Exhibit 4.11
24 NEW ENGLAND EXECUTIVE PARK
BURLINGTON, MASSACHUSETTS
OFFICE LEASE AGREEMENT
BETWEEN
EOP-NEW ENGLAND EXECUTIVE PARK, L.L.C.,
a Delaware limited liability company
("LANDLORD")
AND
FUNDTECH CORPORATION, a Delaware corporation
("TENANT")
OFFICE LEASE AGREEMENT
This Office Lease Agreement (the "Lease") is made and entered into as of
the 28th day of August, 2000, by and between EOP-NEW ENGLAND EXECUTIVE PARK,
L.L.C., a Delaware limited liability company ("Landlord"), and FUNDTECH
CORPORATION, a Delaware corporation ("Tenant").
I. Basic Lease Information.
A. "Building" shall mean the building located at 24 New England
Executive Park, and commonly known as 24 New England Executive Park.
B. "Rentable Square Footage of the Building" is deemed to be 97,929
square feet.
C. "Premises" shall mean the area shown on Exhibit A to this Lease. The
Premises are located on floor 3. The "Rentable Square Footage of the
Premises" is deemed to be 16,909 rentable square feet. If the
Premises include one or more floors in their entirety, all corridors
and restroom facilities located on such full floor(s) shall be
considered part of the Premises. Landlord and Tenant stipulate and
agree that the Rentable Square Footage of the Building and the
Rentable Square Footage of the Premises are correct and shall not be
remeasured.
D. "Base Rent":
Annual Rate Annual Monthly
Period Per Square Foot Base Rent Base Rent
------ --------------- --------- ---------
Commencement Date-
Termination Date: $35.00 $591,815.04 $49,317.92
E. "Tenant's Pro Rata Share": 17.2666%.
F. "Base Year" for Taxes: Fiscal Year 2001; "Base Year" for Expenses:
Calendar Year 2001.
G. "Term": A period of 60 months. The Term shall commence on October 1,
2000 (the "Commencement Date") and, unless terminated early in
accordance with this Lease, end on September 30, 2005 (the
"Termination Date"). However, if Landlord is required to
Substantially Complete (defined in Section III.A) any Landlord Work
(defined in Section I.O.) prior to the Commencement Date under the
terms of a Work Letter (defined in Section 1.O): (1) the date set
forth in the prior sentence as the "Commencement Date" shall instead
be defined as the "Target Commencement Date" by which date Landlord
will use reasonable efforts to Substantially Complete the Landlord
Work; and (2) the actual "Commencement Date" shall be the date on
which the Landlord Work is Substantially Complete, as determined by
Section III.A. In such circumstances, the Termination Date will
instead be the last day of the Term as determined based upon the
actual Commencement Date. Landlord's failure to Substantially
Complete the Landlord Work by the Target Commencement Date shall not
be a default by Landlord or otherwise render Landlord liable for
damages. Promptly after the determination of the Commencement Date,
Landlord and Tenant shall enter into a commencement letter agreement
in the form attached as Exhibit C.
H. Tenant allowance(s): $84,545.00 - See Exhibit D.
I. "Security Deposit": $295,907.52.
J. "Guarantor(s)": None.
K. "Broker(s)": Grubb & Ellis Company.
L. "Permitted Use": General business offices.
M. "Notice Addresses":
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Tenant:
On and after the Commencement Date, notices shall be sent to Tenant at
the Premises, Attn: Head of Massachusetts Office. Prior to and after
the Commencement Date, notices shall be sent to Tenant at the following
address:
Fundtech Corporation
30 Montgomery Street
Jersey City, NJ 07302
Attn: CFO
Phone #: ____________
Fax #: ______________
Fundtech Corporation
30 Montgomery Street
Jersey City, NJ 07302
Attn: General Counsel
Phone #: ___________
Fax #: ______________
Landlord: With a copy to:
EOP-New England Executive Park, L.L.C. Equity Office Properties
c/o Equity Office Properties Two North Riverside Plaza
Three New England Executive Park Suite 2200
Burlington, Massachusetts 01803 Chicago, Illinois 60606
Attention: Building Manager Attention: Northeast
Regional Counsel
Rent (defined in Section IV.A) is payable to the order of Equity
Office Properties
at the following address: EOP Operating Limited Partnership, as Agent
for EOP-New England Executive Park, L.L.C.
P.O. Box 30229
Hartford, CT 06150-0229.
N. "Business Day(s)" are Monday through Friday of each week, exclusive
of New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day ("Holidays"). Landlord may
designate additional Holidays, provided that the additional Holidays
are commonly recognized by other office buildings in the area where
the Building is located.
O. "Landlord Work" means the work, if any, that Landlord is obligated
to perform in the Premises pursuant to a separate work letter
agreement (the "Work Letter"), if any, attached as Exhibit D. If a
Work Letter is not attached to this Lease or if an attached Work
Letter does not require Landlord to perform any work, the occurrence
of the Commencement Date shall not be conditioned upon the
performance of work by Landlord and, accordingly, Section III.A.
shall not be applicable to the determination of the Commencement
Date.
P. "Law(s)" means all applicable statutes, codes, ordinances, orders,
rules and regulations of any municipal or governmental entity.
Q. "Normal Business Hours" for the Building are 8:00 A.M. to 6:00 P.M.
on Business Days and 8:00 A.M. to 1:00 P.M. on Saturdays.
R. "Property" means the Building and the parcel(s) of land on which it
is located.
S. "Fiscal Year" means the period July 1 to June 30.
II. Lease Grant.
Landlord leases the Premises to Tenant and Tenant leases the Premises
from Landlord, together with the right in common with others to use any portions
of the Property that are
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designated by Landlord for the common use of tenants and others, such as
sidewalks, unreserved parking areas, common corridors, elevator foyers,
restrooms, vending areas and lobby areas (the "Common Areas").
III. Adjustment of Commencement Date; Possession.
A. The Landlord Work shall be deemed to be "Substantially Complete" on
the date that all Landlord Work has been performed, other than any
details of construction, mechanical adjustment or any other similar
matter, the noncompletion of which does not materially interfere
with Tenant's use of the Premises, provided that the Premises shall
not be deemed to be "Substantially Completed" prior to the earlier
to occur of the date Landlord receives a temporary or permanent
certificate of occupancy allowing Tenant to occupy the Premises or
the date Landlord would have received such certificate absent any
Tenant Delays. However, if Landlord is delayed in the performance of
the Landlord Work as a result of any Tenant Delay(s) (defined
below), the Landlord Work shall be deemed to be Substantially
Complete on the date that Landlord could reasonably have been
expected to Substantially Complete the Landlord Work absent any
Tenant Delay. "Tenant Delay" means any act or omission of Tenant or
its agents, employees, vendors or contractors that actually delays
the Substantial Completion of the Landlord Work, including, without
limitation: (1) Tenant's failure to furnish information or approvals
within any time period specified in this Lease, including the
failure to prepare or approve preliminary or final plans by any
applicable due date; (2) Tenant's selection of equipment or
materials that have long lead times after first being informed by
Landlord in writing that the selection may result in a delay; (3)
changes requested or made by Tenant to previously approved plans and
specifications; (4) performance of work in the Premises by Tenant or
Tenant's contractor(s) during the performance of the Landlord Work,
but only if such work by Tenant or its contractors interfere with
Landlord's Work; or (5) if the performance of any portion of the
Landlord Work depends on the prior or simultaneous performance of
work by Tenant, a delay by Tenant or Tenant's contractor(s) in the
completion of such work.
B. Subject to Landlord's obligation to perform Landlord Work and
Landlord's obligations under Section IX.B., the Premises are
accepted by Tenant in "as is" condition and configuration. By taking
possession of the Premises, Tenant agrees that the Premises are in
good order and satisfactory condition, and that there are no
representations or warranties by Landlord regarding the condition of
the Premises or the Building. Notwithstanding anything contained
herein to the contrary, Tenant shall have eleven (11) months from
the completion of the Landlord Work in which to discover and notify
Landlord of any latent defects in Landlord's Work. Landlord shall be
responsible for the correction of any latent defects with respect to
which it received timely notice from Tenant. Landlord, at its
option, may pursue such claims directly or assign any such
warranties to Tenant for enforcement. If Landlord is delayed
delivering possession of the Premises or any other space due to the
holdover or unlawful possession of such space by any party, Landlord
shall use reasonable efforts to obtain possession of the space. If
Landlord is required to Substantially Complete Landlord Work before
the Commencement Date, the Commencement Date and Termination Date
shall be determined by Section I.G.
C. If Tenant takes possession of the Premises before the Commencement
Date, such possession shall be subject to the terms and conditions
of this Lease and Tenant shall pay Rent (defined in Section IV.A.)
to Landlord for each day of possession before the Commencement Date.
However, except for the cost of services requested by Tenant (e.g.
freight elevator usage), Tenant shall not be required to pay Rent
for any days of possession before the Commencement Date during which
Tenant, with the approval of Landlord, is in possession of the
Premises for the sole purpose of performing improvements or
installing furniture, equipment or other personal property.
IV. Rent.
A. Payments. As consideration for this Lease, Tenant shall pay
Landlord, without any setoff or deduction, except as otherwise
expressly set forth herein the total amount of Base Rent and
Additional Rent due for the Term. "Additional Rent" means all sums
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(exclusive of Base Rent) that Tenant is required to pay Landlord.
Additional Rent and Base Rent are sometimes collectively referred to
as "Rent". Tenant shall pay and be liable for all rental, sales and
use taxes (but excluding income taxes), if any, imposed upon or
measured by Rent under applicable Law. Base Rent and recurring
monthly charges of Additional Rent shall be due and payable in
advance on the first day of each calendar month without notice or
demand, provided that the installment of Base Rent for the first
full calendar month of the Term shall be payable upon the execution
of this Lease by Tenant. All other items of Rent shall be due and
payable by Tenant on or before 30 days after billing by Landlord.
All payments of Rent shall be by good and sufficient check or by
other means (such as automatic debit or electronic transfer)
acceptable to Landlord. If Tenant fails to pay any item or
installment of Rent within 5 days of when due, Tenant shall pay
Landlord an administration fee equal to 5% of the past due Rent. If
the Term commences on a day other than the first day of a calendar
month or terminates on a day other than the last day of a calendar
month, the monthly Base Rent and Tenant's Pro Rata Share of any Tax
Excess (defined in Section IV.B.) or Expense Excess (defined in
Section IV.B.) for the month shall be prorated based on the number
of days in such calendar month. Landlord's acceptance of less than
the correct amount of Rent shall be considered a payment on account
of the earliest Rent due. No endorsement or statement on a check or
letter accompanying a check or payment shall be considered an accord
and satisfaction, and either party may accept the check or payment
without prejudice to that party's right to recover the balance or
pursue other available remedies. Tenant's covenant to pay Rent is
independent of every other covenant in this Lease.
B. Expense Excess and Tax Excess. Tenant shall pay Tenant's Pro Rata
Share of the amount, if any, by which Expenses (defined in Section
IV.C.) for each calendar year during the Term exceed Expenses for
the Base Year (the "Expense Excess") and also the amount, if any, by
which Taxes (defined in Section IV.D.) for each Fiscal Year during
the Term exceed Taxes for the Base Year (the "Tax Excess"). If
Expenses in any calendar year decrease below the amount of Expenses
for the Base Year, Tenant's Pro Rata Share of Expenses for that
calendar year shall be $0. If Taxes in any Fiscal Year decrease
below the amount of Taxes for the Base Year, Tenant's Pro Rata Share
of Taxes for that Fiscal Year shall be $0. Within 30 days prior to
the commencement of the calendar year in question, Landlord shall
provide Tenant with a good faith estimate of the Expense Excess and
of the Tax Excess for each calendar year during the Term, which
estimate shall be based on historical expenses and future
projections. On or before the first day of each month, Tenant shall
pay to Landlord a monthly installment equal to one-twelfth of
Tenant's Pro Rata Share of Landlord's estimate of the Expense Excess
and one-twelfth of Tenant's Pro Rata Share of Landlord's estimate of
the Tax Excess. If Landlord determines that its good faith estimate
of the Expense Excess or of the Tax Excess was incorrect by a
material amount, Landlord may provide Tenant with a revised
estimate. After its receipt of the revised estimate, Tenant's future
monthly payments shall be based upon the revised estimate. If
Landlord does not provide Tenant with an estimate of the Expense
Excess or of the Tax Excess by January 1 of a calendar year, Tenant
shall continue to pay monthly installments based on the previous
year's estimate(s) until Landlord provides Tenant with the new
estimate. Upon delivery of the new estimate, an adjustment shall be
made for any month for which Tenant paid monthly installments based
on the previous year's estimate(s). Tenant shall pay Landlord the
amount of any underpayment within 30 days after receipt of the new
estimate. Any overpayment shall, at Tenant's election, be refunded
to Tenant within 30 days or credited against the next due future
installment(s) of Additional Rent. Notwithstanding the fact that
Tenant's Pro Rata Share of increases in Taxes over the Tax Base Year
is calculated on a Fiscal Year basis, Landlord shall be entitled to
bill Tenant for such amounts following the end of each calendar year
at the same time that Tenant will be billed for its Pro Rata Share
of increases in Expenses over the Expenses Base Year. For example,
during the calendar year 2002, Tenant, on a monthly basis as
provided below, shall pay Landlord an amount equal to one-twelfth
(1/12) of the estimated amount by which Taxes for the Fiscal Year
2002 (7/1/01 - 6/30/02) will exceed Taxes for the Tax Base Year.
