NATIONAL OFFICE LEASE
TABLE OF CONTENTS
TERM SHEET
LEASE SECTION:
1. Definitions
2. Premises
3. Term of Lease; Completion of Improvements
4. Extension of Term
5. Rent - Initial Term
6. Rent - Extended Term
7. Use of Premises
8. Services by Landlord
9. Reserved Parking
10. Access to Premises
11. Common Area Maintenance
12. Sign
13. Improvements
14. Repairs
15. Right of Entry by Landlord
16. Indemnification
17. Insurance
18. Subrogation
19. Mechanic Liens and Encumbrances
20. Holding Over
21. Assignment and Subletting
22. Default and Re-entry
23. Condemnation
24. Destruction of Premises
25. Taxes
26. Quiet Enjoyment
27. Subordination
28. Estoppel Certificate by Tenant
29. Consent by Landlord
30. Hazardous Substances
31. Microwave Dish
32. Brokers
33. Notices
34. Relationship
35. Complete Agreement
36. Authority for Execution
37. Binding Effect
38. Execution
Exhibit A Building
B Premises
C Confirmation of Commencement
D Janitorial Services
E Nondisturbance Agreement
F Estoppel Certificate
G Building/Park Rules and Regulation
H Area Calculations
TERM SHEET
ITEM Basic Lease Provisions
1. Date:
2. Landlord:
3. Tenant:
4. Section 1 (a) Building:
Address:
5. Section 1 (c) Business Hours:
6. Section 1 (f) Exhibits:
7. Section 1 (g) Management Fee Included in Operating Expenses:
Base Year For Purposes of Operating Expenses:
Base Operating Expenses:
Tenant's Share of Base Operating
Expenses Included in Base Rent:
8. Section (i) Premises:
9. Section (i) Base Year For Purposes of Property Taxes:
Base Property Taxes:
Tenant's Estimated Share of Base Property
Taxes Included in Base Rent:
10. Section 1 (j) Tenant's Percentage Share:
11. Section 2 Premises
Rentable Square Feet:
Usable Square Feet:
Building
Rentable Square Feet:
Usable Square Feet:
12. Section 3 Term Commencement Date:
Tenant Provided Documents Date Certain:
13. Section 3 Term Expiration Date:
14. Section 4 Extended Term Commencement Date:
15. Section 4 Extended Term Expiration Date:
16. Section 5 Base Rent:
17. Section 6 Extended Term Base Rent:
18. Section 7 Use:
19. Section 8 After-hours HVAC Charge:
20. Section 9 Reserved Parking:
Monthly charge:
21. Section 22 Liquidated Damages Percentage:
22. Section 32 Broker:
22. Paragraph 33 Landlord's Address for Notice:
Copy to:
Corporation
Blvd.
Suite #00
Town, State 00000
Tenant's Address for Notice:
Copy to:
Corporation
Blvd.
Suite #00
Town, State 00000
Additional_Provisions:
__________________________________________________________
__________________________________________________________
__________________________________________________________
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IN WITNESS WHEREOF, Landlord and Tenant have executed the Lease
to which this Term Sheet is attached by signing and dating this Term Sheet a
nd by initialing the first page of Landlord's Worksheet and the first page of the Lease.
TENANT: LANDLORD:
By:_________________________ By:__________________________
Date_____ Date_____
Its:________________________ Its:_________________________
LEASE AGREEMENT
THIS AGREEMENT OF LEASE dated as of the date specified in
Item 1 of the Term Sheet, between the party (herein called "Landlord")
identified as Landlord in Item 2 of the Term Sheet and the party (herein called
"Tenant") identified as Tenant in Item 3 of the Term Sheet.
WITNESSETH:
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord,
the Premises described in Paragraph 1(h) below, for the term and subject to
the terms, covenants, agreements and conditions hereinafter set forth, to each
and all of which Landlord and Tenant hereby mutually agree.
1. DEFINITIONS
Unless the context otherwise specifies or requires, the following
terms shall have the meanings herein specified:
(a) "Building" shall mean the building designated in Item 4 of
the Term Sheet 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.
(b) "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 Day, Labor Day,
President's Day, Thanksgiving Day and Christmas Day.
(c) "Business Hours" shall be the hours designated in
Item 5 of the Term Sheet.
(d) "Calendar Year" shall mean any period during the
Initial Term or any Extended Term of this Lease commencing
on January 1 and ending on the next following December 31.
(e) "Common Areas" shall include all interior and exterior common
areas, including, but not limited to, parking areas, driveways, building
signs, landscaping, paving, sidewalks, hallways, stairways, escalators,
elevators, common entrances, lobbies, rest rooms and other similar
public areas and access ways.
(f) "Lease" shall include this Lease Agreement, the Term Sheet,
Landlord's Worksheet, Exhibits A, B, C, D, E and F and all other
Exhibits, if any, specified in Item 6 of the Term Sheet.
Initials: Landlord __________ Tenant ________________
(g) "Operating Expenses" shall mean any and all costs, expenses
and disbursements of every kind and character that are reasonable,
actual and necessary (subject to the limitations set forth below) which
Landlord shall incur, pay or become obligated to pay at competitive
prices in connection with the ownership of any estate or interest in
the Building or the operation, maintenance, repair, replacement and security
of the Building, including a management fee as specified in Item 7 of the Term
Sheet, all as determined in accordance with generally accepted accounting
principles consistently applied.
Operating Expenses shall not include Property Taxes as defined in
Section 1(i); depreciation of the Building; expenses performed as a
special service for another tenant that are not standard for all tenants; advertising,
public relations and promotions attributable to Landlord's efforts to increase
or maintain the occupancy rate in the Building; tenants' improvements;
utility expenses provided to the Premises and separately metered and
paid directly by Tenant; legal and other expenses in enforcing the terms
of any lease or incurred with respect to negotiations or disputes with
present or prospective tenants or occupants of the Building; real estate
brokers' commissions' (unless specifically agreed otherwise herein);
salaries or other compensation due any employee above the grade of
building manager; state, federal or local income taxes, excess profits or
franchise taxes or other such taxes imposed on or measured by or
determined from the gross income of Landlord; any ground lease rental;
interest on debt or amortization payments on mortgages or deeds of trust
or any other debt for borrowed money whether secured or unsecured;
repairs or other work needed because of fire, windstorm, or other casualty
or cause insured against by Landlord or to the extent Landlord's
insurance required under Section 17 would have provided insurance,
whichever is the greater coverage; nonrecurring costs incurred to remedy structural
defects in original construction materials or installations; any
costs, fines or penalties incurred because Landlord violated any governmental
rule or authority; costs incurred to test, survey, cleanup, contain, abate, remove
or otherwise remedy hazardous wastes or asbestos-containing materials
from the Building or Premises unless the wastes or asbestos-containing
materials were in or on the Building or Premises because of Tenant's
negligence or intentional acts; overhead and profit paid to Landlord or
affiliates of Landlord for services rendered to the extent the same exceeds
the costs of such services rendered by unaffiliated third parties on a
competitive basis; all costs of a capital nature under generally accepted
accounting principles consistently applied, including but not limited to: (i) rentals and
other related expenses incurred in leasing capital items such as air
conditioning systems, elevators or other equipment that would not be
considered normal maintenance, repair, management or operation expenses; (ii)
extraordinary alterations to and replacements of capital items; (iii) costs
of equipment, tools and/or improvements not normally expensed in one year;
and (iv) expenditures for compliance with governmental requirements in
effect prior to occupancy of the Building; costs incurred by Landlord with respect to goods
and services (including utilities sold and supplied to tenants and occupants
of the Building) to the extent that Landlord is entitled to reimbursements
for such costs; any compensation paid to clerks, attendants or other
persons in commercial concessions operated by Landlord or in the parking
garage of the Building. If less than ninety-five Percent (95%) of the rentable
square footage in the Building shall have been occupied by tenants at
the time the Base Year Operating Expenses are determined or any adjustment
period thereafter, Operating Expenses shall be "grossed up" to the amount of
Operating Expenses that, using reasonable projections, it would normally be
expected to be incurred during the Base Year or any adjustment period
thereafter assuming the total rentable square footage in the Building were
occupied during the Base Year or any adjustment period thereafter, as determined
under generally accepted accounting principles consistently applied. Only those
component expenses that are affected by variations in occupancy levels shall be so
adjusted.
Notwithstanding the foregoing, Operating Expenses may include the cost
of any capital improvements (i) which are made for the primary purpose of
reducing Operating Expenses, or (ii) which may be required by governmental
authority under any governmental law or regulation that was not applicable to
the Building as of the date of this Lease, which cost shall be amortized over
the period used by Landlord for Federal Income Tax purposes, together with
interest on the unamortized balance at the rate equal to the Prime Rate
published in the Wall Street Journal or such higher rate as may have been
paid by Landlord on funds borrowed for the purpose of constructing such
capital improvements.
The Base Year for Operating Expense purposes, the total dollar
amount of Base Operating Expenses and Tenant's Percentage
Share of same are designated in Item 7 of the Term Sheet.
