OFFICE SPACE LEASE
Multi-Tenant Project
THIS LEASE is made as of the 24th day of January, 2005 by and between
Cantera H-6 LLC, an Illinois limited liability company, ("Owner") hereinafter
referred to as "Landlord" and Medical Staffing Network, Inc., a Delaware
corporation qualified to do business in Illinois hereinafter called "Tenant".
ARTICLE I - BASIC TERMS
-----------------------
1.01 A. Address of Landlord:
-------------------
9550 West Higgins Road
Suite 200
Rosemont, IL 60018
Attn: Anthony Pricco
Fax No. 847-292-4313
B. Address of Tenant:
-----------------
901 Yamato Road
Boca Raton, FL 33431
Attn: Larry McPherson
or such other address as may from time to time be designated by
Landlord/Tenant in writing.
C. Premises: Approximately 25,000 square feet of space (an exact
-------- size to be inserted by the parties upon finalization of
Tenant's space plan and calculated substantially in
accordance with current BOMA standards) on the third
floor of the Building as shown on the Space Plan (as
hereinafter defined).
D. Building: The building in which the Premises is located having a
-------- street address of 4525 Weaver Parkway, Warrenville,
Illinois, and consisting of 91,657 rentable square feet
of space, together with the land, and any parking
areas, walkways, landscaped areas and other
improvements appurtenant thereto. The legal description
of the parcel on which the Building is situated is
attached hereto as Exhibit A, sometimes hereinafter
referred to as the "Site". The Site, the Building and
all other improvements on the Site are sometimes
hereinafter referred to as the "Project".
E. Guarantor: N/A
---------
F. Term: The period of time commencing May 1, 2005 (the
---- "Commencement Date") and expiring April 30, 2013 (the
"Expiration Date") unless sooner terminated as set
forth herein.
G. Rent: All sums, monies or payments required to be paid by
---- Tenant to Landlord pursuant to this Lease.
H. Base Rent: Base Rent for the Term hereof is payable at an annual
--------- rate as follows:
1. $11.95 per square foot for the period from May 1, 2005
through April 30, 2006.
2. $12.31 per square foot for the period from May 1, 2006
through April 30, 2007.
3. $12.68 per square foot for the period from May 1, 2007
through April 30, 2008.
4. $13.06 per square foot for the period from May 1, 2008
through April 30, 2009.
5. $13.45 per square foot for the period from May 1, 2009
through April 30, 2010.
6. $13.85 per square foot for the period from May 1, 2010
through April 30, 2011.
7. $14.27 per square foot for the period from May 1, 2011
through April 30, 2012.
8. $14.70 per square foot for the period from May 1, 2012
through April 30, 2013.
I. Security Deposit: $500,000.00, subject to the provisions of
---------------- Article XXIV
J. Tenant's Proportionate Share: 27.28%
----------------------------
K. Permitted Uses: general office use
--------------
L. Brokers: CB Richard Ellis and Mohr Partners
-------
M. Exhibits: A. Legal Description of Premises
-------- B. Rules & Regulations
C. Space Plan
1.02 Effect of Reference to Basic Terms. Each reference in this Lease to any of
the Basic Terms contained in Section 1.01 shall be construed to incorporate into
such reference all of the definitions set forth in Section 1.01.
ARTICLE II - GRANT AND TERM/CONSTRUCTION
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2.01 In consideration of the Rent, covenants, agreements and conditions
hereinafter provided to be paid, kept, performed and observed, Landlord leases
to Tenant and Tenant hereby hires from Landlord the Premises described in
Section 1.01 (C).
2.02 Tenant shall have and hold the Premises for and during the Term described
in Section 1.01 (F), subject to the payment of the Rent and to the full and
timely performance by Tenant of the covenants and conditions hereinafter set
forth, including compliance with the Rules and Regulations attached hereto as
Exhibit B.
2.03 In the event Tenant takes possession of the Premises (or any portion
thereof) prior to the beginning of the Term hereof with Landlord's consent, such
possession shall be in addition to the Term provided for herein and all the
provisions of this Lease shall be in full force and effect upon Tenant's so
taking possession. Subject to accomplishing the required level of completion and
so long as Landlord's work is not interrupted or disturbed, Landlord shall
provide early possession of the Premises to Tenant
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thirty (30) days prior to the Commencement Date for the purpose of installation
of Tenant-provided telephone systems and equipment, data cabling and wiring,
furnishings and equipment provided (i) such installations are allowable under
all applicable laws, codes, ordinances and regulations including, without
limitation, applicable building and zoning laws as they are presently
interpreted and enforced by the governmental bodies having jurisdiction thereof,
and (ii) Tenant does not interfere with the completion of construction by
Landlord or occasion any labor dispute as a result of such installations.
Tenant's access for such purposes and the making of such installations shall not
be deemed to be possession or occupancy of the Premises and no rental
obligations shall commence hereunder. Tenant does hereby agree to assume all
risk of loss or damage to such equipment and to indemnify, defend and hold
harmless Landlord from any loss or damage arising from any injury to the
property of Landlord, or its contractors, subcontractors or materialmen, and any
death or personal injury to any person or persons to the extent arising out of
such installations, except for liability, loss or damage caused by Landlord or
Landlord's employees, agents, constructors, subcontractors or materialmen.
2.04 Landlord agrees to construct the leasehold improvements (the "Tenant
Improvements") in the Premises as specified by the Space Plan dated January 24,
2005 prepared by Archideas (the "Space Plan"), which Space Plan is attached
hereto and made a part hereof as Exhibit C, and on the Outline Specifications
dated to be prepared by McShane Construction Corporation (the "Outline
Specifications"). Landlord further agrees to prepare and deliver to Tenant
permit construction drawings based upon the Space Plan and the Outline
Specifications (the "Permit Set"). Upon presentation of the Permit Set, Tenant
shall have five (5) business days to provide Landlord written notice of its
election to either (a) approve the Permit Set; or (b) redesign all or portions
of the Tenant Improvements, in which case, all time which elapses between the
date Landlord receives notice of Tenant's election to redesign the Tenant
Improvements until Tenant approves a Permit Set shall constitute a Tenant Delay
(as hereinafter defined).
2.05 Landlord shall diligently proceed with the construction of the Tenant
Improvements to the Premises and use reasonable efforts to complete the same and
deliver possession thereof to Tenant at the beginning of the Term. Any delay
contributed to or caused by an act or neglect of Tenant or those acting for or
under Tenant (each, herein, a "Tenant Delay"), shall constitute a Tenant Delay.
Any Tenant Delay shall not defer Tenant's obligation to commence paying Rent in
accordance with Section 5.01 of this Lease, and Tenant shall pay to Landlord all
reasonable increased costs or damages, including lost rent, incurred by Landlord
attributable to Tenant Delays. Labor disputes, casualties, acts of God or the
public enemy, governmental embargo restrictions, shortages of fuel, labor, or
building materials, action or non-action of public utilities, or of local, state
or federal governments affecting the work, or other causes beyond Landlord's
reasonable control (each, herein, an "Excused Delay") shall constitute an
Excused Delay.
2.06 The Tenant Improvements as shown on the final Plans and Specifications
shall be constructed by McShane Construction Corporation. All trades not
performed by McShane Construction Corporation shall be competitively bid out to
two subcontractors, and Landlord shall use its best efforts to obtain the lowest
reasonable bids from such subcontractors. Upon Tenant's request, Landlord shall
provide copies of any bids obtained. The Tenant Improvements shall be
constructed on a cost plus basis, and the cost of the work shall include all
labor, material, insurance, permits, general conditions and a construction fee
to McShane Construction Corporation (the "Cost of the Work"). Landlord's
financial contribution to the Cost of the Work shall be an allowance of $32.00
per rentable square foot (the "Allowance"). The Allowance may also be used for
the costs of architectural, engineering and space planning, consulting services,
furnishings, telephone, data cabling and office equipment installation, and
other office setup costs, and any charges incurred by Tenant shall be paid by
Tenant and submitted to Landlord for reimbursement. Tenant may use up to $5.00
per rentable square foot of the Allowance to offset soft costs such as moving,
furniture and cabling, Any Tenant Improvement requests which cause the Cost of
the
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Work to increase above $32.00 per rentable square foot will require payment of
such excess amount in cash to Landlord by Tenant upon occupancy of the Premises
by Tenant, unless deducted from the Moving Allowance (as herein defined). Any
unused portion of the Allowance shall, at Tenant's option, be used as a rent
credit against the Base Rent starting with the first month in which Base Rent is
due until such credit is exhausted.
2.07 Landlord agrees to provide for Tenant a moving allowance (the "Moving
Allowance") of $2.50 per rentable square foot to assist Tenant with moving,
telecommunications costs or towards any portion of the Cost of the Work which
exceeds $32.00 per rentable square foot. Landlord shall pay the Moving Allowance
to Tenant upon Tenant's occupancy of the Premises.
ARTICLE III - RESERVATIONS BY LANDLORD
--------------------------------------
3.01 Landlord excepts and reserves the roof, exterior walls and Common Areas of
the Building as described in Article XVII below, and further reserves the right
to place, install, maintain, carry through, repair and replace such utility
lines, pipes, wires, appliances, tunneling and the like in, over, through and
upon the Premises as may be reasonably necessary or advisable for the servicing
of the Premises or any other portions of the Building. In exercising such rights
reserved to Landlord, Landlord shall use reasonable efforts to avoid any
unreasonable interference with Tenant's operations in the Premises (but Landlord
shall not be required to conduct such operations on an overtime basis).
3.02 Notwithstanding any provision in this Lease to the contrary, it is agreed
that Landlord reserves the right, without invalidating this lease or modifying
any provision thereof, at any time, and from time to time, (i) to make
alterations, changes and additions to the Building, (ii) to add additional areas
to the Building and/or to exclude areas therefrom, (iii) to construct additional
buildings and other improvements, (iv) to remove or relocate the whole or any
part of any building, and (v) to relocate any other tenant in the Building. In
exercising such rights reserved to Landlord, Landlord shall use reasonable
efforts to avoid any unreasonable interference with Tenant's operations in the
Premises (but Landlord shall not be required to conduct such operations on an
overtime basis). It is further understood that the existing layout of the
Building, and any appurtenant walks, roadways, parking areas, entrances, exits,
and other improvements shall not be deemed to be a warranty, representation or
agreement on the part of the Landlord that same will remain exactly as presently
built, it being understood and agreed that Landlord may change their number,
dimensions and locations, as Landlord shall deem proper.
ARTICLE IV - USE
----------------
4.01 The Premises hereby leased shall be used by and/or at the sufferance of
Tenant only for the purposes set forth in Section 1.01 (K) above and for no
other purposes. Tenant shall, at Tenant's expense, promptly comply with all
applicable statutes, ordinances, rules, regulations, orders and requirements in
effect during the Term or any part of the Term hereof regulating the use by
Tenant of the Premises. Tenant shall not use or permit the use of the Premises
in any manner that will tend to create waste or a nuisance, or will tend to
unreasonably disturb other tenants in the Building, and shall keep its
mechanical apparatus free of noise and vibration which may be transmitted beyond
the confines of the Premises.
