I. Basic Lease Information.
III. Adjustment of Commencement Date; Possession.
IV. Rent.
VI. Security Deposit.
VII. Services to be Furnished by Landlord.
IX. Repairs and Alterations.
X. Use of Electrical Services by Tenant.
XI. Entry by Landlord.
XII. Assignment and Subletting.
XIII. Liens.
XIV. Indemnity and Waiver of Claims.
XV. Insurance.
XVI. Subrogation.
XVII. Casualty Damage.
XVIII. Condemnation.
XIX. Events of Default.
XX. Remedies.
XXI. Limitation of Liability.
XXII. No Waiver.
XXIII. Quiet Enjoyment.
XXIV. Relocation.
XXV. Holding Over.
XXVI. Subordination to Mortgages; Estoppel Certificate.
XXVII. Attorneys' Fees.
XXIX. Excepted Rights.
XXX. Surrender of Premises.
XXXI. Miscellaneous.
XXXII. Entire Agreement.
.
If the Building is not at least 95% occupied during any
calendar year or if Landlord is not supplying services to at least 95% of the
total Rentable Square Footage of the Building at any time during a calendar
year, Expenses shall, at Landlord's option, be determined as if the Building had
been 95% occupied and Landlord had been supplying services to 95% of the
Rentable Square Footage of the Building during that calendar year. If Tenant
pays for its Pro Rata Share of Expenses based on increases over a "Base
Year" and Expenses for a calendar year are determined as provided in the
prior sentence, Expenses for the Base Year shall also be determined as if the
Building had been 95% occupied and Landlord had been supplying services to 95%
of the Rentable Square Footage of the Building. The extrapolation of Expenses
under this Section shall be performed by appropriately adjusting the cost of
those components of Expenses that are impacted by changes in the occupancy of
the Building.
D. Taxes Defined. "Taxes" shall mean:
(1) all real estate taxes and other assessments on the Building and/or
Property, including, but not limited to, assessments for special improvement
districts and building improvement districts, taxes and assessments levied in
substitution or supplementation in whole or in part of any such taxes and
assessments and the Property's share of any real estate taxes and assessments
under any reciprocal easement agreement, common area agreement or similar
agreement as to the Property; (2) all personal property taxes for property
that is owned by Landlord and used in connection with the operation, maintenance
and repair of the Property; and (3) all costs and fees incurred in
connection with seeking reductions in any tax liabilities described in (1) and
(2), including, without limitation, any reasonable costs incurred by Landlord
for compliance, review and appeal of tax liabilities. Without limitation, Taxes
shall not include any income, capital levy, franchise, capital stock, gift,
estate or inheritance tax. If an assessment is legally permitted to be paid in
installments, Taxes for the year shall include only the amount of the
installment and any interest that is or would be due and payable during that
year if Taxes were paid in installments. For all other real estate taxes, Taxes
for that year shall, at Landlord's election, include either the amount accrued,
assessed or otherwise imposed for the year or the amount due and payable for
that year, provided that Landlord's election shall be applied consistently
throughout the Term. If a change in Taxes is obtained for any year of the Term
during which Tenant paid Tenant's Pro Rata Share of any Tax Excess, then Taxes
for that year will be retroactively adjusted and Landlord shall provide Tenant
with a credit, if any, based on the adjustment. Likewise, if a change is
obtained for Taxes for the Base Year, Taxes for the Base Year shall be restated
and the Tax Excess for all subsequent years shall be recomputed. Tenant shall
pay Landlord the amount of Tenant's Pro Rata Share of any such increase in the
Tax Excess within 30 days after Tenant's receipt of a statement from Landlord.
E. Audit Rights. Tenant may, within 90 days after
receiving Landlord's statement of Expenses, give Landlord written notice
("Review Notice") that Tenant intends to review Landlord's records of
the Expenses for that calendar year. Within a reasonable time after receipt of
the Review Notice, Landlord shall make all pertinent records available for
inspection that are reasonably necessary for Tenant to conduct its review. If
any records are maintained at a location other than the office of the Building,
Tenant may either inspect the records at such other location or pay for the
reasonable cost of copying and shipping the records. If Tenant retains an agent
to review Landlord's records, the agent must be with a licensed CPA firm.
Tenant shall be solely responsible for all costs, expenses and fees incurred for
the audit. Within 60 days after the records are made available to Tenant,
Tenant shall have the right to give Landlord written notice (an "Objection
Notice") stating in reasonable detail any objection to Landlord's statement
of Expenses for that year. If Tenant fails to give Landlord an Objection Notice
within the 60 day period or fails to provide Landlord with a Review Notice
within the 90 day period described above, Tenant shall be deemed to have
approved Landlord's statement of Expenses and shall be barred from raising any
claims regarding the Expenses for that year. If Tenant provides Landlord with a
timely Objection Notice, Landlord and Tenant shall work together in good faith
to resolve any issues raised in Tenant's Objection Notice. If Landlord and
Tenant determine that Expenses for the calendar year are less than reported,
Landlord shall provide Tenant with a credit against the next installment of Rent
in the amount of the overpayment by Tenant. Likewise, if Landlord and Tenant
determine that Expenses for the calendar year are greater than reported, Tenant
shall pay Landlord the amount of any underpayment within 30 days. The records
obtained by Tenant shall be treated as confidential. In no event shall Tenant
be permitted to examine Landlord's records or to dispute any statement of
Expenses unless Tenant has paid and continues to pay all Rent when due.
V. Compliance with Laws; Use.
The Premises shall be used only for the Permitted Use and for
no other use whatsoever. Tenant shall not use or permit the use of the Premises
for any purpose which is illegal, dangerous to persons or property or which, in
Landlord's reasonable opinion, unreasonably disturbs any other tenants of the
Building or interferes with the operation of the Building. Tenant shall comply
with all Laws, including the Americans with Disabilities Act, regarding the
operation of Tenant's business and the use, condition, configuration and
occupancy of the Premises; provided, that Tenant shall not be obligated to
construct or pay for the cost of any capital improvements which may be required
to comply with Laws unless such compliance is triggered by Tenant's particular
use of the Premises or by Alterations may by or for Tenant or Tenant is
otherwise obliged to pay for such capital improvements under Section IV.C above.
Tenant, within 10 days after receipt, shall provide Landlord with copies of any
notices it receives regarding a violation or alleged violation of any Laws.
Tenant shall comply with the rules and regulations of the Building attached as
Exhibit B and such other reasonable rules and regulations adopted by
Landlord from time to time after reasonable written notice. Tenant shall also
cause its agents, contractors, subcontractors, employees, customers, and
subtenants to comply with all rules and regulations. Landlord shall not
knowingly discriminate against Tenant in Landlord's enforcement of the rules and
regulations.
VI. Security Deposit.
The Security Deposit shall be delivered to Landlord upon the
execution of this Lease by Tenant and shall be held by Landlord without
liability for interest (unless required by Law) as security for the performance
of Tenant's obligations. The Security Deposit is not an advance payment of Rent
or a measure of Tenant's liability for damages. Landlord may, from time to
time, without prejudice to any other remedy, use all or a portion of the
Security Deposit to satisfy past due Rent or to cure any uncured default by
Tenant. If Landlord uses the Security Deposit, Tenant shall within five (5)
days after written demand restore the Security Deposit to its original amount.
Landlord shall return any unapplied portion of the Security Deposit to Tenant
within 45 days after the later to occur of: (1) the determination of
Tenant's Pro Rata Share of any Tax Excess and Expense Excess for the final year
of the Term; (2) the date Tenant surrenders possession of the Premises to
Landlord in accordance with this Lease; or (3) the Termination Date. If
Landlord transfers its interest in the Premises, Landlord shall assign the
Security Deposit to the transferee and, following the assignment, Landlord shall
have no further liability for the return of the Security Deposit. Landlord shall
not be required to keep the Security Deposit separate from its other
accounts.
VII. Services to be Furnished by
Landlord.
A. Landlord agrees to furnish Tenant with the following
services: (1) Water service for use in the lavatories on each floor on
which the Premises are located; (2) Heat and air conditioning in season
during Normal Business Hours, at such temperatures and in such amounts as are
standard for comparable buildings or as required by governmental authority.
Tenant, upon such advance notice as is reasonably required by Landlord, shall
have the right to receive HVAC service during hours other than Normal Business
Hours. Tenant shall pay Landlord the standard charge for the additional service
as reasonably determined by Landlord from time to time; (3) Maintenance and
repair of the Property as described in Section IX.B.; (4) Janitor
service on Business Days. If Tenant's use, floor covering or other improvements
require special services in excess of the standard services for the Building,
Tenant shall pay the additional cost attributable to the special services;
(5) Elevator service; (6) Electricity to the Premises for general
office use, in accordance with and subject to the terms and conditions in
Article X; and (7) such other services as Landlord reasonably
determines are necessary or appropriate for the Property.
