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EXHIBIT 10.22
MARKET SQUARE CENTER BUILDING
OFFICE SPACE LEASE Tenant:
NATIONAL TECHTEAM, INC.
Index Article
Basic Lease Provisions and Identification of Exhibits .................. 1
Premises, Term and failure to Give Possession .......................... 2
Rent ................................................................... 3
Security Deposit ....................................................... 4
Services ............................................................... 5
Possession, Use and Enjoyment of Premises .............................. 6
Condition of Premises .................................................. 7
Assignment and Subletting .............................................. 8
Maintenance ............................................................ 9
Alterations and Improvements ........................................... 10
Waiver of Claims and Indemnity ......................................... 11
Landlord's Remedies .................................................... 12
Surrender of Premises .................................................. 13
Holding Over ........................................................... 14
Damage by Fire or Other Casualty ....................................... 15
Eminent Domain ......................................................... 16
Tenant's Insurance ..................................................... 17
Rules and Regulations .................................................. 18
Landlords Rights ....................................................... 19
Estoppel Certificate ................................................... 20
Relocation of Tenant ................................................... 21
Rent Adjustments and Payments .......................................... 22
Real Estate Brokers .................................................... 23
Subordination and Attornment ........................................... 24
Notices ................................................................ 25
Exculpation ............................................................ 26
Miscellaneous .......................................................... 27
ARTICLE 1
BASIC LEASE PROVISIONS AND IDENTIFICATION OF EXHIBITS
1.01 BASIC LEASE PROVISIONS.
A. Building and Address: Market Square Center Building, 151 North Delaware,
Indianapolis, Indiana 46204
B. Landlord and Address: MET LIFE INTERNATIONAL REAL ESTATE PARTNERS
LIMITED PARTNERSHIP, a Delaware limited
partnership, having its principal office at
One Madison Avenue, New York, New York 10010
C. Tenant: NATIONAL TECHTEAM, INC., a Delaware corporation,
D. Date of Lease: November 27, 1995
E. Lease Term: 5 years
F. Commencement Date of Term: January 1, 1996
G. Expiration Date of Term: December 31, 2000
H. Monthly Base Rent: $1,959.00
I. Rentable Area of the Premises: Approximately 1,881 square feet
J. Security Deposit: N/A
K. Floor(s): A portion of the concourse level - see attached Exhibit A.
L. Tenant's Proportionate Share: 0.47%
M. Tenant's Use of Premises: office use
N. Brokers: F.C. Tucker Company, Inc. and William J. Moore
O. Base Year: 1995
P. Number of Parking Spaces: 3
1.02 ENUMERATION OF EXHIBITS. The exhibits set forth below and attached to this
Lease are incorporated in this Lease by this reference:
Exhibit A. Plot Plan of Premises
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ARTICLE 2
PREMISES, TERM AND FAILURE TO GIVE POSSESSION
2.01 LEASE OF PREMISES. Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord the premises (the "Premises") shown on Exhibit A which are
or will be contained in the office building (the "Building") located at 151
North Delaware, Indianapolis, Indiana, for the term and upon the conditions
provided in this Lease.
2.02 TERM. The term of this Lease (the "Term") shall commence on the date
(the "Commencement Date") which is the earlier to occur of:
(i) the date specified in 1.01F or
(ii) the date Tenant first occupies all or part of the Premises.
The Term shall expire on the date (the "Expiration Date") specified in 1.01G,
unless sooner terminated as otherwise provided elsewhere in this Lease.
2.03 FAILURE TO GIVE POSSESSION. If Landlord shall be unable to give
possession of the Premises on the Commencement Date by reason of any of the
following: (i) Landlord has not completed its preparation of the Premises, (ii)
Landlord is unable to give possession of the Premises by reason of the holding
over or retention of possession of any tenant, tenants or occupants, or (iii)
for any other reason, Landlord shall not be subject to any liability for the
failure to give possession on said date. Under such circumstances the Monthly
Base Rent and the Rent Adjustments reserved and covenanted to be paid herein
shall not commence until the Premises are available for occupancy by Tenant,
unless Landlord's failure to give possession of the Premises is due to the
fault of Tenant, and no such failure to give possession on the Commencement
Date shall affect the validity of this Lease or the obligations of Tenant
hereunder, nor shall the same be construed to extend the term of this Lease. If
the Premises are ready for occupancy prior to the Commencement Date and Tenant
occupies the Premises prior to said date, Tenant shall pay Monthly Base Rent
and Rent Adjustments for the period of occupancy prior to the Commencement Date
on a per diem basis. The Premises shall not be deemed to be unready for
Tenant's occupancy or incomplete if only minor insubstantial details of
construction, decoration or mechanical adjustments remain to be done in the
Premises or any part thereof, or if the delay in the availability of the
Premises for occupancy shall be due to special work, changes, alterations or
additions required or made by Tenant in the layout or finish of the Premises or
any part thereof or shall be caused in whole or in part by Tenant through the
delay of Tenant in submitting plans, supplying information, approving plans,
specifications or estimates, giving authorizations or otherwise or shall be
caused in whole or in part by delay and/or default on the part of Tenant and/or
its subtenant or subtenants. In the event of any dispute as to whether the
Premises are ready for Tenant's occupancy, the decision of Landlord's space
planner shall be final and binding on the parties.
ARTICLE 3
RENT
Tenant agrees to pay to Landlord at the office of the managing agent (the
"Manager") of the Landlord, or at such other place designated by Landlord,
without any prior demand therefor and without any deduction or set-off
whatsoever and without relief from valuation and appraisement laws, base rent
at the initial monthly rate specified in 1.01H ("Monthly Base Rent") during the
Term of the Lease. In addition to Monthly Base Rent, Tenant shall pay Rent
Adjustments pursuant to Section 22.02 and 22.04 and Rent Adjustment Deposits
pursuant to Section 22.03. Unless otherwise provided to the contrary in this
Lease, Monthly Base Rent shall be paid monthly in advance on the first day of
each month of the Term. Monthly Base Rent shall be prorated for partial months
within the Term. All other charges, costs and sums required to be paid
by Tenant to Landlord under this Lease shall be deemed additional rent, and
together with Monthly Base Rent, Rent Adjustments, and Rent Adjustment Deposits
shall hereinafter be collectively called "Rent". Tenant's covenant to pay Rent
shall be independent of every other covenant in this Lease.
ARTICLE 4
SECURITY DEPOSIT
As security for the performance of its obligations under this Lease and the
Workletter, Tenant upon its execution of this Lease has paid to Landlord a
security deposit (the "Security Deposit") in the amount specified in 1.01(J).
The Security Deposit may be applied by Landlord to cure any default of Tenant
under this Lease, and upon notice by Landlord of such application, Tenant shall
replenish the Security Deposit in full by promptly paying to Landlord the
amount so applied. Landlord shall not pay any interest on the Security Deposit.
Within 45 days after the Expiration Date, Landlord shall return to Tenant the
balance, if any, of the Security Deposit. The Security Deposit shall not be
deemed an advance payment of Rent or measure of damages for any default by
Tenant under this Lease, nor shall it be a bar to defense of any action which
Landlord may at any time commence against Tenant.
ARTICLE 5
SERVICES
5.01 LANDLORD'S GENERAL SERVICES. Landlord, as long as Tenant is not
in default under any of the covenants of this Lease, shall provide the
following services: (a) heat and air-conditioning in the Premises, Monday
through Friday from 8:00 A.M. to 6:00 P.M. and Saturdays from 9:00 A.M. to 1:00
P.M., excluding national holidays, to the extent necessary for the comfortable
occupancy of the Premises (subject to all applicable mandatory regulations and
laws) under normal business operation, (b) electrical power sufficient for the
operation of building standard lighting, typewriters, office copying machines
and other machines of similar low electrical consumption, but not in excess of
one kilowatt hour per month per square foot of rentable area in the Premises
and not including electricity required for electronic data processing
equipment, special lighting in excess of building standard, or any other item
of electrical equipment which (singly) consumes more than 500 watts per hour at
rated capacity or requires a voltage other than one hundred twenty (120) volts
single phase; and provided that if the installation of any of Tenant's
equipment, or any special electrical equipment installed by Landlord to service
Tenant's equipment, requires additional air conditioning or ventilating
capacity above that provided by the Building's standard systems, then the
additional air conditioning and/or ventilating equipment shall be provided by
Tenant and the installation and operating costs of such additional equipment
will be the obligation of Tenant and will be paid by Tenant within ten (10)
days after Tenant's receipt from Landlord of a bill for such costs, (c) tepid
water for use in lavatories Landlord installs for use in common with other
tenants. If Tenant desires water in the Premises, cold water only shall be
supplied from City of Indianapolis mains drawn through a line, meter and
fixtures installed by Tenant, at Tenant's expense, with Landlord's consent.