4.02 Tenant covenants throughout the Term, at Tenant's sole cost and expense,
promptly to comply with all laws and ordinances and the orders, rules and
regulations and requirements of all federal, state and municipal governments and
appropriate departments, commissions, boards, and officers thereof, and of any
applicable insurance rating agency, or any other body now or hereafter
constituted exercising similar functions, foreseen or unforeseen, ordinary as
well as extraordinary, and whether or not the same
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require structural repairs or alterations, which may be applicable to the
Premises, or the use or manner of use of the Premises; provided, however, that
Tenant shall not be responsible for structural repairs or alterations unless the
requirement for such structural repairs and alterations is caused by Tenant's
particular use or occupancy (as distinguished from the general type of use or
occupancy permitted by the applicable zoning ordinance). Tenant will likewise
observe and comply with the requirements of all policies of public liability,
fire and all other policies of insurance at any time in force with respect to
the buildings and improvements on the Premises and the equipment thereof.
ARTICLE V - RENT
----------------
5.01 Base Rent. Tenant covenants to pay without notice, deduction, set-off or
abatement to Landlord the Base Rent specified in Section 1.01 (H) in lawful
money of the United States in advance on the first day of each month during the
Lease Term. Rent for any partial month shall be prorated on a per diem basis.
Rent shall be payable to Landlord at Landlord's address shown at Section 1.01
(A) above or such other place as Landlord may designate from time to time in
writing. Notwithstanding anything contained in this Lease to the contrary, (i)
so long as Tenant is not in default under this Lease, Base Rent and Additional
Rent for the first twelve (12) months of the Term shall be abated, and (ii) Base
Rent for the month of May, 2006 shall be paid to Landlord upon execution of this
Lease and applied to Base Rent on May 1, 2006.
5.02 Additional Rent. Tenant covenants to pay to Landlord when due (1) Tenant's
Proportionate Share of Real Estate Taxes (as hereinafter defined), (2) Tenant's
Proportionate Share of Insurance Premiums (as hereinafter defined), and (3)
Tenant's Proportionate Share of Common Area Expenses (as hereinafter defined)
(all such items, together with all other sums, excluding Base Rent, due
hereunder, being sometimes collectively referred to as "Additional Rent").
5.03 Real Estate Taxes. During the Term of the Lease or any extensions or
holding over, Tenant shall pay to Landlord, as Additional Rent, Tenant's
Proportionate Share of the Real Estate Taxes levied against the Building.
"Real Estate Taxes" shall mean: (a) all ad valorem Real Estate Taxes on the
Project (adjusted after protest or litigation, if any) for any part of the Term
of this Lease, exclusive of penalties, (b) any taxes which shall be levied in
lieu of any such ad valorem real estate taxes, (c) any special assessments for
benefits on or to the Building paid in annual installments by Landlord, (d)
occupational taxes or excise taxes levied on rentals derived from the operation
of the Building or the privilege of leasing property, and (e) the expense of
protesting, negotiating or contesting the amount or validity of any such taxes,
charges or assessments, such expense to be applicable to the period of the item
contested, protested or negotiated.
If the Term of the Lease shall begin or end during a tax calendar year (tax
calendar year shall mean each annual period for which ad valorem real estate
taxes are assessed and levied) of which part only is included in the Term
hereof, the amount of such Additional Rent shall be prorated on a per diem basis
and with respect to the year in which the Term ends shall be paid on or before
the last day of the Term. If the Term ends in any tax calendar year before the
amount to be payable by Tenant has been determined under the provisions of this
Section, an amount payable for the portion of the Term during the tax calendar
year shall be reasonably estimated by the Landlord and the estimated amount
shall be promptly paid by Tenant. As soon as the amount properly payable by the
Tenant for the partial period has finally been determined, the amount shall be
adjusted between Landlord and Tenant. If less than 100% of the rentable square
feet in the Building is rented or occupied at any time during any calendar year,
Real Estate Taxes for such calendar year shall be an amount equal to the Real
Estate Taxes which would normally be expected to be incurred had 100% of the
Building's rentable square feet been occupied throughout such calendar year.
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5.04 Insurance Premiums. During the Term of this Lease or any extension or
holding over thereof, Tenant shall pay to Landlord as Additional Rent Tenant's
Proportionate Share of the cost of the premium for the fire and extended
coverage insurance described in Section 20.02.
5.05 Common Area Expenses. During the Term of this Lease or any renewals,
extensions or holding over thereof, Tenant will pay to Landlord, as Additional
Rent, Tenant's Proportionate Share of the Common Area Expenses, as those
expenses are defined below.
For the purpose of this Lease the "Common Area Expenses" means Landlord's total
cost and expense incurred in owning, operating, maintaining and repairing the
Common Area as defined in Section 17.01 below, as well as the structure of the
Building and the mechanical equipment and facilities appurtenant thereto,
including but without limitation by enumeration, (i) costs for all electricity,
gas, water or fuel used in connection with the operation, maintenance and repair
of the Common Areas; (ii) the amount paid for all labor and/or wages and other
payments including costs to Landlord of workmen's compensation and disability
insurance, payroll taxes, welfare and fringe benefits made to janitors,
employees, contractors and subcontractors of the Landlord involved in the
operation and maintenance of the Common Areas; (iii) managerial, administrative,
and telephone expenses related to operation and maintenance of the Common Areas;
(iv) market management fees; (v) charges of any independent contractors employed
in the care, operation, maintenance, cleaning and landscaping of the Common
Areas; (vi) the amount paid for all supplies, tools, replacement parts of
components, equipment and necessities which are occasioned by everyday wear and
tear; (vii) the amount paid for premiums for all insurance required from time to
time by Landlord or Landlord's mortgagees (which will include, without
limitation, the premiums described in Section 5.04, but only to the extent that
Tenant has not paid such premiums pursuant to Section 5.04); (viii) the pro rata
costs of machinery and equipment purchased or leased by Landlord to perform its
common area maintenance obligations; and (ix) charges and assessments of the
Cantera Property Owner's Association payable in connection with the applicable
covenants, conditions and restrictions for Cantera.
To the extent that Landlord elects to provide services which are not separately
metered or directly billed to the Tenant, such as water, gas, fuel, sewer
charges and trash hauling, the costs of such services shall be included in
Common Area Expenses. Common Area Expenses shall not, however, include interest
on debt, capital retirement of debt, depreciation, costs properly chargeable to
the capital account, except for capital expenditures which reduce other
operating expenses or such capital expenditures that are required by changes in
any governmental law or regulation in which case such expenditures, plus
interest on the unamortized principal investment at ten percent (10%) per annum,
shall be amortized over the life of the improvements, and such costs shall be
directly chargeable by Landlord to Tenant in the Tenant's Proportionate Share.
All charges, allocations and calculations hereunder shall be made pursuant to
generally accepted accounting principles. If less than 100% of the rentable
square feet in the Building is rented or occupied at any time during any
calendar year, Common Area Expenses for such calendar year shall be an amount
equal to the Common Area Expenses which would normally be expected to be
incurred had 100% of the Building's rentable square feet been occupied and had
Landlord been supplying services to 100% of the Building's rentable square feet
throughout such calendar year.
5.06 Estimates of Additional Rent. In order to provide for current payments of
Additional Rent, Landlord may give Tenant, upon execution of this Lease and from
time to time during the Term hereof, written notice of its estimate of
Additional Rent which will be due in the calendar year for which written notice
of such estimate is given. Tenant shall pay to Landlord, as an Additional Rent
deposit, in monthly installments commencing on the first day of the Term of this
Lease, and/or the first day of the calendar month following that month in which
Landlord notifies Tenant of the estimated Additional Rent, one-twelfth (1/12) of
the Additional Rent due in any said calendar year as estimated by Landlord. If
at any time it appears to Landlord that the Additional Rent due Landlord for any
calendar year will vary
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from its estimate thereof by more than ten percent (10%), Landlord may, by
written notice to Tenant, revise its estimate for such year. Subsequent
Additional Rent deposits by Tenant for such year shall be based on the revised
estimate. Tenant shall pay Landlord the Additional Rent deposit in the same
manner as Base Rent beginning on the first day of the calendar month following
the calendar month in which this Lease commences.
Within sixty (60) days of the end of the calendar year for which estimates of
Additional Rent were made, actual Additional Rent due for such year shall be
calculated. If Tenant's Proportionate Share of actual Additional Rent exceeds
the deposits paid by Tenant based on Landlord's estimates, Landlord shall bill
Tenant for the excess amount and Tenant shall pay to Landlord said amount within
ten (10) days of billing. If Tenant's Proportionate Share of actual Additional
Rent is less than the deposits paid by Tenant based on Landlord's estimate
thereof, Tenant shall , be given a credit for the excess amount against the next
Additional Rent deposit due for any subsequent year.
If the Term commences on any day other than the first day of January, or if the
Term ends on any day other than the last day of December, any Additional Rent
due Landlord shall be pro-rated, based on a 365 day year. Upon expiration or
termination of this Lease, Tenant shall pay such pro-rated amount within thirty
(30) days of billing. This covenant shall survive the expiration or termination
of this Lease.
5.07 Service Charge. Tenant's failure to make any monetary payment required of
Tenant hereunder within ten (10) days of the due date therefor shall result in
the imposition of a service charge for such late payment in the amount of five
percent (5%) of the amount due. In addition, any sum not paid within thirty (30)
days of the due date therefor shall bear interest at the rate of eighteen
percent (18%) per annum (or such lesser percentage as may be the maximum amount
permitted by law) from the date due until paid.
ARTICLE VI - UTILITIES AND SERVICES
-----------------------------------
6.01 Tenant shall be responsible to pay all charges for electricity, water,
fuel, sewer charges, telephone, trash hauling, and any other services or
utilities used in, servicing or assessed against the Premises, unless otherwise
herein expressly provided. All such charges shall be separately metered and
billed by the applicable utility provider.
6.02 Landlord shall furnish the following services (and the cost of such
services shall constitute Common Area Expenses), which services shall be
substantially similar to services provided at comparable first-class office
buildings in DuPage County: (i) heating and air conditioning to provide a
temperature condition required, in Landlord's reasonable judgment, for
comfortable occupancy of the Premises under normal business operations, weekdays
from 8:00 A.M. to 6:00 P.M., Saturday from 8:00 A.M. to 1:00 P.M., and Sundays
and holidays excepted; (ii) water for drinking, and, subject to Landlord's
approval, cold water at Tenant's expense for any private restrooms and office
kitchen requested by Tenant; (iii) men's and women's restrooms at locations
designated by Landlord and in common with other tenants of the Building; (iv)
daily janitor service in the Premises and Common Areas of the Building, weekends
and holidays excepted; and (v) Landlord shall furnish passenger elevator
services to the Premises twenty four (24) hours of all days (except as may be
reasonably and temporarily limited for security procedures, repairs, maintenance
or upgrades); and (vi) electricity to the Premises with service of 6.8 watts per
square foot (1.6 watts per square foot for lighting and 5.2 watts per square
foot for receptacle loads).
6.03 Landlord shall not be obligated to furnish any services other than those
stated above. If Landlord elects to furnish services requested by Tenant in
addition to those stated above (including services at times other than those
stated above), Landlord shall notify Tenant prior to commencing such services of
Landlord's charges in connection therewith. In the event Tenant requests
additional services, Tenant shall
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give Landlord not less than one (1) business days' prior written notice of the
date on which Tenant would like such services to commence. In the event Tenant
shall elect to cause Landlord to provide such additional services, and if Tenant
shall fail to make any such payment, then upon five (5) days prior notice to
Tenant and in addition to all other remedies available to Landlord, Landlord may
discontinue any additional services. No discontinuance of any such service shall
result in any liability of Landlord to Tenant or be considered as an eviction or
a disturbance of Tenant's use of the Premises. Notwithstanding the foregoing,
Landlord shall charge Tenant the actual cost for operation (plus any additional
costs associated with depreciation and increased maintenance of equipment) for
Tenant's HVAC use before or after the normal business hours as provided in
Section 6.02.
6.04 Tenant agrees that Landlord shall not be liable for damages for failure or
delay in furnishing any service stated above if such failure or delay is caused,
in whole or in part, by any one or more of the events stated in Section 15.01,
nor shall any such failure or delay be considered to be an eviction or
disturbance of Tenant's use of the Premises, or relieve Tenant from its
obligation to pay any Rent when due, or from any other obligations of Tenant
under this Lease.
6.05 Notwithstanding anything to the contrary in the Lease, if: (a) any services
or utilities are interrupted or discontinued as a result of Landlord's
negligence or willful conduct, and Tenant is unable to and does not use the
Premises as a result of such interruption or discontinuance, and (b) Tenant
shall have given written notice respecting such interruption or discontinuance
to Landlord, and Landlord shall have failed to cure such interruption or
discontinuance within ten (10) consecutive days after receiving such notice, or
such additional time as may be required due to any Unavoidable Delay or other
causes beyond Landlord's reasonable control, Rent hereunder shall thereafter be
abated until such time as such services or utilities are restored or Tenant
begins using the Premises again, whichever shall first occur. Such abatement of
Rent shall be Tenant's sole recourse in the event of a discontinuance or
interruption of services or utilities required to be provided by Landlord
hereunder. Notwithstanding the foregoing, in recognition that Landlord must
receive timely payments of Rent in order to operate the Premises, Tenant shall
have no right to abate Rent unless and until Tenant shall have first obtained a
valid judgment by a court of competent jurisdiction finding that the foregoing
grounds for an abatement of Rent have been present, and fixing the amount of
Rent abatement to which Tenant is entitled.
ARTICLE VII - QUIET ENJOYMENT
-----------------------------
7.01 Landlord covenants that Tenant, on paying the Rents herein provided and
keeping, performing and observing the covenants, agreements and conditions
herein required of Tenant, shall peaceably and quietly hold and enjoy the
Premises for the term aforesaid, subject, however, to the terms of this Lease.
ARTICLE VIII - ASSIGNMENT AND SUBLETTING
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8.01 Tenant shall not assign or hypothecate this Lease nor sublet or otherwise
transfer its interest in all or any part of the Premises without the prior
written consent of Landlord, which consent shall not be unreasonable withheld,
conditioned or delayed. If Tenant wishes to assign this Lease or sublet all or
any part of the Premises it shall give notice in writing of such intention to
Landlord pursuant to Article XXIII of this Lease, furnishing Landlord with a
copy of the proposed assignment or sublease document and full information as to
the identity and financial status of the proposed assignee or subtenant.
Thereupon Landlord shall have, within fifteen (15) business days of receipt of
such notice, the right to terminate this Lease or to approve or reject such
assignment or subletting by written notice to Tenant. If no such response is
given, Landlord shall be deemed to have elected to approve the assignment or
subletting. Notwithstanding any assignment or sublease, Tenant shall remain
liable hereunder and shall not be released without the express written agreement
of Landlord to such release. If a subletting is so approved and the rents under
such a sublease are greater that the Rents provided for herein, then Landlord
shall
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have the further option either (a) to convert the sublease into a prime lease,
in which case Tenant will be relieved of further liability hereunder and under
the proposed sublease; or (b) to require Tenant to remain liable under this
Lease. In either event, Landlord shall be entitled to half of all profits. The
consent by Landlord to any assignment or subletting shall not constitute a
waiver of the necessity for such consent to any subsequent assignment or
subletting.
8.02 With respect to Landlord's consent to an assignment or sublease, Landlord
may take into consideration any factors which Landlord may deem relevant, and
the reasons for which Landlord's denial shall be deemed to be reasonable shall
include, without limitation, the following: (i) in Landlord's reasonable
judgment, the business reputation or creditworthiness of any proposed subtenant
or assignee is not acceptable; or (ii) in Landlord's reasonable judgment the
proposed assignee or subtenant would diminish the value or reputation of the
Building or Landlord; or (iii) any proposed assignee's or subtenant's use of the
Premises would violate the Lease or would violate the provisions of any other
leases of tenants in the Project; or (iv) the proposed subtenant or assignee is
a bona fide prospective tenant of Landlord in the Project as demonstrated by a
written proposal dated within ninety (90) days prior to the date of Tenant's
request; or (v) the proposed subtenant or assignee would materially increase the
estimated pedestrian and vehicular traffic to and from the Premises and the
Building.
8.03 In no event shall Landlord be obligated to consider a consent to any
proposed (i) sublease of the Premises or assignment of the Lease if a default
then exists under the Lease, or (ii) assignment of the Lease which would assign
less than the entire Premises.
ARTICLE IX - DAMAGE OR DESTRUCTION
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9.01 If the Premises or the Building or any part thereof is damaged by fire or
other casualty, cause or condition whatsoever as to be substantially
untenantable and the Landlord shall determine not to restore same, Landlord may,
by written notice to the Tenant given within sixty (60) days after such damage,
terminate this Lease as of the date of the damage. If this Lease is not
terminated as above provided and if the Premises are made partially or wholly
untenantable as aforesaid, Landlord, at its expense shall restore the same with
reasonable promptness to the condition in which Landlord furnished the Premises
to Tenant at the commencement of the Term of this Lease but only as to those
items that were provided at Landlord's expense without any reimbursement by
Tenant. Landlord shall be under no obligation to restore any alterations,
improvements or additions to the Premises made by Tenant or paid for by Tenant,
including, but not limited to, any of the initial tenant finish done or paid for
by Tenant or any subsequent changes, alterations or additions made by Tenant.
9.02 If, as a result of fire or other casualty, cause or condition whatsoever
the Premises are made partially or wholly untenantable and, if Landlord has not
given the sixty (60) day notice above provided for and fails within one hundred
twenty (120) days after such damage occurs to eliminate substantial interference
with Tenant's use of the Premises or substantially to restore same, Tenant may
terminate this Lease as of the end of said one hundred twenty (120) days by
notice to Landlord given not later than five (5) days after expiration of said
one hundred twenty (120) day period. If the Premises are rendered totally
untenantable but this Lease is not terminated, all Rent shall abate from the
date of the fire or other relevant cause or condition until the Premises are
ready for occupancy and reasonably accessible to Tenant. If a portion of the
Premises is untenantable, Rent shall be prorated on a per diem basis and
apportioned in accordance with the portion of the Premises which is usable by
the Tenant until the damaged part is ready for the Tenant's occupancy. In all
cases, due allowance shall be made for reasonable delay caused by adjustment of
insurance loss, strikes, labor difficulties or any cause beyond Landlord's
reasonable control. For the purposes of this Lease, the Premises shall be
considered tenantable so long as and to the extent that the Premises are
occupied. In any event, Tenant shall be
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responsible for the removal, or restoration, when applicable, of all its damaged
property and debris from the Premises, upon request by Landlord or reimburse
Landlord for the cost of removal.
ARTICLE X - LANDLORD'S RIGHTS
-----------------------------
10.01 Landlord reserves the following rights:
(a) To change the name of the Building without notice or liability to
Tenant;
(b) During the last ninety (90) days of the Term or any extension thereof,
or at any time if Tenant has vacated the Premises, to decorate,
remodel, repair, alter or otherwise prepare the Premises for
reoccupancy;
(c) To exhibit the Premises to others and to display "For Lease" signs on
the Premises during the last six months of the Term or any extension
thereof;
(d) To remove abandoned or unlicensed vehicles and vehicles that are
unreasonably interfering with the use of the parking lot by others and
to charge the responsible tenant for the expense of removing said
vehicles;
(e) To take any and all measures, including making inspection, repairs,
alterations, additions and improvements to the Premises or to the
Building as may be necessary or desirable for the safety, protection
or preservation of the Premises or the Building or Landlord's
interests, or as may be necessary or desirable in the operation
thereof (In exercising the rights reserved in this subsection (e),
Landlord shall use reasonable efforts to avoid any unreasonable
interference with Tenant's operations in the Premises (but shall not
be required to conduct such operations on an overtime basis)).
Landlord may enter upon the Premises at any reasonable time for the purpose of
exercising any or all of the foregoing rights hereby reserved without being
deemed guilty of an eviction or disturbance of Tenant's use or possession and
without being liable in any manner to Tenant, except for willful misconduct or
gross negligence of Landlord, its employees of agents.
ARTICLE XI - HOLDING OVER
-------------------------
11.01 Tenant shall pay to Landlord the Base Rent and Additional Rent computed on
a per month basis for each month or part thereof (without reduction for any such
partial month) Tenant retains possession of the Premises or any part thereof
after the expiration of the Term, by lapse of time or otherwise, at one hundred
twenty-five percent (125%) of the amount of such rents then required by the
terms hereof for the last monthly period prior to the date of such expiration
for the first three (3) months after the expiration of the Term, and thereafter
at one hundred fifty percent (150%) of the amount such rents then required by
the terms hereof for the last monthly period prior to the date of such
expiration. In addition to the foregoing, Tenant shall also pay all damages,
direct or indirect, sustained by Landlord by reason of such retention, or, if
Landlord gives notice in writing to Tenant (and not otherwise), such holding
over shall constitute renewal of this Lease at Landlord's election for one (1)
year at either (i) one hundred fifty percent (150%) of the then current Rent
(including Base Rent and Additional Rent); or (ii) that amount set forth in a
written notice from Landlord to Tenant prior to the holding over, but acceptance
by Landlord of any rent or other payment from Tenant after such expiration shall
not constitute a renewal or extension nor waive Landlord's right of re-entry or
any other right of Landlord.
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ARTICLE XII - SIGNS AND ADVERTISEMENTS
--------------------------------------
12.01 Tenant shall not put upon nor permit to be put upon any part of the
Premises or the Building, any signs, billboards or advertisements whatsoever in
any location or any form without the prior written consent of Landlord. Tenant
may, with Landlord's consent, which consent shall not be unreasonably withheld
conditioned or delayed, and at its sole cost and expense, erect an exterior sign
on the Building provided that such sign (a) does not cause any structural damage
or other irreparable damage to the Building (provided Tenant shall repair any
damage to the Building caused by the installation of such signage as set forth
below); (b) does not violate applicable governmental laws, ordinances, rules or
regulations; (c) does not violate any existing restrictions affecting the
Premises; and (d) is compatible with the architecture of the Building and the
landscaped area adjacent thereto. Tenant shall, not later than the termination
date (or earlier expiration date, if applicable) of this Lease, at Tenant's sole
cost and expense, remove any signage erected by Tenant on the facade of the
Building in a good, workmanlike manner, repairing and restoring the Building to
the condition existing prior to the erection of such signage free and clear of
all liens and encumbrances. In the event damage to the Building shall be caused
by the removal of such signage, said damage shall be promptly repaired at the
cost of Tenant. Notwithstanding the foregoing, provided Tenant is not in default
hereunder, Landlord agrees to provide Tenant a signage allowance of $5,000 (the
"Signage Allowance"). Landlord shall pay the Signage Allowance to Tenant upon
Tenant's completion of the exterior Building sign in accordance with the
provisions of this Section 12.01.
