1
EXHIBIT 10.6
FOREST GREEN CORPORATE OFFICE PARK
ORMSBY I
OFFICE BUILDING LEASE
BY AND BETWEEN
FAULKNER HINTON/ORMSBY I LLC
A KENTUCKY LIMITED LIABILITY CORPORATION
("LESSOR")
AND
HIGH SPEED ACCESS CORP.
A DELAWARE CORPORATION
("LESSEE")
DATED FEBRUARY 26, 2000
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TABLE OF CONTENTS
OFFICE BUILDING LEASE
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PAGE
ARTICLE I - BASIC LEASE PROVISIONS AND LEASE OF PREMISES..................................... 1
ARTICLE II - TERM AND POSSESSION............................................................... 3
ARTICLE III - RENT.............................................................................. 4
ARTICLE IV - SECURITY DEPOSIT.................................................................. 6
ARTICLE V - OCCUPANCY AND USE................................................................. 7
ARTICLE VI - UTILITIES AND OTHER BUILDING SERVICES............................................. 7
ARTICLE VII - REPAIRS, MAINTENANCE, ALTERATIONS,
IMPROVEMENTS AND FIXTURES......................................................... 8
ARTICLE VIII - FIRE OR OTHER CASUALTY INSURANCE.................................................. 9
ARTICLE IX - EMINENT DOMAIN................................................................... 10
ARTICLE X - LIENS............................................................................ 10
ARTICLE XI - RENTAL, PERSONAL PROPERTY AND OTHER TAXES........................................ 10
ARTICLE XII - ASSIGNMENT AND SUBLETTING........................................................ 10
ARTICLE XIII - SUBORDINATION, NON-DISTURBANCE & ATTORNMENT.......................................11
ARTICLE XIV - ABANDONMENT.......................................................................11
ARTICLE XV - DEFAULTS AND REMEDIES............................................................ 11
ARTICLE XVI - LETTER OF CREDIT................................................................. 12
ARTICLE XVII - HAZARDOUS SUBSTANCES............................................................. 12
ARTICLE XVIII - NOTICE AND PLACE OF PAYMENT...................................................... 13
ARTICLE XIX - MISCELLANEOUS GENERAL PROVISIONS................................................. 13
EXHIBIT A - SITE PLAN
EXHIBIT B - LEGAL DESCRIPTION
EXHIBIT C - FLOOR PLAN OF PREMISES
EXHIBIT D - DESCRIPTION OF LESSOR'S WORK
EXHIBIT E - GREENWAYS PLAN
EXHIBIT F - LEASEHOLD IMPROVEMENTS
EXHIBIT G - ACCEPTANCE OF PREMISES AMENDMENT
EXHIBIT H - RULES AND REGULATION
EXHIBIT I - SUBORDINATION, NON-DISTURBANCE & ATTORNMENT AGREEMENT
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FOREST GREEN CORPORATE OFFICE PARK
ORMSBY I
LEASE
BETWEEN
FAULKNER HINTON/ORMSBY I, LLC, LESSOR
AND
HIGH SPEED ACCESS CORP., LESSEE
This Lease is entered into and made this 26th day of February, 2000, by and
Faulkner Hinton/Ormsby I, LLC, a Kentucky Limited Liability Corporation herein
called "Lessor", and High Speed Access Corp., a Delaware Corporation, herein
called "Lessee".
WITNESSETH
WHEREAS Lessor is desirous of leasing the Premises, more fully described
hereinafter, to Lessee; and
WHEREAS Lessee is desirous of leasing the Premises, more fully described
hereinafter, from Lessor; and
WHEREAS both parties to this Lease have fully reviewed, understand and
accept all provisions of this Lease; and
WHEREAS, for good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
BASIC LEASE PROVISIONS AND LEASE OF PREMISES
1.01 BASIC LEASE PROVISIONS. The basic terms of this Lease are known as the
"Basic Lease Provisions," which are set forth below:
A. Project Name and Address: Ormsby I
Forest Green Corporate Office Park
Hurstbourne Parkway
Louisville, Kentucky 40223
Premises Location: 1st Floor, Suite 100
2nd Floor, Suite 200
3rd Floor, Suite 300
4th Floor, Suite 405
B. Total Rentable Area in the Building: 150,642 Rentable Square Feet
Total Rentable Area of the Premises: Suite 100 - 22,593 Rentable Square Feet
Suite 200 - 24,924 Rentable Square Feet
Suite 300 - 25,828 Rentable Square Feet
Suite 405 - 10,321 Rentable Square Feet
Total - 83,666 Rentable Square Feet
Pro Rata Occupancy: 55.54%
C. Initial Term of the Lease shall be: Seven (7) Years beginning September 1, 2000, subject to
Article II, Paragraph 2.01
Rent Commencement Dates: June 1, 2000 for Suite 100 and Suite 200; July 1, 2000 for
Suite 300; and September 1, 2000 for Suite 405, all subject
to Article II, Paragraph 2.01
Expiration Date: August 31, 2007 for all Premises, subject to Article II,
Paragraph 2.01
D. Initial Base Rent: $16.96 per Rentable Square Foot
$1,418,975.36 per Annum or $118,247.95 per Month
Subject to Article II Paragraph 2.02 & Article III Paragraph
3.01
Page 1 of 15
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Operating Expense Stop: $3.21 per Rentable Square Foot
$268,567.86 per Annum
Net Rent Base: $13.75 per Rentable Square Foot
$1,150,407.50 per Annum
E. Letter of Credit: $1,645,256.15 for the first year, reducing by $411,314.04
each year thereafter
F. Security Deposit: $354,743.85 for the Initial Term and $118,247.95 for the
Renewal Term
G. Acceptance Date: On or before March 1, 2000
H. Addresses for Notices and Payments: TO LESSOR:
Faulkner Hinton/Ormsby I, LLC
c/o Faulkner Hinton & Associates, Inc.
P.O. Box 8060
Louisville, Kentucky 40257-8060
- or by hand -
3991 Dutchmans Lane, Suite 400
Louisville, Kentucky 40207
TO LESSEE:
High Speed Access Corp.
4100 E. Mississippi Avenue, Suite 1150
Denver, Colorado 80246
Attn: Rich Pulley
with a copy to:
John Hundley, Esq.
High Speed Access Corp.
1000 W. Ormsby Avenue
Louisville, Kentucky 40210
I. Renewal Term: One seven (7) year renewal. (See First Addendum to Lease)
J. Ground Level Premises: Suite G125 containing 16,117 Rentable Square Feet. (See
Second Addendum to Lease)
K. Roof Level Premises: 250 usable square feet. (See Third Addendum to Lease)
- INTENTIONALLY LEFT BLANK -
Lessor:
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Forest Green/Ormsby I Lease Lessee:
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1.02 LEASE OF PREMISES. Lessor, in consideration of the rents and
covenants hereinafter set forth, does hereby demise, let and lease to
Lessee, and Lessee does hereby hire, take and lease from Lessor, on the
terms and conditions hereinafter set forth, the Premises described in
Paragraph 1.03, to have and to hold the same, with all appurtenances,
unto the Lessee for the term hereinafter specified.
1.03 DESCRIPTION OF BUILDING, PREMISES AND COMMON AREAS. This Lease and
the provisions contained herein define all rights of Lessee in and to
the Building, Common Area, and Premises.
A. THE BUILDING. The Building, known as Ormsby I, which shall house the
Premises leased to Lessee, is one of two office buildings located in
the Forest Green Corporate Office Park (the "Property"). The Forest
Green Corporate Office park is situated on Hurstbourne Parkway at
Dorsey Lane in Louisville, Kentucky. The Building consists of a six
story general office building, parking area and other related
improvements, all located generally as shown on the Site Plan attached
hereto as Exhibit A. The approximate number of Rentable Square Feet in
the Building as specified in Article I, Paragraph 1.01 of the Basic
Lease Provisions. Any reference in this Lease to the term 'Building'
shall include any office building, the Common Areas (as hereinafter
defined) and the land described in the Legal Description attached
hereto as Exhibit B, unless the context requires otherwise.
B. THE PREMISES. The Premises shall be the demised areas within the
Building outlined on the floor plan(s) attached hereto as Exhibit C.
The approximate Rentable Square Feet of the Premises shall be as
specified in Article I, Paragraph 1.01, subject to correction upon
execution of the Acceptance of Premises Amendment. The Rentable Square
Feet of both the Building and the Premises shall be evidenced by a
certificate from an architect mutually acceptable to the parties. The
method of determining Rentable Square Feet of the Premises and Rentable
Square Feet of the Building shall be ANSI/BOMA Z65.1-1996. The Premises
are known or are to be known by the suite number(s) specified in
Article I, Paragraph 1.01 of the Basic Lease Provisions.
C. THE COMMON AREAS. The Common Areas refers to the areas of the
Building and the land which are designated for use in common by all
lessees of the Building and their respective employees, agents,
customers, invitees and others, and includes, by way of illustration
and not limitation, entrances and exits, hallways and stairwells,
elevators, rest rooms, side-walks, driveways, parking areas, landscaped
areas, courtyards and any other areas as may be designated at any time
by Lessor as part of the Common Areas of the Building. The Lessee, its
employees, agents, customers, guests, and invitees, shall have a
nonexclusive right to use and enjoy the Common Areas. Lessor may at any
time close temporarily any Common Areas to make repairs or changes
therein or to effect construction, repairs or changes within the
Building and may do such other acts in and to the Common Areas as in
Lessor's judgement may be desirable to improve the convenience thereof.
1.04 THE GREENWAYS AREA. The term Greenways Area refers to the areas
identified as Greenways on that Plat of record in Plat Book 44, Page
16, in the office of the Clerk of Jefferson County, Commonwealth of
Kentucky, as such plat is modified from time to time. The Greenways
Area is currently as approximately indicated in Exhibit E. Lessor
shall, during the term of this Lease, delegate to Lessee, its
employees, agents, customers, guests, and invitees, Lessor's
nonexclusive right, resulting from Lessor's status as the owner of the
Building, to use and enjoy the Greenways Areas. Lessee, including its
employees, agents, customers, guests, and invitees, hereby agree to
abide by any and all rules and regulations the Forest Green Development
Association, Inc. a Kentucky not-for-profit corporation, its successors
or assign, may impose on Lessor.
1.05 CHANGE IN PLANS. Notwithstanding any plan or specification
provided for in this Lease, Lessor reserves the right to make minor
changes or revisions to the Site Plan, to change or modify and add to
or subtract from the size and dimension of the Building or any part
thereof, the number, location and dimensions of buildings, any
designated parking spaces, the number of floors in any building, the
location, size and number of tenants' spaces, and the size, shape,
location and arrangement of Common Areas, and to design and decorate
any portion of the Building as Lessor desires. In the event the size of
the Building is altered, modified or changed, the Rentable Area of the
Building and Lessee's Pro Rata Occupancy as specified herein shall be
adjusted to reflect the new area measurements, however, the Rentable
Area of the Premises shall not materially change. The Building, Common
Areas, and Site Plan are subject to minor change without notice, do not
grant any easement rights to Lessee, do not obligate Lessor to
construct any buildings shown other than the Building in which the
Premises are located and are not to be construed as containing any
representations or agreements by Lessor. In no event shall Lessor
reduce the parking ratio below five (5) parking spaces for every 1,000
usable square feet on floors 1 through 6 of the Building and the Future
Building.
1.06 APPLICABLE LAWS. Lessor shall construct and maintain the Building,
Premises, and Common Areas in compliance with all applicable local,
state, and federal codes, regulations and ordinances, including the
Americans with Disabilities Act of 1990. The Building has been designed
and constructed for a digital redundant telecommunications system,
including a conduit for looped fiber optics and cable (CATV) to the
Building with electrical service from a loop supplied by two separate
substations. Upon receipt, Lessor shall provide Lessee with a copy of
the Certificate of Occupancy evidencing compliance with said applicable
local, state, and federal codes, regulations and ordinances.
ARTICLE II
TERM AND POSSESSION
2.01 COMMENCEMENT AND EXPIRATION. The Term of this Lease shall be seven
(7) years but rent shall commence on the respective Rent Commencement
Dates shown in Article I, Paragraph 1.01 of the Basic Lease Provisions
or such earlier dates as Lessee takes possession and commences
beneficial use of the respective Premises. The Rent Commencement Dates
may be extended by Lessee by providing notice to Lessor, for
governmental approval and construction delays of the Premises beyond
Lessee's control, including, but not limited to: acts of God, labor
strikes, and delays caused by Lessor. In the event the Premises are not
ready for occupancy on the respective Rent Commencement Dates, this
Lease shall remain in effect. The initial term thereof shall begin on
September 1, 2000 unless the Premises are not ready on that date
because such delay was caused by one of the reasons set forth above. If
the Lease commences on any day other than the first day of a calendar
month, the term of the Lease shall be extended by that part of one
month necessary to cause the expiration of the term to be on the last
day of a calendar month.
Lessor:
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Forest Green/Ormsby I Lease Lessee:
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2.02 CONSTRUCTION OF LESSOR'S WORK AND LESSEE'S WORK. Lessor will
perform or cause to be performed the work described on Exhibit D on or
before March 31, 2000 and shall furnish Lessee with a Certificate of
Occupancy on or before April 14, 2000. Lessee shall perform or cause to
be performed the Leasehold Improvements as set forth on Exhibit F
attached hereto. Each party shall perform such work, subject to events
and delays beyond its control for which neither party will be liable to
the other party in any way. Lessor will tender the Premises to Lessee
by providing ten (10) days notice of the day on which its work will be
completed. Before Lessee takes possession of the Premises, Lessor and
Lessee shall execute an Acceptance of Premises Amendment, in a similar
form as attached hereto as Exhibit G, which, besides affixing and
confirming the respective Commencement Dates, Expiration Date, Rentable
Square Feet, and Initial Base Rent, will contain acknowledgments that
subject to latent defects and seasonal HVAC matters of the Base
Building described in Exhibit D, Lessee has accepted the Premises in
their then present condition, and that the Premises are satisfactory in
all respects except for minor "punch list" items agreed to in writing
by Lessor and Lessee, which Lessor will promptly remedy. If Lessee
takes possession of the Premises, Lessee shall be deemed to have
accepted the Premises subject to latent defects and seasonal HVAC
matters of the Base Building described in Exhibit D, even though the
Acceptance of Premises may not have been executed.
2.03 SURRENDER OF THE PREMISES. Upon the Expiration Date or earlier
termination of this Lease or upon default or breach of this Lease by
Lessee, Lessee shall immediately surrender the Premises and all access
keys to the Premises to Lessor, together with all alterations,
improvements and other property as provided elsewhere herein, in
broom-clean condition and in good order, condition and repair, except
for ordinary wear and tear and such damage as Lessee is not obligated
to repair; failing this, Lessor may restore the Premises to such
condition and replace the access keys not returned, at Lessee's
expense, and Lessee shall immediately reimburse Lessor upon demand.
Upon such expiration or termination, Lessee shall have the right to
remove its property (as described in Article VII, Paragraph 7.04).
Lessee shall promptly repair any damage caused by any such removal, and
shall restore the Premises to the condition existing prior to the
installation of the items so removed.
2.04 HOLDING OVER. If Lessee shall hold over after the expiration of
the term of this Lease, it shall be deemed to be occupying the Premises
as a Lessee from month to month, which tenancy may be terminated as
provided by law. Lessee agrees that holding over beyond the term of
this Lease shall cause irreparable damage to Lessor and that it will be
impossible to estimate or determine the damage that will be suffered by
Lessor in such an event. Therefore during such tenancy, Lessee agrees
to pay to Lessor one and a quarter times (125% of) the Base Rent which
was payable in the month immediately preceding the month in which the
expiration or termination occurs and to be otherwise bound by all of
the terms, covenants and conditions contained in this Lease. If Lessee
fails to surrender the Premises upon the termination of this Lease,
Lessee shall indemnify and hold Lessor harmless from loss or liability
resulting from such failure from whatever source.