Tenant shall pay Landlord as additional Monthly Base Rent, at rates fixed by
Landlord, charges for all water furnished to the Premises, (d) customary
cleaning and janitorial services in the Premises substantially similar to those
provided in other similar office buildings in the City of Indianapolis, Monday
through Friday, excluding national holidays, (e) automatic passenger elevator
service in common with other tenants of the Building and freight elevator
service subject to scheduling by Landlord. The term national holidays as used
in this Section 5.01 shall also include other holidays recognized by Landlord
and the janitor and other union servicing the Building in accordance with their
contracts, (f) lamps, bulbs, tubes and ballasts for building standard lighting
fixtures initially used in the Premises, but Tenant shall reimburse Landlord
for the cost and expense of replacement lamps, bulbs, tubes and ballasts and
the installation thereof, (g) building security service during weekends and
after normal working hours during the week; provided, however, Landlord shall
not be liable to Tenant for losses due to theft or burglary, or for damages
done by persons in the Building. If Landlord determines that Tenant is a
substantial user of any utilities which are not separately metered, Landlord
may require Tenant to install submeters for such utilities, at Tenant's sole
cost and expense.
5.02 ELECTRICAL SURVEY. Landlord may employ an independent power consumption
survey expert to render an opinion as to the quantity of electricity consumed
by Tenant. If such survey indicates Tenant's consumption is in excess of one
kilowatt hour per month per square foot of rentable area in the Premises,
Tenant shall pay the cost of such survey together with the cost to Landlord of
such excess electrical consumption. Should any of the equipment or machinery
utilized in supplying the services listed herein cease to function properly,
Landlord shall use reasonable diligence to repair same promptly, but Tenant
shall have no right to terminate this Lease, and shall have no claim for rebate
of rental or damages on account of any interruptions in service occasioned
thereby or resulting therefrom. Notwithstanding any other provisions hereof, in
the event that any law, ordinance or other governmental regulation now or
hereafter in effect shall impose a limit or allocation to the Building of any
utility or other service, whether or not the same is to be supplied to the
Building or the Premises by Landlord pursuant to Section 5.01 above, then
Tenant shall not use or cause to be consumed on the Premises, nor shall
Landlord be required to provide to the Premises hereunder, such utility or
other service in an amount or in a manner which would result in violation by
Landlord or Tenant of such law, ordinance or regulation.
5.03 ADDITIONAL AND AFTER-HOUR SERVICES. Landlord shall in no event be
obligated to furnish any services or utilities, other than those specified in
5.01 above. If Landlord elects to furnish services or utilities requested by
Tenant in addition to those specified in 5.01 above (including but not limited
to the operation of special air-conditioning systems which may be required for
data processing equipment or for other special equipment or machinery installed
by Tenant or other utility services at times other than those specified in said
section). Tenant shall pay to Landlord 115% of the Landlord's then prevailing
cost for such services (other than utilities which shall be billed to Tenant at
Landlord's actual cost for the same) (such cost specifically shall include
amortization of Landlord's equipment) and Tenant shall pay to Landlord the cost
for such additional services, within 10 days after the receipt of Landlord's
invoices therefor. If Tenant shall fail to make any such payment Landlord may,
without notice to Tenant and in addition to Landlord's other remedies under
this Lease, discontinue any or all of the additional services.
5.04 DELAYS IN FURNISHING SERVICES. Landlord does not warrant that any of the
above services will be free from interruption caused by war, insurrection,
civil commotion, riots, acts of God, or the enemy, governmental action,
repairs, mechanical breakdown, renewals, improvements, alterations, strikes,
lockouts, picketing, whether legal or illegal, accidents, inability of Landlord
to obtain fuel or supplies or any other cause or causes beyond the reasonable
control of Landlord. No failure or delay in furnishing any service caused in
whole or in part
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by any one or more of the causes specified hereunder shall result in any
liability of Landlord to Tenant, or be deemed to be an eviction or disturbance
of Tenant's use and possession of the Premises, or relieve Tenant from its
obligation to pay all Rent when due or from any other obligations of Tenant
under this Lease.
ARTICLE 6
POSSESSION, USE AND ENJOYMENT OF PREMISES
6.01 POSSESSION AND USE OF PREMISES. Tenant shall be entitled to possession of
the Premises upon substantial completion of the improvements to the Premises,
provided, however, that such possession does not interfere with Landlord's
completion of the Premises. Tenant shall occupy and use the Premises only for
general office purposes in order to conduct the business specified in Section
1.01M and for no other purpose whatsoever without the prior written consent of
Landlord. Tenant shall not occupy or use the Premises (or permit the use or
occupancy of the Premises) for any purpose or in any manner which: (a) is
unlawful or in violation of any applicable legal, governmental or
quasi-governmental environmental or other requirement, ordinance or rule
(including, without limitation, the Board of Fire Underwriters); (b) may be
dangerous to persons or property; or (c) is contrary to or prohibited by the
terms and conditions of this Lease including the rules and regulations hereof.
6.02 ACCESS TO PREMISES. Tenant shall permit Landlord to erect, use and
maintain pipes, ducts, wiring and conduits in and through the Premises.
Landlord or Landlord's agents shall have the right to enter upon the Premises,
to inspect the same, to perform janitorial and cleaning services and to make
such repairs, alterations, improvements or additions to the Premises or the
Building as Landlord may deem necessary or desirable, and Landlord shall be
allowed to take all material into and upon said Premises that may be required
therefor without the same constituting an eviction of Tenant, in whole or in
part and the rent reserved shall not abate (except as provided in Article 15)
while said repairs, alterations, improvements, or additions are being made, by
reason of loss or interruption of business of Tenant, or otherwise. If Tenant
shall not be personally present to open and permit any entry into said
Premises, at any time, when for any reason an entry therein shall be necessary
or permissible, Landlord or Landlord's agents may enter the same by a master
key, or may forcibly enter the same, without rendering Landlord or such agents
liable therefor (if during such entry Landlord or Landlord's agents shall
accord reasonable care to Tenant's property), and without in any manner
affecting the obligations and covenants of this Lease. Nothing herein
contained, however, shall be deemed or construed to impose upon Landlord any
obligations, responsibility or liability whatsoever, for the care, supervision
or repair of the Building or any part thereof, other than as herein provided.
Landlord shall also have the right at any time without the same constituting an
actual or constructive eviction and without incurring any liability to Tenant
therefor, to change the arrangement and/or location of entrances or
passageways, doors and doorways, and corridors, elevators, stairs, toilets or
public parts of the Building, and to close entrances, doors, corridors,
elevators or other facilities. Landlord shall not be liable to Tenant for any
expense, injury, loss or damage resulting from work done in or upon, or the use
of, any adjacent or nearby building, land, street, or alley.
ARTICLE 7
CONDITION OF PREMISES
Tenant shall notify Landlord in writing within 10 days after Tenant takes
possession of the Premises of any defects in the Premises claimed by Tenant,
other than damage caused by Tenant's own actions. Except for defects stated in
such notice, Tenant shall be conclusively deemed to have accepted the Premises
in the condition existing on the date Tenant first takes possession, and to have
waived all claims relating to the condition of the Premises. No agreement of
Landlord to alter, remodel, decorate, clean or improve the Premises or the
Building and no representation regarding the condition of the Premises or the
Building has been made by or on behalf of Landlord to Tenant, except as stated
in this Lease.
ARTICLE 8
ASSIGNMENT AND SUBLETTING
8.01 CONSENT REQUIRED. Without the prior written consent of Landlord, Tenant
may not sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or
permit the transfer of this Lease or the interest of Tenant in this Lease, in
whole or in part, by operation of law or otherwise. If Tenant desires to enter
into any sublease or assignment, Tenant shall deliver written notice thereof to
Landlord, together with financial and other information sufficient for Landlord
to make an informed judgment with respect to such proposed subtenant or
assignee and a copy of the proposed sublease or assignment agreement at least
60 days prior to the commencement date of the term of the proposed sublease or
assignment. In making its determination of whether to consent to any proposed
sublease or assignment, Landlord may take into consideration the business
reputation and credit worthiness of the proposed subtenant or assignee; the
intended use of the Premises by the proposed subtenant or assignee; the
estimated pedestrian and vehicular traffic in the Premises and to the Building
which would be generated by the proposed subtenant or assignee; and any other
factors which Landlord shall deem relevant. The withholding or granting of any
such consent shall be in the sole discretion of Landlord. Landlord shall in no
event be obligated to consider a consent to any proposed sublease or assignment
of the Premises if Tenant is then in default under this Lease. Any approved
sublease or assignment shall be expressly subject to the terms and conditions
of this Lease, and in the event of an assignment, the instrument shall contain
a clause obligating the assignee to assume Tenant's obligations to Landlord
during the term of the assignment Tenant shall pay Landlord on the first day of
each month during the term of the sublease, the excess of all rent and other
consideration due from the subtenant or assignee for such month over that
portion of the Monthly Base Rent and Rent Adjustment due under this Lease for
said month which is allocable to the space sublet or assigned.