Promptly following the date on which Landlord receives the quarterly
tax bill with respect to the actual amount of Taxes for Fiscal Year
2002, Landlord, as provided below, shall provide Tenant with a
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reconciliation of Tenant's actual Pro Rata Share of the amount by
which Taxes for the Fiscal Year 2002 exceed Taxes for the Tax Base
Year. Such reconciliation statement may be sent by Landlord
separately or together with Landlord's reconciliation of Tenant's
actual Pro Rata Share of the amount by which Expenses for the
calendar year 2002 exceed Expenses for the Expenses Base Year. If
the Tax Base Year is more than or less than twelve (12) months, the
Tax Base Year shall be adjusted pro-rata so that the Tax Base Year
is determined on a twelve (12) month basis. If any Fiscal Year after
the Tax Base Year is more than or less than twelve (12) months, then
such Fiscal Year shall be adjusted pro-rata so that such Fiscal Year
is determined on a twelve (12) month basis for the purposes of
calculating the Excess for such Fiscal Year. As soon as is practical
following the end of each calendar year, Landlord shall furnish
Tenant with a statement of the actual Expenses and Expense Excess
and the actual Taxes and Tax Excess for the prior calendar year.
Landlord shall use reasonable efforts to furnish the statement of
actual Expenses on or before June 1 of the calendar year immediately
following the calendar year to which the statement applies. If the
estimated Expense Excess and/or estimated Tax Excess for the prior
calendar year is more than the actual Expense Excess and/or actual
Tax Excess, as the case may be, for the prior calendar year,
Landlord shall apply any overpayment by Tenant against Additional
Rent due or next becoming due, provided if the Term expires before
the determination of the overpayment, Landlord shall refund, within
30 days after the expiration of the Term, any overpayment to Tenant
after first deducting the amount of Rent due. If the estimated
Expense Excess and/or estimated Tax Excess for the prior calendar
year is less than the actual Expense Excess and/or actual Tax
Excess, as the case may be, for such prior year, Tenant shall pay
Landlord, within 30 days after its receipt of the statement of
Expenses and/or Taxes, any underpayment for the prior calendar year.
C. Expenses Defined. "Expenses" means all costs and expenses incurred
in each calendar year in connection with operating, maintaining,
repairing, and managing the Building and the Property, including,
but not limited to:
1. Labor costs, including, wages, salaries, social security and
employment taxes, medical and other types of insurance, uniforms,
training, and retirement and pension plans, but excluding labor
costs for employees above the grade of general manager.
2. Management fees, the cost of equipping and maintaining a
management office, accounting and bookkeeping services, legal
fees not attributable to leasing or collection activity, and
other administrative costs. Landlord, by itself or through an
affiliate, shall have the right to directly perform or provide
any services under this Lease (including management services),
provided that the cost of any such services shall not exceed the
cost that would have been incurred had Landlord entered into an
arms-length contract for such services with an unaffiliated
entity of comparable skill and experience.
3. The cost of services, including amounts paid to service providers
and the rental and purchase cost of parts, supplies, tools and
equipment.
4. Premiums and deductibles paid by Landlord for insurance,
including workers compensation, fire and extended coverage,
earthquake, general liability, rental loss, elevator, boiler and
other insurance customarily carried from time to time by owners
of comparable office buildings.
5. Electrical Costs (defined below) and charges for water, gas,
steam and sewer, but excluding those charges for which Landlord
is reimbursed by tenants (and which are not billed separately to
a tenant of the Building for overtime consumption). "Electrical
Costs" means: (a) charges paid by Landlord for electricity; (b)
costs incurred in connection with an energy management program
for the Property; and (c) if and to the extent permitted by Law,
a fee for the services provided by Landlord in connection with
the selection of utility companies and the negotiation and
administration of contracts for electricity, provided that such
fee shall not exceed 50% of any savings obtained by Landlord.
Electrical Costs shall be adjusted as follows: (i) amounts
received by Landlord as reimbursement for
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above standard electrical consumption shall be deducted from
Electrical Costs; (ii) the cost of electricity incurred to
provide overtime HVAC to specific tenants (as reasonably
estimated by Landlord) shall be deducted from Electrical Costs;
and (iii) if Tenant is billed directly for the cost of building
standard electricity to the Premises as a separate charge in
addition to Base Rent, the cost of electricity to individual
tenant spaces in the Building shall be deducted from Electrical
Costs.
6. The amortized cost of capital improvements (as distinguished from
replacement parts or components installed in the ordinary course
of business) made to the Property which are: (a) performed
primarily to reduce operating expense costs or otherwise improve
the operating efficiency of the Property; or (b) required to
comply with any Laws that are enacted, or first interpreted to
apply to the Property, after the date of this Lease. The cost of
capital improvements shall be amortized by Landlord over the
lesser of the Payback Period (defined below) or 10 years. The
amortized cost of capital improvements may, at Landlord's option,
include actual or imputed interest at the rate that Landlord
would reasonably be required to pay to finance the cost of the
capital improvement. "Payback Period" means the reasonably
estimated period of time that it takes for the cost savings
resulting from a capital improvement to equal the total cost of
the capital improvement.
If Landlord incurs Expenses for the Property together with one or
more other buildings or properties, whether pursuant to a reciprocal
easement agreement, common area agreement or otherwise, the shared
costs and expenses shall be equitably prorated and apportioned
between the Property and the other buildings or properties. Expenses
shall not include: the cost of capital improvements (except as set
forth above); depreciation; interest (except as provided above for
the amortization of capital improvements); principal payments of
mortgage and other non-operating debts of Landlord; the cost of
repairs or other work to the extent Landlord is reimbursed by
insurance or condemnation proceeds; costs in connection with leasing
space in the Building, including brokerage commissions; lease
concessions, including rental abatements and construction
allowances, granted to specific tenants; costs incurred in
connection with the sale, financing or refinancing of the Building;
fines, interest and penalties incurred due to the late payment of
Taxes (defined in Section IV.D) or Expenses; organizational expenses
associated with the creation and operation of the entity which
constitutes Landlord; or any penalties or damages that Landlord pays
to Tenant under this Lease or to other tenants in the Building under
their respective leases. If the Building is not at least 95%
occupied during any calendar year or if Landlord is not supplying
services to at least 95% of the total Rentable Square Footage of the
Building at any time during a calendar year, Expenses shall, at
Landlord's option, be determined as if the Building had been 95%
occupied and Landlord had been supplying services to 95% of the
Rentable Square Footage of the Building during that calendar year.
If Tenant pays for its Pro Rata Share of Expenses based on increases
over a "Base Year" and Expenses for a calendar year are determined
as provided in the prior sentence, Expenses for the Base Year shall
also be determined as if the Building had been 95% occupied and
Landlord had been supplying services to 95% of the Rentable Square
Footage of the Building. The extrapolation of Expenses under this
Section shall be performed by appropriately adjusting the cost of
those components of Expenses that are impacted by changes in the
occupancy of the Building.
D. Taxes Defined. "Taxes" shall mean: (1) all real estate taxes and
other assessments on the Building and/or Property, including, but
not limited to, assessments for special improvement districts and
building improvement districts, taxes and assessments levied in
substitution or supplementation in whole or in part of any such
taxes and assessments and the Property's share of any real estate
taxes and assessments under any reciprocal easement agreement,
common area agreement or similar agreement as to the Property; (2)
all personal property taxes for property that is owned by Landlord
and used in connection with the operation, maintenance and repair of
the Property; and (3) all costs and fees incurred in connection with
seeking reductions in any tax liabilities described in (1) and (2),
including, without limitation, any costs incurred by Landlord for
compliance, review and appeal of tax liabilities. Without
limitation,
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Taxes shall not include any income, capital levy, franchise, capital
stock, gift, estate or inheritance tax. If an assessment is payable
in installments, Taxes for the year shall include the amount of the
installment and any interest due and payable during that year. For
all other real estate taxes, Taxes for that year shall, at
Landlord's election, include either the amount accrued, assessed or
otherwise imposed for the year or the amount due and payable for
that year, provided that Landlord's election shall be applied
consistently throughout the Term. If a change in Taxes is obtained
for any year of the Term during which Tenant paid Tenant's Pro Rata
Share of any Tax Excess, then Taxes for that year will be
retroactively adjusted and Landlord shall provide Tenant with a
credit, if any, based on the adjustment. Likewise, if a change is
obtained for Taxes for the Base Year, Taxes for the Base Year shall
be restated and the Tax Excess for all subsequent years shall be
recomputed. Tenant shall pay Landlord the amount of Tenant's Pro
Rata Share of any such increase in the Tax Excess within 30 days
after Tenant's receipt of a statement from Landlord. Landlord shall,
upon Tenant's written request, from time to time during the Term,
provide to Tenant a copy of the tax bill for the Tax Year in
question.
E. Audit Rights. Tenant may, within 90 days after receiving Landlord's
statement of Expenses, give Landlord written notice ("Review
Notice") that Tenant intends to review Landlord's records of the
Expenses for that calendar year. Within a reasonable time after
receipt of the Review Notice, Landlord shall make all pertinent
records available for inspection that are reasonably necessary for
Tenant to conduct its review. If any records are maintained at a
location other than the office of the Building, Tenant may either
inspect the records at such other location or pay for the reasonable
cost of copying and shipping the records. If Tenant retains an agent
to review Landlord's records, the agent must be with a licensed CPA
firm. Tenant shall be solely responsible for all costs, expenses and
fees incurred for the audit. Within 60 days after the records are
made available to Tenant, Tenant shall have the right to give
Landlord written notice (an "Objection Notice") stating in
reasonable detail any objection to Landlord's statement of Expenses
for that year. If Tenant fails to give Landlord an Objection Notice
within the 60 day period or fails to provide Landlord with a Review
Notice within the 90 day period described above, Tenant shall be
deemed to have approved Landlord's statement of Expenses and shall
be barred from raising any claims regarding the Expenses for that
year. If Tenant provides Landlord with a timely Objection Notice,
Landlord and Tenant shall work together in good faith to resolve any
issues raised in Tenant's Objection Notice. If Landlord and Tenant
determine that Expenses for the calendar year are less than
reported, Landlord shall provide Tenant with a credit against the
next installment of Rent in the amount of the overpayment by Tenant.
In addition, if Landlord and Tenant determine that Expenses for the
Building were less than stated by more than ten percent (10%),
Landlord, within thirty (30) days after its receipt of paid invoices
therefor from Tenant, shall reimburse Tenant for any reasonable
amounts paid by Tenant to third parties in performing such review by
Tenant. Likewise, if Landlord and Tenant determine that Expenses for
the calendar year are greater than reported, Tenant shall pay
Landlord the amount of any underpayment within 30 days. The records
obtained by Tenant shall be treated as confidential. In no event
shall Tenant be permitted to examine Landlord's records or to
dispute any statement of Expenses unless Tenant has paid and
continues to pay all Rent when due.
V. Compliance with Laws, Use.
The Premises shall be used only for the Permitted Use and for no other use
whatsoever. Tenant shall not use or permit the use of the Premises for any
purpose which is illegal, dangerous to persons or property or which, in
Landlord's reasonable opinion, unreasonably disturbs any other tenants of the
Building or interferes with the operation of the Building. Tenant shall comply
with all Laws, including the Americans with Disabilities Act, regarding the
operation of Tenant's business and the use, condition, configuration and
occupancy of the Premises. Tenant, within 10 days after receipt, shall provide
Landlord with copies of any notices it receives regarding a violation or alleged
violation of any Laws. As of the date hereof, Landlord has not received notice
from any governmental agencies that the Building is in violation of Title III of
the Americans with Disabilities Act. Tenant shall comply with the rules and
regulations of the Building attached as Exhibit B and such other reasonable
rules and regulations adopted by Landlord from time to time. Tenant shall also
cause its agents, contractors, subcontractors,
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employees, customers, and subtenants to comply with all rules and regulations.
Landlord shall not knowingly discriminate against Tenant in Landlord's
enforcement of the rules and regulations.
VI. Security Deposit.
The Security Deposit shall be delivered to Landlord upon the execution of
this Lease by Tenant and shall be held by Landlord without liability for
interest (unless required by Law) as security for the performance of Tenant's
obligations. The Security Deposit is not an advance payment of Rent or a measure
of Tenant's liability for damages. Landlord may, from time to time, without
prejudice to any other remedy, use all or a portion of the Security Deposit to
satisfy past due Rent or to cure any uncured default by Tenant. If Landlord uses
the Security Deposit, Tenant shall on demand restore the Security Deposit to its
original amount. Landlord shall return any unapplied portion of the Security
Deposit to Tenant within 45 days after the later to occur of: (1) the
determination of Tenant's Pro Rata Share of any Tax Excess and Expense Excess
for the final year of the Term; (2) the date Tenant surrenders possession of the
Premises to Landlord in accordance with this Lease; or (3) the Termination Date.