B. Landlord's failure to furnish, or any interruption or
termination of, services due to the application of Laws, the failure of any
equipment, the performance of repairs, improvements or alterations, or the
occurrence of any event or cause beyond the reasonable control of Landlord (a
"Service Failure") shall not render Landlord liable to Tenant,
constitute a constructive eviction of Tenant, give rise to an abatement of Rent,
nor relieve Tenant from the obligation to fulfill any covenant or agreement.
However, if the Premises, or a material portion of the Premises, is made
untenantable for a period in excess of 3 consecutive Business Days as a result
of the Service Failure, then Tenant, as its sole remedy, shall be entitled to
receive an abatement of Rent payable hereunder during the period beginning on
the 4th consecutive Business Day of the Service Failure and ending on the day
the service has been restored. If the entire Premises has not been rendered
untenantable by the Service Failure, the amount of abatement that Tenant is
entitled to receive shall be prorated based upon the percentage of the Premises
rendered untenantable and not used by Tenant. In no event, however, shall
Landlord be liable to Tenant for any loss or damage, including the theft of
Tenant's Property (defined in Article XV), arising out of or in connection
with the failure of any security services, personnel or equipment.
VIII. Leasehold Improvements.
All improvements to the Premises (collectively,
"Leasehold Improvements") shall be owned by Landlord and shall remain
upon the Premises without compensation to Tenant. However, Landlord, by written
notice to Tenant within 30 days prior to the Termination Date, may require
Tenant to remove, at Tenant's expense: (1) Cable (defined in
Section IX.A) installed by or for the exclusive benefit of Tenant and
located in the Premises or other portions of the Building; and (2) any
Leasehold Improvements that are performed by or for the benefit of Tenant and,
in Landlord's reasonable judgment, are of a nature that would require removal
and repair costs that are materially in excess of the removal and repair costs
associated with standard office improvements (collectively referred to as
"Required Removables"). Without limitation, it is agreed that
Required Removables include internal stairways, raised floors, personal baths
and showers, vaults, rolling file systems and structural alterations and
structural modifications of any type. The Required Removables designated by
Landlord shall be removed by Tenant before the Termination Date, provided that
upon prior written notice to Landlord, Tenant may remain in the Premises for up
to 5 days after the Termination Date for the sole purpose of removing the
Required Removables. Tenant's possession of the Premises shall be subject to
all of the terms and conditions of this Lease, including the obligation to pay
Rent on a per diem basis at the rate in effect for the last month of the Term.
Tenant shall repair damage caused by the installation or removal of Required
Removables. If Tenant fails to remove any Required Removables or perform
related repairs in a timely manner, Landlord, at Tenant's expense, may remove
and dispose of the Required Removables and perform the required repairs.
Tenant, within 30 days after receipt of an invoice, shall reimburse Landlord for
the reasonable costs incurred by Landlord. Notwithstanding the foregoing,
Tenant, at the time it requests approval for a proposed Alteration (defined in
Section IX.C), may request in writing that Landlord advise Tenant whether
the Alteration or any portion of the Alteration will be designated as a Required
Removable. Within 10 days after receipt of Tenant's request, Landlord shall
advise Tenant in writing as to which portions of the Alteration, if any, will be
considered to be Required Removables.
IX. Repairs and Alterations.
A. Tenant's Repair Obligations. Tenant shall, at
its sole cost and expense, promptly perform all maintenance and repairs to the
Premises that are not Landlord's express responsibility under this Lease, and
shall keep the Premises in good condition and repair, reasonable wear and tear
excepted. Tenant's repair obligations include, without limitation, repairs to:
(1) floor covering; (2) interior partitions; (3) doors;
(4) the interior side of demising walls; (5) electronic, phone and
data cabling and related equipment (collectively, "Cable") that is
installed by or for the exclusive benefit of Tenant and located in the Premises
or other portions of the Building; (6) supplemental air conditioning units,
private showers and kitchens, including hot water heaters, plumbing, and similar
facilities serving Tenant exclusively; and (7) Alterations performed by
contractors retained by Tenant, including related HVAC balancing. All work
shall be performed in accordance with the rules and procedures described in
Section IX.C. below. If Tenant fails to make any repairs to the Premises
for more than 15 days after notice from Landlord (although notice shall not be
required if there is an emergency), Landlord may make the repairs, and Tenant
shall pay the reasonable cost of the repairs to Landlord within 30 days after
receipt of an invoice, together with an administrative charge in an amount equal
to 10% of the cost of the repairs.
B. Landlord's Repair Obligations. Landlord shall
keep and maintain in good repair and working order and make repairs to and
perform maintenance upon: (1) structural elements of the Building,
including foundations, columns, beams, exterior and load-bearing walls;
(2) mechanical (including HVAC), electrical, plumbing and fire/life safety
systems serving the Building in general; (3) Common Areas; (4) the
roof of the Building; (5) exterior windows of the Building; and
(6) elevators serving the Building. Landlord shall promptly make repairs
(considering the nature and urgency of the repair) for which Landlord is
responsible.
C. Alterations. Tenant shall not make alterations,
additions or improvements to the Premises or install any Cable in the Premises
or other portions of the Building (collectively referred to as
"Alterations") without first obtaining the written consent of Landlord
in each instance, which consent shall not be unreasonably withheld or delayed.
However, Landlord's consent shall not be required for any Alteration that
satisfies all of the following criteria (a "Cosmetic Alteration"):
(1) is of a cosmetic nature such as painting, wallpapering, hanging
pictures and installing carpeting; (2) is not visible from the exterior of
the Premises or Building; (3) will not affect the systems or structure of
the Building; and (4) does not require work to be performed inside the
walls or above the ceiling of the Premises. However, even though consent is not
required, the performance of Cosmetic Alterations shall be subject to all the
other provisions of this Section IX.C. Prior to starting work,
Tenant shall furnish Landlord with plans and specifications reasonably
acceptable to Landlord; names of contractors reasonably acceptable to Landlord
(provided that Landlord may designate specific contractors with respect to
Building systems); copies of contracts; necessary permits and approvals;
evidence of contractor's and subcontractor's insurance in amounts reasonably
required by Landlord; and any security for performance that is reasonably
required by Landlord, provided that Landlord shall not require any payment or
performance bonds or similar security unless the cost of Tenant's proposed
alteration shall exceed $50,000.00. Changes to the plans and specifications
must also be submitted to Landlord for its approval. Alterations shall be
constructed in a good and workmanlike manner using materials of a quality that
is at least equal to the quality designated by Landlord as the minimum standard
for the Building. Landlord may designate reasonable rules, regulations and
procedures for the performance of work in the Building and, to the extent
reasonably necessary to avoid disruption to the occupants of the Building, shall
have the right to designate the time when Alterations may be performed. Tenant
shall reimburse Landlord within 30 days after receipt of an invoice for sums
paid by Landlord for third party examination of Tenant's plans for non-Cosmetic
Alterations. In addition, within 30 days after receipt of an invoice from
Landlord, Tenant shall pay Landlord a fee for Landlord's oversight and
coordination of any non-Cosmetic Alterations equal to up to 10% of the cost of
the non-Cosmetic Alterations. Upon completion, Tenant shall furnish "as-
built" plans (except for Cosmetic Alterations), completion affidavits, full
and final waivers of lien and receipted bills covering all labor and materials.
Tenant shall assure that the Alterations comply with all insurance requirements
and Laws. Landlord's approval of an Alteration shall not be a representation by
Landlord that the Alteration complies with applicable Laws or will be adequate
for Tenant's use.
X. Use of Electrical Services by Tenant.
A. Electricity used by Tenant in the Premises shall, at
Landlord's option, be paid for by Tenant either: (1) through inclusion in
Expenses (except as provided in Section X.B. for excess usage); (2) by
a separate charge payable by Tenant to Landlord within 30 days after billing by
Landlord; or (3) by separate charge billed by the applicable utility
company and payable directly by Tenant. Electrical service to the Premises may
be furnished by one or more companies providing electrical generation,
transmission and distribution services, and the cost of electricity may consist
of several different components or separate charges for such services, such as
generation, distribution and stranded cost charges. Landlord shall have the
exclusive right to select any company providing electrical service to the
Premises, to aggregate the electrical service for the Property and Premises with
other buildings, to purchase electricity through a broker and/or buyers group
and to change the providers and manner of purchasing electricity. Landlord
shall be entitled to receive a fee (if permitted by Law) for the selection of
utility companies and the negotiation and administration of contracts for
electricity, provided that the amount of such fee shall not exceed 50% of any
savings obtained by Landlord.
B. Tenant's use of electrical service shall not exceed,
either in voltage, rated capacity, use beyond Normal Business Hours or overall
load, that which Landlord deems to be standard for the Building. If Tenant
requests permission to consume excess electrical service, Landlord may refuse to
consent or may condition consent upon conditions that Landlord reasonably elects
(including, without limitation, the installation of utility service upgrades,
meters, submeters, air handlers or cooling units), and the additional usage (to
the extent permitted by Law), installation and maintenance costs shall be paid
by Tenant. Landlord shall have the right to separately meter electrical usage
for the Premises and to measure electrical usage by survey or other commonly
accepted methods.