ARTICLE III
RENT
3.01 BASE RENT. Lessee shall pay to Lessor as Base Rent for the
Premises the annual sum specified in Article I, Paragraph 1.01 of the
Basic Lease Provisions, payable in consecutive monthly installments, in
advance, on or before the first day of each and every calendar month
during the term of this Lease without demand, notice or offset;
provided, however, that if the Commencement Date shall be a day other
than the first day of a calendar month, the Base Rent installment for
such first fractional month shall be prorated on the basis of the
number of days during the month this Lease was in effect in relation to
the total number of days in such month. The Initial Base Rent herein is
acknowledged to be based on the estimated Rentable Square Feet of the
Premises and shall be confirmed in the Acceptance of Premises Amendment
after the construction of the Premises. The Prepaid Rent as specified
in Article I, Paragraph 1.01, shall be applied towards the first
monthly installment of the Base Rent. Lessee's Initial Net Rent Base as
specified in Article I, Paragraph 1.01, Item D of the Basic Lease
Provisions is subject to annual adjustments at the end of each Lease
Year (as hereinafter defined) to reflect a two percent (2%) increase.
Commencing the second Lease Year, Lessee shall pay as additional rent
to Lessor an amount determined by multiplying the Net Rent by 1.02. The
resulting Net Rent amount, plus the Operating Expense Stop, will be the
Base Rent for the second Lease Year. For each Lease Year thereafter,
the Net Rent computation will be the same. As used in this Paragraph,
the term "Lease Year" shall mean each succeeding twelve months
commencing with the first day of the initial term hereof; provided,
however, that if the date on which the Lease term commences is other
than the first day of the calendar month, then the first Lease Year
shall commence on the date of the month following the commencement of
the Lease term and end on the last day of the twelfth full calendar
month occurring thereafter.
3.02 ADDITIONAL RENT.
A. OPERATING EXPENSE ADJUSTMENT:
1. Definitions: (a) "Building Operating Expenses" shall mean
the amount of any and all of Lessor's actual and direct costs, expenses and
disbursements of any kind and nature, incurred in connection with the
management, operation, maintenance and repair of the Building, including the
Common Areas, or any improvements situated on the property for a particular
calendar year or portion thereof, as determined by Lessor based upon generally
accepted accounting principles applied in a consistent manner, together with all
additional actual and direct costs, expenses and disbursements with respect to
the management, operation and maintenance of the Building which Lessor
determines that it would have paid during such year if the Building had been
ninety-five percent (95%) occupied. Building Operating Expenses include by way
of illustration but not limitation: all general real estate taxes, payments in
lieu of real estate taxes, and all special assessments levied against the
Building (hereinafter called "real estate taxes"); costs and expenses of
contesting the validity or amount of real estate taxes; insurance premiums on
insurance coverage which is required to be carried by Lessor or which Lessor may
elect to carry at Lessor's reasonable discretion; water, sewer, electrical and
other utility charges for the Common Areas of the Building, and utility charges
for the Premises which are not separately metered; service and other charges
paid in connection with the operation and maintenance of the elevators, the
heating, ventilation and air-conditioning systems; association fees; cleaning
and other janitorial services; tools and supplies; repair costs; landscape
maintenance; parking lot maintenance; snow removal; security services; license,
permit and inspection fees; management fees; auditing fees; wages and related
employee benefits payable for the maintenance and operation of the Building;
and, in general, all other costs and expenses which would generally be regarded
as operating and maintenance costs and expenses. There shall also be included in
the Building Operating Expenses the cost or portion thereof reasonably allocable
to any capital improvement made to the Building by Lessor after
Lessor:
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Page 4 of 15
Forest Green/Ormsby I Lease Lessee:
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the date of this Lease which (i) improves the operating efficiency of any system
within the Building and thereby reduces Building Operating Expenses (but only to
the extent of actual savings), or (ii) is required under any governmental law or
regulation that was not applicable to the Building at the time it was
constructed, or (iii) is installed pursuant to Paragraph 3.02, with such cost
being amortized over such period of time and in such manner as Lessor shall
reasonably determine, together with interest on such cost or the unamortized
balance thereof. Building Operating Expenses shall not include: (i) expenses for
painting, redecorating or other work which Lessor performs for any lessee in the
Building; (ii) expenses for repairs or other work occasioned by fire, windstorm
or other insurable casualty; (iii) expenses incurred in leasing or procuring new
lessees, including leasing commissions, leasehold improvements, tenant
allowances, moving allowances, other inducements, advertising and promotion
activities; (iv) legal expenses incurred in enforcing the terms of any lease;
(v) interest or amortization payments on any mortgage or mortgages; (vi)
penalties for late payment of real estate taxes; (vii) amounts for net income,
stock, transfer, franchise, gift and estate taxes; (viii) all costs for which
Lessee or any other lessee in the Building is being charged other than pursuant
to Operating Expenses Adjustment clauses; (ix) the cost of any electric current
furnished to any portion of the Premises (it being understood that Lessee shall
pay for its own electricity) as well as the cost of electricity or other
services to other lessees beyond normal office consumption during normal
business hours; (x) the cost of correcting defects in the construction of the
Building or its operating systems (including any structural repairs or warranty
work); (xi) the cost of any repair or restoration made by Lessor because of
casualty or condemnation; (xii) the cost of any items for which Lessor is to be
reimbursed by insurance, third parties or other lessees; (xiii) the cost of any
capital items except as expressly allowed in this Paragraph; (xiv) all
administrative and management services (except for the cost of the on-site
manager and his direct expenses) in excess of four percent (4%) of the annual
Base Rent (less the Real Estate Taxes and Insurance components) from lessees of
the Building; (xv) the cost of any items which are not included in Operating
Expenses for any other lessee in the Building; and (xvi) the cost of general
office cleaning (it being understood that Lessee shall provide its own cleaning
and janitorial supplies for floors 1 through 3). Furthermore, Lessee shall be
liable for seventy-five percent (75%) of the total trash removal and HVAC
supplies, maintenance and repairs. (b) "Pro Rata Occupancy" shall mean the
percentage specified in Article I, Paragraph 1.01 of the Basic Lease Provisions
subject to amendment by the Acceptance of Premises Amendment. The method of
determining Pro Rata Occupancy shall be to divide Lessee's Rentable Square Feet
of the Premises (not including any Ground Level or Roof Level Premises) by the
Total Rentable Area of the Building (not including any Ground Level or Roof
Level Premises).
2. PAYMENT OBLIGATIONS. If in any calendar year or partial
calendar year during the term hereof, the Building Operating Expenses adjusted
for Lessee's Pro Rata Occupancy should exceed the Operating Expense Stop in the
amount specified in Article 1, Paragraph 1.01, then Lessee shall pay as
Additional Rental for that year or partial calendar year its pro rata portion of
these Building Operating Expenses in excess of the amount Operating Expense Stop
(the "Operating Expense Adjustment"). Such pro rata portion to be calculated by
multiplying the Building Operating Expenses in excess of the Operating Expense
Stop for the Premises by Lessee's Pro Rata Occupancy. A statement showing the
Building Operating Expenses and Lessee's proportionate share thereof shall be
delivered by Lessor to Lessee within one hundred twenty (120) days after the end
of any calendar year together with reasonably detailed back-up information
supporting each item. Within thirty (30) days after delivery by Lessor to Lessee
of such statement, Lessee shall pay to Lessor the Operating Expense Adjustment,
which shall be deemed Additional Rent under this Lease. Lessor represents and
warrants to Lessee that the Operating Expense Stop in Paragraph 1.01D is
Lessor's best estimate of the actual Building Operating Expenses for the first
year of Lessee's occupancy. Any Building Operating Expenses in excess of ten
percent (10%) of that Operating Expense Stop shall be added to the estimated
Operating Expense Stop and the resultant Operating Expense Stop shall be used
for the remainder of the Lease term in any calculations to arrive at Lessee's
liability for Building Operating Expenses.
3. SUCCEEDING YEAR OPERATING EXPENSES. Within one hundred
twenty (120) days after the end of any calendar year (subsequent to the initial
calendar year), Lessor shall advise Lessee of the estimated amount of the
increase, if any, in Operating Expenses over Lessee's Operating Expense Stop as
defined herein, for the upcoming calendar year and Lessee shall pay to Lessor,
Lessee's share of such estimated increase in equal monthly installments on the
first day of each month during that calendar year together with the Base Rent.
Lessor shall ascertain and advise Lessee of Lessee's share of the amount of any
increase in Operating Expenses for the preceding year and any additional sum
owed by Lessee to Lessor shall be paid to Lessor within thirty (30) days
following the receipt of Lessor's notice thereof. Should any excess have been
paid by Lessee to Lessor for the preceding year, Lessor shall apply the excess
toward sums due for the next following calendar year. In no event shall the
provisions of this paragraph reduce the rent below the Base Rent. Lessor shall
use its best efforts to keep Building Operating Expenses as low as possible
consistent with the operation of a first class office building. At the written
request of Lessee, Lessor shall, at least once every three (3) years, bid out
the insurance contracts. Lessee shall not be liable in any way for more than a
three percent (3%) annual increase in any item which is not an Uncontrollable
Expense. "Uncontrollable Expenses" shall mean those expenses that are subject to
increases, which are outside of Lessor's control, including, but not limited to,
any increase in expenses relating to utility rates, collectively bargained union
wages, government mandated minimum wages, waste disposal regulations, snow
removal, insurance, HVAC regulations, and real estate taxes.
4. MULTIPLE BUILDINGS. Upon the completion of the second
planned building as indicated on Exhibit A, Lessor shall have the option to
combine the Building Operating Expenses, as defined herein, of the two buildings
for the purposes of calculating the Operating Expense Adjustment, if combining
the Building Operating Expenses results in a lower operating expense for Lessee
on a per Rentable Square Foot basis. Lessor shall recalculate and provide
written notice to Lessee of the adjusted the Total Rentable Area to include both
buildings and Lessee's adjusted Pro Rata Occupancy. The process, as defined
herein, to calculate Lessee's Operating Expense Adjustment shall remain
unchanged.
5. REDUCTIONS TO THE OPERATING EXPENSE ADJUSTMENT. As a result
of Lessee's permitted 24 hour, 7 day use, Lessor reserves the right to reduce or
eliminate those services that exclusively serve the Premises if such can be
provided by Lessee directly. The associated expense of those services shall be
excluded from the Building Operating Expenses and the Operating Expense Stop
shall be adjusted to reflect this modification to the Operating Expense
Adjustment calculation as defined herein.
B. IMPROVED OPERATING EFFICIENCY. If, at any time after the
Commencement Date, Lessor shall install a labor or energy saving device or other
equipment, which improves the operating efficiency of any system within the
Building (such as an energy management computer system) and thereby reduces
Building Operating Expenses or utilities to operate the Building, or limits
future increases in Building Operating Expenses or utility costs, then Lessor
may add to Building Operating Expenses an annual amortization allowance based
upon the costs of such equipment, plus interest on the unamortized balance
thereof, amortized in equal installments over such period as determined by
generally accepted accounting principles; provided, however, that the amount of
such annual amortization allowance and interest shall not exceed the annual
savings in costs or expenses attributable to such installed device or equipment,
and in no event shall such amortization allowance increase the sum of Building
Operating Expense over what it would have been if such labor or energy saving
device or other equipment had not been installed.
Lessor:
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Forest Green/Ormsby I Lease Lessee:
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C. RIGHT TO REVIEW. Lessee shall have the right to review supporting
data for any portion of a Building Operating Expense Adjustment. In order for
Lessee to exercise its right under this Paragraph: (i) Lessee shall, within
thirty (30) days after any such Building Operating Expense Adjustment is sent,
deliver a written notice to Lessor exercising its right to review; (ii) Lessee
shall specify in the notice the portions of the Building Operating Expense
Adjustment that are claimed to be incorrect; and (iii) Lessee shall have paid
all undisputed amounts due from Lessee to Lessor as specified in the Building
Operating Expense Adjustment notice. In no event shall Lessee be entitled to
withhold, deduct, or offset any monetary obligation of Lessee to Lessor under
the Lease pending the completion of and regardless of the results of any review
of records under this Paragraph. The right of Lessee under this Paragraph may
only be exercised once for any Building Operating Expense Adjustment Notice.
Lessee shall provide fifteen (15) days notice of its desire to review the
records which said review shall be conducted at the main office of Lessor during
normal business hours. Such records shall be made available for inspection only
and may not be mechanically reproduced. Any review to be conducted under this
Paragraph shall be at the sole expense of Lessee (unless Lessor has overcharged
Lessee by three percent or more, in which case Lessor shall pay all costs of
such review) and shall be conducted by an independent firm or certified public
accountants. Lessee acknowledges and agrees that any records reviewed under this
Paragraph constitute confidential information of Lessor, which shall not be
disclosed to anyone other than the accountants performing the review and those
authorized employees and agents of Lessee. Lessee shall have fifteen (15) days
to complete such review of records and submit any objections or findings to
Lessor. Any errors disclosed by the review of the records under this Paragraph
shall be promptly corrected, provided that Lessor shall have the right to cause
another review of the records to be made by an independent firm of certified
public accounts. In the event that the results of the review of records reveal
that Lessee has overpaid any obligation for a preceding period, that amount of
such overpayment shall be credited against Lessee's subsequent Building
Operating Expense installment obligation or refunded to Lessee if the term has
expired. In the event that such results show that Lessee has underpaid its
obligations for a preceding period, the amount of such underpayment shall be
paid by Lessee to Lessor with the next succeeding Building Operating Expense
installment obligation. Lessor shall be permitted at the end of each calendar
year to destroy or otherwise dispose of its records, except in regard to a
dispute which said records shall be retained until such dispute is fully
resolved. Notwithstanding the above, in no event shall Lessor dispose of any
records less than twenty-four (24) months old.
3.03 DEFINITION OF RENT. The Base Rent, Additional Rent, and any other amounts
of money to be paid by Lessee to Lessor pursuant to the provisions of this
Lease, including any sums due under any and all Exhibits attached hereto,
whether or not such payments are denominated Rent or Additional Rent and whether
or not they are to be periodic or recurring, shall be deemed Rent or Additional
Rent for purposes of this Lease; and any failure to pay any of the same as
provided in this Lease shall entitle Lessor to exercise all of the rights and
remedies afforded hereby or by law for the collection and enforcement of
Lessee's obligation to pay Rent. Lessee's obligation to pay any such Rent or
Additional Rent pursuant to the provisions of this Lease shall survive the
expiration or other termination of this Lease and the surrender of possession of
the Premises after any hold-over period.
3.04 SERVICE CHARGE. If any payment due Lessor under this Lease has not been
received by Lessor within five (5) days after the same has become due, a service
charge equal to the lesser of Five Hundred Dollars ($500) or five percent (5%)
of the amount of the payment so overdue shall be charged, and an additional like
amount may be charged on the first day of each calendar month thereafter until
the delinquent payment has been paid in full, as reimbursement to Lessor for the
estimated additional administrative expense incurred. In the event any payment
as called for in this Lease is returned to Lessor for reason of insufficient
funds in Lessee's account or other reason for non-payment of Lessee's payment by
Lessee's depository, Lessee shall be subject to a $25.00 processing fee plus any
applicable service charge as described above. No payment by Lessee or receipt by
Lessor of a lesser amount than any payment of Rent or Additional Rent due shall
be deemed to be other than on account of the amount due, and no endorsement or
statement on any check or payment of Rent or Additional Rent shall be deemed an
accord and satisfaction. Lessor may accept such check or payment without
prejudice to Lessor's right to recover the balance of such installment or
payment of Rent or Additional Rent, or pursue an other remedies available to
Lessor.