(h) "Premises" shall mean the portion of the Building located on the floor(s)
specified in Item 8 of the Term Sheet which is outlined on the floor
plan(s) attached hereto as Exhibit "B." The Premises contain the fixtures,
improvements and other property now installed plus any improvements
described in Section 3(b) and Landlord's Worksheet.
(i) "Property Taxes" shall mean the total of all ad valorem real property
taxes and currently due installments of assessments, special or otherwise,
levied upon, or with respect to or reasonably allocable to the Building or
the rent and additional charges payable thereunder, imposed by any taxing
authority having jurisdiction. With respect to the payment of assessments,
special or otherwise, payment in installments over the longest possible
term shall be deemed to have been elected in any instance where a
determinable option so to pay existed, or may exist, notwithstanding
that an assessment may have been, or may hereafter be, paid in full,
and Tenant shall bear its pro rata share of only such installments
plus applicable interest on the outstanding principal balance from
time to time as would have become due, payable and delinquent during the Initial
Term or any applicable Extended Term had the installment option been elected.
Property Taxes also shall include all taxes, levies and charges which may
be assessed, levied or imposed in replacement of or in addition to all or
any part of ad valorem real property taxes as revenue sources, and
which in whole or in part are measured or calculated by, based upon
or allocable to the Building, the leasehold estate of Landlord or
Tenant or the rent and other charges payable thereunder.
Notwithstanding the foregoing, Property Taxes shall not include
federal, state or local income taxes; franchise, gift, transfer,
excise, capital stock, estate, succession or inheritance taxes;
penalties or interest for late payment of Property Taxes.
The Base Year for Property Tax purposes, the total dollar
amount of Base Property Taxes and Tenant's Percentage Share
of same are designated in Item 9 of the Term Sheet.
(j) "Tenant's Percentage Share" shall mean the percentage
figure specified in Item 10 of the Term Sheet which is equal
to the rentable square footage of the Premises as specified
in Item 11 of the Term Sheet divided by the rentable square
footage of the Building, and expressing the fraction as a percentage.
(k) "Term Sheet" shall mean the terms set forth in the
foregoing paragraphs delineated as "Term Sheet," which
terms are hereby incorporated in this Lease as if set forth
in full. In the event of any conflict between any provision of the
Term Sheet and this Lease, the latter shall control.
2. PREMISES
Landlord and Tenant agree that the Premises contain the
number of rentable square feet and usable square feet specified
in Item 11 of the Term Sheet, and the Building contains the
number of rentable square feet and usable square feet specified in
Item 11 of the Term Sheet. Those measurements were made using the
American National Standard Method of Measuring Floor Area
in Office Buildings, ANSI Z65.1-1980, published by the Building
Owners and Managers Association International (BOMA Standards)
in effect as of the Term Commencement Date.
Tenant and its agents, employees and invitees have the
non-exclusive right with others designated by Landlord to
the free use of the Common Areas and the land on which
the Building is located for the Common Areas' intended and
normal purpose. Landlord may change the Common Areas if the
changes do not materially and unreasonably interfere with
Tenant's access to the Premises or use of them.
3. TERM OF LEASE; COMPLETION OF IMPROVEMENTS
(a) The term of this Lease (hereinafter referred to as the "Initial Term")
shall commence and, unless sooner terminated as hereinafter
provided, shall end on the dates respectively specified in Item 12 and Item 13 of the
Term Sheet (hereinafter, respectively, the "Term Commencement Date"
and the "Term Expiration Date"). Landlord shall deliver the Premises
free from all tenancies and occupancies and free from all suits, complaints,
reports, notices or orders with respect to violations of any federal,
state, municipal, or other governmental laws and regulations.
(b) If applicable, prior to the Term Commencement Date, Landlord
shall complete construction of the floor(s) in which the Premises
are located and shall construct or install in the Premises the improvements to be
constructed or installed by Landlord pursuant to the provisions of
Landlord's Worksheet attached hereto and made a part hereof by reference.
The improvements shall be completed in a good and workmanlike manner
and comply with all applicable laws, ordinances, rules and regulations
of governmental authorities. The Premises shall be deemed to
be completed and possession capable of being delivered when Landlord has
completed these improvements subject only to issuance of a
certificate of occupancy, where required, and to the completion
of items on the punchlist described in Section 3(d). : Tenant shall deliver all approvals,
drawings, specifications, and required documents on or before item 12:
Tenant Provided Documents Date Certain. Delays due to Tenant written
requested changes shall extend the term of the lease one (1) day for
each one (1) day of Tenant written requested delay.
(c) In the event Landlord cannot deliver possession of the Premises to
Tenant on the Term Commencement Date, (a) the Rent provided
hereunder shall abate proportionally to the day on which Tenant accepts
delivery of the Premises, the Term Commencement Date and Term
Expiration Date specified in Items 12 and 13, respectively, of the Term
Sheet shall be extended to conform to the time Tenant accepts delivery of the
Premises, and Landlord shall not suffer any other liability whatsoever,
except as set forth hereinafter; and (b) Tenant agrees to accept delivery
of the Premises within five (5) Business Days after it receives written notice
from Landlord that the Premises are ready for its occupancy.
Notwithstanding the foregoing, if the Premises are not completed and
actual possession tendered to Tenant within thirty days after the Term
Commencement Date and such delay is not the result of Tenant's actions,
Tenant may, at its option, give Landlord notice of its termination of this
Lease in which case this Lease shall be of no further force and effect.
In this event, all sums paid by Tenant to Landlord on account of this
lease shall be refunded to Tenant. Landlord agrees to use its best efforts
to have the Premises completed as herein provided prior to the Term
Commencement Date.
(d) Before the Term Commencement Date, Landlord and Tenant shall
inspect the Premises, have all systems demonstrated, and prepare a punchlist.
The punchlist shall list incomplete, minor or insubstantial details or construction;
necessary mechanical adjustments and needed finishing touches that do not
unreasonably interfere with Tenant's intended use of the Premises.
Landlord will complete the punchlist items in an expeditious manner in
no event later than thirty (60) days after the Term Commencement Date.
Landlord will promptly correct any latent defects as they become known.
Tenant shall notify Landlord of the defect within thirty (30) days after Tenant
first learns of the defect.
(e) In the event the Premises are ready for occupancy prior to the
Term Commencement Date, Tenant shall have the right, but not
the obligation, to take early occupancy of the Premises on such date as Landlord and
Tenant shall agree, however, such early occupancy shall not change
the Term Commencement Date or Term Expiration Date specified in
Items 12 and 13, respectively, of the Term Sheet.
(f) If Tenant elects to accept possession of the Premises prior to
the Term Commencement Date (i.e. "takes early occupancy") for the
regular conduct of Tenant's business, then either the entire Term of the Lease
should be accelerated to the earlier date of Tenant's possession or the
Term should be extended by the period from the earlier date of Tenant's
possession to the day prior to the Term Commencement Date. In
either event, Tenant's occupancy of the Premises for the regular conduct
of Tenant's business prior to the Term Commencement Date should be
upon all of the terms, covenants and conditions contained in the Lease,
including the payment of Base Rent and additional rent.
(g) Tenant and its contractors shall have the right to install equipment,
trade fixtures, furnishings and decorations in the Premises for a
period of thirty (30) days prior to the Term Commencement Date, provided
such installation does not unreasonably delay or interfere with
Landlord's construction or delivery of possession. Tenant's occupancy
of the Premises under this Section 3(f) shall be upon all the terms,
covenants and conditions contained in the Lease, except that
Tenant shall not be obligated to pay Base Rent and additional rent.
(h) Landlord and Tenant agree, upon demand of the other,
to execute a declaration in the form attached here to as
Exhibit C and made a part hereof by reference, expressing
the Term Commencement Date and Term Expiration Date.
4. EXTENSION OF TERM
Provided Tenant shall not be in material default of any
terms or conditions of this Lease, Tenant shall have the option to extend
this Lease (hereinafter the "Extended Term") commencing and, unless sooner
terminated as herein provided, ending on the dates respectively
specified in Items 14 and 15 of the Term Sheet (hereinafter, respectively,
the "Extended Term Commencement Date" and the "Extended Term
Expiration Date") by giving Landlord written notice of its intention to
do so at least six months prior to the end of the Initial Term or
subsequent Extended Term, if applicable, upon the same terms and
conditions as herein stated and at the rental rate specified in Section
6 hereof. If Tenant exercises an option for the Extended Term, Landlord,
at its cost, shall refurbish the Premises, including, but not limited to,
conducting revamping, making minor cosmetic repairs to the Premises
and cleaning or replacing the carpeting in the Premises, if requested by Tenant.
5. RENT - INITIAL TERM
(a) Tenant shall pay to Landlord throughout the Initial Term of this
Lease as rental for the Premises the Base Rent specified in Item
16 of the Term Sheet. In addition to the Base Rent, Tenant shall
pay monthly to Landlord on the same due date as the Base Rent
commencing on the first anniversary of the Term Commencement
Date (i) an amount equal to the product obtained by multiplying
Tenant's Percentage Share times the remainder obtained by subtracting
the Base Operating Expenses specified in Item 7 of the Term Sheet from
the Operating Expenses for the Calendar Year in questions and (ii) an
amount equal to the product obtained by multiplying Tenant's Percentage
Share times the remainder obtained by subtracting the Base Property
Taxes specified in Item 9 of the Term Sheet from the Property Taxes
for the Calendar Year in question. Such Base Rent, and Tenant's
Percentage Share of increased Operating Expenses and Property
Taxes shall herein collectively be referred to as "Rent".