XI. Entry by Landlord.
Landlord, its agents, contractors and representatives may
enter the Premises to inspect or show the Premises, to clean and make repairs,
alterations or additions to the Premises, and to conduct or facilitate repairs,
alterations or additions to any portion of the Building, including other
tenants' premises. Except in emergencies or to provide janitorial and other
Building services after Normal Business Hours, Landlord shall provide Tenant
with reasonable prior notice of entry into the Premises, which may be given
orally. If reasonably necessary for the protection and safety of Tenant and its
employees, Landlord shall have the right to temporarily close all or a portion
of the Premises to perform repairs, alterations and additions. However, except
in emergencies, Landlord will not close the Premises if the work can reasonably
be completed on weekends and after Normal Business Hours. Entry by Landlord
shall not constitute constructive eviction or entitle Tenant to an abatement or
reduction of Rent.
XII. Assignment and Subletting.
A. Except in connection with a Permitted Transfer (defined
in Section XII.E. below), Tenant shall not assign, sublease, transfer or
encumber any interest in this Lease or allow any third party to use any portion
of the Premises (collectively or individually, a "Transfer") without
the prior written consent of Landlord, which consent shall not be unreasonably
withheld if Landlord does not elect to exercise its termination rights under
Section XII.B below. Without limitation, it is agreed that Landlord's
consent shall not be considered unreasonably withheld if: (1) the proposed
transferee's financial condition does not meet the criteria Landlord uses to
select Building tenants having similar leasehold obligations; (2) the
proposed transferee's business is not suitable for the Building considering the
business of the other tenants and the Building's prestige, or would result in a
violation of another tenant's rights; (3) the proposed transferee is a
governmental agency or occupant of the Building; (4) Tenant is in default
after the expiration of the notice and cure periods in this Lease; or
(5) any portion of the Building or Premises would likely become subject to
additional or different Laws as a consequence of the proposed Transfer. Tenant
shall not be entitled to receive monetary damages based upon a claim that
Landlord unreasonably withheld its consent to a proposed Transfer and Tenant's
sole remedy shall be an action to enforce any such provision through specific
performance or declaratory judgment. Any attempted Transfer in violation of
this Article shall, at Landlord's option, be void. Consent by Landlord to one
or more Transfer(s) shall not operate as a waiver of Landlord's rights to
approve any subsequent Transfers. In no event shall any Transfer or Permitted
Transfer release or relieve Tenant from any obligation under this Lease.
B. As part of its request for Landlord's consent to a
Transfer, Tenant shall provide Landlord with financial statements for the
proposed transferee, a complete copy of the proposed assignment, sublease and
other contractual documents and such other information as Landlord may
reasonably request. Landlord shall, by written notice to Tenant within 30 days
of its receipt of the required information and documentation, either:
(1) consent to the Transfer by the execution of a consent agreement in a
form reasonably designated by Landlord or reasonably refuse to consent to the
Transfer in writing; or (2) exercise its right to terminate this Lease with
respect to the portion of the Premises that Tenant is proposing to assign or
sublet. Any such termination shall be effective on the proposed effective date
of the Transfer for which Tenant requested consent. Tenant shall pay Landlord a
review fee of $750.00 for Landlord's review of any Permitted Transfer or
requested Transfer, provided if Landlord's actual reasonable costs and expenses
(including reasonable attorney's fees) exceed $750.00, Tenant shall reimburse
Landlord for its actual reasonable costs and expenses in lieu of a fixed review
fee. Notwithstanding anything herein to the contrary, Landlord shall not
exercise its right to terminate this Lease with respect to the portion of the
Premises that Tenant is proposing to assign or sublease unless Tenant proposes
to sublease 50% or more of the Premises for the balance of the Term. In
addition, if Landlord elects to terminate this Lease as aforesaid, Tenant,
within five (5) days after Landlord has notified Tenant of its election, shall
have the right to rescind its request for consent to a Transfer and this Lease
shall continue in full force and effect.
C. Tenant shall pay Landlord 50% of all rent and other
consideration which Tenant receives as a result of a Transfer (other than a
Permitted Transfer) that is in excess of the Rent payable to Landlord for the
portion of the Premises and Term covered by the Transfer. Tenant shall pay
Landlord for Landlord's share of any excess within 30 days after Tenant's
receipt of such excess consideration. Tenant may deduct from the excess all
reasonable and customary expenses directly incurred by Tenant attributable to
the Transfer (other than Landlord's review fee), including brokerage fees, legal
fees and construction costs, as well as the book value of any furniture and
equipment that Tenant is selling or leasing in connection with the Transfer. If
Tenant is in Monetary Default (defined in Section XIX.A. below), Landlord
may require that all sublease payments be made directly to Landlord, in which
case Tenant shall receive a credit against Rent in the amount of any payments
received (less Landlord's share of any excess).
D. Except as provided below with respect to a Permitted
Transfer, if Tenant is a corporation, limited liability company, partnership, or
similar entity, and if the entity which owns or controls a majority of the
voting shares/rights at any time changes for any reason (including but not
limited to a merger, consolidation or reorganization), such change of ownership
or control shall constitute a Transfer. The foregoing shall not apply so long
as Tenant is an entity whose outstanding stock is listed on a recognized
security exchange, or if at least 80% of its voting stock is owned by another
entity, the voting stock of which is so listed.
E. Tenant may assign its entire interest under this Lease
to a successor to Tenant by purchase of stock or assets, merger, consolidation
or reorganization, or transfer to any entity that controls, is controlled by or
under common control with Tenant, without the consent of Landlord, provided that
all of the following conditions are satisfied (a "Permitted Transfer"):
(1) Tenant is not in default under this Lease; (2) Tenant's successor
shall own all or substantially all of the assets or stock of Tenant;
(3) Tenant's successor shall have a net worth which is at least equal to
the greater of Tenant's net worth at the date of this Lease or Tenant's net
worth as of the day prior to such proposed purchase, merger, consolidation or
reorganization after giving effect to the proposed purchase, merger,
consolidation or reorganization; (4) the Permitted Use does not allow the
Premises to be used for retail purposes; and (5) Tenant shall give Landlord
written notice prior to the effective date of the proposed purchase, merger,
consolidation or reorganization. Tenant's notice to Landlord shall include
information and documentation showing that each of the above conditions has been
satisfied. If requested by Landlord, Tenant's successor shall sign a
commercially reasonable form of assumption agreement.
XIII. Liens.
Tenant shall not permit mechanic's or other liens to be
placed upon the Property, Premises or Tenant's leasehold interest in connection
with any work or service done or purportedly done by or for benefit of Tenant.
If a lien is so placed, Tenant shall, within 10 days of notice from Landlord of
the filing of the lien, fully discharge the lien by settling the claim which
resulted in the lien or by bonding or insuring over the lien in the manner
prescribed by the applicable lien Law. If Tenant fails to discharge the lien,
then, in addition to any other right or remedy of Landlord, Landlord may bond or
insure over the lien or otherwise discharge the lien. Tenant shall reimburse
Landlord for any amount paid by Landlord to bond or insure over the lien or
discharge the lien, including, without limitation, reasonable attorneys' fees
(if and to the extent permitted by Law) within 30 days after receipt of an
invoice from Landlord.
XIV. Indemnity and Waiver of Claims.
A. Except to the extent caused by the negligence or
willful misconduct of Landlord or any Landlord Related Parties (defined below),
Tenant shall indemnify, defend and hold Landlord, its trustees, members,
principals, beneficiaries, partners, officers, directors, employees,
Mortgagee(s) (defined in Article XXVI) and agents ("Landlord Related
Parties") harmless against and from all liabilities, obligations, damages,
penalties, claims, actions, costs, charges and expenses, including, without
limitation, reasonable attorneys' fees and other professional fees (if and to
the extent permitted by Law), which may be imposed upon, incurred by or asserted
against Landlord or any of the Landlord Related Parties and arising out of or in
connection with any damage or injury occurring in the Premises or any acts or
omissions (including violations of Law) of Tenant, the Tenant Related Parties
(defined below) or any of Tenant's transferees, contractors or licensees.
B. Except to the extent caused by the negligence or
willful misconduct of Tenant or any Tenant Related Parties (defined below),
Landlord shall indemnify, defend and hold Tenant, its trustees, members,
principals, beneficiaries, partners, officers, directors, employees and agents
("Tenant Related Parties") harmless against and from all liabilities,
obligations, damages, penalties, claims, actions, costs, charges and expenses,
including, without limitation, reasonable attorneys' fees and other professional
fees (if and to the extent permitted by Law), which may be imposed upon,
incurred by or asserted against Tenant or any of the Tenant Related Parties and
arising out of or in connection with the acts or omissions (including violations
of Law) of Landlord, the Landlord Related Parties or any of Landlord's
contractors.