3.05 REAL ESTATE TAX. Lessor shall pay all real estate taxes and assessments on
the Building prior to delinquency. Lessee shall have the right, on Lessor's
behalf, to challenge the assessed valuation of the Building with the appropriate
taxing authorities at any time after execution of this Lease so long as Lessee
notifies Lessor in advance of such negotiations and makes a reasonable effort to
allow Lessor's participation. In the event that Lessee desires to contest an
increase, Lessor shall join in such context with Lessee, and the cost thereof
shall be a Building Operating Expense.
ARTICLE IV
SECURITY DEPOSIT
4.01 SECURITY DEPOSIT. As security for the performance and observance by Lessee
of all of its obligations under the terms, condition and covenants of this
Lease, Lessee has deposited with Lessor the sum specified in Article I,
Paragraph 1.01 of the Basic Lease Provisions, which sum shall be held by Lessor
as a security deposit during the term of this Lease. If Lessee performs and
observes all of the terms, conditions and covenants of this Lease which are
required to be performed and observed by it, Lessor shall return the security
deposit, or balance thereof then held by Lessor, without interest, to Lessee
within thirty (30) days after the Expiration Date or after Lessee surrenders
possession of the Premises, whichever is later. In the event of a default by
Lessee in the payment of rent or the performance or observance of any of the
other terms, conditions or covenants of this Lease which has not been cured
within the applicable cure period, then Lessor may, at its option and without
further notice, apply all or any part of the security deposit in payment of such
rent or to cure any other such default; and if Lessor does so, Lessee shall,
upon request, deposit with Lessor the amount so applied so that Lessor will have
on hand at all times during the term of this Lease the full amount of the
security deposit. Lessor shall be required to hold the security deposit as a
separate non-interest bearing account at Firstar Bank, NA for the term of
Lessor's loan on the Premises with Firstar Bank. If Lessee is in default under
this Lease more than two (2) times within any twelve (12) month period,
irrespective of whether or not such default is cured, then, without limiting
Lessor's other rights and remedies provided for in this Lease or at law or
equity, the Security Deposit shall automatically be increased by an amount equal
to the greater of: (i) an amount equal to the original Security Deposit, or (ii)
the amount of one (1) month's Base Rent, which shall be paid by Lessee to Lessor
forthwith on demand.
4.02 TRANSFER. In the event of a sale or lease of the Building of which the
Premises are a part, Lessor shall have the right to transfer the security
deposit to its purchaser or lessee, and Lessor shall thereupon be released by
Lessee from all responsibility for the return of such security deposit; and
Lessee agrees to look solely to the new purchaser or lessee for the return of
such deposit. In the event of an assignment of this Lease by Lessee, the
security deposit shall be deemed to be held by Lessor as a deposit made by the
assignee, and Lessor shall have no further responsibility of such deposit to the
assignor.
Lessor:
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Forest Green/Ormsby I Lease Lessee:
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ARTICLE V
OCCUPANCY AND USE
5.01 USE OF PREMISES. Lessee shall use and occupy the Premises for general
office space, computer network operations center, equipment testing and staging,
a 24-hour 7-day per week call center help line, a training facility and uses
ancillary to the foregoing and for no other purpose. Lessee shall not use or
occupy the Premises in violation of law or of the Certificate of Use or
Occupancy issued for the Building of which the Premises are a part, and shall
immediately discontinue any use of the Premises which is declared by either any
governmental authority having jurisdiction or the Lessor to be a violation of
any law, code, regulation or a violation of said Certificate of Use or
Occupancy. Lessee shall comply with any direction of any governmental authority
having jurisdiction which shall, by reason of the nature of Lessee's use or
occupancy of the Premises, impose any duty upon Lessee or Lessor with respect to
the Premises or with respect to the use or occupation thereof. Lessee shall not
do nor permit to be done anything which will invalidate or increase the cost of
any fire and extended coverage insurance policy covering the Building and/or
property located therein, and shall comply with all rules, orders, regulations
and requirements of the appropriate Fire Rating Bureau or any other organization
performing a similar function. Lessee shall promptly upon demand reimburse
Lessor for any additional premium charged for such policy by reason of Lessee's
failure to comply with the provisions of this paragraph. Lessee shall not do or
permit anything to be done in, on or about the Premises which would in any way
obstruct or interfere with the rights of other lessees or occupants of the
Building, or use or allow the Premises to be used for any immoral, unlawful or
objectionable purpose, nor shall Lessee maintain or permit any nuisance or
commit any waste in, on or about the Premises.
5.02 COMPLIANCE WITH BUILDING RULES AND REGULATIONS. Rules and regulations
governing the use and occupancy of the Premises and all other leased space in
the Building have been adopted by Lessor for the mutual benefit and protection
of all the lessees in the Building. Lessee shall comply with and conform to the
rules and regulations currently in effect, which are set forth on a schedule
attached hereto, made a part hereof and marked Exhibit H. Lessor shall have the
right to amend such rules and regulations or to make new rules and regulations
from time to time in any reasonable manner. Any such amendments to the rules and
regulations shall be set forth in writing and shall be given to Lessee, who
shall thereafter comply with and conform to the same. All such rules and
regulations shall be applied and enforced uniformly as to all lessees in the
Building.
5.03 FLOOR LOADS. Lessee shall not overload the floors of the Premises beyond
their designed weight-bearing capacity which Lessor has determined to be fifty
(50) pounds per square foot live load for office space (excluding the twenty
(20) pound per square foot live load allowance for partitions) and seventy (70)
pounds per square foot live load for open space. Lessor reserves the right to
direct the positioning of all heavy equipment, furniture and fixtures which
Lessee desires to place in the Premises so as to distribute properly the weight
thereof. Lessor may require the removal of any equipment or furniture which
exceeds the weight limits of the Building.
5.04 SIGNS. Lessee shall not inscribe, paint, affix or display any signs,
advertisements or notices on, in or around the Building, or in the windows
thereof, except for such Lessee identification information as Lessor permits to
be included or shown on or adjacent to the Lessee access door(s) to the Premises
on multi-tenant floors or, on the Building directory. On floors occupied
exclusively by Lessee, Lessee, at its sole discretion, shall be permitted to
install signage in the common areas, including the elevator lobby. On the first
floor, Lessee shall be permitted to install reasonable non-building standard
signage suitable for a multi-tenant building, with Lessor's prior approval.
Lessor shall furnish and install, at its expense up to $10,000, a monument type
sign on the Property with Lessee's name and logo in a style and location
reasonably acceptable to Lessee. Lessor shall approve the material, design,
location, size and content of the monument type sign which shall be consistent
with the other monument type signs located or to be located within the Forest
Green Mixed Use Development. This provision shall not limit or prohibit Lessor
from installing other monument type signs on the Property for identification or
that contain the names of other lessees located within the Building but no such
signs shall be larger or more visible than Lessee's sign. During the term of
this Lease, Lessor shall not permit any other lessee of the Building to install
any identification sign on the exterior of the Building.
5.05 ACCESS TO AND INSPECTION OF THE PREMISES. After reasonable prior notice to
Lessee (except in the case of emergency), Lessor, its employees, agents and any
mortgagee of the Building shall have the right to enter any part of the Premises
during normal business hours for the purpose of examining or inspecting the
same, showing the same to prospective purchasers or mortgagees (and during the
last eighteen months of the term if the Lessee has not exercised its renewal
option, lessees)and for making such repairs, alterations or improvements to the
Premises or the Building as Lessor may deem necessary or desirable. If
representatives of Lessee shall not be present to open and permit such entry
into the Premises at any time when such entry is necessary or required herein,
Lessor and its employees and agents may enter the Premises by means of a master
key or otherwise. Lessor shall incur no liability to Lessee for such entry nor
shall such entry constitute an eviction of Lessee or a termination of this Lease
or entitle the Lessee to any abatement of rent therefor.
5.06 QUIET ENJOYMENT. Except as provided in Article XV hereof to the extent that
it may be applicable, if and so long as Lessee pays the prescribed rent and
performs and observes all of the terms, conditions, covenants and obligations of
this Lease required to be performed or observed by it hereunder, Lessee shall at
all times during the term hereof have the peaceful and quiet enjoyment,
possession, occupancy and use of the Premises without any interference from
Lessor or any person.
ARTICLE VI
UTILITIES AND OTHER BUILDING SERVICES
6.01 SERVICES TO BE PROVIDED. Except as otherwise set forth in this Lease,
Lessor shall furnish Lessee with utilities, elevator facilities, heating,
ventilation, air conditioning, restroom facilities, drinking water, janitorial
service, window cleaning, and other building services, as provided in the Rules
and Regulations, to the extent considered by Lessor to be reasonably necessary
for Lessee's comfortable use and occupancy of the Premises for its use or as may
be required by law or directed by governmental authority. In the event Lessee
requires or utilizes more services or utilities, other than Lessee's separately
metered utilities, than is considered reasonable or normal by Lessor, Lessor may
reasonably determine and require Lessee to pay as Additional Rent, the cost
incurred as a result of such additional service or usage. Services shall be
billed separately to Lessee and are to be paid monthly to Lessor at the same
time the monthly installment of Base Rent is due. Services include the
replacement of all lamps at a cost established from time to time by Lessor.
Lessee shall not contract or employ any person(s) to provide any services found
in the Lease and the Rules and Regulations without prior written approval of
Lessor which shall not be unreasonably withheld. Lessee shall be responsible for
contracting for janitorial services for the Premises.
6.02 ADDITIONAL SERVICES. If Lessee requests any other utilities or building
services in addition to those identified above, or
Lessor:
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Forest Green/Ormsby I Lease Lessee:
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utilizes any of the above utilities or Building services in frequency, scope,
quality or quantities substantially greater than the standard set by Lessor for
the Building, then Lessor shall use reasonable efforts to attempt to furnish
Lessee with such additional utilities or Building services. Lessor shall impose
a reasonable charge for such additional utilities or Building services, which
shall be paid monthly by Lessee at the same time the monthly installment of Base
Rent is due.
6.03 SPECIAL EQUIPMENT. Lessee shall obtain Lessor's written consent (not to be
unreasonably withheld) prior to installing or connecting any lights, machines or
equipment, including but not limited to computers which would materially affect
the normal operation, or exceed the designed capacity of (in excess of four (4)
volt/amps per usable square foot), the Building's electrical or heating and
air-conditioning systems. If Lessor determines that any such equipment is in any
way incompatible with the Building's electrical or heating and air-conditioning
systems, then Lessor shall have the right, as a condition to granting its
consent, shall require Lessee to make such modifications to the equipment to be
installed or connected or to make any modification to the Building's electrical
or heating and air conditioning systems, as Lessor considers to be necessary.
All costs expended by Lessor to install, or removed upon termination of the
Lease, any such machinery or equipment or to make any such modifications, and
any such additional costs of operation and maintenance occasioned thereby, shall
be borne by Lessee, who shall, upon demand, reimburse Lessor for the same as
Additional Rent.
6.04 INTERRUPTION OF SERVICES. Lessee understands, acknowledges and agrees that
any one or more of the utilities or other Building services identified in
Article VI may be interrupted by reason of accident, emergency or other causes
beyond Lessor's control, or may be discontinued or diminished temporarily by
Lessor or other persons until certain repairs, alterations or improvements can
be made; that Lessor does not represent or warrant the uninterrupted
availability of such utilities or Building services; and, that any such
interruption shall not be deemed an eviction or disturbance of Lessee's right to
possession, occupancy or use of the Premises or any part thereof or render
Lessor liable to Lessee for damages by abatement of rent or otherwise or relieve
Lessee from the obligation to perform its covenants under this Lease unless such
interruption persists for more than forty-eight (48) hours, in which event rent
shall abate.
6.05 PARKING. Lessor shall provide Lessee with ten (10) marked reserved parking
spaces in the area shown on Exhibit A. Lessor shall have no greater
responsibility to monitor or police said reserved parking spaces that it does
with respect to any other reserved parking in the Forest Green Corporate Office
Park. At Lessee's request, Lessor agrees to consider constructing covered
parking for tenants in the Building in the area farthest from Hurstbourne
Parkway so long as Lessee commits to lease such spaces at a mutually acceptable
rate per space for the balance of the Lease.
6.06 COMPUTER/COMMUNICATIONS ROOM. Lessee shall be permitted to install
supplemental air conditioning in the computer/communications room of the
Premises, at its sole cost and expense. The condenser for this supplemental HVAC
shall be installed outside the Building, which Lessor shall grant access to for
repair and maintenance of the condenser unit. Lessee shall be responsible for
the maintenance and repair of the supplemental air conditioning.
6.07 UTILITIES. The Premises, including the computer/communications room,
lighting, receptacles, HVAC and supplemental air conditioning shall be
sub-metered for electrical consumption. The cost of such submetering equipment
shall be borne by Lessor. Lessor shall read the sub-meter monthly and invoice
Lessee for the electrical usage. The calculation shall be based on Lessor's
actual electrical consumption charge and demand charge divided by the total
kilowatt hour (KWH) consumed ("Rate per KWH") for the Building multiplied by
Lessee's KWH consumption.
6.08 SECURITY SYSTEM. Lessee shall be permitted to utilize the Building's
security system to control entry and egress to every portion of Lessee's
Premises, within the limitations and capabilities of the Building's security
system. Lessee shall be responsible for the cost of the installation of any
equipment and wiring for the connection, and maintenance and repair to the
Building's security system. Lessor shall issue and modify access cards based
upon Lessor's security procedures at the time.
ARTICLE VII
REPAIRS, MAINTENANCE, ALTERATIONS, IMPROVEMENTS AND FIXTURES
7.01 REPAIR AND MAINTENANCE OF BUILDING. Lessor shall keep and maintain the
Building in good order, condition and repair, including the roof, exterior walls
and windows, foundations, Common Areas, and the electrical, elevator, plumbing,
heating, ventilation and air-conditioning systems serving the Premises and other
parts of the Building. The cost of all such repairs by Lessor shall be included
as part of the Building Operating Expenses, except for those made to any
electrical, plumbing, heating, ventilation and air-conditioning components which
have been installed in the Premises pursuant to Article VI, Paragraph 6.03, and
except for those made necessary by the negligence, misuse or default of Lessee,
its employees, agents, customers, or invitees, in which event they shall be
borne by Lessee, who shall be separately billed and shall reimburse Lessor, upon
demand, for the same as Additional Rent.
7.02 REPAIR AND MAINTENANCE OF PREMISES. Lessee shall, at Lessee's expense, keep
and maintain the Premises in a neat, clean and tenantable condition and good
repair, except for ordinary wear and tear. Lessee agrees to make all repairs
necessitated by the negligence or deliberate act of Lessee, its employees,
agents, or invitees, and to make all other repairs not specifically required to
be made by Lessor under the provisions of the foregoing paragraph. Lessee shall
be billed separately for the cost of all such repairs and maintenance and shall
reimburse Lessor for the same as Additional Rent; provided, however, that the
cost of the services specified in Paragraph 6.01 may at Lessor's discretion be
billed directly to Lessee or included by Lessor as part of Building Operating
Expenses.