(b) The adjustments to the annual Rent amount contemplated under paragraph (a)
above shall be made in accordance with the following procedures:
(i) Forty-five (45) days prior to the end of each Calendar Year,
Landlord shall give Tenant notice of its reasonable estimate of the amounts
payable under paragraph (a) above for the ensuing Calendar Year. On
or before the first day of the month following completion of the first twelve
months of the Initial Term and thereafter on or before the first day of each
month during the ensuing Calendar Year, Tenant shall pay to Landlord one-twelfth
(1/12th) of such estimated amounts; provided, however, that if notice of Landlord's
estimate of Tenant's Percentage Share of Operating Expenses and Property Taxes
is not given at least twenty (20) days prior to the end of such Calendar Year, during
the next Calendar Year, Tenant shall continue to pay the monthly payment based
on the Tenant's Percentage Share of Operating Expenses and Property Taxes
computed for the previous Calendar Year until the second month after such notice
is given.
(ii) Within one hundred twenty (120) days after the close of each Calendar Year
subsequent to the first twelve months of the Initial term of this Lease, Landlord
shall deliver to Tenant a statement of the adjustments to be made pursuant to
paragraph (a) above for the preceding Calendar Year prepared by Landlord. No
adjustment shall be made with respect to the first twelve months of the Initial
Term of the Lease. Landlord shall include in this statement a reasonably
detailed description of the Operating Expenses and Property Taxes and a
description of how the Operating Expenses were grossed up, if applicable.
In the event Landlord fails to deliver to tenant such statement within one hundred
twenty (120) days after the close of each Calendar Year, Landlord shall be
precluded from recovering any shortage from Tenant. If, on the basis of
such statement, Tenant owes an amount that is less than the estimated
payments for such Calendar Year previously made by Tenant, Landlord shall,
at Tenant's option, either pay to Tenant the entire amount of such excess
amount within thirty (30) days from the date of delivery of the statement or
credit such excess to Tenant's next monthly payment of Rent or, if applicable,
Extended Term Rent. If, on the basis of such statement, Tenant owes an amount
that is more than the estimated payments for such Calendar Year previously
made by Tenant, Tenant shall pay the deficiency to Landlord within thirty
(30) days after delivery of the statement.
(iii) If this Lease shall commence on a day other than the first day
of a Calendar Year or terminate a day other than the last day of a
Calendar Year, the amount of adjustment to be made pursuant to paragraph (a)
above that is applicable to the Calendar Year in which such
commencement or termination shall occur shall be prorated
on the basis of the number of calendar days within such year
as are within the Initial Term or any applicable Extended Term
of this Lease. Tenant's liability for Tenant's Proportionate Share
of Operating Expenses and Property Taxes for the last Calendar
Year falling entirely or partly within the Initial Term or any applicable
Extended Term of this Lease shall survive the expiration of the
Initial Term or any applicable Extended Term of this Lease.
Similarly, Landlord's obligation to refund to Tenant excess Operating
Expenses and Property Taxes, if any, paid by Tenant to Landlord
shall survive the expiration of the Initial Term or any applicable
Extended Term of this Lease.
(iv) Operating Expenses shall be reduced by reimbursements,
credits, discounts, reductions or other allowances received or
receivable by Landlord for items of cost included in Operating Expenses,
except reimbursements to the Landlord by tenants under additional
rent provisions.
(v) Landlord shall use reasonable efforts to keep Operating
Expenses at reasonable amounts, while maintaining a first
class office building.
(vi) Any costs incurred by Landlord because of a change of
policy or practice in operating the Building or Premises that
causes an increase in Operating Expenses over Base Operating
Expenses shall be included as Operating Expenses only if the
change in policy or practice would have been made by reasonably
prudent operators of comparable office buildings in the area
where the Leased Premises are located.
(vii) In determining the amount of any increases in Property
Taxes after the first Calendar Year of the Lease, the Base
Year and Base Property Taxes shall be as specified in Item
9 of the Term Sheet provided that in that Base Year there is
an assessment based upon a fully completed Building,
otherwise the Base Year shall be the first year thereafter
in which there is an assessment based upon a fully completed Building.
(viii) Landlord agrees to provide Tenant with notice of
increases greater than ten percent in the amount of Property
Taxes due with respect to the Premises. Landlord shall so notify
Tenant within thirty (30) days after its receipt of any such notice.
(ix) If the tenant occupies more than 50% of the buildings
total rentable area, Landlord agrees to arrange with proper
tax officials an initial meeting, and, upon written request of
Tenant, meetings thereafter throughout the Initial Term, and if
applicable, any Extended Term of this Lease, for the purposes
of negotiating the first, and any subsequent, Property Tax
assessment against the Premises, and that it shall extend to
Tenant a timely opportunity to participate in all such negotiations.
Landlord agrees that it shall not negotiate any assessment, nor
concur therein, unless Tenant has participated as aforesaid, or
has declined in writing to do so.
(x) If the Tenant occupies more than 50% of the building's
total rentable area, tenant or its designee shall have the unrestricted
right in its name, or in the name of Landlord if required, to pursue
such administrative and judicial procedures as may be necessary
to contest and appear from any assessment or valuation, and
pay under protest any billing of Property Taxes all or part of
which are borne by Tenant under the terms of this Lease.
Landlord agrees to cooperate in all reasonable ways to
further any such procedure by Tenant.
(xi) Any increase in the amount of Property Taxes
specifically attributed and allocated to any improvements
or additions made by other tenants to the Building shall
not be included in determining Tenant's share of Property Taxes.
If Tenant performs improvements which Increase Property Taxes,
then Tenant shall reimburse Landlord for any such increase in
Property Taxes.
(xii) If Landlord receives a refund of any portion of Property Taxes
that were included in the Initial Term Rent, or any applicable Extended
Term Rent, then Landlord shall, at Tenant's option, either pay to Tenant its pro
rata share of such refund within thirty (30) days from its receipt of
same or credit Tenant's pro rata share of such refund to Tenant's
next monthly payment of Rent or, if applicable, Extended Term Rent,
less any expenses that Landlord reasonably incurred to obtain the refund.
(xiii) Landlord hereby agrees that the calculation of Additional Rent
under this Article 5 shall be made in a fair and reasonable manner
consistent with calculations of rent for other tenants in the Building.
(xiv) If Landlord increases the Building's rentable square feet after the
Building was fully assessed as a completed and occupied unit and the
Lease was signed, then the Operating Expenses and Property Taxes
attributable to the additional rentable square feet shall be included in the
Operating Expenses and Property Taxes in an amount per rentable
square foot not to exceed the rentable square foot cost of Operating
Expenses and Property Taxes of the original Building. But Tenant's
Percentage Share shall be reduced using the same formula described
in Section 1(j).
(xv) Upon at least three (3) business days' notice to Landlord,
Tenant shall be entitled to examine Landlord's books and records
within forty-five (45) days after Tenant's receipt of Landlord's statement
under subparagraph(ii) above. Unless Tenant takes written exception
to any item in Landlord's statement within sixty (60) days after the
furnishing of the statement, such statement shall be considered as final
and accepted by Tenant. Any amount due Landlord as shown on any
such statement shall be paid by tenant within thirty (30) days after it is
furnished to Tenant. If Tenant shall dispute in writing any specific item
or items in Landlord's statement of Operating Expenses and Property
Taxes, and such dispute is not resolved between Landlord and Tenant
within sixty (60) days after the date the statement was tendered, either
party may, during the thirty (30) days next following the expiration of
the sixty (60) days, refer such disputed item or items to an independent
certified public accountant selected by Landlord and reasonably
acceptable to Tenant, for a determination which shall be final,
conclusive and binding upon Landlord and Tenant. Tenant agrees to pay
all costs involved in such determination unless it is determined that
Landlord's original calculation of Property Taxes and/or Operating
Expenses (whichever was challenged by Tenant) was in error by more than five (5%)
percent in which event Landlord shall pay the entire amount of the
costs involved in such determination. Pending the determination
of any dispute with respect to the statement submitted by Landlord,
Tenant shall pay when due the sums shown as due on such statement.
If it shall be determined that any portion of such sums were not properly
chargeable to Tenant, then Landlord shall promptly credit or refund the appropriate
sum to Tenant.
(c) The installment of the Base Rent for the first month
of the Initial Term of the Lease shall be paid by Tenant to
Landlord on the Term Commencement Date. Rent shall be
paid to Landlord on or before the first day of each and every
successive calendar month after the first month during the Initial
Term of this Lease. In the event the Term Commencement Date
is other than the first day of a calendar month or the Term
Expiration Date is other than the last day of a calendar month,
then the monthly Rent for the first and last fractional months of the
Initial Term or any applicable Extended Term shall be prorated by
multiplying the monthly Rent by a fraction, the numerator of which
is the number of days of the partial month included in the
Initial Term or any applicable Extended Term and the denominator
of which is the total number of days in the full calendar month.