C. Except to the extent caused by the negligence or
willful misconduct of Landlord and the Landlord Related Parties, Landlord and
the Landlord Related Parties shall not be liable for, and Tenant waives, all
claims for loss or damage to Tenant's business or loss, theft or damage to
Tenant's Property or the property of any person claiming by, through or under
Tenant resulting from: (1) wind or weather; (2) the failure of any
sprinkler, heating or air-conditioning equipment, any electric wiring or any
gas, water or steam pipes; (3) the backing up of any sewer pipe or
downspout; (4) the bursting, leaking or running of any tank, water closet,
drain or other pipe; (5) water, snow or ice upon or coming through the
roof, skylight, stairs, doorways, windows, walks or any other place upon or near
the Building; (6) any act or omission of any party other than Landlord or
Landlord Related Parties; and (7) any causes not reasonably within the
control of Landlord. Tenant shall insure itself against such losses under
Article XV below.
XV. Insurance.
Tenant shall carry and maintain the following insurance
("Tenant's Insurance"), at its sole cost and expense:
(1) Commercial General Liability Insurance applicable to the Premises and
its appurtenances providing, on an occurrence basis, a minimum combined single
limit of $2,000,000.00; (2) All Risk Property/Business Interruption
Insurance written at replacement cost value and with a replacement cost
endorsement covering all of Tenant's trade fixtures, equipment, furniture and
other personal property within the Premises ("Tenant's Property");
(3) Workers' Compensation Insurance as required by the state in which the
Premises is located and in amounts as may be required by applicable statute; and
(4) Employers Liability Coverage of at least $1,000,000.00 per occurrence.
Any company writing any of Tenant's Insurance shall have an A.M. Best rating of
not less than A-VIII. All Commercial General Liability Insurance policies shall
name Tenant as a named insured and Landlord (or any successor), Equity Office
Properties Trust, a Maryland real estate investment trust, EOP Operating Limited
Partnership, a Delaware limited partnership, and their respective members,
principals, beneficiaries, partners, officers, directors, employees, and agents,
and other designees of Landlord as the interest of such designees shall appear,
as additional insureds. All policies of Tenant's Insurance shall contain
endorsements that the insurer(s) shall endeavor to give Landlord and its
designees at least 30 days' advance written notice of any change reducing
coverage , cancellation, termination or lapse of insurance. In any event,
Tenant shall provide Landlord with notice of any such changes in coverage within
five (5) days of receiving notice thereof from such insurer(s). Tenant shall
provide Landlord with a certificate of insurance evidencing Tenant's Insurance
prior to the earlier to occur of the Commencement Date or the date Tenant is
provided with possession of the Premises for any reason, and upon renewals at
least 15 days prior to the expiration of the insurance coverage. So long as the
same is available at commercially reasonable rates, Landlord shall maintain so
called All Risk property insurance on the Building at replacement cost value, as
reasonably estimated by Landlord. Except as specifically provided to the
contrary, the limits of either party's' insurance shall not limit such party's
liability under this Lease.
XVI. Subrogation.
Notwithstanding anything in this Lease to the contrary,
Landlord and Tenant shall cause their respective insurance carriers to waive any
and all rights of recovery, claim, action or causes of action against the other
and their respective trustees, principals, beneficiaries, partners, officers,
directors, agents, and employees, for any loss or damage that may occur to
Landlord or Tenant or any party claiming by, through or under Landlord or
Tenant, as the case may be, with respect to Tenant's Property, the Building, the
Premises, any additions or improvements to the Building or Premises, or any
contents thereof, including all rights of recovery, claims, actions or causes of
action arising out of the negligence of Landlord or any Landlord Related Parties
or the negligence of Tenant or any Tenant Related Parties, which loss or damage
is (or would have been, had the insurance required by this Lease been carried)
covered by insurance.
XVII. Casualty Damage.
A. If all or any part of the Premises is damaged by fire
or other casualty, Tenant shall immediately notify Landlord in writing. During
any period of time that all or a material portion of the Premises is rendered
untenantable as a result of a fire or other casualty, the Rent shall abate for
the portion of the Premises that is untenantable and not used by Tenant.
Landlord shall have the right to terminate this Lease if: (1) the Building
shall be damaged so that, in Landlord's reasonable judgment, substantial
alteration or reconstruction of the Building shall be required (whether or not
the Premises has been damaged); (2) Landlord is not permitted by Law to
rebuild the Building in substantially the same form as existed before the fire
or casualty; (3) the Premises have been materially damaged and there is
less than 2 years of the Term remaining on the date of the casualty;
(4) any Mortgagee requires that the insurance proceeds be applied to the
payment of the mortgage debt; or (5) a material uninsured loss to the
Building occurs. Landlord may exercise its right to terminate this Lease by
notifying Tenant in writing within 90 days after the date of the casualty
provided the effective date of such termination gives Tenant at least 30 days to
vacate the Premises.. If Landlord does not terminate this Lease, Landlord shall
commence and proceed with reasonable diligence to repair and restore the
Building and the Leasehold Improvements (excluding any Alterations that were
performed by Tenant in violation of this Lease). However, in no event shall
Landlord be required to spend more than the insurance proceeds received by
Landlord. Landlord shall not be liable for any loss or damage to Tenant's
Property or to the business of Tenant resulting in any way from the fire or
other casualty or from the repair and restoration of the damage. Landlord and
Tenant hereby waive the provisions of any Law relating to the matters addressed
in this Article, and agree that their respective rights for damage to or
destruction of the Premises shall be those specifically provided in this
Lease.
B. If all or any portion of the Premises shall be made
untenantable by fire or other casualty, Landlord shall, with reasonable
promptness, cause an architect or general contractor selected by Landlord to
provide Landlord and Tenant with a written estimate of the amount of time
required to substantially complete the repair and restoration of the Premises
and make the Premises tenantable again, using standard working methods
("Completion Estimate"). If the Completion Estimate indicates that the Premises
cannot be made tenantable within 210 days from the date the repair and
restoration is started, then regardless of anything in Section XVII.A above
to the contrary, either party shall have the right to terminate this Lease by
giving written notice to the other of such election within 10 days after receipt
of the Completion Estimate. Tenant, however, shall not have the right to
terminate this Lease if the fire or casualty was caused by the negligence or
intentional misconduct of Tenant, Tenant Related Parties or any of Tenant's
transferees, contractors or licensees.
XVIII. Condemnation.
Either party may terminate this Lease if the whole or any
material part of the Premises shall be taken or condemned for any public or
quasi-public use under Law, by eminent domain or private purchase in lieu
thereof (a "Taking"). Landlord shall also have the right to terminate
this Lease if there is a Taking of any portion of the Building or Property which
would leave the remainder of the Building unsuitable for use as an office
building in a manner comparable to the Building's use prior to the Taking. In
order to exercise its right to terminate the Lease, Landlord or Tenant, as the
case may be, must provide written notice of termination to the other within 45
days after the terminating party first receives notice of the Taking. Any such
termination shall be effective as of the date the physical taking of the
Premises or the portion of the Building or Property occurs. If this Lease is
not terminated, the Rentable Square Footage of the Building, the Rentable Square
Footage of the Premises and Tenant's Pro Rata Share shall, if applicable, be
appropriately adjusted. In addition, Rent for any portion of the Premises taken
or condemned shall be abated during the unexpired Term of this Lease effective
when the physical taking of the portion of the Premises occurs. All
compensation awarded for a Taking, or sale proceeds, shall be the property of
Landlord, any right to receive compensation or proceeds being expressly waived
by Tenant. However, Tenant may file a separate claim at its sole cost and
expense for Tenant's Property and Tenant's reasonable relocation expenses,
provided the filing of the claim does not diminish the award which would
otherwise be receivable by Landlord.
XIX. Events of Default.
Tenant shall be considered to be in default of this Lease
upon the occurrence of any of the following events of default:
A. Tenant's failure to pay when due all or any portion of
the Rent, if the failure continues for 3 days after written notice to Tenant
("Monetary Default").
B. Tenant's failure (other than a Monetary Default) to
comply with any term, provision or covenant of this Lease, if the failure is not
cured within 10 days after written notice to Tenant. However, if Tenant's
failure to comply cannot reasonably be cured within 10 days, Tenant shall be
allowed additional time (not to exceed 60 days) as is reasonably necessary to
cure the failure so long as: (1) Tenant commences to cure the failure
within 10 days, and (2) Tenant diligently pursues a course of action that
will cure the failure and bring Tenant back into compliance with the Lease.
However, if Tenant's failure to comply creates a hazardous condition, the
failure must be cured immediately upon notice to Tenant. In addition, if
Landlord provides Tenant with notice of Tenant's failure to comply with any
particular term, provision or covenant of the Lease on 3 occasions during any 12
month period, Tenant's subsequent violation of such term, provision or covenant
shall, at Landlord's option, be an incurable event of default by Tenant.