7.03 ALTERATIONS OR IMPROVEMENTS. Lessee may make, or permit to be made,
alterations or improvements to the Premises, but only if Lessee obtains the
prior written consent of Lessor thereto which shall not be unreasonably
withheld. If Lessor allows Lessee to make any such alterations or improvements,
Lessee shall make the same in accordance with all applicable laws and building
codes, in a good and workmanlike manner and in quality equal to or better than
the original construction of the Building and shall comply with such
requirements as Lessor considers necessary or desirable, including without
limitation requirements as to the manner in which and the times at which such
work shall be done and the contractor or subcontractors to be selected to
perform such work. Lessee shall promptly pay all costs attributable to such
alterations and improvements and shall indemnify Lessor against any mechanics'
liens or other liens or claims filed or asserted as a result thereof, as
provided in Article X; and shall also indemnify Lessor against any costs or
expenses which may be incurred as a result thereof, including cleaning and waste
removal; and shall also indemnify Lessor against any costs or expenses which may
be incurred as a result of building code violations attributable to such work.
Lessee shall promptly repair any damage to the Premises or the Building caused
by any such alterations or improvements. Any alterations or improvements to the
Premises, except movable office furniture and equipment and trade fixtures,
shall become a part of the Building and the property of Lessor and shall not be
removed by Lessee.
Lessor:
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Forest Green/Ormsby I Lease Lessee:
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7.04 TRADE FIXTURES. Any trade fixtures installed on the Premises by Lessee at
its own expense, such as movable partitions, counters, shelving,
data/communication cabling and the like, shall (unless otherwise approved by
Lessor) be removed on the Expiration Date or earlier termination of the Lease
provided that Lessee is not then in default. Lessee shall bear the cost of such
removal and repairs at its own expense any and all damage to the Premises
resulting from such removal. If Lessee fails to remove any and all such trade
fixtures from the Premises on the Expiration Date or earlier termination of this
Lease, all such trade fixtures shall become the property of Lessor unless Lessor
elects to require their removal, in which case Lessee shall promptly remove same
and restore the Premises to their prior condition, except for ordinary wear and
tear.
ARTICLE VIII
FIRE OR OTHER CASUALTY INSURANCE
8.01 REPAIRABLE DESTRUCTION OF PREMISES. If the Premises are damaged or
destroyed, in whole or in part, at any time during the term of this Lease by
fire or other casualty, the Lessor with due diligence will repair and rebuild
the same so that after such work of repairing and rebuilding has been completed,
the Premises shall be substantially the same as that prior to such damage. If
such repair is not completed within six (6) months, Lessee shall have the right
to terminate this Lease. Any provisions contained in this paragraph or in this
Lease requiring repairs, rebuilding, restoration or reconstruction or providing
for the use of insurance proceeds for any purpose shall be subject to the rights
of the mortgagee of Lessor.
8.02 IRREPARABLE DESTRUCTION OF PREMISES. If the Building shall be damaged or
destroyed to such an extent that Lessor in its discretion, determines the
Building to be irreparably destroyed, Lessor shall give the Lessee notice of
such determination within thirty (30) days after the date of such damage or
destruction. In the event of irreparable destruction, this Lease shall
automatically terminate as of the date of such destruction, and the Lessor shall
not be obligated to repair or rebuild. Any provisions contained in this
paragraph or in this Lease requiring repairs, rebuilding, restoration or
reconstruction or providing for the use of insurance proceeds for any purpose
shall be subject to the rights of the mortgagee of Lessor.
8.03 RENTAL ABATEMENT DURING RECONSTRUCTION. In the event of any damage or
destruction of the Premises or Building to the extent that the Premises shall
have been rendered unfit for use for Lessee's business purposes, there shall be
an abatement of rent corresponding to the time during which, and the extent to
which, the Premises may not be used by the Lessee for its business purposes. The
abatement of rent will terminate on the day that the Lessor has completed its
repair of the Premises and tenders possession of the Premises to the Lessee.
8.04 LESSOR'S DAMAGE OBLIGATIONS. No damages, compensations, setoffs or claims
shall be payable by Lessor for inconvenience, loss of business or annoyance
arising from any repair or restoration of any portion of the Premises or of the
Building required to be made by Lessor under the provisions of this Article
VIII, but this Paragraph shall not be construed to limit the abatement of
Lessee's rent in accordance with Paragraph 8.03 above. Lessor covenants with
Lessee that it shall use its best efforts to effect all such repairs promptly
and in such manner as not unreasonably to interfere with Lessee's occupancy.
8.05 INDEMNIFICATION. Lessee shall assume the risk of, be responsible for, have
the obligation to insure against, and indemnify Lessor and hold it harmless from
any and all liability for any loss, damage, injury or death to person or
property occurring in the Premises, regardless of cause, except for that caused
by the sole negligence of Lessor and its employees, agents, customers and
invitees; and, Lessee hereby releases Lessor from any and all liability for the
same. Lessee's obligation to indemnify Lessor hereunder shall include the duty
to defend against any claims asserted by reason of such loss, damage or injury
and to pay any judgments, settlements, costs, fees and expenses incurred in
connection therewith. Notwithstanding Lessor's obligations hereunder, Lessee
shall bear the sole risk of any loss of or damage to any personal property
(including but not limited to, any furniture, machinery, equipment, goods or
supplies) of Lessee or which Lessee may have on the Premises or any trade
fixtures installed by or paid for by Lessee on the Premises or any additional
improvements which Lessee may construct on the Premises; and, Lessor shall not
be liable for any such loss or damage, regardless of cause, except the sole
negligence of Lessor, its employees or agents. Lessor shall not be liable for
any injury to or death of any person or any loss of or damage to property
sustained by Lessee, or by any other person(s) whatsoever, which may be caused
by the Building or the Premises or any appurtenances thereto or thereof being
out of repair, or by the bursting or leakage of any water, gas, sewer, or steam
pipes, or by theft or by any act or neglect of any Lessee or occupant of the
Building, or of any other person, or by any other cause of whatsoever nature,
unless caused by the negligence of Lessor or its officers, agents or employees.
8.06 LESSEE'S INSURANCE. Lessee, in order to enable it to meet its obligation to
insure against the liabilities specified in this Lease, shall at all times
during the term of this Lease carry, at its own expense, one or more policies of
general public liability and property damage insurance, issued by one or more
insurance companies acceptable to Lessor, with the following minimum coverage:
A. Worker's Compensation - Minimum Statutory Amount
B. Comprehensive General Liability Insurance, - Not less than $1,000,000
including Blanket Contractual Liability, Combined Single Limit for
Broad Form Property Damage, Personal Injury, both Bodily Injury and
Completed Operations, Products Liability, Fire Damage Property Damage
C. Fire and Extended Coverage, Vandalism and - Full cost of replacement of
Malicious Mischief, and Sprinkler Leakage Insurance Lessee's Property & Fixtures
Comprehensive General Liability Insurance policies shall name Lessor,
and its managing agent (currently Faulkner Hinton & Associates), as additional
insureds and shall provide that they may not be canceled on less than thirty
(30) days prior written notice to Lessor. Lessee shall furnish Lessor annually
with a copy of all certificates evidencing such insurance. Should Lessee fail to
carry such insurance and/or furnish Lessor with a copy of all such certificates
after a request to do so, Lessor shall have the right to obtain such insurance
and collect the cost thereof from Lessee as Additional Rent or, at Lessor's
discretion, to evict Lessee and all its business operations from the Premises,
without liability to Lessor. Lessor shall have the right, exercisable in its
sole judgment at any time by giving prior written notice thereof to Lessee, to
require Lessee to; (i) increase the limit and coverage amount of any insurance
Lessee is required to maintain pursuant to this Article to an amount that Lessor
or mortgagee, in its sole judgment, deem sufficient,
Lessor:
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Forest Green/Ormsby I Lease Lessee:
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or (ii) purchase other insurance and/or endorsements in such amounts or types as
Lessor or mortgagee may require from time to time.
8.07 LESSOR'S INDEMNIFICATION. Lessor shall assume the risk of, be responsible
for, have the obligation to insure against and indemnify Lessee and hold it
harmless from any and all liability for any loss, damage or injury to person or
property (other than Lessee's property as provided in Paragraph 8.05) occurring
in, on or about the Building (except inside the Premises) and the Common Areas,
regardless of cause, except for that caused by the negligence of Lessee and its
employees, agents, customers and invitees. Lessor's obligation to indemnify
Lessee hereunder shall include the duty to defend against any claims asserted by
reason of such loss, damage or injury and to pay any judgments, settlements,
costs, fees and expenses incurred in connection therewith.
8.08 LESSOR'S INSURANCE. Lessor shall be responsible for insuring and shall at
all times during the term of this Lease carry, at its own expense, a policy of
insurance which insures the Building, including the Premises, against loss or
damage by fire or other casualty (namely, the perils against which insurance is
afforded by the standard insurance policy and extended coverage endorsement) for
the full replacement cost thereof; provided, however, that Lessor shall not be
responsible for and shall not be obligated to insure against any loss or damage
to any trade fixtures or personal property installed by or paid for by Lessee on
the Premises or any additional improvements which Lessee may construct on the
Premises, as provided in Paragraph 8.05. Lessor shall also carry comprehensive
general liability insurance naming Lessee as an additional insured in an amount
not less than $1,000,000.
8.09 WAIVER OF SUBROGATION. Lessor and Lessee hereby release each other and each
other's employees, agents, customers and invitees from any and all liability for
any loss, damage or injury to person or property occurring in, on or about or to
the Premises, the Building, improvements to 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 Lessor or Lessee and their employees,
agents, customers and invitees. Each party to this Lease shall obtain from its
respective insurance company a consent to this mutual waiver of
subrogation/release, so as to prevent the invalidation of insurance coverage by
reason of this mutual waiver of subrogation/release, and shall provide the other
party a copy of any such consent.
ARTICLE IX
EMINENT DOMAIN
9.01 EMINENT DOMAIN. In the event the Building, or any portion thereof
necessary, in the sole opinion of Lessor, to the continued efficient and/or
economically feasible use of the Building shall be taken or condemned in whole
or in part for public purposes, or sold to a condemning authority to prevent
taking, then the term of this Lease shall, at the option of the Lessor,
forthwith cease and terminate. All compensation awarded for such taking or
conveyance shall be the property of Lessor without any deduction therefrom for
any present or future estate of Lessee, and Lessee hereby assigns to Lessor all
its right, title and interest in and to any such award. All compensation awarded
is subject to the rights of the Lessor's mortgagee. However, Lessee shall have
the right to recover from such authority, but not from Lessor, such compensation
as may be awarded to Lessee on account of moving and relocation expenses and
depreciation to and removal of Lessee's trade fixtures and personal property as
long as such award does not diminish the award to Lessor.
ARTICLE X
LIENS
10.01 LIENS. Lessee will keep the Premises and Building free and clear of all
mechanics' and materialmen's liens and other liens on account of work done for
Lessee or persons claiming under it. Should any such lien be filed against the
Premises and/or the Building, and not removed within thirty (30) days of notice
from Lessor to Lessee, Lessor may, without further notice to Lessee, elect to
obtain the release of each lien and any sums expended by Lessor shall be
immediately repaid to Lessor by Lessee together with interest at the rate of
eighteen percent (18%) per annum. Should Lessee elect to dispute the amount
required to release such lien or the quality of service provided by the
contractor who placed the lien, Lessee shall have the right to provide a bond,
against such lien in form and content reasonably acceptable to Lessor.
10.02 WAIVER OF LANDLORD'S LIEN. At Lessee's request, Lessor agrees to waive its
statutory lien on Lessee's personal property so as to facilitate Lessee's
financing and equipment leasing.
ARTICLE XI
RENTAL, PERSONAL PROPERTY AND OTHER TAXES
11.01 TAXES. Lessee shall pay before delinquency any and all taxes, assessments,
fees or charges, including any sales, gross income, rental, business occupation
or other taxes, levied or imposed upon Lessee's business operations in the
Premises and any personal property or similar taxes levied or imposed upon
Lessee's trade fixtures, leasehold improvements or personal property located
within the Premises. In the event any such taxes, assessments, fees or charges
are charged to the account of, or levied or imposed upon the property of,
Lessor, Lessee shall reimburse Lessor for the same as Additional Rent.
Notwithstanding the foregoing, Lessee shall have the right to contest in good
faith any such item and to defer payment, if permitted by applicable law, until
after Lessee's liability therefore is finally determined.
ARTICLE XII
ASSIGNMENT AND SUBLETTING
12.01 ASSIGNMENT AND SUBLETTING. Lessee may assign or transfer this Lease or
sublet the Premises or any part thereof but only after it has obtained ten (10)
days prior written consent of Lessor, which said consent shall not be
unreasonably withheld, conditioned or delayed. In the event of any such
assignment or subletting, Lessee shall nevertheless at all times remain fully
responsible and liable for the payment of rent and the performance and
observance of all of Lessee's other obligations under the terms, conditions and
covenants of this Lease. No assignment or subletting of the Premises or any part
thereof shall be binding upon Lessor unless such assignee or sublessee shall
deliver an instrument reasonably satisfactory to Lessor (in recordable form, if
requested) containing an agreement of assumption of all of Lessee's obligations
under this Lease. Upon the occurrence of an event of default, if all or any part
of the Premises are then assigned or sublet, Lessor, in addition to any other
remedies provided by this Lease or by law, may, at its option, collect directly
from the assignee or sublessee all rent becoming due to Lessor by reason of the
assignment or subletting. Any collection by Lessor from the assignee or
sublessee shall not be construed to constitute a novation or release of Lessee
from the further
Lessor:
----
Page 10 of 15
Forest Green/Ormsby I Lease Lessee:
13
performance of its obligations under this Lease. In the event Lessor consents to
Lessee assigning or subletting all or a portion of the Premises, any rent paid
to Lessee as the result of such subletting, which rent is in excess of the rent
then being paid by Lessee, shall be shared equally with Lessor as Additional
Rent. In the event Lessor consents to Lessee assigning or subletting all or a
portion of the Premises, both the Lessee and the sublessee shall be held
responsible under all the terms and conditions of this Lease including but not
limited to the rules and regulations.
ARTICLE XIII
SUBORDINATION, NON-DISTURBANCE & ATTORNMENT
13.01 SUBORDINATION. Lessor shall have the right to subordinate this Lease to
any mortgage presently existing or hereafter placed upon the Building by so
declaring in such mortgage; and, the recording of any such mortgage shall make
it prior and superior to this Lease regardless of the date of execution or
recording of either document. Lessee shall, at Lessor's request, execute and
deliver to Lessor, without cost, any instrument, similar in form to Exhibit I,
which may be deemed necessary or desirable by Lessor to confirm the
subordination of this Lease; and, if Lessee fails or refuses to do so, Lessor
may execute such instrument in the name and as the act of Lessee.
Notwithstanding the foregoing, no default by Lessor under any such mortgage
shall affect Lessee's rights hereunder so long as Lessee is not in default under
this Lease. Lessee shall, in the event any proceedings are brought forth for
foreclosure of any such mortgage, attorn to the purchaser upon any such
foreclosure and recognize such purchaser as the Lessor under this Lease. Lessor
shall furnish Lessee with a Subordination, Non-Disturbance and Attornment
Agreement in the form of Exhibit I executed by Lessor's existing lender within
ten (10) days from the date of Tenant's execution thereof.