(d) Rent shall be paid to Landlord at Landlord's address for
notices hereunder or to such other person or entity or at such
other place as Landlord may from time to time designate in writing.
6. RENT - EXTENDED TERM
Tenant shall pay to Landlord throughout any Extended Term
of this Lease as rental for the Premises:
(i) The Base Rent for the Extended Term is specified in Item
17 of the Term Sheet; and
(ii) In addition to the Extended Term Base Rent Tenant shall
pay monthly to Landlord on the same due date as the Extended
Term Base Rent commencing the first anniversary of the Extended
Term Commencement Date (a) an amount equal to the product obtained
by multiplying Tenant's Percentage Share times the remainder obtained
by subtracting the Extended Term Base Operating Expenses from the estimated
Operating Expenses for the Calendar Year in question and (b)
an amount equal to the product obtained by multiplying Tenant's
Percentage Share times the remainder obtained by subtracting
the Extended Term Base Property Taxes from the estimated
Property Taxes for the Calendar Year in question. The Extended Term
Base Operating Expenses and Extended Term Base Property
Taxes shall be the Operating Expenses and Property Taxes incurred
by Landlord in the Calendar Year immediately preceding the Term
Expiration Date indicated in Item 13 of the Term Sheet.
Such Extended Term Base Rent and Tenant's Percentage
Share of increased Operating Expenses and Property Taxes
shall here in collectively be referred to as "Extended Term Rent."
Except as otherwise provided above, all other terms, calculations
and obligations with respect to Rent included in Section 5(b), (c)
and (d) shall likewise be applicable to the payment of Extended
Term Rent.
(iii) Tenant will promptly pay all operating and property tax
expenses as estimated by Landlord. In the event that tenant
shall fail to pay Base Rent or any additional rent within five (5) days
after its due date, Tenant shall pay an automatic late charge to Landlord
of $.05 for each dollar overdue. Such late charge shall be deemed
additional rent for all purposes under this Lease. Tenant will use
the procedures outlined in subparagraph (5.xvi.) to resolve any disputed amount.
7. USE OF PREMISES
Landlord represents that the Premises lawfully may be used for
the uses specified in Item 18 of the Term Sheet. If any law, ordinance,
ruling, order or regulation of governmental authorities ("Applicable Laws") now
exists or is hereafter enacted prohibiting Tenant's continued use of the
Premises as specified in Item 18 of the Term Sheet, Tenant, at its option,
may terminate this Lease and all of its liability hereunder shall cease from
and after the date when such Applicable Law(s) becomes effective, and
any unearned Rent and Additional rent paid in advance by Tenant shall be
refunded by Landlord to Tenant.
Tenant shall comply with all Applicable Laws (i) regarding the physical
condition of the Premises, but only to the extent the Applicable Laws
pertain to the particular manner in which Tenant uses the Premises; or (ii) that
do not relate to the physical condition of the Premises but relate to the
lawful use of the Premises and with which only the occupant can comply,
such as laws governing maximum occupancy and workplace smoking.
8. SERVICES BY LANDLORD
Landlord agrees to furnish to the Premises and/or Building at no
additional charge the following utilities and services: (a) heating and cooling
required for the comfortable use and occupation of the Premises during
normal Business Days and Business Hours (provided that such heating
and cooling shall be available during other hours and on other days
upon 24 hours prior notice and request by Tenant); (b) hot and cold water
suitable for drinking, lavatory, toilet and ordinary cleaning purposes;
(c) gas and electricity suitable for the intended use of the Premises;
(d) replacement of lighting tubes, lamp ballasts and bulbs;
(e) extermination and pest control when necessary; (f) janitorial
services in and about the Premises, pursuant to specifications
set out in Exhibit D attached hereto and made a part hereof by reference;
(g) security services for the Building and the Premises; and (h) if applicable,
elevator and/or escalator service. Additionally, Landlord shall manage,
operate and administer the Building of which the Leased Premises is a part.
Tenant shall pay Landlord for overtime HVAC Services, on an hourly rate
specified in Item 19 of the Term Sheet, subject to reasonable increases from
time to time during the term of this Lease.
In the event that at any time during the Initial Term or any Extended
Term of this Lease, Tenant is not satisfied with the janitorial services
provided by Landlord under this Lease, Tenant shall notify Landlord of the
particular matter(s) with which Tenant is dissatisfied. Provided that
Landlord does not dispute the matter(s), Landlord shall promptly correct or
remedy such matter(s) to Tenant's reasonable satisfaction.
In the event of a dispute and the Landlord notifies Tenant that Landlord
will not or cannot attempt to cause such matters to be corrected or
remedied (or after notifying Tenant that it will attempt to cause such matters
to be corrected or remedied, such matters are not corrected or remedied
within thirty (30) days of such notice), Tenant shall have the option upon
sixty (60) days prior written notice to Landlord to contract for and cause
to be performed all janitor services with respect to the Premises, and in
such event, Landlord shall have no further obligation under this Lease to
provide such service, and Tenant shall be entitled to deduct from Tenant's
Rent and any applicable Extended Term Rent an amount equal to 75%
of the portion of the consideration payable by Landlord under its contract
with its provider of janitor services allocated to the Premises, but not
including Common Areas.
Landlord does not warrant that the services provided for in Section
8 above shall be free from any slowdown, interruption or stoppage
due to the order of any governmental bodies and regulatory agencies,
or caused by the maintenance, repair, replacement or improvement of
any of the equipment involved in the furnishing of any such services, or
caused by changes of services, alterations, strikes, lockouts, labor
controversies, fuel shortages, accidents, acts of God or the elements
or any other cause beyond the reasonable control of Landlord. No such
slowdown, interruption or stoppage of any such services shall ever be
construed as an eviction, actual or constructive, of Tenant, nor shall same
cause any abatement of annual Base Rent or additional rent or in any
manner or for any purpose relieve Tenant from any of its obligations under
this Lease. Landlord agrees to use due reasonable diligence to resume the service
upon any such slowdown, interruption or stoppage.
Notwithstanding the foregoing, in the event Tenant is deprived
of the use and occupancy (and actually vacates) a portion or all of the
Premises as a result of such stoppage or interruption for a period of at least
five (5) business days, then from and after the next day until the service is
restored, Tenant shall be entitled to an abatement in Base Rent equal to
the proportion of vacated space to tenant leased space. Landlord shall
be liable for, and Tenant shall be entitled to, any reduction in the Rent
or any applicable Extended Term Rent due hereunder by reason of Landlord's
failure to provide such utilities and services resulting from the
negligent or willful misconduct of Landlord or its employees.
9. RESERVED PARKING
Landlord shall provide to Tenant parking facilities as specified in
Item 20 of the Term Sheet.
10. ACCESS TO THE PREMISES
Tenant, its employees, agents and invitees shall have access
to the Premises twenty-four (24) hours a day, seven (7) days a week.
During non-Business Hours Landlord may restrict access to only those
individuals designated by Tenant to Landlord. Landlord may require
such individuals to show a badge or identification card issued by Landlord.
11. COMMON AREA MAINTENANCE
Landlord shall use reasonable diligence to maintain or cause
to be maintained the Common Areas. Landlord shall operate,
manage, equip, light, repair and maintain each Common Area for its intended purpose.
Tenant, its agents, customers, employees and invitees, shall have
the non-exclusive right in common with Landlord and all others to
whom Landlord has granted or may hereafter grant rights to use
the Common Areas subject to such reasonable rules and regulations
as Landlord may from time to time impose.
12. SIGN
Landlord shall provide Tenant, at Landlord's expense, the
following listings and signs: (i) listing on the Building and
appropriate floor directories; and (ii) a sign on the exterior wall,
door or pillar of the Premises inside the Building in conformance
with Landlord's Building standards.
13. IMPROVEMENTS AND ALTERATIONS
(a) During the term of this Lease, Tenant shall not make
any alterations or additions to the Premises which are structural
in nature or which affect the Building systems, without the prior
written consent of Landlord. All such work consented to by Landlord,
to be done or performed in or about the Premises by Tenant, shall be
performed (i) at Tenant's sole cost and expense, (ii) in accordance
with the plans and specifications prepared by and at the expense of
Tenant and approved by Landlord, and (iii) by contractors, subcontractors
and materialman approved by Landlord. Upon completion of any
such work which requires the review of plans and specifications and
continuous observance of construction, Tenant shall pay to Landlord's Building
Manager an amount equal to five (5%) percent of the cost of such work,
to reimburse Landlord's Building Manager for said review and observance
and the coordination and final inspection of the work. during the insurance,
with a limit of at least $2,000,000.00, naming Landlord and Landlord's
Building managing agent as additional insurers and further providing that
such insurance cannot be canceled without at least thirty (30) days' prior
written notice to Landlord and Landlord's agent. Landlord shall require a
guarantee by each of Tenant's prime contractors and materialmen for the
benefit of Landlord and Tenant that all work performed and materials and
equipment furnished by such contractors will conform to the requirements
of the plans and specifications as to the kind, quality, function of the
equipment and characteristics of material and workmanship and will
remain so for a period of at least one year from the date that the work has been
completed, and in the event any defects in materials, equipment or
workmanship shall appear prior to the expiration of such period, upon
receiving written notice thereof from Landlord or Tenant, the contractor will
immediately correct and repair the same at the expense of such contractor.