12.02 Tenant shall be identified on the interior tenant directory located in the
Building.
ARTICLE XIII - MORTGAGE AND SUBORDINATION/ESTOPPEL CERTIFICATE
--------------------------------------------------------------
13.01 Except as provided in Section 13.03 below with respect to mortgage
subordination, this Lease and all rights of Tenant hereunder are and shall be
subject and subordinate to the lien of any first mortgage, deed to secure debt,
deed of trust, or other instrument in the nature thereof which may now or
hereafter affect Landlord's interest in the premises and to any other instrument
encumbering the Landlord's interest in the premises and to any modifications,
renewals, consolidations, extensions, or replacements thereof.
13.02 Section 13.01 above shall be self-operative, and no further instrument of
subordination shall be required by the holder of any such instrument. In
confirmation of such subordination, Tenant shall, upon demand, at any time or
times, execute, acknowledge, and deliver to Landlord or the holder of any such
mortgage, deed to secure debt, deed of trust, or other such instrument without
expense, any and all instruments that may be requested by such holder to
evidence the subordination of this Lease and all rights hereunder to the lien of
any such mortgage, deed to secure debt, deed of trust, or other instrument, and
each such renewal, modification, consolidation, replacement, and extension
thereof..
13.03 Tenant shall, upon demand, at any time or times, execute, acknowledge, and
deliver to Landlord or to the holder of any mortgage, deed to secure debt, deed
of trust, or other instrument affecting or encumbering the Landlord's interest
in the Premises, without expense, any and all instruments that may be necessary
to make this Lease superior to the lien of any such mortgage, deed to secure
debt, deed of trust or other instrument, and each renewal, modification,
consolidation, replacement, and extension thereof.
13.04 If the holder of any mortgage, deed to secure debt, deed of trust or other
instrument affecting or encumbering Landlord's interest in the Premises, shall
hereafter succeed to the rights of Landlord under this Lease, whether through
possession or foreclosure action or delivery of a new lease, Tenant shall, at
the option of such holder, attorn to and recognize such successor as Tenant's
landlord under this Lease and shall promptly execute and deliver any instrument
that may be necessary to evidence such attornment.
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Upon such attornment, this Lease shall continue in full force and effect as a
direct lease between such successor landlord and Tenant, subject to all the
terms, covenants, and conditions of this Lease.
13.05 At any time and from time to time, Tenant, on or before the date specified
in a request therefor made by Landlord, which date shall not be earlier than ten
(10) days from the making of such request, shall execute, acknowledge, and
deliver to Landlord a certificate evidencing whether or not (i) this Lease is in
full force and effect, (ii) this Lease has been amended in any way, (iii) there
are any existing defaults on the part of Landlord hereunder to the knowledge of
Tenant and specifying the nature of such defaults, if any, and (iv) the date to
which rent, and other amounts due hereunder, if any, have been paid. Each
certificate delivered pursuant to this Paragraph may be relied on by any
prospective purchaser or transferee of Landlord's interest hereunder or of any
part of Landlord's property or by any mortgagee of Landlord's interest hereunder
or of any part of Landlord's property or by an assignee of any such mortgagee.
ARTICLE XIV - EMINENT DOMAIN
----------------------------
14.01 If the Premises or such substantial part thereof as reasonably renders the
remainder unfit for the intended uses shall be taken by any competent authority
under the power of eminent domain or be acquired for any public or quasi-public
use or purpose, the Term of this Lease shall cease and terminate upon the date
when the possession of said Premises or the part thereof so taken shall be
required for such use or purpose and without apportionment of the award and
Tenant shall have no claim for the value of any unexpired Term of this Lease. If
any condemnation proceeding shall be instituted in which it is sought to take
any part of the Building or change the grade of any street or alley adjacent to
the Building and such taking or change of grade makes it necessary or desirable
to remodel the Building to conform to the changed grade, Landlord shall have the
right to terminate this Lease upon not less than ninety (90) days prior notice
to Tenant. In either of said events, Rent at the then current rate shall be
apportioned as of the date of the termination. No money or other consideration
shall be payable by the Landlord to the Tenant for the right of termination and
the Tenant shall have no right to share in the condemnation award or in any
judgment for damages caused by the taking or the change of grade. Nothing in
this paragraph shall preclude an award being made to Tenant for loss of business
or depreciation to and cost of removal of equipment or fixtures.
ARTICLE XV - LANDLORD'S INABILITY TO PERFORM
--------------------------------------------
15.01 If by reason of inability to obtain and utilize labor, materials or
supplies; circumstances directly or indirectly the result of a state of war or
national or local emergency; any laws, rules, orders, regulations or
requirements of any governmental authority now or hereafter in force; strikes or
riots; accident in, damage to or the making of repairs, replacements, or
improvements to the Premises or any of the equipment thereof; or by reason of
any other cause beyond the reasonable control of Landlord, Landlord shall be
unable to perform or shall be delayed in the performance of any covenant to
supply any service, such nonperformance or delay in performance shall not render
Landlord liable in any respect for damages to either person or property,
constitute a total or partial eviction, constructive or otherwise, work an
abatement of Rent or relieve Tenant from the fulfillment of any covenant or
agreement contained in this Lease.
ARTICLE XVI - BANKRUPTCY OR INSOLVENCY
--------------------------------------
16.01 It is understood and agreed that the following shall apply in the event of
the bankruptcy or insolvency of Tenant:
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(A) If a petition is filed by, or an order for relief is entered against
Tenant under Chapter 7 of the Bankruptcy Code and the trustee of
Tenant elects to assume this Lease for the purpose of assigning it,
such election or assignment, or both, may be made only if all of the
terms and conditions of subparagraphs (B) and (D) below are satisfied.
To be effective, an election to assume this Lease must be in writing
and addressed to Landlord, and in Landlord's business judgment, all of
the conditions hereinafter stated, which Landlord and Tenant
acknowledge to be commercially reasonable, must have been satisfied.
If the trustee fails so to elect to assume this Lease within sixty
(60) days after such filing or order, this Lease will be deemed to
have been rejected, and Landlord shall then immediately be entitled to
possession of the Premises without further obligation to Tenant or the
trustee, and this Lease shall be terminated. Landlord's right to be
compensated for damages in the bankruptcy proceeding, however, shall
survive such termination.
(B) If Tenant filed a petition for reorganization under Chapters 11 or 13
of the Bankruptcy Code, or if a proceeding filed by or against Tenant
under any other chapter of the Bankruptcy Code is converted to a
chapter 11 or 13 proceeding and Tenant's trustee or Tenant as
debtor-in-possession fails to assume this Lease within sixty (60) days
from the date of the filing of such petition or conversion, then the
trustee or the debtor-in-possession shall be deemed to have rejected
this Lease. To be effective, any election to assume this Lease must be
in writing addressed to Landlord and, in Landlord's business judgment,
all of the following conditions, which Landlord and Tenant acknowledge
to be commercially reasonable, must have been satisfied:
(1) The trustee or the debtor-in-possession has cured or has provided
to Landlord adequate assurance, as defined in this subparagraph
(B), that:
(a) It will cure all monetary defaults under this Lease within
ten (10) days from the date of assumption; and
(b) It will cure all nonmonetary defaults under this Lease
within thirty (30) days from the date of assumption; and
(2) The trustee or the debtor-in-possession has compensated Landlord,
or has provided Landlord with adequate assurance, as hereinafter
defined, that within ten (10) days from the date of assumption
Landlord will be compensated for any pecuniary loss it has
incurred arising from the default of Tenant, the trustee, or the
debtor-in-possession, as recited in Landlord's written statement
of pecuniary loss sent to the trustee or debtor-in-possession.
(3) The trustee or the debtor-in-possession has provided Landlord
with adequate assurance of the future performance of each of
Tenant's obligations under this Lease; provided, however, that:
(a) From and after the date of assumption of this Lease, it
shall pay all monetary obligations, including the Base and
Additional Rents payable under this lease in advance in
equal monthly installments on each date that such Rents are
payable.
(b) It shall also deposit with Landlord, as security for the
timely payment of Rent, the amount set forth in Section 1.01
I;
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(c) If not otherwise required by the terms of this Lease, it
shall also pay in advance, on each day that any installment
of Base Rent is payable, one-twelfth of Tenant's annual tax,
escalation and other obligations under this Lease; and
(d) The obligations imposed upon the trustee or the
debtor-in-possession will continue for Tenant after the
completion of bankruptcy proceedings.
(4) For purposes of this subparagraph (B), "adequate assurance" means
that:
(a) Landlord determines that the Tenant, trustee or the
debtor-in-possession has, and will continue to have,
sufficient unencumbered assets, after the payment of all
secured obligations and administrative expenses, to assure
Landlord that the trustee or the debtor-in-possession will
have sufficient funds timely to fulfill Tenant's obligations
under this Lease and to keep the Premises properly staffed
with sufficient employees to conduct a fully operational,
actively promoted business in the Premises; and
(b) An order shall have been entered segregating sufficient cash
payable to Landlord and/or valid and perfected first lien
and security interest shall have been granted in property of
Tenant, trustee, or debtor-in-possession which is acceptable
in value and kind to Landlord, to secure to Landlord the
obligation of Tenant, trustee or debtor-in-possession to
cure all monetary and nonmonetary defaults under this Lease
within the time periods set forth above.
(C) In the event this Lease is assumed by a trustee appointed for Tenant
or by Tenant as debtor-in- possession under the provisions of
subparagraph (B) above and, thereafter, Tenant is either adjudicated a
bankrupt or files a subsequent petition for arrangement under Chapter
11 of the Bankruptcy Code, then Landlord may, at its option, terminate
this Lease and all the Tenant's rights under it, by giving written
notice of Landlord's election so to terminate.
(D) If the trustee or the debtor-in-possession has assumed this Lease,
pursuant to subparagraph (A) or (B) above, to assign or to elect to
assign Tenant's interest under this Lease or the estate created by
that interest to any other person, such interest or estate may be
assigned only if the intended assignee has provided adequate assurance
of future performance, as defined in this subparagraph (D), of all of
the terms, covenants, and conditions of this Lease. For the purposes
of this subparagraph (D), "adequate assurance of future performance"
means that Landlord has ascertained that each of the following
conditions has been satisfied:
(1) The assignee has submitted a current financial statement, audited
by a certified public accountant, which shows a net worth and
working capital in amounts determined by Landlord to be
sufficient to assure the future performance by the assignee of
the tenant's obligations under this Lease;
(2) If requested by Landlord, the assignee will obtain guarantees, in
form and substance satisfactory to Landlord, from one or more
persons who satisfy Landlord's standards of creditworthiness; and
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(3) Landlord has obtained consents or waivers from any third parties
which may be required under any lease, mortgage, financing
arrangement, or other agreement by which Landlord is bound, to
enable Landlord to permit such assignment.