ARTICLE XIV
ABANDONMENT
14.01 ABANDONMENT. Lessee shall not vacate or abandon the first floor portion of
the Premises at any time during the term of this Lease; and if Lessee shall
abandon, vacate or surrender such portion of the Premises, or be dispossessed by
process of law, or otherwise, any personal property belonging to Lessee and left
on that Premises shall be deemed to be abandoned, at the option of Lessor,
except such property as may be mortgaged by Lessee. Failure of Lessee to occupy
or use that portion of the Premises for a period of thirty (30) days or longer
shall constitute abandonment by Lessee.
ARTICLE XV
DEFAULTS AND REMEDIES
15.01 DEFAULTS BY LESSEE. The occurrence of any one or more of the following
events shall be a default and breach of this Lease by Lessee:
A. Lessee shall fail to pay any monthly installment of either Base
Rent, Additional Rent or any other obligations within ten (10) days after
receipt of notice from Lessor that the same is due and payable. No further
notice shall be required for default in payment.
B. Lessee shall fail to perform or observe any material term,
condition, covenant or obligation, other than the payment of rent, required to
be performed or observed by it under this Lease for a period of thirty (30) days
after notice thereof from Lessor; provided, however, that if the term,
condition, covenant or obligations to be performed by Lessee is of such nature
that the same cannot reasonably be performed within such thirty-day period, such
default shall be deemed to have been cured if Lessee commences such performance
within said thirty-day period, thereafter diligently undertakes to complete the
same, and informs Lessor, in writing, of Lessee's progress in completing same on
a month-to-month basis.
C. A trustee or receiver shall be appointed to take possession of
substantially all of Lessee's assets in, on or about the Premises or of Lessee's
interest in this Lease (and Lessee does not regain possession within sixty (60)
days after such appointment); Lessee makes an assignment for the benefit of
creditors; substantially all of Lessee's assets in, on or about the Premises or
Lessee's interest in this Lease are attached or levied upon under execution (and
Lessee does not discharge the same within sixty (60) days thereafter); or, a
petition in bankruptcy, insolvency, or for reorganization or arrangement is
filed by or against Lessee pursuant to any federal or state statute (and, with
respect to any such petition filed against it, Lessee fails to secure a stay or
discharge thereof within sixty (60) days after the filing of the same).
D. Lessee abandons or vacates the first floor portion of the Premises.
15.02 REMEDIES OF LESSOR. Upon the occurrence of any event of default set forth
in Paragraph 15.01, Lessor shall have the following rights and remedies, in
addition to those allowed by law or equity, any one or more of which may be
exercised without further notice to or demand upon Lessee:
A. Lessor may apply the security deposit and/or re-enter the Premises
and cure any default of Lessee, in which event Lessee shall, upon demand,
reimburse Lessor as Additional Rent for any reasonable costs and expenses which
Lessor may incur to cure such default; and, Lessor shall not be liable to Lessee
for any loss or damage which Lessee may sustain by reason of Lessor's action. In
the event the Lessor should consult with or employ the services of legal counsel
or bring suit against Lessee for any default or enforcement of any terms of this
Lease, Lessee shall be liable for all such attorney's fees and litigation costs
incurred by Lessor and the same shall be recoverable against Lessee in addition
to all other amounts that Lessor may recover.
B. Lessor may terminate this Lease as of the date of such default. Upon
termination, Lessee or any party leasing the Premises through the Lessee, shall
immediately surrender the Premises to Lessor. Lessor may re-enter the Premises
and dispossess Lessee or any other occupants of the Premises by force, summary
proceedings, ejectment or otherwise, and may remove their effects, without
prejudice to any other remedy which Lessor may have for possession or arrearage
in rent. In addition, Lessor may declare all past, present and future rent
payments under this Lease to be immediately due and payable. Lessor may re-let
all or part of the Premises to another party on terms and conditions which may
vary from the terms of this Lease. Lessee shall be obligated to pay to Lessor
the difference between the rent provided for in any such subsequent lease and
the rent provided for in this Lease. No matter which remedy Lessor chooses in
its sole discretion Lessee shall be liable for all costs and expenses caused by
Lessee's default and Lessor's re-entry and re-letting, including but not limited
to, all repairs, improvements, broker's and attorneys' fees.
Lessor:
----
Page 11 of 15
Forest Green/Ormsby I Lease Lessee:
14
C. Lessor may sue for injunctive relief to recover damages for any loss
resulting from the breach.
15.03 DEFAULT BY LESSOR AND REMEDIES OF LESSEE. It shall be a default
and breach of this Lease by Lessor if it shall fail to perform or observe any
term, condition, covenant or obligation required to be performed or observed by
it under this Lease for a period of thirty (30) days after notice thereof from
Lessee; provided, however, that if the term, condition, covenant or obligation
to be performed by Lessor is of such a nature that the same cannot reasonably be
performed within such thirty-day period, such default shall be deemed to have
been cured if Lessor commences such performance within said thirty-day period
and thereafter diligently undertakes to complete the same. Upon the occurrence
of any such default, Lessee may sue for injunctive relief or to recover damages
for any loss resulting from the breach, but Lessee shall not be entitled to
terminate this Lease or withhold or abate any rent due hereunder. If Lessor
shall be in default under this Lease, and if Lessee shall, as a consequence
thereof, recover a money judgment against Lessor, Lessee agrees that it shall
look solely to Lessor's right, title and interest in and to the Building for the
collection of such judgment; and Lessee further agrees that no other assets of
Lessor shall be subject to levy, execution or other process for the satisfaction
of Lessee's judgment and that Lessor shall not be liable for any deficiency.
15.04 NON-WAIVER OF DEFAULTS. The failure or delay by either party
hereto to enforce or exercise at any time any of the rights or remedies or other
provisions of this Lease shall not be construed to be a waiver thereof, nor
affect the validity of any part of this Lease or the right of either party
thereafter to enforce each and every such right or remedy or other provision. No
waiver of any default and breach of this Lease shall be held to be a waiver of
any other default and breach. The receipt by Lessor of less than the full rent
due shall not be construed to be other than a payment on account of rent then
due, nor shall any statement on Lessee's check or any letter accompanying
Lessee's check be deemed an accord and satisfaction, and Lessor may accept such
payment without prejudice to Lessor's right to recover the balance of the rent
due or to pursue any other remedies provided in this Lease. No act or omission
by Lessor or its employees or agents during the term of this Lease shall be
deemed an acceptance of a surrender of the Premises, and no agreement to accept
such a surrender shall be valid unless in writing and signed by Lessor.
ARTICLE XVI
LETTER OF CREDIT
16.01 Lessee shall provide to Lessor, prior to receiving any portion of
the Tenant Improvement Allowance but in no event later than March 30, 2000, an
unconditional, irrevocable letter of credit ("Letter of Credit") from a lending
institution reasonably acceptable to Lessor as a guaranty and security for the
performance of Lessee's obligations under this Lease on the following terms and
conditions:
(A) The Letter of Credit shall be kept in effect from the
date of issuance through the date that is 48 months
after the Commencement Date (the "LC Termination
Date"). The Letter of Credit shall be in the amount
of One Million Six Hundred Forty Five Thousand Two
Hundred Fifty Six Dollars and Fifteen Cents
($1,645,256.15) and shall automatically decrease by
Four Hundred Eleven Thousand Three Hundred Fourteen
Dollars and Four Cents ($411,314.04) each year.
Lessee agrees that if it has not cured a default
within the applicable cure period following notice
from Lessor, then Lessor shall have a right to
present the Letter of Credit for payment, with
amounts received to be held and applied in accordance
with Subparagraph (B) below. If the Letter of Credit
has not been presented for payment in accordance with
this section on or before the LC Termination Date,
Lessor shall return the Letter of Credit to Lessee
within ten (10) days after the LC Termination Date.
Lessee agrees that in the event of any transfer or
mortgage, Lessor shall have the right to transfer the
Letter of Credit to the transferee or mortgagee.
Lessor shall deliver the then current effective
Letter of Credit to Lessee upon receipt of any
conforming substitute Letter of Credit provided in
accordance with this paragraph and cooperate with the
issuing bank to effect the release of such then
current effective Letter of Credit.
(B) If a default occurs which has not been cured within
the period following notice as provided for in this
Lease, Lessor may use, apply or retain the amount
received under the Letter of Credit for the payment
of any rent or other charge in default or to
compensate Lessor for any loss or damage which Lessor
may suffer thereby.
ARTICLE XVII
HAZARDOUS SUBSTANCES
17.01 HAZARDOUS WASTE. Lessee warrants and represents to Lessor that
Lessee will comply with all federal, state and local environmental laws, rules,
regulations and statutes applicable to Lessee's use and occupancy of the
Premises during the term of this Lease. Lessee shall not cause or permit any
Hazardous Material (as hereinafter defined) to be brought upon, kept, or used in
or about the Premises by Lessee, its agents, employees, contractors or invitees,
except for such Hazardous Material as is necessary to Lessee's business provided
that Lessee has notified Lessor it will be bringing upon, keeping or using such
Hazardous Material on or about the Premises. Any Hazardous Material permitted on
the Premises as provided in this Article, and all containers therefor, shall be
used, kept, stored, and disposed of in a manner that complies with all federal,
state and local laws or regulations applicable to this Hazardous Material.
Lessee shall not discharge, leak, or emit, or permit to be discharged, leaked,
or emitted, any material into the atmosphere, ground, sewer system, or any body
of water, if that material (as is reasonably determined by the Lessor, or any
governmental authority) does or may pollute or contaminate the same, or may
adversely affect (a) the health, welfare, or safety of persons, whether located
on the Premises or elsewhere, or (b) the condition, use, or enjoyment of the
Building or any other real or personal property. As used herein, the term
"Hazardous Material" means (a) a "hazardous waste" as defined by the Resource
Conservation a Recovery Act of 1976, as amended from time to time, and
regulation promulgated thereunder; (b) any "hazardous substance" as defined by
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended from time to time, and regulations promulgated thereunder; (c)
any oil, petroleum products, and their by-products; and (d) any substance that
is or becomes regulated by any federal, state, or local governmental authority.
17.02 LESSEE'S RESPONSIBILITY. Lessee hereby agrees that it shall be
fully liable for all costs and expenses related to the use, storage, and
disposal of Hazardous Material kept on the Premises by the Lessee, and the
Lessee shall give immediate notice
Lessor:
----
Page 12 of 15
Forest Green/Ormsby I Lease Lessee:
15
to the Lessor of any violation or potential violation of the provisions of this
Section. Lessee shall defend, indemnify and hold harmless Lessor and its Agents,
from and against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs, or expenses (including, without limitation,
attorneys' and consultants' fees, court costs, and litigation expenses) of
whatever kind or nature, known or unknown, contingent or otherwise, arising out
of or in any way related to (a) the presence, disposal, release, or threatened
release of any such Hazardous Material that is on, from, or affecting the soil,
water, vegetation, building, personal property, persons, animals, or otherwise;
(b) any personal injury (including wrongful death) or property damage (real or
personal) arising out of or related to that Hazardous Material; (c) any lawsuit
brought or threatened, settlement reached, or government order relating to that
Hazardous Material; or (d) any violation of any laws applicable thereto. The
provisions of this Article shall be in addition to any other obligations and
liabilities Lessee may have to Lessor at law or equity and shall survive the
transactions contemplated herein and shall survive termination of this Lease.
17.03 PROPERTY CONDITION. As of the date of this Lease, Lessor is not
aware of any Hazardous Material on the Property. Lessor warrants and represents
to Lessee that Lessor has complied and will comply with all federal, state and
local environmental laws, rules, regulations and statutes applicable to Property
and Building during the term of this Lease and shall indemnify and hold Lessee
harmless from any failure to do so.
ARTICLE XVIII
NOTICE AND PLACE OF PAYMENT
18.01 NOTICES. Any notice required or permitted to be given under this
Lease or by law shall be deemed to have been given if reduced to writing and
delivered in person or mailed by Registered or Certified mail, postage prepaid,
or delivered by private carrier, to the party who is to receive such notice at
the address specified in Article I, Paragraph 1.01 of the Basic Lease
Provisions, when so mailed, the notice shall be deemed to have been given as of
three (3) business days after the date it was mailed. The address specified in
Article I, Paragraph 1.01 of the Basic Lease Provisions may be changed by
providing written notice to the other party.
18.02 PLACE OF PAYMENT. All rent and other payments required to be made
by Lessee to Lessor shall be delivered or mailed to Lessor's managing agent at
the address specified in Article 1, Paragraph 1.01 in the Basic Lease Provisions
or any other address Lessor may specify from time to time by written notice
given to Lessee.
ARTICLE XIX
MISCELLANEOUS GENERAL PROVISIONS
19.01 ROOF RIGHTS. Except as otherwise provided in this Lease, Lessor
shall have the exclusive right to use all or any portion of the roof of the
Building for any purpose. This Lease does not grant any rights to light, view
and/or air over the Premises or property.
19.02 NAME OF BUILDING. Lessor shall have the right to change the name
of the Building during the period of time in which Lessee occupies any portion
of said Building under this Lease or any extension thereof and shall have no
obligation for any loss or damage to Lessee by reason thereof; provided,
however, the Building shall not be named for or on behalf of any tenant who
leases less square feet in the Building than Lessee. Notice of such change shall
be in writing to Lessee as soon as the decision to change the name of the
Building has been made.
19.03 COMMON FACILITIES AND PARKING. Lessee shall have the nonexclusive
right, in common with others, to the use of common entrances, lobbies,
elevators, ramps, parking, drives, stairs and similar access and serviceways and
other common facilities in and adjacent to the Building, subject to such rules
and regulations as may be adopted by the Lessor.
19.04 CONDUCT. Lessee shall not conduct its practice or business, or
advertise in any manner which violates local, state and federal laws or
regulations.
19.05 ESTOPPEL CERTIFICATE. Each party shall, within ten (10) days
following receipt of a written request from the other, execute, acknowledge and
deliver to the requesting party or to any lender, purchaser or prospective
lender or purchaser designated by the requesting party a written statement
certifying (i) that this Lease is the only lease between the parties and is in
full force and effect and unmodified (or, if modified, stating the nature of
such modification); (ii) the date to which rent has been paid; and, (iii) that
there are not, to the party's knowledge, any uncured defaults (or specifying
such defaults if any are claimed). Any such statement may be relied upon by any
prospective purchaser or mortgagee. A party's failure to deliver such statement
within such period shall be conclusive upon such party that this Lease is in
full force and effect and unmodified, and that there are no uncured defaults in
the requesting party's performance hereunder. Furthermore, if the party should
fail to deliver such statement within fifteen (15) days from receipt, it shall
pay a penalty fee in the amount of twenty-five dollars ($25.00) per day
beginning on the sixteenth (16th) day from receipt of such statement and
continuing thereafter until the day the requesting party receives such statement
fully executed by the other party.
19.06 RECORDING OF MEMORANDUM OF LEASE. If requested by either party, a
Memorandum of Lease containing the information required by Kentucky law, or any
other information determined to be pertinent by Lessor concerning this Lease
shall be prepared and executed by both parties and filed for record. Recording
costs will be at the expense of the requesting party.
19.07 NO BROKER. Lessee represents and warrants to Lessor that it has
not engaged any broker, finder or other person, other than ReMax Commercial
Brokers, who will be entitled to any commission or fee with respect to the
negotiation, execution or delivery of this Lease or any assignment, sublease or
renewal thereof and shall indemnify Lessor against any loss, cost, liability or
expenses legally imposed by Lessor as a result of any claim asserted by any such
broker, finder or other person on the basis of any arrangements or agreements
made or alleged to have been made by or on behalf of Lessee. Lessor agrees to
pay ReMax Commercial
Lessor:
----
Page 13 of 15
Forest Green/Ormsby I Lease Lessee:
16
Brokers a commission of four percent of the net rent due under the Lease for
years 1 through 5 and two percent for years 6 through 7, with one-half payable
on March 15, 2000 and the other half when Lessee occupies the Premises.