If Landlord transfers its interest in the Premises, Landlord may assign the
Security Deposit to the transferee and, following the assignment, Landlord shall
have no further liability for the return of the Security Deposit. Landlord shall
not be required to keep the Security Deposit separate from its other accounts.
The Security Deposit may be in the form of an irrevocable letter of credit
(the "Letter of Credit"), which Letter of Credit shall: (a) be in the amount of
$295,907.52; (b) be issued on the form attached hereto as Exhibit F with such
changes thereto as Landlord may approve (such approval will not be unreasonably
withheld); (c) name Landlord as its beneficiary; (d) be drawn on an FDIC insured
financial institution satisfactory to the Landlord; and (e) expire no earlier
than sixty (60) days after the Termination Date of this Lease. If Landlord
intends to assign Landlord's interest in the Lease, Tenant shall, upon notice
from Landlord, deliver to Landlord an amendment to the Letter of Credit naming
Landlord's assignee as the beneficiary thereof. If Tenant fails to deliver such
amendment within seven (14) days after notice from Landlord, Landlord shall have
the right to draw down the entire amount of the Letter of Credit and hold the
proceeds thereof as a Security Deposit in accordance with this Section VI. Any
amounts drawn down from the Letter of Credit shall be treated, for all intents
and purposes, as if such proceeds were the proceeds of a Security Deposit.
VII. Services to be Furnished by Landlord.
A. Landlord agrees to furnish Tenant with the following services: (1)
Water service for use in the lavatories on each floor on which the
Premises are located; (2) Heat and air conditioning in season during
Normal Business Hours, at such temperatures and in such amounts as are
standard for comparable buildings or as required by governmental
authority. Tenant, upon such advance notice as is reasonably required
by Landlord, shall have the right to receive HVAC service during hours
other than Normal Business Hours. Tenant shall pay Landlord the
standard charge for the additional service as reasonably determined by
Landlord from time to time, which charge, as of the date of this Lease,
is $25.00 per hour; (3) Maintenance and repair of the Property as
described in Section IX.B.; (4) Janitor service on Business Days. If
Tenant's use, floor covering or other improvements require special
services in excess of the standard services for the Building, Tenant
shall pay the additional cost attributable to the special services; (5)
Elevator service; (6) Electricity to the Premises for general office
use, in accordance with and subject to the terms and conditions in
Article X; and (7) such other services as Landlord reasonably
determines are necessary or appropriate for the Property.
B. Landlord's failure to furnish, or any interruption or termination of,
services due to the application of Laws, the failure of any equipment,
the performance of repairs, improvements or alterations, or the
occurrence of any event or cause beyond the reasonable control of
Landlord (a "Service Failure") shall not render Landlord liable to
Tenant, constitute a constructive eviction of Tenant, give rise to an
abatement of Rent, nor relieve Tenant from the obligation to fulfill
any covenant or agreement. However, if the Premises, or a material
portion of the Premises, is made untenantable for a period in excess of
3 consecutive Business Days as a result of the Service Failure, then
Tenant, as its sole remedy, shall be entitled to receive an abatement
of
8
Rent payable hereunder during the period beginning on the 4th
consecutive Business Day of the Service Failure and ending on the day
the service has been restored. If the entire Premises has not been
rendered untenantable by the Service Failure, the amount of abatement
that Tenant is entitled to receive shall be prorated based upon the
percentage of the Premises rendered untenantable and not used by
Tenant. In no event, however, shall Landlord be liable to Tenant for
any loss or damage, including the theft of Tenant's Property (defined
in Article XV), arising out of or in connection with the failure of any
security services, personnel or equipment. In the event that cessation
of services satisfying all of the conditions described above: (a)
continues for ninety (90) consecutive day(s); and (b) is not being
diligently remedied by Landlord, Tenant as its sole remedy, shall have
the right to elect to terminate this Lease within ten (10) days after
the expiration of said ninety (90) day period without penalty, by
delivering written notice to Landlord of its election thereof;
provided, however, if Landlord is diligently pursuing the repair or
restoration of the service, Tenant shall not be entitled to terminate
the Lease but rather Tenant's sole remedy shall be to abate Rent.
VIII. Leasehold Improvements.
All improvements to the Premises (collectively, "Leasehold Improvements")
shall be owned by Landlord and shall remain upon the Premises without
compensation to Tenant. However, Landlord, by written notice to Tenant within 30
days prior to the Termination Date, may require Tenant to remove, at Tenant's
expense: (1) Cable (defined in Section IX.A) installed by or for the exclusive
benefit of Tenant and located in the Premises or other portions of the Building;
and (2) any Leasehold Improvements that are performed by or for the benefit of
Tenant and, in Landlord's reasonable judgment, are of a nature that would
require removal and repair costs that are materially in excess of the removal
and repair costs associated with standard office improvements (collectively
referred to as "Required Removables"). Without limitation, it is agreed that
Required Removables include internal stairways, raised floors, personal baths
and showers, vaults, rolling file systems and structural alterations and
modifications of any type. Notwithstanding the foregoing, if Tenant so requests,
at the time which Tenant submits to Landlord the final construction plans for
Tenant's initial Leasehold Improvements, Landlord shall advise Tenant of those
Leasehold Improvements which shall be deemed to be Required Removables. The
Required Removables designated by Landlord shall be removed by Tenant before the
Termination Date, provided that upon prior written notice to Landlord, Tenant
may remain in the Premises for up to 5 days after the Termination Date for the
sole purpose of removing the Required Removables. Tenant's possession of the
Premises shall be subject to all of the terms and conditions of this Lease,
including the obligation to pay Rent on a per diem basis at the rate in effect
for the last month of the Term. Tenant shall repair damage caused by the
installation or removal of Required Removables. If Tenant fails to remove any
Required Removables or perform related repairs in a timely manner, Landlord, at
Tenant's expense, may remove and dispose of the Required Removables and perform
the required repairs. Tenant, within 30 days after receipt of an invoice, shall
reimburse Landlord for the reasonable costs incurred by Landlord.
Notwithstanding the foregoing, Tenant, at the time it requests approval for a
proposed Alteration (defined in Section IX.C), may request in writing that
Landlord advise Tenant whether the Alteration or any portion of the Alteration
will be designated as a Required Removable. Within 10 days after receipt of
Tenant's request, Landlord shall advise Tenant in writing as to which portions
of the Alteration, if any, will be considered to be Required Removables.
IX. Repairs and Alterations.
A. Tenant's Repair Obligations. Tenant shall, at its sole cost and
expense, promptly perform all maintenance and repairs to the Premises
that are not Landlord's express responsibility under this Lease, and
shall keep the Premises in good condition and repair, reasonable wear
and tear excepted. Tenant's repair obligations include, without
limitation, repairs to: (1) floor covering; (2) interior partitions;
(3) doors; (4) the interior side of demising walls; (5) electronic,
phone and data cabling and related equipment (collectively, "Cable")
that is installed by or for the exclusive benefit of Tenant and located
in the Premises or other portions of the Building; (6) supplemental air
conditioning units, private showers and kitchens, including hot water
heaters, plumbing, and similar facilities serving Tenant exclusively,
and (7) Alterations performed by contractors retained by Tenant,
including related HVAC balancing. All
9
work shall be performed in accordance with the rules and procedures
described in Section IX.C. below. If Tenant fails to make any repairs
to the Premises for more than 15 days after written notice from
Landlord (although notice shall not be required if there is an
emergency), Landlord may make the repairs, and Tenant shall pay the
reasonable cost of the repairs to Landlord within 30 days after receipt
of an invoice, together with an administrative charge in an amount
equal to 5% of the cost of the repairs.
B. Landlord's Repair Obligations. Landlord shall keep and maintain in good
repair and working order and make repairs to and perform maintenance
upon: (1) structural elements of the Building; (2) mechanical
(including HVAC), electrical, plumbing and fire/life safety systems
serving the Building in general; (3) Common Areas; (4) the roof of the
Building; (5) exterior windows of the Building; and (6) elevators
serving the Building. Landlord shall promptly make repairs (considering
the nature and urgency of the repair) for which Landlord is
responsible.
C. Alterations. Tenant shall not make alterations, additions or
improvements to the Premises or install any Cable in the Premises or
other portions of the Building (collectively referred to as
"Alterations") without first obtaining the written consent of Landlord
in each instance, which consent shall not be unreasonably withheld or
delayed. However, Landlord's consent shall not be required for any
Alteration that satisfies all of the following criteria (a "Cosmetic
Alteration"): (1) is of a cosmetic nature such as painting,
wallpapering, hanging pictures and installing carpeting; (2) is not
visible from the exterior of the Premises or Building; (3) will not
affect the systems or structure of the Building; and (4) does not
require work to be performed inside the walls or above the ceiling of
the Premises. However, even though consent is not required, the
performance of Cosmetic Alterations shall be subject to all the other
provisions of this Section IX.C. Prior to starting work, Tenant shall
furnish Landlord with plans and specifications reasonably acceptable to
Landlord; names of contractors reasonably acceptable to Landlord
(provided that Landlord may designate specific contractors with respect
to Building systems); copies of contracts; necessary permits and
approvals; evidence of contractor's and subcontractor's insurance in
amounts reasonably required by Landlord; and, where the cost of such
work exceeds $100,000.00, any security for performance that is
reasonably required by Landlord. Changes to the plans and
specifications must also be submitted to Landlord for its approval,
which approval shall not be unreasonably withheld or delayed.
Alterations shall be constructed in a good and workmanlike manner using
materials of a quality that is at least equal to the quality designated
by Landlord as the minimum standard for the Building. Landlord may
designate reasonable rules, regulations and procedures for the
performance of work in the Building and, to the extent reasonably
necessary to avoid disruption to the occupants of the Building, shall
have the right to designate the time when Alterations may be performed.
Tenant shall reimburse Landlord within 30 days after receipt of an
invoice for reasonable sums paid by Landlord for third party
examination of Tenant's plans for non-Cosmetic Alterations. In
addition, within 30 days after receipt of an invoice from Landlord,
Tenant shall pay Landlord a fee for Landlord's oversight and
coordination of any non-Cosmetic Alterations equal to 5% of the cost of
the non-Cosmetic Alterations. Upon completion, Tenant shall furnish
"as-built" plans (except for Cosmetic Alterations), completion
affidavits, full and final waivers of lien and receipted bills covering
all labor and materials. Tenant shall assure that the Alterations
comply with all insurance requirements and Laws. Landlord's approval of
an Alteration shall not be a representation by Landlord that the
Alteration complies with applicable Laws or will be adequate for
Tenant's use.
X. Use of Electrical Services by Tenant.
A. The parties acknowledge that the consumption of electricity in the
Premises (other than electricity consumed for the purposes of providing
the services which Landlord is required to provide hereunder) will be
measured by a separate sub-meter currently installed in the Premises.
Tenant shall reimburse Landlord for the entire cost of such electric
current as follows:
10
>
1. Commencing as of the Commencement Date and continuing until the
procedures set forth in Subparagraph 2 of this Paragraph A are
effected, Tenant shall pay to Landlord at the same time and in the
same manner that it pays its monthly payments of Base Rental
hereunder, estimated monthly payments on account of Tenant's
obligation to reimburse Landlord for electricity consumed in the
Premises.
2. Periodically after the Commencement Date, Landlord shall determine
the actual cost of electricity consumed by Tenant in the Premises
(i.e. by reading Tenant's sub-meter and by applying the actual
monthly electric rate(s) applicable to the preceding period) and
shall provide Tenant with written evidence of such calculation. If
the total of Tenant's estimated monthly payments on account of such
period is less than the actual cost of electricity consumed in the
Premises during such period, Tenant shall pay the difference to
Landlord when billed therefor. If the total of Tenant's estimated
monthly payments on account of such period is greater than the
actual cost of electricity consumed in the Premises during such
period, Tenant may credit the difference against its next
installment of rental or other charges due hereunder, except that if
such difference is determined after the end of the Term, Landlord
shall refund such difference to Tenant to the extent that such
difference exceeds any amounts then due from Tenant to Landlord.
3. After each adjustment, as set forth in Paragraph 2 above, the amount
of estimated monthly payments on account of Tenant's obligation to
reimburse Landlord for electricity in the Premises shall be adjusted
based upon the actual cost of electricity consumed during the
immediately preceding period.
B. Landlord shall have the exclusive right to select any company providing
electrical service to the Premises, to aggregate the electrical service
for the Building and Premises with other buildings, to purchase
electricity through a broker and/or buyers group and to change the
providers and manner of purchasing electricity. Landlord shall be
entitled to receive a fee (if permitted by Law) for the selection of
utility companies and the negotiation and administration of contracts
for electricity, provided that the amount of such fee shall not exceed
50% of any savings obtained by Landlord.