(E) When, pursuant to the Bankruptcy Code, the trustee or the
debtor-in-possession is obligated to pay reasonable use and occupancy
charges for the use of all or part of the Premises, it is agreed that
such charges will not be less than the Base Rent as defined in this
Lease, plus Additional Rent and other monetary obligations of Tenant
included herein.
(F) Neither Tenant's interest in this Lease nor any estate of Tenant
created in this Lease shall pass to any trustee, receiver, assignee
for the benefit of creditors, or any other person or entity, nor
otherwise by operation of law under the laws of any state having
jurisdiction of the person or property of Tenant, unless Landlord
consents in writing to such transfer. Landlord's acceptance of rent or
any other payments from any trustee, receiver, assignee, person, or
other entity will not be deemed to have waived, or waive, either the
requirement of Landlord's consent or Landlord's right to terminate
this Lease for any transfer of Tenant's interest under this Lease
without such consent.
ARTICLE XVII - COMMON AREAS
---------------------------
17.01 The term "Common Areas" means all the areas and facilities of the Building
not intended for renting and, instead, designed for the common use and benefit
of Landlord and all or substantially all of the tenants, their employees,
agents, customers and invitees. The Common Areas include, but not by way of
limitation, parking lots, rail spurs, truck courts, landscaped and vacant areas,
driveways, walks and curbs with facilities appurtenant to each as such areas may
exist from time to time. Landlord shall operate and maintain the Common Areas,
the proportionate cost of which shall be reimbursed by Tenant to Landlord as
provided for herein. Landlord hereby grants to Tenant the non-exclusive
revocable use of the Common Areas by Tenant, Tenant's employees, agents,
customers and invitees, which use shall be subject at all times to such
reasonable, uniform and non-discriminatory rules and regulations as may from
time to time be established by Landlord.
17.02 Tenant shall not use any part of the Building exterior to the Premises for
outside storage. No trash, crates, pallets or refuse shall be permitted anywhere
outside the Building by Tenant except in enclosed metal containers to be located
as directed by Landlord. Tenant shall not park any trucks or trailers, loaded or
empty, except in front of the docks on the concrete apron provided for such
purposes. Tenant shall not park or permit parking of vehicles overnight anywhere
about the Building's parking areas without the prior written consent of
Landlord, which consent shall not be unreasonable withheld, conditioned or
delayed.
17.03 At all times during the Term, Landlord shall provide at no cost to Tenant
5 parking stalls per 1,000 square feet of the Premises on the Site (except as
may be reasonably and temporarily limited for repairs, maintenance or upgrades)
for the non-exclusive use of Tenant, in common with the other tenants of the
Building on a first come, first served basis.
ARTICLE XVIII - ACCEPTANCE OF PREMISES, MAINTENANCE AND CARE
------------------------------------------------------------
18.01 Completion and Acceptance. Tenant acknowledges that it will examine the
Premises before taking possession hereunder. Unless Tenant furnishes Landlord
with a notice in writing specifying any defect in the construction of the
Premises within ten (10) days after taking possession, such taking of
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possession shall be conclusive evidence as against Tenant that at the time
thereof the Premises were in good order and satisfactory condition.
18.02 Maintenance and Repair by Tenant. Tenant shall be responsible for all
maintenance, repair and replacement to the Premises. Tenant shall take good care
of the Premises and fixtures, and keep them in good repair and free from filth,
overloading, danger of fire or any pest or nuisance, and repair and/or replace
any damage or breakage done by Tenant or Tenant's agents, employees or invitees,
including damage done to the Building by Tenant's equipment or installations. At
the end of the Term of this Lease or any renewal hereof, Tenant shall quit and
surrender the Premises broom clean in as good condition as when received by
Tenant, normal wear and tear excepted. In the event Tenant fails to maintain the
Premises as provided for herein Landlord shall have the right, but not the
obligation, to perform such maintenance, repair and replacement as is required
of Tenant in which event Tenant shall promptly reimburse Landlord for its costs
in providing such maintenance or repairs together with a ten percent (10%)
charge for Landlord's overhead.
18.03 Maintenance and Repair by Landlord. During the Term of this Lease,
Landlord shall keep and maintain and replace the roof, parking lot, structure,
foundation, exterior walls, HVAC system, gutters and downspouts of the Building
in good condition and repair (and such repairs shall be solely within Landlord's
control and the cost thereof shall constitute a Common Area Expense to the
extent otherwise so provided in Section 5.05). Landlord shall be under no
obligation and shall not be liable for any failure to make repairs that are
Landlord's responsibility herein until and unless Tenant notifies Landlord in
writing of the necessity therefor, in which event Landlord shall have a
reasonable time thereafter to make such repairs. Landlord reserves the right to
the exclusive use of the roof, foundation and exterior walls of the Building
which Landlord is so obligated to maintain and repair. If any portion of the
Premises which Landlord is obligated to maintain or repair is damaged by the
negligence of Tenant, its agents, employees or invitees, then repairs
necessitated by such damage shall be paid for by Tenant.
ARTICLE XIX - ALTERATIONS AND ADDITIONS, MECHANICS' LIENS
---------------------------------------------------------
19.01 Alterations and Additions. Tenant shall not make any alterations,
improvements, or additions to the Premises without the prior written consent and
approval of plans therefor by Landlord, which consent shall not be unreasonably
withheld, conditioned or delayed provided such alterations (a) are
non-structural and (b) do not affect any Building systems. The work necessary to
make any alterations, improvements or additions to the Premises shall be done at
Tenant's expense by employees of, or contractors hired by, Landlord, except to
the extent Landlord gives its consent to Tenant hiring its own contractors.
Tenant shall promptly pay the cost of all such work. Alterations, improvements
or additions so made by either of the parties upon the Premises, except moveable
furniture and equipment placed in the Premises at the expense of Tenant, shall
be and become the property of Landlord and shall remain upon and be surrendered
with the Premises as a part thereof at the termination of this Lease, without
disturbance, molestation, injury or damage, unless Landlord elects to require
Tenant to remove any or all such alterations or improvements from the Premises,
in which event Tenant, at Tenant's sole cost and expense, shall not later than
the termination of the Lease remove all such designated alterations or
improvements in a good, workmanlike manner, repairing and restoring the Premises
to the condition existing therein prior to the construction of such alterations
or improvements free and clear of all liens and encumbrances. In the event
damage to the Premises or the Building shall be caused by moving said furniture
and equipment in or out of the Premises, said damage shall be promptly repaired
at the cost of Tenant.
19.02 Mechanic's Liens. Tenant shall not cause nor permit any mechanic's liens
or other liens to be placed upon the Premises or the Building and in case of the
filing of any such lien or claim therefor, Tenant shall promptly discharge same;
provided, however, that Tenant shall have the right to contest the
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validity or amount of any such lien upon its prior posting of security with
Landlord, which security, in Landlord's sole reasonable judgment, must be
adequate to pay and discharge any such lien in full plus Landlord's reasonable
estimate of its legal fees. Tenant agrees to pay all reasonable legal fees and
other costs incurred by Landlord because of any mechanic's or other liens
attributable to Tenant being placed upon the Premises or the Building.
ARTICLE XX - INSURANCE
----------------------
20.01 Public Liability, Property Damage Insurance. Tenant covenants and agrees
to maintain on the Premises at all times during the Term of this Lease, or any
renewal thereof, a policy or policies of comprehensive public liability and
property damage insurance with not less than $1,000,000.00 combined single limit
for both bodily injury and property damage which policy or policies shall name
Landlord, and its property manager, all as additional insured.
20.02 Fire and Extended Coverage Insurance. Landlord shall, throughout the Term
of this Lease, or any extension thereof, maintain fire and extended coverage
insurance on the property owned by Landlord located in and about the Premises in
such amounts and with such deductibles as Landlord shall reasonably determine.
Landlord shall not be obligated in any way or manner to insure any property of
Tenant or any property that may be in the Premises but not owned by Landlord.
Landlord agrees that if permitted by the insurer thereunder, such insurance
policy shall contain a waiver of subrogation with respect to claims against
Tenant for losses insured and compensated under such insurance policy. If
permitted by Tenant's insurer, Tenant shall obtain for the benefit of Landlord a
similar waiver of subrogation with respect to insurance maintained by Tenant on
its property.
20.03 Indemnification of Landlord. Except for claims for which Landlord is
compensated under the insurance described in Section 20.02 (and to the extent of
such compensation) and for which a waiver of subrogation is in effect, Tenant
indemnifies and shall hold Landlord, and its affiliates, partners,
representatives, directors, trustees, officers, employees, lenders, successors
and assigns (collectively, "the Affiliates") and its property manager harmless
from and defend Landlord and the Affiliates and its property manager against any
and all claims or liabilities for any injury or death to any person or damage to
any property whatsoever:
1. Either (i) occurring in, on, or about the Premises, or (ii) occurring
in, on, or about any facilities including, without limitation, elevators,
stairways, passageways or hallways the use of which Tenant may have in
conjunction with other tenants of the Building, when such injury, death or
damage shall be caused in part or in whole by the act, neglect or fault of, or
omission of any duty with respect to the same by Tenant, its agents, employees,
contractors, invitees, licensees, tenants, or assignees;
2. Arising from any work or thing whatsoever done by or benefitting the
Tenant in or about the Premises or from transactions of the Tenant concerning
the Premises (which indemnification shall be proportionate to the benefit to
Tenant with respect to matters done by other parties which benefit Tenant and
other tenants of the Building);
3. Arising from any breach or default on the part of the Tenant in the
performance of any covenant or agreement on the part of the Tenant to be
performed pursuant to the terms of this Lease; or
4. Otherwise arising from any act or neglect of the Tenant, or any of its
agents, employees, contractors, invitees, licensees, tenants or assignees; and
5. From and against all costs, expenses, reasonable counsel fees, and court
costs incurred or assessed in connection with any or all of the foregoing.
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Furthermore, in case any action or proceeding be brought against Landlord and/or
Landlord's property manager by reason of any claims or liability as set forth
above, Tenant agrees to cause such action or proceeding to be defended at
Tenant's sole expense by counsel reasonably satisfactory to Landlord. The
provisions of this Lease with respect to any claims or liability occurring or
caused prior to any expiration or termination of this Lease shall survive
expiration or termination.
ARTICLE XXI - DEFAULT AND REMEDIES
----------------------------------
21.01 In the event:
(a) Tenant shall at any time fail to pay any item of Rent within five (5)
days of the date due; or
(b) Tenant shall fail to keep, perform or observe any other covenant,
agreement, condition or undertaking hereunder and shall fail to remedy
such default within ten (10) days after written notice thereof to
Tenant; or if such default is one that will take longer than ten (10)
days to remedy, Tenant fails to commence curing such default within
ten (10) days and/or fails diligently to pursue such cure to
completion; or
(c) The Premises shall be vacated by Tenant for any period for which
Tenant has not paid its Rent;
Landlord shall have the right, without further notice or demand,
to re-enter and take exclusive possession of the Premises in
accordance with law, with or without force or legal process, and
to refuse to allow Tenant to enter the same or have possession
thereof; to change the locks on the doors to the Premises; take
possession of any furniture or other property in or upon the
Premises (Tenant hereby waiving the benefit of all exemptions by
law), sell the same at public or private sale without notice and
apply the proceeds thereof to the costs of sale, payment of
damages and payment of the rent due under this Lease; and pursue
any other remedy permitted by law; all without being liable to
Tenant for any damages or to any prosecution therefor; and
(i) To terminate Tenant's right of possession of the Premises, in
which event Landlord may, but shall be under no obligation
(except to the extent required by law) to act as agent of Tenant
to relet the Premises for the balance of the Term or for a
shorter or longer term and receive the rents therefor, applying
them first to the payment of damages suffered to the Premises and
rents due and to become due under this Lease, Tenant remaining
liable for and hereby agreeing to pay Landlord any deficiency; or
(ii) To cancel and terminate the remaining Term of this Lease,
re-enter and take possession of the Premises free of this Lease
and thereafter this Lease shall be null and void and the rents in
such case shall be apportioned and paid on and up to the date of
such entry. Thereafter both parties shall be released and
relieved from any of any and all obligations thereafter to accrue
hereunder. Tenant shall be liable for all loss and damage
resulting from such breach or default; or
(iii) To treat such default as an anticipatory breach of this
Lease and, as liquidated damages for such default, be entitled to
the difference, if any, between
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the sum which, at the time of such termination for anticipatory
breach represents the then present worth (computed at seven
percent per year) of the excess aggregate rents and additional
rents payable hereunder that would have accrued over the balance
of the Term including extensions, had such term not been
prematurely terminated, over the aggregate market rental value of
the Premises over the Term (including extensions) that the Lease
would have run had it not been prematurely terminated.
21.02 Landlord's Right to Cure. Landlord may, but shall not be obligated to,
cure any default by Tenant (specifically including, but not by way of
limitation, Tenant's failure to obtain insurance, make repairs, or satisfy lien
claims); and whenever Landlord so elects, all reasonable costs and expenses paid
by Landlord in curing such default, including without limitation reasonable
attorneys' fees, shall be so much Additional Rent due on the next rent date
after such payment, together with interest (except in the case of said
attorneys' fees) at the highest legal rate then payable by Tenant in the state
in which the Leased Premises are located or in the absence of such a maximum
rate at the rate of eighteen percent (18%) per annum, from the date of the
advance to the date of repayment by Tenant to Landlord.
21.03 Remedies Cumulative. All rights and remedies provided in this Lease for
Landlord's protection shall be cumulative and in addition to any other rights
and remedies provided by law. Landlord shall be entitled to recover from Tenant
its reasonable attorneys' fees incurred in enforcing its rights hereunder.
21.04 No Waiver. A waiver by Landlord of a breach or default by Tenant under the
terms and conditions of this Lease shall not be construed to be a waiver of any
subsequent breach or default nor of any other term or condition of this Lease,
and the failure of Landlord to assert any breach or to declare a default by
Tenant shall not be construed to constitute a waiver thereof so long as such
breach or default continues unremedied.
21.05 No Reinstatement. No receipt of money by Landlord from Tenant after the
expiration or termination of this Lease or after the commencement of any suit,
or after final judgment for possession of the Premises shall reinstate continue
or extend the Term of this Lease or affect any such notice, demand or suit.
21.06 Default Under Other Leases. A default under this Lease by Tenant shall, at
Landlord's option, be deemed a default under any other leases between Landlord
and Tenant for space in the Building. Likewise, a default by Tenant under any
other such lease between Landlord and Tenant shall, at Landlord's option, be
deemed a default under this Lease.
ARTICLE XXII - DEFINITION OF LANDLORD/SALE/LANDLORD'S ASSIGNMENT OF LEASE
-------------------------------------------------------------------------
22.01 The words "Landlord" and "Tenant" as used herein shall include the
respective contracting party, whether singular or plural, and whether an
individual, masculine or feminine, or a partnership, joint venture, business
trust, or corporation. The provisions of this Lease shall inure to the benefit
of and be binding upon Landlord and Tenant, and their respective successors,
heirs, legal representatives, and assigns, subject, however, in the case of
Tenant to the provisions of Section 8.01 hereof. It is understood and agreed
that the term "Landlord," as used in this Lease means only the owner(s), or the
lessee(s), from time to time of the Building and/or the land underlying the
Building so that in the event of any sale or sales of the Building and/or the
land underlying the Building, or of any lease thereof, the Landlord named herein
shall be and hereby is entirely freed and relieved of all covenants and
obligations of Landlord hereunder accruing thereafter to the extent of such sale
or lease, and it shall be deemed without further agreement that the purchaser,
or the lessee, as the case may be, has assumed and agreed, to the same extent,
to carry out any and all covenants and obligations of Landlord hereunder during
the period such
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party has possession of all or such portion of the Building and/or the land
underlying the Building which it has purchased or leased. Should all of the land
underlying the Building and the entire Building be severed as to ownership by
sale and/or lease, then, unless the Tenant is otherwise notified to the contrary
in writing, either the owner of the entire Building or the lessee of the entire
Building, as the case may be, that has the right to lease space in the Building
to tenants shall be deemed the "Landlord." Tenant shall be bound to any
succeeding landlord for all the terms, covenants, and conditions hereof and
shall execute any attornment agreement not in conflict herewith at the request
of any succeeding landlord.
ARTICLE XXIII - NOTICES
-----------------------
23.01 Except as otherwise herein provided, whenever by the terms of this Lease
notice shall or may be given either to Landlord or to Tenant, such notice shall
be in writing and shall be deemed to have been properly served if
hand-delivered, sent by commercial courier, or sent by certified mail, return
receipt requested, postage prepaid, at the address set forth at Sections 1.01(A)
and (B) above. The date of such hand-delivery or deposit with a commercial
courier shall be deemed the date of service; if mailed by certified mail, the
date of delivery indicated on the Return Receipt shall be deemed the date of
service.
ARTICLE XXIV - SECURITY DEPOSIT
-------------------------------
24.01 Upon execution of this Lease, Tenant shall deposit with Landlord the sum
set forth in Section 1.01(I) as security for the performance by Tenant of every
covenant and condition of this Lease. Said deposit may be commingled with other
funds of Landlord. If Tenant shall default with respect to any covenant or
condition of this Lease, Landlord may apply the whole or any part of such
security deposit to the payment of any sum in default or any sum which Landlord
may be required to spend by reason of Tenant's default. This includes, but is
not limited to, applying the security deposit first to any restoration and/or
cleanup costs necessary over and above normal wear and tear of the vacated
space. If at any time Landlord properly applies all or any portion of the
security deposit as provided herein, Tenant shall, within thirty (30) days after
written notice of such application, cause the security deposit to be replenished
to the full amount provided for herein. It is understood that the security
deposit is not to be considered as the last month's rent under the Lease. Should
Tenant comply with all of the covenants and conditions of this Lease, the
security deposit or any balance thereof shall be returned to Tenant, without
interest, at the expiration of the Term hereof.
24.02 In lieu of a cash security deposit, Tenant may furnish Landlord an
Irrevocable Letter of Credit (the "LC") for the benefit of Landlord in the
amount of the required security deposit, which LC Landlord may draw upon in the
event of a default by Tenant hereunder, or on account of Tenant's failure to
renew an expiring LC as set forth below. The LC shall be issued by a bank
reasonably satisfactory to Landlord and shall include such terms (including,
without limitation, the right to assignment of the LC without cost to Landlord
to a successor landlord) as Landlord may reasonably request. The LC shall
provide that Landlord may draw on the LC by furnishing a sight draft in the
amount demanded together with a statement certified by Landlord that then is an
outstanding default hereunder and Landlord is entitled to draw upon the LC in
the amount being demanded by Landlord as a result of such default. The initial
LC shall be valid for at least one (1) year and Tenant shall cause the LC to be
renewed no later than sixty (60) days prior to its expiration date and any
renewal shall be for at least one (1) year. If Tenant fails to renew an expiring
LC (and furnish Landlord the renewal document) at least thirty (30) days prior
to an expiration, Landlord, with not less than sixty (60) days prior written
notice to Tenant, shall be entitled thereafter to draw upon the LC in the full
amount of the LC (unless a renewal or replacement LC is provided during said ten
(10) day period) in which event Landlord shall retain said money as a cash
security deposit hereunder. If at any time Landlord draws upon the LC (except to
the extent the LC is converted to a cash security deposit), Tenant shall, within
thirty (30) days thereafter, cause the LC to be replenished to the full amount
provided for herein.
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24.03 If Tenant has not, at any time prior to the date on which each of the
following reductions shall occur, been in monetary default or any other default
under this Lease, the security deposit required hereunder shall be reduced as
follows: (a) at the end of the Second Lease Year to Four Hundred Thousand and
00/100 Dollars ($400,000.00), (b) at the end of the Fourth Lease Year to Two
Hundred Thousand and 00/100 Dollars ($200,000.00), and (c) at the end of the
Sixth Lease Year to an amount equal to three (3) months of Base Rent plus
Additional Rent. In such event, Landlord shall promptly refund the excess
security deposit to Tenant (if in the form of cash) or cooperate with Tenant's
efforts to reduce the amount available under any LC posted as a security deposit
or the return of any such security deposit and replacement of the same with an
LC in the correct amount, as the case may be.
ARTICLE XXV - MISCELLANEOUS
---------------------------
25.01 Persons Bound. The agreements, covenants and conditions of this Lease
shall be binding upon and inure to the benefit of the heirs, legal
representatives, successors and assigns of each of the parties hereto, except
that no assignment, encumbrance or subletting by Lessee, unless permitted by the
provisions of this Lease, shall vest any right in the assignee, encumbrancee or
sublessee of Tenant. If there be more than one Tenant herein named, the
provisions of the Lease shall be applicable to and binding upon such Tenant
jointly and severally, as well as their heirs, legal representatives, successors
and assigns.
25.02 Partial Invalidity. If any term, covenant, condition or provision of this
Lease or the application thereof to any person or circumstance shall, to any
extent be invalid, unenforceable or violate a party's legal rights, then such
term, covenant, condition or provision shall be deemed to be null and void and
unenforceable, however, all other provisions of this Lease, or the application
of such term or provision to persons or circumstances other than those to which
are held invalid, unenforceable or violative of legal rights, shall not be
affected thereby, and each and every other term, condition, covenant and
provision of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
25.03 Captions. The headings and captions used throughout this Lease are for
convenience and reference only and shall in no way be held to explain, modify,
amplify, or aid in the interpretation, construction or meaning of any provisions
in this Lease. The words "Landlord" and "Tenant" wherever used in this Lease
shall be construed to mean plural where necessary, and the necessary grammatical
changes required to make the provisions hereof apply either to corporation,
partnerships, or individuals, men or women, shall in all cases be assumed as
though in each case fully expressed.
25.04 No Option. Submission of this instrument for examination does not
constitute a reservation of nor option for the Premises. The instrument does not
become effective as a lease or otherwise until execution and delivery by both
Landlord and Tenant.
25.05 Brokers. Tenant represents that it has dealt directly with and only with
the broker or brokers set forth at Section 1.01(L) above, and that Tenant knows
of no other broker who negotiated this Lease or is entitled to any commission in
connection herewith. Tenant agrees to indemnify, defend and hold harmless
Landlord from and against any commissions or claims by any other broker or
brokers pertaining to Tenant's having entered into this Lease.
25.06 Applicable Law. This Lease, its interpretation and enforcement shall be
governed by the laws of the state in which the Premises are located.
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25.07 Tenant's Compliance with Laws and Ordinances. Tenant covenants throughout
the Term, at Tenant's sole cost and expense, promptly to comply with all laws
and ordinances and the orders, rules and regulations and requirements of all
federal, state and municipal governments and appropriate departments,
commissions, boards, and officers thereof, and of any applicable insurance
rating agency, or any other body now or hereafter constituted exercising similar
functions, foreseen or unforeseen, ordinary as well as extraordinary, and
whether or not the same require structural repairs or alterations, which may be
applicable to the Premises, or the use or manner of use of the Premises;
provided, however, that Tenant shall not be responsible for structural repairs
or alterations unless the requirement for such structural repairs and
alterations is caused by Tenant's particular use or occupancy (as distinguished
from the general type of use or occupancy permitted by the applicable zoning
ordinance). Tenant will likewise observe and comply with the requirements of all
policies of public liability, fire and all other policies of insurance at any
time in force with respect to the buildings and improvements on the Premises and
the equipment thereof.
25.08 Waiver of Jury. Landlord and Tenant agree that, to the extent permitted by
law, each shall and hereby does waive trial by jury in any action, proceeding or
counterclaim brought by either against the other on any matter whatsoever
arising out of or in any way connected with this Lease.
25.09 Allocation of Rent. Landlord and Tenant agree that no portion of the Base
Rent paid by Tenant during the portion of the term of this Lease occurring after
the expiration of any period during which such rent was abated shall be
allocated by Landlord or Tenant to such rent abatement period, nor is such rent
intended by the parties to be allocable to any abatement period.
25.10 Financial Information. If Landlord shall request financial information
from Tenant in connection with a proposed sale or financing of the Building, for
the purpose of satisfying the due diligence investigation requirements of a
proposed purchaser or lender, Tenant will provide such information as will allow
Landlord to satisfy the reasonable requirements of such proposed purchaser or
lender.
ARTICLE XXVI - HAZARDOUS SUBSTANCES AND MATERIALS
-------------------------------------------------
26.01 A. During the Term of this Lease, Tenant shall not suffer, allow, permit
or cause the generation, accumulation, storage, possession, release or threat of
release of "hazardous substances", "pollutants", "hazardous waste", or "toxic
materials" (as those terms are used in the Comprehensive Environmental Response
Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. ss.ss. 9601 et
seq., as amended, the Resource Conservation and Recovery Act of 1976, 42 U.S.C.
6901, et seq., as amended, the Toxic Substance Control Act (or any regulations
promulgated under the foregoing) or any other present or future federal, state
or local law, ordinance, rule or regulation), including extremely flammable
substances, explosives, radioactive materials and petroleum/petroleum products
(collectively, "Hazardous Substances"); provided, however, the foregoing
prohibition shall not be applicable to (i) Hazardous Substances which are
present at the Premises prior to the date hereof, or (ii) normal and reasonable
amounts of such substances which are reasonably necessary for the permitted use
of the Premises so long as such materials are properly, safely, and lawfully
stored and used by Tenant and the quantity of same does not equal or exceed a
"reportable quantity" as defined under 40 C.F.R. 302 and 305, as amended.
B. Tenant shall notify Landlord immediately upon learning that any duty of
Tenant described in paragraph A of this Section 26.01 has been violated, or that
the Premises are subject to any third party claim or action, or threat thereof,
because of any environmental condition in or originating from the Premises or
arising in connection with Tenant's operations at the Premises or at the
Building or Site. Tenant shall promptly provide Landlord with copies of all
correspondence to or from third parties
-22-
regarding such claims or actions or regarding environmental conditions in or
originating from Tenant's operations in the Premises or at the Building or Site.
C. Tenant shall indemnify and hold harmless Landlord (as well as Landlord's
officers, directors, shareholder, employees, partners, servants and agents,
including the property manager) (the "Indemnified Parties") of and from any and
all liabilities (including strict liabilities), penalties, demands, actions,
costs and expenses (including without limitation reasonable legal fees),
remediation and response costs, remediation plan preparation costs and any
continuing monitoring or closure costs, incurred or suffered by the Indemnified
Parties, or asserted by a third party against the Indemnified Parties, directly
or indirectly arising due to the breach of Tenant's obligations set forth in
this Article. Such indemnification shall survive expiration or earlier
termination of this Lease.
ARTICLE XXVII - OPTION TO EXTEND
--------------------------------
27.01 Tenant shall have the option to extend the Term of the Lease for one (1)
period of five (5) years (the "Renewal Period") upon all of the terms, covenants
and conditions contained in the Lease except that Base Rent for the Renewal
Period shall be equal to the Renewal Rate (as defined below). Tenant shall be
entitled to exercise its option to extend hereunder so long as (i) Tenant shall
have delivered to Landlord written notice of its election to exercise such
option on or before July 31, 2012, and (ii) Tenant shall not be in default of
any non-monetary or material non-monetary obligations or covenants under this
Lease on the date on which Tenant exercises its option to extend, or at any time
through and including the commencement date of the Renewal Period.
27.02 Within thirty (30) days of its receipt of notice from Tenant of Tenant's
election to exercise its renewal option, Landlord shall notify Tenant of the
Renewal Rate to be charged as Base Rent for the Renewal Period. As used herein,
the term "Renewal Rate" shall mean the rental rates then being charged to
tenants of comparable size to Tenant in comparable buildings in the area. Tenant
shall have thirty (30) days to notify Landlord in writing of its desire to
accept the Renewal Rate or object to the Renewal Rate. If Tenant rejects the
Renewal Rate, Landlord and Tenant shall attempt to negotiate a mutually
acceptable Renewal Rate. If, after thirty (30) days, Landlord and Tenant are
unable to reach agreement on the Renewal Rate, then this Lease shall terminate
on the last day of the initial Term and the Term of the Lease shall not be
extended pursuant to this Article XXVII.
ARTICLE XXVIII - RIGHT OF FIRST OFFER FOR CONTIGUOUS EXPANSION SPACE
--------------------------------------------------------------------
28.01 Subject to the rights of existing tenants whose leases pre-date this
Lease, credit approval by Landlord and provided this Lease shall be in full
force and effect and Tenant shall not be in default under any monetary or
material non-monetary obligations or covenants this Lease at the time the
Contiguous Expansion Space (as hereinafter defined) becomes available, or at any
time through and including execution of a lease amendment by the Landlord for
the Contiguous Expansion Space, Tenant shall have a right of first offer to
lease the Contiguous Expansion Space during the Term of this Lease, subject to
the following terms, covenants and conditions:
A. Landlord shall provide Tenant with written notice of the availability
of the Contiguous Expansion Space when such space becomes available
and within Landlord's possession and control.
B. Tenant shall, within ten (10) business days of its receipt of such
notice, notify Landlord in writing sent certified mail, return receipt
requested, with postage prepaid thereon, that it elects to exercise
its right of first offer for the Contiguous Expansion Space. If Tenant
does not so notify Landlord, Tenant will be deemed to have waived its
right of first offer
-23-
with respect to the Contiguous Expansion Space and Landlord shall
thereafter have the right to let the space to any third party tenant.
C. Rent for the Contiguous Expansion Space shall be equal to the then
current Base Rent and Additional Rent payable hereunder for the
Premises.
D. If Tenant fails to execute and deliver an amendment to this Lease
consistent with the foregoing within fifteen (15) days after receipt
by Tenant of the subject lease amendment, then Tenant's previous
exercise of its right to lease the Contiguous Expansion Space shall be
deemed null and void and Landlord shall thereafter have the right to
let the space to any third party tenant.
E. The rights of Tenant under this Article XXVIII are personal and may
not be assigned to or exercised by any other party.
28.02 For purposes of this Lease, Contiguous Expansion Space shall mean the
existing unfinished rentable space in the Building located on the third floor
contiguous to the Premises.
28.03 Tenant's Right of First Offer granted in this Article XXVIII shall
automatically terminate upon the earlier to occur of (i) the expiration or
termination of this Lease, (ii) the termination of Tenant's right to possession
of the Premises, (iii) the assignment of this Lease by Tenant or the sublease by
Tenant of the Premises to any party other than its parent company or a
subsidiary of Tenant, or any part thereof, and (iv) the failure of Tenant to
timely or properly exercise its right of first offer as set forth in this
Article XXVIII.
ARTICLE XXIX - ENTIRE AGREEMENT
-------------------------------
29.01 This Lease contains the entire agreement between the parties and no
modification of this Lease shall be binding upon the parties unless evidenced by
an agreement in writing signed by the Landlord and the Tenant after the date
hereof. If there be more than one Tenant named herein, the provisions of this
Lease shall be applicable to and binding upon such tenants jointly and
severally.
ARTICLE XXX - EXHIBITS
----------------------
30.01 Reference is made to the Exhibits listed at Section 1.01(M) above, which
exhibits are attached hereto and incorporated herein by reference.
-24-
IN WITNESS WHEREOF, the parties have signed as of the date and year
hereinabove set forth.
TENANT: LANDLORD:
MEDICAL STAFFING NETWORK , INC, CANTERA H-6 LLC,
A Delaware corporation ______________ an Illinois limited liability company
By: /s/ Larry McPherson By: McShane Corporation, an Illinois
corporation, its Member
Its: Chief Financial Officer
By: /s/ Anthony Pricco
Its: Authorized Signatory
By: Cantera Investors, L.L.C., an
Illinois limited liability company,
its Member
By: Globe Development Corporation,
its Managing Member
By: /s/ Bert Getz Jr.
Its: Authorized Signatory
-25-
EXHIBIT A
ATTACHED TO AND MADE PART OF
LEASE DATED JANUARY 24, 2005
BETWEEN CANTERA H-6 LLC, AS LANDLORD AND
MEDICAL STAFFING NETWORK , INC, AS TENANT
LEGAL DESCRIPTION
-----------------
LOT 2 IN CANTERA H5 AND H6 RESUBDIVISION OF LOT 5 IN CANTERA H5 THROUGH H8
ZONING RESUBDIVISION BEING A RESUBDIVISION OF PART OF THE SOUTHWEST QUARTER OF
SECTION 1, TOWNSHIP 38 NORTH, RANGE 9 EAST OF THE THIRD PRINCIPAL MERIDIAN, AND
LOT 1 IN CANTERA H6 AND H7 RESUBDIVISION BEING A RESUBDIVISION OF PART OF THE
SOUTHWEST QUARTER OF SAID SECTION 1, ACCORDING TO THE PLAT THEREOF RECORDED
SEPTEMBER 26, 2000 AS DOCUMENT NUMBER R2000-149708, IN DUPAGE COUNTY, ILLINOIS.
-26-
EXHIBIT B
ATTACHED TO AND MADE PART OF
LEASE DATED JANUARY 24, 2005
BETWEEN CANTERA H-6 LLC, AS LANDLORD AND
MEDICAL STAFFING NETWORK, INC, AS TENANT
RULES AND REGULATIONS
---------------------
1. Landlord may from time to time adopt appropriate systems and procedures
for the security or safety of the Building, or any equipment, furnishings, or
contents of the Building, and, upon written notice from Landlord regarding same,
Tenant will comply with Landlord's reasonable requirements relative to such
systems and procedures.
2. The sidewalks, halls, passages, exits, entrances, elevators, and
stairways of the Building shall not be obstructed by Tenant or used by Tenant
for any purpose other than for ingress to and egress from the Premises. The
halls, passages, exits, entrances, elevators, escalators, and stairways are not
for the general public, and Landlord shall in all cases retain the right to
control and prevent access to such halls, passages, exits, entrances, elevators,
and stairways of all persons whose presence in the judgment of Landlord would be
prejudicial to the safety, character, reputation, and interests of the Building,
provided that nothing contained in these Rules and Regulations shall be
construed to prevent such access to persons with whom any Tenant normally deals
in the ordinary course of its business, unless such persons are engaged in
illegal activities. Neither Tenant nor any employee or invitee of Tenant shall
go upon the roof of the Building. Tenant shall not be permitted to place or
install any object (including without limitation radio and television antennas,
loudspeakers, sound amplifiers, microwave dishes, solar devices, or similar
devices) on the exterior of the Building or on the roof of the Building.
3. Other than draperies expressly permitted by Landlord and building
standard mini-blinds, material visible from outside the building shall not be
permitted. In the event of the violation of this rule by Tenant, Landlord may
remove the violating items without any liability, and may charge the expense
incurred by such removal to the Tenant.
4. No cooking shall be done or permitted by Tenant on the Premises, except
in areas of the Premises which are specially constructed for cooking and except
that use by the Tenant of microwave ovens and Underwriters' Laboratory approved
equipment for brewing coffee, tea, hot chocolate, and similar beverages shall be
permitted, provided that such use is in accordance with all applicable federal,
state, and city laws, codes, ordinances, rules, and regulations.
5. Tenant shall not employ any person or persons other than the cleaning
service of Landlord for the purpose of cleaning the Premises, unless otherwise
agreed to by Landlord in writing. Except with the written consent of Landlord,
which consent shall not be unreasonably withheld, conditioned or delayed, no
person or persons other than those approved by Landlord shall be permitted to
enter the Building for the purpose of cleaning it. Tenant shall not cause any
unnecessary labor by reason of tenant's carelessness or indifference in the
preservation of good order and cleanliness. Should Tenant's actions result in
any increased expense for any required cleaning, Landlord reserves the right to
assess Tenant for such expenses.
6. The toilet rooms, toilets, urinals, wash bowls and other plumbing
fixtures shall not be used for any purposes other than those for which they were
constructed, and no sweepings, rubbish, rags, or other foreign substances shall
be thrown in such plumbing fixtures. All damages resulting from any misuse of
the fixtures shall be borne by the tenant who, or whose servants, employees,
agents, visitors, or licensees, caused the same.
-27-
7. Tenant shall not in any way deface any part of the Premises or the
Building of which they form a part.
8. Tenant shall not alter, change, replace, or re-key any lock or install a
new lock or a knocker on any door of the Premises. Landlord, its agents, or
employees shall retain a pass (master) key to all door locks on the Premises.
Any new door locks required by Tenant or any change in keying of existing locks
shall be installed or changed by Landlord following Tenant's written request to
Landlord and shall be at Tenant's expense. All new locks and re-keyed locks
shall remain operable by Landlord's pass (master) key. Tenant, upon termination
of its tenancy, shall deliver to Landlord all keys and access cards for the
Premises and Building that have been furnished to Tenant.
9. The elevator designated for freight by Landlord shall be available for
use by Tenant during the hours and pursuant to such procedures as Landlord may
determine from time to time. The persons employed to move Tenant's equipment,
material, furniture, or other property in or out of the Building must be
reasonably acceptable to Landlord. The moving company must be a locally
recognized professional mover, whose primary business is the performing of
relocation services, and must be bonded and fully insured. A certificate or
other verification of such insurance must be received and approved by Landlord
prior to the start of any moving operations. Insurance must be sufficient, in
Landlord's sole reasonable opinion, to cover all personal liability, theft or
damage to the Project, including but not limited to floor coverings, doors,
walls, elevators, stairs, foliage, and landscaping. Special care must be taken
to prevent damage to foliage and landscaping during adverse weather. All moving
operations shall be conducted at such times and in such a manner as Landlord
shall reasonably direct, and all moving shall take place during non-business
hours unless Landlord agrees in writing otherwise. Tenant shall be responsible
for the provision of Building security during all moving operations, and shall
be liable for all losses and damages sustained by any party as a result of the
failure to supply adequate security. Landlord shall have the right to prescribe
the weight, size, and position of all equipment, materials, furniture, or other
property brought into the Building. Heavy objects shall, if considered necessary
by Landlord, stand on wood strips of such thickness as is necessary to properly
distribute the weight. Except for the willful misconduct or negligence of
Landlord, its agents and employees, Landlord shall not be responsible for loss
of or damage to any such property from any cause, and all damage done to the
Building by moving or maintaining such property, to the extent caused by Tenant,
its agents and employees, shall be repaired at the expense of Tenant. Landlord
reserves the right to inspect all such property to be brought into the Building
and to exclude from the Building all such property which violates any of these
Rules and Regulations or the Lease of which these Rules and Regulations are a
part. Supplies, goods, materials, packages, furniture, and all other items of
every kind delivered to or taken from the Premises shall be delivered or removed
through the entrance and route designated by Landlord, and Landlord shall not be
responsible for the loss or damage of any such property unless such loss or
damage results from the negligence of Landlord, its agents, or employees.
10. Tenant shall not use or keep in the Premises or the Building any
kerosene, gasoline, or any flammable, combustible or explosive fluid or material
or chemical substance other than cleaning fluids and solvents required in
Tenant's normal operations in the Premises. Without Landlord's prior written
approval, which approval shall not be unreasonably withheld, conditioned or
delayed, Tenant shall not use any method of heating or air conditioning other
than that supplied by Landlord. Tenant shall not use or keep or permit to be
used or kept any foul or noxious gas or substance in the Premises.
11. Landlord shall have the right, exercisable upon written notice and
without liability to Tenant, to change the name and street address of the
Building.
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12. Landlord shall have the right to prohibit any advertising by Tenant
mentioning the Building that, in Landlord's reasonable opinion, tends to impair
the reputation of the Building or its desirability as a Building for offices,
and upon written notice from Landlord, Tenant shall refrain from or discontinue
such advertising.
13. Tenant shall not bring any animals (except "Seeing Eye" dogs or other
guide animals) or birds into the Building, and shall not permit bicycles or
other vehicles inside or on the sidewalks outside the Building except in areas
designated from time to time by Landlord for such purposes.
14. All persons entering or leaving the Building between the hours of 6
p.m. and 7 a.m. Monday through Friday, and at all hours on Saturdays, Sundays,
and holidays shall comply with such off-hour regulations as Landlord may
establish and modify from time to time.
15. Tenant shall store all its trash and garbage within its Premises. No
material shall be placed in the trash boxes or receptacles if such material is
of such nature that it may not be disposed of in the ordinary and customary
manner of removing and disposing of trash and garbage without being in violation
of any law or ordinance governing such disposal. All garbage and refuse disposal
shall be made only through entryways and elevators provided for such purposes
and at such times as Landlord designates. Removal of any furniture or
furnishings, large equipment, packing crates, packing materials, and boxes shall
be the responsibility of each Tenant and such items may not be disposed of in
the Building trash receptacles nor shall they be removed by the Building's
janitorial service, except at Landlord's sole option and at the Tenant's
expense. No furniture, appliances, equipment, or flammable products of any type
may be disposed of in the Building trash receptacles.
16. Canvassing, peddling, soliciting, and distributing handbills or any
other written materials in the Building are prohibited, and Tenant shall
cooperate to prevent the same.
17. Tenant shall see that the doors of the Premises are closed and locked
and that all water faucets, water apparatus, and utilities are shut off before
Tenant or Tenant's employees leave the Premises, so as to prevent waste or
damage, and for any default or carelessness in this regard Tenant shall make
good all injuries, to the extent caused as a result of Tenant's negligence or
default, which are sustained by other tenants or occupants of the Building or
Landlord.
18. Neither Landlord nor any operator of the parking areas within the
Project wherein the parking is located, as the same are designated and modified
by Landlord, in its sole discretion, from time to time (sometimes collectively
the "parking areas") shall be liable for loss of or damage to any vehicle or any
contents of such vehicle or accessories to any such vehicle, or any property
left in any of the parking areas, resulting from fire, theft, vandalism,
accident, conduct of other users of the parking areas and other persons, or any
other casualty or cause, with the exception of loss or damage to the extent
caused by the willful misconduct or negligence of Landlord, its agents and
employees. Further, Tenant understands and agrees that: (a) Landlord shall not
be obligated to provide any traffic control, security protection or operator for
the parking areas; (b) Tenant uses the parking areas at its own risk; and (c)
Landlord shall not be liable for personal injury or death, or theft, loss of, or
damage to property. Except as provided above, Tenant waives and releases
Landlord from any and all liability arising out of the use of the parking areas
by Tenant, its employees, agents, invitees, and visitors, whether brought by any
of such persons or any other person.
19. Tenant (including Tenant's employees, agents, invitees, and visitors)
shall use the parking described in the Lease solely for the purpose of parking
passenger cars, small vans, and small trucks and shall comply in all respects
with any rules and regulations that may be promulgated by Landlord from time to
time with respect thereto.
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20. Tenant has no right to assign, sublease or sublicense, as the case may
be, any of its rights in the parking, except as part of a permitted assignment
or sublease of the Lease. However, Tenant may allocate the parking among its
employees, visitors and students.
21. The delivery of keys to any employee or agent of Landlord shall not
operate as a termination of the Lease or a surrender of the Premises unless such
delivery of keys is done in connection with a written instrument executed by
Landlord approving the Termination or surrender.
22. As used in these Rules and Regulations, the word "Tenant" includes the
employees, agents, invitees, and licensees of Tenant and others permitted by
Tenant to use or occupy the Premises.
23. Landlord shall have the right to designate all or any portion of the
Building and/or Project as a non-smoking facility at any time during the Term.
24. These rules and regulations are in addition to, and shall not be
construed to modify or amend, in whole or in part, the terms, covenants,
agreements, and conditions of the Lease.
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EXHIBIT C
ATTACHED TO AND MADE PART OF
LEASE DATED JANUARY 24, 2005
BETWEEN CANTERA H-6 LLC, AS LANDLORD AND
MEDICAL STAFFING NETWORK, INc, AS TENANT
SPACE PLAN
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