8.02 LANDLORD'S OPTION. In the event Landlord consents pursuant to Article 8.01
above to any sublease of the Premises, Landlord shall have the option to exclude
from the Premises covered by this Lease, the space proposed to be sublet by
Tenant, effective as of the proposed commencement date of sublease of said space
by Tenant. Landlord may exercise said option by giving Tenant written notice
thereof within 20 days after receipt by Landlord of Tenant's notice of the
proposed sublease. In the event Landlord exercises said option, Tenant shall
surrender possession of the proposed sublease space to Landlord on the effective
date of exclusion of said space from the Premises covered by this Lease, and
neither party hereto shall have any further rights or liabilities with respect
to said space under this Lease. Effective as of the date of exclusion of any
portion of the Premises covered by this Lease pursuant to this paragraph, (i)
the Monthly Base Rent specified in 1.01H shall be reduced in the same proportion
as the number of square feet of rentable area contained in the portion of the
Premises so excluded bears to the number of square feet of rentable area
contained in the Premises prior to such exclusion, and (ii) the Rentable Area of
the Premises specified in 1.01I and Tenant's Proportionate Share specified in
1.01L shall be decreased in the same proportion that the Premises has been
decreased, for all purposes under this Lease.
8.03 TENANT'S LIABILITY. In the event of any approved sublease or
assignment, Tenant shall not be released or discharged from any liability,
whether past, present or future, under this Lease, including any renewal term of
this Lease. For purposes of this Article 8, an assignment shall be deemed to
include a change in the majority control of Tenant, if Tenant is a partnership
or a corporation whose shares of stock are not traded publicly. If Landlord
grants consent to such sublease of assignment Tenant shall pay all of the
attorney fees of Landlord incurred with respect to such assignment or sublease.
In addition, if Tenant has any options to renew the term of this Lease, such
options shall not be available to any subtenant, directly or indirectly.
ARTICLE 9
MAINTENANCE
9.01 LANDLORD'S MAINTENANCE. Landlord shall maintain and make necessary repairs
to foundations, roofs, exterior walls, marquees, and the structural elements of
the Building, and, subject to the provisions of Article 15, the electrical,
plumbing, heating, ventilation and air-conditioning systems of the Building and
the public corridors, washrooms and lobby of the Building, except that: (a)
Landlord shall not be responsible for the maintenance or repair of any such
systems which are located within the Premises and are supplemental or special to
the Building's standard systems; and (b) the cost of performing any of said
maintenance or repairs caused by the negligence of Tenant, its employees,
agents, servants, licensees, subtenants, contractors or invitees, shall be paid
by Tenant, except to the extent of insurance proceeds, if any, actually
collected by Landlord with regard to the damage necessitating such repairs. As
used in this Section 9.01, the "exterior walls" do not include interior glass,
windows, doors, window sashes or frames, door frames or office fronts of the
Premises.
9.02 TENANT'S MAINTENANCE. Tenant, at its expense, shall keep and maintain the
Premises in good order, condition and repair and in accordance with all
applicable legal, governmental and quasi-governmental requirements, ordinances
and rules (including the Board of Fire Underwriters). Tenant shall promptly and
adequately repair all damages to the Premises and replace or repair all damaged
or broken glass in the interior of the Premises, fixtures or appurtenances. If
Tenant fails to perform any of its obligations set forth in this Section 9.02,
Landlord may, in its sole discretion, perform the same, and Tenant shall pay to
Landlord the cost therefor upon demand.
ARTICLE 10
ALTERATIONS AND IMPROVEMENTS
10.01 TENANT'S ALTERATIONS. Tenant shall not, without the prior
written consent of Landlord, make or cause to be made any alterations,
improvements, additions, installations or decorations in or to the Premises.
If Landlord so consents, before commencement, of any such work or delivery of
any materials into the Premises or the Building, Tenant shall furnish to
Landlord for approval architectural plans and specifications, names and
addresses of all contractors and subcontractors, copies of all contracts,
affidavits from engineers acceptable to Landlord stating that the alterations
will not in any way adversely affect the mechanical, heating, ventilating,
air-conditioning, and the electrical systems in the Building, necessary permits
and licenses, certificates of insurance and instrument of indemnification
against any and all claims, costs, expenses, damages and liabilities which may
arise in connection with such work, and such other documents requested by
Landlord, all in such form and amount as may be satisfactory to Landlord. In
addition, prior to commencement of any such work.
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or delivery of any materials into the Premises. Tenant shall provide
Landlord with appropriate evidence of Tenant's ability to pay for such work and
materials in full, and, if requested by Landlord, shall deposit with Landlord
at such time such security for the payment of said work and materials as
Landlord may require. Whether or not Tenant furnishes the foregoing, Tenant
agrees to indemnify and hold Landlord, any mortgagee of the Building, the
Manager and their respective directors, officers, agents and employees
(hereinafter for convenience sometimes collectively referred to as the
"Indemnities") forever harmless against all claims and liabilities of every
kind, nature and description which may arise out of or in any way be connected
with such work. All such work shall be done only by contractors or mechanics
approved by Landlord and at such time and in such manner as Landlord may from
time to time designate. Tenant shall pay the cost of all such work and the
cost of decorating the Premises and the Building occasioned thereby. Upon
completion of such work, Tenant shall furnish Landlord with contractor's
affidavits and full and final waivers of lien and receipted bills covering all
labor and materials expended and used in connection therewith. All such work
shall be in accordance with all applicable legal, governmental and
quasi-governmental requirements, ordinances and rules (including the Board of
Fire Underwriters), and all requirements of applicable insurance companies.
All such work shall be done in a good and workmanlike manner and with the use
of good grades of materials and in accordance with the approved plans and
specifications. Tenant shall permit Landlord, if Landlord so desires, to
supervise construction operations in connection with such work. In no event
shall such supervision or right to supervise by Landlord nor shall any
approvals given by Landlord under this Lease constitute any warranty by
Landlord to Tenant of the adequacy of the design, workmanship or quality of
such work or materials for Tenant's intended use or impose any liability upon
Landlord in connection with the performance of such work. All alterations,
improvements, temporary or permanent, additions and installations to or on the
Premises, whether placed there by Landlord or Tenant, shall, unless Landlord
requests their removal, become part of the Premises at the time of their
installation and shall remain in the Premises at the expiration or termination
of this Lease, or termination of Tenant's right of possession of the Premises,
without compensation or credit to Tenant.
10.02 LIENS. Tenant shall not permit any lien or claim for lien of any
mechanic, laborer or supplier or any other lien to be filed against the
Building, the Land (as defined in Section 22.01(I)), the Premises, or any part
thereof arising out of work performed, or alleged to have been performed by, or
at the direction of, or on behalf of Tenant. If any such lien or claim for
lien is filed, Tenant immediately either shall have such lien or claim for lien
released of record or shall deliver to Landlord either: (i) a bond in form,
content, amount, and issued by surety satisfactory to Landlord, indemnifying
Landlord, the Indemnities and others designated by Landlord against all costs
and liabilities resulting from such lien or claim for lien and the foreclosure
or attempted foreclosure thereof, or (ii) endorsements to the title policies of
Landlord and Landlord's mortgagee "insuring over" such liens satisfactory to
Landlord and Landlord's mortgagee, respectively. If Tenant fails to have such
lien or claim for lien so released or to deliver such bond or title endorsement
to Landlord, Landlord, without investigating the validity of such lien, may pay
or discharge the same and Tenant shall reimburse Landlord upon demand for the
amount so paid by Landlord, including Landlord's expenses and attorneys' fees.
Landlord and Tenant hereby expressly agree that Landlord has not consented to
any work being performed on the Premises at the direction of Tenant nor the
placement of any liens thereon.
ARTICLE 11
WAIVER OF CLAIMS AND INDEMNITY
11.01 WAIVER OF CLAIMS. To the extent permitted by law, Tenant releases the
Indemnities (as defined in Section 10.01 hereof) from, and waives all claims
for, damage to person or property sustained by Tenant or any occupant of the
Building or Premises resulting from the Building or Premises, or any part of
either, or any equipment appurtenance, becoming out of repair, or resulting from
any accident in or about the Building, or resulting directly or indirectly from
any act or neglect of any tenant or occupant of the Building or of any other
person, including Landlord's agents and servants. This Section 11.01 shall
apply especially, but not exclusively to the flooding of basements or other
subsurface areas, and to damage caused by refrigerators, sprinkling devices,
air-conditioning apparatus, water, snow, frost, steam, excessive heat or cold,
falling plaster, broken glass, sewage, gas, odors or noise, or the bursting or
leaking of pipes or plumbing fixtures, and shall apply equally whether any such
damage results from the act or neglect of Landlord or of other tenants,
occupants or servants in the Building or of any other person, and whether such
damage be caused or result from any thing or circumstances above mentioned or
referred to, or any other thing or circumstances whether of a like nature or of
a wholly different nature. If any such damage, whether to the Premises or to
the Building or any part thereof, or whether to Landlord or to other tenants in
the Building, results from any act or neglect of Tenant, its employees, agents,
invitees and customers, Tenant shall be liable therefor and Landlord may, at
Landlord's option, repair such damage and Tenant shall, upon demand by Landlord,
reimburse Landlord forthwith for the total cost of such repairs. Tenant shall
not be liable for any damage caused by its acts or neglect if Landlord or a
tenant has recovered the full amount of the damage from insurance and the
insurance company has waived its right of subrogation against Tenant.
11.02 INDEMNITY. Tenant agrees to indemnify and hold the Indemnities (as
defined in Section 10.01 hereof) harmless against any and all claims, demands,
costs and expenses, including reasonable attorneys' fees for the defense
thereof, arising from Tenant's occupation of the Premises or from any breach or
default on the part of Tenant in the performance of any covenant or agreement
on the part of Tenant to be performed pursuant to the terms of this Lease, or
from any acts or negligence of Tenant, its agents, servants, employees or
invitees, in or about the Premises. In case of any action or proceeding
brought against the Indemnities by reason of any such claim, upon notice from
Landlord, Tenant covenants to defend such action or proceeding by counsel
reasonably satisfactory to Landlord.
11.03 WAIVER OF SUBROGATION. Landlord and Tenant hereby release each
other and each other's employees, agents, customers and invitees from any and
all liability for any loss of or damage or injury to person or property
occurring in, on or about or to the Premises, the Building or personal property
within the Building by reason of fire or other casualty which could be insured
against under a standard fire and extended coverage insurance policy,
regardless of cause, including the negligence of Landlord or Tenant and their
respective employees, agents, customers and invitees, and agree that such
insurance carried by either of them shall contain a clause whereby the insurer
waives its right of subrogation against the other party. Because the
provisions of this Section 11.03 are intended to preclude the assignment of any
claim mentioned herein by way of subrogation or otherwise to an insurer or any
other person, each party to this Lease shall give to each insurance company
which has issued to it one of more policies of fire and extended coverage
insurance notice of the provisions of this Section 11.03 and have such
insurance policies properly endorsed, if necessary, to prevent the invalidation
of such insurance by reason of the provisions of this Section 11.03.
ARTICLE 12
LANDLORD'S REMEDIES
12.01 EVENTS OF DEFAULT. Each of the following shall constitute a
breach of this Lease by Tenant: Tenant fails to pay any installment or other
payment of Rent including without limitation Rent Adjustment Deposits or Rent
Adjustments when due; Tenant fails to observe or perform any of the other
covenants, conditions or provisions of this Lease to be observed or performed
by Tenant and fails to cure such default within 15 days after written notice
thereof to Tenant; the interest of Tenant in this Lease is levied upon under
execution or other legal process; a petition is filed by or against Tenant to
declare Tenant bankrupt or seeking a plan of reorganization or arrangement
under any Chapter of the Bankruptcy Act, or any amendment, replacement or
substitution therefore, or to delay payment of, reduce or modify Tenant's debts,
or any petition is filed or other action taken to reorganize or modify Tenant's
capital structure or upon the dissolution of Tenant; Tenant is declared
insolvent by law or any assignment of Tenant's property is made for the benefit
of creditors; a receiver is appointed for Tenant or Tenant's property; or
Tenant abandons the Premises for a continuous period of five days or more
provided that Tenant shall not be in default so long as the Premises are kept
in a clean and orderly fashion and Tenant pays all Rent as it becomes due.
12.02 LANDLORD'S REMEDIES. In the event of any breach of this Lease by
Tenant, Landlord, at its option, without further notice or demand to Tenant,
may, in addition to all other rights and remedies provided in this Lease, at
law or in equity: (a) terminate this Lease and Tenant's right of possession of
the Premises, and recover all damages to which Landlord is entitled under law,
specifically including, without limitation, Rent for the balance of the Term,
all Landlord's expenses of reletting (including repairs, alterations,
improvements, additions, decorations, legal fees and brokerage commissions), or
(b) terminate Tenant's right of possession of the Premises without terminating
this Lease, in which event Landlord may, but shall not be obligated to, relet
the Premises, or any part thereof for the account of Tenant, for such rent and
term and upon such terms and conditions as are acceptable to Landlord. For
purposes of such reletting, Landlord is authorized to decorate, repair, alter
and improve the Premises to the extent reasonably necessary. If Landlord fails
or refuses to relet the Premises or if the Premises are relet and a sufficient
sum not be realized therefrom after payment of all Landlord's expenses of
reletting (including repairs, alterations, improvements, additions,
decorations, legal fees and brokerage commissions) to satisfy the payment when
due of Rent reserved under this Lease for any monthly period, then Tenant shall
pay Landlord, a sum equal to the amount of Rent due under this Lease for each
such monthly period, or if the Premises have been relet, Tenant shall pay such
deficiency monthly. Tenant agrees that Landlord may file suit to recover any
sums due to Landlord hereunder from time to time and that such suit or recovery
of any amount due Landlord hereunder shall not be any defense to any subsequent
action brought for any amount not theretofore reduced to judgment in favor of
Landlord. In the event Landlord elects, pursuant to this subsection (b) of
this Section 12.02, to terminate Tenant's right of possession only without
terminating this Lease, Landlord may, at Landlord's option, enter into the
Premises, remove Tenant's signs and other evidences of tenancy, and take and
hold possession thereof, as provided in Article 13 hereof; provided, however,
that such entry and possession shall not terminate this Lease or release
Tenant, in whole or in part, from Tenant's obligation to pay the Rent reserved
hereunder for the full Term or from any other obligation of Tenant under this
Lease.
Any and all property which may be removed from the Premises by Landlord
pursuant to the authority of the Lease or of law, to which Tenant is or may be
entitled may be handled, removed or stored by Landlord at the risk, cost and
expense of Tenant, and Landlord shall in no event be responsible for the value,
preservation or safekeeping thereof. Tenant shall pay to Landlord, upon
demand, any and all expenses incurred in such removal and all storage charges
against such property so long as the same shall be in Landlord's possession or
under Landlord's control. Any such property of Tenant not retaken from storage
by Tenant within thirty (30) days after the end of the Term, however
terminated, shall be conclusively presumed to have been conveyed by Tenant to
Landlord under this Lease as a bill of sale without further payment or credit
by Landlord to Tenant. Tenant hereby grants to Landlord a first lien upon the
interest of Tenant under this Lease to secure the payment of moneys due under
this Lease, which lien may be enforced in equity; and Landlord shall be
entitled as a matter of right to have a receiver appointed to take possession
of the Premises and relet the same under order of court.
12.03 ATTORNEYS' FEES. Tenant shall pay upon demand, all costs and
expenses, including attorneys' fees, incurred by Landlord in enforcing the
observance and performance by Tenant of all covenants, conditions and provisions
of this Lease to be observed and performed by Tenant, or resulting from
Tenant's default under this Lease.
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ARTICLE 13
SURRENDER OF PREMISES
Upon expiration or termination of this Lease or termination of Tenant's
right of possession of the Premises, or any part thereof, Tenant shall
surrender and vacate the Premises immediately and deliver possession thereof to
Landlord in a clean, good and tenantable condition, ordinary wear and tear
excepted. Upon any termination which occurs other than by reason of Tenant's
default, Tenant shall be entitled to remove from the Premises all movable
personal property of Tenant, provided Tenant immediately shall repair all damage
resulting from such removal and shall restore the Premises to a tenantable
condition. In the event possession of the Premises is not immediately
delivered to Landlord or if Tenant shall fail to remove all of Tenant's movable
personal property, as aforesaid, Landlord may remove any of such property
therefrom without any liability to Tenant. All movable personal property which
may be removed from the Premises by Landlord shall be conclusively presumed to
have been abandoned by Tenant and title thereto shall pass to Landlord without
any cost or credit therefor and Landlord may at its option and at Tenant's
expense, store and/or dispose of such property.
ARTICLE 14
HOLDING OVER
Tenant shall pay Landlord double the Monthly Base Rent, plus Landlord's estimate
of the Rent Adjustments then applicable, for each month or portion thereof that
Tenant retains possession of the Premises, or any portion thereof, after the
expiration or termination of this Lease, and also shall pay all damages
sustained by Landlord, consequential as well as direct, by reason of such
retention of possession. The provisions of this Article shall not constitute a
waiver by Landlord of any reentry rights of Landlord hereinbefore or by law
provided. If Tenant retains possession of the Premises, or any part thereof,
for 30 days after the expiration or termination of this Lease, then at the sole
option of Landlord expressed by written notice to Tenant, but not otherwise,
such holding over shall constitute a renewal of this Lease on a month-to-month
basis on the same terms and conditions as provided in this Lease.
ARTICLE 15
DAMAGE BY FIRE OR OTHER CASUALTY
15.01 SUBSTANTIAL UNTENANTABILITY. If the Building or the Premises are
made substantially untenantable by fire or other casualty, Landlord may elect
either to: (a) terminate this Lease as of the date of the fire or other casualty
by giving Tenant written notice thereof within 90 days after said date; or (b)
proceed to repair or restore the Building or the Premises, other than leasehold
improvements and personal property paid for or installed by Tenant, and this
Lease shall remain in full force and effect.
If Landlord elects to proceed pursuant to subsection (b) above,
Landlord shall notify Tenant thereof within 90 days after the date of such fire
or other casualty, which notice shall contain Landlord's reasonable estimate of
the time required to substantially complete such repair or restoration. In the
event such estimate indicates that the time so required will exceed 180 days
from the date of the casualty, then Tenant shall have the right to terminate
this Lease as of the date of such casualty by giving written notice thereof to
Landlord not later than 20 days after the date of Landlord's notice. If
Landlord's estimate indicates that the repair or restoration can be
substantially completed with 180 days, or if Tenant fails to exercise its right
to terminate this Lease, as aforesaid, this Lease shall remain in force and
effect.
15.02 INSUBSTANTIAL UNTENANTABILITY. If the Premises or the Building are
damaged by fire or other casualty but neither is rendered substantially
untenantable, then Landlord shall proceed to repair and restore the Building or
the Premises, other than the leasehold improvements and personal property paid
for or installed by Tenant, unless such damage occurs during the last 12 months
of the Term, in which event Landlord shall have the right to terminate this
Lease as of the date of such fire or other casualty by giving written notice
thereof to Tenant within 30 days after the date of such fire or other casualty.
15.03 RENT ABATEMENT. Except for the negligence or willful act of
Tenant or its agents, employees, contractors or invitees, if all or any part of
the Premises are rendered substantially untenantable by fire or other casualty
and this Lease is not terminated, Monthly Base Rent and Rent Adjustments shall
abate for that part of the Premises which is untenantable on a per diem basis
from the date of the fire or other casualty until Landlord has substantially
completed the repair and restoration work in the Premises which it is required
to perform, provided, that as a result of such fire or other casualty, Tenant
does not occupy the portion of the Premises which is untenantable during such
period.
ARTICLE 16
EMINENT DOMAIN
16.01 TAKING OF WHOLE OR SUBSTANTIAL PART. In the event the whole or
any substantial part of the Building, the Land (as defined in Section 22.01(I)
or the Premises is taken or condemned by any competent authority for any public
use or purpose (including a deed given in lieu of condemnation), this Lease
shall terminate as of the date title vests in such authority, and Monthly Base
Rent and Rent Adjustments shall be apportioned as of said date.
16.02 TAKING OF PART. In the event a part of the Land, Building or the Premises
is taken or condemned by any competent authority for any public use or purpose
(including a deed given in lieu of condemnation) and this Lease is not
terminated pursuant to Section 16.01, the Lease shall be amended to reduce the
Monthly Base Rent in the same ratio as the number of square feet of rentable
area in the Premises so taken or condemned bears to the number of square feet of
rentable area then leased by Tenant and to adjust Tenant's Proportionate Share
to reflect its percentage of rentable area in the Building compared to the total
rentable area remaining after such taking or condemnation. Landlord, upon
receipt and to the extent of the award in condemnation or proceeds of sale and
to the extent such funds are available from Landlord's mortgagees, shall make
necessary repairs and restorations (exclusive of Tenant's leasehold improvements
and personal property paid for or installed by Tenant) to restore the Premises
remaining to as near its former condition as circumstances will permit, and to
the Building to the extent necessary to constitute the portion of the Building
not so taken or condemned as a complete architectural unit. In the event of a
partial taking or condemnation of the Premises and/or the Building as herein
described, the rentable area of the Premises then leased by Tenant and/or the
rentable area of the Building as specified in this Lease, respectively, shall be
reduced for ail purposes under this Lease by the number of square feet of
rentable area of the Premises and/or the Building, respectively, so taken or
condemned. Notwithstanding the foregoing, if as a result of any taking
including a governmental order that the grade of any street or alley adjacent to
the Building is to be changed and such taking or change of grade makes it
necessary or desirable to substantially remodel or restore the Building,
Landlord shall have the right to terminate this Lease upon ninety (90) days'
prior written notice.
16.03 COMPENSATION. Landlord shall be entitled to receive the entire
price or award from any such sale, taking or condemnation without any payment
to Tenant, and Tenant hereby assigns to Landlord Tenant's interest, if any, in
such award.
ARTICLE 17
TENANT'S INSURANCE
Tenant, at Tenant's expense, agrees to maintain in full force and
effect during the Term of the Lease, Comprehensive General Liability Insurance
naming Landlord and Tenant as insured parties and covering the Premises on an
"occurrence" basis against all claims for personal injury, bodily injury, death
and property damage and including contractual liability specifically covering
the indemnification provision in Article 11.02 and be for such limits as
reasonably required by the Landlord from time to time, but not less than a
combined single limit of $1,000,000.
Prior to the Commencement Date and at any time thereafter upon
Landlord's request, Tenant shall submit to Landlord a Certificate(s) of
Insurance as evidence of the insurance required in this Article. Such
Certificate shall stipulate that the insurance certified thereby shall not be
materially changed or cancelled by the insurer or any insured thereunder without
30 days' prior written notice to Landlord.
Tenant, on its own behalf and on behalf of any insurer providing
insurance on Tenant's property, waives any claim against Landlord with respect
to any damage to Tenant's property which is, or customarily is, covered by a
standard insurance policy for fire and extended coverage.
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ARTICLE 18
RULES AND REGULATIONS
18.01 RULES AND REGULATIONS. Tenant agrees for itself and for its subtenants,
employees, agents, and invitees to comply with all rules and regulations
established by Landlord from time to time, and with all reasonable
modifications and additions thereto which Landlord may from time to time
hereafter make.
18.02 VIOLATION AND ENFORCEMENT. In addition to all other liabilities,
rights and remedies for breach of any covenant of this Article 18, Tenant shall
pay to Landlord all damages caused by such breach and shall also pay to
Landlord as additional rent an amount equal to any increase in insurance
premium or premiums caused by such breach. Any violation of this Article 18
may be restrained by injunction. Tenant shall be liable to Landlord for all
damages resulting from violation of any of the provisions of this Article 18.
Nothing in this Lease shall be construed to impose upon Landlord any duty or
obligation to enforce provisions of this Article 18 or any rules and
regulations hereafter adopted, or the terms, covenants or conditions of any
other lease as against any other tenant, and Landlord shall not be liable to
Tenant for violation of the same by any other tenant, its servants, employees,
agents, visitors or licensees.
ARTICLE 19
LANDLORD'S RIGHTS
Landlord shall have the following rights exercisable without notice
(except as expressly provided to the contrary in this Lease), without liability
to Tenant for damage or injury to persons, property or business and without
being deemed an eviction or disturbance of Tenant's use or possession of the
Premises or giving rise to any claim for setoff or abatement of Rent: (1) To
change the Building's name or street address upon 30 days' prior written notice
to Tenant; (2) To install, affix and maintain all signs on the exterior and/or
interior of the Building; (3) To designate and/or approve prior to
installation, all types of signs, window shades, blinds, draperies, awnings or
other similar items, and all internal lighting that may be visible from the
exterior of the Premises; (4) To display the Premises to prospective tenants at
reasonable hours during the last 12 months of the Term; (5) To grant to any
party the exclusive right to conduct any business or render any service in or
to the Building, provided such exclusive right shall not operate to prohibit
Tenant from using the Premises for the purpose permitted hereunder; (6) To
prohibit the placing of vending or dispensing machines of any kind in or about
the Premises, (7) To designate all sources furnishing sign painting and
lettering, ice, drinking water, towels, coffee cart service and toilet supplies
used on the Premises; (8) To have access for Landlord and other tenants of the
Building to any mail chutes and boxes located in or on the Premises according
to the rules of the United States Post Office; (9) To close the Building after
normal business hours, except that Tenant and its employees and invitees shall
be entitled to admission at all times, under such regulations as Landlord
prescribes for security purposes; and (10) to control the common areas of the
Building in such manner as Landlord deems necessary or proper (including,
without limitation, requiring all persons entering or leaving the Building to
identify themselves and their business in the Building; or excluding or
expelling any peddler, solicitor or loud or unruly person from the Building).
ARTICLE 20
ESTOPPEL CERTIFICATE
Within ten (10) days after request therefor by Landlord or any
mortgagee, or prospective mortgagee, Tenant agrees to deliver to Landlord or
any prospective owner or mortgagee, or prospective mortgagee, an Estoppel
Certificate in recordable form, binding upon Tenant, wherein Tenant shall
certify and agree that: (a) the Lease is in full force and effect, and indicate
what the Commencement Date of the Lease is; (b) Tenant has no offsets or
defenses to its performance of the terms and conditions of this Lease,
including the payment of rent, if such be the case, or if Tenant believes in
good faith there are any such defenses or offsets, specifying the same; (c)
Tenant is in the possession of the Premises; (d) Tenant will not pay rent more
than one (1) month in advance to the Landlord; (e) Tenant will not look to any
mortgagee for any security deposits paid to Landlord hereunder unless such
deposits have been received in cash by such mortgagee; (f) If an assignment of
rents; or leases has been served upon the Tenant by a mortgagee or prospective
mortgagee, acknowledging receipt thereof and agreeing to be bound by the
provisions thereof; (g) Tenant will give to the first mortgagee copies of all
notices required or permitted to be given by Tenant to Landlord; and (h) Any
other reasonable requirements of Landlord or a mortgagee.
ARTICLE 21
RELOCATION OF TENANT
At any time after the execution date of this Lease, Landlord may
substitute for the Premises, other premises in the Building (the "New
Premises"), in which event the New Premises shall be deemed to be the Premises
for all purposes under this Lease; provided, the New Premises shall be
substantially similar to the Premises in area, location and configuration; the
substitution shall be made in order to lease the Premises to a tenant of the
Building or a proposed tenant who as a result of such tenancy will occupy, all
or a substantial part of the floor of the Building on which the Premises are
located; if Tenant is then occupying the Premises, Landlord shall pay the
actual and reasonable expenses of physically moving Tenant, its property and
equipment to the New Premises; Landlord shall give Tenant not less than 30
days' prior written notice of such substitution; and Landlord, at its expense,
shall improve the New Premises with improvements substantially similar to those
in the Premises at the time of such substitution, if the Premises are then
improved, or if not then improved, Landlord, at its expense, shall improve the
New Premises in accordance with plans and specifications to be prepared by
Landlord.
ARTICLE 22
RENT ADJUSTMENTS AND PAYMENTS
22.01 DEFINITIONS. For all purposes of this Lease, the following words and
phrases shall have the following meanings:
A. "BASE YEAR" shall be the calendar year described in Section 1.01(O).
B. "RENT ADJUSTMENT" or "RENT ADJUSTMENTS" means any amount owed by
Tenant resulting from increases in Operating Expenses or Taxes, as
hereinafter defined. The Rent Adjustments shall be determined under Section
22.02 and shall be paid in addition to Monthly Base Rent as provided in
Section 22.04.
C. "ADJUSTMENT YEAR" means the calendar year (or any portion thereof) in
which the Commencement Date occurs and for which a Rent Adjustment
computation is being made.
D. "RENT ADJUSTMENT DEPOSIT" shall be equal to the Rent Adjustment
attributable to each month within the latest Adjustment Year for which the
Rent Adjustment has been or is being determined. The Rent Adjustment
Deposit shall be calculated by dividing the Landlord's estimate of the
total annual increase in Operating Expenses and Taxes for the latest
Adjustment Year by the number of square feet in the Building, and then
multiplying the quotient thereof times the Rentable Area of the Premises
and then dividing the product thereof by 12.
E. "OPERATING EXPENSES" shall mean all costs, expenses and disbursements of
every kind and nature which Landlord shall pay or become obligated to pay
in connection with the management, operation, maintenance, replacement and
repair of the Real Property (as hereinafter defined) including capital
expenses necessary to cause the Building to conform to any new building
codes enforced by a governmental authority, current amortization of capital
improvements reasonably necessary for the operation and maintenance of the
Building and of the personal property, fixtures, machinery, equipment,
systems and apparatus located in or used in connection with the Real
Property, including without limitation, insurance and utility expenses
(including the cost of energy management systems), except as hereinafter
provided. Operating Expenses shall not include the following: costs of
improvement of the Premises and the premises of other tenants of the
Building; charges for depreciation of the Building; interest and principal
payments on mortgages; ground rental payments; real estate brokerage and
leasing commissions; expenses incurred in enforcing obligations of other
tenants of the Building; salaries and other compensation of executive
officers of the Manager senior to the individual building manager; any
expenditures for which Landlord has been reimbursed (other than pursuant to
rent, rent adjustment and escalation provisions provided in leases); and
capital improvements to the Building (except as provided above). If any
Operating Expense, though paid in one year, relates to more than one
calendar year, at the option of the Landlord, such expenses may be
proportionately allocated among such calendar years.
F. "TAXES" shall mean all federal, state and local governmental taxes,
assessments and charges (including, without limitation, transit or transit
district taxes or assessments), of every kind or nature, whether general,
special, ordinary or extraordinary, which Landlord shall pay or become
obligated to pay because of or in connection with the ownership, leasing,
management, control or operation of the Real Property, or of the personal
property, fixtures, machinery, equipment, systems and apparatus located
therein or used in connection therewith (including any rental or similar
taxes levied in lieu of or in addition to general real and/or personal
property taxes). For purposes hereof, Taxes for any year shall be Taxes
which are due for payment or paid in that year, rather than Taxes which
are assessed or become a lien during such year. There shall be included in
taxes for any year the amount of all fees, costs and expenses (including
reasonable attorneys' fees) paid by Landlord during such year in seeking or
obtaining any refund or reduction of Taxes. Taxes in any year shall be
reduced by the net amount of any tax refund received by Landlord during
such year. If a special assessment
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payable in installments is levied against the Real Property, Taxes for any
year shall include only the installment of such assessment and any interest
payable or paid during such year. Taxes shall not include any federal or
state inheritance, general income, gift or estate taxes, except that if a
change occurs in the method of taxation resulting in whole or in part in
the substitution of any such taxes, or any other assessment, for any Taxes
as above defined, such substituted taxes or assessments shall be included
in the Taxes.
G. "RENTABLE AREA OF THE PREMISES" as set forth in 1.01(I) is determined
by using the American National Standard method for measuring floor area in
office buildings as adopted by the Building Owners and Managers Association
("BOMA"). The "Rentable Area" standard is used for all floors of the
Building except for the first and lower concourse floors, as to which
measurement is based on the "Usable Area" standard for measuring floor area
in office buildings as adopted by BOMA.
H. "RENTABLE AREA OF THE BUILDING" is 396,300 square feet.
I. "REAL PROPERTY" means the Building, the Land (which means and includes
the parcel or parcels which are owned and/or leased by or for Landlord and
which are used in connection with the ownership, management or operation of
the Building) and the personal property used in conjunction with both.
22.02 RENT ADJUSTMENTS. Tenant shall pay to Landlord, as provided in Section
22.04 below, Rent Adjustments during the Term as follows:
A. If the amount of Operating Expenses attributable to any calendar
year during the Term is greater than the Operating Expenses of the
Base Year, then Tenant shall pay Landlord, as a Rent Adjustment for
such calendar year, Tenant's Proportionate Share of such increase.
B. If the amount of Taxes attributable to any calendar year during
the Term is greater than the Taxes of the Base Year, then Tenant shall
pay Landlord as a Rent Adjustment for such calendar year, Tenant's
Proportionate Share of such increase.
The obligation of Tenant to pay the Rent Adjustments shall survive the
termination of the Lease.
22.03 PAYMENT OF RENT ADJUSTMENT DEPOSIT. Tenant shall pay Landlord the Rent
Adjustment Deposit in the same manner as the Monthly Base Rent commencing with
the first day of the Term. The Rent Adjustment Deposit shall be credited
against Rent Adjustments due for the applicable Adjustment Year. During the
last complete calendar year or during any partial calendar year in which the
Lease terminates, Landlord may include in the Rent Adjustment Deposit its
estimate of Rent Adjustments which may not be finally determined until after the
termination of this Lease.
22.04 STATEMENT OF LANDLORD. As soon as feasible after the expiration of each
calendar year of this Lease, Landlord will furnish Tenant a statement showing
the following:
(i) Operating Expenses and Taxes for the Adjustment Year;
(ii) The amount of Rent Adjustments due Landlord for the Adjustment Year,
less credit for Rent Adjustment Deposits paid, if any (this will be a
lump sum due Landlord or a credit to Tenant which will be applied to
future Rent Adjustments); and
(iii) The Rent Adjustment Deposit due in the calendar year next following the
Adjustment Year including the amount or revised amount due for months
prior to the rendition of the statement.
Tenant shall pay to Landlord the amounts due in accordance with said statement.
Monthly Base Rent shall be paid as provided in Article 3, the lump sum Rent
Adjustment shall be paid within ten (10) days after receipt of such statement,
and Rent Adjustment Deposits shall be paid as provided in Section 22.03. No
interest or penalties shall accrue on any amounts which Landlord is obligated to
credit to Tenant by reason of Section 22.03 or this Section 22.04.
Notwithstanding the foregoing, in no event shall the Monthly Base Rent and the
Rent Adjustments be less than the Monthly Base Rent.
22.05 PARTIAL OCCUPANCY. For purposes of determining adjustments to
installments of Monthly Base Rent for any Adjustment Year if the Building is
less than 90% rented during all or a portion of any year subsequent to the Base
Year, Landlord may elect to make an appropriate adjustment of the Operating
Expenses to such year employing sound accounting and management principles, to
determine the amount of the Operating Expenses that would have been paid or
incurred by Landlord had the Building been 90% occupied, and the amount so
determined shall be deemed to have been the amount of Operating Expenses for
such year. If any Operating Expense, though paid in one year, relates to more
than one calendar year, at the option of Landlord such expenses may be
proportionally allocated among such related calendar years.
22.06 BOOKS AND RECORDS. Landlord shall maintain books and records showing
Operating Expenses and Taxes in accordance with generally acceptable accounting
principles and management practices. Tenant or its representative shall have
the right to examine Landlord's books and records with respect to the items in
the foregoing statement of Operating Expenses and Taxes during normal business
hours at any time within ten (10) days following the furnishing by Landlord to
Tenant of such statement. Unless Tenant shall take written exception to any
time within thirty (30) days after the furnishing of the foregoing statement,
such statement shall be considered as final and accepted by Tenant. Any amount
due to Landlord as shown on any such statement, whether or not written exception
is taken thereto, shall be paid by Tenant within thirty (30) days after Landlord
shall have submitted the statement, without prejudice to any such written
exception.
ARTICLE 23
REAL ESTATE BROKERS
Tenant represents that, except for the brokers listed in Section 1.01(N) above,
Tenant has not dealt with any real estate broker, sales person, or finder in
connection with this Lease, and no such person initiated or participated in the
negotiation of this Lease, or showed the Premises to Tenant. Tenant hereby
agrees to indemnify and hold harmless Landlord and Manager from and against any
and all liabilities and claims for commissions and fees arising out of a breach
of the foregoing representations.
ARTICLE 24
SUBORDINATION AND ATTORNMENT
24.01 SUBORDINATION. Landlord may execute and deliver a mortgage or a trust
deed in the nature of a mortgage, both sometimes hereinafter referred to as
"Mortgage," against the Building, the Land or any interest therein including a
ground lease thereof (the "Ground Lease") and sell and leaseback the underlying
Land. This Lease and the rights of Tenant hereunder shall be and are hereby
made expressly subject and subordinate at all times to any Ground Lease of the
Land and/or the Building, now or hereafter existing and all amendments,
renewals and modifications thereto and extensions thereof, and to the lien of
the mortgage now or hereafter existing against the Land and/or the Building,
and to all advances made or hereafter to be made upon the security thereof.
Tenant agrees to execute and deliver such further instruments subordinating
this Lease to any such Ground Lease or to the lien of any such mortgage as may
be requested in writing by Landlord from time to time. Tenant acknowledges
that its title is and always shall be subordinate to the title of the owner of
the Land and the Building, and nothing herein contained shall empower Tenant to
do any act which can, shall or may encumber the title of the owner of the Land
or the Building. Notwithstanding anything to the contrary contained herein, any
mortgagee by notice in writing to the Tenant may subordinate its mortgage to
this Lease.
24.02 ATTORNMENT. In the event of the cancellation of termination of any such
Ground Lease described in Section 24.01 above in accordance with its terms or by
the surrender thereof, whether voluntary, involuntary or by operation of law, or
by summary proceedings, or the foreclosure of any such mortgage by voluntary
agreement or otherwise, or the commencement of any judicial action seeking such
foreclosure, Tenant, at the request of the then landlord, shall attorn to and
recognize such ground lessor, mortgagee or purchaser in foreclosure as Tenant's
landlord under this Lease. Tenant agrees to execute and deliver at any time
upon request of such ground lessor, mortgagee, purchaser, or their successors,
any instrument to further evidence such attornment. This Lease may be
terminated by the mortgagee or ground lessor it Tenant is named as a party and
served with process in any applicable proceeding and a warrant or judgment for
possession of the Premises is issued in such proceeding or a foreclosure sale is
held. However, if Tenant is not named as a party in such proceeding, then Tenant
hereby waives its right, if any, to elect to terminate this Lease or to
surrender possession of the Premises in the event of any such ground lease
termination or mortgage foreclosure.
24.03 ATTORNEY-IN-FACT. As and for additional security for the performance of
its duties hereunder and to induce Landlord to enter into this Lease, Tenant
shall execute promptly such instruments or certificates to carry out the intent
of Article 20 and Sections 24.01 and 24.02 above as shall be requested by
Landlord, or any mortgagee. Tenant hereby irrevocably appoints Landlord, as
attorney-in-fact for Tenant with full power and authority to execute and deliver
in the name of Tenant any such instruments or certificates. If within fifteen
(15) days after the date of a written request by Landlord, or any mortgagee to
execute such instruments, Tenant shall not have executed the same, Landlord
may, at its option, cancel this Lease without incurring any liability on account
thereof, and the Term hereby granted is expressly limited accordingly.
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24.04 MORTGAGEE PROTECTION. Tenant agrees to give any mortgagees
and/or trust deed holders and any ground lessors, by registered or certified
mail, a copy of any notice of default served upon Landlord by Tenant, provided
that prior to such notice Tenant has received notice (by way of service on
Tenant of a copy of an assignment of rents and leases, or otherwise) of the
address of such mortgagees and/or trust deed holders and any ground lessors.
Tenant further agrees that if Landlord shall have failed to cure such default
within the time provided for in this Lease, then the mortgagees and/or trust
deed holders and any ground lessors shall have an additional thirty (30) days
after receipt of notice thereof within which to cure such default or if such
default cannot be cured within that time, then such additional notice time as
may be necessary, if, within such thirty (30) days, any mortgagee and/or trust
deed holder has commenced and is diligently pursuing the remedies necessary to
cure such default (including but not limited to commencement of foreclosure
proceedings, if necessary to effect such cure). Such period of time shall be
extended by any period within which such mortgagee and/or trust deed holder and
ground lessor is prevented from commencing or pursuing such foreclosure
proceedings by reason of Landlord's bankruptcy. Until the time allowed as
aforesaid for mortgagee and/or trust deed holder and ground lessor to cure such
defaults has expired without cure, Tenant shall have no right to, and shall
not, terminate this Lease on account of default. This Lease may not be modified
or amended so as to reduce the Rent or shorten the Term, or so as to adversely
affect in any other respect to any material extent the rights of the Landlord,
nor shall this Lease be cancelled or surrendered, without the prior written
consent, in each instance, of the ground lessor or the mortgagee.
ARTICLE 25
NOTICES
All notices required or permitted to be given hereunder shall be in writing and
shall be deemed given and delivered, whether or not received, when deposited in
the United States Mail, postage prepaid and properly addressed, certified mail,
return receipt requested, at the following addresses (a) to Landlord: F. C.
Tucker Company Inc., 2500 One American Square, Box 82055, Indianapolis,
Indiana 46282-0002, Attention: Vice President, Property Management Division,
with copies to F. C. Tucker Company, Inc., Building Manager, 151 North Delaware
Street, Indianapolis, Indiana 46204; or such other address as Landlord shall
designate by written notice to Tenant; and (b) to Tenant: At the address
specified in Section 1.01(C) prior to the Commencement Date, and at the Premises
after the Commencement Date, or such other address as Tenant shall designate by
written notice to Landlord.
ARTICLE 26
EXCULPATION
If Landlord shall fail to perform or observe any term, condition, covenant or
obligation required to be performed or observed by it under this Lease and if
Tenant shall, as a consequence thereof, recover a money judgment against
Landlord, Tenant agrees that it shall look solely to Landlord's right, title and
interest in and to the Building for the collection of such judgment; and Tenant
further agrees that no other assets of Landlord shall be subject to levy,
execution or other process for the satisfaction of Tenant's judgment and that
Landlord shall not be liable for any deficiency.
The reference to "Landlord" in this Lease shall be limited to mean and include
only the owner or owners, at the time, of the fee simple interest in the
Building. In the event of a sale or transfer of such interest (except a mortgage
or other transfer as security for a debt) the "Landlord" named herein, or, in
the case of a subsequent transfer, the transferor, shall, after the date of such
transfer, be automatically released from all personal liability for the
performance or observance of any term, condition, covenant or obligation
required to be performed or observed by Landlord hereunder; and Landlord's
transferee shall be deemed to have assumed all of such terms, conditions,
covenants and obligations.
ARTICLE 27
MISCELLANEOUS
27.01 LATE CHARGES. All Rent as defined in Section 3 (unless otherwise
provided herein, and other than the Monthly Base Rent, Rent Adjustments, and
Rent Adjustment Deposits, which shall be due as herein before provided) owed by
the Tenant to the Landlord hereunder shall be paid in advance on or before the
first day of each calendar month. All such amounts (including without
limitation Monthly Base Rent, Rent Adjustments, and Rent Adjustment
Deposits) shall bear interest from the date due until the date paid at the
annual rate of 2% above the prime rate of interest publicly announced from time
to time by NBD Bank, N.A. or such other bank acceptable to Landlord in the
event that NBD Bank, N.A. ceases to announce a prime rate of interest, or at
the maximum legal rate of interest, allowed by law, if such maximum legal rate
is applicable and lower. In the event that a check or draft of Tenant is
returned to Landlord uncollected for any reason, then there shall be added to
the amount due a service charge for one hundred dollars ($100.00) for such
uncollected check or draft, which charge shall be in addition to any late
charges payable by Tenant as a result of such nonpayment.
27.02 ENTIRE AGREEMENT. This Lease and the Exhibits attached hereto contain the
entire agreement between Landlord and Tenant concerning the Premises and there
are no other agreements, either oral or written.
27.03 NO OPTION. The execution of this Lease by Tenant and delivery of same to
Landlord or Manager does not constitute a reservation of or option for the
Premises or an agreement to enter into a Lease. This Lease shall become
effective only if and when Landlord executes and delivers same to Tenant;
provided, however, the execution and delivery by Tenant of this Lease to
Landlord or Manager shall constitute an irrevocable offer by Tenant to lease the
Premises on the terms and conditions herein contained, which offer may not be
withdrawn or revoked for 30 days after such execution and delivery. If Tenant
is a corporation, partnership, association or any other entity, it shall deliver
to Landlord, concurrently with the delivery to Landlord of an executed Lease,
certified resolutions of Tenant's directors or other government person or body
authorizing the execution and delivery of this Lease and the performance by
Tenant of its obligations hereunder and the authority of the party executing the
Lease as having been duly authorized to do so.
27.04 ACCORD AND SATISFACTION. No payment by Tenant or receipt by Landlord of a
lesser amount than any installment or payment of Rent due shall be deemed to be
other than on account of the amount due, and no endorsement or statement on any
check or any letter accompanying any check or payment of Rent shall be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such installment or
payment of Rent or pursue any other remedies available to Landlord. No receipt
of money by Landlord from Tenant after the termination of this Lease or Tenant's
right of possession of the Premises shall reinstate, continue or extend the
Term.
27.05 LANDLORD'S OBLIGATIONS ON SALE OF BUILDING. In the event of any sale or
other transfer of the Building, Landlord and the seller or transferor (and the
beneficiaries of any selling or transferring land trusts) shall be entirely
freed and relieved of all agreements and obligations of Landlord hereunder
accruing or to be performed after the date of such sale or transfer.
27.06 BINDING EFFECT. This Lease shall be binding upon and inure to the benefit
of Landlord and Tenant and their respective heirs, legal representatives,
successors and permitted assigns.
27.07 MODIFICATION OF LEASES. Should any mortgagee, leasehold or otherwise,
require a modification or modifications of this Lease, which modification or
modifications will not bring about any increased cost or expense to Tenant or
in any other way substantially change the rights and obligations of Tenant
hereunder, then and in such event, Tenant agrees that this Lease may be so
modified.
27.08 CAPTIONS. The Article and Section captions in this Lease are inserted
only as a matter of convenience and in no way define, limit, construe, or
describe the scope or intent of such Articles and Sections.
27.09 APPLICABLE LAW. This Lease shall be construed in accordance with the laws
of the State of Indiana. If any term, covenant or condition of this Lease or
the application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term, covenant or condition to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be affected thereby and
each item, covenant or condition of this Lease shall be valid and be enforced to
the fullest extent permitted by law.
27.10 TIME. Time is of the essence of this Lease and the performance of all
obligations hereunder.
27.11 LANDLORD'S RIGHT TO PERFORM TENANT'S DUTIES. If Tenant fails timely to
perform any of its duties under this Lease, Landlord shall have the right (but
not the obligation), after the expiration of any grace period elsewhere under
this Lease expressly granted to Tenant for the performance of such duty, to
perform such duty on behalf and at the expense of Tenant without further prior
notice to Tenant, and all sums expended or expenses incurred by Landlord in
performing such duty shall be deemed to be additional Rent under this Lease and
shall be due and payable upon demand by Landlord.
27.12 RIDERS. All Riders and exhibits attached hereto and executed both by
Landlord and Tenant shall be deemed to be a part hereof and hereby
incorporated herein.
27.13 RECORDING OF LEASE. This Lease shall not be recorded without the prior
written consent of Landlord.
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27.14 INITIAL IMPROVEMENTS TO THE PREMISES. Landlord agrees, at its expense, to
make all initial improvements to the Premises in accordance with drawings and
specifications that are subject to Landlord's approval in writing prior to
commencement of the work.
27.15 PARKING SPACES. Provided Tenant is not in default hereunder, Tenant shall
have the right to park in the number of parking spaces described in Section
1.01(P) in the parking garage adjacent to the Building ("Parking Spaces").
Tenant shall pay the monthly rental rate for the Parking Spaces established by
Landlord, in its sole discretion from time to time. It is acknowledged and
agreed that the Parking Spaces are not reserved specifically for Tenant's use.
27.16 LEGAL PROCEEDINGS. Landlord and Tenant hereby waive trial by
jury in any action, proceeding or counterclaim brought by either of the parties
hereto against the other on any matters whatsoever rising out of or in any way
in connection with this Lease, the relationship of Landlord and Tenant,
Tenant's use or occupancy of the Premises, and/or any other claims (except
claims for personal injury or property damage), and any emergency statutory or
any other statutory remedy. It is further mutually agreed that in the event
Landlord commences any summary proceeding for non-payment of rent, Tenant will
not interpose and does hereby waive the right to interpose any counterclaim of
whatever nature or description in any such proceeding.
27.17 NO REPRESENTATIONS. Landlord or Landlord's agents have made no
representations or promises with respect to the Building or Premises except as
herein expressly set forth.
27.18 NO PRESUMPTION. This Lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Lease to be drafted.
27.19 INDEPENDENT CONTRACTORS. Except as otherwise expressly provided in this
Lease, each covenant, agreement, obligation or other provision of this Lease on
Tenant's part to be performed shall be deemed and construed as a separate and
independent covenant of Tenant, not dependent on any other provision of this
Lease.
27.20 GENDER. All terms and words used in this Lease, regardless of the number
or gender in which they are used, shall be deemed to include any other number
any other lender as the context may require.
27.21 CREDITS. In the event that Tenant is in arrears in payment of any, Rent
hereunder, Tenant waives Tenant's right, if any, to designate the items against
which any payments made by Tenant are to be credited, and Tenant agrees that
Landlord may apply any payments made by Tenant to any items it sees fit,
irrespective of and notwithstanding any designation or request by Tenant as to
the items against which any such payments shall be credited.
27.22 RIGHT TO TERMINATE. Provided that Tenant is not in default hereunder,
Tenant shall have the right to terminate this Lease, effective as of December
31, 1998, in consideration of the payment of a termination fee in the amount of
$23,508.00, provided that written notice of termination is received by Landlord
on or before August 31, 1998. The failure of Tenant to deliver said notice to
Landlord on or before said date shall constitute an irrevocable waiver of said
right. The termination fee shall be paid to Landlord on December 31, 1998.
27.23 RIGHT OF FIRST OPPORTUNITY. Provided that Tenant is not in default
hereunder, during the period from January 1, 1996 through December 31, 1998,
Tenant shall have the continuing right of first opportunity to lease and occupy
the space designated by hatched lines on the attached Exhibit A ("Expansion
Space") during the Term of this Lease. Tenant shall exercise such
right in a writing delivered to Landlord not later than ten (10) days after
receiving written notice that the Expansion Space is, or is about to become,
available for lease, (which notice shall also set forth the rental rate
described below) and the failure to do so shall constitute an irrevocable
waiver of said right. Rental to be paid by Tenant for the Expansion Space shall
be a rental rate equal to the then-prevailing market rate for comparable space
in first-class buildings located in downtown Indianapolis, Indiana at the time
said right is exercised by Tenant, and Tenant's Proportionate Share shall be
increased to reflect the addition of the Expansion Space to the Premises. All
improvements to the Expansion Space shall be made by Landlord, at its expense,
in accordance with drawings and specifications which are subject to Landlord's
approval. Tenant must exercise said right as to all of the Expansion Space that
may become available for lease and may not exercise the right as to only a
portion of that space. In the event Tenant exercises its rights under this
Section 27.23, Tenant shall have irrevocably waived its right to terminate under
Section 27.22 hereof.
IN WITNESS WHEREOF, the parties' duty authorized representatives have executed
this Lease on the date stated in subparagraph (D) of Article 1 hereof.
MET LIFE INTERNATIONAL REAL ESTATE PARTNERS
LIMITED PARTNERSHIP, a Delaware limited partnership,
by Met Life Real Estate Advisors, Inc., its general
partner
By: John F. Loeth
-------------------------
Printed: John F. Loeth
-------------------------
Title: Vice President
-------------------------
"Landlord"
NATIONAL TECHTEAM, INC., A Delaware corporation
By: Lawrence A. Mills
-------------------------
Printed: Lawrence A. Mills
-------------------------
Title: Chief Operating Officer
-------------------------
"Tenant"
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EXHIBIT "A"
Attached to and made a part of the lease for office space on the () () floor to
Market Square Center dated this 27 day of November, 1995.
- ---------------------------------------- ------------------------------------
MET LIFE INTERNATIONAL REAL ESTATE NATIONAL TECHTEAM, INC., a Delaware
PARTNERS LIMITED PARTNERSHIP, a Delaware Corporation
limited partnership by Met Life Real
Estate Advisors, Inc., its general partner
LANDLORD TENANT
[FLOOR PLAN OF MARKET SQUARE CENTER]
LAMSON & CONDON [LOGO] MARKET SQUARE CENTER
ARCHITECTURE BASEMENT LEVEL