C. Tenant's use of electrical service shall not exceed, either in voltage,
rated capacity, use beyond Normal Business Hours or overall load, 7
watts per rentable square foot of the Premises for lights and plugs. If
Tenant requests permission to consume excess electrical service,
Landlord may refuse to consent or may condition consent upon conditions
that Landlord reasonably elects (including, without limitation, the
installation of utility service upgrades, meters, submeters, air
handlers or cooling units), and the additional usage (to the extent
permitted by Law), installation and maintenance cost shall be paid for
by Tenant. Landlord shall have the right to separately meter electrical
usage for the Premises and to measure electrical usage by survey or
other commonly accepted methods.
XI. Entry by Landlord.
Landlord, its agents, contractors and representatives may enter the
Premises to inspect or show the Premises (but Landlord will only show the
Premises to prospective tenants within 12 months prior to the expiration or
earlier termination of the Term), to clean and make repairs, alterations or
additions to the Premises, and to conduct or facilitate repairs, alterations or
additions to any portion of the Building, including other tenants' premises.
Except in emergencies or to provide janitorial and other Building services after
Normal Business Hours, Landlord shall provide Tenant with reasonable prior
notice of entry into the Premises, which may be given orally. If reasonably
necessary for the protection and safety of Tenant and its employees, Landlord
shall have the right to temporarily close all or a portion of the Premises to
perform repairs, alterations and additions. However, except in emergencies,
Landlord will not close the Premises if the work can reasonably be completed on
weekends and after Normal Business Hours. Entry by Landlord shall not constitute
constructive eviction or entitle Tenant to an abatement or reduction of Rent.
11
XII. Assignment and Subletting.
A. Except in connection with a Permitted Transfer (defined in Section
XII.E. below), Tenant shall not assign, sublease, transfer or encumber
any interest in this Lease or allow any third party to use any portion
of the Premises (collectively or individually, a "Transfer") without
the prior written consent of Landlord, which consent shall not be
unreasonably withheld if Landlord does not elect to exercise its
termination rights under Section XII.B below. Without limitation, it is
agreed that Landlord's consent shall not be considered unreasonably
withheld if: (1) with respect to a proposed assignment, the proposed
transferee's financial condition does not meet the criteria Landlord
uses to select Building tenants having similar leasehold obligations;
(2) the proposed transferee's business is not suitable for the Building
considering the business of the other tenants and the Building's
prestige, or would result in a violation of another tenant's rights;
(3) the proposed transferee is a governmental agency or occupant of the
Building; (4) Tenant is in default after the expiration of the notice
and cure periods in this Lease; or (5) any portion of the Building or
Premises would likely become subject to additional or different Laws as
a consequence of the proposed Transfer. Any attempted Transfer in
violation of this Article shall, at Landlord's option, be void. Consent
by Landlord to one or more Transfer(s) shall not operate as a waiver of
Landlord's rights to approve any subsequent Transfers. In no event
shall any Transfer or Permitted Transfer release or relieve Tenant from
any obligation under this Lease.
B. As part of its request for Landlord's consent to a Transfer, Tenant
shall provide Landlord with financial statements for the proposed
transferee (unless the transferee is a publicly held company), a
complete copy of the proposed assignment, sublease and other
contractual documents and such other information as Landlord may
reasonably request. Landlord shall, by written notice to Tenant within
30 days of its receipt of the required information and documentation,
either: (1) consent to the Transfer by the execution of a consent
agreement in a form reasonably designated by Landlord or reasonably
refuse to consent to the Transfer in writing; or (2) exercise its right
to terminate this Lease with respect to the portion of the Premises
that Tenant is proposing to assign or sublet. Any such termination
shall be effective on the proposed effective date of the Transfer for
which Tenant requested consent. Tenant shall pay Landlord a review fee
of $2,000.00 for Landlord's review of any Permitted Transfer or
requested Transfer, provided if Landlord's actual reasonable costs and
expenses (including reasonable attorney's fees) exceed $2,000.00,
Tenant shall reimburse Landlord for its actual reasonable costs and
expenses in lieu of a fixed review fee.
C. Tenant shall pay Landlord 50% of all rent and other consideration which
Tenant receives as a result of a Transfer that is in excess of the Rent
payable to Landlord for the portion of the Premises and Term covered by
the Transfer. Tenant shall pay Landlord for Landlord's share of any
excess within 30 days after Tenant's receipt of such excess
consideration. Tenant may deduct from the excess all reasonable and
customary expenses directly incurred by Tenant attributable to the
Transfer (other than Landlord's review fee), including brokerage fees,
legal fees and construction costs. If Tenant is in Monetary Default
(defined in Section XIX.A. below), Landlord may require that all
sublease payments be made directly to Landlord, in which case Tenant
shall receive a credit against Rent in the amount of any payments
received (less Landlord's share of any excess).
D. Except as provided below with respect to a Permitted Transfer, if
Tenant is a corporation, limited liability company, partnership, or
similar entity, and if the entity which owns or controls a majority of
the voting shares/rights at any time changes for any reason (including
but not limited to a merger, consolidation or reorganization), such
change of ownership or control shall constitute a Transfer. The
foregoing shall not apply so long as Tenant is an entity whose
outstanding stock is listed on a recognized security exchange, or if at
least 80% of its voting stock is owned by another entity, the voting
stock of which is so listed.
E. Tenant may assign its entire interest under this Lease to a successor
to Tenant by purchase, merger, consolidation or reorganization without
the consent of Landlord,
12
provided that all of the following conditions are satisfied (a
"Permitted Transfer"): (1) Tenant is not in default under this Lease;
(2) Tenant's successor shall own all or substantially all of the assets
of Tenant; (3) Tenant's successor shall have a net worth which is at
least equal to Tenant's net worth at the date of this Lease; (4) the
Permitted Use does not allow the Premises to be used for retail
purposes; and (5) Tenant shall give Landlord written notice at least 30
days prior to the effective date of the proposed purchase, merger,
consolidation or reorganization. Tenant's notice to Landlord shall
include information and documentation showing that each of the above
conditions has been satisfied. If requested by Landlord, Tenant's
successor shall sign a commercially reasonable form of assumption
agreement.
F. Notwithstanding anything to the contrary herein contained, but subject
to Section XII.C hereof, Tenant shall have the right, without
Landlord's prior consent, to sublet up to 5,000 rentable square feet of
the Premises for a sublet term not exceeding the 4th anniversary of the
Commencement Date to a transferee which satisfies the criteria set
forth in Section XII.A hereof
XIII. Liens.
Tenant shall not permit mechanic's or other liens to be placed upon the
Property, Premises or Tenant's leasehold interest in connection with any work or
service done or purportedly done by or for benefit of Tenant. If a lien is so
placed, Tenant shall, within 10 Business Days of notice from Landlord of the
filing of the lien, fully discharge the lien by settling the claim which
resulted in the lien or by bonding or insuring over the lien in the manner
prescribed by the applicable lien Law. If Tenant fails to discharge the lien,
then, in addition to any other right or remedy of Landlord, Landlord may bond or
insure over the lien or otherwise discharge the lien. Tenant shall reimburse
Landlord for any amount paid by Landlord to bond or insure over the lien or
discharge the lien, including, without limitation, reasonable attorneys' fees
(if and to the extent permitted by Law) within 30 days after receipt of an
invoice from Landlord.
XIV. Indemnity and Waiver of Claims.
A. Except to the extent caused by the negligence or willful misconduct of
Landlord or any Landlord Related Parties (defined below), Tenant shall
indemnify, defend and hold Landlord, its trustees, members, principals,
beneficiaries, partners, officers, directors, employees, Mortgagee(s)
(defined in Article XXVI) and agents ("Landlord Related Parties")
harmless against and from all liabilities, obligations, damages,
penalties, claims, actions, costs, charges and expenses, including,
without limitation, reasonable attorneys' fees and other professional
fees (if and to the extent permitted by Law), which may be imposed
upon, incurred by or asserted against Landlord or any of the Landlord
Related Parties and arising out of or in connection with any damage or
injury occurring in the Premises or any acts or omissions (including
violations of Law) of Tenant, the Tenant Related Parties (defined
below) or any of Tenant's transferees, contractors or licensees.
B. Except to the extent caused by the negligence or willful misconduct of
Tenant or any Tenant Related Parties (defined below), Landlord shall
indemnify, defend and hold Tenant, its trustees, members, principals,
beneficiaries, partners, officers, directors, employees and agents
("Tenant Related Parties") harmless against and from all liabilities,
obligations, damages, penalties, claims, actions, costs, charges and
expenses, including, without limitation, reasonable attorneys' fees and
other professional fees (if and to the extent permitted by Law), which
may be imposed upon, incurred by or asserted against Tenant or any of
the Tenant Related Parties and arising out of or in connection with the
acts or omissions (including violations of Law) of Landlord, the
Landlord Related Parties or any of Landlord's contractors.
C. Landlord and the Landlord Related Parties shall not be liable for, and
Tenant waives, all claims for loss or damage to Tenant's business or
loss, theft or damage to Tenant's Property or the property of any
person claiming by, through or under Tenant resulting from: (1) wind or
weather; (2) the failure of any sprinkler, heating or air-conditioning
equipment, any electric wiring or any gas, water or steam pipes; (3)
the backing up of any sewer pipe or downspout; (4) the bursting,
leaking or running of any tank, water closet, drain or other pipe; (5)
water, snow or ice upon or coming through the roof,
13
skylight, stairs, doorways, windows, walks or any other place upon or
near the Building; (6) any act or omission of any party other than
Landlord or Landlord Related Parties; and (7) any causes not reasonably
within the control of Landlord. Notwithstanding the foregoing, except
as provided in Article XVI to the contrary, Tenant shall not be
required to waive any claims against Landlord (other than for loss or
damage to Tenant's business) to the extent that such loss or damage is
due to Landlord's negligence. Nothing herein shall be construed as to
diminish the repair and maintenance obligations of Landlord contained
elsewhere in this Lease. Tenant shall insure itself against such losses
under Article XV below.
XV. Insurance.
Tenant shall carry and maintain the following insurance ("Tenant's
Insurance"), at its sole cost and expense: (1) Commercial General Liability
Insurance applicable to the Premises and its appurtenances providing, on an
occurrence basis, a minimum combined single limit of $2,000,000.00; (2) All Risk
Property/Business Interruption Insurance, including flood and earthquake,
written at replacement cost value and with a replacement cost endorsement
covering all of Tenant's trade fixtures, equipment, furniture and other personal
property within the Premises ("Tenant's Property"); (3) Workers' Compensation
Insurance as required by the state in which the Premises is located and in
amounts as may be required by applicable statute; and (4) Employers Liability
Coverage of at least $1,000,000.00 per occurrence. Any company writing any of
Tenant's Insurance shall have an A.M. Best rating of not less than A-VIII. All
Commercial General Liability Insurance policies shall name Tenant as a named
insured and Landlord (or any successor), Equity Office Properties Trust, a
Maryland real estate investment trust, EOP Operating Limited Partnership, a
Delaware limited partnership, and their respective members, principals,
beneficiaries, partners, officers, directors, employees, and agents, and other
designees of Landlord as the interest of such designees shall appear, as
additional insureds. All policies of Tenant's Insurance shall contain
endorsements that the insurer(s) shall give Landlord and its designees at least
30 days' advance written notice of any change, cancellation, termination or
lapse of insurance. Tenant shall provide Landlord with a certificate of
insurance evidencing Tenant's Insurance prior to the earlier to occur of the
Commencement Date or the date Tenant is provided with possession of the Premises
for any reason, and upon renewals at least 15 days prior to the expiration of
the insurance coverage. Landlord shall maintain so called All Risk property
insurance on the Building at replacement cost value, as reasonably estimated by
Landlord. Except as specifically provided to the contrary, the limits of either
party's insurance shall not limit such party's liability under this Lease.
XVI. Subrogation.
Notwithstanding anything in this Lease to the contrary, Landlord and
Tenant shall cause their respective insurance carriers to waive any and all
rights of recovery, claim, action or causes of action against the other and
their respective trustees, principals, beneficiaries, partners, officers,
directors, agents, and employees, for any loss or damage that may occur to
Landlord or Tenant or any party claiming by, through or under Landlord or
Tenant, as the case may be, with respect to Tenant's Property, the Building, the
Premises, any additions or improvements to the Building or Premises, or any
contents thereof, including all rights of recovery, claims, actions or causes of
action arising out of the negligence of Landlord or any Landlord Related Parties
or the negligence of Tenant or any Tenant Related Parties, which loss or damage
is (or would have been, had the insurance required by this Lease been carried)
covered by insurance.
XVII. Casualty Damage.
A. If all or any part of the Premises is damaged by fire or other
casualty, Tenant shall immediately notify Landlord in writing. During
any period of time that all or a material portion of the Premises is
rendered untenantable as a result of a fire or other casualty, the Rent
shall abate for the portion of the Premises that is untenantable and
not used by Tenant. Landlord shall have the right to terminate this
Lease if: (1) the Building shall be damaged so that, in Landlord's
reasonable judgment, substantial alteration or reconstruction of the
Building shall be required (whether or not the Premises has been
damaged); (2) Landlord is not permitted by Law to rebuild the Building
in substantially the same form as existed before the fire or casualty;
(3) the Premises have been materially damaged and there is less than 1
year of the Term remaining on the date of the casualty; (4) any
Mortgagee requires that the insurance
14
proceeds be applied to the payment of the mortgage debt; or (5) a
material uninsured loss to the Building occurs. Landlord may exercise
its right to terminate this Lease by notifying Tenant in writing within
90 days after the date of the casualty. In addition to Landlord's
rights to terminate as provided herein, Tenant shall have the right to
terminate this Lease if all of the following conditions occur: (1) a
substantial portion of the Premises (i.e., greater than 25%) has been
damaged by fire or other casualty and such damage cannot reasonably be
repaired within sixty (60) days after the date of such fire or other
casualty; and (2) there is less than one (1) year of the Lease Term
remaining on the date of such casualty; and (3) the casualty was not
caused by the negligence or willful misconduct of Tenant or its agents,
employees or contractors; and (4) Tenant provides Landlord with written
notice of its intent to terminate within thirty (30) days after the
date of the fire or other casualty. If neither Landlord nor Tenant
terminates this Lease, Landlord shall commence and proceed with
reasonable diligence to repair and restore the Building and the
Leasehold Improvements (excluding any Alterations that were performed
by Tenant in violation of this Lease). However, in no event shall
Landlord be required to spend more than the insurance proceeds received
by Landlord. Landlord shall not be liable for any loss or damage to
Tenant's Property or to the business of Tenant resulting in any way
from the fire or other casualty or from the repair and restoration of
the damage. Landlord and Tenant hereby waive the provisions of any Law
relating to the matters addressed in this Article, and agree that their
respective rights for damage to or destruction of the Premises shall be
those specifically provided in this Lease.
B. If all or any portion of the Premises shall be made untenantable by
fire or other casualty, Landlord shall, with reasonable promptness,
cause an architect or general contractor selected by Landlord to
provide Landlord and Tenant with a written estimate of the amount of
time required to substantially complete the repair and restoration of
the Premises and make the Premises tenantable again, using standard
working methods ("Completion Estimate"). If the Completion Estimate
indicates that the Premises cannot be made tenantable within 270 days
from the date the repair and restoration is started, or if it becomes
known during the course of construction based on construction updates
that the Completion Estimate will exceed 270 days from the date the
repair and restoration is started, then regardless of anything in
Section XVII.A above to the contrary, either party shall have the right
to terminate this Lease by giving written notice to the other of such
election within 30 days after receipt of the Completion Estimate or the
construction update, as the case may be. Tenant, however, shall not
have the right to terminate this Lease if the fire or casualty was
caused by the negligence or intentional misconduct of Tenant, Tenant
Related Parties or any of Tenant's transferees, contractors or
licensees.
C. Notwithstanding the foregoing, if Tenant was entitled to but elected
not to exercise its right to terminate the Lease and Landlord does not
substantially complete the repair and restoration of the Premises after
the expiration of the estimated period of time set forth in the
Completion Estimate, which period shall be extended to the extent of
any delays caused by Tenant, as herein defined, then Tenant may
terminate this Lease by written notice to Landlord within fifteen (15)
days after the expiration of such period, as the same may be extended.
XVIII. Condemnation.
Either party may terminate this Lease if the whole or any material part
of the Premises (i.e., greater than 25%) shall be taken or condemned for any
public or quasi-public use under Law, by eminent domain or private purchase in
lieu thereof (a "Taking"). Landlord shall also have the right to terminate this
Lease if there is a Taking of any portion of the Building or Property which
would leave the remainder of the Building unsuitable for use as an office
building in a manner comparable to the Building's use prior to the Taking. In
order to exercise its right to terminate the Lease, Landlord or Tenant, as the
case may be, must provide written notice of termination to the other within 45
days after the terminating party first receives notice of the Taking. Any such
termination shall be effective as of the date the physical taking of the
Premises or the portion of the Building or Property occurs. If this Lease is not
terminated, the Rentable Square Footage of the Building, the Rentable Square
Footage of the Premises and Tenant's Pro Rata Share shall, if applicable, be
appropriately adjusted. In addition, Rent for any portion of the Premises taken
or condemned shall be abated during the unexpired Term of this Lease effective
15
when the physical taking of the portion of the Premises occurs. All compensation
awarded for a Taking, or sale proceeds, shall be the property of Landlord, any
right to receive compensation or proceeds being expressly waived by Tenant.
However, Tenant may file a separate claim at its sole cost and expense for
Tenant's Property and Tenant's reasonable relocation expenses, provided the
filing of the claim does not diminish the award which would otherwise be
receivable by Landlord.
XIX. Events of Default.
Tenant shall be considered to be in default of this Lease upon the
occurrence of any of the following events of default:
A. Tenant's failure to pay when due all or any portion of the Rent, if the
failure continues for 5 Business Days after written notice to Tenant
("Monetary Default").
B. Tenant's failure (other than a Monetary Default) to comply with any
term, provision or covenant of this Lease, if the failure is not cured
within 30 days after written notice to Tenant. However, if Tenant's
failure to comply cannot reasonably be cured within 30 days, Tenant
shall be allowed additional time (not to exceed 60 days) as is
reasonably necessary to cure the failure so long as: (1) Tenant
commences to cure the failure within 30 days, and (2) Tenant diligently
pursues a course of action that will cure the failure and bring Tenant
back into compliance with the Lease. However, if Tenant's failure to
comply creates a hazardous condition, the failure must be cured
immediately upon notice to Tenant. In addition, if Landlord provides
Tenant with notice of Tenant's failure to comply with any particular
term, provision or covenant of the Lease on 3 occasions during any 12
month period, Tenant's subsequent violation of such term, provision or
covenant shall, at Landlord's option, be an incurable event of default
by Tenant.
C. Tenant or any Guarantor becomes insolvent, makes a transfer in fraud of
creditors or makes an assignment for the benefit of creditors, or
admits in writing its inability to pay its debts when due.
D. The leasehold estate is taken by process or operation of Law.
XX. Remedies.
A. Upon any default, Landlord shall have the right without notice or
demand (except as provided in Article XIX) to pursue any of its rights
and remedies at Law or in equity, including any one or more of the
following remedies:
1. Terminate this Lease, in which case Tenant shall immediately
surrender the Premises to Landlord. If Tenant fails to surrender the
Premises, Landlord may, in compliance with applicable Law and
without prejudice to any other right or remedy, enter upon and take
possession of the Premises and expel and remove Tenant, Tenant's
Property and any party occupying all or any part of the Premises.
Tenant shall pay Landlord on demand the amount of all past due Rent
and other losses and damages which Landlord may suffer as a result
of Tenant's default, whether by Landlord's inability to relet the
Premises on satisfactory terms or otherwise, including, without
limitation, all Costs of Reletting (defined below) and any
deficiency that may arise from reletting or the failure to relet the
Premises. "Costs of Reletting" shall include all costs and expenses
incurred by Landlord in reletting or attempting to relet the
Premises, including, without limitation, reasonable legal fees,
brokerage commissions, the cost of alterations and the value of
other concessions or allowances granted to a new tenant.
2. Terminate Tenant's right to possession of the Premises and, in
compliance with applicable Law, expel and remove Tenant, Tenant's
Property and any parties occupying all or any part of the Premises.
Landlord may (but shall not be obligated to) relet all or any part
of the Premises, without notice to Tenant, for a term that may be
greater or less than the balance of the Term and on such conditions
(which may include concessions, free rent and alterations of the
Premises) and for such uses as Landlord in its absolute discretion
shall determine.
16
Landlord may collect and receive all rents and other income from the
reletting. Tenant shall pay Landlord on demand all past due Rent,
all Costs of Reletting and any deficiency arising from the reletting
or failure to relet the Premises. Landlord shall not be responsible
or liable for the failure to relet all or any part of the Premises
or for the failure to collect any Rent. The re-entry or taking of
possession of the Premises shall not be construed as an election by
Landlord to terminate this Lease unless a written notice of
termination is given to Tenant. Landlord agrees to use reasonable
efforts to mitigate damages, provided that such reasonable efforts
shall not require Landlord to relet the Premises in preference to
any other space in the Building or to relet the Premises to any
party that Landlord could reasonably reject as a transferee pursuant
to Article XII hereof.
3. In lieu of calculating damages under Sections XX.A.1 or XX.A.2
above, Landlord may elect to receive as damages the sum of (a) all
Rent accrued through the date of termination of this Lease or
Tenant's right to possession, and (b) an amount equal to the total
Rent that Tenant would have been required to pay for the remainder
of the Term discounted to present value at the Prime Rate (defined
in Section XX.B. below) then in effect, minus the then present fair
rental value of the Premises for the remainder of the Term,
similarly discounted, after deducting all anticipated Costs of
Reletting.
B. Unless expressly provided in this Lease, the repossession or
re-entering of all or any part of the Premises shall not relieve Tenant
of its liabilities and obligations under the Lease. No right or remedy
of Landlord shall be exclusive of any other right or remedy. Each right
and remedy shall be cumulative and in addition to any other right and
remedy now or subsequently available to Landlord at Law or in equity.
If Landlord declares Tenant to be in default, Landlord shall be
entitled to receive interest on any unpaid item of Rent at a rate equal
to the Prime Rate plus 4%. For purposes hereof, the "Prime Rate" shall
be the per annum interest rate publicly announced as its prime or base
rate by a federally insured bank selected by Landlord in the state in
which the Building is located. Forbearance by Landlord to enforce one
or more remedies shall not constitute a waiver of any default.
XXI. Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE
LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD) TO TENANT SHALL BE LIMITED
TO THE INTEREST OF LANDLORD IN THE PROPERTY. TENANT SHALL LOOK SOLELY TO
LANDLORD'S INTEREST IN THE PROPERTY FOR THE RECOVERY OF ANY JUDGMENT OR AWARD
AGAINST LANDLORD. NEITHER LANDLORD NOR ANY LANDLORD RELATED PARTY SHALL BE
PERSONALLY LIABLE FOR ANY JUDGMENT OR DEFICIENCY. BEFORE FILING SUIT FOR AN
ALLEGED DEFAULT BY LANDLORD, TENANT SHALL GIVE LANDLORD AND THE MORTGAGEE(S)
(DEFINED IN ARTICLE XXVI BELOW) WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES
(DEFINED IN ARTICLE XXVI BELOW) ON THE PROPERTY, BUILDING OR PREMISES, NOTICE
AND REASONABLE TIME TO CURE THE ALLEGED DEFAULT.
XXII. No Waiver.
Either party's failure to declare a default immediately upon its
occurrence, or delay in taking action for a default shall not constitute a
waiver of the default, nor shall it constitute an estoppel. Either party's
failure to enforce its rights for a default shall not constitute a waiver of its
rights regarding any subsequent default. Receipt by Landlord of Tenant's keys to
the Premises shall not constitute an acceptance or surrender of the Premises.
XXIII. Quiet Enjoyment.
Tenant shall, and may peacefully have, hold and enjoy the Premises,
subject to the terms of this Lease, provided Tenant pays the Rent and fully
performs all of its covenants and agreements. This covenant and all other
covenants of Landlord shall be binding upon Landlord and its successors
(including any Mortgagee) only during its or their respective periods of
17
ownership of the Building, and shall not be a personal covenant of Landlord or
the Landlord Related Parties.
XXIV. Intentionally Omitted.
XXV. Holding Over.
Except for any permitted occupancy by Tenant under Article VIII, if Tenant
fails to surrender the Premises at the expiration or earlier termination of this
Lease, occupancy of the Premises after the termination or expiration shall be
that of a tenancy at sufferance. Tenant's occupancy of the Premises during the
holdover shall be subject to all the terms and provisions of this Lease and
Tenant shall pay an amount (on a per month basis without reduction for partial
months during the holdover) equal to 150% of the sum of the Base Rent and
Additional Rent due for the period immediately preceding the holdover.
Notwithstanding the foregoing, if such holding over continues for more than
thirty (30) days, effective as of the thirty-first (31st) day, holdover rent
shall increase to 150% of the greater of (1) the sum of the Base Rent and
Additional Rent due for the period immediately preceding such holding over, or
(2) the fair market gross rental for the Premises as reasonably determined by
Landlord. No holdover by Tenant or payment by Tenant after the expiration or
early termination of this Lease shall be construed to extend the Term or prevent
Landlord from immediate recovery of possession of the Premises by summary
proceedings or otherwise. In addition to the payment of the amounts provided
above, if Landlord is unable to deliver possession of the Premises to a new
tenant, or to perform improvements for a new tenant, as a result of Tenant's
holdover and Tenant fails to vacate the Premises within 15 days after Landlord
notifies Tenant of Landlord's inability to deliver possession, or perform
improvements, Tenant shall be liable to Landlord for all damages, including,
without limitation, consequential damages, that Landlord suffers from the
holdover.
XXVI. Subordination to Mortgages; Estoppel Certificate.
Tenant accepts this Lease subject and subordinate to any mortgage(s),
deed(s) of trust, ground lease(s) or other lien(s) now or subsequently arising
upon the Premises, the Building or the Property, and to renewals, modifications,
refinancings and extensions thereof (collectively referred to as a "Mortgage").
The party having the benefit of a Mortgage shall be referred to as a
"Mortgagee". This clause shall be self-operative, but upon request from a
Mortgagee, Tenant shall execute a commercially reasonable subordination
agreement in favor of the Mortgagee. In lieu of having the Mortgage be superior
to this Lease, a Mortgagee shall have the right at any time to subordinate its
Mortgage to this Lease. If requested by a successor-in-interest to all or a part
of Landlord's interest in the Lease, Tenant shall, without charge, attorn to the
successor-in-interest. Notwithstanding the foregoing, upon written request by
Tenant, Landlord will use reasonable efforts to obtain a non-disturbance,
subordination and attornment agreement from Landlord's then current mortgagee on
such mortgagee's then current standard form of agreement. "Reasonable efforts"
of Landlord shall not require Landlord to incur any cost, expense or liability
to obtain such agreement, it being agreed that Tenant shall be responsible for
any fee or review costs charged by the mortgagee. Upon request of Landlord,
Tenant will execute the mortgagee's form of non-disturbance, subordination and
attornment agreement and return the same to Landlord for execution by the
mortgagee. Landlord's failure to obtain a non-disturbance, subordination and
attornment agreement for Tenant shall have no effect on the rights, obligations
and liabilities of Landlord and Tenant or be considered to be a default by
Landlord hereunder. Landlord and Tenant shall each, within 10 days after receipt
of a written request from the other, execute and deliver an estoppel certificate
to those parties as are reasonably requested by the other (including a Mortgagee
or prospective purchaser). The estoppel certificate shall include a statement
certifying that this Lease is unmodified (except as identified in the estoppel
certificate) and in full force and effect, describing the dates to which Rent
and other charges have been paid, representing that, to such party's actual
knowledge, there is no default (or stating the nature of the alleged default)
and indicating other matters with respect to the Lease that may reasonably be
requested.
XXVII. Attorneys' Fees.
If either party institutes a suit against the other for violation of or to
enforce any covenant or condition of this Lease, or if either party intervenes
in any suit in which the other is a party to enforce or protect its interest or
rights, the prevailing party shall be entitled to all of its costs and expenses,
including, without limitation, reasonable attorneys' fees.
18
XXVIII. Notice.
If a demand, request, approval, consent or notice (collectively referred
to as a "notice") shall or may be given to either party by the other, the notice
shall be in writing and delivered by hand or sent by registered or certified
mail with return receipt requested, or sent by overnight or same day courier
service at the party's respective Notice Address(es) set forth in Article I,
except that if Tenant has vacated the Premises (or if the Notice Address for
Tenant is other than the Premises, and Tenant has vacated such address) without
providing Landlord a new Notice Address, Landlord may serve notice in any manner
described in this Article or in any other manner permitted by Law. Each notice
shall be deemed to have been received or given on the earlier to occur of actual
delivery or the date on which delivery is refused, or, if Tenant has vacated the
Premises or the other Notice Address of Tenant without providing a new Notice
Address, three (3) days after notice is deposited in the U.S. mail or with a
courier service in the manner described above. Either party may, at any time,
change its Notice Address by giving the other party written notice of the new
address in the manner described in this Article.
XXIX. Excepted Rights.
This Lease does not grant any rights to light or air over or about the
Building. Landlord excepts and reserves exclusively to itself the use of (1)
roofs, (2) telephone, electrical and janitorial closets, (3) equipment rooms,
Building risers or similar areas that are used by Landlord for the provision of
Building services, (4) rights to the land and improvements below the floor of
the Premises, (5) the improvements and air rights above the Premises, (6) the
improvements and air rights outside the demising walls of the Premises, and (7)
the areas within the Premises used for the installation of utility lines and
other installations serving occupants of the Building. Landlord has the right to
change the Building's name or address. Landlord also has the right to make such
other changes to the Property and Building as Landlord deems appropriate,
provided the changes do not materially affect Tenant's ability to use the
Premises for the Permitted Use. Landlord shall also have the right (but not the
obligation) to temporarily close the Building if Landlord reasonably determines
that there is an imminent danger of significant damage to the Building or of
personal injury to Landlord's employees or the occupants of the Building. The
circumstances under which Landlord may temporarily close the Building shall
include, without limitation, electrical interruptions, hurricanes and civil
disturbances. A closure of the Building under such circumstances shall not
constitute a constructive eviction nor entitle Tenant to an abatement or
reduction of Rent.
XXX. Surrender of Premises.
At the expiration or earlier termination of this Lease or Tenant's right
of possession, Tenant shall remove Tenant's Property (defined in Article XV)
from the Premises, and quit and surrender the Premises to Landlord, broom clean,
and in good order, condition and repair, ordinary wear and tear excepted. Tenant
shall also be required to remove the Required Removables in accordance with
Article VIII. If Tenant fails to remove any of Tenant's Property within 5
Business Days after the termination of this Lease or of Tenant's right to
possession, Landlord, at Tenant's sole cost and expense, shall be entitled (but
not obligated) to remove and store Tenant's Property. Landlord shall not be
responsible for the value, preservation or safekeeping of Tenant's Property.
Tenant shall pay Landlord, upon demand, the reasonable expenses and storage
charges incurred for Tenant's Property. In addition, if Tenant fails to remove
Tenant's Property from the Premises or storage, as the case may be, within 30
days after written notice, Landlord may deem all or any part of Tenant's
Property to be abandoned, and title to Tenant's Property shall be deemed to be
immediately vested in Landlord.
19
XXXI. Miscellaneous.
A. This Lease and the rights and obligations of the parties shall be
interpreted, construed and enforced in accordance with the Laws of the
state in which the Building is located, and Landlord and Tenant hereby
irrevocably consent to the jurisdiction and proper venue of such
state. If any term or provision of this Lease shall to any extent be
invalid or unenforceable, the remainder of this Lease shall not be
affected, and each provision of this Lease shall be valid and enforced
to the fullest extent permitted by Law. The headings and titles to the
Articles and Sections of this Lease are for convenience only and shall
have no effect on the interpretation of any part of the Lease.
B. Tenant shall not record this Lease or any memorandum without
Landlord's prior written consent.
C. Landlord and Tenant hereby waive any right to trial by jury in any
proceeding based upon a breach of this Lease.
D. Whenever this Lease requires the taking of an action by Landlord or
Tenant, the period of time for the performance of such action shall be
extended by (or, if no time period is specified, the performance of
such action shall be forgiven for) the number of days that the
performance is actually delayed due to strikes, acts of God, shortages
of labor or materials, war, civil disturbances and other causes beyond
the reasonable control of the performing party ("Force Majeure").
However, events of Force Majeure shall not extend any period of time
for the payment of Rent or other sums payable by either party or any
period of time for the written exercise of any option or right by
either party.
E. Landlord shall have the right to transfer and assign, in whole or in
part, all of its rights and obligations under this Lease and in the
Building and/or Property referred to herein, and upon such transfer,
Landlord shall be released from any further obligations hereunder, and
Tenant agrees to look solely to the successor in interest of Landlord
for the performance of such obligations.
F. Tenant represents that it has dealt directly with and only with the
Broker as a broker in connection with this Lease. Tenant shall
indemnify and hold Landlord and the Landlord Related Parties harmless
from all claims of any other brokers claiming to have represented
Tenant in connection with this Lease. Landlord agrees to indemnify and
hold Tenant and the Tenant Related Parties harmless from all claims of
any brokers claiming to have represented Landlord in connection with
this Lease.
G. Tenant covenants, warrants and represents that: (1) each individual
executing, attesting and/or delivering this Lease on behalf of Tenant
is authorized to do so on behalf of Tenant; (2) this Lease is binding
upon Tenant; and (3) Tenant is duly organized and legally existing in
the state of its organization and is qualified to do business in the
state in which the Premises are located. If there is more than one
Tenant, or if Tenant is comprised of more than one party or entity,
the obligations imposed upon Tenant shall be joint and several
obligations of all the parties and entities. Notices, payments and
agreements given or made by, with or to any one person or entity shall
be deemed to have been given or made by, with and to all of them.
H. Time is of the essence with respect to Tenant's exercise of any
expansion, renewal or extension rights granted to Tenant. This Lease
shall create only the relationship of landlord and tenant between the
parties, and not a partnership, joint venture or any other
relationship. This Lease and the covenants and conditions in this
Lease shall inure only to the benefit of and be binding only upon
Landlord and Tenant and their permitted successors and assigns.
I. The expiration of the Term, whether by lapse of time or otherwise,
shall not relieve either party of any obligations which accrued prior
to or which may continue to accrue after the expiration or early
termination of this Lease. Without limiting the scope of the prior
sentence, it is agreed that Tenant's obligations under Sections IV.A,
IV.B.,
20
VIII, XIV, XX, XXV and XXX shall survive the expiration or early
termination of this Lease.
J. Landlord has delivered a copy of this Lease to Tenant for Tenant's
review only, and the delivery of it does not constitute an offer to
Tenant or an option. This Lease shall not be effective against any
party hereto until an original copy of this Lease has been signed by
such party.
K. All understandings and agreements previously made between the parties
are superseded by this Lease, and neither party is relying upon any
warranty, statement or representation not contained in this Lease.
This Lease may be modified only by a written agreement signed by
Landlord and Tenant.
L. Tenant, within 15 days after request, shall provide Landlord with an
annual report or, if Tenant is not publicly traded on a recognized
security exchange, with a current financial statement and such other
information as Landlord may reasonably request in order to create a
"business profile" of Tenant and determine Tenant's ability to fulfill
its obligations under this Lease. Landlord, however, shall not require
Tenant to provide such information unless Landlord is requested to
produce the information in connection with a proposed financing or
sale of the Building. Upon written request by Tenant, Landlord shall
enter into a commercially reasonable confidentiality agreement
covering any confidential information that is disclosed by Tenant.
M. Notwithstanding anything to the contrary in the Lease contained,
Tenant shall have the right to grant security interests and/or to
lease its business equipment and personal property in the Premises
under the following circumstances:
(a) Tenant shall furnish Landlord with a complete schedule of the
equipment or inventory (the "Equipment") financed pursuant to the
terms hereof, which schedule shall be updated in the event of any
changes;
(b) Tenant shall be prohibited from financing any non-moveable fixture
or permanent improvement to the leasehold;
(c) Tenant shall cause any and all lenders to give Landlord notice of
any public or private sale by such lender of Tenant's Equipment;
(d) no public or private sale by any lender shall be held on the
Premises; and
(e) lender can enter the Premises for purpose of removal of the
Equipment only if:
(1) permitted by the agreement between lender and Tenant; and
(2) lender agrees to restore or repair all damage to the Premises
caused by such removal; and
(3) lender gives Landlord notice in the event that any of
Tenant's moveable trade fixtures or Equipment are removed
from the Premises; and
(4) lender indemnifies Landlord for any claim, liability or
expense (including reasonable attorney's fees) arising out of
or in connection with Lender's removal of the Equipment and
lender's entry and activities upon the Premises.
XXXII. Entire Agreement.
This Lease and the following exhibits and attachments constitute the
entire agreement between the parties and supersede all prior agreements and
understandings related to the Premises, including all lease proposals, letters
of intent and other documents: Exhibit A (Outline and Location of Premises),
Exhibit B (Rules and Regulations), Exhibit C (Commencement Letter), Exhibit D
(Work Letter Agreement), Exhibit E (Additional Provisions), and Exhibit F (Form
Letter of Credit).
21
Landlord and Tenant have executed this Lease as of the day and year first
above written.
LANDLORD:
EOP-NEW ENGLAND EXECUTIVE PARK,
L.L.C., a Delaware limited liability company
By: EOP Operating Limited Partnership,
a Delaware limited partnership,
its sole member
By: Equity Office Properties Trust,
a Maryland real estate
investment trust, its
managing general partner
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
TENANT:
FUNDTECH CORPORATION,
a Delaware corporation
By:
---------------------------------------
(Name) (Title)
Hereunto Duly Authorized
22
EXHIBIT A
PREMISES
--------
This Exhibit is attached to and made a part of the Lease dated as of
August 28, 2000, by and between EOP-NEW ENGLAND EXECUTIVE PARK, L.L.C.
("Landlord") and FUNDTECH CORPORATION ("Tenant") for space in the Building
located at 24 New England Executive Park, Burlington, Massachusetts.
[Graphic Omitted]
23
EXHIBIT B
BUILDING RULES AND REGULATIONS
------------------------------
The following rules and regulations shall apply, where applicable, to the
Premises, the Building, the parking garage (if any), the Property and the
appurtenances. Capitalized terms have the same meaning as defined in the Lease.
1. Sidewalks, doorways, vestibules, halls, stairways and other similar
areas shall not be obstructed by Tenant or used by Tenant for any
purpose other than ingress and egress to and from the Premises. No
rubbish, litter, trash, or material shall be placed, emptied, or
thrown in those areas. At no time shall Tenant permit Tenant's
employees to loiter in Common Areas or elsewhere about the Building
or Property.
2. Plumbing fixtures and appliances shall be used only for the purposes
for which designed, and no sweepings, rubbish, rags or other
unsuitable material shall be thrown or placed in the fixtures or
appliances. Damage resulting to fixtures or appliances by Tenant,
its agents, employees or invitees, shall be paid for by Tenant, and
Landlord shall not be responsible for the damage.
3. No signs, advertisements or notices shall be painted or affixed to
windows, doors or other parts of the Building, except those of
such color, size, style and in such places as are first approved
in writing by Landlord. All tenant identification and suite
numbers at the entrance to the Premises shall be installed by
Landlord, at Tenant's cost and expense, using the standard
graphics for the Building. Except in connection with the hanging
of lightweight pictures and wall decorations, no nails, hooks or
screws shall be inserted into any part of the Premises or
Building except by the Building maintenance personnel.
4. Landlord may provide and maintain in the first floor (main lobby) of
the Building an alphabetical directory board or other directory
device listing tenants, and no other directory shall be permitted
unless previously consented to by Landlord in writing.
5. Tenant shall not place any lock(s) on any door in the Premises or
Building without Landlord's prior written consent, not to be
unreasonably withheld or delayed, and Landlord shall have the
right to retain at all times and to use keys to all locks within
and into the Premises. A reasonable number of keys to the locks
on the entry doors in the Premises shall be furnished by Landlord
to Tenant at Tenant's cost, and Tenant shall not make any
duplicate keys. All keys shall be returned to Landlord at the
expiration or early termination of this Lease.
6. All contractors, contractor's representatives and installation
technicians performing work in the Building shall be subject to
Landlord's prior approval, not to be unreasonably withheld or
delayed, and shall be required to comply with Landlord's standard
rules, regulations, policies and procedures, which may be revised
from time to time.
7. Movement in or out of the Building of furniture or office equipment,
or dispatch or receipt by Tenant of merchandise or materials
requiring the use of elevators, stairways, lobby areas or loading
dock areas, shall be restricted to hours reasonably designated by
Landlord. Tenant shall obtain Landlord's prior approval by providing
a detailed listing of the activity. If approved by Landlord, the
activity shall be under the supervision of Landlord and performed in
the manner required by Landlord. Tenant shall assume all risk for
damage to articles moved and injury to any persons resulting from
the activity. If equipment, property, or personnel of Landlord or of
any other party is damaged or injured as a result of or in
connection with the activity, Tenant shall be solely liable for any
resulting damage or loss.
24
8. Landlord shall have the right to approve the weight, size, or
location of heavy equipment or articles in and about the Premises,
which approval shall not be unreasonably withheld or delayed. Damage
to the Building by the installation, maintenance, operation,
existence or removal of property of Tenant shall be repaired at
Tenant's sole expense.
9. Corridor doors, when not in use, shall be kept closed.
10. Tenant shall not: (1) make or permit any improper, objectionable or
unpleasant noises or odors in the Building, or otherwise
interfere in any way with other tenants or persons having
business with them; (2) solicit business or distribute, or cause
to be distributed, in any portion of the Building, handbills,
promotional materials or other advertising; or (3) conduct or
permit other activities in the Building that might, in Landlord's
sole but reasonable opinion, constitute a nuisance.
11. No animals, except those assisting handicapped persons, shall be
brought into the Building or kept in or about the Premises.
12. No inflammable, explosive or dangerous fluids or substances shall be
used or kept by Tenant in the Premises, Building or about the
Property, other than small quantities of ordinary cleaning
materials and office supplies stored, used and disposed of in
accordance with all applicable laws. Tenant shall not, without
Landlord's prior written consent, use, store, install, spill,
remove, release or dispose of, within or about the Premises or
any other portion of the Property, any asbestos-containing
materials or any solid, liquid or gaseous material now or
subsequently considered toxic or hazardous under the provisions
of 42 U.S.C. Section 9601 et seq. or any other applicable
environmental Law which may now or later be in effect. Tenant
shall comply with all Laws pertaining to and governing the use of
these materials by Tenant, and shall remain solely liable for the
costs of abatement and removal.
13. Tenant shall not use or occupy the Premises in any manner or for any
purpose which might injure the reputation or impair the present or
future value of the Premises or the Building. Tenant shall not use,
or permit any part of the Premises to be used, for lodging, sleeping
or for any illegal purpose.
14. Tenant shall not take any action which would violate Landlord's
labor contracts or which would cause a work stoppage, picketing,
labor disruption or dispute, or interfere with Landlord's or any
other tenant's or occupant's business or with the rights and
privileges of any person lawfully in the Building ("Labor
Disruption"). Tenant shall take the actions necessary to resolve the
Labor Disruption, and shall have pickets removed and, at the request
of Landlord, immediately terminate any work in the Premises that
gave rise to the Labor Disruption, until Landlord gives its written
consent for the work to resume. Tenant shall have no claim for
damages against Landlord or any of the Landlord Related Parties, nor
shall the date of the commencement of the Term be extended as a
result of the above actions.
15. Tenant shall not install, operate or maintain in the Premises or in
any other area of the Building, electrical equipment that would
overload the electrical system beyond its capacity for proper,
efficient and safe operation as reasonably determined by Landlord.
Tenant shall not furnish cooling or heating to the Premises,.
including, without limitation, the use of electronic or gas heating
devices, without Landlord's prior written consent, which consent
shall not be unreasonably withheld or delayed. Tenant shall not use
more than its proportionate share of telephone lines and other
telecommunication facilities available to service the Building.
16. Tenant shall not operate or permit to be operated a coin or token
operated vending machine or similar device (including, without
limitation, telephones, lockers, toilets, scales, amusement devices
and machines for sale of beverages, foods,
25
candy, cigarettes and other goods), except for machines for the
exclusive use of Tenant's employees.
17. Bicycles and other vehicles are not permitted inside the Building or
on the walkways outside the Building, except in areas designated by
Landlord.
18. Landlord may from time to time adopt systems and procedures for the
security and safety of the Building, its occupants, entry, use and
contents. Tenant, its agents, employees, contractors, guests and
invitees shall comply with Landlord's systems and procedures.
19. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's
reasonable opinion may impair the reputation of the Building or its
desirability. Upon written notice from Landlord, Tenant shall
refrain from and discontinue such publicity immediately.
20. Tenant shall not canvass, solicit or peddle in or about the Building
or the Property.
21. Neither Tenant nor its agents, employees, contractors, guests or
invitees shall smoke or permit smoking in the Common Areas, unless
the Common Areas have been declared a designated smoking area by
Landlord, nor shall the above parties allow smoke from the Premises
to emanate into the Common Areas or any other part of the Building.
Landlord shall have the right to designate the Building (including
the Premises) as a non-smoking building.
22. Landlord shall have the right to designate and approve standard
window coverings for the Premises and to establish rules to assure
that the Building presents a uniform exterior appearance. Tenant
shall ensure, to the extent reasonably practicable, that window
coverings are closed on windows in the Premises while they are
exposed to the direct rays of the sun.
23. Deliveries to and from the Premises shall be made only at the times,
in the areas and through the entrances and exits designated by
Landlord. Tenant shall not make deliveries to or from the Premises
in a manner that might interfere with the use by any other tenant of
its premises or of the Common Areas, any pedestrian use, or any use
which is inconsistent with good business practice.
24. The work of cleaning personnel shall not be hindered by Tenant after
5:30 P.M., and cleaning work may be done at any time when the
offices are vacant. Windows, doors and fixtures may be cleaned at
any time. Tenant shall provide adequate waste and rubbish
receptacles to prevent unreasonable hardship to the cleaning
service.
26
EXHIBIT C
COMMENCEMENT LETTER
(EXAMPLE)
Date:
Tenant:
Address:
Re: Commencement Letter with respect to that certain Lease dated as of
__________ by and between , as Landlord, and , as
Tenant, for square feet of Rentable Area on the floor of the Building
located at
Dear:
In accordance with the terms and conditions of the above referenced Lease,
Tenant accepts possession of the Premises and agrees:
1. The Commencement Date of the Lease is ;
2. The Termination Date of the Lease is .
Please acknowledge your acceptance of possession and agreement to the
terms set forth above by signing all 3 counterparts of this Commencement Letter
in the space provided and returning 2 fully executed counterparts to my
attention.
Sincerely,
Property Manager
Agreed and Accepted:
Tenant:
By:
Name:
Title:
Date:
27
EXHIBIT D
WORK LETTER
-----------
This Exhibit is attached to and made a part of the Lease and is entered
into as of the 28th day of August, 2000, by and between EOP-NEW ENGLAND
EXECUTIVE PARK, L.L.C. ("Landlord") and FUNDTECH CORPORATION ("Tenant") for
space in the Building located at 24 New England Executive Park, Burlington,
Massachusetts.
1. This Work Letter shall set forth the obligations of Landlord and
Tenant with respect to the preparation of the Premises for Tenant's
occupancy. All improvements described in this Work Letter to be
constructed in and upon the Premises by Landlord are hereinafter
referred to as the "Landlord Work." It is agreed that construction
of the Landlord Work will be completed at Tenant's sole cost and
expense, subject to the Allowance (as defined below). Landlord shall
enter into a direct contract for the Landlord Work with a general
contractor selected by Landlord. In addition, Landlord shall have
the right to select and/or approve of any subcontractors used in
connection with the Landlord Work.
2. Tenant shall be solely responsible for the timely preparation and
submission to Landlord of the final architectural, electrical and
mechanical construction drawings, plans and specifications
(called "Plans") necessary to construct the Landlord Work, which
plans shall be subject to approval by Landlord and Landlord's
architect and engineers and shall comply with their requirements
to avoid aesthetic or other conflicts with the design and
function of the balance of the Building. Tenant shall be
responsible for all elements of the design of Tenant's plans
(including, without limitation, compliance with law,
functionality of design, the structural integrity of the design,
the configuration of the premises and the placement of Tenant's
furniture, appliances and equipment), and Landlord's approval of
Tenant's plans shall in no event relieve Tenant of the
responsibility for such design. If requested by Tenant,
Landlord's architect will prepare the Plans necessary for such
construction at Tenant's cost. Whether or not the layout and
Plans are prepared with the help (in whole or in part) of
Landlord's architect, Tenant agrees to remain solely responsible
for the timely preparation and submission of the Plans and for
all elements of the design of such Plans and for all costs
related thereto. Tenant has assured itself by direct
communication with the architect and engineers (Landlord's or its
own, as the case may be) that the final approved Plans can be
delivered to Landlord on or before July 31, 2000 (the "Plans Due
Date"), provided that Tenant promptly furnishes complete
information concerning its requirements to said architect and
engineers as and when requested by them. Tenant covenants and
agrees to cause said final, approved Plans to be delivered to
Landlord on or before said Plans Due Date and to devote such time
as may be necessary in consultation with said architect and
engineers to enable them to complete and submit the Plans within
the required time limit. Time is of the essence in respect of
preparation and submission of Plans by Tenant. In the event the
Plans and not fully completed and approved by the Plans Due Date,
Tenant shall be responsible for one (1) day of Delay (as defined
in the Lease) for each day during the period beginning on the day
following the Plans Due Date and ending on the date completed
Plans are approved. (The word "architect" as used in this Article
4 shall include an interior designer or space planner.)
3. In the event Landlord's estimate and/or the actual cost of
construction shall exceed the Allowance, Landlord, prior to
commencing any construction of Landlord Work, shall submit to Tenant
a written estimate setting forth the anticipated cost of the
Landlord Work, including but not limited to labor and materials,
contractor's fees and permit fees. Within three (3) Business Days
thereafter, Tenant shall notify Landlord as to any deletions or
substitutions in the Landlord Work. If Tenant fails to timely notify
Landlord of any such deletions or substitutions, Tenant shall be
deemed to have agreed to pay the Excess Costs, as defined in
Paragraph 4 hereof.
28
4. In the event Landlord's estimate and/or the actual cost of
construction shall exceed the Allowance, if any (such amounts
exceeding the Allowance being herein referred to as the "Excess
Costs"), Tenant shall pay to Landlord such Excess Costs upon demand.
The statements of costs submitted to Landlord by Landlord's
contractors shall be conclusive for purposes of determining the
actual cost of the items described therein. The amounts payable
hereunder constitute Rent payable pursuant to the Lease, and the
failure to timely pay same constitutes an event of default under the
Lease.
5. If Tenant shall request any change, addition or alteration in any of
the Plans after approval by Landlord, Landlord shall have such
revisions to the drawings prepared, and Tenant shall reimburse
Landlord for the cost thereof upon demand. Promptly upon completion
of the revisions, Landlord shall notify Tenant in writing of the
increased cost which will be chargeable to Tenant by reason of such
change, addition or deletion. Tenant, within two (2) Business Days,
shall notify Landlord in writing whether it desires to proceed with
such change, addition or deletion, failing which Landlord shall
continue work on the Premises disregarding the requested change,
addition or alteration. In the event such revisions result in a
higher estimate of the cost of construction and/or higher actual
construction costs which exceed the Allowance, such increased
estimate or costs shall be deemed Excess Costs pursuant to Paragraph
4 hereof and Tenant shall pay such Excess Costs upon demand.
6. Following approval of the Plans and the payment by Tenant of the
required portion of the Excess Costs, if any, Landlord shall cause
the Landlord Work to be constructed substantially in accordance with
the approved Plans. Landlord shall notify Tenant of substantial
completion of the Landlord Work.
7. Landlord, provided Tenant is not in default, agrees to provide
Tenant with an allowance (the "Allowance") in an amount not to
exceed Eighty-Four Thousand Five Hundred Forty-Five and 00/100
Dollars ($84,545.00)(i.e., $5.00 per rentable square foot of the
Premises) to be applied toward the cost of the Landlord Work in the
Premises. In the event the Allowance shall not be sufficient to
complete the Landlord Work, Tenant shall pay the Excess Costs as
prescribed in paragraph 4 above. In the event the Allowance exceeds
the cost of Landlord Work, any remaining Allowance shall accrue to
the sole benefit of Landlord, it being agreed that Tenant shall not
be entitled to any credit, offset, abatement or payment with respect
thereto.
8. This Exhibit D shall not be deemed applicable to any additional
space added to the original Premises at any time or from time to
time, whether by any options under the Lease or otherwise, or to any
portion of the original Premises or any additions to the Premises in
the event of a renewal or extension of the original Term of this
Lease, whether by any options under the Lease or otherwise, unless
expressly so provided in the Lease or any amendment or supplement to
the Lease.
29
IN WITNESS WHEREOF, Landlord and Tenant have entered into this Exhibit as
of the date first written above.
WITNESS/ATTEST: LANDLORD:
EOP-NEW ENGLAND EXECUTIVE PARK,
L.L.C., a Delaware limited liability
company
- ------------------------
By: EOP Operating Limited Partnership,
a Delaware limited partnership,
it's sole member
Name (print):
-----------------------
By: Equity Office Properties
Trust, a Maryland real estate
investment trust, its managing
general partner
Name (print):
-----------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
WITNESS/ATTEST: TENANT:
FUNDTECH CORPORATION,
a Delaware corporation
Name (print): By:
----------------------- ---------------------------
(Name) (Title)
Hereunto Duly Authorized
Name (print):
-----------------------
30
EXHIBIT E
ADDITIONAL PROVISIONS
---------------------
This Exhibit is attached to and made a part of the Lease and is entered
into as of the 28th day of August, 2000, by and between EOP-NEW ENGLAND
EXECUTIVE PARK, L.L.C. ("Landlord") and FUNDTECH CORPORATION ("Tenant") for
space in the Building located at 24 New England Executive Park, Burlington,
Massachusetts.
RENEWAL OPTION
- --------------
A. Tenant shall have the right to extend the Lease Term (the "Renewal
Option") for one additional period of 5 years commencing on the day
following the Termination Date of the initial Lease Term and ending on
the 5th anniversary of the Termination Date (the "Renewal Term"), if:
1. Landlord receives written notice of exercise ("Initial Renewal
Notice") not less then twelve (12) full calendar months prior to the
expiration of the initial Lease Term and not more than fifteen (15)
full calendar months prior to the expiration of the initial Lease
Term; and
2. Tenant is not in default under the Lease beyond any applicable cure
periods at the time that Tenant delivers its Initial Renewal Notice
or at the time Tenant delivers its Binding Notice; and
3. No part of the Premises is sublet at the time that Tenant delivers
its Initial Renewal Notice or at the time Tenant delivers its
Binding Notice; and
4. The Lease has not been assigned prior to the date that Tenant
delivers its Initial Renewal Notice or prior to the date Tenant
delivers its Binding Notice; and
5. Tenant executes and returns the Renewal Amendment (hereinafter
defined) within fifteen (15) business days after its submission to
Tenant.
B. The initial Base Rental rate per rentable square foot for the Premises
during the Renewal Term shall equal the Prevailing Market (hereinafter
defined) rate per rentable square foot for the Premises.
C. Tenant shall pay Additional Base Rental (i.e. Basic Costs) for the
Premises during the Renewal Term in accordance with the terms and
conditions of the Lease.
D. Within thirty (30) days after receipt of Tenant's Initial Renewal
Notice, Landlord shall advise Tenant of the applicable Base Rental
rate for the Premises for the Renewal Term. Tenant, within fifteen
(15) business days after the date on which Landlord advises Tenant
of the applicable Base Rental rate for the Renewal Term, shall
either (i) give Landlord final binding written notice ("Binding
Notice") of Tenant's exercise of its option, or (ii) if Tenant
disagrees with Landlord's determination, provide Landlord written
notice of rejection (the "Rejection Notice"). If Tenant fails to
provide Landlord with either a Binding Notice or Rejection Notice
within such fifteen (15) business day period, Tenant's Renewal
Option shall be null and void and of no further force and effect. If
Tenant provides Landlord with a Binding Notice, Landlord and Tenant
shall enter into the Renewal Amendment upon the terms and conditions
set forth herein. If Tenant provides Landlord with a Rejection
Notice, Landlord and Tenant shall work together in good faith to
agree upon the Prevailing Market Base Rental rate for the Premises
during the Renewal Term. Upon agreement Tenant shall provide
Landlord with Binding Notice and Landlord and Tenant shall enter
into the Renewal Amendment in accordance with the terms and
conditions hereof. Notwithstanding the foregoing, if Landlord and
Tenant are unable to agree upon the Prevailing Market Base Rental
rate for the Premises within thirty (30) days after the date on
which Tenant provides Landlord with a Rejection Notice, Tenant's
Renewal Option shall be null and void and of no force and effect.
31
E. If Tenant is entitled to and properly exercises its Renewal Option,
Landlord shall prepare an amendment (the "Renewal Amendment") to
reflect changes in the Base Rental, Lease Term, Termination Date and
other appropriate terms. The Renewal Amendment shall be:
1. sent to Tenant within a reasonable time after receipt of the Binding
Notice; and
2. executed by Tenant and returned to Landlord in accordance with
paragraph A.5. above.
F. For purposes hereof, "Prevailing Market" shall mean the arms length
fair market annual rental rate per rentable square foot under renewal
leases and amendments entered into on or about the date on which the
Prevailing Market is being determined hereunder for space comparable to
the Premises in the Building and office buildings comparable to the
Building in Burlington, Massachusetts. The determination of Prevailing
Market shall take into account any material economic differences
between the terms of this Lease and any comparison lease, such as rent
abatements, construction costs and other concessions and the manner, if
any, in which the landlord under any such lease is reimbursed for
operating expenses and taxes. The determination of Prevailing Market
shall also take into consideration any reasonably anticipated changes
in the Prevailing Market rate from the time such Prevailing Market rate
is being determined and the time such Prevailing Market rate will
become effective under this Lease.
32
IN WITNESS WHEREOF, Landlord and Tenant have entered into this Exhibit as
of the date first written above.
WITNESS/ATTEST: LANDLORD:
EOP-NEW ENGLAND EXECUTIVE PARK,
L.L.C., a Delaware limited liability company
By: EOP Operating Limited
Partnership, a Delaware limited
partnership, it's sole member
Name (print):_____________________
By: Equity Office Properties Trust,
a Maryland real estate investment
trust, its managing general partner
Name (print):_____________________
By:_________________________________
Name:_______________________________
Title:______________________________
WITNESS/ATTEST: TENANT:
FUNDTECH CORPORATION, a Delaware corporation
Name (print):_____________________ By:_____________________________________
(Name) (Title)
Hereunto Duly Authorized
Name (print):_____________________
33
EXHIBIT F
FORM LETTER OF CREDIT
---------------------
[Name of Financial Institution]
Irrevocable Standby
Letter of Credit No.__________
Issuance Date: _______________
Expiration Date: _____________
Applicant: Fundtech Corporation
Beneficiary
EOP-New England Executive Park, L.L.C.
c/o Equity Office Properties
Three New England Executive Park
Burlington, Massachusetts 01803
Ladies/Gentlemen:
We hereby establish our Irrevocable Standby Letter of Credit in your favor
for the account of the above referenced Applicant in the amount of Two Hundred
Ninety-Five Thousand Nine Hundred Seven and 52/100 U.S. Dollars ($295,907.52)
available for payment at sight by your draft drawn on us when accompanied by the
following documents:
1. An original copy of this Irrevocable Standby Letter of Credit.
2. Beneficiary's dated statement purportedly signed by one of its
officers reading: "This draw in the amount of U.S. Dollars ($ )
under your Irrevocable Standby Letter of Credit No. represents funds
due and owing to us as a result of the Applicant's failure to comply
with one or more of the terms of that certain lease by and between
________, as landlord, and ______, as tenant."
It is a condition of this Irrevocable Standby Letter of Credit that it
will be considered automatically renewed for a one year period upon the
expiration date set forth above and upon each anniversary of such date, unless
at least sixty (60) days prior to such expiration date or applicable anniversary
thereof, we notify you in writing by certified mail, return receipt requested,
that we elect not to so renew this Irrevocable Standby Letter of Credit. A copy
of any such notice shall also be sent to: Equity Office Properties Trust, 2
North Riverside Plaza, Suite 2200, Chicago, IL 60606, Attention: Vice
President-Corporate Operations. In addition to the foregoing, we understand and
agree that you shall be entitled to draw upon this Irrevocable Standby Letter of
Credit in accordance with 1 and 2 above in the event that we elect not to renew
this Irrevocable Standby Letter of Credit and, in addition, you provide us with
a dated statement purportedly signed by one of Beneficiary's officers stating
that the Applicant has failed to provide you with an acceptable substitute
irrevocable standby letter of credit in accordance with the terms of the above
referenced lease. We further acknowledge and agree that: (a) upon receipt of the
documentation required herein, we will honor your draws against this Irrevocable
Standby Letter of Credit without inquiry into the accuracy of Beneficiary's
signed statement and regardless of whether Applicant disputes the content of
such statement; (b) this Irrevocable Standby Letter of Credit shall permit
partial draws and, in the event you elect to draw upon less than the full stated
amount hereof, the stated amount of this Irrevocable Standby Letter of Credit
shall be automatically reduced by the amount of such partial draw; and (c) you
shall be entitled to assign your interest in this Irrevocable Standby Letter of
Credit from time to time without our approval and without charge. In the event
of an assignment, we reserve the right to require reasonable evidence of such
assignment as a condition to any draw hereunder.
This Irrevocable Standby Letter of Credit is subject to the Uniform
Customs and Practice for Documentary Credits (1993 revision) ICC Publication No.
500.
34
We hereby engage with you to honor drafts and documents drawn under and in
compliance with the terms of this Irrevocable Standby Letter of Credit.
All communications to us with respect to this Irrevocable Standby
Letter of Credit must be addressed to our office located at____________________
___________________________________________________________to the attention of
__________________________________________.
Very truly yours,
________________________
[Name]
[Title]
35
TABLE OF CONTENTS
I. Basic Lease Information..........................................1
II. Lease Grant......................................................2
III. Adjustment of Commencement Date; Possession......................3
IV. Rent.............................................................3
V. Compliance with Laws, Use........................................7
VI. Security Deposit.................................................8
VII. Services to be Furnished by Landlord.............................8
VIII. Leasehold Improvements...........................................9
IX. Repairs and Alterations..........................................9
X. Use of Electrical Services by Tenant............................10
XI. Entry by Landlord...............................................11
XII. Assignment and Subletting.......................................12
XIII. Liens...........................................................13
XIV. Indemnity and Waiver of Claims..................................13
XV. Insurance.......................................................14
XVI. Subrogation.....................................................14
XVII. Casualty Damage.................................................14
XVIII. Condemnation....................................................15
XIX. Events of Default...............................................16
XX. Remedies........................................................16
XXI. Limitation of Liability.........................................17
XXII. No Waiver.......................................................17
XXIII. Quiet Enjoyment.................................................17
XXIV. Intentionally Omitted...........................................18
XXV. Holding Over....................................................18
XXVI. Subordination to Mortgages; Estoppel Certificate................18
XXVII. Attorneys' Fees.................................................18
XXVIII. Notice..........................................................19
XXIX. Excepted Rights.................................................19
XXX. Surrender of Premises...........................................19
XXXI. Miscellaneous...................................................20
XXXII. Entire Agreement................................................21
-i-