19.08 ACTS OF GOD. In any case where either party hereto is required to
do any act, delays caused by or resulting from Acts of God, war, civil
commotion, fire, flood or other casualty, labor difficulties, shortages of
labor, materials or equipment, government regulations, unusually severe weather
or other causes beyond such party's reasonable control shall not be counted in
determining the time during which work shall be completed, whether such time be
designated by a fixed date, a fixed time or a "reasonable time," and such time
shall be deed to be extended by the period of such delay.
19.09 GOVERNING LAW. This Lease is being executed and delivered by
Lessor in the Commonwealth of Kentucky and shall be construed and enforced in
accordance with the laws of that state.
19.10 COMPLETE AGREEMENT, AMENDMENTS. This Lease, including all
Exhibits, riders and Addenda, constitutes the entire agreement between the
parties hereto; it supersedes all previous understandings between the parties,
if any, and no oral or implied representation or understandings shall vary its
terms; and, it may not be amended except by a written instrument executed by
both parties hereto.
19.11 SUCCESSORS AND ASSIGNS. This Lease and the respective rights and
obligations of the parties hereto shall inure to the benefit of and be binding
upon the successors and assigns of the parties hereto as well as the parties
themselves; provided, however, that Lessor, its successors and assigns shall be
liable for and obligated to perform Lessor's covenants under this Lease only
during and in respect of their successive periods of ownership during the term
of this Lease.
19.12 SEVERABILITY OF INVALID PROVISIONS. If any provision of this
Lease shall be held to be invalid, void or unenforceable, the remaining
provisions hereof shall not be affected or impaired, and such remaining
provisions shall remain in full force and effect.
19.13 DEFINITION OF THE RELATIONSHIP BETWEEN THE PARTIES. Lessor shall
not, by virtue of the execution of this Lease or the leasing of the Premises to
lessee, become or be deemed a partner of or joint venturer with Lessee in the
conduct of Lessee's business on the Premises or otherwise.
19.14 CERTAIN WORDS, GENDER AND HEADINGS. As used in this Lease, the
word "person" shall mean and include, where appropriate an individual,
corporation, partnership or other entity; the plural shall be substituted for
the singular and the singular for the plural, where appropriate; and words of
any gender shall include any other gender. The topical headings of the several
paragraphs of this Lease are inserted only as a matter of convenience and
reference and do not affect, define, limit or describe the scope or intent of
this Lease.
19.15 CORPORATE AUTHORITY. If Lessee executes this Lease as a
corporation, each of the persons executing this Lease on behalf of Lessee does
hereby personally covenant and warrant that Lessee is a duly authorized and
existing corporation, that Lessee has and is qualified to do business in
Kentucky, that the corporation has full right and authority to enter into this
Lease and that each person signing on behalf of the corporation was authorized
to do so.
19.16 EXAMINATION OF LEASE. The submission of this lease form by Lessor
for examination does not constitute an offer to lease or a reservation of an
option to lease. In addition, Lessor and Lessee acknowledge that neither of them
shall be bound by the representations, promises or preliminary negotiations with
respect to the Demised Premises made by their respective employees or agents. It
is their intention that neither party by legally bound in any way until this
Lease has been fully executed by both Lessee and Lessor.
19.17 ACCEPTANCE. The offer to lease set forth in this Lease must be
accepted by Lessee by the delivery of fully signed duplicate originals hereof to
Lessor by no later than the date and time specified in Article 1, Paragraph
1.01, otherwise this offer may, at Lessor's sole option, be terminated and be of
no further force or effect.
19.18 ADDITIONAL PROVISIONS. Additional provisions of this Lease, if
any, are set forth in the three (3) Addenda to Lease attached hereto and made a
part hereof.
SIGNATURE PAGE FOLLOWS
Lessor:
----
Page 14 of 15
Forest Green/Ormsby I Lease Lessee:
17
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the day and year first written above.
LESSEE: High Speed Access Corp.
a Delaware Corporation
By: /s/ High Speed Access Corp.
--------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Title:
-----------------------------------
LESSOR: Faulkner Hinton/Ormsby I, LLC
a Kentucky Limited Liability Corporation
By: /s/ Faulkner Hinton/Ormsby I, LLC
--------------------------------------
Fred Faulkner, Member
18
EXHIBIT A
-----------------
SITE PLAN
Lessor:
----
Forest Green/Ormsby I Lease Lessee:
19
EXHIBIT B
-----------------
LEGAL DESCRIPTION
Lot 9, as identified on the Record Plat of Forest Green Section 3,
prepared by Sabak, Wilson & Lingo, Inc., dated August 9, 1999, recorded August
10, 1999, of record in Plat and Subdivision Book 45, Page 72, further of record
in Deed Book 7297, Page 874, in the Office of the Clerk of Jefferson County,
Kentucky.
TOGETHER WITH permanent ingress, egress, access, utility, water and
sewer easements over and across Lot 3 and Lot 4 as shown on the Plat of record
in Plat and Subdivision Book 45, Page 72; and together with those easements
created in those certain instruments of record in Deed Book 7297, Page 874, and
in Deed Book 7307, Page 312, all in the Office aforesaid.
BEING all of the property acquired by Faulkner Hinton/Ormsby I, LLC by
Deed of record in Deed Book 7307, Page 315, in the Office aforesaid.
Also being a portion of the property acquired by Faulkner Hinton/Forest
Green-Land, LLC by Deed of record in Deed Book 6884, Page 927, in the Office
aforesaid.
Lessor:
----
Forest Green/Ormsby I Lease Lessee:
20
EXHIBIT C
-----------------
FLOOR PLAN OF PREMISES
Lessor:
----
Forest Green/Ormsby I Lease Lessee:
21
EXHIBIT D
-----------------
DESCRIPTION OF LESSOR'S WORK
Fire Protection Lessor provides base sprinkler system
including all distribution of mains,
laterals and upright heads. Lessee provides
for sprinkler distribution to ceiling
system.
HVAC Lessor provides central duct completely
around core from floor package unit. Lessee
provides for branch duct work from central
duct, VAV boxes, FPT boxes, to diffusers in
ceiling and controls to BAS. Design
standards for floors 1 through 6 provide for
interior conditions of 78 degrees dry bulb
when outside conditions are 93 degrees dry
bulb and 76 degrees wet bulb, and winter
interior conditions of 68 degrees when
outside conditions are 5 degrees. System is
designed for heat load not-to-exceed 3.0
watts (lighting and power) of electricity
per square foot and occupancy based on one
(1) person for every 100 square feet.
Electrical On floors 1 through 6 Lessor provides two
(2) 120/208-200 amp electrical panel (for
receptacles) and one (1) 277/480 - 60 amp
electrical (for lighting). On the Ground
Level Lessor provides one (1) 120/208-100
amp panel (in which Lessee may have its pro
rata share of circuits) and one (1)
277/480-225 amp panel (in which Lessee may
have 15 spare circuits). Lessee provides for
power from electrical panels (located in
electrical closer on each floor) to
Premises. System capacity prorated for
partial floors and system designed of 4
volt/amps per usable square foot on floors 1
through 6. Lessor provides all electrical
subpanels and metering equipment required to
measure Lessee's electrical consumption in
all of the Premises leased to Lessee.
Restrooms Lessor finishes restrooms on each floor to
Building standard. Includes the following:
6"x6" ceramic floor tile, wall coverings,
drywall ceilings, recessed can light
fixtures, full length mirror above sinks,
Corian countertop, drywall partitions with
louvered doors, motion activated water
fixtures, and stainless steel dispensers.
Elevator Lobbies Lessor finishes elevator lobby on each of
floors 1 through 6 to Building standard.
Includes the following: drywall ceiling with
soffits, recessed can light fixtures,
carpet, and wall covering. On the Ground
Level Lessor finishes the elevator lobby
with drywall, ceiling with soffets, recessed
can light fixtures, VCT floor covering and
painted walls.
Corridors Lessor finishes corridors on multi-tenant
floors (4th floor and 1st floor). Includes
the following: 2'x2' acoustical ceiling,
wall coverings, 2'x4' 18 cell parabolic
light fixtures, carpet, and 9' solid core
birch doors with hollow metal frame.
Lessor finishes corridors on Ground Level
with 2' x 4' ceiling tiles, VCT floor
covering, painted walls, acrylic light
fixtures
Lessor:
----
Forest Green/Ormsby I Lease Lessee:
22
and 9' solid core birch doors with hollow
metal frame.
Security Lessor furnishes:
o Proximity Card Readers -
1. 20" read range
2. Readers located at each lobby
and all elevators
3. Anti-pass back protection
4. Anti-tail gating protection
o Access/Egress Control -
1. Restricted keyway (cylinder)
system on all doors
2. All exterior doors controlled
via locking mechanism
3. All stairwell doors controlled
via locking mechanism
4. All elevators computer
controlled
5. Emergency delay/alarm releases
on all egress routes
6. All exterior and stairwell
building doors monitored for
ajar/open condition
o System Parameters -
1. Partitioned data based option
available (at $3,500 cost to
Tenant)
2. Full range of reporting
options for tenants
3. System automatically pages
Building Management for
security breach
4. Numerous Floor Level Groups
available
5. Numerous Reader Groups
available
6. Numerous time schedule groups
available
7. System fails in safe/secure
mode
o CCTV System -
1. Discrete cameras located in
main lobbies, exits and
loading dock
2. Time-lapse recorder and
monitor in Building Management
Office
Generator Lessor will furnish a two-inch gas pipe for
Lessee's use to hook-up an emergency
generator. Lessor will provide a concrete
pad with suitable screening in a designated
area adjacent to Lessee's Ground Level
Premises and will also provide suitable
areas for outside condensers for
supplemental HVAC. Lessee will provide the
generator and is responsible for hook-up
with Louisville Gas and Electric Company.
Lower Level Lessor will finish the training/conference
center with Building standard finishes.
Lessor:
----
Forest Green/Ormsby I Lease Lessee:
23
EXHIBIT E
-----------------
GREENWAYS PLAN
Lessor:
Forest Green/Ormsby I Lease Lessee:
24
EXHIBIT F
------------------------
LEASEHOLD IMPROVEMENTS
In addition to the mutual covenants contained in the Lease, Lessor and
Lessee mutually agree as follows:
1. Plans and Specifications for the Premises
a. Lessor shall cooperate with Lessee's designated architect and engineer
to develop the plans and specifications for the Premises (the "Space
Plans"). Lessee, at Lessee's expense, shall provide the following Space
Plans: (i) architectural; (ii) electrical; (iii) plumbing; (iv) HVAC;
and (iv) structural, if any.
b. Lessee and Lessor agree to cooperate to facilitate the completion of
the Space Plans within thirty (30) days of February 25, 2000 (after the
contingency period). Lessee agrees to provide Lessor a progress set of
Space Plans weekly, and Lessor shall provide weekly comments to Lessee.
Lessor shall retain the right to require modifications to the Space
Plans that affect structural, mechanical, electrical, plumbing,
Building operation systems, or other specifications provided for
herein. Upon completion of the Space Plans, Lessor and Lessee shall
execute four (4) sets of Lessee's final Space Plans, which shall be
deemed the Approved Space Plans for construction.
c. Lessee's requirements for HVAC, electrical, plumbing and floor load in
excess of Building Standard or Building design criteria, shall be
prepared by Lessee's engineer at Lessee's expense and shall be subject
to the approval of Lessor as provided for in the Lease. The extent to
which any of the Lessee's Space Plans or requirements for HVAC,
electrical, or plumbing exceed the Building's design standards, in the
reasonable determination of Lessor, the installation cost incurred and
the operating cost shall be paid by Lessee. At Lessor's determination,
Lessor may require the mechanical systems to be returned to the
original Building design and specification at the termination date of
the Lease.
d. Lessee's obligation for the payment of rent under the Lease shall
commence on the earlier of the dates specified in Section 1.01 or the
dates Lessee conducts business therein, except payment of Rent shall be
delayed day for day past the scheduled date if Lessee is delayed in
substantially completing said work as a result of: (i) Lessor's failure
to approve subject to referred revisions or modification, Lessee's
Space Plans within eight (8) business days of receipt; (ii) Lessor's
delay in providing Lessee with the allowance described below; (iii)
Lessor's Work (described on Exhibit D) is delayed; or (iv) Lessor's
failure to cooperate with Lessee's architect and contractor performing
such work.
2. Leasehold Improvements.
a. Lessor shall pay in accordance with Lessor's construction loan draw
process (provided, however, no retainage shall be required) on a
monthly basis to Lessee all amounts incurred by Lessee in performing
its work to ready the Premises for occupancy, up to a maximum sum of
One Million Five Hundred One Thousand Twenty Dollars and zero cents
($1,501,020). Lessee shall submit its requests to Lessor on or before
the first day of each month and Lessor shall make payment to Lessee on
or before the fifteenth (15th) day of each month. In no event shall
Lessee be required to advance any of its funds toward tenant
improvements until it has received the full $1,501,020 allowance.
Lessee shall be responsible for any additional construction costs over
the above allowance.
b. Lessor hereby grants to Lessee, the right to have Lessee's contractors
provide materials and perform improvements to the Premises.
Improvements to be performed by Lessee shall not proceed without
Lessor's prior written approval (which shall not be unreasonably
withheld or delayed) of the following: (i) Lessee's contractor(s) and
any subcontractors, (ii) a Certificate of Insurance naming Lessor as
additional insured, to insure that each contractor(s) has liability,
property damage, and workmen's compensation insurance, (iii) detailed
plans and specifications for such work, (iv) copies of a valid building
permit or other permits or licenses when and where required, and (v) a
copy of Lessee's contract with the Contractor. Lessor shall have the
right to designate contractors or subcontractors providing any roof
penetration, sprinkler, HVAC, electrical or plumbing work. Lessee shall
provide reasonable evidence in the form of an unconditional lien
waiver(s) that the contractor(s) providing the materials and/or
performing the work have been paid in full.
c. Lessor shall have no responsibility to supervise Lessee's contractor,
except for monitoring work directly affecting building systems and
common areas. Lessee shall be responsible for all costs required for
additional clean-up in common areas, damage to common areas, and
after-hours work for connection to building systems or causes
disruption to other lessees. Lessee shall reimburse Lessor for any
extra expense incurred by Lessor by reason of faulty work performed by
lessee or its contractors, by reason of inadequate cleanup or waste
removal, or common area damage.
Lessor:
Forest Green/Ormsby I Lease Lessee:
25
EXHIBIT G
------------------
EXAMPLE OF THE
ACCEPTANCE OF PREMISES AMENDMENT
As per Article II, Section 2.01 and 2.02, below is an example of the form to be
executed by Lessor and Lessee prior to delivery of possession of the Premises to
Lessee.
ACCEPTANCE OF PREMISES
AMENDMENT
This Amendment to the Lease entered into this day of _______, 2000 by
and between ___________________________ ("Lessor") and ("Lessee") shall
amend and/or confirm the terms of the Lease between Lessor and Lessee
for certain office space located in _______________________.
LESSOR and LESSEE hereby AGREE as follows:
1. Except for those items shown on the attached "punch list",
which Lessor will remedy within 30 days hereof, Lessor has
fully completed the construction work required under the terms
of the Lease and Exhibit D attached thereto.
2. The Premises are tenantable. The Lessor has no further
obligation for construction (except as specified above) and
Lessee acknowledges that both the Building and the Premises
are satisfactory in all respects except for minor punch list
items, latent defects and HVAC seasonal variations for the
Base Building.
