect.
b. Increased Security Deposit. Should Tenant default in the payment of Base
Rent, Additional Rent, or any other sums payable by Tenant under this Lease on
two (2) or more occasions during any twelve (12) month period, regardless of
whether Landlord permits such default to be cured, then, in addition to all
other remedies otherwise available to Landlord, Tenant shall, within ten (10)
days after demand by Landlord, post a Security Deposit in, or increase the
existing Security Deposit to a sum equal to three (3) months' installments of
Base Rent. The Security Deposit shall be governed by the terms of this Lease.
c. Effect on Notice Rights and Cure Periods. Should Tenant default under
this Lease on two (2) or more occasions during any consecutive twelve (12) month
period, in addition to all other remedies available to Landlord, any notice
requirements or cure periods otherwise set forth in this Lease with respect to a
default by Tenant shall not apply.
24. BANKRUPTCY.
a. Trustee's Rights. Landlord and Tenant understand that, notwithstanding
contrary terms in this Lease, a trustee or debtor in possession under the United
States Bankruptcy Code, as amended, (the "Code") may have certain rights to
assume or assign this Lease. This Lease shall not be construed to give the
trustee or debtor in possession any rights greater than the minimum rights
granted under the Code.
b. Adequate Assurance. Landlord and Tenant acknowledge that, pursuant to
the Code, Landlord is entitled to adequate assurances of future performance of
the provisions of this Lease. The parties agree that the term "adequate
assurance" shall include at least the following:
(i) In order to assure Landlord that any proposed assignee will have
the resources with which to pay all Rent payable pursuant to the
provisions of this Lease, any proposed assignee must have, as
demonstrated to Landlord's satisfaction, a net worth (as defined
in accordance with generally accepted accounting principles
consistently applied) of not less than the net worth of Tenant on
the Effective Date (as hereinafter defined), increased by seven
percent (7%), compounded annually, for each year
34
from the Effective Date through the date of the proposed
assignment. It is understood and agreed that the financial
condition and resources of Tenant were a material inducement to
Landlord in entering into this Lease.
(ii) Any proposed assignee must have been engaged in the conduct of
business for the five (5) years prior to any such proposed
assignment, which business does not violate the Use provisions
under Section 4 above, and such proposed assignee shall continue
to engage in the Permitted Use under Section 4. It is understood
that Landlord's asset will be substantially impaired if the
trustee in bankruptcy or any assignee of this Lease makes any use
of the Premises other than the Permitted Use.
c. Assumption of Lease Obligations. Any proposed assignee of this Lease
must assume and agree to be personally bound by the provisions of this Lease.
25. NOTICES.
a. Addresses. All notices, demands and requests by Landlord or Tenant shall
be sent to the Notice Addresses set forth in Section 1, or to such other address
as a party may specify by duly given notice.
b. Form; Delivery; Receipt. ALL NOTICES, DEMANDS AND REQUESTS WHICH MAY BE
GIVEN OR WHICH ARE REQUIRED TO BE GIVEN BY EITHER PARTY TO THE OTHER MUST BE IN
WRITING UNLESS OTHERWISE SPECIFIED. Notices, demands or requests shall be deemed
to have been properly given for all purposes if (i) delivered against a written
receipt of delivery, (ii) mailed by express, registered or certified mail of the
United States Postal Service, return receipt requested, postage prepaid, or
(iii) delivered to a nationally recognized overnight courier service for next
business day delivery to the receiving party's address as set forth above or
(iv) delivered via telecopier or facsimile transmission to the facsimile number
listed above, with an original counterpart of such communication sent
concurrently as specified in subsection (ii) or (iii) above and with written
confirmation of receipt of transmission provided. Each such notice, demand or
request shall be deemed to have been received upon the earlier of the actual
receipt or refusal by the addressee or three (3) Business Days after deposit
thereof at any main or branch United States post office if sent in accordance
with subsection (ii) above, and the next Business Day after deposit thereof with
the courier if sent pursuant to subsection (iii) above.
c. Address Changes. The parties shall notify the other of any change in
address, which notification must be at least fifteen (15) days in advance of it
being effective.
d. Notice by Legal Counsel. Notices may be given on behalf of any party by
such party's legal counsel.
26. HOLDING OVER. If Tenant holds over after the Expiration Date or other
termination of this Lease, such holding over shall not be a renewal of this
Lease but shall create a tenancy at sufferance. Tenant shall continue to be
bound by all of the terms and conditions of
35
this Lease, except that during such tenancy at sufferance Tenant shall pay to
Landlord (i) Base Rent at the rate equal to one hundred fifty percent (150%) of
that provided for as of the expiration or termination date, and (ii) any and all
Operating Expenses and other forms of Additional Rent payable under this Lease.
The increased Rent during such holding over is intended to compensate Landlord
partially for losses, damages and expenses, including frustrating and delaying
Landlord's ability to secure a replacement tenant. If Landlord loses a
prospective tenant because Tenant fails to vacate the Premises on the Expiration
Date or any termination of the Lease after notice to do so, then Tenant will be
liable for such damages as Landlord can prove because of Tenant's wrongful
failure to vacate.
27. INTENTIONALLY DELETED.
28. BROKER'S COMMISSIONS.
a. Broker. Each party represents and warrants to the other that it has not
dealt with any real estate broker, finder or other person with respect to this
Lease in any manner, except the Broker identified in Section 1n.
b. Landlord's Obligation. Landlord shall pay any commissions or fees that
are payable to the Broker with respect to this Lease pursuant to Landlord's
separate agreement with the Broker.
c. Indemnity. Each party shall indemnify and hold the other party harmless
from any and all damages resulting from claims that may be asserted against the
other party by any other broker, finder or other person (including, without
limitation, any substitute or replacement broker claiming to have been engaged
by indemnifying party in the future), claiming to have dealt with the
indemnifying party in connection with this Lease or any amendment or extension
hereto, or which may result in Tenant leasing other or enlarged space from
Landlord. The provisions of this Section shall survive the termination of this
Lease.
29. MISCELLANEOUS.
a. No Agency. Tenant is not, may not become, and shall never represent
itself to be an agent of Landlord, and Tenant acknowledges that Landlord's title
to the Building is paramount, and that it can do nothing to affect or impair
Landlord's title. The relationship between the parties hereto is solely that of
landlord and tenant and nothing contained herein shall constitute or be
construed as establishing any other relationship between the parties, including,
without limitation, the relationship of principal and agent, employer and
employee or parties engaged in a partnership or joint venture. Without limiting
the foregoing, it is specifically understood that neither party is the agent of
the other and neither is in any way empowered to bind the other to use the name
of the other in connection with the construction, maintenance or operation of
the Premises, except as otherwise specifically provided herein.
b. Force Majeure. The term "force majeure" means: fire, flood, extreme
weather, labor disputes, strike, lock-out, riot, government interference
(including regulation, appropriation
36
or rationing), unusual delay in governmental permitting, unusual delay in
deliveries or unavailability of materials, unavoidable casualties, act of God,
or other causes beyond the Landlord's (or Tenant's, if applicable) reasonable
control.
c. Building Standard Improvements. The term "Building Standard
Improvements" shall mean the standards for normal construction of general office
space within the Building as specified by Landlord, including design and
construction standards, electrical load factors, materials, fixtures and
finishes.
d. Limitation on Damages. Notwithstanding any other provisions in this
Lease, Landlord shall not be liable to Tenant for any special, consequential,
incidental or punitive damages.
e. Satisfaction of Judgments Against Landlord. If Landlord, or its
employees, officers, directors, stockholders or partners are ordered to pay
Tenant a money judgment because of Landlord's default under this Lease, said
money judgment may only be enforced against and satisfied out of: (i) Landlord's
interest in the Building in which the Premises are located including the rental
income and proceeds from sale; and (ii) any insurance or condemnation proceeds
received because of damage or condemnation to, or of, said Building that are
available for use by Landlord. No other assets of Landlord or said other parties
exculpated by the preceding sentence shall be liable for, or subject to, any
such money judgment.
f. Interest. Should either party fail to pay any amount due to the other
party within 30 days of the date such amount is due (whether Base Rent,
Additional Rent, or any other payment obligation), then, commencing from the due
date, the amount due shall begin accruing interest at the rate of 15% per annum,
compounded monthly, or the highest permissible rate under applicable usury law,
whichever is less, until paid.
g. Legal Costs. If as a result of any breach or default in the performance
of any of the provisions of this Lease, Landlord uses the services of an
attorney in order to secure compliance with such provisions or recover damages
therefore, or to terminate this Lease or evict Tenant, Tenant shall reimburse
Landlord upon demand for any and all reasonable attorneys' fees and expenses so
incurred by Landlord, provided that if Tenant shall be the prevailing party in
any legal action brought by Landlord against Tenant, or in any legal action
brought by Tenant to enforce Landlord's obligations hereunder, Tenant shall be
entitled to recover for the fees and expenses of its attorneys in such amount as
the court may adjudge reasonable.
h. Sale of Premises or Building. Landlord may sell the Premises or the
Building without affecting the obligations of Tenant hereunder; upon the sale of
the Premises or the Building, and upon Landlord's compliance with Section 29j
below, Landlord shall be relieved of all responsibility for the Premises and
shall be released from any liability thereafter accruing under this Lease to the
extent such responsibility and/or liability is assumed by the applicable
transferee.
i. Time of the Essence. Time is of the essence in the performance of all
obligations under the terms of this Lease.
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j. Transfer of Security Deposit. If any Security Deposit or prepaid Rent
has been paid by Tenant, Landlord shall transfer the Security Deposit and
prepaid Rent to Landlord's successor and upon such transfer, Landlord shall be
released from any liability for return of the Security Deposit or prepaid Rent.
k. Tender of Premises. The delivery of a key or other such tender of
possession of the Premises to Landlord or to an employee of Landlord shall not
operate as a termination of this Lease or a surrender of the Premises unless
requested in writing by Landlord.
l. Tenant's Financial Statements. Upon request of Landlord, Tenant agrees
to furnish to Landlord copies of Tenant's most recent annual, quarterly and
monthly financial statements, audited if available. The financial statements
shall be prepared in accordance with generally accepted accounting principles,
consistently applied. The financial statements shall include a balance sheet and
a statement of profit and loss, and the annual financial statement shall also
include a statement of changes in financial position and appropriate explanatory
notes. Landlord may deliver the financial statements to any prospective or
existing mortgagee or purchaser of the Building, subject, however, to obtaining
any necessary confidentiality agreements to the extent such information is not
publicly available.
m. Recordation. This Lease may not be recorded without Landlord's prior
written consent, but Tenant and Landlord agree, upon the request of the other
party, to execute a memorandum hereof for recording purposes.
n. Partial Invalidity. The invalidity of any portion of this Lease shall
not invalidate the remaining portions of the Lease.
o. Binding Effect. This Lease shall be binding upon the respective parties
hereto, and upon their heirs, executors, successors and assigns.
p. Entire Agreement. This Lease supersedes and cancels all prior
negotiations between the parties, and no changes shall be effective unless in
writing signed by both parties. Tenant acknowledges and agrees that it has not
relied upon any statements, representations, agreements or warranties except
those expressed in this Lease, and that this Lease contains the entire agreement
of the parties hereto with respect to the subject matter hereof. Neither this
Lease nor any provision hereof may be changed, waived, discharged or terminated
orally. Only an instrument in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is sought shall be
binding on that party.
q. Good Standing. If requested by Landlord, Tenant shall furnish
appropriate legal documentation evidencing the valid existence in good standing
of Tenant, and the authority of any person signing this Lease to act for the
Tenant. If Tenant signs as a corporation, each of the persons executing this
Lease on behalf of Tenant does hereby covenant and warrant that Tenant is a duly
authorized and existing corporation, that Tenant has and is qualified to do
business in the State in which the Premises are located, that the corporation
has a full right and authority to enter into this Lease and that each of the
persons signing on behalf of the corporation is authorized to do so.
38
r. Terminology. The singular shall include the plural, and the masculine,
feminine or neuter includes the other. If there is more than one Tenant, the
obligations hereunder imposed upon Tenant shall be joint and several. Submission
of this instrument for examination or signature by Tenant does not constitute a
reservation of or option for lease, and it is not effective as a lease or
otherwise until execution and delivery by both Landlord and Tenant. The
agreements, conditions and provisions herein contained shall, subject to the
provisions as to assignment, apply to and bind the heirs, executors,
administrators, successors and assigns of the parties hereto. Tenant shall not,
without the written consent of Landlord, use the name of the Building for any
purpose other than as the address of the business to be conducted by Tenant in
the Premises. Landlord reserves the right to change the name of the Building as
it deems appropriate from time to time. If any provisions of this Lease shall be
determined to be illegal and unenforceable, such determination shall not affect
any other provision of this Lease and all such other provisions shall remain in
full force and effect.
s. Headings. Headings of sections are for convenience only and shall not be
considered in construing the meaning of the contents of such section.
t. Choice of Law; Waiver of Jury Trial. This Lease shall be interpreted and
enforced in accordance with the laws of the State in which the Premises are
located. Landlord and Tenant hereby waive trial by jury in any action,
proceeding, or counterclaim brought by Landlord or Tenant against the other on
any matter whatsoever arising out of or in any way connected with this Lease,
the relationship of Landlord to Tenant, the use or occupancy of the Premises by
Tenant or any person claiming through or under Tenant, any claim of injury or
damage, and any emergency or other statutory remedy; provided, however, the
foregoing waiver shall not apply to any action for personal injury or property
damage. If Landlord commences any summary or other proceeding for non-payment of
rent or the recovery of possession of the Premises, Tenant agrees not to
interpose any counterclaim of whatever nature or description in any such
proceeding, unless the failure to raise the same would constitute a waiver
thereof.
u. Effective Date. The submission of this Lease to Tenant for review does
not constitute a reservation of or option for the Premises, and this Lease shall
become effective as a contract only upon the execution and delivery by both
Landlord and Tenant. The date of execution shall be entered on the top of the
first page of this Lease by Landlord, and shall be the date on which the last
party signed the Lease, or as otherwise may be specifically agreed by both
parties. Such date, once inserted, shall be established as the final day of
ratification by all parties to this Lease, and shall be the date for use
throughout this Lease as the "Effective Date".
v. Designation of Representative. If more than one person or party shall be
Landlord or Tenant, such parties, by appointment by the holders of (i) at least
fifty one percent (51%) of the estate of Landlord or Tenant, as the case may be,
or (ii) the owners of at least fifty one percent (51%) of the Premises, or of a
corporation that owns or controls the Premises, Landlord or Tenant, as the case
may be, by Notice to the other, shall designate a single person or party to act
as their sole representative to receive or pay the Base Rent and Additional
Rent, give or receive Notices, and give consents under this Lease for and on
behalf of Landlord or Tenant, as the case may be; in which case payments of the
Base Rent and Additional Rent to or by, Notice to or by and consent by such
representative shall be deemed to be valid payment to or by, Notice to or by or
consent by all of the parties constituting Landlord or Tenant, as the case may
be. Such designation may be revoked by Notice given in the same manner as the
appointment,
39
by death of the person designated or by judicial determination of incompetency
of the person designated, but not otherwise. Until such designation is revoked,
payment to, or Notice to or by, or consent by such representative shall be
conclusively binding upon all of the parties constituting Landlord or Tenant, as
the case may be, and upon their respective heirs, executors, administrators,
guardians, successors, and assigns. In the event no such appointment shall be in
effect at any time during the term of this Lease, payment and Notice to and
consent by any one party who may own an interest in the estate of Landlord or
Tenant, as the case may be, shall be deemed payment and Notice to and consent by
all of the parties constituting Landlord or Tenant, as the case may be, and upon
their respective heirs, executors, administrators, guardians, successors, and
assigns.
w. Execution. This Lease consists of this Lease, the Workletter, the
Addendum, Exhibits A, X-0, X-0, X-0, B, C, D, E and F, and all other Exhibits,
if any, specified in the Table of Contents, all of which shall constitute a
single agreement. Landlord and Tenant have executed this Lease by signing and
dating this Lease and Workletter and initialing the first page of this Lease.
This Lease may be signed in multiple counterparts which together shall
constitute on and the same instrument.
x. No Light, Air or View Easement. Any diminution or shutting off of light,
air or view by any structure which may be erected on lands adjacent to the
Building shall in no way affect this Lease or impose any liability on Landlord.
y. Landlord's Right to Grant Easements. Landlord shall have the right,
without the consent of Tenant, to grant to adjacent land owners, including
Landlord, at any time and from time to time during the Term of this Lease,
easements and rights of ingress, egress and common use and enjoyment with
respect to the roads, walks, unimproved portions of the land on which the
Building is located, water, sewage, telephone, gas and electricity lines, and
Landlord may at any time and from time to time grant easements, public and
private, for such purposes to itself and to others, and relocate any easements
now or hereafter affecting the land on which the Building is located; provided,
however, that in no event shall Landlord be permitted to take any action
permitted by this paragraph if such action would (i) materially adversely and
permanently affect Tenant's ingress and egress to and from the Premises, (ii)
materially and permanently reduce the available parking of the Building, or
(iii) overburden the Common Areas or the utilities or other portions of the
Property.
z. No Waiver. The waiver by Landlord of any agreement, condition or
provision herein contained shall not be deemed to be a waiver of any subsequent
breach of the same or any other agreement, condition or provision herein
contained, nor shall any custom or practice which may grow up between the
parties in the administration of the terms hereof be construed to waive or to
lessen the right of Landlord to insist upon the performance by Tenant in strict
accordance with said terms. The subsequent acceptance of rental hereunder by
Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of
any agreement, condition or provision of this Lease, other than the failure of
Tenant to pay the particular rental so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of acceptance of such rental.
40
30. SPECIAL CONDITIONS. The following special conditions, if any, shall
apply, and where in conflict with earlier provisions in this Lease shall
control:
a. Right of First Offer.
(1) Provided that Tenant is not in default (beyond applicable periods
of notice and cure) under this Lease and subject to existing rights of
other tenants of the Building at the time of execution of this Lease.
Tenant acknowledges that the fifth floor is currently leased to Cybera,
Inc. Tenant shall have a continuous right of first offer ("Right of First
Offer") to lease any space on the fourth (4th) or fifth (5th) floors of
Building C or the 1,671 RSF adjacent to the Data Center on Floor 1 in
Building A, currently occupied by Ford Motor Credit Company ("Expansion
Space") should space become available to rent to a third party (other than
Ford Motor Company ("Ford") or a Ford related party). In such event,
Landlord shall notify Tenant and Tenant shall have ten (10) Business Days
after receipt of Notice to give Notice to Landlord that it is exercising
its right to lease the Expansion Space upon the same terms and conditions
offered to the third party, except that the Base Rent shall be equal to the
then Fair Market Rental Value (defined in Section 30 b, below), unless
Tenant exercises a Right of First Offer during the first 24 months of this
Lease, in which event the Base Rent shall be at the same rate per rentable
square foot as the then current Base Rent and for a Term equal to the
remaining Term.
(2) Should Tenant not respond pursuant to Section 30 a (1) or respond
negatively to Landlord's notice, then Landlord may lease the Expansion
Space to such third party (or Ford or its related party); provided,
however, that Tenant's Right of First Offer shall nevertheless continue
until the end of the initial Lease Term or any extension in the event that
the third-party lease is not consummated within 180 days after Tenant's
receipt of Landlord's Notice under Section 30a(1) or in the event the
Expansion Space becomes available following the expiration of any third
party lease.
(3) Tenant shall not have any rights under Section 30 a (1) if Tenant
does not give Landlord notice strictly according to Section 30 a (1), or if
at the time either that Tenant gives Landlord notice under Section 30 a (1)
or that the Expansion Space is delivered to Tenant:
(i) A default by Tenant under this Lease (beyond applicable
notice and cure periods) shall have occurred and be
continuing; or
(ii) Spheris Operations Inc. (and/or any assignee or sublessee
described in Section 18C) occupies less than 100% of the
rentable square feet of the Premises.
(4) It shall be a condition of Tenant's right to exercise this option
that Tenant is not in default (beyond applicable periods of notice and
cure) under this Lease both at the time of Tenant's exercise of this option
and at the time the rent is scheduled to commence on the Expansion Space;
and this condition may be waived by Landlord at its sole discretion and may
not be used by Tenant as a means to negate the effectiveness of Tenant's
exercise of this option.
41
(5) The Tenant Improvement Allowance for construction of the Expansion
Space shall be determined at the greater of the initial Tenant Improvement
Allowance or the Fair Market Rental Value for the Tenant Improvement
Allowance; provided, however, that if Tenant exercises a Right of First
Offer during the first 24 months of the Lease Term, then the Tenant
Improvement Allowance for construction of tenant improvements within the
Expansion Space shall instead be equal to the Tenant Improvement Allowance
for the Premises (as set forth in the Workletter), times a fraction, the
numerator of which is the number of months that are remaining in the Lease
Term at the time Tenant exercises such Right of First Offer and the
denominator of which shall be 120.
(6) Tenant shall execute an amendment to the Lease prepared by
Landlord, within fifteen (15) days of its submission to Tenant; provided,
however, that Landlord agrees not to submit such amendment to Tenant until
after the rent for the Expansion Space has been determined pursuant to
Section 30(b)(6) below. Such amendment shall memorialize items such as, but
not limited to:
(i) anything affected by the increase in size of the Premises,
including, but not limited to, the increased rentable square
feet, Base Rent, Tenant's Percentage Share, and Security
Deposit.
(ii) the date that the Rent for the Expansion Space shall
commence which shall be the earlier of:
(a) one hundred twenty (120) days from Landlord's receipt
of Tenant's Notice that it has exercised its right of
first offer, or
(b) the Tenant's occupancy (for purposes other than
construction of tenant improvements) of the Expansion
Space.
b. Option to Renew.
(1) IF:
(a) Tenant is not in default (beyond applicable periods of
notice and cure) under this Lease; and
(b) Tenant gives and Landlord receives written notice not
less than nine (9) months prior to the expiration of
the initial (or then extended) Lease Term of the Lease
of Tenant's intention to extend the Term of the Lease
(each an "Extended Term"); and
(c) Spheris Operations Inc.. (or an assignee described in
Section 18c) is the Tenant and is in occupation of and
42
conducting its business in the whole of the Premises in
accordance with the terms of this Lease, Tenant
expressly acknowledging and agreeing that this Section
30 b is personal to Tenant (and to its assignees under
Section 18c),
(2) THEN:
the Term of the Lease shall be extended as to the entire Premises, or at
Tenant's option, a portion of the Premises, on a full floor basis (except for
the Data Center in Building A), with a minimum of 2 full floors, upon the
expiration of the initial Lease Term, or the then-previous Extension Term, if
applicable, for the Extended Terms, as indicated in Section 1b, upon the same
terms and conditions as in the Lease except that:
(a) there shall be no further right to extend the Lease
Term (other than as indicated in Section 1 b); and
(b) Landlord may, at its option, require that Tenant enter
into an extension agreement, as prepared by Landlord,
to give effect to such Extended Term, and
(c) the Base Rent shall be at the rental rate as specified
in Section 30b (6) below at the time the renewal notice
is due.
(d) For purposes of this Lease, the term "Lease Term" shall
be deemed to include, if applicable, any Extended
Term(s) unless specifically provided otherwise herein.
(3) If Tenant fails to give and if Landlord does not receive appropriate
notice within the time limit set out herein for extending the Lease Term, then
this Section 30 b, shall be null and void and of no further force or effect as
to the upcoming Extension Term. If Tenant gives and Landlord receives such
appropriate notice within the time limit set out herein for extending the Lease
Term, it will execute the documentation submitted by Landlord pursuant to
Subsection (2)(b) of this Section 30b within ten (10) Business Days of Tenant's
receipt of each document; provided, however, that Landlord agrees not to submit
such documentation to Tenant until such time that the rent is finally determined
pursuant to Section 30b(6) below.
(4) [INTENTIONALLY DELETED]
(5) It shall be a condition of Tenant's right to exercise the Option to
Extend herein that Tenant shall not be in default (beyond applicable periods of
notice and cure) under this Lease both at the time of Tenant's exercise of this
option and at the time any extension term is scheduled to commence; and this
condition may be waived by Landlord at its sole discretion and may not be used
by Tenant as a means to negate the effectiveness of Tenant's exercise of this
option.
(6) (a) Within sixty (60) days following Tenant's written notice to
Landlord to extend the Lease Term, Landlord shall notify Tenant in writing of
the
43
proposed Rent amount to be paid during such Extended Term, which shall be the
then Fair Market Rental Value of the Premises. "Fair Market Rental Value" shall
be defined as the annual rental (projected from the date of the commencement of
the payment of annual rental to which it applies) which Tenant would reasonably
expect to pay and Landlord would reasonably expect to receive under leases of
space of comparable conditions, on conditions comparable to this Lease, covering
premises similar to the Premises in the Franklin, Tennessee area and shall also
include a determination of all concessions, tenant improvement allowances and
other benefits that Tenant would reasonably expect to receive, and Landlord
would reasonably expect to give under such a lease at such rental rate. Tenant
shall have sixty (60) days following receipt of Landlord's notice of
determination of the proposed Extended Term Rent, in which to:
(i) accept such determination; or
(ii) elect to have such determination made by appraisal as described
below; or
(iii) withdraw its notice of exercise of option to extend.
(b) If Tenant fails to notify Landlord in writing of its election
within said sixty (60) day period, Tenant shall be deemed conclusively to
have withdrawn its notice of exercise of the option to extend the Lease and
the Lease shall terminate on the Expiration Date of the Initial Lease Term,
or, if applicable, the previously exercised Extended Term as if such notice
was never given. If Tenant elects to have such determination made by
appraisal, then:
(i) Within ten (10) days after Landlord receives Tenant's notice
of its election to have such determination made by
appraisal, Landlord and Tenant shall each appoint and
employ, at its cost, a real estate appraiser (who shall be
licensed in the State of Tennessee and be a member of the
American Institute of Real Estate Appraisers ["MAI"] with at
least ten (10) years of full-time commercial appraisal and
real estate marketing experience in the Franklin, Tennessee
area) to appraise and establish the Fair Market Rental
Value.
(ii) Within thirty (30) days after the selection of the two (2)
appraisers, the appraisers shall each submit an appraisal of
the Fair Market Rental Value. If the appraisers are equal to
or less than ten percent (10%) apart in their determination
of Fair Market Rental Value, the Fair Market Rental Value
shall be the average of the two appraisals. If the
appraisers are more than ten percent (10%) apart in their
determination of Fair Market Rental Value, then the two
appraisers shall attempt to agree upon and designate a third
appraiser meeting the qualifications set forth above within
44
ten (10) days after submittal of the Fair Market Rental
Value determination by both appraisers.
(iii) Within thirty (30) days after the selection of the third
appraiser, a majority of the appraisers shall agree upon the
Fair Market Rental Value. If a majority of the appraisers
are unable to agree within the stipulated time, then each
appraiser shall render his/her separate appraisal within
such time, and the three appraisals shall be averaged in
order to establish such rate; provided, however, if the low
appraisal and/or the high appraisal are more than ten
percent (10%) lower and/or higher than the middle appraisal,
the low appraisal and/or high appraisal shall be
disregarded. If both the low appraisal and the high
appraisal are disregarded, the middle appraisal shall
establish the Fair Market Rental Value. After the Fair
Market Rental Value has been established, the appraisers
shall immediately notify the parties in writing.
(c) Personal Property. Landlord and Tenant agree that Landlord shall
cause to be transferred as of the Commencement Date certain
personal property (the "Personal Property") of Ford Motor Credit
Company ("Ford Credit") located at the Premises, and more
particularly described in the Xxxx of Sale attached hereto as
Exhibit F and incorporated herein and made a part of this Lease.
Tenant agrees that at the termination of this Lease all of
Tenant's personal property, including the Personal Property shall
be removed from the Premises, in accordance with the terms of
this Lease.
ADDENDUM AND EXHIBITS. The attached Addendum and Exhibits shall
apply, and where in conflict with earlier provisions in this
Lease shall control. The attached Addendum and Exhibits are
incorporated herein and made a part of this Lease.
a. ADDENDUM
b. EXHIBIT A - PREMISES (SPACE PLAN TO BE REPLACED WITH WORKING DRAWINGS,
AFTER MUTUAL APPROVAL BY LANDLORD AND TENANT)
c. EXHIBIT A-1 - SITE PLAN
d. EXHIBIT A-2 - LEGAL DESCRIPTION (OFFICE COMPLEX)
e. EXHIBIT A-3 - DATA CENTER DRAWING
f. EXHIBIT B - RULES AND REGULATIONS
g. EXHIBIT C - COMMENCEMENT LETTER
h. EXHIBIT D- JANITORIAL SERVICES
i. EXHIBIT E-LICENSE AGREEMENT
j. EXHIBIT F-XXXX OF SALE
k. EXHIBIT G-WORKLETTER
[Signatures on following page]
45
IN WITNESS WHEREOF, Landlord and Tenant have executed this lease in three
(3) originals, all as of the day and year first above written.
TENANT:
SPHERIS OPERATIONS INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Printed Name: Xxxxxxx X. Xxxxxxx
Title: Chief Administrative Officer
LANDLORD:
FORD MOTOR LAND DEVELOPMENT CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Printed Name: Xxxxx X. Xxxxxx
Title: Vice President
46
ADDENDUM
ADDITIONAL RENT OPERATING EXPENSE PASS THROUGHS. For the calendar year
commencing on January 1, 2008 and for each calendar year thereafter, Tenant
shall pay to Landlord, as Additional Rent, Tenant's Proportionate Share of any
increase in Operating Expenses (as hereinafter defined) incurred by Landlord's
operation or maintenance of the Building during such calendar year above the
Operating Expenses Landlord incurred during the Base Year (as hereinafter
defined), but in no event shall the increase be more than 5% in any one calendar
year.
For purposes of calculating Tenant's Proportionate Share of real and
personal property taxes, Landlord shall use the Base Year or the year in which
the Building and improvements are completed and are fully assessed, whichever
shall be later. Tenant's Proportionate Share shall be determined pursuant to
Section 2b of the Lease.
For the calendar year commencing on January 1, 2008 and for each calendar
year thereafter during the Term, Landlord shall estimate the amount the
Operating Expenses shall increase for such calendar year above the Operating
Expenses incurred during the Base Year. Landlord shall send to Tenant a written
statement of the amount of Tenant's Proportionate Share of any estimated
increase in Operating Expenses and Tenant shall pay to Landlord, monthly or
annually, at Landlord's option, Tenant's Proportionate Share of such increase in
Operating Expenses. Within ninety (90) days after the end of each calendar year
or as soon as possible thereafter, Landlord shall send a copy of the Annual
Statement to Tenant. Pursuant to the Annual Statement, Tenant shall pay to
Landlord Additional Rent as owed or Landlord shall adjust Tenant's Rent payments
if Landlord owes Tenant a credit. After the Expiration Date, Landlord shall send
Tenant the final Annual Statement for the Term, and Tenant shall pay to Landlord
Additional Rent as owed or if Landlord owes Tenant a credit, then Landlord shall
pay Tenant a refund. If there is a decrease in Operating Expenses in any
subsequent year below Operating Expenses for the Base Year then no additional
rent shall be due on account of Operating Expenses, but Tenant shall not be
entitled to any credit, refund or other payment that would reduce the amount of
other additional rent or Base Rent owed. If this Lease expires or terminates on
a day other than December 31, then Additional Rent shall be prorated on a 365
day calendar year (or 366 if a leap year). All payments or adjustments for
Additional Rent shall be made within thirty (30) days after the applicable
Annual Statement is sent to Tenant.
The term "Base Year" shall mean the twelve month period beginning on the
January 1, 2007 and ending on December 31, 2007. Landlord shall deliver to
Tenant an Annual Statement with respect to the Base Year within 90 days after
the end of the Base Year.
The term "Operating Expenses" shall mean (1) the total actual cost or
expense paid or incurred by Landlord which is attributed to or allowable to the
operation, maintenance and repair of the Building and Common Areas, including,
without limitation, ad valorem real and personal property taxes, the costs
incurred for air conditioning; mechanical ventilation; heating; cleaning;
rubbish removal; snow removal; general landscaping and maintenance; window
washing (interior and exterior, including inside partitions); elevators;
escalators; xxxxxx and matron service; transportation service, if any; electric
current; steam; a management fee of five percent (5%) of Base Rent (as defined
in Section 3(b) herein); protection and security service; repairs,
1
maintenance; fire, extended coverage, boiler, sprinkler, apparatus, public
liability and property damage insurance (or the allocated cost associated with
Landlord's self-insurance program (not to exceed the amount that would have been
payable by Landlord to a third party insurance company for similar coverage));
supplies; wages, salaries, disability benefits, pensions, hospitalization,
retirement plans and group insurance respecting service and maintenance
employees; uniforms and working clothes for such employees and the cleaning
thereof; expenses imposed pursuant to any collective bargaining agreement with
respect to such employees; payroll, social security, unemployment and other
similar taxes with respect to such employees; sales, use and other similar
taxes; water rates, sewer rates; depreciation of all hand tools and other
movable equipment and personal property, which is, or should be, capitalized on
the books of Landlord and the cost of hand tools and other movable equipment and
personal property which need not be so capitalized, as well as cost of
maintaining all such hand tools and movable equipment, and any other costs,
charges and expenses which, under generally accepted accounting principles and
practices, would be regarded as maintenance and operating expenses, and (2) the
cost reasonably allocable to the Building of any capital improvements made by
Landlord after the Commencement Date that reduce other Operating Expenses or
made by Landlord after the date of this Lease that are required under any
governmental law or regulation that was not applicable to the Building at the
time it was constructed, such cost or allocable portion thereof to be amortized
over such reasonable period as Landlord shall determine together with interest
on the unamortized balance at such rate as may have been paid by Landlord on
funds borrowed for the purpose of constructing such capital improvements.
Operating Expenses shall not include depreciation other than depreciation on
exterior window draperies provided by Landlord and carpeting in Common Areas;
costs of repair and maintenance which are paid for by proceeds of insurance, by
other tenants or third parties; advertising, public relations and promotions
attributable to Landlord's efforts to increase or maintain the occupancy rate in
the Building; tenants' improvements, real estate brokers' commissions, interest
and capital items other than those referred to in clause (2) above. If the
Building is not at least ninety-five percent (95%) occupied by tenants during
all or a portion of any Calendar Year (including the Base Year), Landlord may
make appropriate adjustments for such year in the components of Operating
Expenses which vary depending upon the occupancy level of the Building,
employing generally accepted accounting and management principles. Any such
adjustments shall also be deemed expenses paid or incurred by Landlord and
included in Operating Expenses for such Calendar Year, as if the Building had
been ninety-five percent (95%) occupied and Landlord had actually paid or
incurred such expenses, to the end that the actual amounts of such variable
components of Operating Expenses be fairly borne by tenants occupying the
Building, and provided that no such adjustment shall include any profit to
Landlord in connection with such variable cost. The annual statement of
Operating Expenses shall be accounted for and reported in accordance with
generally accepted accounting principles (the "Annual Statement").
TENANT'S RIGHT TO REVIEW ANNUAL STATEMENT. Within 90 days following the date of
the Annual Statement for the Base Year or any subsequent year, Tenant shall have
the right upon request to review Landlord's books and records pertaining to
Operating Expenses and Property Taxes. Such review shall be conducted only
during regular business hours at the office where Landlord maintains its books
and records with respect to the Operating Expenses and only after Tenant gives
Landlord 14 days prior written notice. Tenant shall deliver to Landlord a copy
of the results of such audit within 15 days of its receipt by Tenant. No audit
shall be conducted at any time Tenant is in default of any of the terms of the
Lease. No subtenant shall have any right to
2
conduct an audit and no assignee shall conduct an audit for any period during
which such assignee was not in possession of the Premises. The costs of the
audit shall be borne by Tenant.
3
EXHIBIT A
PREMISES
(SPACE PLAN TO BE REPLACED WITH WORKING DRAWINGS, AFTER MUTUAL APPROVED BY
LANDLORD AND TENANT)
4
EXHIBIT A-1
SITE PLAN - OFFICE COMPLEX
(SITE PLAN)
5
EXHIBIT A-2
LEGAL DESCRIPTION - OFFICE COMPLEX
Being a tract of land known as Lot 5 of the Final Plat of Cool Springs East
Subdivision, Section One, Revision One as recorded in Plat Book 22, Page 46,
Register's Office of Xxxxxxxxxx County (ROWC), Tennessee, said tract lying in
Xxxxxxxxxx County in the 0xx Xxxxxxxx xx Xxxxxxxx, Xxxxxxxxx. Bounded on the
south by Xxx 000 xxx 000 xx Xxxxx Xxxx of Cool Springs East Subdivision, Section
One, Revision Three (Resubdivision of Lot 4) (Section 35 of Cool Springs East),
as recorded in Plat Book 42, page 102, ROWC; bounded on the west by the eastern
ROW of Interstate 65 (ROW varies); bounded on the north by Continental Cool
Springs East, as recorded in Deed Book 3112, page 646, ROWC, and by Songbird
Aviation II, LLC, as recorded in Deed Book 3357, page 103, ROWC; and bounded on
the east by the western Right-of-Way (ROW) of Xxxxxxxxx Boulevard (132' ROW);
Said tract being described according to a survey prepared by Xxxxxx X. Xxxxxxx,
TRLS #1666, Xxxxxxxxxx Engineering Associates, dated 3/8/06, Job No. 26032, as
follows:
POINT OF BEGINNING being a set point on the southeast corner of the tract being
described, said point lying on said western ROW of Xxxxxxxxx Parkway and being N
28 deg. 44' 57" E 404.42' from the centerline intersection of said Xxxxxxxxx
Parkway and Xxxxxxxxx Drive; thence leaving said ROW of Xxxxxxxxx Parkway and
along the common line of the tract being described and said Lot 694 and 695 with
the following: N 66 deg. 31' 32" W 404.32' to a set point; thence S 68 deg. 28'
27" W 193.44' to a set point; thence N 66 deg. 31' 32" W 470.27' to a set point;
thence N 21 deg. 31' 32" W 193.44' to a set point; thence N 66 deg. 31' 32" W
609.00' to a found iron rod lying on said eastern ROW of Interstate 65, said
point being the southwest corner of the tract being described; thence leaving
said common line and along said ROW of Interstate 65 with the following: N 28
deg. 42' 16" E 303.32' to a found iron rod with "Xxxxx & Xxxxx" cap; thence N 61
deg. 14' 08" E 282.97' to a set point; thence N 16 deg 11' 55" E 199.84' to a
set point; thence N 31 deg. 27' 43" W 296.95' to a found iron rod with "Xxxxx &
Xxxxx" cap; thence N 07 deg. 54' 14" W 36.26' to a set point, said point being
the northwest corner of the tract being described; thence leaving said ROW of
Interstate 65 with the following: S 79 deg. 55' 28" E 1319.73' to a set point;
thence N 89 deg. 18' 28" E 534.19' to a point lying on said western ROW of
Xxxxxxxxx Parkway, said point being the northeast corner of said tract; thence
along said ROW of Xxxxxxxxx Parkway with the following: with a curve to the left
having a length of 270.97', having a radius of 1373.57', having an interior
angle of 11 deg. 18' 10", and having a chord bearing and distance of S 08 deg.
16' 04" W 270.53' to a set point; thence S 02 deg. 36' 59" W 200.00' to a set
point; thence with a curve to the right having a length of 895.78', having a
radius of 1172.43', having an interior angle of 43 deg. 46' 34", and having a
chord bearing a distance of S 24 deg. 30' 16" W 874.15' to a set point; thence S
46 deg. 23' 33" W 139.09' to the point of beginning.
Tract contains 2,174,901 square feet or 49.93 acres.
Tax Parcel ID: 053 142.00
Address: 0000 Xxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxxx
6
EXHIBIT A-3
DATA CENTER SPACE
(FLOOR PLAN)
7
EXHIBIT B
RULES AND REGULATIONS
1. No part or the whole of the sidewalks, plaza areas, entrances, passages,
courts, elevators, vestibules, stairways, corridors or halls of the Building
shall be obstructed or encumbered by tenant or used for any purpose other than
ingress and egress to and from the space demised to such tenant.
2. No awnings or other projections shall be attached to the outside walls or
windows of the Building. No curtains, blinds, shades, or screens visible from
the exterior of the Premises or the Building (other than those to be installed
as part of the Workletter) shall be attached to or hung in, or used in
connection with, any window or door of the space demised to any tenant.
Tenants will not place objects against glass partitions or doors or windows
which would be unsightly from any of the corridors of the Building or from the
exterior of the Building and will promptly remove any such objects upon notice
from Landlord.
3. No sign, advertisement, object, notice, or other lettering shall be
exhibited, inscribed, painted, or affixed on any part of the outside of the
space demised to any tenant or of the Building. Signs on exterior doors and
directory tablets, if any, shall be inscribed, painted, or affixed for each
tenant by Landlord at Landlord's expense, and shall be of a size, color, and
style approved by Landlord.
4. No show cases, signs or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the halls, corridors,
vestibules, or other public parts of the Building.
5. The water and wash closets and other plumbing fixtures shall not be used for
any purposes other than those for which they were constructed, and no sweepings,
rubbish, rags, or other substances (including, without limitation, coffee
grounds) shall be thrown therein.
6. No tenant shall bring or keep, or permit to be brought or kept, any
inflammable, combustible, or explosive fluid, material, chemical, or substance
in or about the Building.
7. No tenant shall drill into, or in any way deface, any part of the Building or
the space demised to such tenant. No boring, cutting, or stringing of wires
shall be permitted, except in the Data Center, Building A, as may be necessary,
with Landlord's prior written approval which shall not be unreasonably withheld.
8. No cooking (with the exception of microwave ovens to heat food) shall be done
or permitted in the Building by any tenant. No tenant shall cause or permit any
unusual or objectionable fumes, smoke, odors or other discharges to emanate from
the space demised to such tenant.
9. Smoking is not permitted in the Building. Smoking is permitted outside of the
Building, if any, as designated and redesignated in writing from time to time by
Landlord, in its sole, absolute and arbitrary discretion. All smoking materials
must be disposed of in ashtrays or other appropriate receptacles provided for
that purpose.
8
10. Neither the whole nor any part of the space demised to any tenant shall be
used for manufacturing, for the storage of merchandise, or for the sale of
merchandise (except that Tenant's Fulfillment Center may be used for shipping
and receiving computers), goods, or property of any kind at auction.
11. No tenant shall make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with other tenants or occupants of the Building
or neighboring buildings or premises, whether by the use of any musical
instrument, radio, television set, or other audio device, unmusical noise,
whistling, singing, or in any other way. Nothing shall be thrown out of any
doors, windows, or skylights or down any passageways.
12. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows in the space demised to any tenant, nor shall any changes be
made in locks or the mechanism thereof, unless written approval from Landlord is
granted. Each tenant must, upon the termination of this tenancy, return to
Landlord all keys to offices and toilet rooms, either furnished to, or otherwise
procured by, such tenant, and in the event of the loss of any such keys, such
tenant shall pay Landlord the reasonable cost of replacement keys.
13. All removals from the Building, or the carrying in or out of the Building or
the space demised to any tenant of any safes, freight, furniture, or bulky
matter of any description must take place during such hours and in such manner
as Landlord or its agents may determine, from time to time. Landlord reserves
the right to inspect all freight to be brought into the Building and to exclude
from the Building all freight which violates any of these rules and regulations
or the provisions of such tenant's lease.
14. No tenant shall use or occupy or permit any portion of the space demised to
such tenant to be used or occupied as an employment bureau or for the storage,
manufacture, or sale of liquor, narcotics or drugs. No tenant shall engage or
pay any employees in the Building, except those actually working for such tenant
in the Building, nor advertise for laborers giving an address at the Building;
provided, however, that tenant may advertise giving an address at the Building
for regular full-time or part-time employees retained in the normal course of
tenant's business at the Building.
15. Landlord shall have the right to prohibit any advertising by any tenant
which, in Landlord's reasonable opinion, tends to impair the reputation of the
Building or its desirability as a building for its intended uses, and upon
notice from Landlord, such tenant shall refrain from or discontinue such
advertising.
16. Landlord reserves the right to control and operate the Common Areas in such
manner as it deems best for the benefit of the tenants generally, including,
without limitation, the right to exclude from the Building, between the hours of
6 P.M. and 7 A.M. on Business Days and at all hours on Saturdays, Sundays and
holidays, all persons who do not present a pass to the Building signed by
Landlord or other suitable identification satisfactory to Landlord. Landlord
will furnish passes to persons for whom any tenant requests such passes.
Each tenant shall be responsible for all persons for whom it requests such
passes and shall be liable to Landlord for all acts of such persons.
9
17. Each tenant, before closing and leaving the space demised to such tenant at
any time, shall see that all entrance doors to the Premises are locked. Tenant
assumes full responsibility for protecting its Premises from theft, robbery and
pilferage, which includes keeping valuable items locked up and doors locked
after Business Hours and at other times the Premises are not in use.
18. Each tenant shall, at its expense, provide artificial light in the space
demised to such tenant for Landlord's agents, contractors, and employees while
performing janitorial or other cleaning services and making repairs or
alterations in such space.
19. No space demised to any tenant shall be used, or permitted to be used, for
lodging or sleeping or for any unlawful purpose.
20. The requirements of tenants will be attended to only upon application at the
office of Landlord. Landlord's employees shall not be required to perform, and
shall not be requested by any tenant to perform, any work outside of their
regular duties, unless under specific instructions from the office of Landlord.
21. Canvassing, soliciting, and peddling in the Building are prohibited, and
each tenant shall cooperate in seeking their prevention.
22. There shall not be used in the Building, either by any tenant or by its
agents or contractors, in the delivery or receipt of merchandise, freight, or
other matter, any hand trucks or other means of conveyance except those equipped
with rubber tires, rubber side guards, and such other safeguards as Landlord may
require.
23. No bicycles, vehicles, or animals of any kind shall be brought into or kept
about the Building by any tenant, except for animals assisting the disabled.
24. No tenant shall place, or permit to be placed, on any part of the floor or
floors of the Building, a load exceeding the floor load per square foot which
such floor was designed to carry and which is allowed by law. The floor load
capacity is 200 pounds per square foot. The Building core and exterior wall
areas have a floor load capacity of approximately 300 pounds per square foot.
25. Landlord reserves the right to specify where in the space demised to any
tenant business machines and mechanical equipment shall be placed or maintained
in order, in Landlord's judgment, to absorb and prevent vibration, noise, and
annoyance to other tenants of the Building.
26. Landlord reserves the right to place or install vending machines in any of
the common areas of the Building.
27. In case of invasion, mob, strike, riot, public excitement, or other
commotion, Landlord reserves the right to limit or prevent access to the
Building during the continuance of the same by closing the doors or taking other
appropriate steps. Landlord will in no case be liable for damages for any error
or other action taken with regard to the admission to or exclusion from the
Building or any person at any time.
10
28. Landlord reserves the right to exclude or expel from the Building any person
who, in Landlord's judgment, is intoxicated or under the influence of liquor or
drugs or who is in violation of any of the Building Rules and any Laws.
29. Tenant shall store all its trash and garbage in proper receptacles within
its Premises or in other facilities provided for such purpose by Landlord.
Tenant shall not place in any trash box or receptacle any material which cannot
be disposed of in the ordinary and customary manner of trash and garbage
disposal. All garbage and refuse disposal shall be made in accordance with
directions issued from time to time by Landlord. Tenant will cooperate with any
recycling program of the Building.
30. Tenant will comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
31. Tenant shall be responsible for the observance of all of the Building Rules
by Tenant (including, without limitation, all employees, agents, clients,
customers, invitees and guests of Tenant.)
32. Tenant will not park or permit parking by its employees in any areas
designated by Landlord for parking by visitors to the Building. Only passenger
vehicles may be parked in the parking areas. No overnight or extended term
parking or storage of vehicles is permitted without Landlord's written
permission.
33. Landlord is not responsible for any damage, loss or theft to vehicles and
the contents thereof during ingress or egress from, moving through, or while
parked on the site of the Building.
34. Landlord reserves the right, at any time and from time to time, to rescind,
alter, or waive, in whole or in part, any of these Rules and Regulations when it
is deemed necessary, desirable, or proper, in Landlord's reasonable judgment,
for its best interests or for the best interests of the tenants.
11
EXHIBIT C
COMMENCEMENT AGREEMENT
This COMMENCEMENT AGREEMENT (the "Agreement"), made and entered into as of
this _______ day of ________________, 2006, by and between FORD MOTOR LAND
DEVELOPMENT CORPORATION, with its principal office at 000 Xxxx Xxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxxx, XX 00000 ("Landlord") and SPHERIS OPERATIONS INC., a
Tennessee corporation, with its principal office at 000 Xxxx Xxxxxxx Xxxx.,
Xxxxx 000, Xxxxxxxx, XX 00000 ("Tenant");
WITNESSETH:
WHEREAS, Tenant and Landlord entered into that certain Lease Agreement
dated ___________________ (the "Lease"), for space comprising approximately
70,209 rentable square feet, in the building located at 0000 Xxxxxxxxx Xxxxxxx,
Xxxx xx Xxxxxxxx, Xxxxxx of Xxxxxxxxxx, State of Tennessee; and
WHEREAS, the parties desire to establish the Commencement Date and Expiration
Date as set forth below,
NOW, THEREFORE, in consideration of the mutual and reciprocal promises
herein contained, Tenant and Landlord hereby agree that said Lease hereinafter
described be, and the same is hereby modified in the following particulars:
1. The term of the Lease by and between Landlord and Tenant actually
commenced (with respect to Xxxxx 0 xxx Xxxxx 0 xx Xxxxxxxx X and Data Center,
Building A of the Leased Premises) on ___________________ (the "Commencement
Date"). The term of the Lease by and between Landlord and Tenant actually
commenced (with respect to Floor 1 of the Leased Premises) on
___________________. The initial term of said Lease shall terminate on
______________ (the "Expiration Date"). Section 3, entitled "Term", and all
references to the Commencement Date and Termination Date in the Lease are hereby
amended.
2. The execution of this Agreement shall not constitute the exercise by
Tenant of any option it may have to extend the term of the Lease.
3. The Lease is in full force and effect and is hereby ratified and
confirmed.
4. Except as modified and amended by this Agreement, the Lease shall remain
in full force and effect.
12
IN WITNESS WHEREOF, Landlord and Tenant have caused this Agreement to be
duly executed, as of the day and year first above written.
TENANT: SPHERIS OPERATIONS INC.,
a Tennessee corporation
By:
------------------------------------
Printed Name:
--------------------------
Title:
---------------------------------
Date:
----------------------------------
LANDLORD:
FORD MOTOR LAND DEVELOPMENT CORPORATION
By:
------------------------------------
Printed Name:
--------------------------
Title:
---------------------------------
Date:
----------------------------------
13
EXHIBIT D
JANITORIAL SERVICES
- Executive offices, training/conference rooms, reception area, corridors,
kitchen area and high traffic areas will be dusted and vacuumed daily.
- Carpet areas will be completely vacuumed weekly.
- Carpet will be spot cleaned daily.
- Tile floors will be spray buffed twice a week and machine scrubbed weekly.
- Trash receptacles will be emptied three times a week, with the exception of
executive offices, training/conference rooms, reception area, corridors,
and kitchen area which will be emptied daily.
- Recycle bins from a central location will be emptied two times a week or as
necessary.
- All executive office furniture and building surfaces will be cleaned daily
and dusted weekly.
- In addition to the above, the following cleaning services will be performed
for the restrooms and kitchen areas of the Building:
- Clean and disinfect all fixtures, drinking fountains and other
surfaces daily.
- Refill dispensers daily.
- Furniture and building surfaces will be cleaned daily.
- On a weekly basis, clean and refill floor drains, descale toilets
and urinals.
- Quarterly, all air vents and returns will be dusted and cleaned with a damp
cloth.
- Annually, carpets will be shampooed and tile floors will be striped and
re-finished. High traffic areas will be shampooed quarterly.
Tenant understands that Landlord may substitute for any of the methods or
devices set forth in this Exhibit D, other methods or devices, which will
achieve substantially the same results.
14
EXHIBIT E
LICENSE AGREEMENT
THIS LICENSE AGREEMENT ("License") made this____ day of ___________, 2006,
by and between Ford Motor Land Development Corporation, a Delaware corporation
("Licensor"), and Spheris Operations Inc., a Tennessee corporation ("Licensee").
RECITALS
Licensor is the owner of certain real property located at 0000 Xxxxxxxxx
Xxxxxxx, Xxxxxxxx, XX 00000 (the "Building"). Licensor and Licensee have entered
into a lease dated ________________, 2006 (the "Lease") for space in the
Building more particularly described therein. The parties desire to provide for
the use by Licensee of a portion of the roof of the Building as provided below.
TERMS AND CONDITIONS
1. Licensed Area: For valuable consideration, receipt of which is hereby
acknowledged and the covenants and conditions to be observed and performed by
Licensee, Licensor hereby grants to Licensee a license and permission to enter
upon the area to install and maintain 1 satellite dish not to exceed ____ feet
in diameter (the "Dish") on the roof of the Building in a location designated by
Licensor ("Licensed Area"). Licensor reserves the right upon reasonable notice
to Licensee to require the relocation of all equipment installed by Licensee to
another location on the roof of the Building, at Licensor's cost.
2. Term: The term of this License shall be coterminous with the Lease.
3. Use: Licensee shall use the Licensed Area for the installation,
operation, use, repair, replacement and maintenance of the Dish (of which the
height, appearance and installation procedures must be approved in writing by
Licensor which approval shall not be unreasonably withheld or delayed) for
Licensee's sole use and the necessary mechanical and electrical equipment to
service said Dish all of which shall comply with all applicable governmental
regulations. Licensee may have access to the Licensed Area during normal
business hours and at other times by providing Licensor with reasonable prior
notice and by reimbursing Licensor for any expenses incurred by Licensor in
connection therewith.
4. Licensee's Costs: Licensee shall pay all costs of installation,
operation, repair and maintenance of the Dish.
5. Licensee's Operations: During the term of this License, the Licensed
Area and all equipment placed and maintained thereon shall be used by the
Licensee for the use specified and for no other use or purpose. Licensee shall
not use or permit any other person to use the Licensed Area, or any part
thereof, for any purposes tending to injure the reputation thereof or for any
improper or offensive use or to constitute a nuisance and Licensee shall at all
times conform to and cause all persons using any part of the Licensed Area to
comply with all public
15
laws, ordinances and regulations and the covenants and restrictions, from time
to time applicable thereto and to all operations thereon.
Licensee shall require its employees, when using the Licensed Area, to stay
within the immediate confines thereof. In addition, in the event a cable
television system is operating in the area, Licensee shall at all times during
the term of the License conduct its operations so as to ensure that the cable
television system shall not be subjected to harmful interference as a result of
such operations by Licensee. Upon notification from Licensor of any such
interference, Licensee agrees to immediately take the necessary steps to correct
such situation, and Licensee's failure to do so shall be deemed a default under
the terms of this License.
During the term of this License, Licensee shall comply with any standards
promulgated by applicable governmental authorities or otherwise reasonably
established by Licensor regarding the generation of electromagnetic fields.
Should Licensor determine in good faith at any time that the Dish poses a health
or safety hazard to occupants of the Building, Licensor may require Licensee to
remove the Dish or make other arrangements reasonably satisfactory to Licensor.
Any claim or liability resulting from the use of the Dish shall be subject to
the insurance and indemnification provisions set forth in this License
Agreement.
6. Removal: Upon the expiration or earlier termination of this License,
Licensee shall remove the Dish and all other equipment installed by it and shall
repair all damage to the Building directly attributable to the installation or
removal of such Dish.
7. Indemnification; Hold Harmless: Licensee agrees to indemnify, defend
(with counsel selected by Licensee) and hold Licensor and its parent,
subsidiaries and affiliates and their respective officers, directors, employees
and agents harmless from any claims, judgments, damages, penalties, fines,
costs, liabilities (including sums paid in settlements of claims) or loss
including attorneys' fees, consultant fees, and expert fees (consultants and
experts to be selected by Licensor) which arise during or after the term of this
License, from or in connection with the Dish unless caused as a result of the
negligence or willful misconduct of Licensor, its officers, employees or agents.
Licensor shall not be liable for any loss, damage or injury of any kind
whatsoever to the property of Licensee or the property or person, including
death, of any of Licensee's employees, agents, invitees, contractors, or
licensees or of any other person whomsoever caused by any use of the Licensed
Area by Licensee, its agents, employees, invitees, contractors or licensees or
occasioned by the failure on the part of Licensee to maintain said Licensed Area
in safe condition, or by any act or omission of Licensee or of any of Licensee's
employees, agents or invitees, or arising from any other cause whatsoever; and
Licensee, as a material part of the consideration of this License, hereby waives
on its behalf all claims and demands against Licensor for any such loss, damage
or injury suffered by Licensee, its agents, employees, invitees, contractors or
licensees provided, however, nothing contained herein shall be deemed to waive
any claim arising out of negligence or willful misconduct of Licensor or its
agents, officers, employees, or contractors.
8. Liens: Licensee shall not permit to be enforced against the Licensed
Area any mechanics', materialman's, contractors' or other liens arising from, or
any claims for damage growing out of, any work of installation, repair or
alteration as herein authorized or otherwise arising (except from the actions of
Licensor) and Licensee shall pay or cause to be paid all of said liens and
claims before any action is brought to enforce the same against Licensor or the
16
Licensed Area; and Licensee agrees to indemnify and hold Licensor and the
Licensed Area free and harmless from all liability for any and all such liens
and claims and all costs and expenses in connection therewith.
9. Taxes: During the term of this License, Licensor shall pay all taxes
attributable to the Building of which the Licensed Area is a part, and Licensee
shall pay all taxes attributable to the Dish and other equipment owned and
installed by Licensee.
10. Assignment: This License shall not be assignable in whole or in part,
except to permitted assignee of the Lease, and any attempted assignment thereof,
without the consent of Licensor, shall immediately terminate this License.
11. Insurance: Tenant shall insure the Dish with fire and extended coverage
and shall pay any increase in Landlord's general liability coverage which is
directly attributable to the Dish. Moreover, should the exercise of Licensee's
rights hereunder result in any increase in Licensor's insurance rates on the
Building of which Licensee was given notice, Licensee shall promptly following
demand reimburse Licensor for such additional expenses incurred by Licensor.
12. Remedies: Should Licensee default in the performance of or breach any
covenant or condition on Licensee's part to be kept and performed under the
Lease after notice and expiration of applicable cure periods or under this
License (if such default continues for 30 days after written notice thereof is
delivered by Landlord to Tenant), then in any such event Licensor may, at its
option, without prejudice to any other right or remedy it may have, terminate
this License and the Lease by giving Licensee written notice of such
termination, and upon such termination all rights of Licensee shall cease and
end.
13. Covenants and Conditions: This License and each and all of the
covenants and conditions hereof shall inure to the benefit of and shall bind the
successors in interest of Licensor and subject to the restrictions set forth in
the above Paragraph entitled "Assignment," the successors and assigns of
Licensee.
14. Notices: All rents, notices or other communication shall be sent in
accordance with the provisions of the Lease regarding notices.
The parties hereto have executed this License as of the date first above
written.
LICENSOR:
FORD MOTOR LAND DEVELOPMENT CORPORATION,
a Delaware corporation
By:
------------------------------------
Its:
-----------------------------------
LICENSEE:
SPHERIS OPERATIONS INC., a Tennessee corporation
17
By:
---------------------------------
Its:
--------------------------------
18
EXHIBIT F
[XXXX OF SALE]
FORD MOTOR CREDIT COMPANY, a Delaware corporation ("Seller"), for and in
consideration of the sum of One and No/100 Dollars ($1.00), in lawful money, and
other good and valuable consideration unto it paid by SPHERIS OPERATIONS INC., a
Tennessee corporation ("Purchaser"), the receipt and sufficiency of which are
hereby acknowledged by Seller, has granted, bargained, sold, transferred, set
over and delivered, and by these presents does grant, bargain, sell, transfer,
set over and deliver unto Purchaser, its successors and assigns, all of Seller's
right, title, and interest in and to the items set forth and described on the
inventory list attached hereto as Exhibit "A" and by this reference made a part
hereof, owned by Seller and located at 0000 Xxxxxxxxx Xxxxxxx, Xxxxxxxx,
Xxxxxxxxx (all of which are together hereinafter referred to as the "Personal
Property").
And Seller, for itself and its successors and assigns, hereby covenants to
and with Purchaser, its successors and assigns, that Seller is the lawful owner
of said Personal Property, that Seller has good right to sell the same, that
said Personal Property is unencumbered, and that Seller will warrant and defend
the Personal Property against the lawful claims and demands of all persons
whomsoever.
The Personal Property is used equipment. The Personal Property is sold to
Purchaser "as-is, where is, with all faults". Seller has not made and does not
make any express or implied representations or warranties whatsoever including,
without limitation, any representations or warranties regarding the Personal
Property's condition, durability, operation, quality of materials or
workmanship, compliance with specifications or applicable law. In no event will
Seller be liable for any special, indirect, or consequential damages arising
under or in any way connected with the Personal Property, including, but not
limited to, those for loss or interruption of use, revenue, or profit.
IN WITNESS WHEREOF, Seller has caused this Xxxx of Sale to be executed
under seal this ____ day of ______________, 2006.
"SELLER":
FORD MOTOR CREDIT COMPANY,
a Delaware corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
19
EXHIBIT "A" TO XXXX OF SALE
INVENTORY LIST
[TO BE ATTACHED]
20
EXHIBIT G
WORKLETTER
21
EXHIBIT G
WORK LETTER
1. Existing Building. Landlord confirms that the Existing Building has been
constructed and/or renovated so that it complies with Applicable Laws and
applicable Deed Restrictions. As used herein, the "Existing Building" shall mean
Building A and Building C of the Office Complex, including, all base, shell and
core improvements, all improvements to the common areas of the Building A and
Building C, and all above-ceiling improvements to the Premises including the
installed and finished ceiling. As used herein, the term "Applicable Laws" shall
mean any and all laws, ordinances and zoning regulations of any federal, state
or local governmental authority having jurisdiction with respect to the
Premises. As used herein, the term "Deed Restriction" shall mean any and all
restrictive covenants, agreements or other encumbrances of record in the
Register's Office for Xxxxxxxxxx County, Tennessee, encumbering the Premises,
including without limitation the Protective Covenants.
2. Tenant Improvements. "Tenant Improvements" shall include all work to be
done within the Premises including partitioning, interior doors, floor covering
and finishes, reflective ceiling, electrical fixtures, electrical outlets and
switches, telephone outlets, plumbing fixtures, paint and wall coverings,
shelving and other millwork and locations for computer and word processing
equipment, and all work related to such items, including the preparation of any
plans related thereto, all to be more particularly set forth in the Working
Drawings. Landlord will construct the Tenant Improvements in accordance with all
Applicable Laws and Deed Restrictions, if any, and in accordance with the
Working Drawings, approved by Tenant and Landlord, as defined in Paragraph 4
below. Landlord will provide the Tenant Allowance described in Paragraph 8
below. All Tenant Improvements will be done to the standards and using the
materials and finishes set forth in the approved Working Drawings.
3. Parties' Responsibilities.
(a) Landlord's Responsibilities. Landlord will construct the Tenant
Improvements and make any necessary modifications to the Existing Building as
may be necessary or appropriate for the Existing Building to comply with this
Work Letter. Landlord will be responsible for the review and approval of all
plans and construction drawings for the Tenant Improvements as provided in
Paragraph 4 below. Upon approval of such plans by both parties, Landlord will be
responsible for ensuring that all of the work done to modify, construct, and
prepare the Premises shall be done in a good and workmanlike manner in
compliance with all Applicable Laws and the approved Working Drawings. Landlord
agrees to exercise due diligence in causing the construction and installation of
the Tenant Improvements with a proposed occupancy date of October 15, 2006.
Landlord will not charge Tenant for any construction management fees or
construction supervisory fees.
(b) Tenant's Responsibilities. Tenant shall be responsible for the
preparation and approval of preliminary space plans and specifications for the
Tenant Improvements ("Space Plans"), and Tenant shall be responsible for the
preparation and approval of the final
Exhibit G, page 2
construction drawings and specifications for the Tenant Improvements ("Working
Drawings") as described in Paragraph 4 below, for the review and approval of all
pricing related to the construction of the Tenant Improvements, and for the
payment of any Tenant approved charges in excess of the Tenant Allowance.
(c) Mutual Cooperation. Landlord and Tenant agree to negotiate in good
faith with each other to achieve the approval of the Working Drawings.
4. WORKING DRAWINGS
(a) Prior to Lease execution or within ten (10) days thereafter, but
not later than June 1, 2006, Tenant's architect shall prepare Space Plans for
the Premises and, after approval by Tenant, said Space Plans shall be submitted
to Landlord for approval, which approval shall not be unreasonably withheld,
conditioned, or delayed. If Landlord desires modifications to the Space Plans,
Landlord shall notify Tenant in writing within ten (10) days following its
receipt thereof, and the parties shall promptly confer to reach agreement on the
Space Plans. Landlord and Tenant agree to negotiate in good faith with each
other to achieve the approval of the Space Plans. If Landlord fails to notify
Tenant of any objections to the Space Plans within the 10-day period, Landlord
shall be deemed to have approved said Space Plans.
(b) Within five (5) weeks after the date Landlord and Tenant agree
upon and approve the Space Plans, Tenant shall cause its architect to prepare
final Working Drawings, shall review and approve such Working Drawings, and
shall submit the same to Landlord for approval, which approval shall not be
unreasonably withheld. If Landlord requests modifications to the Working
Drawings, Landlord shall notify Tenant in writing within ten (10) days of
Landlord's receipt of said drawings from Tenant. If Tenant objects to any
modifications requested by Landlord to the Working Drawings, the parties shall
promptly confer to resolve all issues related thereto. If Landlord fails to
notify Tenant of any modifications within the ten (10) day period, Landlord
shall be deemed to have approved said Working Drawings.
(c) Once approved by both parties, the Working Drawings shall not be
changed without Landlord's and Tenant's prior written consent, which consent
shall not be unreasonably withheld, conditioned or delayed provided that Tenant
may withhold its consent to any change in the Working Drawings proposed by
Landlord if in Tenant's sole and absolute discretion, such change (i) would
materially adversely affect Tenant's intended use of the Premises, or (ii)
materially increase the cost of the Tenant Improvements. If any material change
is necessary in the Working Drawings due to requirements of any Applicable Laws,
Landlord shall consult with Tenant to develop an approach to meeting any such
requirements that are acceptable to Tenant and Landlord.
5. Bidding the Job.
(a) Following approval of the Working Drawings by both parties,
Landlord will use DWC Construction Company, Inc. ("DWC"), as general contractor
to complete the
Exhibit G, page 3
work; provided, however, that Tenant shall have the right to approve the pricing
aspects of Landlord's construction contract with DWC, which approval shall not
be unreasonably withheld. DWC shall secure a minimum of three (3) independent
bids from subcontractors qualified to handle the various trade work to complete
a project of this scope and complexity. Landlord shall approve the
subcontractors based on lowest pricing and timing.
6. [Intentionally deleted.]
7. Construction.
(a) Process and Schedule. Landlord shall use its best efforts to cause
all necessary permits to be secured within thirty (30) days after the approval
by both Landlord and Tenant of the Working Drawings, and shall cause the
Contractor to promptly commence and to complete construction in accordance with
the Working Drawings; provided, however, that Landlord shall not be responsible
for any delays beyond its reasonable control for obtaining such permits.
Landlord shall supervise the completion of the Tenant Improvements and shall use
its best efforts to ensure that the Premises are substantially completed on or
before October 15, 2006. All work shall be done in a good and workmanlike manner
in accordance with all Applicable Laws and the Working Drawings.
(b) Landlord agrees to repair and correct any work or materials
installed by Landlord or Contractor in the Premises that prove defective as a
result of faulty materials, equipment or workmanship and that first appear
within one year after the Commencement Date, or provided any materials or work
are covered by a warranty until such later time as any applicable warranties
provided by a manufacturer or contractor have expired. Notwithstanding the
foregoing, Landlord shall not be responsible for the repairs or correction of
any defective work or materials installed by Tenant or any contractor other than
Contractor (or a subcontractor under the control or working on behalf of
Contractor), or any work or materials that prove defective as a result of any
act or omission of Tenant or any of Tenant's employees, agents, invitees,
licensees, subtenants, customers, clients or guests.
8. Payment for Tenant Improvements; Reimbursements.
(a) Landlord will provide to Tenant an allowance of $2,106,270
($30.00/RSF) ("Tenant Allowance") except for costs to be paid pursuant to
Section 8 (b), such Tenant Allowance shall be used at Tenant's discretion, and
from time to time upon Tenant's request for any and all costs associated with
necessary modifications to the Existing Building or the construction of the
Tenant Improvements and any and all other costs incurred in Tenant's occupancy
of the Premises, including without limitation, the following: (i) costs of labor
and materials, (ii) fees and other charges payable to contractors, (iii) fees to
governmental authorities for permits, inspections, and certificates of
occupancy, (iv) utilities during construction, (v) furniture requested by the
Tenant including, at a value of $200.00 per work station, approximately 115
Typical A's and 45 Typical B's, to be in good working order and
Exhibit G, page 4
repair, and Tenant will pay (or use Tenant Allowance) to inventory, move and
set-up of said furniture (vi) other out-of-pocket costs and expenses incurred by
Landlord that are directly related to the preparation of the Working Drawings or
the construction of the Tenant Improvements, and (vii) any other item that is
permitted to be charged against the Tenant Allowance pursuant to this Section 8.
(b) Except as provided otherwise herein, the cost of constructing the
Tenant Improvements shall be charged against the Tenant Allowance. If the total
cost of the Tenant Improvements exceeds the Tenant Allowance, the excess shall
be paid by Tenant in accordance with subsection (d) below, provided that Tenant
shall not be liable for any excess cost in connection with the Tenant
Improvements unless Tenant has approved such excess cost in advance and in
writing.
(c) In the event that Tenant shall request any changes or
substitutions to the Tenant Improvements after the Working Drawings have been
prepared and the Contractor's bid for the Tenant Improvements has been accepted,
any additional costs which cause the Tenant Improvements to exceed the Tenant
Allowance shall be paid by Tenant, provided that Tenant approves such additional
costs in writing before the work is done.
(d) If Tenant is required to pay any costs in excess of the Tenant
Allowance, Tenant shall pay fifty percent (50%) of the approved excess costs
when approximately fifty percent (50%) of the work is complete (based on actual
progress payments made to the Contractor), with the remainder to be paid upon
substantial completion of the Tenant Improvements subject to a ten percent (10%)
holdback until all punch-list items have been completed.
(e) If the costs to construct the Tenant Iimprovements are less than
the Tenant Allowance, the difference shall be applied to the initial
installment(s) of rent and other amounts Tenant is obligated to pay under the
Lease.
(f) As part of the Tenant Allowance and to the extent any portion of
the Tenant Allowance remains after substantial completion of the Tenant
Improvements, Landlord also agrees to reimburse Tenant for the following:
(i) Any cost incurred by Tenant for the preparation of the Tenant
Improvement Plans; and
(ii) Actual moving expenses incurred by Tenant in connection with
its occupancy of the Building.
(g) Except as otherwise set forth in this Section 8, any payment
required to be made by either part pursuant to the terms of this Section 8 shall
be made not less than thirty (30) days after the request for such payment by the
other party.
9. Completion/Punch-List. The Premises shall not be considered
substantially complete until (i) the Tenant Improvements have been completed in
accordance with the Working Drawings subject only to the completion of a written
punch list containing
Exhibit G, page 5
items that will not interfere with Tenant's use and occupancy of the Premises
for Tenant's permitted use under the Lease, and (ii) a certificate of occupancy
and/or a conditional use permit or other such document has been issued for the
Premises by the applicable governing authority ("Substantial Completion").
Within thirty (30) days after Substantial Completion, Tenant shall have the
right to inspect the Premises and deliver to Landlord a list of punchlist items
that Tenant believes fail to comply with the Working Drawings ("Tenant's
Punchlist"). In the event Landlord disagrees with any items on Tenant's
Punchlist, the Contractor and Tenant's Architect shall review such disputed
items and jointly issue a revised punchlist containing those items that
Contractor and Tenant's Architect determine fail to comply with the Working
Drawings ("Revised Punchlist"), which Revised Punchlist shall be binding on
Landlord and Tenant. Landlord shall promptly make the repairs and renovations
required by the Revised Punchlist.
10. Delay of Commencement Date. Notwithstanding the Commencement Date
provided in the Lease, Tenant's obligation for the payment of monthly
installments of Rent thereunder shall not commence until Substantial Completion;
provided however, that if Landlord shall be delayed in substantially completing
such Tenant Improvements as a result of any of the following, which shall be
deemed a "Tenant Delay":
(a) Tenant's failure to return approved Space Plans, Working Drawings
and/or cost estimates; or
(b) Tenant's request for materials, finishes or installations which
are not readily available; or
(c) Tenant's changes in the Space Plans or Working Drawings; or
(d) The non-performance by a person, firm or corporation employed by
Tenant and delay of completion of the Tenant Improvements by such
person, firm or Corporation; or
(e) Any other matter which is deemed to be a Tenant Delay pursuant to
the terms of the Workletter;
then Tenant shall pay to Landlord one day worth of the monthly Rent
for each day of Tenant Delay to the extent that the Tenant Delay
causes a delay in the Substantial Completion so long as, with respect
to each occurrence of Tenant Delay, Tenant has been provided written
notice thereof promptly after such Tenant Delay commences.
11. Miscellaneous.
(a) Landlord and the Contractor shall allow Tenant and/or Tenant's
agents access to the Premises at least forty-five (45) days prior to the
Substantial Completion of the Premises for the purpose of Tenant and/or Tenant's
agents installing furniture, equipment or fixtures (including Tenant's data and
telephone equipment and related cabling) in the Premises, and for other
activities related to Tenant's preparation for occupying the Premises so long as
Tenant and/or Tenant's agents do not unreasonably interfere with the work to be
performed by Landlord or the Contractor in the Building and the Premises.
Exhibit G, page 6
(b) During the period of construction of the Tenant Improvements and
Tenant's move into the Premises, Tenant and Tenant's agents shall not be
charged, directly or indirectly, for parking, restrooms, HVAC usage,
electricity, water, elevator usage, loading dock usage, freight elevator usage,
security, or similar services.
(c) Immediately prior to the delivery of the Premises to Tenant,
Landlord shall remove all rubbish and debris therefrom and thoroughly clean the
Premises.
Exhibit G, page 7