C. Tenant or any Guarantor becomes insolvent, makes a
transfer in fraud of creditors or makes an assignment for the benefit of
creditors, or admits in writing its inability to pay its debts when due.
D. The leasehold estate is taken by process or operation
of Law.
E In the case of any ground floor or retail Tenant, Tenant
does not take possession of, or abandons or vacates all or any portion of the
Premises.
F. Tenant is in default beyond any notice and cure period
under any other lease or agreement with Landlord.
XX. Remedies.
A. Upon any default, Landlord shall have the right without
notice or demand (except as provided in Article XIX) to pursue any of its
rights and remedies at Law or in equity, including any one or more of the
following remedies:
1. Terminate this Lease, in which case Tenant shall
immediately surrender the Premises to Landlord. If Tenant fails to surrender
the Premises, Landlord may, in compliance with applicable Law and without
prejudice to any other right or remedy, enter upon and take possession of the
Premises and expel and remove Tenant, Tenant's Property and any party occupying
all or any part of the Premises. Tenant shall pay Landlord on demand the amount
of all past due Rent and other losses and damages which Landlord may suffer as a
result of Tenant's default, whether by Landlord's inability to relet the
Premises on satisfactory terms or otherwise, including, without limitation, all
Costs of Reletting (defined below) and any deficiency that may arise from
reletting or the failure to relet the Premises. "Costs of Reletting"
shall include all costs and expenses incurred by Landlord in reletting or
attempting to relet the Premises, including, without limitation, reasonable
legal fees, brokerage commissions, the cost of alterations and the value of
other concessions or allowances granted to a new tenant.
2. Terminate Tenant's right to possession of the Premises
and, in compliance with applicable Law, expel and remove Tenant, Tenant's
Property and any parties occupying all or any part of the Premises. Landlord
may (but shall not be obligated to) relet all or any part of the Premises,
without notice to Tenant, for a term that may be greater or less than the
balance of the Term and on such conditions (which may include concessions, free
rent and alterations of the Premises) and for such uses as Landlord in its
absolute discretion shall determine. Landlord may collect and receive all rents
and other income from the reletting. Tenant shall pay Landlord on demand all
past due Rent, all Costs of Reletting and any deficiency arising from the
reletting or failure to relet the Premises. Landlord shall not be responsible
or liable for the failure to relet all or any part of the Premises or for the
failure to collect any Rent. The re-entry or taking of possession of the
Premises shall not be construed as an election by Landlord to terminate this
Lease unless a written notice of termination is given to Tenant.
3. In lieu of calculating damages under Sections XX.A.1 or
XX.A.2 above, Landlord may elect to receive as damages the sum of (a) all
Rent accrued through the date of termination of this Lease or Tenant's right to
possession, and (b) an amount equal to the total Rent that Tenant would
have been required to pay for the remainder of the Term discounted to present
value at the Prime Rate (defined in Section XX.B. below) then in effect,
minus the then present fair rental value of the Premises for the remainder of
the Term, similarly discounted, after deducting all anticipated Costs of
Reletting.
B. Unless expressly provided in this Lease, the
repossession or re-entering of all or any part of the Premises shall not
relieve Tenant of its liabilities and obligations under the Lease. No right or
remedy of Landlord shall be exclusive of any other right or remedy. Each right
and remedy shall be cumulative and in addition to any other right and remedy now
or subsequently available to Landlord at Law or in equity. If Landlord declares
Tenant to be in default, Landlord shall be entitled to receive interest on any
unpaid item of Rent at a rate equal to the Prime Rate plus 4%. For purposes
hereof, the "Prime Rate" shall be the per annum interest rate publicly
announced as its prime or base rate by a federally insured bank selected by
Landlord in the state in which the Building is located. Forbearance by Landlord
to enforce one or more remedies shall not constitute a waiver of any
default.
XXI. Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
LEASE, THE LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD) TO TENANT SHALL
BE LIMITED TO THE INTEREST OF LANDLORD IN THE PROPERTY. TENANT SHALL LOOK
SOLELY TO LANDLORD'S INTEREST IN THE PROPERTY, INCLUDING INSURANCE PROCEEDS,
FOR THE RECOVERY OF ANY JUDGMENT OR AWARD AGAINST LANDLORD. NEITHER LANDLORD NOR
ANY LANDLORD RELATED PARTY SHALL BE PERSONALLY LIABLE FOR ANY JUDGMENT OR
DEFICIENCY. BEFORE FILING SUIT FOR AN ALLEGED DEFAULT BY LANDLORD, TENANT SHALL
GIVE LANDLORD AND THE MORTGAGEE(S) (DEFINED IN ARTICLE XXVI BELOW) WHOM TENANT
HAS BEEN NOTIFIED HOLD MORTGAGES (DEFINED IN ARTICLE XXVI BELOW) ON THE
PROPERTY, BUILDING OR PREMISES, NOTICE AND REASONABLE TIME TO CURE THE ALLEGED
DEFAULT. IN ADDITION, TENANT ACKNOWLEDGES THAT ANY ENTITY MANAGING THE BUILDING
ON BEHALF OF LANDLORD, OR WHICH EXECUTES THIS LEASE AS AGENT FOR LANDLORD, IS
ACTING SOLELY IN ITS CAPACITY AS AGENT FOR LANDLORD AND SHALL NOT BE LIABLE FOR
ANY OBLIGATIONS, LIABILITIES, LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION
WITH THIS LEASE ALL OF WHICH ARE EXPRESSLY WAIVED BY TENANT.
XXII. No Waiver.
Either party's failure to declare a default immediately upon
its occurrence, or delay in taking action for a default shall not constitute a
waiver of the default, nor shall it constitute an estoppel. Either party's
failure to enforce its rights for a default shall not constitute a waiver of its
rights regarding any subsequent default. Receipt by Landlord of Tenant's keys
to the Premises shall not constitute an acceptance or surrender of the
Premises.
XXIII. Quiet Enjoyment.
Tenant shall, and may peacefully have, hold and enjoy the
Premises, subject to the terms of this Lease, provided Tenant pays the Rent and
fully performs all of its covenants and agreements. This covenant and all other
covenants of Landlord shall be binding upon Landlord and its successors only
during its or their respective periods of ownership of the Building, and shall
not be a personal covenant of Landlord or the Landlord Related Parties.
XXIV. Relocation.
INTENTIONALLY OMITTED.
XXV. Holding Over.
Except for any permitted occupancy by Tenant under
Article VIII, if Tenant fails to surrender the Premises at the expiration
or earlier termination of this Lease, occupancy of the Premises after the
termination or expiration shall be that of a tenancy at sufferance. Tenant's
occupancy of the Premises during the holdover shall be subject to all the terms
and provisions of this Lease and Tenant shall pay an amount (on a per month
basis without reduction for partial months during the holdover) equal to 150% of
the greater of: (1) the sum of the Base Rent and Additional Rent due for
the period immediately preceding the holdover; or (2) the fair market gross
rental for the Premises as reasonably determined by Landlord. No holdover by
Tenant or payment by Tenant after the expiration or early termination of this
Lease shall be construed to extend the Term or prevent Landlord from immediate
recovery of possession of the Premises by summary proceedings or otherwise. In
addition to the payment of the amounts provided above, if Landlord is unable to
deliver possession of the Premises to a new tenant, or to perform improvements
for a new tenant, as a result of Tenant's holdover and Tenant fails to vacate
the Premises within 15 days after Landlord notifies Tenant of Landlord's
inability to deliver possession, or perform improvements, Tenant shall be liable
to Landlord for all damages, including, without limitation, consequential
damages, that Landlord suffers from the holdover.
XXVI. Subordination to Mortgages; Estoppel
Certificate.
Tenant accepts this Lease subject and subordinate to any
mortgage(s), deed(s) of trust, ground lease(s) or other lien(s) now or
subsequently arising upon the Premises, the Building or the Property, and to
renewals, modifications, refinancings and extensions thereof (collectively
referred to as a "Mortgage"). The party having the benefit of a
Mortgage shall be referred to as a "Mortgagee". This clause shall be
self-operative, but upon request from a Mortgagee, Tenant shall execute a
commercially reasonable subordination agreement in favor of the Mortgagee. In
lieu of having the Mortgage be superior to this Lease, a Mortgagee shall have
the right at any time to subordinate its Mortgage to this Lease. If requested
by a successor-in-interest to all or a part of Landlord's interest in the Lease,
Tenant shall, without charge, attorn to the successor-in-interest. Landlord and
Tenant shall each, within 10 days after receipt of a written request from the
other, execute and deliver an estoppel certificate to those parties as are
reasonably requested by the other (including a Mortgagee or prospective
purchaser). The estoppel certificate shall include a statement certifying that
this Lease is unmodified (except as identified in the estoppel certificate) and
in full force and effect, describing the dates to which Rent and other charges
have been paid, representing that, to such party's actual knowledge, there is no
default (or stating the nature of the alleged default) and indicating other
matters with respect to the Lease that may reasonably be requested.