3. The Rentable Area of the Premises (Article I, Paragraph 1.01,
Item B) is hereby agreed to be ____________ Rentable Square
Feet.
4. The Commencement Date of the Lease (Article I, Paragraph 1.01,
Item C) is hereby agreed to be ____________________, 2000 for
Suite 100; ___________, 2000 for Suite 200; ___________, 2000
for Suite 300; ________, 2000 for Suite 405; and __________,
2000 for the Suite G125.
5. The Expiration Date of the Lease (Article I, Paragraph 1.01,
Item C) is hereby agreed to be __________________, 2007.
6. The Initial Base Rent of the Lease (Article I, Paragraph 1.01,
Item D) is hereby agreed to be __________ per month or
__________ per annum.
7. The Operating Expense Stop and Net Rent of the Lease (Article
I, Paragraph 1.01, Item D) for Suites 100, 200, 300 and 405 is
hereby agreed to be ___________ per annum and ______________
per annum, respectively.
8. The Ground Level Premises (Second Addendum to Lease) is hereby
agreed to be _____________________ Rentable Square Feet. The
Net Rent for Suite G125 is hereby agreed to be
__________________ per month or __________________ per annum.
9. The total rent for the Premises on the Roof (Third Addendum to
Lease) is hereby agreed to be ______________________ per month
or ___________________________ per annum.
Except as modified herein, all terms and conditions of the Lease and
all addenda are hereby ratified and acknowledged to be unchanged and
shall remain in full force and effect. In the event of any conflict
between the terms and conditions of the Lease and the terms and
conditions of this Amendment, this Amendment shall govern and control.
LESSEE:
By:
LESSOR:
----------------------------------
By:
Lessor:
Forest Green/Ormsby I Lease Lessee:
26
EXHIBIT H
------------------------
RULES AND REGULATIONS
1. Standard hours of operation shall be between the hours of 7:30 a.m. and 6:00
p.m. on Monday through Friday and 9:00 a.m. to 1:00 p.m. on Saturday of each
week except on recognized holidays. The recognized holidays include: New Years
Day, January 1st; Memorial Day, observed; 4th of July, July 4th; Labor Day,
observed; Thanksgiving Day, observed; Christmas, December 25th. Any change to
said hours shall be communicated in advance to Lessee by Lessor. Notwithstanding
the foregoing, Lessee shall have access to the Building at all hours for its
operations.
2. Any sign, lettering or design of Lessee which is visible from the Common
Areas of the Building shall be subject to prior approval by Lessor and shall
conform to the uniform pattern of identification signs for lessees in the
Building as prescribed by Lessor. Lessor shall furnish to Lessee guidelines
relating to signs in the Common Areas of the Building. Lessor shall provide one
set of suite address numbers to be applied to the entrance door of the Premises.
All approved signs or lettering shall be at the expense of the Lessee by a
vendor approved by Lessor. Lessee shall not inscribe or affix any sign,
lettering or design visible from the exterior of the Premises or Building.
Lessor may remove such materials without any liability, and may charge the
expense incurred by such removal to Lessee.
3. The Building is opened to the public during the standard hours of operations
established by Lessor and outlined herein. Lessor will furnish Lessee with a
reasonable number of keys to each entrance door lock of the Premises, two (2)
keys to any interior door lock, if any, and a reasonable number of Building keys
for entry to the Building after hours. Lessor will have the right to collect a
reasonable charge for additional keys or locks requested by Lessee after
occupancy. Each lessee, upon termination of its tenancy, will deliver to Lessor
all keys, which were furnished by Lessor for the Premises and Building, or any
other areas of the Building. If a computerized security system is utilized for
after-hours access, security access cards shall be substituted for keys. Lessee
shall not alter, change, replace, or re-key and lock or install new lock or a
door knocker on any door of the Premises. Lessor, its agents or employees, will
retain a master key to all door locks on the Premises. Any new door locks
required by Lessee or any change of keying of existing locks will be installed
or rekeyed by Lessor following Lessee's written request to Lessor and shall be
at Lessee's expense. All new locks and re-keyed locks will remain operable by
Lessor's master key.
4. A directory of the Building tenants shall be provided for the display of the
name and location of Lessee and such reasonable number of the principal officers
and employees of Lessees as Lessor in its sole discretion may approve. Lessor
shall not in any event be obligated to furnish more than one (1) directory strip
for each 2,000 square feet of rentable area in the Premises. Any additional
names, which Lessee desires to place in such directory, must first be approved
by Lessor, and if so approved, shall be at Lessee's expense.
5. Lessee shall not bring into or remove furniture, freight, supplies,
merchandise or other property, not carried by hand, (hereinafter the
"Equipment") through the lobby or entrances at anytime, without the prior
consent of Lessor. Any Equipment to be brought into or removed from the Building
shall be through the freight/loading dock entrance during normal hours of
operation. The designated freight elevator shall be used to transport the
Equipment and the freight elevators use shall be shared among all lessees.
Passenger elevators shall not be used to transport Equipment without the prior
consent of Lessor. After-hours moving, into or out of the Building, shall
require: (i) Lessor's prior consent; (ii) a minimum of seventy-two (72) hours
advance notice of the move; and (iii) shall be conducted pursuant to such
procedures and manner as Lessor may require for after-hours moving of Equipment,
as may be determined by Lessor from time to time. The persons or company
employed to move Lessee's Equipment in or out of the Building must be accepted
by Lessor. The moving company must be a locally recognized professional mover,
whose primary business is the performing of relocation services, and must be
bonded and fully insured. A certificate or other verification of such insurance
must be received and approved by Lessor prior to the start of any moving
operations. Insurance must be sufficient, in Lessor's sole opinion, to cover all
personal liability, theft, or damage to the Building, including without
limitation, floor coverings, doors, walls, elevators, stairs, foliage, and
landscaping. Special care must be taken to prevent damage to foliage and
landscaping during adverse weather. All items not capable of being carried by
hand shall utilize hand trucks equipped with soft rubber tires and rubber side
guards. Lessee shall consult with Lessor and shall take all necessary protective
measures required for walls, wall corners and floors. Lessor, at Lessee's
expense, will be responsible for providing Building security during all
after-hours moving operations, and will be liable for all losses and damages
sustained by any party as a result of the failure to supply adequate security.
Lessor will have the right to prescribe the weight, size, and position of all
Equipment, including materials, safes, file cabinets, furniture, or other
property, brought into the Building. Lessor will not be responsible for loss of
or damage to any Lessee's property from any cause and all damage done to the
Premises or Building by Lessee's moving will be repaired at the expense of
Lessee. Lessor reserves the right to inspect all such property to be brought
into the Building and to exclude from the Building all such property which
violates any of these rules and regulations. Supplies, goods, materials,
packages, furniture, and all other items of every kind delivered to or taken
from the Premises will be delivered or removed through the route designated by
Lessor. If an after-hours security staff is employed at the Building, removal of
hand carried items from the Building must be accompanied by a "Property Removal
Pass" made available from Lessor during normal business hours.
6. Lessee shall notify and consult with Lessor, in advance, for all
installations and removal of telephone, electrical service, cabling and other
functions requiring access to the Common Areas of the Building or to be attached
to the Building's mechanical, plumbing, or electrical services. Lessee, its
contractors or vendors, shall adhere to such requirements imposed by Lessor. Any
repair of damage or extra cleaning resulting from said installation or removal
shall be performed at Lessee's expense. All cable and wiring installed above the
ceiling, including the Premises, shall be plenum rated. Lessee shall utilize the
cable trays in the Common Areas and label the cables with Lessee's name at all
penetrations. Lessee shall remove all telephone, intercom, music, television and
computer wiring installed by Lessee from the Premises by the Expiration Date of
the Lease unless otherwise approved by Lessor.
7. Lessee shall not will be permitted to place or install any object (including,
without limitation, radio and television antenna, loudspeakers, sound
amplifiers, microwave dishes, solar devices, or similar devices) on the exterior
of the Building or on the roof of the Building.
8. Each Lessee will store all of its trash and garbage within its Premises. No
material will be placed in the trash boxes or receptacles which is of such
nature that it may not be disposed of in an ordinary and customary manner shall
not be in violation of any law or ordinance governing such disposal. All garbage
and refuse disposal will be made only through entryway and elevators
Lessor:
Forest Green/Ormsby I Lease Lessee:
27
provided for such purposes and at such times as Lessor may designate. Removal of
any furniture or furnishings, large equipment, packing crates, and packing
materials, and boxes will be the responsibility of each Lessee, and such items
may not be disposed of in the Building trash receptacles, nor will they be
removed by the Building's janitorial service, except at Lessor's sole option and
at the Lessee's expense. No furniture, appliances, equipment, or flammable
products of any type may be disposed of in the Building trash receptacles.
Lessee shall mark all boxes and trash not in waste containers "TRASH" for
removal by the janitorial staff. Lessee shall at its expense to comply with all
present and future regulations regarding the collection, sorting, separation,
and recycling of waste products, garbage, and trash. Each separately sorted
category of wastes products shall be placed in separate receptacles approved by
Lessor. Lessee shall pay all costs, fines, and penalties that may be imposed by
reason of Lessee's failure to comply with this provision.
9. Lessee shall not allow curtains, draperies, blinds, shutters, shades,
screens, or other coverings, hangings, or decorations will be attached to, hung,
or placed in, or used in connection with any window of the Building or the
Premises unless approved in writing by Lessor. Lessee shall not place any door
mat or similar obstruction in a Building Common Area. The sashes, sash doors,
skylights, windows, heating, ventilating, and air conditioning vents and doors
that reflect or admit light and air into the halls, passageways, or other public
places in the Building will not be covered or obstructed by any Lessee. Lessee
shall not allow showcases, vending machines, or other articles to be put in
front of or affixed to any part of the exterior of the Building, nor placed in
the public halls, corridors, or vestibules without the prior written consent of
Lessor.
10. No Lessee and no employee or invitee of any Lessee will go upon the roof of
the Building without the prior permission of Lessor and accompanied by
maintenance personnel of Lessor.
11. Smoking is not permitted in the Common Areas of the Building including, but
not limited to, lobbies, common hallways, restrooms, vending areas, stairwells,
elevators, conference rooms, or directly outside near the lobby entrances.
Lessee shall be permitted to smoke only in designated smoking areas, established
by Lessor, outside of the Building.
12. The Common Area heating and air conditioning systems shall be operated from
time to time as designated by Lessor consistent with the standard hours of
operation. If Lessee requires heating and air conditioning services within the
Premises, Lessor shall provide the additional services at the then applicable
rates.
13. Lessor shall replace light tubes and lamps for typical lighting fixtures, at
Lessee's expense, if requested by Lessee.
14. No Lessee will employ any person or persons other than the cleaning service
of Lessor for the purpose of cleaning the Premises, unless otherwise agreed by
Lessor in writing. Except with the written consent of Lessor, no person or
persons other than those approved by the Lessor will be permitted to enter the
Building for the purpose of cleaning. No Lessee will cause any unnecessary labor
by reason of such Lessee's carelessness or indifference in the preservation of
good order and cleanliness. If Lessee's actions result in any increased expense
for any required cleaning, Lessor reserves the right to assess Lessee for such
expenses. Janitorial service will not be furnished on nights to individual
offices within the Premises which are occupied after business hours on those
nights.
15. The requirements or requests of the Lessee will be attended to only upon
application by written, personal, or telephone notice at the office of the
Building. Employees of Lessor will not perform any work or do anything outside
of their regular duties unless by instruction from Lessor. If Lessor's employees
are made available to assist Lessee, Lessee shall pay Lessor for their services
at the then applicable hourly rates. Lessor's employees are not required to
admit any person, Lessee or otherwise, to any space without specific instruction
from the Lessor. Lessee agrees to obtain Lessor's prior approval for access to
any Building mechanical, telephone or electrical rooms, and after-hours access
by Lessee's contractors.
16. Canvassing, peddling, soliciting, and distribution of handbills or any other
written materials in the Building are strictly prohibited, and each Lessee will
cooperate to prevent same. Tenant agrees to cooperate to prevent such activity;
however, Lessor in its sole discretion may allow the occasional distribution of
handbills through the Building janitorial service. Lessee, its employees,
agents, customers and invitees shall not loiter or solicit in the Common Areas,
nor shall Lessee distribute any handbills or other advertising on or about the
Building.
17. Lessee and its employees shall park their vehicles only in those portions of
the parking areas, if any, designated for that purpose by Lessor. Lessor shall
designate a marked visitor parking in close proximity to the main entrance to
the Building for use by the visitors and guests of all lessees of the Building.
Lessor reserves the right to limit visitor parking time by posting the
requirements at the visitor parking spaces. Visitor, loading, delivery, fire
lanes, ingress and egress areas shall not be utilized for parking by Lessee.
Lessor reserves the right to remove vehicles, at Lessee's expense, for any
violation of this provision. Lessee and its employees shall obey all posted
speed limits, and traffic signs and markings, and park vehicles completely
within the marked parking stalls.
18. Lessor shall deliver to Lessee any copies of the rules and regulations or
notices as provided by the Forest Green Development Association, Inc. (the
"Association") in regards to the Greenways Area. Lessee, its employees,
customers, and invitees shall adhere to the rules and regulations of the
Association and in no way violate Lessor's membership with the Association.
19. The sidewalks, halls, passages, exits, entrances, retail areas, elevators,
escalators, and stairways of the Building will not be obstructed by any lessees
or used by any lessee for any purpose other than for ingress to and egress from
their respective Premises. The halls, passages, exits, entrances, elevators,
escalators, and stairwells are not for the general public, and Lessor will in
all cases retain the right to control and prevent access to them by all persons
whose presence, in the judgment of Lessor, would be prejudicial to the safety,
character, reputation, and interests of the Building and its lessees; however,
such access will be permitted to persons with whom any Lessee normally deals in
the ordinary course of its business, unless such persons are engaged in illegal
activities.
20. Lessor reserves the right to exclude or expel from the Building any person
who, in the judgment of the Lessor, is under the influence of liquor or drugs,
is disturbing other tenants in any way, or who shall in any manner do any act of
violence or violate any of the rules and regulations of the Building.
21. No Lessee will permit the Premises to be used for lodging or sleeping or for
any immoral or illegal purpose. No Lessee will use or permit the use of the
Premises in any manner which involves the unusual risk of injury to any person.
No cooking will be done or permitted by any Lessee on the Premises, except in
area of the Premises which are specially constructed for cooking, and
Lessor:
Forest Green/Ormsby I Lease Lessee:
28
except that use by the Lessee of Underwriters' Laboratory - approved microwave
equipment or equipment for brewing coffee, tea, hot chocolate, and similar
beverages will be permitted so long as such use is in accordance with all
applicable federal, state, and city laws, codes, ordinances, rules, and
regulations.
22. The toilet rooms, toilets, urinals, wash bowls, and other plumbing fixtures
will not be used for any purposes other than those for which they were
constructed, and no sweepings, rubbish, rags, or other foreign substances will
be thrown in them. All damages resulting from any misuse of the fixtures will be
borne by the Lessee who, or whose servants, employees, agents, visitors, or
licensees, have caused the damage.