Said guarantees shall be effective whether or not any part of the aforesaid work
has been subcontracted by the contractor.
(b) Any consent by Landlord permitting Tenant to do any
or cause any work to be done in or about the Premises shall
be and hereby is conditioned upon Tenant's work being performed
by workmen and mechanics working in harmony and not interfering
with labor employed by Landlord, Landlord's mechanics or their contractors
or by any other tenants or their contractors. To that end,
said work shall be done by union labor having the same union affiliations
as other workmen performing work for other tenants or Landlord and
their contractors, if required by Landlord. If at any time any of the
workmen or mechanics performing any of Tenant's work shall not be
of the same union affiliation or shall be unable to work in harmony or shall interfere
with any labor employed by Landlord, other tenants or their respective
mechanics and contractors, then the permission granted by Landlord
to Tenant permitting Tenant to do or cause any work to be done in or about
the Premises, may be withdrawn by Landlord upon forty-eight (48) hours'
written notice to Tenant.
(c) All alterations, interior decorations, improvements or additions
made to the Premises by Tenant, except for movable furniture,
equipment and trade fixtures, shall immediately become Landlord's property.
Tenant shall have the right but not the obligation to remove all movable
furniture, equipment and trade fixtures installed by Tenant in the Premises,
except lighting fixtures and air-conditioning equipment, provided that
Tenant repairs any damage caused to the Premises by said removal.
All of said movable furniture, equipment and trade fixtures remaining on
the Premises after said expiration date, or any sooner termination
date due to any default of Tenant, shall be deemed to be abandoned
property and shall automatically become the property of Landlord.
14. REPAIRS
(a) At its sole cost and expense, Landlord shall make all repairs
necessary to maintain the plumbing, heating, ventilating, air conditioning
and electrical systems (except light fixtures), window, floors (except carpeting) and
all other structural portions of the Premises provided. Upon written
notice from Tenant that a needed repair has been overlooked, if Landlord
does not dispute its necessity, Landlord shall expeditiously make any of
such repairs. Landlord shall be responsible for the maintenance and repair
of all common areas and facilities in the Building provided that Tenant
shall be responsible for the repair of any damage to the common areas
and facilities caused by the negligence of Tenant and its agents,
servants and employees. In no event shall Landlord be obligated under
this paragraph to repair any damage caused by any act, omission, accident or
negligence of Tenant or its employees, agents, invitees, licensees, subtenants,
or contractors.
(b) Except for Landlord's repairs under paragraph (a) above, at
its sole cost and expense, Tenant shall make all other repairs necessary
to maintain and keep the Premises and the fixtures therein in neat and orderly
condition. If tenant refuses or neglects to make such repairs, or fails
to diligently prosecute the same to completion, after notice from Landlord
of the need therefor, Landlord may make such repairs at the expense
of Tenant and such expense, along with a ten (10%) percent service
charge, shall be collectible as additional rent. At Tenant's expense, Landlord
shall make all repairs to the light fixtures in the Premises, including replacement
bulbs and ballasts.
(c) Landlord shall not be liable for any interference with Tenant's
business arising from the making of any repairs in the Premises under paragraph
(a) above. Landlord shall interfere as little as reasonably practicable
with the conduct of Tenant's business. There shall be no abatement of
Base Rent because of such repairs. Except as otherwise provided in Section
24 hereof, in the event Landlord fails to complete the repair or
replacement within a period of ninety (90) days (subject to extension for
Force Majeure circumstances) from the date of notice from Tenant, Tenant may,
at its option, upon at least ten (10) days' notice to Landlord of
tenant's intention to repair, the Landlord's failure to complete the
repair by the end of the 10-day period, Tenant may perform or arrange
to perform Landlord's obligation to repair, in which event Landlord shall
reimburse Tenant for the reasonable cost to perform Landlord's
obligation to repair, within thirty (30) days after Tenant's written request,
therefore, supported by receipted bills, canceled checks and other satisfactory
evidence of Tenant's payment. If Landlord fails to reimburse Tenant within
said 30-day period, Tenant shall be entitled to a credit toward the next Base
Rent accruing under the Lease. Notwithstanding the foregoing, if
the nature of Landlord's obligation to repair is such that more than ninety
(90) days are required for performance, Landlord shall not be in default if Landlord
commences performance within such ninety (90)
day period and thereafter diligently proceeds to completion.
15. RIGHT OF ENTRY BY LANDLORD
Landlord and its agent may enter the Premises during Business
Hours to inspect the same; to make repairs, alterations, improvements or additions
or to perform such maintenance so required by the Lease or advisable
to preserve the integrity, safety and good order of part or all of the
Premises or the Building. Entry by Landlord is conditioned upon Landlord
giving at least twenty-four (24) hours advance notice to a Manager or
Tenant located at the Premises, except in an emergency when no notice
to Tenant shall be required; promptly finishing any work for which it entered;
and causing the least practical interference to Tenant's business. In the event
Landlord enters the Premises in an emergency without advance notice to Tenant,
Landlord shall promptly thereafter notify a Manager of Tenant located at the
Premises of the reason for such entry and the corrective or necessary
action taken with respect to such emergency.
Tenant may designate areas within the Premises from time to
time as "Secure Areas" upon written notice to Landlord. Notwithstanding
anything herein contained to the contrary, Landlord shall have no right of access to
Secure Areas and therefore, non liability or responsibility to Tenant
with respect to the Secure Areas.
16. INDEMNIFICATION
Landlord shall indemnify and save harmless Tenant and
its parent, subsidiaries and affiliates and their respective officers, directors,
employees and agents (herein collectively referred to as the "Indemnities") from
and against any and all suited, liabilities, obligations, damages,
penalties, claims, costs, charges and expenses, including reasonable
attorneys' fees, which may be imposed upon or incurred by or asserted
against Indemnities as a result of or arising out of Landlord's failure to
perform any covenant or agreement required to be performed by Landlord
under this Lease Agreement or caused by the negligence or willful
misconduct of Landlord, its agents, employees or invitees. When the
claim is caused by the joint negligence or willful misconduct or Landlord
and Indemnities or Landlord and a third party unrelated to Landlord, except
Landlord's agents, employees, or invitees, Landlord's duty to indemnify
and save harmless Indemnities shall be in proportion to Landlord's allocated
share of the joint negligence or willful misconduct.
Tenant shall indemnify and save harmless Landlord and
its parent, subsidiaries and affiliates, Landlord's Property Manager
and their respective officers, directors employees and agents from and against any and all
liabilities, obligations, damages, penalties, claims, costs, charges
and expenses, including reasonable attorneys' fees, which may be imposed
upon or incurred by or asserted against Landlord as a result of or
arising out of Tenant's failure to perform any covenant or agreement required
to be perform by Tenant under this Lease by reason of any occurrence,
caused by the negligence or willful misconduct of Tenant or its
agents or its employees, invitees and contractors, which arises
out of Tenant's lease of the Premises and its operations thereon.
When the claim is caused by the joint negligence or willful
misconduct of Tenant and Landlord or Tenant and a third party unrelated to
Tenant, except Tenant's agents, employees or invitees, Tenant's duty to indemnify
and save harmless Landlord shall be in proportion to Tenant's allocable
share of the joint negligence or willful
misconduct.
17. INSURANCE
Landlord during the Initial Term of this Lease and any applicable
Extended Term of this Lease shall insure the Building, including improvements
as described in Landlord's Worksheet, if any, by means of an insurance
policy covering at least the perils of fire, lightning, explosion, windstorm,
hail, smoke, aircraft damage, vehicular damage, riot, civil commotion and vandalism
up to the full replacement value of the Building, as the value may
exist from time to time. Such certificate shall contain a clause
that such policy and the coverage evidenced thereby shall be primary
with respect to any policies carried by Landlord, and that any coverage
carried by Tenant shall be excess insurance.
Tenant during the Initial Term of this Lease and any applicable
Extended Term of this Lease, shall keep its personal property
and trade fixtures in the Premises insured for at least
the perils of fire, lightning, explosion, windstorm, hail, smoke,
aircraft damage, vehicular damage, riot, civil commotion and vandalism.
Upon Landlord's request, Tenant shall furnish a certificate of insurance
evidencing the above coverage. Such certificate shall contain a clause
that such policy and the coverage evidenced thereby shall be
primary with respect to any policies carried by Tenant, and that
any coverage carried by Landlord shall be excess insurance.
Each party shall maintain during the Initial Term of this Lease
and any applicable Extended Term of this Lease commercial general
liability insurance (which includes, but is not limited to, contractual liability
coverage) covering claims for bodily injury and property damage occurring
on, in or about the Premises, with limits of one million dollars per occurrence.
Certificates evidencing such policies shall be delivered by Tenant
to Landlord and by Landlord to Tenant upon the other party's written request
All policies required herein shall be procured from insurance
companies licensed in the state where the Premises are located
and shall be listed in the current "Best's Insurance Guide" as possessing a minimum
policyholder's rating of "A" and a financial category no lower than
"VI" ($25 million to $50 million of adjusted policyholder's surplus).
Notwithstanding the provisions of this Section 17, Landlord
and Tenant may self-insure or retain the risk with respect to
any of the risks set forth in this Section subject to maintaining a credit
rating of BB or better and a networth ratio of twenty times the lease
required insurance limit. Landlord hereby waives Tenant's obligation
to purchase outside insurance policies and all requirements related to
the purchase of such policies as long as Tenant's self-insurance is effective.
In the event the premium for insurance that Landlord is required
to maintain under this Section 17 is to be increased as a result of
Tenants use of the Premises, Landlord shall notify Tenant of such
proposed increase and provide Tenant with a reasonable opportunity
to cure such act or thing causing the premium increase.
18. WAIVER OF SUBROGATION
Landlord and Tenant each hereby waives any and all rights
of recovery against the other, its officers, members, agents
and employees, occurring on or arising out of the use and occupation of the Premises or
the Building to the extent such loss or damage is covered by
proceeds received from insurance required this Lease to be carried
by the other party. This waiver of subrogation provision shall be limited to (i) loss or
damage to the property of Landlord and Tenant, and (ii) the officers
and employees of Landlord and Tenant. Landlord and Tenant shall each
indemnify the other against any loss or expense, including reasonable
attorneys' fees, resulting from the failure to obtain such waiver.
This mutual waiver shall be in addition to, and not in limitation or
derogation of, any other waiver or release contained in this Lease with respect to any loss
of, or damage to, property of the parties hereto. Inasmuch as the
above mutual waivers will preclude the assignment of any
aforesaid claim by way of subrogation to an insurance company,
Landlord and Tenant agree immediately to give to each insurance
company providing a policy described in Section 17 of this Lease, written
notice of the terms of said mutual waivers, and to have said insurance
policies properly endorsed, if necessary, to prevent the invalidation
of said insurance coverages by reason of said waivers.
19. MECHANICS' LIENS
Prior to Tenant performing any construction or other
work in or about the Premises for which a lien could be
filed against the Premises or the Building, Tenant shall have its
contractor execute a Waiver of Mechanics' Lien, satisfactory to Landlord,
and provide Landlord with the original copy thereof. Notwithstanding the
foregoing, if any mechanics' or other lien shall be filed against the
Premises or the Building purporting to be for labor or materials furnished
or to be furnished at the request of Tenant, then at its expense, Tenant shall
cause such lien to be removed of record by payment, bond or
otherwise, within thirty (30) days after Tenant receives notice of the
filing thereof. If Tenant shall fail to cause such lien to be
removed of record within such 30-day period, Landlord may cause
such lien to be removed of record by payment, bond or otherwise,
without investigation as to the validity thereof or as to any offsets
or defenses thereto, in which event Tenant shall
reimburse Landlord in the amount paid by Landlord, including
expenses, within (10) days after Landlord's billing therefor.
Tenant shall indemnify and hold Landlord harmless from and
against any and all claims, costs, damages, liabilities and expenses,
including attorney fees, which may be brought or imposed against or
incurred by Landlord by reason of any such lien or removal of record.
20. HOLDING OVER
Any holding over by Tenant beyond the expiration of the Initial
Term or, if applicable, any Extended Term, shall give rise to a
tenancy from month to month at a monthly rent equal to one
twelfth of the annual Rent during the last year of the Initial Term or
applicable Extended Term, and all other provisions of this Lease
shall continue. Such tenancy from month to month may be
terminated by either Landlord or Tenant upon giving thirty days'
prior written notice to the other. Tenant should pay 200%
of the then monthly base rental and 100% of the current additional
rent for increases in Real Estate Taxes and Operation and Maintenance
Costs under the lease during the holdover period.
21. ASSIGNMENT AND SUBLETTING
(a) Except as expressly permitted pursuant to this Article,
Tenant shall not assign or hypothecate this Lease or any interest
therein or sublet the Premises or any part thereof, without the
prior written consent of Landlord. Any of the foregoing acts without
such consent shall be voidable and shall, at the option of Landlord, be an
event of default under this Lease. Neither this Lease nor any interest
therein shall be assignable as to the interest of Tenant by operation
of law, without the written consent of Landlord. Notwithstanding the foregoing,
a corporate Tenant may, without the consent of Landlord but upon
notice to Landlord, assign this Lease to its parent, affiliate or subsidiary,
provided the assignee assumes, in full, the obligations of Tenant under this
Lease, and provided further that such assignment shall not relieve
Tenant of any of its obligations under this Lease.
(b) If at any time or from time to time during the term of this Lease,
Tenant desires to assign this Lease or sublet all or a portion of the
Premises, Tenant shall notify Landlord of such intent. Landlord shall have the
option, exercisable by notice given to Tenant within twenty (20)
days after receipt of Tenant's notice, of reacquiring the Premises or
portion thereof proposed to be sublet or assigned and terminating the Lease with
respect thereto. If Landlord does not exercise such option,
Tenant may assign this Lease or sublet such space to any third party,
subject to the following terms and conditions:
(1) Tenant shall obtain the consent of Landlord, which consent
shall not be unreasonably withheld; Landlord shall base its decision
upon exclusive uses given to other Building tenants, the financial condition
and character of the proposed assignee or subtenant and the proposed
assignee or subtenant and the proposed use of the Premises;
(2) Tenant may not sublease the Premises or any portion thereof
or assign this Lease to an existing tenant in the Building;
(3) No sublease or assignment shall be valid and no
subtenant or assignee shall take possession of the premises subleased
or assigned until an executed counterpart of such sublease or assignment of this Lease
has been delivered to Landlord;
(4) No subtenant shall have a further right to sublet;
(5) No assignee shall have a further right to assign the Lease,
except in accordance with the provisions of this Section 21; and
(6) In no event shall Tenant be entitled to have more than two
subtenants per floor simultaneously in the Premises.
(c) Tenant shall pay Landlord, as additional rent, one half (1/2)
of any sums or other economic consideration received by Tenant as a
result of any subletting or assignment (except payments received which are
attributable to the amortization of the cost of leasehold improvements
made to the sublet or assigned portion of the Premises by Tenant for
the subtenant or assignee, and other reasonable expenses incident to the
subletting or assignment, including standard leasing commissions), whether
denominated rentals under the sublease or otherwise, which exceed,
in the aggregate, the total sums which Tenant is obligated to pay Landlord
under this Lease (prorated to reflect obligations allocable to that
portion of the Premises subject to such sublease or assignment).
If such subleasing or assignment has been made without the consent of the
Landlord as provided herein, Landlord shall be entitled to all economic
consideration received by Tenant in accordance with the provisions of
this subparagraph 21 (c), but the receipt of such moneys shall not be
deemed to be a waiver of the provisions of this Section 21 with respect
to assignment and subletting, or the acceptance of such assignee
or subtenant as Tenant hereunder.
(d) Regardless of Landlord's consent, no subletting or
assignment shall release Tenant of Tenant's obligations or alter the
primary liability of Tenant to pay the Base Rent and additional rent and to perform all
other obligations to be performed by Tenant under this Lease.
The acceptance of rental by Landlord from any other person shall not be
deemed to be a waiver by Landlord of any provision hereof. Consent to one
assignment or subletting shall not be deemed consent to any subsequent
assignment or subletting. In the event of default by any assignee of
Tenant or any successor or Tenant in the performance of any of the terms
of this Lease, Landlord may proceed directly against Tenant without
the necessity of exhausting remedies against such assignee or successor.
(e) In the event that the Premises or any part thereof have been
sublet by Tenant and Tenant is in default under this Lease pursuant to
the provisions of Section 22 hereof, then Landlord may collect rent from the
subtenant and apply the amount collected to the Base Rent and
additional rent herein reserved but no such collection shall be deemed a waiver
of the provisions of this Section 21 with respect to subletting or the
acceptance of such subtenant as Tenant hereunder or a release of
Tenant under the Lease.
22. DEFAULT AND RE-ENTRY
If during the term of this Lease, Tenant shall:
(a) fail to pay any installment of the Rent or Extended Term Rent
as and when the same becomes due and payable, and such default shall
continue for a period of ten (10) Business Days following Landlord's written
notice of same, or
(b) default in its performance of or compliance with any of
the other agreements, terms or conditions of this Lease, and such default
shall continue for a period of thirty (30) days after notice by Landlord to Tenant;
provided that if the nature of Tenant's obligation is such that more
than thirty (30) days are required for performance, Tenant shall not
be in default if Tenant commences performance within the thirty (30) day
period and thereafter diligently proceeds to completion;
then Landlord may at its option, by written notice to
Tenant, designate a date, not fewer than twenty (20)
Business Days from the giving of such notice, on which
the Initial Term or any applicable Extended Term of
this Lease shall terminate; and thereupon, on such date,
unless such default shall have been cured, all rights
of Tenant under this Lease shall terminate in all respects as
if the date fixed in such notice were the date
originally fixed in this Lease for the termination or expiration
thereof. Upon termination, Tenant shall
reimburse Landlord for any unamortized tenant improvement
cost, rent abatement and other Landlord
allowances and concessions, brokerage fees, late charges,
and pay Landlord a liquidated damage
percentage stated in item 21 of the total remaining base rent for
the balance of the unexpired lease term.
23. CONDEMNATION
The term "Taking" shall mean a taking during the Initial
Term or any applicable Extended Term of this Lease of all or part
of the Premises as the result of condemnation or eminent domain.
The term "Date of Taking" shall mean the date on which the condemning
authority is entitled to possession.
(a) If the whole of the Premises shall be condemned or "taken"
permanently for any public or quasi-public use or purpose, under any
statute or by right of eminent domain, or by private purchase in lieu thereof, then in
that event, at the option of either Landlord or Tenant exercised
by notice to the other within 30 days after the date when possession
is taken, the term of this Lease shall cease and terminate as of the date when
possession is taken pursuant to such proceeding or purchase.
The Base Rent and additional rent shall be adjusted and apportioned
as of the time of such termination and any Base Rent and additional rent paid for a
period thereafter shall be refunded. In the event a material portion
only of the Premises or a material portion of the Building,
shall be so taken (even though the Premises may not have
been affected by the taking of some other portion of the Building),
Landlord may elect to terminate this Lease as of the date when
possession is taken pursuant to such proceeding or purchase or
Landlord may elect to repair and restore the portion not taken at
its own expense, and thereafter the Base Rent and additional rent shall be reduced
proportionately to reflect the portion of the Premises not taken.
(b) In the event of a Taking of either the fee of, or the
temporary use of, or a perpetual easement upon, less than all of the
Premises, this Lease shall continue in full force and effect for the
remainder of the Premises, except that the Rent or any applicable
Extended Term Rent shall be reduced by an amount proportionate to
the total area of the Premises so taken as against the total area
demised hereunder; provided that if Tenant shall reasonably determine
that the remaining portions of the Premises cannot be economically and
effectively used for its intended purposes, and shall forward a notice to
Landlord of such determination within thirty (30) days after the Date of
Taking, this Lease shall expire as of the Date of Taking, or if Tenant shall
remain in possession of the untaken part of the Premises after the
Date of Taking, this Lease shall expire as of the date specified in
such notice by Tenant to Landlord.
(c) In the event of any total or partial taking of the Premises or the
Building, Landlord shall be entitled to receive the entire award in any
such proceeding and Tenant hereby assigns any and all right, title and
interest of Tenant now or hereafter arising in or to any such award or
any part thereof and tenant hereby waives all rights against Landlord
and the condemning authority, except that Tenant shall have the right to
claim and prove in any such proceeding and to receive any award
which may be made to Tenant, if any, specifically for damages for
loss of good will, movable trade fixtures, equipment and
moving expenses. Tenant to submit its own claim for its improvements,
fixtures and personal property and relocation costs, to the extent
permitted under applicable law. Further, Landlord shall refund to
Tenant any unearned rent paid in advance as of the Date of Taking
and all of Tenant's liability hereunder shall cease from and after the
Date of Taking with respect to the portion of the Premises so taken.
24. DESTRUCTION OF PREMISES BY FIRE OR OTHER CASUALTY
(a) If the Premises are partially damaged by fire or other casualty,
the damages shall be repaired by and at the expense of Landlord and
restored to the condition which existed immediately prior to such damage and
the Base Rent and additional rent shall be apportioned from the date of
such fire or other casualty until substantial completion of the repairs,
according to the part of the Premises which is usable by Tenant.
Landlord agrees to repair such damage within a reasonable period of
time after receipt from Tenant of written notice of such damage, subject
to any delays caused by Acts of God, labor strikes or other events beyond
Landlord's control. Landlord shall not be liable for any inconvenience or
annoyance to Tenant or injury to the business of Tenant resulting in any way
from such damage or the repair thereof. Tenant acknowledges
notice that (i) Landlord shall not obtain insurance of any kind of
Tenant's furniture or furnishings, equipment, fixtures, alterations,
improvements and additions, (ii) it is Tenant's obligation to obtain such insurance at
Tenant's sole cost and expense, and (iii) Landlord shall not be
obligated to repair any damage thereto or replace the same.
(b) If, in the reasonable opinion of Landlord, the Premises are
(i) rendered substantially untenable by reason of such fire or other casualty,
or (ii) twenty (20%) per cent or more of the Premises is damaged by said fire or
other casualty and less than two (2) years would remain in the
current Lease term upon substantial completion of the repairs
and restoration, Landlord shall have the right, upon written notice to Tenant within
thirty (30) days after said occurrence, to elect not to repair and
restore the Premises, and in such event, this Lease and the tenancy
hereby created shall cease as of the date of said occurrence,
the Base Rent and additional rent to be adjusted and apportioned as of said date.
(c) If, in the reasonable opinion of Landlord, the Building
shall be substantially damaged by fire or other casualty, regardless
of whether or not the Premises were damaged by such occurrence, Landlord shall have
the right, upon written notice to Tenant within thirty (30) days
after said occurrence, to terminate this Lease, and in such event,
this Lease and the tenancy hereby created shall cease and the Base Rent and additional
rent shall be adjusted and apportioned as of the date of
said termination unless terminated as of the date of said occurrence
in accordance with paragraph 20 (b) above.
25. TAXES
During the Term of the Lease and all applicable Extended Terms,
if any, Landlord shall pay and fully discharge all Property Taxes with respect
to the Premises. Tenant shall pay all personal property taxes and
assessments levied, assessed, or imposed upon all personal property,
equipment and improvements erected, installed or placed by Tenant on the Premises.
26. QUIET ENJOYMENT
Landlord warrants and represents that it own and has the
right to lease the Premises for the Initial Term and any Extended
Term if applicable. Landlord further warrants that Tenant, on
paying the Rent or any applicable Extended Term Rent and performing
the covenants by it herein made, shall and may peaceably and quietly
have, hold and enjoy the Premises for the Initial Term and any
Extended Term, if applicable, of the Lease.
27. .SUBORDINATION
Except as set forth in this Paragraph 27, this Lease shall
at all times be and remain prior and superior to the lien of all
mortgages and deeds of trust on all or any portion of the Premises.
If Tenant is not in default hereunder, Landlord shall cause:
(a) Any party holding a mortgage or deed of trust on any
portion of the Premises as of the date hereof to execute and
deliver to Tenant on or before the Term Commencement Date,
a nondisturbance agreement substantially in the form attached
hereto as Exhibit E and made a part hereof by reference pursuant to which
the holder of such mortgage or deed of trust will agree not to
disturb the possession of Tenant under this Lease upon any
foreclosure or exercise of power of sale under mortgage or deed of
trust, if Tenant is not then in default thereunder, and that the mortgagee,
beneficiary or other person claiming under such
mortgage or deed of trust will accept the attornment of Tenant thereafter,
as long as Tenant is not then in default; and
(b) any party acquiring a mortgage or deed of trust
on any portion of the Premises after the date hereof to
execute and deliver to Tenant a commercially reasonable
nondisturbance agreement substantially in the form attached hereto
as Exhibit E and made a part hereof by reference within thirty (30) days
of such party's acquiring such mortgage or deed of trust pursuant to
which the holder of such mortgage or deed of trust will agree not to disturb
the possession of Tenant under this Lease upon any foreclosure or exercise of power of
sale under such mortgage or deed of trust, if Tenant is not then in default
thereunder, and that the mortgagee, beneficiary or other person
claiming under such mortgage or deed of trust will accept the
attornment of Tenant thereafter, as long as Tenant is not then in default.
28. ESTOPPEL CERTIFICATE BY TENANT
Upon not less than twenty (20) days' prior written notice by
Landlord, Tenant shall execute, acknowledge and deliver to Landlord an
estoppel certificate in substantially the form attached hereto as Exhibit F and made a
part hereof by reference.
29. CONSENT BY LANDLORD AND TENANT
Landlord and Tenant covenant one to another that any consent or
approval required herein shall not be withheld or delayed unreasonably.
30. HAZARDOUS SUBSTANCES
Landlord will disclose or provide copies of existing or future
Landlord's expert reports relating to the absence or existence of hazardous
materials for Tenant's evaluation and acceptance. If such hazardous or toxic
substances or contaminants are discovered in, on or beneath the land
or in or on any improvements located on the land of which the Premises
is a part, Landlord shall expeditiously perform remedial action as required
by state and federal agencies upon the identification of the contamination.
31. MICROWAVE DISH
Tenant shall have the right to install a microwave dish on the roof
of the Building at Tenant's sole cost and expense. The installation,
size and location of such dish shall meet the specifications of the Landlord and
comply with all governmental requirements (local, state and federal),
but prior to any such installation, such installation, such specifications and
location shall be reviewed and approved by Landlord. Tenant shall
execute and deliver to Landlord a standard form License Agreement whose
term coincides with the term of the Lease.
32. BROKERS
Landlord and Tenant hereto represent and warrant to
each other that it has dealt with no broker or agent in
connection with the negotiations or the consummation of this Lease
or any arrangements with respect thereto except the individual, partnership
or corporation designated in Item 22 of the Term Sheet. Landlord and
Tenant agree to indemnify and save harmless the other from and
against all liabilities and expenses (including, without limitation, counsel
fees and disbursements in defending against such liabilities), which may
accrue by reason of, on account of, or growing out of or resulting
from breach by such party of such warranty and representation. Landlord
shall pay any brokerage commissions due the individual, partnership or
corporation designated in Item 22 of the Term Sheet.
33. NOTICES
All notices provided for or desired to be sent by the parties
shall be in writing, and shall be delivered by the United States certified
or registered, postage prepaid, or by prepaid overnight mail delivery service providing
written evidence of delivery, and addressed as follows: to Tenant
at the address specified in Item 23 of the Term Sheet, or to such other
place as Tenant may from time to time designate in a notice to Landlord; to
Landlord at the address specified in Item 23 of the Term Sheet, or to such
other place as Landlord may from time to time designate in a notice to Tenant.
All notices personally delivered shall be deemed received
on the date of delivery. The date of notice by certified mail shall be
deemed to be the date of certification thereof. The date of notice by
overnight mail service shall be the date the airbill is signed by the recipient.
34. RELATIONSHIP
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 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.
35. COMPLETE AGREEMENT
It is hereby mutually agreed and understood that this
Lease contains all agreements, promises and understandings
between Landlord and Tenant and that no prior or contemporaneous
verbal or oral agreements, promises or understandings shall or
will be binding upon either the Landlord or Tenant in any dispute,
controversy or proceeding at law, and any addition, variation or
modification to this Lease shall be void and ineffective unless in
writing signed by the parties hereto.
36. AUTHORITY FOR EXECUTION
If Landlord and/or Tenant signs as a corporation, the person
or persons executing this Lease on behalf of Landlord and/or
Tenant do hereby covenant and warrant that Each is a valid and
existing corporation, that each has and is qualified to do business
in the state where the Premises are located, that the corporation has
full right and authority to enter into this Lease, and that the person
or persons signing on behalf of the corporation were authorized to do so.
If Landlord and/or Tenant signs as a partnership, the person or persons executing
the Lease on behalf of each do hereby covenant and warrant that Landlord and/or
Tenant is a valid and existing partnership and that the person or persons
so executing and initialing as required in this Section 36 have authority to
do so on behalf of Each in accordance with the Partnership Agreement, and that
this Lease is binding upon Each in accordance with its terms and
enforceable against the assets of the partnership and the general
partners, individually.
This Lease shall not be binding upon the Landlord and/or
Tenant unless the Term Sheet is executed and the first page of Landlord's
Worksheet and the first page of this Lease Agreement is initialed by the President, a
Vice President, Secretary or an Assistant Secretary of the Each
Organization, or by any other person to whom authority to execute or
initial any such instrument shall be delegated in writing by any of such officers.
37. BINDING EFFECT
The covenants and agreements contained in this Lease
are binding upon and shall insure to the benefit of the parties hereto
and their respective heirs, executors, administrators, successors,
legal representatives and assigns.
38. EXECUTION
Landlord and Tenant have executed this Lease by
signing and dating the Term Sheet, and by initialing the first
page of Landlord's Worksheet and the first page of this Lease Agreement.
EXHIBIT C
COMMENCEMENT DATE AGREEMENT
An Agreement made this____ day of _______________, 199___, by and between
_______________________________ (hereinafter called "Landlord")
and ___________________________(hereinafter called "Tenant").
Witnesseth:
WHEREAS on ________________, 199__, Landlord and Tenant
entered into a lease (the "Lease") relating to certain office premises
located at ______________________; and
WHEREAS the term of the Lease has commenced, pursuant to
Section 3 of the Lease; and
WHEREAS the parties desire to confirm the Term Commencement
Date and Term Expiration Date:
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, Landlord and Tenant agree as follows:
1. The Term Commencement Date of the Lease is
____________.
2. Tenant's obligation to pay Rent under the Lease
commenced on ______________.
3. The Term Expiration Date of the Lease is
____________.
4. The Lease is in full force and effect and is hereby ratified and confirmed.
5. The tenant accepts the premises and acknowledges that
Landlord has completed all required tenant finish as provided in
the Lease except _______________________________
______________________________________________
______________________________________________
______________________________________________.
IN WITNESS WHEREOF, Landlord and Tenant have caused this
Agreement to be duly executed on the date first written above.
Landlord:___________________ Tenant:___________________
EXHIBIT D
JANITORIAL SERVICES
1. Cleaning Services Performed Daily on Business Days:
A. Dust tile floor areas.
B. Empty and clean wastepaper baskets and ashtrays.
C. Clean and disinfect drinking fountains.
D. Light dusting of furniture.
E. The following cleaning services in the lavatories in the
Premises and in Common areas:
i. Empty wastepaper receptacles.
ii. Sweep and wet mop flooring.
iii. Clean and disinfect all fixtures and wash and
polish mirrors and shelves.
iv. Fill toilet tissue, soap and towel dispensers.
F. Spot clean entrance doors.
2. Cleaning Services Performed Weekly on Business Days:
A. Dust baseboards, chair rails, file cabinets and desk equipment.
B. Machine buff resilient flooring and vacuum carpeted floor areas.
C. Remove smudges and scuff marks from all painted
surfaces and glass partitions wherever possible.
3. Cleaning Services Performed Quarterly on Business Days:
A. Wash interior of all outside windows.
(Exterior windows will be washed every year.)
B. Strip, as required, and wax all resilient flooring.
C. Wash both sides of glass in office partitions.
4. Tenant understands that Landlord may substitute for any of
the methods or devices set fort in this Exhibit C, other methods
or devices which achieve comparable results.
5. Additionally, the following services shall (not)be performed:
________________________________________
________________________________________
________________________________________
________________________________________
________________________________________
________________________________________
________________________________________
________________________________________
EXHIBIT E
NON-DISTURBANCE AGREEMENT
THIS AGREEMENT is made this_____day of ____________________
among having a notice address at ___________________________
(the "Tenant"), and _____________________________ (the "Owner")
and ________________________________ having a notice
address at (the "Mortgages").
WITNESSETH:
WHEREAS, the Owner and the Tenant have entered
into a Lease Agreement dated ___________, whereby the Tenant
leases from the Owner, a certain portion of the building and
premises located on the real property described in Schedule
A attached hereto and made a part hereof by reference;
WHEREAS, the Owner has executed, acknowledged and
delivered to Mortgagee a Mortgage on the premises
in the sum of $_______, which Mortgage is to be recorded in
the Office of the ______________ of ______________County;
WHEREAS, the Lease requires that the Owner deliver to Tenant,
a non-disturbance agreement from the current Mortgagee(s.) Owner will
agree to "use its best efforts to" deliver a non-disturbance agreement to
Tenant from any present or future mortgagee.
NOW, THEREFORE, in consideration of the covenants and a
greements hereinafter contained, the parties do covenant and
agree as follows:
1. The Mortgagee covenants and agrees that, so long as
the Lease is in full force and effect and Tenant is not in default thereunder
beyond any applicable cure, the Tenant shall not be joined as a party defendant in
any foreclosure action or proceeding which may be instituted or
taken by the Mortgagee, nor shall the Tenant be evicted from the demised
premises, or any of the Tenant's rights under the Lease be affected in any way,
by reason of any default under the Mortgage except as hereinafter provided.
2. In the event any action is instituted by the Mortgagee to
foreclose the Mortgage or otherwise enforce it, the Tenant shall
promptly upon notice by the Mortgagee pay to the Mortgagee all rent
due and to become due under the Lease.
3. It is a condition of this Agreement that the Tenant shall
not at any time make any payment of advance rent or prepay rent to the
Owner prior to the time when rent payments are due under the Lease. It being
understood that the rent is payable on the first day of each and
every month in advance.
4. Mortgagee may at its sole option, cure any uncured default
of Landlord under the Lease which would trigger an option of Tenant
to terminate the Lease. If the Mortgagee shall succeed to the
position of the Owner, the Tenant shall attorn to the Mortgagee
and recognize it as the Landlord under the Lease.
5. The covenants and agreements herein contained shall
be deemed to be covenants running with the land and shall inure to the
benefit of and be binding upon the successors in interest of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
______________________________________
Tenant
______________________________________
Mortgagee
EXHIBIT F
ESTOPPEL CERTIFICATE
____________________________, of ______________ , the Tenant,
gives this estoppel certificate to ____________________________, of
_______________, the Purchaser. The Tenant has entered into a
Lease dated ______________, with______________, as Landlord for the following space:
_________________________________________________
The Purchaser has requested the information and representations
in this certificate with regard to the Lease because it wishes to acquire
an interest in the property known as ___________________________,
which includes the property that is the subject of the Lease. The tenant
acknowledges that the Purchaser intends to rely on the
information and representations the Tenant makes in this
certificate in Purchaser's acquisition of the property.
The Tenant states as follows:
1. A copy of all documents that constitute its Lease are
attached to this certificate, and there are no other written or oral understandings or
agreements that affect or amend the terms of the Lease.
2. The monthly Base Rent payments under the Lease are $ _______,
with additional rent due under the Lease as follows:
____________________________________________________.
Further, the Tenant has not prepaid Base Rent and additional rent
beyond the current month.
3. The Lease term ends on ______________, with the following renewal options:
______________________________________________
______________________________________________
4. To the best knowledge of Tenant, no notice has been received by
Tenant of any default which has not been cured.
5. The Lease is in full force and effect.
Dated:
_______________________________
_______________________________
Tenant
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