Notwithstanding the foregoing, upon written request by Tenant, Landlord will use
reasonable efforts to obtain a non-disturbance, subordination and attornment
agreement from Landlord's then current Mortgagee on such Mortgagee's then
current standard form of agreement. "Reasonable efforts" of Landlord shall not
require Landlord to incur any cost, expense or liability to obtain such
agreement, it being agreed that Tenant shall be responsible for any fee or
review costs charged by the Mortgagee. Upon request of Landlord, Tenant will
execute the Mortgagee's form of non-disturbance, subordination and attornment
agreement and return the same to Landlord for execution by the Landlord, if
required by the Mortgagee, and the Mortgagee. Landlord's failure to obtain a
non-disturbance, subordination and attornment agreement for Tenant shall have no
effect on the rights, obligations and liabilities of Landlord and Tenant or be
considered to be a default by Landlord hereunder.
XXVII. Attorneys' Fees.
If either party institutes a suit against the other for
violation of or to enforce any covenant or condition of this Lease, or if either
party intervenes in any suit in which the other is a party to enforce or protect
its interest or rights, the prevailing party shall be entitled to all of its
costs and expenses, including, without limitation, reasonable attorneys' fees.
XXVIII. Notice.
If a demand, request, approval, consent or notice
(collectively referred to as a "notice") shall or may be given to
either party by the other, the notice shall be in writing and delivered by hand
or sent by registered or certified mail with return receipt requested, or sent
by overnight or same day courier service at the party's respective Notice
Address(es) set forth in Article I, except that if Tenant has vacated the
Premises (or if the Notice Address for Tenant is other than the Premises, and
Tenant has vacated such address) without providing Landlord a new Notice
Address, Landlord may serve notice in any manner described in this Article or in
any other manner permitted by Law. Each notice shall be deemed to have been
received or given on the earlier to occur of actual delivery or the date on
which delivery is refused, or, if Tenant has vacated the Premises or the other
Notice Address of Tenant without providing a new Notice Address, three (3) days
after notice is deposited in the U.S. mail or with a courier service in the
manner described above. Either party may, at any time, change its Notice
Address by giving the other party written notice of the new address in the
manner described in this Article.
XXIX. Excepted Rights.
This Lease does not grant any rights to light or air over or
about the Building. Landlord excepts and reserves exclusively to itself the use
of: (1) roofs, (2) telephone, electrical and janitorial closets,
(3) equipment rooms, Building risers or similar areas that are used by
Landlord for the provision of Building services, (4) rights to the land and
improvements below the floor of the Premises, (5) the improvements and air
rights above the Premises, (6) the improvements and air rights outside the
demising walls of the Premises, and (7) the areas within the Premises used
for the installation of utility lines and other installations serving occupants
of the Building. Landlord has the right to change the Building's name or
address. Landlord also has the right to make such other changes to the Property
and Building as Landlord deems appropriate, provided the changes do not
materially affect Tenant's ability to use the Premises for the Permitted Use.
Landlord shall also have the right (but not the obligation) to temporarily close
the Building if Landlord reasonably determines that there is an imminent danger
of significant damage to the Building or of personal injury to Landlord's
employees or the occupants of the Building. The circumstances under which
Landlord may temporarily close the Building shall include, without limitation,
electrical interruptions, hurricanes and civil disturbances. A closure of the
Building under such circumstances shall not constitute a constructive eviction
nor entitle Tenant to an abatement or reduction of Rent.
XXX. Surrender of Premises.
At the expiration or earlier termination of this Lease or
Tenant's right of possession, Tenant shall remove Tenant's Property (defined in
Article XV) from the Premises, and quit and surrender the Premises to
Landlord, broom clean, and in good order, condition and repair, ordinary wear
and tear, acts of God, casualty and hazardous materials not placed in the
Premises by Tenant excepted. Tenant shall also be required to remove the
Required Removables in accordance with Article VIII. If Tenant fails to
remove any of Tenant's Property within 2 days after the termination of this
Lease or of Tenant's right to possession, Landlord, at Tenant's sole cost and
expense, shall be entitled (but not obligated) to remove and store Tenant's
Property. Landlord shall not be responsible for the value, preservation or
safekeeping of Tenant's Property. Tenant shall pay Landlord, upon demand, the
expenses and storage charges incurred for Tenant's Property. In addition, if
Tenant fails to remove Tenant's Property from the Premises or storage, as the
case may be, within 30 days after written notice, Landlord may deem all or any
part of Tenant's Property to be abandoned, and title to Tenant's Property shall
be deemed to be immediately vested in Landlord.
XXXI. Miscellaneous.
A. This Lease and the rights and obligations of the
parties shall be interpreted, construed and enforced in accordance with the Laws
of the state in which the Building is located and Landlord and Tenant hereby
irrevocably consent to the jurisdiction and proper venue of such state. If any
term or provision of this Lease shall to any extent be invalid or unenforceable,
the remainder of this Lease shall not be affected, and each provision of this
Lease shall be valid and enforced to the fullest extent permitted by Law. The
headings and titles to the Articles and Sections of this Lease are for
convenience only and shall have no effect on the interpretation of any part of
the Lease.
B. Tenant shall not record this Lease or any memorandum
without Landlord's prior written consent.
C. Landlord and Tenant hereby waive any right to trial by
jury in any proceeding based upon a breach of this Lease.
D. Whenever a period of time is prescribed for the taking
of an action by Landlord or Tenant, the period of time for the performance of
such action shall be extended by the number of days that the performance is
actually delayed due to strikes, acts of God, shortages of labor or materials,
war, civil disturbances and other causes beyond the reasonable control of the
performing party ("Force Majeure"). However, events of Force Majeure
shall not extend any period of time for the payment of Rent or other sums
payable by either party or any period of time for the written exercise of an
option or right by either party.
E. Landlord shall have the right to transfer and assign,
in whole or in part, all of its rights and obligations under this Lease and in
the Building and/or Property referred to herein, and upon such transfer and the
written assumption thereof by the transferee, Landlord shall be released from
any further obligations hereunder, and Tenant agrees to look solely to the
successor in interest of Landlord for the performance of such obligations.
F. A. Tenant represents that it has dealt directly with
and only with the Broker as a broker in connection with this Lease. Tenant
shall indemnify and hold Landlord and the Landlord Related Parties harmless from
all claims of any other brokers claiming to have represented Tenant in
connection with this Lease. Landlord agrees to indemnify and hold Tenant and
the Tenant Related Parties harmless from all claims of any brokers claiming to
have represented Landlord in connection with this Lease. Landlord agrees to pay
a brokerage commission to Broker in accordance with the terms of a written
commission agreement between Landlord and Broker.
B. Agency Disclosure. At the signing of this Lease,
Landlord's leasing agent, Susan J. Murphy, of Wright Runstad & Company,
represented (X) Landlord, ( ) Tenant, or ( ) both Landlord
and Tenant. At the signing of this Lease, Tenant's agent, John Black, of
Broderick Group, Inc., represented ( ) Landlord, (X) Tenant, or
( ) both Landlord and Tenant. Each party signing this document
confirms that the prior oral and/or written disclosure of agency was provided to
such party in this transaction, as required by RCW 18.86.030(1)(g).
C. Landlord and Tenant, by their execution of this
Lease, each acknowledge and agree that they have timely received a pamphlet on
the law of real estate agency as required under RCW 18.86.030(1)(f).
G. Tenant covenants, warrants and represents that:
(1) each individual executing, attesting and/or delivering this Lease on
behalf of Tenant is authorized to do so on behalf of Tenant; (2) this Lease
is binding upon Tenant; and (3) Tenant is duly organized and legally
existing in the state of its organization and is qualified to do business in the
state in which the Premises are located. If there is more than one Tenant, or
if Tenant is comprised of more than one party or entity, the obligations imposed
upon Tenant shall be joint and several obligations of all the parties and
entities. Notices, payments and agreements given or made by, with or to any one
person or entity shall be deemed to have been given or made by, with and to all
of them.
H. Time is of the essence with respect to Tenant's
exercise of any expansion, renewal or extension rights granted to Tenant. This
Lease shall create only the relationship of landlord and tenant between the
parties, and not a partnership, joint venture or any other relationship. This
Lease and the covenants and conditions in this Lease shall inure only to the
benefit of and be binding only upon Landlord and Tenant and their permitted
successors and assigns.
I. The expiration of the Term, whether by lapse of time or
otherwise, shall not relieve either party of any obligations which accrued prior
to or which may continue to accrue after the expiration or early termination of
this Lease. Without limiting the scope of the prior sentence, it is agreed
that Tenant's obligations under Sections IV.A, IV.B., VIII, XIV, XX, XXV and XXX
shall survive the expiration or early termination of this Lease.
J. Landlord has delivered a copy of this Lease to Tenant
for Tenant's review only, and the delivery of it does not constitute an offer to
Tenant or an option. This Lease shall not be effective against any party hereto
until an original copy of this Lease has been signed by such party.
K. All understandings and agreements previously made
between the parties are superseded by this Lease, and neither party is relying
upon any warranty, statement or representation not contained in this Lease.
This Lease may be modified only by a written agreement signed by Landlord and
Tenant.
L. Tenant, within 15 days after request, shall provide
Landlord with a current financial statement and such other information as
Landlord may reasonably request in order to create a "business
profile" of Tenant and determine Tenant's ability to fulfill its
obligations under this Lease. Landlord, however, shall not require Tenant to
provide such information unless Landlord is requested to produce the information
in connection with a proposed financing or sale of the Building. Upon written
request by Tenant, Landlord shall enter into a commercially reasonable
confidentiality agreement covering any confidential information that is
disclosed by Tenant.
XXXII. Entire Agreement.
This Lease and the following exhibits and attachments
constitute the entire agreement between the parties and supersede all prior
agreements and understandings related to the Premises, including all lease
proposals, letters of intent and other documents: Exhibit A (Outline
and Location of Premises), Exhibit A-2 (Legal Description of
Property), Exhibit A-3 (Deferred Space), Exhibit B
(Rules and Regulations), Exhibit C (Commencement Letter -
intentionally omitted), Exhibit D (Work Letter Agreement - Deferred
Space), and Exhibit E (Additional Provisions).
Landlord and Tenant have executed this Lease as of the
day and year first above written.
EXHIBIT A
PREMISES
This Exhibit is attached to and made a part of the Lease
dated as of , , by and between EOP-Northwest
Properties, L.L.C., a Delaware limited liability company ("Landlord") and
Centura Software Corporation, a California corporation ("Tenant") for
space in the Building located at 1111 Third Avenue, Seattle, Washington,
98101.
EXHIBIT A-2
LEGAL DESCRIPTION OF PROPERTY
This Exhibit is attached to and made a part of the Lease
dated as of , , by and between EOP-Northwest
Properties, L.L.C., a Delaware limited liability company ("Landlord") and
Centura Software Corporation, a California corporation ("Tenant") for
space in the Building located at 1111 Third Avenue, Seattle, Washington,
98101.
Lots 2, 3, 6 and 7; Block 14, C.D. Boren's Addition, City of
Seattle, King County, State of Washington.
EXHIBIT A-3
DEFERRED SPACE
This Exhibit is attached to and made a part of the Lease
dated as of , , by and between EOP Northwest
Properties, L.L.C., a Delaware limited liability company ("Landlord") and
Centura Software Corporation, a California corporation ("Tenant") for
space in the Building located at 1111 Third Avenue, Seattle, Washington,
98101.
(Insert floor plate showing Deferred Space : 1,698 RSF of
suite #2860)
EXHIBIT B
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply, where
applicable, to the Premises, the Building, the parking garage (if any), the
Property and the appurtenances. Capitalized terms have the same meaning as
defined in the Lease.
1. Sidewalks, doorways, vestibules, halls, stairways and
other similar areas shall not be obstructed by Tenant or used by Tenant for any
purpose other than ingress and egress to and from the Premises. No rubbish,
litter, trash, or material shall be placed, emptied, or thrown in those areas.
At no time shall Tenant permit Tenant's employees to loiter in Common Areas or
elsewhere about the Building or Property.
2. Plumbing fixtures and appliances shall be used only for
the purposes for which designed, and no sweepings, rubbish, rags or other
unsuitable material shall be thrown or placed in the fixtures or appliances.
Damage resulting to fixtures or appliances by Tenant, its agents, employees or
invitees, shall be paid for by Tenant, and Landlord shall not be responsible for
the damage.
3. No signs, advertisements or notices shall be painted or
affixed to windows, doors or other parts of the Building, except those of such
color, size, style and in such places as are first approved in writing by
Landlord. All tenant identification and suite numbers at the entrance to the
Premises shall be installed by Landlord, at Tenant's cost and expense, using the
standard graphics for the Building. Except in connection with the hanging of
lightweight pictures and wall decorations, no nails, hooks or screws shall be
inserted into any part of the Premises or Building except by the Building
maintenance personnel.
4. Landlord may provide and maintain in the first floor
(main lobby) of the Building an alphabetical directory board or other directory
device listing tenants, and no other directory shall be permitted unless
previously consented to by Landlord in writing.
5. Tenant shall not place any lock(s) on any door in the
Premises or Building without Landlord's prior written consent and Landlord shall
have the right to retain at all times and to use keys to all locks within and
into the Premises. A reasonable number of keys to the locks on the entry doors
in the Premises shall be furnished by Landlord to Tenant at Tenant's cost, and
Tenant shall not make any duplicate keys. All keys shall be returned to
Landlord at the expiration or early termination of this Lease.
6. All contractors, contractor's representatives and
installation technicians performing work in the Building shall be subject to
Landlord's prior approval and shall be required to comply with Landlord's
standard rules, regulations, policies and procedures, which may be revised from
time to time.
7. Movement in or out of the Building of furniture or
office equipment, or dispatch or receipt by Tenant of merchandise or materials
requiring the use of elevators, stairways, lobby areas or loading dock areas,
shall be restricted to hours designated by Landlord. Tenant shall obtain
Landlord's prior approval by providing a detailed listing of the activity. If
approved by Landlord, the activity shall be under the supervision of Landlord
and performed in the manner required by Landlord. Tenant shall assume all risk
for damage to articles moved and injury to any persons resulting from the
activity. If equipment, property, or personnel of Landlord or of any other
party is damaged or injured as a result of or in connection with the activity,
Tenant shall be solely liable for any resulting damage or loss.
8. Landlord shall have the right to approve the weight,
size, or location of heavy equipment or articles in and about the Premises.
Damage to the Building by the installation, maintenance, operation, existence or
removal of property of Tenant shall be repaired at Tenant's sole expense.
9. Corridor doors, when not in use, shall be kept
closed.
10. Tenant shall not: (1) make or permit any
improper, objectionable or unpleasant noises or odors in the Building, or
otherwise interfere in any way with other tenants or persons having business
with them; (2) solicit business or distribute, or cause to be distributed,
in any portion of the Building, handbills, promotional materials or other
advertising; or (3) conduct or permit other activities in the Building that
might, in Landlord's sole opinion, constitute a nuisance.
11. No animals, except those assisting handicapped
persons, shall be brought into the Building or kept in or about the
Premises.
12. No inflammable, explosive or dangerous fluids or
substances shall be used or kept by Tenant in the Premises, Building or about
the Property. Tenant shall not, without Landlord's prior written consent, use,
store, install, spill, remove, release or dispose of, within or about the
Premises or any other portion of the Property, any asbestos-containing materials
or any solid, liquid or gaseous material now or subsequently considered toxic or
hazardous under the provisions of 42 U.S.C. Section 9601 et seq. or any
other applicable environmental Law which may now or later be in effect. Tenant
shall comply with all Laws pertaining to and governing the use of these
materials by Tenant, and shall remain solely liable for the costs of abatement
and removal.
13. Tenant shall not use or occupy the Premises in any
manner or for any purpose which might injure the reputation or impair the
present or future value of the Premises or the Building. Tenant shall not use,
or permit any part of the Premises to be used, for lodging, sleeping or for any
illegal purpose.
14. Tenant shall not take any action which would violate
Landlord's labor contracts or which would cause a work stoppage, picketing,
labor disruption or dispute, or interfere with Landlord's or any other tenant's
or occupant's business or with the rights and privileges of any person lawfully
in the Building ("Labor Disruption"). Tenant shall take the actions
necessary to resolve the Labor Disruption, and shall have pickets removed and,
at the request of Landlord, immediately terminate any work in the Premises that
gave rise to the Labor Disruption, until Landlord gives its written consent for
the work to resume. Tenant shall have no claim for damages against Landlord or
any of the Landlord Related Parties, nor shall the date of the commencement of
the Term be extended as a result of the above actions.
15. Tenant shall not install, operate or maintain in the
Premises or in any other area of the Building, electrical equipment that would
overload the electrical system beyond its capacity for proper, efficient and
safe operation as determined solely by Landlord. Tenant shall not furnish
cooling or heating to the Premises, including, without limitation, the use of
electronic or gas heating devices, without Landlord's prior written consent.
Tenant shall not use more than its proportionate share of telephone lines and
other telecommunication facilities available to service the Building.
16. Tenant shall not operate or permit to be operated a
coin or token operated vending machine or similar device (including, without
limitation, telephones, lockers, toilets, scales, amusement devices and machines
for sale of beverages, foods, candy, cigarettes and other goods), except for
machines for the exclusive use of Tenant's employees, and then only if the
operation does not violate the lease of any other tenant in the Building.
17. Bicycles and other vehicles are not permitted inside
the Building or on the walkways outside the Building, except in areas designated
by Landlord.
18. Landlord may from time to time adopt systems and
procedures for the security and safety of the Building, its occupants, entry,
use and contents. Tenant, its agents, employees, contractors, guests and
invitees shall comply with Landlord's systems and procedures.
19. Landlord shall have the right to prohibit the use of
the name of the Building or any other publicity by Tenant that in Landlord's
sole opinion may impair the reputation of the Building or its desirability.
Upon written notice from Landlord, Tenant shall refrain from and discontinue
such publicity immediately.
20. Tenant shall not canvass, solicit or peddle in or
about the Building or the Property.
21. Neither Tenant nor its agents, employees, contractors,
guests or invitees shall smoke or permit smoking in the Common Areas, unless the
Common Areas have been declared a designated smoking area by Landlord, nor shall
the above parties allow smoke from the Premises to emanate into the Common Areas
or any other part of the Building. Landlord shall have the right to designate
the Building (including the Premises) as a non-smoking building.
22. Landlord shall have the right to designate and approve
standard window coverings for the Premises and to establish rules to assure that
the Building presents a uniform exterior appearance. Tenant shall ensure, to
the extent reasonably practicable, that window coverings are closed on windows
in the Premises while they are exposed to the direct rays of the sun.
23. Deliveries to and from the Premises shall be made only
at the times, in the areas and through the entrances and exits designated by
Landlord. Tenant shall not make deliveries to or from the Premises in a manner
that might interfere with the use by any other tenant of its premises or of the
Common Areas, any pedestrian use, or any use which is inconsistent with good
business practice.
24. The work of cleaning personnel shall not be hindered
by Tenant after 5:30 p.m., and cleaning work may be done at any time when the
offices are vacant. Windows, doors and fixtures may be cleaned at any time.
Tenant shall provide adequate waste and rubbish receptacles to prevent
unreasonable hardship to the cleaning service.
EXHIBIT C
COMMENCEMENT LETTER
(Intentionally omitted)
EXHIBIT D
WORK LETTER - DEFFERRED SPACE
This Exhibit is attached to and made a part of the Lease
dated as of , , by and between EOP-Northwest
Properties, L.L.C., a Delaware limited liability company ("Landlord") and
Centura Software Corporation, a California corporation ("Tenant") for
space in the Building located at 1111 Third Avenue, Seattle, Washington,
98101.
1. This Work Letter shall set forth the obligations of
Landlord and Tenant with respect to the preparation of the Deferred Space for
Tenant's occupancy. All improvements described in this Work Letter to be
constructed in and upon the Deferred Space by Landlord are hereinafter referred
to as the "Landlord Work." It is agreed that construction of the Landlord Work
will be completed at Tenant's sole cost and expense, subject to the Allowance
(as defined below). Landlord shall enter into a direct contract for the
Landlord Work with a general contractor selected by Landlord. In addition,
Landlord shall have the right to select and/or approve of any subcontractors
used in connection with the Landlord Work. Landlord shall obtain three (3) bids
from licensed contractors for the Landlord Work and select the lowest (unless
otherwise agreed by Tenant).
2. Space planning, architectural and engineering
(mechanical, electrical and plumbing) drawings for the Landlord Work shall be
prepared by Landlord's architect at Tenant's sole cost and expense,
subject to the Deferred Space Allowance (defined in Exhibit E, Section III.B).
The fees charged by the Landlord's architect shall not be materially greater
than fees charged by other licensed architects providing similar services in the
vicinity of the Building. The space planning, architectural and mechanical
drawings are collectively referred to herein as the "Plans".
3. Tenant shall furnish any requested information and
approve or disapprove any preliminary or final layout, drawings, or plans within
two (2) Business Days after written request. The initial plans shall be
submitted to Tenant no later than 85 days prior to the Plans Due Date (as
defined below). Any disapproval shall be in writing and shall specifically set
forth the reasons for such disapproval. Tenant and Tenant's architect, if any,
shall devote such time in consultation with Landlord and Landlord's architect
and/or engineer as may be required to provide all information Landlord deems
necessary in order to enable Landlord's architect and engineer to complete, and
obtain Tenant's written approval of, the Plans for the Landlord Work by not
later than 5:00 p.m. on the date which is at least seventy-five (75) days prior
to the Deferred Space Commencement Date (the "Plans Due Date"). In the event
that Tenant fails to approve the Plans by the Plans Due Date, Tenant shall be
responsible for one (1) day of Delay (as defined in the Lease) for each day
during the period beginning on the day following the Plans Due Date and ending
on the date Tenant approves the Plans.
4. In the event Landlord's estimate and/or the actual cost
of construction shall exceed the Deferred Space Allowance, Landlord, prior to
commencing any construction of Landlord Work, shall submit to Tenant a written
estimate setting forth the anticipated cost of the Landlord Work, including but
not limited to labor and materials, contractor's fees and permit fees. Within
three (3) Business Days thereafter, Tenant shall either notify Landlord in
writing of its approval of the cost estimate, or specify its objections thereto
and any desired changes to the proposed Landlord Work. In the event Tenant
notifies Landlord of such objections and desired changes, Tenant shall work with
Landlord to reach a mutually acceptable alternative cost estimate.
5. In the event Landlord's estimate and/or the actual cost
of construction shall exceed the Deferred Space Allowance, if any (such amounts
exceeding the Deferred Space Allowance being herein referred to as the "Excess
Costs"), Tenant shall pay to Landlord such Excess Costs within five (5) days
after written demand. The statements of costs submitted to Landlord by
Landlord's contractors shall be conclusive for purposes of determining the
actual cost of the items described therein. The amounts payable hereunder
constitute Rent payable pursuant to the Lease, and the failure to timely pay
same constitutes an event of default under the Lease. If during the course of
construction the construction costs are reasonably anticipated to exceed the
approved cost estimate by five percent (5%) or more, Landlord shall notify
Tenant and Tenant shall either accept the increase or shall promptly work with
Landlord's architect to reduce the Excess Costs. Such changes in the Landlord's
Work shall be subject to the provisions of Paragraph 6 below.
6. If Tenant shall request any change, addition or
alteration in any of the Plans after approval by Landlord, Landlord shall have
such revisions to the drawings prepared, and Tenant shall reimburse Landlord for
the cost thereof upon demand. Promptly upon completion of the revisions,
Landlord shall notify Tenant in writing of the increased cost which will be
chargeable to Tenant by reason of such change, addition or deletion. Tenant,
within one (1) Business Day, shall notify Landlord in writing whether it desires
to proceed with such change, addition or deletion. In the absence of such
written authorization, Landlord shall have the option to continue work on the
Premises disregarding the requested change, addition or alteration, or Landlord
may elect to discontinue work on the Deferred Space until it receives notice of
Tenant's decision, in which event Tenant shall be responsible for any Delay in
completion of the Deferred Space resulting therefrom. In the event such
revisions result in a higher estimate of the cost of construction and/or higher
actual construction costs which exceed the Deferred Space Allowance, such
increased estimate or costs shall be deemed Excess Costs pursuant to Paragraph 5
hereof and Tenant shall pay such Excess Costs within five (5) days after written
demand.
7. Following approval of the Plans and the payment by
Tenant of the required portion of the Excess Costs, if any, Landlord shall cause
the Landlord Work to be constructed substantially in accordance with the
approved Plans. Landlord shall notify Tenant of substantial completion of the
Landlord Work.
8. Landlord, provided Tenant is not in default, agrees to
provide Tenant with an allowance (the "Allowance") in an amount not to exceed
Forty-Four Thousand Seven Hundred and No/100 Dollars ($44,700.00) (i.e., $30.00
per usable square foot of the Deferred Space) to be applied toward the cost of
the Landlord Work in the Deferred Space. In the event the Deferred Space
Allowance shall not be sufficient to complete the Landlord Work, Tenant shall
pay the Excess Costs as prescribed in paragraph 5 above. In the event the
Deferred Space Allowance exceeds the cost of Landlord Work, any remaining
Deferred Space Allowance shall accrue to the sole benefit of Landlord, it being
agreed that Tenant shall not be entitled to any credit, offset, abatement or
payment with respect thereto. Landlord shall be entitled to deduct from the
Deferred Space Allowance a construction management fee for Landlord's oversight
of the Landlord Work in an amount equal to ten percent (10%) of the total cost
of the Landlord Work.
9. This Exhibit D shall not be deemed applicable to any
additional space added to the original Premises (other than the Deferred Space)
at any time or from time to time, whether by any options under the Lease or
otherwise, or to any portion of the original Premises or any additions to the
Premises in the event of a renewal or extension of the original Term of this
Lease, whether by any options under the Lease or otherwise, unless expressly so
provided in the Lease or any amendment or supplement to the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have entered into
this Exhibit as of the date first written above.