23. Lessee shall not in any way mar or deface any part of the Premises, the
Building, or any parts thereof or fixtures therein. Lessee agrees, at its
expense, to repair, paint, replaster or otherwise restore to the condition
existing at the Commencement Date any damage caused by the violation of this
rule, ordinary wear and tear excepted. Without the prior written consent of
Lessor, no Lessee will lay linoleum, or other similar floor covering. In those
portions of the Premises in which carpet or vinyl floor covering has been
provided directly or indirectly by Lessor, Lessee will at its own expense
install and maintain pads to protect the carpet under all furniture having
casters other than carpet casters. Lessee shall periodically shampoo the carpet
to maintain a neat and clean appearance. Upon request, Lessor can provide this
carpet cleaning service at the then applicable rates or Lessee, after notice to
Lessor and subject to Lessor's requirements, may elect to use a contractor to
perform this service after normal business hours. Lessee shall be responsible
for the periodic "touch-up" of paint within the Premises to maintain a neat and
clean appearance.
25. Lessee will ensure that the doors of the Premises are closed and locked and
that all water faucets, water apparatus, and utilities are carefully and
entirely shut off before Lessee or Lessee's employees leave the Premises, so as
to prevent waste or damage, and for any default or carelessness in this regard
Lessee will make good all injuries sustained by other lessees or occupants of
the Building or Lessor. On multiple-tenancy floors, all lessees will keep the
doors to the Building corridors closed at all times except for ingress and
egress.
26. Lessee agrees that Lessor shall not be responsible for lost or stolen
personal property, money or jewelry from the Premises or Building regardless of
whether such loss occurs when the area is locked against entry or not.
27. Lessor may from time to time adopt appropriate systems and procedures for
the security or safety of the Building, Lessee, and any persons occupying or
entering the Building, or using any equipment in the Building. Lessee will
comply with such systems and procedures. Lessee shall specifically comply with
the Building life safety program established by Lessor, including without
limitation fire drills, training programs and fire warden staffing procedures,
and shall exercise all reasonable efforts to cause all Lessee's employees,
invitees and guests to comply with such program. Lessee shall supply to Lessor
the name, address and phone number of individuals who should be contacted in an
emergency, as well as of individuals requiring special assistance in an
emergency. Lessee authorizes Lessor to relinquish said information to the Police
Department and Fire Department in case of an emergency.
28. All persons entering or leaving the Building after standard hours of
operation including Saturday, Sunday, and holidays will comply with such
off-hours security regulations as Lessor may establish and modify from time to
time. Lessor reserves the right to limit or restrict access to the Building
during such time periods. Lessor may utilize an outside agency to control access
to the Building after-hours. Lessor does not assume any responsibility from, and
shall not be liable for, any damage resulting for an error in regard to any
identification of Lessee or its employees and from admission to, or exclusion
form, the Building by such outside agency.
29. No Lessee will use or keep in the Premises or the Building any kerosene,
gasoline, or flammable or combustible or explosive fluid or material or chemical
substance other than limited quantities reasonably necessary for the operation
or maintenance of office equipment or limited quantities of cleaning fluids and
solvents required in normal operation of the Premises. Without Lessor's prior
written approval, no Lessee will use any method of heating or air conditioning
other than that supplied by Lessor. No Lessee will use or keep or permit to be
used or kept, any foul or noxious gas or substance in the Premises, or permit or
suffer the Premises to be occupied or used in a manner offensive or
objectionable to Lessor or other occupants of the Building by reason of noise,
odors, or vibrations, or interference in any way with other lessees or those
having business in the Building.
30. Lessor will have the right to prohibit any advertising of the business,
profession or activities by Lessee, which in Lessor's reasonable opinion, tends
to impair the reputation of the Building or its desirability as a Building for
offices, and upon written notice from Lessor, Lessee will discontinue such
advertising. Lessee shall not use the name of the Building for any purpose other
than that of a business address of Lessee, and shall not use any picture or
likeness of the Building in any circulars, notices, advertisements or
correspondence without Lessor's express written consent. Any violation of this
rule may be restrained by injunction.
31. Lessee will not bring or keep any animals, except service animals for
persons with a disability, or birds into the Building. In the event a service
animal is required regularly in the Premises, Lessee shall so advise Lessor.
32. Lessee will not permit bicycles or other vehicles inside or on the sidewalks
outside the Building except in areas designated from time to time by Lessor for
such purposes.
33. Whenever Lessee submits to Lessor any plan, agreement, or other document for
the Lessor's consent or approval after the Commencement Date, Lessee agrees to
pay Lessor as Additional Rent, on demand, a processing fee in the sum equal to
the reasonable fee of the architect, engineer, or attorney employed by Lessor to
review the plan, agreement, or document.
34. No act or thing done or omitted to be done by Lessor or Lessor's agent
during the term of the Lease in connection with the enforcement of these Rules
and Regulations will constitute an eviction by Lessor of any lessee nor will it
be deemed an acceptance of surrender of the Premises by any lessee. No agreement
to accept such termination or surrender will be valid unless in a writing signed
by Lessor. The delivery of keys to any employee or agent of Lessor will not
operate as a termination of the Lease or a surrender of the Premises unless such
delivery of keys is done in connection with a written instrument executed by
Lessor approving the termination or surrender.
35. Lessee agrees that it shall not willfully do or omit to do any act or thing
which shall discriminate or segregate upon the basis of race, color, sex, creed,
or national origin in the use and occupancy or in any subleasing or subletting
in the Premises.
Lessor:
Forest Green/Ormsby I Lease Lessee:
29
36. Lessor agrees that these Rules and Regulations shall be enforced against all
lessees in a nondiscriminatory manner. Lessee shall be deemed to have read these
rules and to have agreed to abide by them as a condition of its occupancy of the
Premises.
37. Lessor reserves the right to rescind any of these rules and regulations and
to make such other and further rules and regulations, which shall be consistent
with the Lease, as in its judgement may from time to time be needed or desirable
for the care of the Premises, Common Areas, and the Building. Such rules and
regulations, when made and upon advance written notice to Lessee, shall be
binding upon Lessor and Lessee in the like manner as if originally set forth
herein.
38. If any part of the Premises is used for the preparation and/or sale of food,
including without limitation the operation of a restaurant, snack shop, or
cafeteria, the following apply: (i) Lessee shall provide its own garbage
containers and waste removal service for the disposal of food scraps, oil,
grease, and other such refuse, at Lessee's expense. Garbage containers shall be
leak tight and of a type that do not permit or attract insects, bugs or rodents;
(ii) Lessee shall store soiled or dirty linen in approved fire rated metal
containers with self-closing fusible link covers; (iii) The plumbing and other
facilities within or serving the Premises shall not be used for any purposes
other than that for which they were constructed, and no foreign substances of
any kind shall be thrown therein including any such substance as prohibited by
the County Sewer District. The expense of any breakage, stoppage, or damage
resulting from a violation of this provision shall be borne by Lessee. Grease
traps are required, which shall not be less than monthly. Lessee shall provide
documentation in a form suitable to Lessor indicating that pest control service
is being performed. If it shall be necessary for Lessor to supplement or provide
said pest control services, such work shall be performed and charged to Lessee
as "Additional Rent."
END OF EXHIBIT
Lessor:
Forest Green/Ormsby I Lease Lessee:
30
EXHIBIT I
------------------------
SUBORDINATION, NON-DISTURBANCE & ATTORNMENT
SUBORDINATION, NON-DISTURBANCE
& ATTORNMENT AGREEMENT
THIS AGREEMENT, made effective as of the ___ day of _____, 2000, by and
between __________________________________, with its principal offices at
_____________________________ ("Tenant") and ______________________, a national
banking association, whose mailing address is ________________________, and/or
its participants, successors or assigns ("Lender").
WITNESSETH
WHEREAS, by Lease dated ________________ (hereinafter referred to as the
"Lease"), _________________________ ("Landlord") leased and rented to Tenant the
real property commonly known as ________________________, a legal description of
which is attached hereto as Exhibit A ( the "Property" ); and
WHEREAS, ________________ ("Landlord") has obtained or will
obtain a loan from Lender secured by, among other things, a
mortgage on the Property (the "Mortgage"), and as a condition
to making such loan, it was agreed between Landlord and Lender
that Landlord would obtain from Tenant certain written
agreements; and
WHEREAS, Tenant and Lender desire hereby to establish certain
rights, safeguards, obligations and priorities with respect to
their respective interests by means of the following
agreement.
NOW THEREFORE, for and in consideration of the premises and of the mutual
covenants and promises herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Tenant and Lender agree as follows:
1. The Lease and the rights of Tenant thereunder are and shall be
subject and subordinate to the lien of the Mortgage and to all
of the terms, conditions and provisions thereof, to all
advances made or to be made thereunder, to the full extent of
the principal sum, interest thereon and other amounts from
time to time secured thereby, and to any renewal,
substitution, extension, modification or replacement thereof,
including any increase in the indebtedness secured thereby or
any supplements thereto. In the event that Lender or any other
person (the Lender, any other such person and their
successors and assigns being referred to herein as the
"Purchaser") acquires title to the Property pursuant to the
exercise of any remedy provided for in the Mortgage or by
reason of the acceptance of a deed in lieu of foreclosure,
Tenant covenants and agrees to attorn to and recognize and be
bound to Purchaser as its new Landlord, and subject to the
other terms, provisions and conditions of this Agreement, the
Lease shall continue in full force and a effect as a direct
Lease between Tenant and Purchaser.
2. So long as the Lease is in full force and effect and Tenant
shall not be in default under any provision of the Lease or
this Agreement, and no event occurred which has continued to
exist for a period of time (after notice, if any, required by
the Lease) as would entitle Landlord to terminate the Lease or
would cause without further action by Landlord the termination
of the Lease, or would entitle Landlord to dispossess the
Tenant thereunder:
a. the right of possession of Tenant to the Property shall not be
terminated or disturbed by any steps or proceedings taken by Lender in the
exercise of any of its rights under the Mortgage;
b. the Lease shall not be terminated or affected by said exercise of any
remedy provided for in Mortgage, and Lender hereby covenants that any sale by it
of the Property pursuant to the exercise of any rights and remedies under the
Mortgage or otherwise, shall be made subject to the Lease and the rights of
Tenant thereunder.
3. In no event shall Lender or any other Purchaser be:
a. liable for any act or commission of any prior landlord;
b. liable for the return of any security deposit which has not
been delivered to the Purchaser;
c. subject to any offsets or defenses which the Tenant might
have against any prior landlord;
d. bound by any payment of rent or additional rent which the
Tenant might have paid to any prior landlord for more than the
current month (other than payments of estimated Operating
Expenses).
4. Tenant agrees to give prompt written notice to Lender of any
default by the Landlord under the Lease which would entitle
Tenant to cancel the Lease or abate the rent payable
thereunder, and agrees that notwithstanding any provision of
Lease, no notice of cancellation thereof shall be effective
unless Lender has received the notice aforesaid and has failed
within 30 days of the date of receipt thereof to cure, or if
the default cannot be cured within 30 days, has failed to
commence and to pursue diligently the cure of the Landlord's
default which gave rise to such right of cancellation of
abatement. Tenant further agrees to give such notices to any
successor-in-interest of Lender, provided that such
successor-in-interest shall have given written notice to
Tenant of its acquisition of Lender's interest in the Mortgage
and designated the address to which such notices are to be
sent.
5. Tenant acknowledges that the Landlord has executed and
delivered or will execute and deliver to Lender an Assignment
of Rents and Leases conveying the rentals under the Lease as
additional security for said loan, and Tenant hereby expressly
consents to and recognizes such Assignment, and agrees to pay
the rent to Lender or its nominee whenever Lender claims or
requests the rent under the terms of said assignment.
6. Tenant agrees that it will not, without the prior written
consent of Lender, do any of the following, and any such
purported action without such consent shall be void as against
Lender;
a. make a prepayment in excess of one month of base rent
thereunder; or
b. subordinate or permit subordination of the Lease to any
lien subordinate to the Mortgage; or
c. make or enter into any amendment or modification or
termination of the Lease.
d. assign or sublease without Lender's consent (which shall
not be withheld if to one of equal or greater
creditworthiness) and which shall not be unreasonably
Lessor:
Forest Green/Ormsby I Lease Lessee:
31
withheld so long as a Subordination, Non-Disturbance
& Attornment Agreement in this form is executed by
the assignee or sublessee.
7. Tenant agrees to certify in writing to Lender, upon request,
whether or not any default on the part Landlord exists under
the Lease and the nature of any such default. Tenant states
that as of the date, the Lease is in full force and effect
without modification, a copy of said Lease being attached
hereto. Tenant further states as follows;
a. Tenant is the tenant under the Lease for
space in the above-referenced Property
demising approximately _____________
rentable square feet of space (the
"Premises"). The monthly base rent presently
is $_________________ per month.
b. Tenant has accepted possession of the
Premises pursuant to the Lease. The term
commenced on ______________________. The
termination date of the Lease term,
excluding renewals and extensions, is
_____________. Tenant (has) (does not have)
the right to extend or renew the Lease for
__________(__) __________(___) year
period(s).
c. Any improvements required by the terms of
the Lease to be made by Landlord, and/or any
subsequent Landlord, have been completed to
the satisfaction of Tenant in all respects,
and the Landlord or subsequent Landlords
have fulfilled all of their duties under the
Lease.
d. The Lease has not been assigned,
modified, supplemented of amended in any way
by Tenant, except as described on the
attached sheet (if any). The Lease
constitutes the entire agreement between the
parties and there are no other agreements
concerning the Premises, and Tenant is not
entitled to receive any concession or
benefit (rental or otherwise) or other
similar compensation in connection with
renting the Premises other than as set forth
in the Lease.
e. The Lease is valid and in full force and
effect, and, to the best of Tenant's
knowledge, no party thereto, their
successors or assigns is presently in
default thereunder. Tenant has no defense,
set-off or counterclaim against Landlord
arising out of the Lease or in any way
relating thereto, and no event had occurred
and no condition exists, which with the
giving of notice or the passage of time, or
both, will constitute a default under the
Lease.
f. No rent or other sum payable under the
Lease has been paid more than one month in
advance.
g. The amount of the security deposit, if
any, to secure Tenant's performance under
the Lease is $___________________.
8. The foregoing provisions shall be self-operative and effective
without the execution of any further instruments on the part
of either party hereto. However, Tenant agrees to execute and
deliver to Lender or to any person to whom Tenant herein
agrees to attorn such other instruments as either shall
request in order to effect said provisions.
9. The agreements herein contained shall be binding upon and
shall inure to the benefit of the parties hereto, their
respective successors, successors-in-interest and assigns,
and, without limiting such, the agreements of Lender shall
specifically be binding upon any purchaser of the Property at
foreclosure or otherwise.
10. This Agreement may not be modified other than by an agreement
in writing signed by the parties hereto or their respective
successors-in-interest.
11. This Agreement may be signed in counterparts.
12. If any term or provision of this Agreement shall to any extent
be held invalid or unenforceable, the remaining terms and
provisions hereof shall not be affected thereby, but each term
and provision hereof shall be valid and enforceable to the
fullest extent permitted by law.
13. All notices, statements and other communications to be given
under the terms of this agreement shall be in writing and
delivered by hand against written receipt or sent by certified
mail, return receipt requested, postage prepaid and addressed
as provided in the first paragraph of this Agreement, or at
such other address as from time to time designated by the
party receiving the notice.
IN WITNESS WHEREOF, Tenant and Lender have caused this instrument to be
executed as of the day and year first above written.
TENANT:
By:
- ----------------------- Name:
Witness Its:
- -----------------------
Witness
LENDER:
By:
- ---------------------- Name:
Witness Its:
- ----------------------
Witness
LANDLORD:
By:
- ---------------------- Name:
Witness Its:
- ----------------------
Witness
Lessor:
Forest Green/Ormsby I Lease Lessee: